Odal Painting Co., Inc.

ODAI PAINTING CO. Odal Painting Company, Inc. and Lester L. Landon. Case 3-CA-4082 January 25, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On October 9, 1970, Trial Examiner William W. Kapell issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other alleged unfair labor practice and recom- mended dismissal of that allegation of the complaint. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial 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 recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Odai Painting Company, Inc., Syracuse, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Or- der, as so modified: 1. Insert the following as paragraph 2(b) and relet- ter the subsequent paragraphs accordingly: "(b) Notify immediately the above-named individ- ual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and Uni- versal Military Training and Service Act." 63 2. Substitute in footnote 12 of the Trail Examiner's Decision, "20" for "10" days. 3. Substitute the attached notice for the Trial Examiner's notice. 1 Respondent contends that it was denied due process of law because its participation in the examination and cross-examination of the witnesses was unduly restricted and that as a result thereof it became impossible for it to develop a record Upon careful examination of the record, we are of the opinion that Respondent's contention is without merit. The record discloses no attempt on the part of the Trial Examiner to restrict Respondent 's cross- examination of witnesses, but only an admonition to Respondent's counsel to allow the witness to complete an answer to Respondent 's counsel's own question without interruption. We see no basis for concluding that the Trial Examiner's conduct, which we find eminently correct, can be said to have pr judiced Respondent in the presentation of its case These findings and conclusions are based , in part, upon the credibility determinations of the Trial Examiner, to which the Respondent excepts. On the basis of our own careful review of the record, we conclude that the Trial Examiner's credibility findings are not contrary to the clear preponderance of all the relevant evidence . Accordingly, we find no basis for disturbing those findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees with dis- charge for engaging in union activities within the meaning of Section 8(a)(1) of the Act. WE WILL NOT discharge or discriminate against our employees because they have engaged in un- ion activities of Painters District Council 65, Lo- cal Union 31, AFL-CIO, or any other labor or anization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL offer Lester L. Landon reinstatement to his former job or, if that job no longer exists, to an equivalent job and pay him for any loss of earnings he may have suffered as a result of his discharge. ODAI PAINTING COMPANY, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- vidual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 188 NLRB No. 7 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced II THE LABOR ORGANIZATION INVOLVED by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Fourth Floor, The 120 Building, 120 Delaware Ave., Buffalo, New York 14202, Telephone 716-842-3100. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM W . KAPELL, Trial Examiner : This matte;, a ppro- ceeding under Section 10(b) of the National Labor Rela- tions Act, as amended, herein called the Act, was heard in Syracuse, New York, on August 12, 1970,' with all parties participatin g pursuant to due notice upon a complaint2 is- sued by the General Counsel on July 1. The complaint, in substance, alleges that Odai Painting Company, Inc., hereafter referred to as Respondent or Company, engaged in violations of Section 8(a)(1) and (3) of the Act by threat- ening its employees with discharge if they joined or assisted Painters District Council 65 . Local Union 31, AFL-CIO, hereafter referred to as the Union, or engaged in concerted activities for the purpose of collective bargaining or mutual aid or protection, and bydiscriminatorily discharging Lester L. Landon and refusing to reinstate him because he assisted the Union or engaged in concerted activities for the purpose of collective bargaining or mutual aid or protection. Re- spondent in its duly filed answer admitted the discharge of Landon but denied having engaged in any unfair labor practices in violation of the Act. All parties were represented and were afforded an oppor- tunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs were received from the General Counsel and Respondent and have been carefully considered. On the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE Respondent, a corporation duly organized under, and existing by virtue of, the laws of the State of New York, at all times material herein, has maintained its principal office and place of business in Syracuse , New York, where it has been engaged in the painting business. During the past year in the course and conduct of its business operations, Re- spondent furnished painting services valued in excess of $50,000 to the Carrier Corporation, which enterprise annu- ally manufactures and ships goods valued in excess of $50, 000 0 directly out of the State of New York and an- nually purchases goods valued in excess of $50,000 from outside the State of New York, and ships said goods directly to its New York State location. At the hearing Respondent admitted, and I find, that at all times material herein it has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. i All dates hereafter refer to the year 1970 unless