Intl. Brothd. of Painters, Local 945

National Labor Relations Board - Board Decisions

Dec 24, 1975

221 N.L.R.B. 1249 (N.L.R.B. 1975)

INTL. BROTHD. OF PAINTERS, LOCAL 945
International Brotherhood of Painters and Allied
Trades, Local Union No. 945 (Ebasco Services,
Inc.) and Margaret Joyce Erickson . Case 23-CB-
1664
December 24, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On September 26, 1975, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, the Acting General
Counsel filed limited exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt, his recommended Order' as modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that the Respon-
dent, International Brotherhood of Painters and
Allied Trades, Local Union No. 945, Baytown,
Texas, its officers, agents, and representatives, shall
take the action set forth in the said recommended
Order, as modified below:
1. Insert the following as paragraphs 2(a) and (b)
and reletter the remaining paragraphs accordingly:
"(a) Make whole Charles W. Stark, Jr., for any loss
of earnings he may have suffered by reason of the
discrimination against him, in the manner set forth in
footnote I herein.
"(b) Maintain and, upon request, make available to
1 We find merit in the Acting General Counsel 's exception to the failure
of the Administrative Law Judge to include in his recommended Order that
Respondent make Charles W Stark, Jr , whole for his loss of pay caused by
the Respondent's unlawful conduct We find that backpay is an essential
ingredient of the remedy for the unfair labor practice found here Therefore,
we shall order Respondent to reimburse Stark for any loss of pay he may
have suffered as a result of its discriminatory action against him in the
manner set forth in F. W Woolworth Company, 90 NLRB 289, 291-293
(1950), together with 6-percent interest thereon in accordance with Isis
Plumbing & Heating Co , 138 NLRB 716 (1962)
Accordingly, we shall modify the Administrative Law Judge's recom-
mended Order and substitute the attached notice marked "Appendix A" for
the notice attached to his Decision
221 NLRB No. 204
1249
the Board or its agents, for examination and copying,
job registration and referral records and any other
documents or records showing job referrals and work
assignments, and the basis for making such referrals
and assignments of members, employees, job appli-
cants, and registrants, which are necessary to
compute and analyze the amount of backpay due to
Charles W. Stark, Jr., and his right to referral to jobs
under the terms of this Order."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their evidence, an Administrative Law
Judge of the National Labor Relations Board has
found that we violated the National Labor Relations
Act, and has ordered us to post this notice and we
intend to carry out the Order of the Board.
WE WILL NOT restrain or coerce Charles W.
Stark, Jr., or any other employee of Ebasco
Services, Inc., by preventing or interrupting the
work of said employees through inaccurate or
untruthful statements relative to dues being in
arrears.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of the rights
guaranteed by Section 7 of the National Labor
Relations Act.
WE WILL make Charles W. Stark, Jr., whole for
any loss of earnings he may have suffered by
reason of the discrimination practiced against
him.
WE WILL notify Ebasco Services, Inc., and all
other employers who use our exclusive hiring hall
referral system, and mail copies of such notice to
Charles W. Stark, Jr., that we have no objection
to his employment, and that Stark has full use of
said referral system, without discrimination.
INTERNATIONAL
BROTHERHOOD OF
PAINTERS AND ALLIED
TRADES, LOCAL UNION
No. 945
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Houston, Texas, on August 14, 1975.1
The complaint,2 issued on June 19, is based on a charge
filed on April 16, and an amended charge filed on June 16
by Margaret Joyce Erickson, an individual. The complaint
alleges that International Brotherhood of Painters and
Allied Trades, Local Union No. 945, hereinafter referred to
as Respondent or the Umon, violated Section 8(b)(1)(A) of
the National Labor Relations Act, hereinafter referred to
as the Act.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses , and to argue orally. Submission of briefs was
waived by both parties.
Upon the entire record, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Ebasco Services, Inc., herein called Ebasco, a New York
corporation licensed to do business in Texas with its
principal office and place of business at Houston, Texas, is
engaged in the business of constructing and maintaining
electrical power plants. During the past 12 months Ebasco
purchased goods and materials valued in excess of $50,000
directly from firms located outside the State, of Texas, and
such goods and materials were shipped from points outside
the State of Texas directly to Ebasco at its Texas facility.
