District Council No. 2 Painters

DECISIONS OF NATIONAL LABOR RELATIONS BOARD District Council No. 2 of the Brotherhood of Paint- ers and Allied Trades, AFL-CIO and The Paintsmiths, Inc. and The Contracting Painters and Decorators Association, Chapter No. 2. Case 14-CB-3469 October 30, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MMBFRS JENKINS ANI) PENI. I.I On January 17, 1979, the National Labor Rela- tions Board issued its Decision and Order in this proceeding,' in which it found, contrary to the Administrative Law Judge, that Respondent had not violated Section 8(b)(2) of the Act. The Board accordingly dismissed the complaint in its entirety. In his Decision, the Administrative Law Judge had found that an appointment-of-steward clause in a contract between Respondent and the Charging Party was a valid contractual provision. However, because Respondent's appointment of a steward had resulted in the layoff of another employee al- ready on the job, the Administrative Law Judge found that the clause had been unlawfully applied by Respondent in violation of Section 8(b)(2). Upon exception to the Administrative Law Judge's Decision, the Board agreed that the appointment- of-steward clause was valid but disagreed with the Administrative Law Judge's conclusion that the ap- plication of the clause was unlawful here. Rather, the Board found no proscribed purpose in Re- spondent's enforcement of the clause and accord- ingly found Respondent's conduct did not violate the Act. Upon a petition for review and a cross-applica- tion for enforcement of the Board's Order, the United States Court of Appeals for the Eighth Cir- cuit disagreed with the Board's dismissal of the complaint.2 The court held that Respondent could not exercise its appointment-of-steward power to cause the layoff of a regular employee, absent le- gitimate and substantial reasons for doing so and that Respondent had not made that required show- ing in this proceeding. Hence, it found Respond- ent's actions in causing the layoff of the employee, Steven Scheble, to have violated Section 8(b)(2) of the Act. The court remanded the instant proceed- ing to the Board with the further direction that the Board enter the recommended Order of the Ad- 239 NL.RB 1378. Member Penello dlsrenting Ihe Painlmilh;. Inc. N. L.R.B.. t2( F 2d 1326 1980). ministrative Law Judge, as modified by the court and as explained below. The Board thereafter accepted the court's remand and notified the parties that they could file statements of position with the Board upon remand. The Charging Party and Respondent filed separate motions to modify the Administrative Law Judge's proposed "Notice to Members" to re- flect the revisions to the Administrative Law Judge's recommended Order directed by the court. 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 au- thority in this proceeding to a three-member panel. Upon all the foregoing, and having accepted the remand, the Board also accepts the court's opinion as the law of the case. Accordingly, we enter a finding that in this proceeding by enforcing the ap- pointment-of-steward clause to cause the Charging Party to lay off employee Steven Scheble, Re- spondent thereby violated Section 8(b)(2) of the Act. Further, and consistent with the court's direc- tion, we shall adopt the Administrative Law Judge's cease-and-desist order, modified as the court directed "so as to apply only to situations where appointment of a steward would displace a worker who is already on the job." : CONCIUSIONS OF LAW I. By unlawfully causing the Charging Party to lay off Steven Scheble on February 7, 1977, in vio- lation of Section 8(a)(3) of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. AM FNI)DI) RM.I)Y Having found that Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondent unlawfully caused the Charging Party to lay off Steven Sche- ble, we shall order that Respondent make him whole for any loss of earnings he may have suf- fered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from Febru- :' See 620 '.2d 1326. 1335 to Ithis enxtlc, v e grant the moitionls of hoth the Charging Parlt and Respondent to Inodify the proposed "Notice to Members" It rflect the ()rder that Ce enter We do not deem the mrlltion i to he incotlmit lient w ith each ther or ith the ()rder that nc Iio'u enller 253 NLRB No. 17 lb4 I)ISIRICt C()tNCtI N()2. P'AINItIRS ary 7, 1977. until the date the North Gate Nursing Home project was complete, less his net earnings during such period. 4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent. District Council No. 2 of the Brotherhood of Painters and Allied Trades, AFL CI()O, ridgeton, Missouri, its officers, agents, and representati\'es, shall: 1. Cease and desist from: (a) Causing or attempting to cause The Paint- smiths, Inc., or any other employer, to discriminate against any employee in violation of Section 8(a)(3) of the Act by appointing, to any job any such em- ployer may have, a job steward or shop steward not from the employer's regular work force or from among the employees already hired by such employer without legal and sufficient justification, where such appointment results in the displacement of an employee who is already on the job. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Make whole Steven Scheble for any loss of earnings he may have suffered, because Respondent unlawfully caused his employer to lay him off, in the manner set forth in the "Amended Remedy" section of this Supplemental Decision. (b) Post at the Union's business offices and meet- ing halls copies of the attached notice marked "Ap- pendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's authorized rep- resentative, shall be posted by Respondent immedi- HBackpa is Io he compulcd on a quaritrl hasi itl the l illncr pre- scrhed i 1 14 t1 ind crh (orpuni 90 NI.RlI 289 (I15t). smtdth imtcrest ias t forth in Iorbid S (C'orportit,,n 231 NlRBi tSI I(771 Se. gei- etrill, I Plunht, i & HlIrting Co. 1I8 NlRH I 71h (l 92) Mernher Jn- kinls would proside inltresl on the hackpalv alrard in accord lih is, pr- tial dissent tl (Olreipit .ledtcal Cotrprution. 25() NI RB 14h ( 198i)) ' It the eent that this Order is cenforced h) a Jtl gell it I a I llti Sta;ltes Courl of Appeals, the sord i the notlC readig "'lisitd hb Order f the Nalional I iKor Rtlaltins Itlard" shall readt "Po tled Ptirst- alnt t a Judgmenlt of the t [ltited Stlates (ir Itl Appeals Ilrifort llig i Order of the Naltioal I.ahlor Rclations itoard" ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to mem- hers are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other ilatetrial. (c) Mail to the Regional Director for Region 14 signed copies of said notice for posting by the The Paintsmiths, Inc., the Companiy wililng, at all places r here notices to its employees are custoniar- ily posted. (d) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. APPENDIX Not'ICf. To EMIoi y Fs AND) MFI RS POSIT I) NY ORI)R Of I HI: NA \ TION XI I.-\ HOR Ril I AIONS BO..RI) An Agency of the United States Government Wi- will N cause or attempt to cause The Paintsmiths, Inc., or any other employer, to discriminate against any employee in viola- tion of Section 8(a)(3) of the National Labor Relations Act by appointing, to any job any such employer may have. a job steward or shop steward who is not from such employer's regular work force or from among the em- ployees already hired by such employer with- out legal and sufficient justification, where such appointment results in the displacement of an employee who is already on the job. WI. wll.i N in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Na- tional Labor Relations Act, as amended. W: wUi.i. make Steven Scheble whole for any loss of earnings he may have suffered by reason of our unlawfully having caused The Paintsmiths, Inc., to lay him off, with interest. DISTRIICr COUNCIi NO. 2 F IHE BROTHERHOOD O' PAIN I RS AND A.i.i I) TRAI)I:S, AFL-CIO 165I