Brotherhood of Painters, Local 130

BROTHERHOOD OF PAINTERS, LOCAL 130 Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO Local No. 130 (Perfection Painting and Dry Wall, Inc.) andRobert E. Turner. Case 23-CB-761 November 19, 1970 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 3, 1968, the National Labor Relations Board issued a Decision and Order, finding, inter alia, that Respondent Union sought to deny employment to and attempted to cause the discharge of Robert E. Turner in violation of Section 8(b)(1XA) and 8(bX2) of the National Labor Relations Act, as amended; and that thereby, Respondent Union caused the employment relationship between Perfection Painting and Dry Wall, Inc., to be prematurely terminated. The Board's Order required that Respondent Union make Turner whole for any loss of pay he may have suffered by reason of its discriminatory conduct.' On April 7, 1970, the Regional Director for Region 23 issued and served on the parties a backpay specification and notice of hearing. On May 15, 1970, Respondent Union filed an answer. On May 19, 1970, Respondent Union filed a motion to reopen the record and a motion for summary judgment and reconsideration. After these motions had been denied by the Board, and pursuant to notice, a hearing was held before Trial Examiner Gordon J. Myatt on May 26, 1970, for the purpose of determining Respondent Union's backpay obligation to Turner. On August 5, 1970, the Trial Examiner issued the attached Supplemental Decision in which he found the discriminatee herein to be entitled to backpay in the amount specified. Thereafter, Respondent Union filed exceptions to the Trial Examiner's Supplemental Decision.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegat- ed its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the Supplemental Hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The board has considered the entire record in this case, including the Supple- mental Decision and the exceptions, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER 663 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent Union, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, Local No. 130, its officers, agents, and representatives, shall pay to Robert E. Turner, the amount set forth in the attached Trial Examiner's Supplemental Decision. 1 170 NLRB No. 123. 2 On August 25, 1970, in a motion to reopen record and take testimony and/or depositions with the Board, Respondent Union requested the Board to "take the Testimony and/or Deposition of Mr . and Mrs. Paul Robertson and possibly one or two other witnesses appearing in the original hearing." It is alleged in support of the motion that "newly discovered evidence ... will prove intrinsic and extrinsic misrepresenta- tion and/or misconduct of the adverse party," and that Respondent Union "will be denied due process without the opportunity to have said evidence in the record and duly considered as to whether an unfair labor practice was committed." After due consideration, we find nothing in this motion which would require that the unfair labor practice hearing be reopened. Accordingly, said motion is hereby denied. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE GORDON J. MYATT, Trial Examiner : On April 3,1968, the National Labor Relations Board issued its Decision and Order finding that Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, Local No. 130 (hereinafter called the Respondent Union), violated Section 8(b)(1)(A) and (2) of the Act by prematurely terminating the employment relationship between Perfection Painting and Dry Wall, Inc. (hereinafter called Perfection) and Robert E. Turner.' Among other things, the Board's Order required that the Respondent Union make Turner whole for any loss of pay he may have suffered by reason of the Union's discriminatory conduct . On April 7, 1970, the Regional Director for Region 23 issued, in the name of the Board, a backpay specification and notice of hearing setting forth the specific amount of backpay which the General Counsel alleged was due to Turner. The Respondent filed an answer and also two motions with the Board. One was a motion to reopen the record in the underlying case and the other was a motion for Summary Judgment and Reconsideration of the Board's Decision and Order. The Board subsequently denied both of these motions as lacking merit. Pursuant to notice, a supplemental trial was held before me in Houston, Texas, on May 26, 1970. All parties were represented and participated fully at the trial . The claimant, Turner, was present and testified and was cross-examined by the Respondent Union. Early in the proceedings, the General Counsel moved to strike certain portions of the Respondent Union's answer as not complying with the 1 Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, Local No. 130, 170 NLRB No. 123. 