I find that Ebasco is, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Painters and Allied Trades,
Local Umon No. 945, is, and at all times material herein
has been, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1 All dates hereinafter are in 1975, unless stated to be otherwise
2 As amended at hearing to correct name and spelling of Company to
read Ebasco Services, Inc
3 Respondent 's answer (G C. Exh 1(g)) is as follows:
All acts described in paragraphs 8, 9, 10, 11, 12, of the complaint that
has been filed against us are completely false To repeat myself, all
Ebasco is an independent contractor that is retained by
Houston Lighting and Power Co. on various construction
projects.
Charles William Stark, Jr., hereinafter referred to as
Stark, is the 18-year-old son of the Charging Party,
Margaret Erickson. Stark's first job was with Ebasco at
Baytown, Texas, to which job he had been referred on
March 20 by Jess White, Respondent's business agent.
It is Stark's contention that Respondent and Ebasco are
parties to an agreement, or an understanding, whereby
Ebasco obtains all its employees through an exclusive
hiring hall operated by Respondent, and that Stark illegally
was precluded by Respondent from working for Ebasco.3
B. The Allegedly Illegal Acts of Respondent
Stark testified as follows: He paid Jess White (White)
$50 to join Respondent Union, and received a referral to
Ebasco. Stark reported to Ebasco at about 7 a.m. on
March 21, gave his work referral to John Whalen
(Whalen), the union steward on the job, and went to work
under Foreman Leroy Speers. Whalen told Stark on April
3 he would have to leave the job because his permit was no
good. Pursuant to Whalen's instructions, Stark immediate-
ly went to the union hall to see White, and waited
unsuccessfully 3 or 4 hours to talk with White. Stark
returned to the union hall on April 4 and waited for White
from about 8 a.m. until noon. White not having appeared
by noon, Stark returned home.
Stark went to the Ebasco jobsite April 8, but "... they
sent me right back home." Upon arrival at home, Stark's
mother had a receipt from the Union for $210 and a new
referral for work.
Ebasco painters did not work April 10 and 11 (Friday)
because of rain, and Stark reported for work at the site
about 6:45 a.m. on April 14. Stark handed his new referral
to Whalen, who said the referral was no good and that
Stark could not work. Stark returned to the union hall to
see White, but was unable to see him. Stark returned to the
hall on April 15 and, after waiting unsuccessfully 2 hours
to see White, went back home.
Stark's mother attempted to see White, but she too was
unsuccessful. On April 28 Stark's mother finally obtained a
third receipt for money paid "on initiation," and Stark
went to work on the basis of an earlier referral, the
expiration date of which had been changed by White.
Respondent called no witnesses. The Union's representa-
tive was given leave to state Respondent's position, which
is as follows:
But it was known on the job at the time that Mr.
Stark didn't work due to the fact he didn't want to. He
allegations pertaining to this complaint are falsehoods . We further deny
having ever refused anyone the right to work.
The foregoing is ambiguous , but, based upon the record and the apparent
intent of the answer , it is found that par . T of the complaint, which alleges
an exclusive hiring hall arrangement , is not denied , it is , therefore, deemed
admitted pursuant to Sec 102 .20 of the Board's Rules and Regulations.
INTL. BROTHD . OF PAINTERS, LOCAL 945 1251
didn't try to contact the representative. And as I see it,
the reason he didn't is it would have been a good
excuse not to work.
We would be happy to let him work. All he had to
do was talk to the business representative. We told him
to talk to the business representative and then he
wouldn't come back to the job. But he didn't try to
contact the representative and I think it was because he
didn't want to work.
I know there were several days he came out and
worked a few hours and went home for no reason. No
one told him to or anything.
Analysis
Stark was a convincing witness. His testimony was not
contradicted, nor was he shaken on cross-examination. He
is credited.
Respondent put on no defense. Its position, as stated by
its representative, has been considered.
This case appears to be an exercise in trivia, but the fact
remains that Stark was treated in an unusually callous
inconsiderate manner. The question is whether he was
treated in an illegal manner.
Testimony and evidence show that Stark paid the Union
sums of money on three occasions between March 20 and
April 28. All three payments were receipted for as being
"on initiation." Payments total $270.
Stark was refused work or directed to leave work by the
Union on April 3, 8, and 14. Even if it is argued that he was
in arrears , so far as payment of dues is concerned, as of
April 3 and 8,4 it is clear beyond argument that he was not
in arrears on April 14 until the close of business that day.
The receipt (G.C. Exh. 3) shows on its face "Expires 4-14-
75," yet Whalen told Stark about 6:45 a.m. on that day
". . . that my permit was no good and I couldn't work." 5
To further aggravate the situation, as of April 14 Stark had
paid the Union $260 within a period of 25 days. The
amount of dues was not established at trial; "in arrears"
was not defined; the reason, if any, for all money paid by
Stark being shown as "on initiation" was not explained.
However, even under interpretations most favorable to the
Union, the conclusion is inescapable, and it is found, that
as of April 14 Stark was not "in arrears" in dues payments
to the Union.
Respondent did not explain why Stark was unable to see
White at the union hall. However, the inference is
warranted, and it is found, based on the fact that the
Ebasco job steward told Stark to report to White and Stark
unsuccessfully waited many hours on different days to see
him, that Stark intentionally was being given a "run
around." It may be speculated that his youth had
4 A fact obviously in arguendo only, since there is no indication that dues
were payable or "in arrears" on either of those dates Stark had paid the
Union $50 March 20 If being "in arrears" is interposed as a defense,
Respondent totally failed to meet its burden
5 The "Expires 4-14-75" statement is something of an enigma The
receipt is dated 4-8-75, the earlier receipt is dated 3-20-75 April 14 does
not appear to be the anniversary or expiration date of any ordinary
computation. Texas follows the general rule that, in computing time, the
first day is excluded and the last day is included Home Ins Co, N.Y v
Rose, 255 S W 2d 861, 152 Tex 222. The general rule is that the words "on,"
"by," or "until" are inclusive of the last day named, unless a contrary intent
something to do with the situation, but, for whatever
reason, Stark was treated in an extremely high-handed, as
well as illegal, manner.
It appears possible that an 8(b)(2) violation was involved
herein. However, that possibility was neither pleaded nor
litigated by General Counsel, hence no finding relative
thereto is made.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's activities set forth in section III, above,
occurring in connection with the operations of Respondent
described in section I, above, have a close, intimate, and
substantial relation 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.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(b)(1)(A) of
the Act, I shall recommend that Respondent be ordered to
cease and desist therefrom , and to take certain affirmative
action designed to effectuate the purposes of the Act.
On the basis of the foregoing findings of fact and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Ebasco Services, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Brotherhood of Painters and Allied
Trades, Local Union No. 945, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By restraining and coercing Charles W. Stark, Jr., on
April 3 and April 14, 1975, relative to his employment with
Ebasco Services, Inc., Respondent Union has engaged in
unfair labor practices in violation of Section 8(b)(1)(A) of
the Act.
4. The unfair labor practices described in paragraph 3,
above, are unfair labor practices affecting commerce
within' the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
clearly is shown 86 C.J.S Time I I and Sec 13(4) The only reasonable
interpretation of Respondent 's statement is that it means "Expires on 4-14-
75," since no limiting intent is shown The general rule, therefore, is
applicable, and Stark was entitled to work on April 14
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER6
The Respondent, International Brotherhood of Painters
and Allied Trades, Local Union No. 945, shall:
1. Cease and desist from:
(a) Restraining and coercing employees of Ebasco
Services, Inc., by preventing or interrupting the work of
said employees through inaccurate or untruthful state-
ments relative to dues arrears.
(b) In any other manner restraining or coercing employ-
ees in exercise of the rights guaranteed by Section 7 of the
Act.
2. Take the following affirmative action, designed to
effectuate the policies of the Act:
(a) Notify Ebasco Services, Inc., and all other employers
who use Respondent's exclusive hiring hall referral system,
and mail copies of such notice to Charles W. Stark, Jr., that
Respondent has no objection to Stark's employment, and
that Stark has full use of said referral system, without
discrimination.
6 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(b) Post at its business office and meeting places, copies
of the attached notice marked "Appendix." 7 Copies of said
notice, to be furnished by the Regional Director for Region
23„ after being duly signed by, the Respondent's representa-
tive, shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(c) Sign and mail sufficient copies of said notice to the
Regional Director for Region 23, for posting by Ebasco
Services, Inc., at all locations where notices to employees
customarily are posted, if Ebasco Services, Inc., is willing
to do so.
(d) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
7 In the event that the Board's 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 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."