Painters Local 277 (Webb New Jersey)

PAINTERS LOCAL 277 (WEBB NEW JERSEY) 169 Local Union No. 277, International Brotherhood of Painters and Allied Trades (Del E. Webb New Jersey, Inc.) and Edward W. Pygatt. Case 4- CB-4941 22 January 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 12 August 1985 Administrative Law Judge Bruce C. Nasdor issued the attached decision. Thereafter, the Respondent filed exceptions and a supporting brief and the General Counsel filed cross-exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Local Union No. 277, International Brotherhood of Painters and Allied Trades, Atlan- tic City, New Jersey, its officers, agents, and repre- sentatives, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(c) and re- letter the subsequent paragraph. "(c) Threatening Edward W. Pygatt or any other employee with discharge by Del E. Webb New Jersey, Inc. for failure to tender initiation or other fees and dues that are not lawfully required to be paid as a condition of employment." 2. Substitute the attached notice for that of the administrative law judge. 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Pn ducts, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings 2 We find merit in the General Counsel 's exception to the judge's ap- parently inadvertent failure to include remedial language in his recom- mended Order for the independent 8(b)(l)(A) violation he found based on the Respondent's discharge threat in its letter to Pygatt on 22 November 1984 We therefore shall modify the recommended Order accordingly. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States -Government The National Labor Relations Board has found that we violated the National LaborRelations Act and has ordered us to post and abide by this notice. WE WILL NOT cause or attempt to cause Del E. Webb New Jersey, Inc., or any other employer, to discriminate against employees in regard to their hire or tenure of employment, or any other-term or condition of employment, in violation of Section 8(a)(3) of the Labor Management Relations Act. WE WILL NOT enforce any provision of our con- stitution or bylaws in such a way as to condition employment upon the payment of dues which may not lawfully be required as a condition of employ- ment. WE WILL NOT threaten Edward W. Pygatt or any' other employee with discharge by Del E. Webb New Jersey, Inc. for failure to tender initi- ation or other fees and dues that are not lawfully required to be paid as a condition of employment. WE WILL NOT in any other-manner restrain or coerce employees in the exercise of the rights guar- anteed to them under Section 7 of the Act, except to the extent that such rights may be affected by agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8(a)(3) and Section 8(f) of the Act. WE WILL refund to Pygatt the initiation fee and other moneys paid by him as a condition of contin- ued employment. WE WILL make Pygatt whole for any loss of pay he may have suffered as a result of the discrimina- tion against him, plus interest. LOCAL UNION No. 277, INTERNA- TIONAL BROTHERHOOD OF PAINTERS, AND ALLIED TRADES Bruce G. Conley, Esq., for the General Counsel. Robert F O'Brien, Esq. (Tomar, Parlcs Seliger, Simonoff, and Adourian), for the Respondent. DECISION STATEMENT OF THE CASE BRUCE C. NASDOR, Administrative Law Judge. This case was tried at Absecon, New Jersey, on 20 March 1985. The charge was filed on 8 November 1984,1 and a 1 All dates are in 1984 unless otherwise specified 278 NLRB No. 27 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint and notice of hearing issued on 21 December. The charge was filed by Local Union No. 277, Interna- tional Brotherhood of Painters , and Allied Trades2 (the Union). The complaint alleges that the Union engaged in violations of Section 8(b)(1)(A) and (2) of the National Labor Relations Act. On the entire record,3 including my observation of the demeanor of the witnesses and after due consideration of the briefs, I make the following FINDINGS OF FACT 1. JURISDICTION Del E. Webb New Jersey, Inc. is, and has been at all times material, a New Jersey corporation engaged in the business of managing the physical facilities of a hotel and casino known as the Claridge Hotel and Casino located at Indiana Avenue at the boardwalk, Atlantic City, New Jersey. During the past year Del E. Webb Jersey, Inc. has had a gross volume of business in excess of $1 million and re- ceived goods and materials valued in excess of $50,000 directly from points outside the State of New Jersey. Del E. Webb New Jersey, Inc. is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION The Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue Did the Respondent, by its business manager, James T. Brennan, unlawfully cause Del E. Webb New Jersey, Inc. to discharge Pygatt unless Pygatt tender certain dues and fees? B. The Facts Edward W. Pygatt testified that he has been employed in the painting and paperhanging occupations for over 30 years. In 1977 he became a member of Respondent. Pygatt did not receive any referrals from Respondent during 1981, 1982, and 1983. It was not until August 1984 that Respondent referred Pygatt to a job. This was the job at the Claridge Hotel and Casino. He ceased the payment of dues and fees to Respondent in September 1982.4 Pygatt received a telegram5 from James T. Bren- 2 Name appears as amended at the hearing a The General Counsel's unopposed motion to correct the transcript is granted. 