186 NLRB No. 98 663A DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board's Rules and Regulations governing backpay proceedings.2 In response to the allegation that the backpay period commenced March 19, 1967, when Turner was discharged by Perfection, the Respondent Union denied that Turner was discharged on that date. In response to the allegation that but for the unlawful discharge Turner would have worked on and completed approximately 13 addition- al painting jobs and the work would have lasted until October 23, 1968, the Respondent Union denied the discriminatorily discharge. The answer also affirmatively alleged that Perfection was a party to a collective- bargaining agreement which contained a grievance and arbitration procedure. Respondent Union further alleged that since Perfection and Turner failed to follow the grievance procedure, no unfair labor practice had been committed and no backpay was due and owing to Turner. In response to the allegation that under the General Counsel's formula Turner was entitled to a payment aggregating $12,868, with interest, the Respondent Union denied any liability for backpay since Turner did not follow the grievance procedure and, according to the Respondent Union, was not entitled to protection under the Act. Viewing the Respondent Union's answers in the context of Section 102.54(b) I granted the General Counsel's motion to strike these portions of the Respondent Union's answer.3 The General Counsel then moved for Summary Judgment regarding the allegations in the specification concerned with the formula used and the computation of Turner's gross backpay.4 Respondent Union's counsel stated on the record that the Respondent Union did not contest the computation of the gross backpay figure, but took the position that Turner was not entitled to any backpay whatsoever because of the failure to follow the grievance procedure which the Respondent Union claimed governed the parties' conduct. The Respondent Union was offered the opportunity to plead in the alternative, thereby preserving its claim that no liability had been incurred but allowing it to contest the amount of gross backpay alleged. The Respondent Union declined to adopt this suggestion and the General Counsel's motion for Judgment on the Pleadings regarding the claimant's gross backpay was granted. Having granted the General Counsel's various 2 National Labor Relations Board Rules and Regulations, Sec. 102.52-102.54. Sec. 102.54(b) in part provides: . the respondent shall specifically admit, deny, or explain each and every allegation of the specification, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. Denials shall fairly meet the substance of the allegations of the specification denied . When a respondent intends to deny only a part of an allegation, the respondent shall specify so much of it as is true and shall deny only the remainder. As to all matters within the knowledge of the respondent, including but not limited to the various factors entering into the computation of gross backpay, a general denial shall not suffice. As to such matters, if the respondent disputes either the accuracy of the figures in the specification or the premises on which they are based, he shall specifically state the basis for his disagreement, setting forth in detail his position as to the applicable premises and furnishing the appropriate supporting figures. Subsec. (c) of this same provision in part provides: ... if the respondent files an answer to the specification but fails to deny any allegation of the specification in the manner required by subsection (b) of this section, and the failure so to deny is not adequately explained, such allegation shall be deemed to be admitted motions the only triable issue before me was the amount of the claimant's interim earnings for each quarter and hence the resultant net backpay. Upon the entire record of the supplemental proceeding5 and upon my observation of the witnesses who testified herein, I make the following: FINDINGS OF FACT In view of the rulings on his motions, described above, the General Counsel called Turner as his only witness. Turner's testimony related to his efforts to find interim employment and the sums of money he earned during the interim period. Turner testified that after his employment ceased with Perfection in Houston, he registered with the Houston office of the Texas Employment Commission. It is not clear from the record whether Turner received a referral to a job or whether he got a job on his own, but shortly thereafter he performed work for a party named Schultz and received $60. After the Schultz job Turner returned to the Employment Commission in an effort to find additional work. Turner was unable to find work and sometime during the first week in April 1967, he moved his family to Dallas, Texas. In Dallas, Turner again registered with the Texas Employment Commission and he also contacted the business agent for the Painter's Union in the area. Turner testified that he was told by the business agent that he could not be referred to jobs by the Local Union until he had straightened out the matter in Houston. Turner then started looking for jobs on his own and secured several small jobs in the Dallas area.6 Turner testified that his interim earnings for the second quarter of 1967 consisted of those listed in the backpay specification for that period. He stated that he received $125 for painting his landlord's house; $160 for work performed for an individual named Hancock; $50 for work performed for an individual named Prichard; and $16 for work performed for an individual named Holcomb. Turner testified that none of these employers withheld federal or state taxes from his wages. He also testified that he made $625 during the second quarter of 1967 while employed by an individual named to be true, and may be so found by the Board without the taking of evidence supporting such allegation, and the respondent shall be precluded from introducing any evidence controverting said allegation. 3 Par. 3, 5, and 9 of the Respondent Union's answer. 4 Par; 4, 5, 6, 7, and 8 of the backpay specification. 