Brotherhood of Painters, Decorators & Paperhangers of America

BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS 323 there must also be affirmative, positive action bythe employer which indicates that he is forgiving the unprotected activity of an employee. Most frequently, this affirmative action has taken the form of an invitation from, or agreement by, the employer to reinstate strikers without penalty. The relevant cases cited by the majority in support of their waiver finding (footnote 4) are of this character." There is no affirmative evidence of condonation in this case. The Respondent did not promise to reemploy the strikers without penalty; nor did it invite them to return to work under such circumstances as to indicate an intent to overlook their conduct in the strike. To me it is clear that the strikers engaged in unprotected activity; that, even if relevant which I reject, Respondent did not condone or waive such activities; and therefore that the Respondent was lawfully entitled to discharge the strikers. I would so find and dismiss the complaint. Member Murdock took no part in the consideration of the above Supplemental Decision and Order Denying Motion for Re - consideration. rank and file of the workers, we could not agree with it that this would be a waiver of their breach of contract, and a condonation of their wrong headedness, their injurious and harmful action both to the company and to the employees. 14 Alabama Marble Company, 83 NLRB 1047, enfd 185 F 2d 1022 (C A. 2) (Respondent agreed to permit and did permit employees who struck in violation of a no- strike clause to return to work without reserving the right to discipline any striker); E. A Laboratories, Inc., 86 NLRB 711, enfd 188 F. 2d 855 (C A. 2) (Respondent agreed to reemploy strikers who struck in violation of a no-strike clause); The Fafnir Bearing Company, 73 NLRB 1008 (Respondent invited strikers in violation of a no- strike clause to return to work and promised them reinstatement to their former positions without exception or qualification); The Hoover Company, 90 NLRB 1614, 1622, enfd as modified 191 F. 2d 380 (Respondent invited all em- ployees who engaged in mass picketing to return to work; in court decision, court found that when Respondent invited employees engaged in boycotting activities to return to work if they first disassociated themselves from such activity, it thereby waived right to refuse to reinstate employees who complied with its invitation); Clearfield Cheese Company. Inc., 106 NLRB 417 ("In addition to its delay in raising the misconduct issue, despite the numerous opportunities to do so, until long after the termination of the strike, the Respondent affirma- tively indicated at the time of the applications for reinstatement on November 13, and in its letters to, and conversations with, its employees an intent to condone the misconduct") See also the following court decisions reversing Board findings of condonation: N. L R. B v. Dorsey Trailers, Inc , supra; N. L. R. B. v. Warner Bros. Pictures, Inc , 191 F. 2d 217 (C A. 9), setting aside 82 NLRB 568; W. T. Rawleigh Co. v N. L. R. B , 190 F. 2d 832 (C. A. 7), enfg. as modified 90 NLRB 1924. BROTHERHOOD OF PAINTERS, DECORATORS & PAPER- HANGERS OF AMERICA, LOCAL UNION NO. 365, AND HUGH J. SMITH, its Business Agent and JOHN SALANSKY and ELMER LEE RIDGWAY. Case No. 10-CB-145. Decem- ber 11, 1953 DECISION AND ORDER On September 14, 1953, Trial Examiner Robert L. Piper issued his Intermediate Report in the above-entitled proceed- 107 NLRB No. 93. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing, finding that the Respondents had engaged in and were en- gaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings, 1 conclusions, and recommendations of the Trial Examiner with the following additions. THE REMEDY It has been found that the Respondents have engaged in cer- tain unfair labor practices. We shall therefore order that they cease and desist therefrom, and take certain affirmative action to effectuate the policies of the Act. Having found that the contract between the Respondent Union and Greater Miami Chapter Painting and Decorating Contractors of America contains unlawful preferential hiring provisions, we shall order that the Respondents cease and desist from enforcing, executing, or entering into any contracts containing such illegal provisions. It has also been found that the Respondents caused Orange State Painters, Inc., to discriminate against John Salansky and Elmer Lee- Ridgway in violation of Section 8 (a) (3) of the Act, and thereby violated Section 8 (b) (2) and 8 (b) (1) (A). We shall order that the Respondents notify the Company that they no longer object to the employment of Salansky and Ridgway by the Company. We shall also order the Respondents to make whole Salansky and Ridgway for any loss of earnings they may have suffered as a result of the discrimination against them, by payment to each of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date the Company offers to reemploy him, less his net earnings during said period.' We shall toll the Respondent's liability for back pay, however, 5 days after it serves upon the Company written notice that it no longer objects to the immediate employment of Salansky and Ridgway. Loss of earnings for this purpose shall be com- puted in accordance with Board policy established in F. W. Woolworth Company, 90 NLRB 289. i We note and correct the apparent typographical error in section I of the Intermediate Report to the effect that Baily- Lewis- Williams performed services of a value in excess of $680,000 during the first 6 months of 1952. The correct year is 1953. Also, the record shows that the 1952 and 1953 out-of-State business of Bailey-Lewis-Williams involved "gross sales," rather than "services performed." 