4 In 1980 Pygatt was the subject of unfair labor practice (being one of two charging parties) litigation in Polls Wallcovering Co, 262 NLRB 1336 (1982). The issue in this case was the refusal to refer Pygatt from the union hall The case was partially enforced and remanded in part back to the Board from the Thud Circuit United States Court of Appeals See 717 F.2d 805 (1983) Thereafter, the Board issued its supplemental deci- sion in Painters Local 277 (Polls Wallcovenng), 271 NLRB 58 (1984). In this case the Board found that Respondent violated the Act 5 In evidence as G C Exh 7 nan, Respondent's business manager, advising him to report to Emil Newman at the Claridge facilities at 10 a.m. on Monday, 10 September 1984, to be interviewed for the position of paperhanger. Pursuant to this tele- gram Pygatt was interviewed by Newman and hired for the job. He began his employment approximately mid- September 1984. The union steward on the job was Mi- chael Melloro. Pygatt's foreman was George Griffith. Pygatt testified that neither Melloro nor Griffith spoke to him about dues or initiation fees prior to 6 November. Brennan testified that Pygatt was notified some time ear- lier than 6 November. On cross-examination he testified that he had no direct evidence or personal firsthand knowledge that either Melloro or Griffith communicated with Pygatt regarding his obligation to pay dues and fees prior to 6 November. To quote Brennan he testified, "I can only go on past performance, they told everybody else. Everybody else tells him." Brennan was asked whether he had given either Griffith or Melloro a check- off slip to give to Pygatt, to which Brennan answered af- firmatively. He was then asked on cross-examination as to whether or not he had any knowledge as to whether the slip was given to Pygatt. He responded, "I have no knowledge, direct knowledge that they gave it to him, no." Respondent did not call either Melloro or Griffith to corroborate Brennan's testimony. Pygatt testified that 2 or 3 weeks after he began his employment at the Claridge, he questioned Griffith about securing an authorization card for the checkoff, but Grif- fith did not give him an answer other than to direct him to the Claridge's payroll office. Normally Respondent provides authorization cards to employees. Pursuant to the collective-bargaining agreement, the checkoff re- quires a 5-percent assessment of the wages deducted from employees' checks. Therefore, Pygatt testified that he was becoming concerned about it because it could stretch into being a lot of money. Monthly dues are paid directly to the union hall. At approximately 10 a.m. on 6 November, Pygatt was given a letter by Griffith, the letter was signed by Bren- nan and is in evidence as General Counsel's Exhibit 9. The letter requested that Pygatt pay various sums of money to Respondent by that evening. Pygatt asked Griffith what the letter was all about. Griffith responded that he was not aware of the contents of the letter. That evening Brennan was unable to be reached when Pygatt attempted to telephone him at the union hall. Brennan's secretary advised Pygatt to call back later. A couple of hours later Pygatt called Brennan again and Brennan was available. Pygatt asked him for an explana- tion of the amounts of money referred to in the letter. Brennan replied that it was clear Pygatt owed' the money. Pygatt stated that he could understand paying dues and checkoff, but he could not understand 'having to pay the initiation fee. Pygatt also told Brennan that he had only received a letter at 10 a.m., and that according to his records he was being required to pay $1100 by 8 p.m. that evening, an amount which he would be unable to pay. Pygatt further stated he would not pay the initi- ation fee because he had previously paid it when he had joined the Union, but he would pay the checkoff. Bren- PAINTERS LOCAL 277 (WEBB NEW JERSEY) nan replied, according to Pygatt's testimony, "I see you don't want to belong to this Union." Brennan referred to the collective-bargaining agreement with the Claridge. Pygatt was aware of the agreement. According