Brotherhood of Painters, Decorators and Paperhangers of America

11 LOCAL 257, BROTHERHOOD OF PAINTERS, ETC. 821 or a substantially equivalent position, without prejudice to his seniority or other rights and privileges. All my employees are free to become, remain, or to refrain from becoming or remaining members of the above-named Union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. CHARLES IT. SEYFERT , AN INDIVIDUAL D/B/A SEYFERT FOODS CO., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. Appendix B Carole Priest Berlew (also referred to as Carol Priest) Evans Brooks (also referred to as Evin Brooks) Norma Criswell Dolores Maxine Decker (also referred to as Maxine Dukes) Regina Frohning Ignatia Gomez (also referred to as Mary Gomez) David Green Richard Harrold Rema Brown Hartley (also referred to as Rema Brown) Jimmie Hoppas Henry Hudson James Kapp (also referred to as James Caupp) Rex Maggert Barbara Belle Nelson Alice May Rayfield Mary Allene Rayfield Charlotte Robinson Virgil K. Smith Elizabeth Timmons Joan Waltenburg LOCAL 257, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL, AND Roy J. SUPRENANT, ITS BUSINESS AGENT, and THOMAS E. HUGHES. Case No. 1-CB-263. August 13, 1954 Decision and Order On April 30, 1954, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding finding that the 109 NLRB No. 117. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent, Local 257, Brotherhood of Painters, Decorators and Pa- perhangers of America, AFL, herein called Local 257, and Roy J. Suprenant, its business agent, had engaged in and were engaging 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 Re- spondents filed exceptions to the Intermediate Report and a support- ing brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case and hereby adopts the Trial Examiner's findings, conclusions, and recommenda- tions with the following additions and modifications : The Trial Examiner found, and we agree, that there existed between the Employer and Local 257 an illegal hiring arrangement. In sup- port of his finding, the Trial Examiner cites the testimony of Barry Doig, the Employer's general manager. The Respondents, contend- ing that the arrangement between the Employer and Local 257 merely provided that Local 257 would act as an employment agency, and noth- ing more, also cite the testimony of Barry Doig in support of their argument. We find, however, that Doig's testimony failed to support either contention because Doig admitted that he neither took part in making the arrangement nor was he ever informed of the nature thereof. Therefore, we rely for our finding solely upon the fact that Hughes was terminated at the request of the Union, as set forth in the Inter- mediate Report, and upon Respondent Suprenant's reiterated admis- sions that the understanding between the Employer and Local 257 provided that the Employer would hire only union members through Local 257 and further provided that if Local 257 could not furnish Union-member painters for the Employer's project, the Employer would hire only members of other locals of the same national labor organization of which Local 257 was, and is, an affiliate. We find that this uncontroverted testimony definitely establishes the existence of an understanding which, although not formalized, nevertheless constitutes a contractual obligation which is patently illegal. More- over, we find that the mere existence and continuation of this agree- ment create a threat to the rights of employees and prospective em- ployees in violation of Section 7 of the Act, and, therefore, constitute an independent violation of Section 8 (b) (1) (A) of the Act,' in addition to the violation caused by the discriminatory discharge of Thomas E. Hughes. 1 Cf. Bell Atireraft Corporation, 105 NLRB 755; Jandel Furs, 100 NLRB 1390 at 1391. LOCAL 2 5 7, BROTHERHOOD OF PAINTERS, ETC. 823 THE REMEDY Because the record indicated that the Springfield job, from which Hughes was discharged, was completed before or at the time of the hearing of this case the Trial Examiner did not recommend that the Respondents be ordered directly to inform the Employer, in writing, that they request Hughes' reinstatement to the job. However, we feel that in order to fully effectuate the policies of the Act, the Re- spondents should be ordered to do so to the extent of informing the Employer and Hughes that they have no objection to Hughes' em- ployment within the Union's territorial jurisdiction if, as, and when the Employer may have a job in that area. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondents, Local 257, Brotherhood of Painters, Decorators and Paperhangers of America, AFL, its officers, agents, successors, and/or assigns, and Roy J. Suprenant, its business agent, shall : 1. Cease and desist from : (a) Causing or attempting to cause William Doig, d/b/a William Doig & Son, their officers, agents, successors, and assigns, to discrimi- nate in any manner against employees or applicants for employment in violation of Section 8 (a) (3) of the Act. (b) Entering into, renewing, or enforcing any agreement or under- standing with said Employer or any other employer which accords preferential or exclusive hiring rights to members of the Respondent labor organization. (c) In any other manner restraining or coercing employees of Wil- liam Doig & Son or applicants for employment in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Thomas E. Hughes for any loss of pay he may have suffered because of the discrimination against him, in the manner described in the Intermediate Report in the section entitled "The Remedy." (b) Notify Thomas E. Hughes and William Doig & Son, 55 Bar- clay Street, New York, New York, in writing that they have no ob- jection to the employment of Thomas E. Hughes if, as, and when the said William Doig & Son may have work within the territorial juris- diction of the Respondents. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post in conspicuous places, including all places where notices to members are customarily posted, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being signed by duly authorized representatives, be posted and maintained for a period of at least sixty (60) consecutive days. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the First Region in writing within ten (10) days from the date of this Order, what steps have been taken to comply therewith. MEMBER BEESON took no part in the consideration of the above Deci- sion and Order. 2In 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." Appendix To ALL MEMBERS OF LOCAL 257, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause William Doig, d/b/a William Doig & Son, or any other employer, to require employees or applicants for employment to obtain clearance or job referrals from us as a condition of employment, except as authorized by Section 8 (a) (3) of the Act. WE WILL NOT cause or attempt to cause the above-named or any other employer to discriminate in any manner against em- ployees or applicants for employment in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any manner restrain or coerce employees or prospective employees of the above-named or any other employer in the exercise of rights guaranteed by Section 7 of the Act. WE WILL make whole Thomas E. Hughes for the discrimination caused against him. LOCAL 257, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL, Labor Organization. Dated---------------- By ------------------------------------- (Title of Officer) Dated---------------- ROY J. SUPRENANT, Business Agent. ' This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. LOCAL 257, BROTHERHOOD OF PAINTERS, ETC. Intermediate Report STATEMENT OF THE CASE 825 Charges having been duly filed and served , a complaint and a notice of hearing thereon having been duly issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the Respondent Sur- prenant, a hearing involving allegations of unfair labor practices in violation of Section 8 (b) (1) (A) and (2) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was held in Springfield, Massachusetts, on March 24, 1954, and in New York, New York, on April 6, 1954, before the under- signed Trial Examiner. As amended during the hearing the complaint alleges, in substance , that: (1) On or about February 1, 1954, the Respondents Local 257 and its agent, Surprenant, caused an employer, William Doig & Son, to discriminate in regard to the hire of employees generally and specifically of one Thomas E. Hughes, by (a) effectuating an oral agreement with said Employer requiring as a condition of employment membership in Local 257 or clearance by it; (b) causing the discharge of Hughes on or about February 1, 1954; and (c) causing the Employer Doig to refuse to reinstate Hughes; and (2) by such conduct the Respondents have restrained and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. At the hearing all parties were represented, 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 of law. A brief has been received from the Respondents. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER INVOLVED William Doig, doing business as William Doig & Son, is sole owner of a busi- ness with principal office at 55 Barclay Street, New York City, which is engaged in various States of the United States in the business of interior decoration and repairs of churches and religious institutions . During 1953 it performed such services in the 48 States and in several foreign countries . During the same period it performed services valued at about $275,000, of which more than 50 percent was outside the State of New York. It manufactured and sold statuary and other church articles at its New York factory, valued at about $100,000 in the same period, of which more than 50 percent was shipped outside the State of New York, and it annually imports from Italy, altars, columns, and statuary valued at about $90,000. It is found that William Doig, doing business as William Doig & Son, is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 257, Brotherhood of Painters, Decorators and Paperhangers of America, AFL, is a labor organization admitting to membership employees of the above- named Employer, and Roy J. Surprenant is its business agent. III. THE UNFAIR LABOR PRACTICES A. The facts Events here at issue, and as to the nature of which there is little dispute, all occurred within a period of a few days after Doig began certain previously con- tracted work upon a church in Springfield , Massachusetts, in the latter part of January 1954. On or about January 25 Doig came to Springfield with his foreman , Oscar Nelson, and in an interview with Roy Surprenant, business agent of Local 257, asked him for a couple of men. Surprenant agreed to have one available the next day and another later, and in the meantime told Doig he could put another man on if he had one available. Doig then hired, at his New York office, applicant Thomas E. Hughes, the com- plainant in this case, after Hughes had showed him his membership book in an- other Painters' local, and sent him on to Springfield, with a letter addressed to the foreman, stating that he had arranged with Hughes to start work on Wednesday, January 27, and informing Nelson of the hourly rate of his wages. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hughes reported for work and began his duties on January 27. The next day Surprenant came to the job, and asked to examine his union book. On Friday, January 28, Surprenant again came to the job and told Hughes that he must pay up to date dues owed to his local (not 257). On Monday, February 1, Surprenant checked with Hughes, while he was on the job, to see if he had carried out his instructions. Hughes said he had not. Sur- prenant then told him that he could not continue on the job. Foreman Nelson, present at the time, made no effort to intervene. Surprenant further stated, in Nelson's presence, that if Hughes remained the other painters would leave the job. Hughes reported for work on Tuesday, February 2, at which time Nelson told him, "I can't lay you off because Mr. Doig hired you, and if you work here, we're going to have labor trouble." After Nelson said he did not know what to do under the circumstances, Hughes said he would go to New York and see Doig. Hughes saw Doig on Thursday, February 4. The Employer told him that Surprenant would not let him keep him on