2 Crossett Lumber Company, 8 NLRB 440. BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS 325 ORDER Upon the entire record in this case , and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders the Respond- ents, Brotherhood of Painters, Decorators & Paperhangers of America, Local Union No. 365, Miami, Florida, and its offi- cers, representatives , and agents , and Business Agent Hugh J. Smith, shall: 1. Cease and desist from: (a) Entering into, executing , or enforcing any contract with Greater Miami Chapter Painting and Decorating Contractors of America which requires that only persons who possess working cards in good standing with the Respondent Union be employed, or which prohibits the employment of permit men or foreign dues-paying members of the Respondent Union working on a visitor ' s permit, without the sanction of a busi- ness agent of the Respondent Union, or any other form of union security which exceeds that permitted under the proviso to Section 8 (a) (3) of the Act. (b) Causing or attempting to cause Orange State Painters, Inc., its officers , agents, successors , or assigns , or any other member of Greater Miami Chapter Painting and Decorating Contractors of America , to discriminate against employees in violation of Section 8 (a) (3) of the Act. (c) Threatening employees with economic reprisals because they are not members of'the Respondent Union, or in any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Notify Orange State Painters, Inc., in writing, and furnish copies to John Salansky and Elmer Lee Ridgway, that the Respondents have no objection to their employment by the Company. (b) Make whole John Salansky and Elmer Lee Ridgway for any loss of pay each of them has suffered because of the discrimination against them , in the manner described in the section herein entitled "The Remedy." (c) Post in conspicuous places at the office of the Respondent Union in Miami, Florida, including all places where notices to members are customarily posted , copies of the notice attached to the Intermediate Report and marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by Hugh J. Smith and representatives of the Respondent Union, be posted by Respondents immediately upon receipt thereof and main- 3This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner," the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tained by them for sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondents to insure that such notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Tenth Region copies of the notice attached to the Intermediate Report, for posting, the Company and the Association willing, at their places of business where notices to employees are customarily posted. Copies of said notice, to be furnished by the said Regional Director, shall, after being signed as provided in paragraph (c) above, be forthwith returned to the Regional Director for such posting. (e) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of this Order what steps the Respondents have taken to comply herewith. Intermediate Report and Recommended Order STATEMENT OF THE CASE Charges having been duly filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been duly filed by Local No. 365, Brotherhood of Painters, Decorators & Paperhangers of America (hereinafter called the Union) and Hugh J. Smith, its business agent, (the Union and Smith being hereinafter collectively called Respondents), a hearing involving allegations of unfair labor practices in violation of Section 8 (b) (1) (A) and (2) of the National Labor Relations Act, 61 Stat. 136, was held in Miami, Florida, on July 20, 1953, before the undersigned Trial Examiner. In substance the complaint alleges and the answer denies that Respondents restrained and coerced employees in the exercise of the rights guaranteed by the Act, and attempted to cause, caused, and are causing Orange State Painters, Inc. (hereinafter called the Company), and Greater Miami Chapter Painting and Decorating Contractors of America (hereinafter called the Association), to discriminate against employees in violation of Section 8 (a) (3) of the Act, by: (1) Threatening John Salansky with economic and other reprisals because he was not a member of the Union. (2) Entering into, executing, and enforcing an agreement between the Union and the Associ- ation providing that only employees possessing a working card in good standing from the Union could be employed, and providing that no permit man or foreign dues-paying member of the Union working on a visitor's pernut could be employed by any member of the Associa- tion without the sanction of the business agent of the Union. (3) Causing the Company on February 18, 1953, to discharge Salansky pursuant to the terms of the collective-bargaining contract, and on March 7, 1953, to discharge Salansky and Elmer Lee Ridgway, pursuant to the terms of the contract, in both instances because they had not received the sanction of Respondents to be employed. At the hearing all parties were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings of fact and conclusions. None of the parties filed briefs. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND OF THE ASSOCIATION The Company is a Florida corporation having its principal office and place of business in Miami, Florida, where it is engaged in the business of painting and decorating as a painting and decorating contractor. BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS 327 The Association is an association of painting and decorating contractors in Greater Miami, Florida. Bailey-Lewis-Williams of Florida, Inc., is a member of the Association. During the year 1952, this single member of the Association performed services of a value in excess of $881,000, of which more than $281,000 were performed outside the State of Florida. During the first 6 months of 1952, this single member of the Association performed services of a value in excess of $ 680,000, of which more than $145,000 were performed outside the State of Florida. The Company is also a member of the Association. In passing upon the jurisdictional-issue herein, the Association and the individual members thereof must be regarded as a single enterprise. i Accordingly, I find that the Company and the Association are engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES The facts are substantially undisputed. On March 30, 1952, the Association and the Union entered into a collective-bargaining contract for a term of 2 years, which agreement is still in full force and effect. It provides, inter alia, that members of the Association may hire only employees who possess working cards in good standing from the Union, and that no permit man or foreign dues-paying member or members of the Union working on a visitor's permit may be employed by a member of the Association without the sanction of the business agent of the Union. It may now be considered well settled that the execution, enforcement, and continued existence of such an agreement by a labor organization violates Section 8 (b) (2) of the Act by causing or attempting to cause an employer to discriminate against employees in violation of Section 8 (a) (3), unless it falls within the permissible area of union security found in the proviso to Section 8 (a) (3), which this does not. 2 Smith and Albert S. Krupsaw were at all times material herein business agents of the Union. During November of 1952 Salansky, a member of another local of the Brotherhood of Painters, moved into the Miami area and sought to secure employment as a painter through the Union. He spoke to Krupsaw, who told him that he would help him in any way he could. For personal reasons, Salansky did not immediately have his membership card transferred into the Union as required by the Union's bylaws. Shortly thereafter Salansky secured employment through his own efforts as a painter in the area. Sometime during December he met Krupsaw, who asked him if he was working in town. Krupsaw told Salansky that he had had complaints that he was working in town and that he (Krupsaw) had been looking for him for 3 weeks. Salansky said that he had been working in Hollywood, Florida, and also in Miami Beach, which was the territory under Krupsaw's direction. Salansky then told Krupsaw that he could stop looking for him because he was going to start working for the post office. According to Salansky, Krupsaw then told him, "If you are still working, remember, we will get you yet." This was about the only fact in the record denied by Re- spondents. Krupsaw admitted talking to Salansky at the time. Krupsaw also admitted that he was surprised when Salansky told him that he had been working in Krupsaw's territory. However, Krupsaw denied that he made any threats to Salansky concerning his employment. I credit Salansky and accordingly find that the Union through its business agent, Krupsaw, threatened Salansky with economic reprisals in the manner testified to by Salansky. On February 18, 1953, Salansky was working on a job for the Company. Smith found him there and asked him what he was doing there. Salansky replied that he was trying to get in a couple of days work and had just started. Smith then told Salansky that he was not in good standing with the Union, that he was not going to work there as long as Smith was in charge, and that he had better pack his things and get off the job. At that time Salansky had not presented his membership card for clearance into the Union, and was to do so that evening. He asked Smith if he could not work until that evening, but Smith told him that he could not work at all, and that he should leave the job immediately. Salansky then talked to the foreman on the job, Robert W. Boles, and told him that he had contacted Barney O'Field, the president of the Company. Salansky told Boles that O'Fieltl had given Salansky permission to work the rest of the day and take the matter up that evening with the Union. Boles told Salansky that iCarpenter & Skaer, Inc, 90 NLRB 417; Gottfried Baking Co., Inc., 103 NLRB 227; J L. Wroan & Son, 106 NLRB 231. 2J L Wroan & Son, supra 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he could not work and that he had to leave the job immediately and go down to the Union and get the matter straightened out. Boles was also a member of the Union. Salansky left the job and was not permitted to return to it by the Union. About a week later Salansky had his membership card cleared into the Union. However, under the Union's bylaws, the working cards of transferring members were stamped as visitors' permits for 60 days after the transfer. As previously found herein, under the terms of the contract with the Union, no member of the Association could employ any employee with a visitor's permit without the sanction and approval of a business agent of the Union. On February 27, 1953, Salansky and Ridgway, both of whom then had visitors' permits from the Union, secured employment with the Company on another job as painters. On March 2, the second day they were working on the job, Smith again appeared at the job and asked Salansky what he was doing there. Again Salansky said that he had just secured the job. Smith then said that he had already told Salansky that he wasn't going to work as long as Smith was the business agent. Smith then left Salansky and Ridgway to see O'Field. About 1 1/2 hours later O'Field came up to Salansky