to Pygatt Brennan told him he would not be allowed to work. Pygatt responded that Brennan would just have to send a letter out because he could not pay the money, and Brennan stated he would send the letter. Brennan concedes that Pygatt asked for an explanation of the moneys due. He replied that the letter was self- explanatory. Brennan also contended that Pygatt claimed he had been advised by his attorney not to pay anything. Following the conversation with Brennan, Pygatt in- formed Newman of the conversation and that he expect- ed a request for his termination. Newman responded that the Union and the Claridge did have an agreement and that the Claridge would have to comply with it. On the morning of 7 November, while Pygatt was working, Griffith was -called away from work by his beeper. He left and returned with a letter which request- ed Pygatt's discharge. The letter was referred to Newman. Newman informed Pygatt of the letter, and told him he would be permitted to work until-the end of the day. Pygatt requested permission to leave so that he could attempt to get the matter resolved. Pygatt made some futile efforts at resolution of the problem and then turned in his keys and badge to Newman's secretary later on 7 November. On 9 November Pygatt wrote a letter to Brennan re- questing an explanation for the moneys claimed he owed. -Brennen sent the response to Pygatt's letter on 16 No- vember. These letters were received in evidence as Gen- eral Counsel's Exhibits 11 and 12. - On 8 November Pygatt filed his charge with the Na- tional Labor Relations Board. On 12 November Re- spondent's counsel, Robert F. O'Brien, sent a letter re- questing that Pygatt be reinstated to employment at the Claridge and also informed Pygatt of this request. See General Counsel's Exhibit 13. Following receipt of the letters; Pygatt returned, to his employment at the Clar- idge on either 13 or 14 November. On 20 November Pygatt had an attorney send a money order for $395.69 to Respondent's counsel to be applied toward the sum owed by Pygatt. A letter was subsequently resent by O'Brien to the Respondent. Pygatt-contended the money was paid under protest. See General Counsel's Exhibit 15. On 22 November Pygatt received another letter from Brennan, received in evidence as General Counsel's Ex- hibit 14, dated 20 November. This letter set forth an ex- planation of Respondent's calculations of amounts Re- spondent contended were owed Pygatt. The last para- graph of Brennan's letter states that if the full amounts have not been satisfied by 28 November the Union would seek his discharge pursuant to the collective-bar- gaining agreement. Thereafter, Pygatt received an addi- tional letter, in evidence as General Counsel's Exhibit 17, extending the time Pygatt had for payment to the Union. In late December, Respondent provided Pygatt with an authorization card for checkoff of the assessment. Pygatt signed and returned the card to the Claridge. Be- ginning in 1985, the Claridge began deducting the assess- 171 ment from Pygatt's check. In early March 1985, Pygatt quit his employment at the Claridge. C. Conclusion and Analysis At the outset, I conclude that Pygatt was a more reli- able witness than Brennan and his testimony is credited over the testimony of Brennan. Pygatt was unambiguous in his -testimony and his demeanor evidenced a confi- dence. Conversely, Brennan, in my opinion, distorted the facts and much of his testimony 'was hearsay.. For exam- ple, 'he testified that Pygatt was, notified earlier than 6 November with respect to his dues-obligation and fees. He admitted that he had no direct evidence of communi- cation with Pygatt about his ` obligation in this regard prior to 6 November. - It is also noted that the Respondent has a history of committing unfair labor practices against this very indi- vidual, Pygatt. In my view, the General Counsel has proved by a pre- ponderance of the evidence that Respondent violated Section 8(b)(1)(A) and (2) of the'Act when it caused Del E. Webb New Jersey, Inc. to terminate Pygatt's employ- ment. The Board has consistently held- that a union vio- lates the Act when it causes the discharge of an employ- ee for nonpayment of dues during a period of time when the Union could not lawfully compel membership as a condition of employment. ` See Carolina Drywall Co., 204 NLRB 1091 (1983). The above-cited case bears a marked resemblance to the instant case. There too , an individual ceased paying dues during a period in which he was unemployed. The administrative law judge found that the union's demand for dues for a period when the individual was unem- ployed, although it was sanctioned by the constitution and bylaws, violated the Act. The Board sustained this finding. Furthermore, the discharge of Pygatt violated Section -8(b)(1)(A) and (2) of the Act because the Respondent failed to give him adequate notice of his obligation to pay dues and fees. Board law teaches that the employee must be informed of the amount owed, the method used to compute that amount, when such payments are to be made, and the fact that discharge will result if the em- ployee fails to make the payments. The record estab- lishes, and counsel for Respondent concedes in his brief, "additionally, it should be pointed out that the Union never quoted to Mr. Pygatt, an exact amount of money that he owed but rather Mr. Pygatt concluded that he owed $1,100." Accordingly, it is conceded by counsel that his client did not meet the criteria established in Philadelphia Sheraton Corp., 136 NLRB 888 (1962), enfd. 320 F.2d 254 (3d Cir. 1963). Counsel for- Respondent cites Teamsters Local 630 (Ralph 's Grocery), 209 NLRB 117 (1974) and Big Rivers Electric Corp., 260 NLRB 329 (1982), as being control- ling. In my opinion they are inapposite and can be distin- guished from the instant case. In Ralph 's Grocery the ad- ministrative law judge with Board approval found that "Kelly engaged in a calculated attempt to evade the union security obligations of the contract , as long as he 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was able to do so, and until it was discovered that he was not a member in good standing." In Big Rivers Melton failed to make any effort to meet her obligation for 8 months after her hire, and after re- peated warnings about the consequences. The Board stated, "We find that any infirmity in the Union's formal notice to Melton of her dues obligation was excused by her own recalcitrant attitude in fulfilling that obligation." In my opinion the record supports the following: Pygatt acted in good faith, was not a "free rider," did not evidence a recalcitrant attitude, nor did he attempt to evade the union-security obligations of the contract. By way of contrast, Respondent acted in bad faith and was unreasonable in not giving Pygatt sufficient notice nor spelling out or computing his obligations. Accordingly I find that Respondent violated Section 8(b)(1)(A) and (2) of the Act. CONCLUSIONS OF LAW 1. The Respondent Union is, and has been at all times material, a labor organization within the meaning of Sec- tion 2(5) of the Act. 2. Del E. Webb New Jersey, Inc. is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. Respondent violated Section 8(b)(1)(A) and (2) of the Act by causing Del E. Webb New Jersey, Inc. to discharge Edward W. Pygatt. 4. Respondent independently violated Section 8(b)(1)(A) of the Act by threatening to request the dis- charge of Pygatt if he failed to pay the moneys claimed owed by Pygatt to Respondent. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. I shall recommend that Respondent make Pygatt whole for any losses he may have suffered by reason of the discrimination against him by payment to him a sum of money equal to that which he would normally have earned from the date of his termination less net earnings, during said period. I further recommend that Respondent refund to Pygatt the initiation fee, the 6 months' dues, the quarterly working cards, the $25 suspension reinstate- ment fee, and the $100 exmember rejoining fee. Backpay on his loss of earnings shall be computed according to F. W. Woolworth Co., 90 NLRB 289 (1950), and computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 6 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the ORDER The Respondent, Local Union No. 277, International Brotherhood of Painters, and Allied Trades, Atlantic City, New Jersey, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Causing or attempting to cause Del E. Webb New Jersey, Inc., or any other employer, to discriminate against employees in regard to their hire or tenure of em- ployment, or any other term or condition of employ- ment,,in violation of Section 8(a)(3) of the Act. (b) Enforcing any provision of its constitution or bylaws in such a way as to condition employment on the payment of dues which may not lawfully be required as a condition of employment. (c) In any other manner restraining or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) and Section 8(f) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Pygatt whole for any loss of pay he may have suffered as a result of the discrimination against him. (b) Refund to Pygatt the initiation fees and other moneys referred to in the remedy section paid by Pygatt as a condition of his continued employment. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its union hall copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. Board and all objections to them shall be deemed waived for all pur- poses. 7 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."