Lewis Mittman, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lewis Mittman, Inc. and Thomas Phillipo. Case 29- CA-6344 September 27, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 26, 1979, Administrative Law Judge Ste- phen Gross issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Lewis Mittman, Inc., New York, New York its officers, agents, successors, and assigns, shall take the action set forth in the said rcommended Order, as so modi- fied: 1. Substitute the following for paragraph I: "1. Cease and desist from: "(a) Discriminating in wages or other forms of compensation by reason of an employee's member- ship in, lack of membership in, the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local 814, or any other labor organization. "(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), cnfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Although the issue is not before the Board on exception. Member Penello, noting his dissent in General American Transportation Corporation, 228 NLRB 808 (1977), would not rely on that case as authority for rejecting Respondent's argument that the unfair labor practice allegations involved herein should be deferred to arbitration. 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOIc('E TO EMPI.()YEES POSTED BY ORDER OF T1Hl NATIONAI. LABOR REI.AI()ONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the Act and has ordered us to post this notice. We intend to abide by the following: WE WI.L NOT discriminate in wages between employees who are union members and employ- ees who are not union members. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act. WE WILI. pay to Thomas Phillipo, the em- ployee involved, the difference between what we would have paid him if he had been a union member and the lesser amount we actually paid him, plus interest. LEWIS MITTMAN IN(C. DECISION STATEMENT OF THE CASE STEPHEN GROSS. Administrative Law Judge: On April 17, 1978, Thomas Phillipo filed a charge claiming that Lew- is Mittman, Inc.. (the Company) discharged Phillipo be- cause of Phillipo's membership in and support for Local 814, International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America (Local 814 or the Union). The Regional Director of Region 29 issued a com- plaint in the matter on May 31. 1978. The Company filed a timely answer and the case was heard in Brooklyn. New York, on March 1, 1979. As spelled out in the complaint, at issue is whether the Company violated Section 8(a)(3) and (1) of the National Labo, Relations Act by firing Phillipo, and thereafter failed to reinstate him, because Phillipo had joined Local 814. A second issue that arose in the course of the hearing is whether the Company violated Section 8(a)(3) and (1) of the Act by paying Phillipo wages below those specified in the applicable collective-bargaining agreement because Phillipo was not a union member. All parties were given full opportunity to participate. to introduce evidence, to examine and cross-examine wit- nesses, to argue orally, and to submit briefs (although only the General Counsel chose to submit a brief). Upon the entire record. including my observation of the witnesses and their demeanor, I make the following: 245 NLRB No. 61 450 LEWIS MITTMAN, INC. FINDINGS OF FACT I. THE COMPANY'S BUSINESS AND LOCAL 814's LABOR ORGANIZATION STATUS The Company is engaged in the manufacture and sale of furniture. Its office, plant, and distribution facilities are lo- cated in New York City. The complaint alleges, the Com- pany admits, and I find and conclude that the Company is and at all material times has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, the Company admits, and I find and conclude that Local 814 is a labor organization within the meaning of Section 2(5) of the Act. II. THEl AI.I.EGED UNFAIR LABOR PRA(TI( I-S A. Phillipo's Discharge 1. Evidence of discharge because of Phillipo's union membership Thomas Phillipo began working for the Company as a porter on March 6. 1978. Phillipo subsequently was switched to the job of helper on the Company's delivery truck. Phillipo was not then a union member. (The record is not clear about the exact date Phillipo began working as a helper.) The Company's collective-bargaining agreement with Local 814 for the period in question covered all of the Com- pany's truckdrivers and helpers. The agreement contains no exceptions. The agreement does contain a union-security agreement that states that all of the Company's truckdrivers and helpers "shall become and remain members in good standing of the Union as a condition of employment on and after the 31st day following . . . the first day of employ- ment." It also provides that helpers were to receive $212 per week. Although nothing in the agreement lent any support to such an interpretation, Lewis