District Council 4, Brotherhood of Painters, Etc.

National Labor Relations Board - Board Decisions

Jun 26, 1964

147 N.L.R.B. 725 (N.L.R.B. 1964)

DISTRICT COUNCIL 4, BROTHERHOOD OF PAINTERS , ETC. 725
2. Edward Axel Roffman Associates, Inc., is engaged in commerce within the
meaning of Section 2(7) of the Act.
3. Although Respondent has engaged in a technical violation of Section 8(a) (5)
and a violation of Section 8(a)(1) of the Act, under the peculiar circumstances
existing here it would not effectuate the policies of the Act for an order to issue
against Respondent therefor.
I recommend that the complaint in the instant matter be dismissed in its entirety.
District Council 4, Brotherhood of Painters , Decorators and
Paperhangers of America , AFL-CIO [ Francis Mettile and
John Towart, d/b/a Peerless Painters & Cleaners ] and Everett
R. Mitchell. Case No. 3-CB-721. Jwne 26, 1961
DECISION AND ORDER
On April 22, 1964, Trial Examiner Max Rosenberg issued his 'De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Trial Examiner's Decision and supporting -briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the -Board has delegated 'its powers in connection with
this caseto a three-member panel [Chairman McCulloch and Members
Leedom:and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and fil.ds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, District
1 The Respondent has excepted to the credibility findings made by the Trial Examiner.
It is the Board' s established policy, however, not to overrule a, Trial Examiner's resolutions
with respect to credibility unless, as is not the case here, the clear preponderance of all the
relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall
Products, use, 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
We also find no merit in the General Counsel's contention that a broad order, rather
than the narrow order recommended by the Trial Examiner, should be issued in this case,
as the violations found affected only employee of one employer. United Mine Workers
of America and District 30, et at. (Blue Diamond Coal Company), 143 NLRB 795
147 NLRB No. 94.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Council 4 , Brotherhood of Painters , Decorators and Paperhangers of
America, AFL-CIO, its officers ; agents, and representatives , shall take
the action set forth in the Trial Examiner 's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented, was heard before Trial Examiner
Max Rosenberg in Buffalo , New York, on January 28, 1964, on complaint of the
General Counsel of the National Labor Relations Board and answer of District
Council 4 , Brotherhood of Painters , Decorators and Paperhangers of America, AFL-
CIO, herein called the Respondent or the Union .' At issue is whether the Respond-
ent violated Section 8 (b)(2) and (1)(A) of the Act by causing or attempting to
cause Francis Mettile and John Towart , d/b/a Peerless Painters & Cleaners, herein
called Peerless, to refuse to hire Everett R. Mitchell because of his lack of member-
ship in Respondent, in violation of Section 8(a)(3) and (1). At the conclusion of
the hearing , the General Counsel presented oral argument . Briefs have been filed
by the General Counsel and the Respondent , which have been duly considered?
Upon the entire record and my observation of the witnesses , including their de-
meanor while testifying on the stand , I hereby make the following:
FINDINGS OF FACT
. I. BUSINESSES OF THE EMPLOYERS INVOLVED
Union Painting and Decorating Contractors of Buffalo, New York, herein called
the Association, is an unincorporated association with offices at 411 Starin Avenue,
Buffalo, New York, whose members, including Peerless, are employers engaged in
the business of providing painting and related services. On behalf of its employer
members, including Peerless, the Association engages in collective-bargaining nego-
tiations with Respondent as the collective-bargaining agent of the employees of said
employers. During the annual period material to this proceeding, members of the
Association performed painting and related services valued in excess of $50,000 for
customers within the State of New York who, in turn, purchased outside the State of
New York and caused to be delivered to. them within that State materials and sup-
plies valued in excess of $50,000, and who produced, sold, and delivered products
outside that State valued in excess of $50,000.
During the same period, Peerless, whose principal office is at 68 Chateau Terrace,
Snyder, New York, performed painting and related services valued in excess of
$80,000 to customers, of which services valued in excess of $4,000 were performed
for customers who in turn were engaged in commerce within the meaning of the Act.