5 Subsequent to the hearing, the General Counsel forwarded to the Trial Examiner copies of Internal Revenue Information returns for the calendar year 1967 for Turner from two separate employers ; Preston Hale and Hales & Reeves Co., Inc. In his covering letter, the General Counsel requested that these documents be made a part of the official file by stipulation and copies were forwarded to the Respondent Union's counsel. Since these items bear on the interim earnings and the resultant net backpay, and since no objection has been received from the Respondent Union's counsel, it is hereby ordered that the documents be, and they hereby are, made a part of the official record in this case. 6 During this time Turner received a check for $71 from Perfection for work which he had performed prior to his leaving Houston. The backpay specification indicates that this money was received during the second quarter of 1967, but the General Counsel orally amended the specification to show this sum as being received during the first quarter of 1967, thereby reducing the net backpay for that period. BROTHERHOOD OF PAINTERS, LOCAL 130 663B Preston Hale. According to Turner, Hale made deductions from his wages for federal and state taxes.? During the third quarter of 1967, Turner was employed by Hales & Reeves Co., Inc., and he earned $1320. Turner finally found steady employment during the fourth quarter of 1967, with a firm called Southern Decorators. For the fourth quarter of 1967, Turner earned $1,400.27 while working with this employer. During the first quarter of 1968, Turner's earnings were $1,343.25. For the second quarter of 1968, his earnings were $1,442.26. Turner earned $1,132.09 during the third quarter of 1968, with Southern Decorators. The backpay period, according to the General Counsel only includes 3 1/2 weeks of the fourth quarter of 1968. Based on reported earnings of $1,596.30 to Social Security Administration, the General Counsel calculates that Turner's interim earnings should be $430. My arithmetic computation indicates that the exact amount is $429.77. The Respondent Union, contends in its brief that the General Counsel has not established that Turner was available for employment during the entire backpay period. In support of this contention, the Respondent Union claims (1) that Turner's testimony is not worthy of belief; and (2) even on the basis of his testimony, Turner did not diligently seek interim employment. Regarding the first contention, I reject the Respondent Union's claim that Turner was not a credible witness. He testified concerning his efforts to find employment at his trade in Houston and in Dallas. In the process of giving this testimony it is apparent that Turner's recollection of the precise periods that he worked on interim jobs was sketchy and getting this information from him was a tortuous process. It is my observation that Turner was something less than an ideal witness . I am persuaded that his deficiency as a witness was not due to an intent to conceal or to deceive, but because under the most ideal circum- stances his memory was poor, and because the passage of time had obscured the sequence of events in his mind. Thus, it is easy to understand how a skillful cross-examiner, such as Respondent Union's counsel, could get Turner to confuse the times when he worked for the various employers and cause him to agree to different time sequences for these jobs. It is also readily understandable that Turner would have testified that two employers (Preston H. Hale and Hales & Reeves Co., Inc.), deducted withholding taxes from his wages, when in fact he had only received information copies of notifications to Internal Revenue indicating the amounts he earned as a subcontrac- tor for these employers .8 In spite of these defects, Turner, in my judgment, testified in a convincing manner that he had worked the jobs listed as interim employment in the backpay specification during the periods indicated therein. In these circumstances, I am persuaded that Turner did 7 The General Counsel examined Turner from a listing of his earnings and employment record supplied by the Social Security Administration for the years 1967 and 1968. This document did not show any record of any earnings reported by employer Preston Hale for Turner . The document was admitted into evidence as the TX Exh. 1. G .C. Exh. 3, received subsequent to the trial herein, indicated that Preston Hale and another employer, Hales & Reeves Co., Inc., reported Turner's wages as subcontract earnings. Neither of these employers made deductions for Federal or state taxes. Since the latter exhibit explains why there was no record of employment or truthfully recount all of his interim employment and the wages he earned. Any inconsistencies brought out on cross- examination were due to the skill of the examiner in dealing with a witness whose memory was slow and who could not recall with precision the exact dates that he had worked on the interim jobs. Moreover, as I have found that Turner did account for all of his interim employment, it does not appreciably effect the overall net backpay due him because a shifting of the 'interim earnings would merely reduce the net backpay for one quarter but increase it for a subsequent quarter. Furthermore, the Respondent Union offered nothing by way of probative evidence to establish that Turner did not earn the interim wages set forth in the backpay specification. In the absence of such evidence, I cannot accept the Respondent Union's contention that Turner's testimony must be rejected because he was not the "perfect witness." The Respondent Union's other contention regarding Turner was that he did not prove that he was