otherwise noted 2 Based upon a charge filed on April 7 by Lester L. Landon. Unrefuted testimony was adduced to establish that the Union is an organization which admits employees to mem- bership and represents them in negotiations with their em- ployers with respect to wages and conditions of employment. I, therefore, find that at all times material herein the Union has been a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED VIOLATIONS A. Landon's Discharge Lester L. Landon, a journeymen painter and a member of the Union, was hired by Respondent on February 3 to do painting on one of its jobs in Syracuse , New York, known as the Brighton Towers, and was told at that time the job would last between 2 and 3 months.3 On the night of March 2, he attended a union meeting where he publicly took issue with Business Manager Sal Buccina, charging he was putting nonunion apprentices on the Brighton Towers job while their own union apprentices were out of work. He also questioned Buccina as to why two employees and Re- T on aril were fined for spraying the catwalk on the Onon- goo Hotel job, and why lie later permitted Respondent to spray on that job. Buccina replied that he permitted Re- spondentto spray only by the doors but that it sprayed the whole walk. On the following day, while Landon was painting door casings on the Brighton Towers -lob, he was laid off at or about 3:30 in the afternoon by Foreman Alex Pisciarino,4 also known as "Sandy." According to Landon, Sandy told him he had to let him go . When Landon asked why, Sandy replied, "I have to say unsatisfactory work." Landon thereupon, said "What are you talking about?" to which Sandy responded, "Well, I have to say something for my own protection. It came straight from the office. I don t know the score. It's as much a surprise to me as it is to you." Sandy also remarked "You guys must have really raised hell at the union hall," and assured Landon he would talk to Mr. Odai (Respondent's president), to see if he could put him back to work, and that if it were up to him he would have kept him on the job.3 Latz also testified that a short time prior to this conversa- tion Sandy told him he had to let Landon go, and, when asked for what reason , said he didn't know. Latz then said he had to write something in the "book" and Sandy told him to write down "unsatisfactory work." On March 5, Landon visited the Brighton Towers job, and in conversation with Sandy asked about being rehired. Sandy replied that he had been unable to see Odai as yet, and that if he did rehire him, he did not want any fighting whatsoever, he just wanted Landon to do his job and to let Buccina do his just Buccina was too strong.? They also discussed the union meeting of March 2, and Sandy reiterat- 3 On prior occasions Landon had also been hired to work on other jobs of Respondent. 4 The pleadings admit that he is an agent of Respondent acting on its behalf and a supervisor within the meaning of Section 2(11) of the Act. s William C. Latz, Sr., the painting steward on the job, testified that he was present during this conversation, and, in substance, corroborated Landon's testimony related above. Sandy testified that all he told Landon was that his work was unsatisfactory . He also denied having any knowledge of Landon's union activity on the night of March 2, or ever having received a telephone call about it. 6 This testimony was neither denied nor referred to in Sandy 's testimony. 7 Apparently referring to the mtraunion differences existing between Lan- don and Buccina. ODAI PAINTING CO. 65 ed that he (Landon) must have raised hell at the union meeting, and mentioned in referring to the spraying incident discussed at the meeting that Odai was afraid Landon would get him into trouble. Landon assured him that it was his intention only to get the fines of both Odai and the union members rescinded. On March 17, Landon telephoned to Odai at the latter's shop and asked when he would be rehired . Odai told him that Sandy did all the hiring and he had nothing to do with it. When confronted Odai replied that if Sandy said that, Landon should go back to see him . The same day Landon visited the Brighton Towers job and asked Sandy whether he had heard from Buccina or Odai. When Sandy replied that he had not, Landon related his telephone conversation with Odai, stressing that his rehiring was completely up to Sandy. Sandy replied "Well if that's the way he feels, maybe I can put you to work Monday," and advised him he would hear from Latz, the steward, or from him. Landon was never called by Sandy or advised by Latz that he was rehired.$ B. The Alleged Threat To Discharge Landon Harold De Carr was employed as a painter in March on the Brighton Towers ob . He testified that on March 3 while on the job Sandy told him he was going to let Landon go because he received a call the previous night that Landon made a "big commotion" at the union hall, and that every time he gets with the steward on the job he puts stuff in his head about the Union and what union men can and cannot do. He also testified that during the latter part of February Sandy told him he was going to let Landon go because he was priming only 5 apartments a day compared to 7 by De Carr. De arr explained that Landon had bad feet which could account for the difference in their respective pro- ductivity. C. Respondent's Contentions Respondent contends that Landon was laid off because he was an incompetent worker and there was no longer any need for his services on the Brighton Towers job. With respect to Landon's unsatisfactory work, Sandy testified that his painting on the