and Ridgway and told them that he had been ordered by Smith to let them go, that there was nothing wrong with their work, but that he was required to lay them off. Salansky and Ridgway were discharged pursuant to the terms of the agreement between the Association and the Union. O'Field corroborated this and testified that Smith had told him to check article 2 of the agreement, which article provided that employees with visitors' permits could not be hired without approval of the business agent of the Union, and that he would have to fire Salansky and Ridgway because of that fact. O'Field testified that that was the only reason he fired Salansky and Ridgway. With respect to the incident of February 18, when only Salansky was discharged. O'Fleld testified that he did not see Smith and that Smith spoke to Boles, the foreman, who discharged Salansky on that occasion. Boles testified that on February 18 Smith came to him and told him that Salansky had not been cleared into the Union, that something would have to be done about it, and that Salansky could not work there until he was straightened out with the Union. Boles substantially cor- roborated everything testified to by Salansky. Boles said that later, after Smith talked to Salansky, Salansky came to Boles and told him that O'Field said that Salansky could work until that evening and then straighten the matter out with the Union, but that he (Boles) then told Salansky that he could not do so, that he would have to leave the job immediately, and that when he was straightened out with the Union to come back. Boles admitted that he fired Salansky because he was not a member of the Union, and because Boles would have been subject to charges and fines by the Union if he had not discharged Salansky. As previously stated, the facts with regard to the discharges of February 18 and March 2 are substantially undisputed. Without reviewing in detail all of the evidence in the record, the testimony of Smith on cross-examination plus his sworn statement which was received in evidence as an exhibit substantially admit all of the facts testified to by the other witnesses concerning the two discharges. A preponderance of the credible evidence in the entire record convinces me, and I find, that Respondents, by entering into, executing, and enforcing the contract with the Association, including the Company, and by causing the Company to discharge Salansky on February 18, 1953, and to discharge Salansky and Ridgway on March 2, 1953, because they did not possess working cards in good standing with the Union and because as holders of visitors' permits they were employed by the Company without the sanction of the Union's business agent, attempted to cause and caused the Company and the Association to discrimi- nate against employees, including Salansky and Ridgway, in violation of Section 8 (b) (2) of the Act, and by such acts and by threatening Salansky with economic reprisals because he was not a member in good standing of the Union, restrained and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8 (b) (1) (A) of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The activities of Respondents set forth in section III, above, occurring in connection with the operations of the Company and the Association described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS 329 3. By entering into, executing , and enforcing the provisions of the contract with the Association, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. 4. By threatening employees with economic reprisals for not being members in good standing of the Union, and by causing the Company to discriminate against Salansky and Ridgway in regard to their employment in violation of Section 8 (a) (3) of the Act. Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting conunerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL NO. 365, BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS OF AMERICA, AND TO ALL EMPLOYEES OF THE GREATER MIAMI CHAPTER, PAINTING AND DECORATING CONTRACTORS OF AMERICA Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT enter into, execute, or enforce any contract with the Greater Miami Chapter, Painting and Decorating Contractors of America which requires the members of such Association to employ only persons having working cards in good standing from this union, or which prohibits members of said Association from employing any permit man, or foreign dues-paying members of the union working on a visitor 's permit without the sanction of a business agent of this union, except to the extent that such agreement may be authorized under the proviso to Section 8 (a) (3) of the Act. WE WILL NOT cause or attempt to cause the members of said Association, their officers, agents, successors, or assigns, to discriminate against employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT threaten employees with economic reprisals because they are not members of this union, nor in any other manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL immediately notify Orange State Painters, Inc., in writing, and furnish copies to John Salansky and Elmer Lee Ridgway, that we do not object to, but on the contrary now request, that company to employ John Salansky and Elmer Lee Ridgway. WE WILL make John Salansky and Elmer Lee Ridgway whole for any loss of earnings they may have suffered because of the discrimination against them. LOCAL NO. 365, BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS OF AMERICA, Labor Organization. Dated ................ By.................. . ........ ......................••........................... (Representative) (Title) Hugh J. Smith This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered byany other material.