I find that the Association and Peerless are, and at all times material herein have
been, employers engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue and the evidence
The issue to be resolved is whether Respondent caused or attempted to cause
Peerless to deny employment to Mitchell because of his lack of membership in Re-
spondent occasioned by his failure to pay a union fine. The principals in this litiga-
tion are Mitchell, the Charging Party, John Towart, a partner in Peerless, and James
Wolford, business manager of Respondent.
'The complaint, which issued on December 1, 1963, was based on a charge filed on
November 4, 1963.
2 On February 6, 1964, the General Counsel, with the acquiescence of the Respondent,
moved me to reopen the record for the admission into evidence of General Counsel's Ex-
hibit No. 4 for identification on the ground that, through inadvertence, he had failed to
offer the document into evidence at the hearing. The motion is granted and exhibit 4 is
hereby received.
DISTRICT COUNCIL 4, BROTHERHOOD OF PAINTERS, ETC. 727
During the times material herein , Peerless was a member of the Association and
had bound itself to the terms of a collective-bargaining agreement between the Asso-
ciation and Respondent . Pursuant to this agreement , Respondent was afforded ex-
clusive recognition as the collective-bargaining agent for employees of the Association
members, including Peerless. The agreement contained a union-security clause which
required union membership after the seventh day of employment ,3 and obligated
Peerless and other Association members to furnish Respondent with the name of any
new employee who was not a union member within 24 hours of his hire.
Mitchell had been employed by Peerless in 1962 and had been a member of Re-
spondent until approximately June of that year , when he was expelled for dues de-
linquency . In October 1962, according to the mutually corroborative testimony of
Wolford and Towart, Wolford telephoned Towart concerning reports which the
former had received that some of Peerless' painters had left Peerless ' employ to work
as maintenance painters at a local plant of the Chevrolet Division of General Motors.
Wolford stated that these employees had quit the Union and had joined the United
Auto Workers which represented the employees at the Chevrolet plant. He ex-
plained that , under the Respondent 's constitution , a union painter who joined another
labor organization which represented the same classifications of skills as the Respond-
ent thereby violated his "oath of obligation" to Respondent , and that union painters
who joined the United Auto Workers were being disciplined therefor .4 Wolford
told Towart that, in the event any former Peerless painters who had been employed
at the Chevrolet plant sought reemployment , Towart was to get in touch with Wol-
ford before they were rehired.
At some undisclosed date, Mitchell left his job with Peerless and obtained employ-
ment in January 1963 at the Chevrolet plant, a circumstance which was known to
Towart and Respondent . In October 1963, Mitchell sought reemployment with
Peerless. According to Towart's testimony , he received a telephone call from
Mitchell on Friday evening, October 18 , inquiring whether there was any work for
him at Peerless. Towart replied that he had a project underway in Tonawanda,
New York, and that he could use Mitchell . He therefore instructed Mitchell to
report to the project the following Monday morning, October 21 . Mitchell appeared
at the project on that morning, and Towart informed him that there was a job avail-
able and that Towart was desirous of hiring him. When Mitchell related that he
was no longer a union member because he was delinquent in his dues and his book
had been dropped , Towart replied that it would be necessary that he report Mitchell
to the Union and get a clearance for Mitchell . Towart explained that the reason
for such a report to the Union was to comply with Wolford's request, made.a year
earlier , that Towart inform the Respondent before he reemployed any painters who
had gone to work at Chevrolet . Towart instructed Mitchell to check back with him
after Towart had gotten in touch with Wolford , and Mitchell left the jobsite.
Towart further testified that he thereupon placed a call to Wolford, and informed
the latter that Mitchell had applied for a job with Peerless and that work was avail-
able for him. Wolford replied that "Before you put him on, I want to talk to him.
He hasn 't got his book. His book is dropped ." Towart then remarked that, under
the union-security provision of the existing collective -bargaining agreement , Mitchell,
as a new employee and nonunion member , was entitled to 7 days of "grace" in which
to perfect his union membership and hence was immediately employable by Peerless.