walls was sloppy and his work was not as productive as some of the other workers , and that he had told him so on several occasions . He admitted, however, that Landon's work on a prior job for Carrier was satisfacto- ry. Sal ]3uccina, the business manager of the Union, testified that a day or two after Landon's discharge , he visited the Bri ton Towers job where Sandy pointed out paint that ha been spattered all over some kitchen cabinets , and that the finishing work on a couple of doors was inadequate, and stated that this work had been done by Landon. Landon testified that his work had been praised on prior jobs for Respondent, that it had not been criticized on the Brighton Towers 'ob, that he was never warned about being dis- charged because of the quality of his work , and that Sandy had told him on the day of his discharge that his work was always good. With respect to Respondent's contention that Landon was no longer needed on thejob, Sandy testified that he had to cut back on the number of employees as they were getting caught up in their work, and that the job was finished about a month and a half after Landon's discharge when he had 8 Sandy, in substance, corroborated Landon's testimony concerning this conversation, and added that he told Landon they were cutting back on the job because they were getting caught up on the work, and if they were in a rush for more work he would be rehired only four or five employees working.9 Odai testified that he hired about six men after Landon was laid off. D. Conclusions 1. Landon's discharge Evidence supporting the General Counsel's position that Landon was discriminatorily discharged because of his un- ion activities include the following : TJncontradicted testi- mony by De Carr that during the morning of March 3, Sandy told him he was going to let Landon go because he received a telephone call the previous night that Landon had made a big "commotion" at the union hall, and every time he "gets with a steward on the job he puts stuff in his head about the union and what union men can do and what it can't." Uncontradicted testimony by Latz that a short time prior to Landon's discharge, Sandy told him he had to let Landon go but did not know why , and when pressed for a reason he said "unsatisfactory work." Testimony by Lan- don (corroborated by Latz) that when discharged, Sandy told him that he was unaware of the reason , that he had to say "unsatisfactory work," that he was acting on orders "straight from the office," and that "You guys must have really raised hell at the union hall" Sandy did not specifical- ly deny the statements attributed to him by Landon, and claimed that all he told Landon was that his work was unsatisfactory. He also denied having any knowledge of Landon's union activity or ever having received a telephone call about what happened at the union meeting of March 2. Nor did Sandy deny, as asserted by Landon in their conver- sation on March 5, stating that Landon must have raised hell at the union meeting, and that Odai was afraid Landon would get him into trouble, referring to the spraying inci- dent discussed at the union meeting . Based on time foregoing and the demeanor of the witnesses, I credit the evidence tying Landon's discharge to his intraunion activities, which presumably were causing some concern to Respondent. I find further that there is no merit in Respondent's con- tention that Landon was laid off because the near comple- tion of the job no longer required his services . The evidence amply establishes that the work did not slow down until about the middle of April. As for Landon's incompetency, the record reveals some conflicting evidence indicating that his work was not adequate, nor as productive as another employee's. However, there is no showing that it was of a substantial extent, nor are there any specific denials, as claimed by Landon, that he was complimented on the sat- isfactory nature of his work. Furthermore, the timing of the discharge on the day following the union meeting raises a strong suspicion that the inadequacy of his work was assert- ed as a defense to mask the true reason for his discharge. Moreover, even assuming that his work was unsatisfactory to some extent, it was at most only a contributory cause for his discharge. Even assuming further that it was a valid ground for his discharge , "it is well settled that the mere existence of a valid ground for discharge is no defense to an unfair labor charge if such ground was a pretext and not the moving cause.". L. R. B. v. Universal Packaging Corp., 361 F.2d 384, 387 (C. A. 1). See also N. L. R. B. v. Park Edge Sheridan Meats, Inc., 341 F.2d 725, 728 (C. A. 2); and N. L. R. B. v. West Side Carpet Cleaning Co., 329 F.2d 758, 761 (C.A. 6). Nor am I "compelled to accept the employer's statement when there is reasonable cause for believing that the ground put forward by the employer was not the true 9In his affidavit, however, he stated it was around the middle of April when they caught up in their work and began letting employees go, and that at the beginning of April there were 14 or 15 painters on the job. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one, and that the real reason was the employer 's dissatisfac- tion with the employee's union activity.' The Great Atlantic and Pacific Tea Co., Inc. v. N.L.R.B., 354 F.2d 707, 709 (C.A. 5). I, accordingly, conclude that Respondent discrim- inatorily discharged Landon in violation of Section 8(a)(3) and (1) of the Act. 2. The alleged threats to discharge employees because of their union activities The complaint alleges that Sandy threatened to discharge employees during the latter part of February and on March 3 if they engaged in union activities. The only evidence in support thereof was given by De Carr who testified that dung the latter part of February Sandy complained of Landon's poor production as compared with his (De Carr's), and that Landon was always talking to the steward about union rules. At best, this evidence is ambiguous as to any threat to discharge Landon because of his union activi- ties, and whatever was brought out in that respect was in response to leading questions to which I attach little weight. I conclude that the General Counsel failed to establish by the preponderance of the evidence the alleged threat at that time to discharge Landon because of his union activities. As related above, De Can also testified that on March 3, Sandy told him he was letting Landon go because of a telephone call he received the previous night about the big "commo- tion" Landon caused at the union meeting, and because whenever he talks to the steward he puts stuff in his head about what union men can or cannot do. This uncontradict- ed testimony carried the implication that certain union ac- tivity would or could lead to discharge of other employees as well as of Landon, and, accordingly, constituted a viola- tion of Section 8(a)(1) of the Act because it interfered with their lawful intraunion activities. See Lever Brothers Co., 163 NLRB 194, 198. I would reach the same result even where the employer's statement was not an explicit threat, but could reasonably be so construed by the employees. See N.L.R.B. v. Electric Steam Radiator Corp., 321 F.2d 733, 736 (C.A. 6). IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship 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. Upon the foregoing findings of fact and upon the entire record I make the following: CONCLUSIONS OF LAW 1. At all times material herein, Respondent has been en- restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1). 5. Except as found above, Respondent has not engaged in any other unfair labor practices alleged in the complaint. THE REMEDY Having found that Respondent has enga ged in unfair labor practices within the meaning of Section 8(axl) and (3) of the Act, I shall recommend that it cease and desist there- from and take certain affirmative action designed to effec- tuate the policies of the Act. Having found that Respondent has discriminatorily discharged Landon , I shall recommend that it offer him reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other n&hts and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrim- ination against him. Backpay shall be computed on a quar- terly basis and in a manner consistent with the Board policy set forth in F. W. Woolworth Company. 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findin s of fact and conclusions of law and upon the entire record in the case, I recommend the following: RECOMMENDED ORDER to 1. Cease and desist from: (a) Threatening to discharge employees for engaging in intraunion activities. (b) Discouraging activities in Painters District Council 65, Local Union 31, AFL-CIO, or any other labor organiza- tion, by discriminating in regard to the hire and tenure of its employees, or by discriminating in any other manner in regard to any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which it is deemed necessary to effectuate the policies of the Act: (a) Offer Lester L. Landon immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without pre udice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as the result of his discharge in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its offices in Syracuse, New York, copies of the attached notice marked "Appendix."" Copies of said no- gaged in commerce as an employer within the meaning of Section 2(6) and (7) of the Act. 10 In the event no exceptions are filed as provided by Section 102 46 of the 2. At all times material herein, the Union has been a labor Rules and Regulations of the National Labor Relations Board , the findings, organization within the meaning of Section 2(5) of the Act. conclusions, recommendations , and Recommended Order herein shall, as 3. By discharging Landon on March 3 and thereafter provided in Section 102 48 of the Rules and Regulations, be adopted by the refusing to reinstate him in order to discourage certain un- Board and become its findings, conclusions, and order, and all objections ion act1V1t1eS, Respondent discriminated in regard to the thereto 11 In the shall be event that deemedthe waived Board'sfor Order all purposes In is enforced by a Judgment of a hire and tenure of- phis employment in violation of Section United States Court of Appeals, the words in the notice reading "Posted by 8(a)(3) of the Act. Order of the National Labor Relations Board" shall be changed to read 4. By threatening employees with discharge because of "Posted Pursuant to a Judgment of the United States Court of Appeals their intraunion activities, Respondent has interfered with, Enforcing an Order of the National Labor Relations Board" ODAI PAINTING CO. tice, on forms provided by the Regional Director for Region 3, after being duly signed by its representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other mate- rial. (d) Notify the Regional Director for Region 3, in writing, 67 within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.12 I FURTHER RECOMMEND that the complaint be dismissed in- sofar as it alleges that Respondent engaged in any unfair labor practices other than those found herein. 12 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith "