Huber Painting Co.

National Labor Relations Board - Board Decisions

Dec 31, 1990

300 N.L.R.B. 1137 (N.L.R.B. 1990)

1137
300 NLRB No. 157
HUBER PAINTING CO.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 The judge implicitly found that the General Counsel has established a
prima facie showing that Chapple’s discharge was due to union activity. We
agree. In light of the judge’s credibility resolutions, we also find that the Re-
spondent has not met its burden of demonstrating that it would have taken the
same action in the absence of Chapple’s union activity. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S.
393 (1983).
1 Chapple first worked for Respondent from June through August 1987
painting the Jerome Avenue elevated in the Bronx.
2 Painting on the Brooklyn Bridge is seasonal work. When the weather be-
comes severe in December or January, work is normally halted until March.
3 The employees who went with Chapple were all journeymen. They in-
cluded John Nascimento, ‘‘Duke,’’ ‘‘Eddie,’’ and ‘‘Ollie.’’
Huber Painting Company, Inc./Dynamic Painting
Corp., A Joint Venture and Michael Chapple.
Case 29–CA–14363
December 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On August 3, 1990, Administrative Law Judge Elea-
nor MacDonald issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this procceding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Huber Painting Company,
Inc./Dynamic Painting Corp., A Joint Venture, Brook-
lyn, New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Kevin Kitchen, Esq., for the General Counsel.
Edward C. Montell, Esq. (Montell, Trakas, Marciano &
Montell), of Long Island City, New York, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Brooklyn, New York, on June 19, 1990.
The complaint alleges that Respondent, in violation of Sec-
tion 8(a)(1) and (3) of the Act, discharged employee Michael
Chapple. Respondent denies the material allegations of the
complaint: in its opening statement Respondent asserted that
Chapple was discharged because he failed to do his job.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the brief filed
by the General Counsel on July 23, 1990, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with its principal of-
fice in College Point, New York, is engaged in providing
painting and related services. Respondent admits, and I find,
that it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and that Struc-
tural Steel and Bridge Painters Union, Local 806 is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent’s employee Michael Chapple was working as
a second year apprentice painting the Brooklyn Bridge begin-
ning in July 1988.1 Chapple was placed on the job through
a minority apprentice program. His immediate supervisor was
Foreman Joe Maracic.2
In March 1989, some 2 weeks after work commenced fol-
lowing the winter break, Chapple and some other union
members went down to the union hall to speak to Union
President Martin Kittle about the way Maracic was running
the job.3 Chapple and his coworkers complained that Maracic
was sending certain employees home but keeping his ‘‘coun-
trymen’’ on the job, and that Maracic permitted the use of
a spray machine on the bridge thereby depriving 12 people
of their work. Based on a conversation with ‘‘Duke’’ who
was a shop steward, Chapple believed that the use of the ma-
chine violated union rules. Kittle said the Company was not
supposed to send anybody home due to use of the spray ma-
chine. Kittle instructed the men to return to the jobsite and
stated that he would see to it that they were paid for the day.
Kittle did not come to the bridge, but he sent Ted Nitis,
the business representative of the Union. According to
Chapple, Nitis arrived at the jobsite 40 minutes after the em-
ployees left the union hall. Nitis met with Maracic and the
employees. Nitis told Maracic that the employees were all
able bodied and that he should find work for all of them.
Then Maracic responded that he hated the minority program
and that he wanted to fire ‘‘Anthony’’ and Chapple. Nitis
told Maracic that he could not fire Anthony because he had
family in the Company and that he could not fire Chapple
because he was in the minority program. The next day, all
the employees who had gone to the Union with Chapple
were sent to another job. Only Chapple was left on the
Brooklyn Bridge.
Maracic testified that he recalled the day the men went to
the Union to complain; he stated that he wanted to fire all
the employees who went to the Union on that occasion.
Chapple testified that before the group of employees went
to the Union in March 1989, they had spoken to Stratis
Cokinos, the union shop steward on the bridge, about Re-
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 I note that Maracic testified in response to leading questions from counsel
for Respondent. Where these go to the main issues in the case, Maracic’s re-
sponses are not as reliable as would have been answers given to properly
posed questions.
5 I find that the reasons cited by Maracic and Romano are pretexts. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982).
spondent’s use of a spraying machine. Cokinos told them to
do what they had to do. After Chapple returned from com-
plaining to the Union, Cokinos called him a stool pigeon and
told him he ‘‘had to pay for it.’’
Cokinos did not deny making this comment to Chapple.
On June 6, 1989, Chapple contacted the Union again and
spoke to Nitis. He told the latter that ever since he had com-
plained to the Union in March, Maracic had been abusing
and harassing him. Chapple asked Nitis to speak to Maracic.
Nitis responded that Chapple should be glad to have a job
and that he could not help him.
On direct examination, Nitis testified that he recalled
going to the bridge to correct a problem, but it did not in-
volve a sprayer. On cross-examination, he recalled that a
complaint was lodged with the Union concerning the use of
a sprayer. Nitis did not seem able to recall much of anything
to do with Chapple: however, he recalled that Chapple called
and said he was being harassed on the job.
Chapple testified that Maracic harassed him by criticizing
all of the work he performed. Maracic yelled at Chapple
every day. Chapple described his work as an apprentice as
‘‘any general labor work.’’ He did anything that was re-
quired to be done such as shoveling sand and cleaning up.
According to Chapple, after March 1989, he was often asked
to shovel sand alone instead of with other apprentices as had
been the case before March 1989. Shoveling alone was more
difficult. I note that the validity of Chapple’s claims of har-
assment are not relevant to this case. General Counsel alleges
that Chapple was discharged because he complained to the