Mittman, president of the Company, read the agreement as giving him the right to order nonunion employees to refrain from joining the Union until they had worked for the Company 30 days, and to pay nonunion employees less than the wage rates speci- fied in the collective-bargaining agreement. Mittmann made it clear, in fact, that the Company would ordinarily discharge a nonunion employee who sought to join the Union during the employee's first 30 days with the Com- pany. That policy of the Company constitutes half of the Gen- eral Counsel's case. The other half is the chronological rela- tionship between Phillipo's joining the Union and his dis- charge. Phillipo joined Local 814 on the afternoon of Thursday, April 13. He was fired on April 14. Thus, at the time in question: (I) Phillipo had held his job as a helper for less than 30 days; (2) the Company had a policy of firing nonunion employees if they joined a union within 30 days with the Company; and (3) Phillipo was discharged the day after he joined the Union. As the Gen- eral Counsel argues, there is no doubt that this set of cir- cumstances does amount to prima facie evidence of dis- crimination against an employee based on the employee's exercise of his protected rights. 2. The Company's defense (a) The Conlpatny's alleged lack of knowledge of Phillipo's union membership. Both Phillipo and a trustee of Local 814, Joseph Danetra. testified in the course of the General Counsel's direct case that Phillipo joined Local 814 sometime during the after- noon of April 13. And Danetra said that he called Mittman at Mittman's office that same day to tell him that Phillipo had joined Local 814 and to demand that Phillipo be paid at the proper wage rate. Mittman agreed that he learned of Phillipo's membership by means of a call to his office from Danetra. But Mittman said that he got the call on the same day Phillipo was fired, and after Phillipo had been told he had been fired. Mittman also pointed out that since the Company's records showed that Phillipo had worked a full day' (with perhaps some overtime) on April 13, Phillipo must have joined the Union after 5 p.m., too late for Danetra to be able to reach Mitt- man at Mittman's office. Danetra and Phillipo then came back on the stand to suggest that the matter was handled during Phillipo's lunch break. While I found that testimony questionable, it turned out that Mittman had given the General Counsel an affida- vit saying that Danetra had called Mittman on April 13. Mittman argued that he had been duped by the General Counsel's representative into making a misstatement. But Mittman does not seem the type of person who would be easily beguiled (even assuming that the General Counsel's representative would seek to do so). All in all, what most likely happened is that Phillipo did join the Union on April 13, early' enough for Danetra to call Mittman on the same day. Perhaps Phillipo went to Local 814's office at lunch- time. More likely he took some unreported time off from work and Danetra probably did call Mittman on April 13. In sum, a preponderance of the evidence shows that the Company did know about Phillipo's union membership the day before Phillipo's last day on the job. (b) Phillipo's Work As the testimony of Joseph Danetra, the union official, made clear Mittman is an emotional kind of person who expects his employees to meet standards that are extremely high--perhaps unreasonably high. His company manufac- tures and sells expensive, custom-made, easily-damaged furniture. Phillipo clearly did not belong in that kind of setting. Not long after he went to work for the Company. Phillipo "dropped" or "bumped" a teak console. The resulting dam- age required costly repair. Not long after that incident, Phillipo spilled a stain on a chair being readied for delivery. Obviously Phillipo's major function, or at least a major function, was to assist the driver of the Company's delivery truck in carrying furniture into customer's homes: See G.C. Exh. 4, p. I at "First" (b). Yet about a wek before his 451 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge. Phillipo refused to help the driver of the Compa- ny's truck carry an armoire up some stairs to a customer's home. As a result the driver had to hire someone "off the street" to do the very work Phillipo had been employed to do, at a cost of$10 to $15. That was not only a problem in its own right, it led the Company's driver to complain about having to work with an inexperienced helper. Finally, on or about April I Phillipo misplaced a piece of furniture in the course of delivering it to the Company's showroom (Mittman testified at first that the event occurred on April 8 or 9, 1978. But these are weekend dates, and later it became clear that the date was probably April I1. That seemed to serve as a last