District Council of Painters No. 52, AFL-CIO, Etc

1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The bargaining unit is: All our employees who shall be engaged to load and unload freight cars and barges or securing freight on cars, wharves , or in sheds, heading cotton on wharves, working with Inspectors, handling any and all commodities on wharves, labor for weighing, gauging, and sampling on wharves, all men who shall be engaged to assort freight on wharves, stenciling and tagging any and all commodities on wharves, the loading and unloading of trucks, vans, and trailers on wharves , and Piggy Back roll-on/roll-off and lift-on/lift-off operations in the port of New Orleans. WE WILL NOT recognize or bargain collectively with General Longshore Workers, I.L.A., Local Union No. 1418, or Local Union No. 1419, AFL-CIO, or both, as the representative of all the employees in the above-described unit. WE WILL NOT give effect to any collective-bargaining contract we have exe- cuted with said Local Union No. 1418 and Local Union No. 1419 as the repre- sentative of the employees in the bargaining unit described above. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist said Local No. 854, or any other labor organiza- tion, to bargain collectively through representatives of their choosing, and to, engage in any other concerted activities for the purposes of collective bargain- ing or other mutual aid or protection , or to refrain from any or all such activities. WE WILL, upon request, bargain collectively with said Local No. 854 as the representative of all the employees in the bargaining unit described above, and, if an understanding is reached, embody such an understanding in a signed agreement. WE WILL cancel our collective-bargaining agreement with said Local No. 1418 and Local No. 1419 executed on June 3, 1963 , pertaining to the lift-on/lift-off work in the port of New Orleans. WATERMAN OF PUERTO Rico-U.S.A., INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone No. 529-2411 if they have any question concerning this notice or compliance with its provisions. District Council of Painters No. 52, AFL-CIO, Brotherhood of Painters, Decorators and Paperhangers of America [Maynard C. Belvoir] and Cecil Carl Johnson. Case No. 21-CB,-2280. January 18, 1965 DECISION AND ORDER On October 15, 1964, Trial Examiner William E. Spencer issued his Decision in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Exam- iner's Decision and a brief in support thereof. 150 NLRB No. 101. DISTRICT COUNCIL OF PAINTERS NO. 52, AFL-CIO, ETC. 1095 Pursuant to Section 3(b) of the National Relations Act, -as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error ' was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner only to the extent consistent with this Decision and Order. The complaint alleges that the Respondent violated Section 8(a) (2) and (1) (A) of the Act by causing Employer Maynard C. Bel- voir to discharge Cecil Carl Johnson because the latter was not a member of the Respondent Union. The Respondent contends that Johnson obtained employment in violation of the exclusive hiring- hall provisions of the bargaining agreement applicable to the work here involved, and that his discharge was demanded and obtained to enforce said provisions. The Trial Examiner stated that, if the Respondent had made union membership a prerequisite to registration and referral from the hir- ing hall, the Respondent would have violated the Act. However, as Johnson never sought to register for referral, the matter of whether he would have been refused referral because of his nonmembership in the Union was never put to the test. Therefore, held the Trial Examiner, as the Respondent had lawful grounds for seeking John- son's removal, a remedy requiring reinstatement would not be appro- priate. We disagree. Where an employee's discharge is caused for discriminatory reasons, the coexistence of separiite lawful reasons does not eliminate the unlawful aspect of the conduct in question.' Additionally, the Trial Examiner had doubts regarding the evi- dence of unlawful conduct. In this respect, the record shows the following facts : - On February 24, 1964, Johnson was hired by Foreman Galo Avila to work on the Company's Bel-Air construction project. It is un- disputed that Johnson had not been dispatched to the job by the Respondent Union pursuant to the requirements of the bargaining agreement with Belvoir and others. Moreover, Johnson himself ad- mitted that he had not registered with the'Uliion prior to seeking em- ployment with Belvoir.2 On the second day of his employment, Johnson was visited at the construction site by William B. Hawksworth, business representative 1 N.L.R .B. v. Whitin Machine Works , 204 F. ' 2d 883, 885 (C A. 1). 2As found by the Trial Examiner, the legality of the hiring-hall provisions of this agreement is not in issue 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD " for the Respondent.' There is conflicting testimony as to what hap- pened thereafter. According to Johnson, Hawksworth asked him for his union card. When he replied that he was not currently a mem- ber of the .Union, Hawksworth took Johnson before Avila' and de- manded his discharge, stating as the reason therefor that Johnson was not a member of the Union. On the other hand, Hawksworth testified that he asked Johnson if he had registered with the Union and had obtained a referral slip for this particular job, and' that Johnson admitted having failed to register. According to Hawks- worth, he then confronted Avila with this breach of the hiring-hall provisions, and as a result thereof, Avila discharged Johnson. ' As noted above, the Trial Examiner had doubts as to the credi- bility issue and therefore found that the evidence did not warrant a finding that Johnson's discharge was motivated by unlawful reasons. He was unwilling to credit the testimony of Johnson over that given by Hawksworth. Further, he found that while Avila's testimony, which he credits, "tends to support Johnson's that Hawksworth.made his lack of Union affiliation the basis of his discharge ' demand, it is not necessarily inconsistent with Hawksworth's own'testimony in the matter." We disagree. Avila's version of the episode is clear when viewed in the light of his entire testimony. Avila stated that, when Johnson came to him for work, he told Johnson that the job was subject to a union contract but that he did not ask Johnson for a referral slip. He further testified that Johnson told him he was a member of the Union but that he was a couple of months behind in his dues. Accordingly, Avila hired Johnson, figuring "he could work a couple of days and go and get squared up with the union." Further, whereas Hawksworth does not specifically deny having dis- cussed Johnson's nonunion status with Avila, Avila testified as follows : Q. And what did-what was the conversation, ' please, be- tween Mr. Hawksworth and you? A. Mr. Hawksworth told me that Mr. Johnson couldn't work on that job. Q. Did he tell you why? A. Yes, he did. He told me he wasn't squared up with the union, he wasn't union. Q. He wasn't what? A. He wasn't in' the union. Q. And did Mr. Hawksworth tell you he didn't have a refer- ral slip from the union? A. No, he just told me he wasn't union. I don't remember him mentioning referral slip. DISTRICT COUNCIL OF PAINTERS NO. 52, AFL-CIO, ETC. 1097 On discharging Johnson, Avila, according to his own testimony, told Johnson that if he had been telling the truth about being "in good with the union" when he was hired, it might have been "fixed up so he could work." In view of the foregoing, we are persuaded that the Respondent demanded and obtained Johnson's discharge- because he was not a member of the Union, thereby - manifesting an unlawful discrimi- natory motive .3 As it is clear that Johnson's discharge was predi- cated upon discriminatory reasons, it is no defense that the Respond- ent might have been entitled to require Johnson's discharge pursuant, to the hiring-hall- provisions of the bargaining agreement here involved.4 Accordingly, we find that on February 25, 1964, the Respondent caused Belvoir to discharge Johnson in violation of Section 8(a) (3) of the Act and thereby violated Section 8(b) (2) and (1) (A) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent -set forth above, occurring in con- nection, with the business operations of Maynard C. Belvoir described in section I of the Trial Examiner's Decision, 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 of commerce. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, as set forth above, we shall order the Respondent to cease and desist therefrom and take. certain affirmative action designed to effectuate the policies of the Act. Among other things, we shall require the Respondent to notify Maynard C. Belvoir and Cecil Carl Johnson, in writing, that it has no objection to the latter's employment without regard to his mem- bership or nonmembership in the Respondent labor organization. We shall also require that the-Respondent make Johnson whole for any loss of pay, suffered by reason of the discrimination practiced against him. The Respondent's liability therefor shall terminate 5 days after notifying Belvoir and Johnson,, as set forth above, that it has no objection to Johnson's employment. Loss' of pay, as aforesaid, shall be computed in accordance with the formula in F. W. 'Wool- 3 Local Union No. 369 of the International Brotherhood of Electrical Workers et al. (Bentley Electric Company ), 143 NLRB 1297. ' N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883, 885 (C.A. 1). 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worth Company, 90 NLRB 289, and shall bear interest at the rate of 6 percent per annum, as set forth in Isis PLicmbing & Heating Co., 138 NLRB 716. ADDITIONAL CONCLUSIONS OF LAW 3. William B. Hawksworth is,, and at all material times has been, Respondent's agent within the meaning of Section 8(b) of the Act. *4. By causing and attempting to cause Maynard C. Belvoir, an employer, to discriminate against Cecil Carl Johnson in violation of Section 8(a) (3) of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) and (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. - ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, District Council of Painters No. 52, AFL-CIO, Brotherhood of Painters, Decorators and Paperhangers of America,, its officers, agents, and representatives, shall: 1. Cease and desist'from: (a) Causing or attempting to cause Maynard C. Belvoir to dis- criminate against Cecil Carl Johnson, in violation of Section 8(a) (3) of the Act. (b) In any like or related manner restraining or coercing em- ployees in the' exercise of the 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 author- ized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2: Take the following affirmative action which the Board finds will effectuate the policies of the Act : - (a) Notify Maynard C. Belvoir and Cecil Carl Johnson, in writ- ing, that the Respondent has no objection to the employment of Cecil Carl Johnson without regard to his membership or nonmem- bership in the Respondent Union. Also notify Cecil Carl Johnson if he is presently serving in the Armed Forces of the United States that it has no objection to his full reinstatement, without regard to his membership or nonmembership in the Respondent Union, upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amendedi after discharge from the Armed Forces. 5 The Trial Examiner's conclusion of law No 3 is hereby deleted. DISTRICT COUNCIL OF PAINTERS NO. 52, AFL-CIO, ETC. 1099 (b) Make Cecil Carl Johnson whole' for any loss of pay suffered by reason of the discrimination practiced against him in the manner set forth in the section of this Decision entitled, "The Remedy." (c) Post at its offices, meeting halls, and hiring halls, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for Region 21, shall, after being duly signed by an authorized representative of the Respond- ent, be posted by the said Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and other employees using the Respondent's hiring hall are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Additional copies of the attached notice marked "Appendix" shall be signed by an authorized representative of the Respondent, and forthwith returned to the aforesaid Regional Director for post- ing by Maynard C. Belvoir, the said Employer being willing, at his business offices and construction projects, where notices to his em- ployees are customarily posted. (e) Notify the aforesaid Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 0In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL MEMBERS OF DISTRICT COUNCIL OF PAINTERS No. 52, AFL-CIO, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPER- HANGERS OF AMERICA; AND TO ALL EMPLOYEES OF MAYNARD C. BELVOIR, AND ALL APPLICANTS FOR EMPLOYMENT Pursuant to a Decision and Order of the National Labor Rela- tions 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 Maynard C. Belvoir to discriminate against Cecil Carl Johnson, in violation of Sec- tion 8(a) (3) of the Act. WE WILL NOT, in any like or related manner,'restrain or coerce employees in the exercise of the 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 authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL notify Maynard C.,Belvoir and Cecil Carl Johnson, in writing, that we have no objection to the employment of Cecil Carl Johnson without regard to his membership or nonmember- ship in the Respondent Union. WE WILL make Cecil Carl Johnson whole for any loss of pay suffered by reason of the discrimination, practiced against him. DISTRICT COUNCIL OF PAINTERS No. 52, AFL-CIO, BROTHERHOOD OF PAINTERS , DECORATORS AND PA- PERHANGERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) NoTE.-We will notify Cecil Carl Johnson, if he is presently serv- ing in the Armed Forces of the United States, that we have no objec- tion to his full reinstatement, without regard to his membership or nonmembership in the Respondent Union, upon application in ac- cordance with the Selective Service Act and the,Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must be posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or, covered by any other material. Employees may communicate directly with the Board's Regional Office, Eastern Columbia Building, 849 South Broadway, Los An- geles, California, Telephone No. 688-5204, if they have any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding with all parties represented was heard before Trial Examiner William E. Spencer in Santa Barbara , California, on June 16, 1964, upon a complaint of the General Counsel of the National Labor Relations Board ; the latter herein called the Board, dated April 29, 1964, and the duly filed answer of District Council of Painters No. 52, AFL-CIO, Brotherhood