available for employment during the backpay period. This position ignores the burden which the law imposes upon the Respondent Union to prove a willful loss of earnings by a claimant. As stated in Mastro Plastics: [W ]pile the general burden of proof is upon the General Counsel to establish the damage which has resulted from Respondent's established discriminatory dis- charge, i.e., the gross backpay over the backpay period, the burden of proof is upon the Respondent as to diminution of damages, whether from the willful loss of earnings by the failure to either look for or keep a substantially equivalent job... 9 The Respondent Union did not present any evidence which could have conceivably established that Turner failed to make reasonable efforts to seek work during the backpay period. Indeed, the Respondent Union merely points out that Turner only paid two visits to the Texas Employment Commission in Dallas, but ignores the fact that the claimant sort and did in fact work at odd jobs in his trade until he secured a steady position as a painter with Southern Decorators. There is no requirement that a claimant who has made reasonable efforts to seek out new employment repeat specific job applications which he knows are foredoomed. Cornwell Company, Inc., 171 NLRB No. 43. Thus, I find that the Respondent Union has failed to demonstrate by any probative evidence that Turner did not make reasonable efforts to secure a gainful interim employment or that he incurred a willful loss of earnings during the backpay period. In the absence of such evidence, it is clear that the General Counsel has established a prima facie case regarding Turner's reasonable efforts to find interim employment.10 Heinrich Motors, Inc., 166 NLRB 783; Mastro Plastics Corp., supra. One other matter deserves attention here. Respondent earnings listed by Social Security Administration for Turner from these two employers, it is clear that Turner's testimony in this regard was in error. 8 G.C. Exh. 3, submitted after the conclusion of the trial on the backpay issue. 9 Mastro Plastics Corp., 136 NLRB 1342, .1346, enfd. 354 F.2d 170 (C.A. 2, 1965), cert. denied 384 U.S. 972 (1966). 10 It should also be noted at this point, that Turner was precluded from securing employment from the Dallas Local of the Painter's Union: until he had straightened out the matter with the Respondent Union in Houston. 6630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union submitted an affidavit from one Paul Robertson, superintendent on the Perfection job in Houston at the time that Turner's employment was terminated. The affidavit purports to state that Turner was not under any employ- ment contract with Perfection and that Perfection was not scheduled to paint 16 Shop Rite Food stores as found by the Board in the underlying unfair labor practice case. Aside from the fact that the Respondent Union failed to affirmatively plead this as a defense in its answer to the backpay specification, it should be noted that the Respondent Union did not present Robertson as a witness, nor was any explanation ever offered as to why Robertson was not available to testify concerning the matters brought out by the affidavit. In these circumstances, I consider the affidavit to have no probative value in these proceedings. CONCLUDING FINDINGS On the basis of the above, I find that Turner is entitled to be made whole under the Board's Order by payment to him of the following amounts plus interest accrued to the date of payment minus the tax withholding, if any, required by Federal and State laws: 11 First Quarter 1967 (2-week period): Gross Backpay Less Interim Earnings: Schultz Perfection Net Backpay Second Quarter 1967: Cross Backpay Less Interim Earnings: Landlord Hancock Prichard Holcomb Preston Hale Net Backpay Third Quarter 1967 Gross Backpay Less Interim Earnings: Hales & Reeves Co., Inc. Net Backpay Fourth Quarter 1967: Gross Backpay Less Interim Earnings: Southern Decorators Net Backpay First Quarter 1968: Gross Backpay Less Interim Earnings Net Backpay $ 504.00 $ 60.00 71.00 131.00 373.00 3,276.00 125.00 160.00 50.00 16.00 625.00 976.00 2,300.00 3,276.00 1.320.00 1,956.00 3,276.00 1,400.27 1,875.73 3,276.00 1.343.25 1,932.75 11 The net backpay computation set forth herein is essentially that Perfection during the first quarter of 1967 and contains minor arithmetic contained in the General Counsel's backpay specification except that it adjustments in the calculation. reflects an amendment made during the proceedings to show earnings from BROTHERHOOD OF PAINTERS , LOCAL 130 6636 Second Quarter 1968: Gross Backpay 3,276.00 Leas Interim Earnings 1,442.26 Net Backpay 1,833.74 Third Quarter 1968: Gross Backpay 3,276.00 Less Interim Earnings 1.132 . 09 2,143.91 Net Backpay 2,143.91 Fourth Quarter 1968 period) : Gross Backpay (3 1/2 week 882.00 Less Interim Earnings 429.77 Net Backpay 452.23 Total Net Backpay: $12,867.36 CONCLUSION OF LAW Robert E. Turner is entitled to backpay in the amount of $12,867 .36, plus appropriate interest but less taxes, if any, withheld in accordance with Federal and state laws. RECOMMENDED ORDER of the foregoing findings of fact and conclusion of law, it is ordered that the Respondent Union, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, Local No. 130, its officers, agents, representa- tives, shall pay to claimant, Robert E . Turner, as net backpay the sum of $12 ,867.36 with interest at 6 percent per annum and less any withholding taxes required by Federal and state laws. Pursuant to Section 10(c) of the Act, and upon the basis