the job, at Springfield, but he would hire him on some other when available. Doig has not employed Hughes since Feb- ruary 1, 1954. B. Conclusions Surprenant's own testimony makes it plain, and it is found, that he, as agent for Local 257, caused the Employer to discharge Hughes. On Monday, February 1, according to the business agent, "I then went to Mr. Nelson . . . and I referred to the men walking off the job if this man comes back to work tomorrow morning. `The men told me they would not work with him. Now, you brought him here. I didn't. It's entirely up to you to do what you want to with him."' The business agent's testimony is corroborated by that of Barry Doig, son of William Doig and manager of the enterprise, that there was an oral agreement be- tween the Employer and Local 257 to hire only through Local 257 if this Local could supply needed men. Thus it is found that a preferential hiring agreement existed between the Local and the Employer, requiring membership in Local 257 or clearance by it. The Board has long found, and it is here found, that such an agree- ment, even if oral, is prohibited by the Act. That it was enforced, at least in the case of Hughes, is established by the fact that, upon Surprenant's threat that others would strike the job, the Employer discharged Hughes. The Respondents adduced some evidence to show that Hughes owed dues to his own local, affiliated with the same parent organization. The fact, even if it be a fact, is immaterial to the issues here presented. The payment, or nonpayment, of dues to a labor organization, as a permissible ground for causing the discharge of an employee, is only material in the presence of an agreement permitted by Sec- tion 8 (a) (3) of the Act. Here it is not even claimed that such an agreement existed. In summary, the Trial Examiner concludes and finds that the Respondents Local 257 and its agent, Roy Surprenant, caused Employer Doig discriminatorily to dis- charge employee Thomas Hughes in violation of Section 8 (a) (3) of the Act, and thereby themselves violated Section 8 (b) (2) of the Act, and that by causing such discrimination and by entering into said preferential hiring agreement the Respond- ents have restrained and coerced employees and applicants for employment in the exercise of rights guaranteed by the Act.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of William Doig, d/b/a William Doig & Son, 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 burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondents Local 257 and Surprenant have engaged in certain unfair labor practices. It will be recommended that they cease and desist therefrom, and take certain affirmative action to effectuate the policies of the Act. Having found that the preferential or exclusive hiring agreement or understanding between Doig and Surprenant, as agent for Local 257, is illegal within the meaning of the Act, the Trial Examiner will recommend that the Respondents cease and 'N. L. R B. v The Lummus Co, 210 F. 2d 377 (C. A. 5), enfg 101 NLRB 1628; also Rad'o Officers' Union of the Commercial Telegraphers Union, AFL v. N. L. R. B., 347 U. S. 17. NEW CASSELL ELECTRONICS 827 desist from giving effect to said illegal agreement, and from entering into, renewing, or enforcing any agreement with Doig or any other employer which accords prefer- ential or exclusive hiring rights to members of the Respondent labor organization. It has been found that the Respondents caused Doig discriminatorily to discharge and refuse to reinstate Hughes on February 1, 1954. Although the record is not specifically clear on the point, the Trial Examiner infers that the Springfield job, from which Hughes was discharged, was completed by Doig before the opening of the hearing.' For that reason it will not be recommended that the Respondents di- rectly inform Doig, in writing, that they request Hughes' reinstatement to that job. It will be recommended, however, that the Respondents make Hughes whole for any loss of pay suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would normally have earned from the date of the discrimination to the date his job would normally have terminated, less his net earnings during said period. Back pay shall be computed in a manner consistent with the policy established by the Board in F. W. Woolworth Company, 90 NLRB 289. The unfair labor practices found to have been engaged in by the Respondents are of such character and scope that, in order to insure employees and prospective em- ployees of Doig and other employers engaged in interstate commerce of full rights guaranteed by the Act, it will be recommended that the Respondents, and each of them, cease and desist from in any manner interfering with, restraining, or coercing employees or prospective employees in their right to self-organization. On the basis of the foregoing findings of fact and upon,the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 257, Brotherhood of Painters, Decorators and Paperhangers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. William Doig, d/b/a William Doig & Son, is an employer within the mean- ing of Section 2 (2) of the Act. 3. By causing the said Employer to discriminate in regard to the hire and tenure of employment of applicants for employment and of Thomas E. Hughes in viola- tion of Section 8 (a) (3) of the Act, the Respondent labor organization and Respond- ent Surprenant, its business agent, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act, and by restraining and coercing employees and applicants for employment in the exercise of rights guaranteed by the Act the said Respondents have also engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 9 The questioning of Harry Doig, concerning the nature of that job, was all in the past tense. COIL WINDERS, INC., D/B/A NEW CASSELL ELECTRONICS and INTERNA- TIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, C.I.O., PETITIONER. Case No. 2-RC-6699. August 13,1954 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Arthur Younger, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board ,finds : 1. The Employer is engaged in commerce within the meaning of the Act. 109 NLRB No. 120.