of Painters, Decorators and Paperhangers of America, herein called the Respondent. The complaint was based upon a charge filed with the Board on March 11 , 1964, by Cecil Carl Johnson, an individual, and alleged that Respondent , in violation of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, herein called the Act, caused Maynard C. Belvoir, herein called Belvoir, an individual employer, to discharge Johnson because he was not a member of the Respondent Union. Upon the entire record, my observation of the witnesses, and consideration of the briefs filed with me by the General Counsel and the Respondent, respectively, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS Belvoir, engaged in the business of painting contractor in the construction industry in the State of California, at all times material herein has been a member of Painting and Decorating Contractors of America , herein called P :D.C.A., Santa Barbara Chapter, for purposes of collective bargaining. P.D.C.A . is a trade association with various chapters which admit'to membership painting contractors and which exists in part for purposes of negotiating , executing, DISTRICT COUNCIL OF PAINTERS NO. 52, AFL-CIO, ETC. 1101 and administering collective-bargaining agreements' for its employer members. Its chapters of Santa Barbara, Ventura, and Santa Maria-San Luis Obispo have been at all material times herein joint signatories to a multiassociation collective-bargaining agreement with Respondent on behalf of their employer members. Since 1958 there have been three separate agreements between the Respondent and the multiemployer P.D.C.A. and its respective chapters, which agreements were signed by P.D.C.A. Since 1958 individual counterparts of the agreements were signed by each of the member affiliates of the various chapters. Klaas Brothers, Inc., herein called Klaas, a member of the Ventura chapter, during the year 1963 performed contracts directly for customers located outside the State of California. One such contract pertained to a job known as Flaming Gorge powerplant, located near Vernal, Utah. Klaas received $22,638.75 for services performed for the prime contractor on the job. During the same year, Klaas performed services for North American Aviation, Inc., located in California, in the amount of $41,295 in value. North American Aviation, Inc., a manufacturer of aircraft and missiles, annually ships and sells products valued in excess of $50,000 directly to customers located outside Cali- fornia. The combined direct and indirect outflow of Klaas therefore exceeded $50,000 during the year 1963. The Board has indicated that where collective bargaining is conducted on a multiemployer multichapter basis, the chapters are to be treated as a single enterprise for determining the Board's exercise of its jurisdiction. Painting and Decorating Contractors Association of Orange County, Inc., et al., 147 NLRB 4; 147 NLRB 1. See also Siemons Mailing Service, 122 NLRB 81, 84; Tri-Associated Dry- wall Contractors, Inc., et al., 131 NLRB 1077, 1078. II. THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of the Act. M. THE UNFAIR LABOR PRACTICES 'Cecil Carl Johnson was employed by Foreman Galo Avila to work on the Com- pany's Bel-Air construction project in Santa Barbara on February 24, 1964. On the second day of his employ on this project, William B. Hawksworth, Respondent's busi- ness agent, introduced himself to Johnson, according to Johnson's testimony asked to see the latter's union card, and when Johnson replied that he was not then a union member though he formerly had been, told him that he could not work on the Bel-Air job. Hawksworth next told Foreman Avila that Johnson was not a union member and would have to go, whereupon Johnson's employment was terminated. Johnson testified that he asked Hawksworth to leave him on the job, that he needed the money, but Hawksworth refused, saying they had members in good standing that he would have to put on the job. Hawksworth testified that: He made frequent visits to construction jobs under union contracts in his capacity as business agent, and that it was in this capacity that he visited the Bell-Air project on February 25; the Respondent had a hiring-hall clause in its contract covering this project, and pursuant thereto maintained an open and nondiscriminatory regulation list; on seeing Johnson he asked the latter if he had a referral slip to report on that job and that Johnson instead of replying directly, began talking about conditions that existed in Germany and elsewhere, but finally admitted that he was not on the Respondent's registration list; on learning this he, Hawksworth, saw Foreman Galo, explained the hiring-hall clause to Galo, and thereupon Galo discharged Johnson. Hawksworth testified that he advised Johnson to put his name on Respondent's registration list in order to get referrals through its hiring hall. At no time did Johnson seek to put his name on the