Union. Even if the complaints had no basis in fact, Respond-
ent was not privileged to discharge Chapple for seeking re-
dress from the Union.
On Wednesday, June 7, 1989, Chapple spoke to Cecil Bry-
ant of the State Department of Transportation about his prob-
lems with Maracic. Bryant said he would come to the job
the next day to speak to Maracic. The next day it rained and
no work could be done. Chapple went to pick up his pay-
check and then went home.
On Friday, June 9, 1989, Maracic fired Chapple. Accord-
ing to Chapple, Maracic said that he could not use him be-
cause he ‘‘stabbed him in the back twice. Once by calling
the Union and second by calling the State.’’ Maracic asked
Chapple what he thought he could accomplish by going to
the Union. Maracic ‘‘said that he had called Nitis the night
before and said he don’t care about any program he was
going to fire [Chapple].’’
Maracic testified that Chapple’s duties were to help with
any job assignment he was given.4 Maracic denied harassing
Chapple. Maracic testified that he has known Chapple for
several years and that Chapple used to do his job properly.
Describing Chapple’s work performance in 1989, Maracic
testified, ‘‘since he went to the union after that he start not
doing his job.’’ According to Maracic, Chapple talked too
much to the other people.
Cokinos testified that Chapple talked a lot on the job and
kept other people from working. Cokinos testified that he has
known Chapple for several years ‘‘and he was a good work-
er, and I don’t know what happened to him.’’ Cokinos ac-
knowledged that Chapple never refused the foreman’s order
to do some work, but he maintained that Chapple was not
doing the job in 1989.
Maracic testified that he discharged Chapple on a rainy
day. When Chapple came in, he told Chapple that he could
not use him any more because he was not doing his job. Ac-
cording to Maracic he had warned Chapple before ‘‘a lot of
times in the past two months’’ that if he did not do his work
he would let him go. Maracic could not recall whether he
discharged Chapple on the day he picked up his check or the
next day. Maracic maintained that he had been warning
Chapple daily for the last 2 months that one day he would
get mad and fire him. Chapple denied that Maracic ever
warned him that his job was in jeopardy. I credit Chapple’s
testimony and I do not credit Maracic.
Ralph Romano, vice president of field operations of Re-
spondent, testified that Chapple had a bad record for absen-
teeism. Romano testified that about 1 week before the instant
hearing, he checked the Company’s books and found that
Chapple worked only 48 of the 66 days that work was avail-
able in 1989. Romano claimed that before Chapple was fired
he told Maracic that Chapple was absent too often. Romano
claimed to have perused the timesheets every week to see
what amounts the men were paid, but he admitted that he did
not compare Chapple’s attendance with that of the other ap-
prentices. Maracic did not testify that he discharged Chapple
for absenteeism. I find that Romano’s testimony is incredible
and I shall not rely on it.
B. Discussion and Conclusions
The uncontradicted testimony shows that Chapple and
other employees complained to the Union that Foreman
Maracic was running the job contrary to union rules. When
Maracic heard of the employees’ actions, he stated that he
wanted to fire Chapple. Three months later, Chapple sought
the Union’s help because he felt harassed by Maracic. When
the Union refused to do anything about this situation,
Chapple complained to the State Department of Transpor-
tation. Chapple testified that Maracic discharged him, saying
that Chapple had stabbed him in the back by, inter alia,
going to the Union. Maracic did not specifically deny mak-
ing this statement when he discharged Chapple. Maracic’s
purported reason for terminating Chapple, that he had be-
come a poor worker, was expressed in terms that Chapple
had not been doing his job since he went to the Union.
Manifestly, Maracic connected Chapple’s complaints to the
Union with a sudden change in Chapple’s previously good
work habits. Finally, although Maracic stated that he dis-
charged Chapple for failing to do his work, Romano testified
that Chapple had a bad attendance record. This attempt to
offer a different and shifting reason for the discharge leads
me to conclude that Respondent is casting about to find a ra-
tionale to cover up an unlawfully motivated discharge. Thus,
I do not credit Maracic’s testimony that Chapple was dis-
charged because his work had deteriorated.5
I find that Maracic discharged Chapple because Chapple
complained to the Union that the job was not being run ac-
cording to union rules and sought the assistance of the Union
1139HUBER PAINTING CO.
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 Board and all objec-
tions to them shall be deemed waived for all purposes.
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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
with respect to working conditions. Respondent thus violated
Section 8(a)(1) and (3) of the Act.
CONCLUSION OF LAW
By discharging Michael Chapple because he engaged in
union activity, Respondent violated Section 8(a)(1) and (3) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent, having discriminatorily discharged an
employee, must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Huber Painting Company, Inc./Dynamic
Painting Corp., A Joint Venture, College Point, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging its employees because they engage in
union activity.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Michael Chapple immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him, in
the manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this has
been done and that the discharge will not be used against
him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its jobsite at the Brooklyn Bridge and at its fa-
cility in College Point in New York copies of the attached
notice marked ‘‘Appendix.’’7 Copies of the notice, on forms
provided by the Regional Director for Region 29, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
any of you for engaging in union activities on behalf of
Structural Steel and Bridge Painters Union, Local 806, or any
other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Michael Chapple immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed
and WE WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any net in-
terim earnings, plus interest.
WE WILL notify him that we have removed from our files
any reference to his discharge and that the discharge will not
be used against him in any way.
HUBER PAINTING CO., INC./DYNAMIC PAINT-
ING CORP., A JOINT VENTURE