Wolford retorted that "He doesn 't come under that because of the fact that he is a
previous card -carrying man and he 's got a fine against him," and advised Towart
that Mitchell 's fine had to be "cleared up" first and that Towart was not to put
Mitchell to work until Mitchell first saw Wolford . Towart denied that Wolford
ever mentioned during this conversation that it was permissible under the 7-day
union-security clause to employ Mitchell or that Wolford had no objection to such
employment . He testified that he had no further conversations with Wolford con-
3 There is no claim that this clause, covering employers in the construction industry, is
in any respect in contravention of the Act.
* Section 92 of Respondent 's constitution provides that no person shall be eligible to be-
come or remain a member of the Union if he holds membership in any other organization
which "exercises or claims to exercise duties and functions similar to those exercised by,
this Brotherhood or its locals , or which claims jurisdiction in whole or in part over matters
which are within the jurisdiction of this Brotherhood." The constitution further provides
that any member who offends this section "shall be punished in accordance with the sec-
tion on disciplinary action provided in this constitution." Section 139 of the constitution
recites that a suspended member shall pay "all dues , assessments , fines , and other indebted-
ness" as a condition to readmission to membership . [ Emphasis supplied.]
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerning the union status or employment of Mitchell. The following evening, Mitchell
called Towart to say that he had seen Wolford and was told that he would have to
pay a fine of $300 and an additional sum of $250 to make his dues book current
before he could go to work for Peerless. Mitchell stated that he was going to try to
raise the money, and Towart replied that "If you make out, come back and see me."
Mitchell did not return to the Peerless project and was never reemployed by that
company.5
Mitchell testified that, on the evening of October 17, 1963, he telephoned Towart
to inquire about employment opportunities, was told that Peerless had a
job for him at the Tonawanda project, and was instructed to report to work on Mon-
day morning, October 21. When Mitchell reported as directed and informed Towart
that his union book had been canceled, Towart stated that Mitchell would have to
see Wolford and "get your book squared away, and when you do, I will put you to
work." During the week of October 21, Mitchell sought unsuccessfully to contact
Wolford at the union office. He finally reached Wolford by telephone about 5 p.m.
on Monday, October 28. During this conversation, Mitchell informed Wolford
that Peerless had a job for him and he wished to "pick up my book." Wolford
answered that "You can't pick up your book until you pay your fine You have a
$300 fine against you and you have to pay that first before you can pick up your
book." Mitchell then requested and obtained an appointment with Wolford at the
union office for the following morning to discuss the matter.
The two men met at the union office as appointed, in company with Bernard
Carroll, Respondent's assistant business agent. Mitchell testified that he asked
Wolford, "Jimmy, what is this $300 fine?" and Wolford stated, "You worked at
Chevrolet and you owe $300" because of "dual unionism." When Mitchell remon-
strated that no fine could be imposed because his union membership had long since
lapsed, and inquired as to why the 7-day union-security provision was not applicable
to him, Wolford replied that "You're not going to pick up a book or work for
anybody- until you pay that fine. When you pay that fine, then we will see about
your application for a book." Mitchell then left the union office, and that evening
called Towart to report the results of- his conversation with Wolford. Mitchell
testified that he was not thereafter hired by Peerless.
Concerning his conversation with Towart, which Wolford placed on October 28
rather than October 21, Wolford testified that Towart called to relate that Mitchell
had applied for a job and that Peerless wanted to employ him. Wolford stated
that Towart then "asked me the status of Mr. Mitchell, and I told him that as far
as I was concerned, that Mr. Towart-can hire him, that his Union Security clause
gave him this right; that Mr. Mitchell, I understood, had a fine, was dropped out
of the Union for non-payment of dues after six months and also I was to understand
that he had a fine against him for going to work and joining the United Auto Work-
ers Union, and I told him that if he wanted to hire him, as far as I was concerned,
it had no problem with me. That is up'to him to hire him." However, on fur-
ther direct examination, Wolford admitted that "Mr. Towart spoke to me in regards
to the 7-day clause, and I told him at that time that I didn't believe Mr. Mitchell came
under the 7-day clause since he was a previous member of the Union." Towart then
asked Wolford whether he would talk to Mitchell and Wolford agreed to do so.
Wolford corroborated Towart's testimony that there were no further conversations
between them 'concerning Mitchell's union status or his eligibility for employment
with Peerless.