straw, leading Mittman to run after the Company's truck as it was pulling away from the Company's facilities and to tell Phillipo through the open door of the moving truck that Phillipo was "through at the end of the week." Phillipo agreed that Mittman said something to him through the open door of a moving truck but testified that he did not remember misplacing a chair and denied that Mittman told him that he was to be fired. According to Phillipo, in fact, Mittman did not even sound angry. But Mittman's account was more credible than Phil- lipo's. (c) The telephone conversation between Danetra and Mirtman As discussed above, on Thursday, April 12, the day be- fore Phillipo's discharge, Danetra, the Union official, called Mittman to tell Mittman that Phillipo had joined the Union and that Phillipo was being underpaid. Mittman responded by telling Danetra that the Company had previously de- cided that Phillipo was to be discharged. That response testified to by both Mittman and Danetra is itself persuasive evidence that the Company decided to fire Phillipo before it learned of Phillipo's union member- ship. First, it jibes with Mittman's testimony about his having decided on April II (a Tuesday) to fire Phillipo at the end of that week (Friday, April 14). Second, even assuming that Mittman had a sophisticated understanding of his and Phillipo's respective rights under the Act, and that Mittman was prepared to lie to Danetra to protect the Company, it would have taken remarkably quick thinking to respond immediately by saying that the Company had already decided to fire Phillipo. Third, it is clear that Mittman really believed that he had the right to order employees to refrain from joining a union until they had been in the unit for 30 days. Given that belief, there was no reason for Mittman to lie to Danetra about Mittman having already made up his mind to fire Phillipo. 3. Phillipo's discharge-conclusion Based on the record and my weighing of the witnesses' credibility, it appears that the Company did learn late in the day on Thursday, April 13, 1978, that Phillipo had joined Local 814. But by that time the Company had al- ready concluded that Phillipo was not capable of handling the job the way the Company wanted it done and that Phil- lipo was to be discharged on April 14. It is clear that had the Company not already concluded to fire Phillipo as of April 14. the Company would have fired Phillipo tir joining the Union prior to his 30 days in the unit. And that would have been a violation of the Act: Flock Bros., In.. 239 NLRB 939 (1978): Schluderherg- Kurdle Co., 235 NLRB 1412 (1978). But what would have happened is not what did in fact happen. Phillipo was fired for reasons that related solely to the performance of his job and accordingly the Company did not violate the Act in discharging Phillipo. B. Payment of Less than the C(ontractual Wage Rate The collective-bargaining agreement between the Com- pany and Local 814 provided that "helpers" would be paid a weekly wage of $212.48, about $5.35 per hour, during the period in which Phillipo was employed by the Company. As touched on above. the agreement covers all of the Com- pany's helpers, with no distinction between union members and nonmembers and no exclusion for probationary em- ployees. The Company concedes that Phillipo was a helper for purposes of the agreement and that had Phillipo been a member of Local 814 at the time the Company hired him, the Company would have paid Phillipo the full $212.48 wage. Nonetheless, the Company paid Phillipo at the rate of $3.25 per hour ($130 per week). or about 40 percent less than the rate specified in the applicable collective-bargain- ing agreement. The Company's basis for Phillipo's lower pay scale was Mittman's view that the agreement applied only to members of the Union and that Phillipo's limited experience and abilities did not warrant a wage of more than $3.25 per hour. 4. Absence of issue in complaint The complaint makes no reference at all to the Company paying wages to Phillipo at a rate that differed from the wages paid to union members. Thus. there is a question of whether the issue is a proper one to consider in this pro- ceeding. I think it is. First, the facts are undisputed. Mittman himself testified that Phillipo was paid less than the rate specified in the collective-bargaining agreement, and that, in turn, was be- cause he was not a union member. Second, the General Counsel's representative touched on the wage disparity in his opening statement, specifically dis- cussed the issue in his closing statement, and again covered the matter in his brief. The Company at no time objected to any of those discussions of the issue and at no time claimed surprise or suggested that there might be other facts that would rebut General Counsel's claims. 