list. Hawksworth further testified that there were some 35 men on the list at the time he requested Johnson's dismissal from the Bel-Air job. Avila's testimony corroborates Johnson to some extent, but not altogether. He testified that Hawksworth told him Johnson could not work on the job because "he wasn't squared up with the union, he wasn't union." He did not recall that Hawks- worth mentioned referrals. He testified that following his conversation with Hawks- worth and, apparently in protest to his discharge, Johnson said, "What kind of a country was this where a man couldn't go to work?" and mentioned "the fact that he would rather be in some foreign country or Germany or something, working over there." Avila testified, contrary to Johnson, that when he hired the latter he told him that it was a union job; that Johnson told him he was in the Union but a couple of months behind in his dues, and he assumed that if that was true, "he could work a couple of days and go and get squared up with the union ...... Avila was himself a member of the Union. The legality of Respondent's hiring hall and its application to the Bel-Air project is not in issue. Admittedly, Johnson had not registered, or sought to register, on the 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's referral list before seeking and obtaining employment on the Bel-Air job, and Hawksworth's testimony that at the time of Johnson's hiring by Avila there were some 35 men on Respondent's registration list is uncontested. Respondent therefore could have lawfully required Johnson's removal from the job and subjected him to normal hiring-hall procedures . It could not lawfully make union affiliation a condi- tion precedent to registration and referral . Since Johnson never at any time, before or after his discharge from the Bel-Air project , sought to have his name placed on the Union's registration list, the matter of whether he would have been refused because of his nonunion affiliation was not put to the test. There is no evidence that registration has been refused anyone because of union or nonunion affiliation. Since the Union had lawful grounds for requiring Johnson 's removal from the Bel -Air job and a remedy that required his reinstatement to that job in violation of the lawful hiring-hall clause of its contract would not be appropriate , even if Hawksworth mis- stated the grounds for Johnson's removal I can see little to be gained by a remedial order appropriate to this case . In addition, I am by no means convinced that Johnson should be credited over Hawksworth. Normally, the wording of a charge initiating an unfair labor practice proceeding is not considered germane to an issue of credibility, but here I think we have an excep- tion to what is generally a salutory practice . Johnson charged that he was discrim- inated against by not being allowed the 7 days on the job, according to the Union's contract, before being forced "to join their corrupt and communist controlled union." On cross-examination Johnson apologized for the use of the quoted language in his charge, admitted that he had no support for such an accusation, and admitted that the language was not his but was supplied by one Ted Engle. "Well , I would like to make an apology right now for that ," Johnson testified, "I was mad because they took me off the job and I would formally like to apologize ." It appears to me that, despite his apology, very little credence can be granted to a person who would, even in a moment of anger, adopt and incorporate in a formal charge such vituperative lan- guage which later, under oath, he is forced to admit is without justification , and while Avila's testimony tends to support Johnson 's that Hawskworth made his lack of union affiliation the basis of his discharge demand , it is not necessarily inconsistent with Hawksworth's own testimony in the matter. Not being "squared up with the union," the words Avila attributed to Hawksworth , could be construed as meaning no more than that Johnson had not registered on the Union 's out-of-work list and therefore was ineligible for referral to the Bel-Air project, a union job. I can only conclude on the credibility issue that while the matter is not free of doubt , there is no preponder- ance in support of the General Counsel 's position. I shall recommend dismissal of the complaint. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. P.D.C.A. and its employer members , including Klaas and Belvoir , constitute a single employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. - -t 3. The Complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is rec- ommended that the complaint be dismissed in its entirety. Yale Manufacturing Company, Inc. and United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Case No. 1-CA- 4475. January 18, 1965 DECISION AND ORDER On October 5, 1964, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceeding, finding that the Respond- 150 NLRB No. 100.