Wolford further testified that, after his conversation with Towart, he decided to
find out about Mitchell's status. That afternoon he got in touch with the Respond-
ent's attorney to inquire whether the 7=°day union-security clause was applicable to
Mitchell and received an affirmative reply. That evening he telephoned the Respond-
ent's recording secretary to inquire whether Mitchell had been fined and, according
to Wolford,'learned that Mitchell had never been fined.
With respect to his conversations with Mitchell, Wolford testified that-about 5 p.m.
on October 28 he received a call from Mitchell concerning the status "of his prob-
lem" with the Union. Wolford "told him that he had been dropped out of the
Union, and as far as I was concerned, that he would have to make out an applica-
6 Over Respondent's objection, I admitted into evidence testimony concerning Mitchell's
conversations with Towart. While I do not deem such testimony binding upon Respond-
ent insofar as it might tend to establish that Respondent violated the Act in the respects
alleged in the complaint, I have considered such testimony as a chronicle of the events
leading to Mitchell's application for a job with Peerless and the subsequent conversations
between Mitchell and Wolford and Towart and Wolford. This testimony, in many regards,
was corroborated by Respondent's own witness
DISTRICT COUNCIL 4, BROTHERHOOD OF PAINTERS, ETC. 729
tion and be reinstated into the Union." Wolford further stated that "if Mr. Towart
wanted to" hire him, that is this problem." Mitchell then asked for a meeting with
Wolford for the following morning. According to Wolford, he "did not think" he
mentioned a fine during this conversation, and, so far as his testimony appears in
the record, no mention was made of the applicability of the 7-day "grace" period
in the union-security clause to Mitchell.
On the morning of October 29, Mitchell met with Wolford and Assistant Business
Agent Carroll. With respect to this meeting, Wolford testified that Mitchell "asked
me exactly what he would have to do to straighten out the problem that he had of
rejoining the Union, and I explained to him that he would have to make an applica-
tion and pay the initiation fee to rejoin the Union. I also told him that at that time
I had checked,and that there was no fine against him, and also that the 7-day clause
would also apply to him." Mitchell again asked about the fine and Wolford assured
him that there was no fine. Mtchell then stated that he was going to attempt to
raise some money "to rejoin the Union," and left. Wolford denied that he told
Mitchell during the meeting that the latter would 'have to pay .a fine before he could
rejoin Respondent.
In his testimony, Carroll stated that he was in Wolford's office when Towart
called on the morning of October 28. He heard Mitchell's name mentioned, and
overheard Wolford tell Towart that Mitchell was no longer a member of the Union,
that "He had dropped from the rolls due to failure of payment of dues 'and also the
fact was mentioned that a fine was levied" on Mitchell because he worked at the
Chevrolet plant. At first, Carroll testified that he heard Wolford state that Towart
had a 7-day union-security clause in'his contract and that it was up to Towart whether
he wished to hire Mitchell pursuant to that clause. On cross-examination, he in-
dicated that Wolford said the "grace" period was inapplicable to Mitchell. Con-
cerning the meeting on the following day with Wolford and Mitchell, Carroll testified
that Mitchell asked Wolford how the former "could get straightened out with the
Union once again in reference to getting his book straightened out and also the fine."
According to Carroll, Wolford assured Mitchell that no fine was outstanding and that
the 7-day clause was applicable to Mitchell. Mitchell again asked about the fine,
and Wolford again assured him that none had been levied. Mitchell then announced
that he would try to raise some money, and left the union office.
I credit Towart's testimony and conclude that, when Mitchell reported for work
at the Tonawanda project on October .28 and related that he was no longer a member
of the Union, Towart did not then hire him because of Wolford's earlier instruction
to notify the Union before reemploying any painter who had joined the United
Auto Workers at the Chevrolet plant. I find that, when Towart called Wolford on
October 28 6 to report that Mitchell had applied for an available job, Wolford in-
formed Towart that Mitchell had "dropped his book" and was not a union member,
and stated that Mitchell was not eligible for immediate employment with Peerless
because the 7-day grace period in the union-security clause for the acquisition of
membership did not apply to him. I further find that, during this conversation,
Wolford informed Towart that Mitchell had, been fined by the Union because of
dues deliquency and "dual unionism," and cautioned Towart not to put Mitchell to
work before the fine. had been "cleared up" with Respondent and Mitchell was re-
instated to membership. With respect to this conversation, I do not credit the
testimony of Wolford and Carroll that Wolford. assured Towart that Mitchell qualified
for immediate employment under the union-security clause and .that Respondent had
no objection to such employment. Not only did Wolford and Carroll eventually
admit during their examination that Wolford expressly stated to Towart that the
clause was not applicable to Mitchell, but Wolford's conduct subsequent to this con-
versation makes their contrary testimony in this regard incredible. Wolford testi-
fied that, after talking with Towart, he telephoned Respondent's attorney to find
out whether the clause did apply to Mitchell, and later inquired of Respondent's
recording secretary whether Mitchell had been fined. Such actions by Wolford,
if indeed they were taken, belie the assurance which Wolford gave to Towart earlier
that "Mr. Towart can hire [Mitchell], that this Union Security clause gave him this
right," and that if Towart wanted to hire Mitchell, "as far as I was concerned, it
had no problem with me." Moreover, both Wolford and Mitchell admitted that
6 While Towart testified that he spoke to Wolford on October 21 rather than October 28,
I believe that Towart was honestly mistaken as to the correct date of this conversation,
and I perceive no reason why such mistake should impair the otherwise credible quality of
his testimony. It seems clear from the testimony of all the witnesses concerned that they
were reporting their recollection of one and the same conversation.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wolford mentioned to Towart that Mitchell had been fined for dues delinquency
and "dual unionism ." I cannot conceive of why this intelligence should have been
imparted to Towart if Wolford had, in truth and substance , assured Towart of
Mitchell 's employment eligibility on this date.
I also credit the testimony of Mitchell concerning his conversations with Wolford.
I find that , about 5 p .m. on October 28, Mitchell telephoned Wolford , stated that
Peerless had a job for him , and indicated he desired to "pick up my book." I fur -
ther find that Wolford told Mitchell the latter would not be reinstated to union
membership until he first paid a $300 fine, and that as a consequence thereof
Mitchell obtained an appointment to see Wolford the following morning to discuss
the question of his readmission to membership . I further find, during the meeting
the following day, Wolford informed Mitchell that the fine had been imposed be-
cause Mitchell had joined the United Auto Workers at the Chevrolet plant, that
he was not eligible for immediate employment with Peerless under the union -security
clause, and that he was "not going to pick up a book or work for anybody until
you pay that fine." 7
I do not credit Wolford's testimony concerning these conversations because I find
it implausible . Wolford testified that he received a call from Mitchell about 5 p.m.
on October 28, during which Mitchell asked what he needed to do to "straighten out
the problem" of rejoining the Union . According to Wolford , he merely advised
Mitchell to make out an application and -pay an initiation fee, and he "did not think"
that the subject of a fine arose at any time during the conversation . If these were
the only requirements imposed upon Mitchell as a condition to recouping union
membership , and if no mention of a fine was made during this conversation, I am
at a loss to understand why, as Wolford claimed , he saw fit to call his recording
secretary later that evening to ascertain whether a fine had in fact been levied against
Mitchell. Moreover, if Wolford did not mention a fine to Mitchell during this
conversation , which was their only contact prior to their meeting on October 29,
I find it incredible Mitchell would have queried Wolford about a fine since, as this
record stands, Mitchell was not otherwise apprised that he bad incurred a fine for
going to work at the Chevrolet plant . In my opinion , Wolford's testimony con-
cerning his conversations with Mitchell was contrived . Carroll 's corroborative testi-
mony falls in the same mold.
B. Conclusions
I have heretofore credited the testimony of Towart and Mitchell . On the basis of
the credible evidence , I conclude that , in October 1962 , Wolford became aware that
union painters employed by Peerless were leaving their jobs to obtain work at the
Chevrolet plant and were . joining the United Auto Workers thereat. Wolford there-
fore instructed Towart to notify Respondent in the event any of Peerless ' former
painters sought reemployment because the Union was in the process of disciplining
such men for "dual unionism" under Respondent's constitution . When Mitchell
reported to the Peerless project on the morning of October 28, 1963 , work was avail-
able for him but he was not then employed because of Wolford 's earlier instructions
to Towart that the latter was not to reemploy any former painter without first
clearing it with the Union . On October 28, Towart telephoned Wolford to report that
Mitchell had applied for an available job. Wolford informed Towart that Mitchell
was not a member of the Union and could not be hired by Peerless until he was re-
admitted to membership by the payment of a fine which had been imposed upon him
for having joined the United Auto Workers at the Chevrolet plant. In his conversa-
tions with Mitchell on October 28 and 29 , Wolford reiterated that Mitchell could not
get work at Peerless unless he first reacquired union membership by payment of the
fine. Thus, on and after October 28 , 1963, Mitchell was denied employment by
Peerless because the Union refused to reinstate Mitchell to membership due to his
7 During the hearing , Respondent's counsel sought to show that Mitchell was intoxicated
when he arrived for the meeting at the union office on October 29, and therefore his recol-
lection of what transpired during the meeting was impaired and hence should not be
credited . I accept Mitchell's testimony that he had had but one glass of beer that morning
in a tavern located under the union office and that he was not intoxicated , particularly in
view of 'Carroll's testimony that, while he smelled alcohol on Mitchell 's breath , Mitchell
was not "drunk." Even were I to find that Mitchell was intoxicated on the morning of
October 29 , there is no record evidence to indicate that he was in the same condition on
the preceding evening when he had a telephone conversation with Wolford concerning the
same subject matter discussed the following day.
DISTRICT COUNCIL 4 , BROTHERHOOD OF PAINTERS , ETC. 731
failure to pay the fine . By the foregoing action , I conclude that Respondent at-
tempted to cause and did cause Peerless to discriminate against Mitchell in violation
of Section 8(a)(3), and thereby violated Section 8 (b)(2) and (1)(A) of the Act.8
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of Peerless and the Association who bound themselves
in collective bargaining by group action as described in section I, above , have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in the unfair labor practices set
forth above, I shall recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Respondent , having caused and attempted to cause Peerless to deny employment
to Everett R. Mitchell in violation of Section 8(b)(2) and ( 1)(A), it will be recom-
mended that Respondent notify Peerless and Mitchell , in writing , that it has no
objection to the employment of Mitchell by Peerless in a position substantially
equivalent to the one which Mitchell would have held with Peerless absent Respond-
ent's discrimination against him , without prejudice to his seniority or other rights
and privileges . It will further be recommended that Respondent make Mitchell
whole for any loss of pay he may have suffered by reason of its discrimination against
him, by payment to him of an amount equal to that which he would have earned from
October 28 , 1963, the date of the discrimination , until the date on which Respondent
notifies Mitchell that it has no objection to his employment by Peerless . Loss of pay
shall be computed upon a quarterly basis in the manner established in F. W. Wool-
worth Company , 90 NLRB 289 . Backpay shall include the payment of interest at the
rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing
& Heating Co., 138 NLRB 716. Net earnings during the backpay period shall be
excluded . Crossett Lumber Company , 8 NLRB 440 , 408-498.
CONCLUSIONS OF LAW
1. Union Painting and Decorating Contractors of Buffalo , New York, and Francis
Mettile and John Towart, d/b/a Peerless Painters & Cleaners, are employers engaged
in commerce within the meaning of Section 2 ( 6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
3. By causing or attempting to cause Francis Mettile and John Towart, d/b/a
Peerless Painters & Cleaners, to deny employment to Everett R. Mitchell because of
his lack of membership in Respondent , 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.
4. The aforesaid unfair labor practices are unfair labor practices - affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , upon the
entire record in the case , and pursuant to Section 10(c) of the Act, I hereby recom-
mend that District Council 4 , Brotherhood of Painters , Decorators and Paperhangers
of America, AFL-CIO its officers, agents, representatives , successors , and assigns,
shall:
1. Cease and desist from:
( a) Causing or attempting to cause Francis Mettile and John Towart, d/b/a
Peerless Painters & Cleaners, to discriminate against Everett R. Mitchell in violation
of Section 8 (a) (3) of the Act.
8In his brief , the General Counsel urges that I find that Respondent independently vio-
lated Section 8 ( b) (1)•(A) by Wolford's statements to Mitchell that the latter would not be
permitted to work until he paid a fine for "dual unionism ." Upon my specific inquiry at
the outset of the hearing , the General Counsel gave his assurance that he was not advanc-
ing such a contention in this proceeding . I therefore make no such findings with respect
to those statements.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner restraining or coercing applicants for employ-
ment with Peerless in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Make Everett R. Mitchell whole for any loss of pay suffered by reason of the
discrimination practiced against him in the manner set forth in the section entitled
"The Remedy."
(b) Notify Mitchell and Peerless, in writing, that Respondent has no objection
to the employment of Mitchell without regard to his membership or nonmembership
in Respondent.
(c) Post at its business office and meeting hall, copies of the attached notice
marked "Appendix ." 9 Copies of said notice, to be furnished by the Regional Di-
rector for the Third Region, shall , after being duly signed by an authorized rep-
resentative of Respondent, be posted by it immediately upon receipt thereof, and be
maintained for a period of 60 consecutive days thereafter , in conspicuous places,
including all places where notices to members of Respondent are customarily posted.
Reasonable steps shall be taken to insure that said notices are not altered , defaced,
or covered by any other material.
(d) Mail to the Regional Director for the Third Region signed copies of the at-
tached notice for posting at the office of Peerless , said Company willing, in places
where notices to the Company's employees are customarily posted.
(e) Notify the Regional Director for the Third Region, in writing, within 20 days
from the date of receipt of this Decision and Recommended Order, what steps it
has taken to comply herewith.10
9In the event that this Recommended Order shall be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and
Order."
10 In the event that this Recommended Order be 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 the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS AND JOB APPLICANTS
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby give notice that:
WE WILL NOT cause or attempt to cause Francis Mettile and John Towart,
d/b/a Peerless Painters & Cleaners, to discriminate against Everett R. Mitchell
in violation of Section 8(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce applicants for
employment with Peerless in the exercise of their rights guaranteed in Section 7
of the Act.
WE WILL notify Peerless, with a copy of such notice to Mitchell, that we have
no objection to his employment with Peerless.
WE WILL make Mitchell whole for any loss of earnings suffered as a result
of the discrimination we have practiced against him.
DISTRICT COUNCIL 4, BROTHERHOOD OF PAINTERS, DECORATORS
AND PAPERHANGERS OF AMERICA, AFL-CIO,
Labor Organization.
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.
DAYLIGHT GROCERY COMPANY 733
Members and job applicants may communicate directly with the Board's Regional
Office, 120 Delaware Avenue, Buffalo, New York, Telephone No. Ti. 6-1782, if they
have any question concerning this notice or compliance with its provisions.
Daylight Grocery Company and Meat Cutters, Packinghouse and
Allied Food Workers, District Union 433, affiliated with Amal-
gamated Meat Cutters and Butcher Workmen of North Amer-
ica, AFL-CIO and Employee Committee, Party to the Con-
tract. Case No. 12-CA-2734. June 296, 1964
DECISION AND ORDER
On April 1, 1964, Trial Examiner Sidney Sherman issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom 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 Ex-
aminer's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, Day-
1 Respondent's motion for oral argument is denied because, in our opinion, the record,
exceptions, and brief adequately set forth the issues and positions of the parties.
2 We agree with the Trial Examiner's finding that effective demands for recognition were
made by the Union on the Respondent at the meetings held on September 3, 23, and 25,
1963. At that time the Respondent had in its possession copies of 34 authorization cards
and was offered 4 additional cards by the union representative. Even accepting the Re-
spondent's contention regarding the composition of the bargaining unit, the 38 proffered
authorizations were enough to give the Union a majority status on those dates. Accord-
ingly, it is unnecessary to consider whether the Union had obtained a majority status on
August 14 when it presented the original 34 authorizations to the Respondent.
147 NLRB No. 100.