5. Conclusion wage differential In the situation at hand there are two problems inherent in the Company paying higher wages to union members than nonunion members, each cutting in a different direc- tion. The first is that it is a form of discimination that tends to encourage union membership. The second is that it tends to cause the Company to prefer hiring nonunion members 452 LEWIS MITTMAN. INC. over union members. Obviously the Company did not pay Phillipo sub-par wages in order to encourage union mem- bership. And there is no direct proof that the Company's paying nonunion employees less than union employees did in fact cause the Company to discriminate in whom it hired. Nonetheless, the payment of wages that differ depending on whether or not an employee is a union member is a form of discrimination so inherently likely to encourage or discour- age membership in a labor organization that the existence of the discrimination alone is enough to constitute a viola- tion of the Act. Gayvnor News Company, v. N.L.R.B.. 347 U.S. 17, 45-47 (1954). 1II. THE COMPANY'S CI.AIM IHAT BOARD A(IION IS INAPPROPRIATE At the hearing the Company argued that Phillipo's Local 814 should be required to exhaust the grievance and arbi- tration procedures provided in the collective-bargaining agreement, that they had not done so and that Board action was not appropriate given the procedures provided by the agreement. But the Board does not defer to grievance ma- chinery cases involving discharges alleged to be in violation of Section 8(a)(3) and (1) of the Act. General American Transportation Corp., 228 NLRB 808 (1977). THE REMEDY The recommended Order will require the Company to cease and desist from discriminating between union and nonunion employees in wages or other forms of compensa- tion, to make Phillipo whole for the loss of earnings he suffered by reason of the discrimination against him, and to post a notice advising of these requirements. In respect to the amount Phillipo is to receive from the Company, the Company is to pay him a sum of money equal to what he would have earned during his employ by the Company as a helper had he been paid at the rate speci- fied in the collective-bargaining agreement between the Company and Local 814,' less the amounts the Company did pay him, with interest computed as required by Florida Steel Corporation, 231 NLRB 651 (1977).2 CONCLUSIONS OF LAW 1. The Company violated Section 8(a)(3) and (I) of the Act by paying wages to Thomas Phillipo at a rate lower I Phillipo and the Company appear to disagree about the date on which Philhpo began working as a "helper" within the meaning of the applicable collective-bargaining agreement. Since the question was not fully litigated, it will be left for resolution in the compliance stage. I In a supplemental brief, the General Counsel urges that I depart from Florida Steel and impose a remedial interest rate of 9 percent. The Board has the interest rate issue under consideration: see Hansen Cakes, Inc.. 242 NLRB 472 (1980). But for now. at least, Florida Steel remains law: Id. than the Company would have paid to him had he been a member of Local 814. 2. The Company has not otherwise engaged in any un- fair labor practice alleged in the complaint. Upon the foregoing findings of fact. conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER' The Respondent, Lewis Mittman, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall: I. Cease and desist from discriminating in wages or other forms of compensation by reason of an employee's mem- bership in, or lack of membership in, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 814, or any other labor organiza- tion. 2. Take the following affirmative action. which is deemed necessary to effectuate the policies of the Act: (a) Make Thomas Phillipo whole for the loss of earnings he suffered as a result of Respondent's discrimination in rates of pay between members of Local 814 and nonmem- bers, in the manner set forth in the section of the attached Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports. and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its places of business copies of the attached notice marked "Appendix."4 Copies of the notice on forms provided by the Regional Director for Region 29, after being signed by the Company's authorized representative, shall be posted by the Company as soon as it receives them. The notice shall be kept posted for 60 consecutive days, including all places where notices to employees are custom- arily posted. The Company shall take reasonable steps to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of this Order, of the steps the Company has taken to comply with this Order. 3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. ' In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 453