Laborers Local 282 (Austin Co.)

National Labor Relations Board - Board Decisions

Aug 7, 1984

271 N.L.R.B. 878 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers International Union of North America,
Local No. 282, AFL-CIO (The Austin Compa-
ny) and Lula Allen. Case 14-CB-5939
7 August 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 11 January 1984 Administrative Law Judge
Stanley N. Ohlbaum issued the attached decision.
The Respondent filed 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 brief and has
decided to affirm the judge's rulings, findings,' and
conclusions, but not to adopt the recommended
Order. 2
In formulating his remedy, the judge concluded
that, in addition to the traditional make-whole re-
quirements, the Respondent should be directed to
make Allen whole "for any added income tax obli-
gation on her part resulting from payment to her of
any sums due hereunder in a lump sum, rather than
as and when originally due and payable, so as to
increase the amount of her tax liability through tax
bracket or otherwise in consequence of such de-
layed lump sum payment." The judge noted that a
lump sum payment of backpay can "be substantial-
ly detrimental to the innocent employee through
forcing the employee into a higher income tax
bracket, thereby reducing the employee's net
income he or she would have derived if he or she
had been paid on time." Because that result would
be a direct consequence of the nonpayment of
moneys which would have been paid but for the
Respondent's unlawful actions, the judge conclud-
ed that it was "utterly clear that the Respondent
who brought that about should indemnify the inno-
cent employee for any such loss."
We disagree with the judge's analysis. The issue
of a discriminatee's income tax obligation upon re-
ceipt of a backpay award is addressed in sections
10648-10649 of the Board's Casehandling Manual
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 Products, 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 shall issue an Order in lieu of that recommended by the judge to
correct certain inadvertent errors, including his failure to require the Re-
spondent to remove from its files any reference to I ula Allen's termina-
tion.
(Part Three-Compliance Proceedings). In particu-
lar, section 10648.9 directs that a discriminatee
should be advised that the responsibility for deter-
mining the exact amount of income tax due rests
with the discriminatee and requires, in pertinent
part, that the Board agent inform the discriminatee
"that if the backpay renders the total annual
income for the year substantially in excess of
normal income and thereby places [the] discrimina-
tee in a higher tax bracket, the individual may be
entitled to a reduced formula for computing
income for that year and to consult the local Inter-
nal Revenue Service Office for information con-
cerning the computation of taxes for the year."
Sections 1301 through 1305 of the Internal Reve-
nue Code (26 U.S.C. 1301 et seq.) allow a taxpayer
having unusual fluctuations in income to use an
averaging device to ease the tax liability in peak
income years. The device is reflected in a compli-
cated computation performed by the taxpayer to
pay the total of (1) the tax due on 120 percent of
average income over the 4 preceding years ("aver-
age-base period income") and (2) the tax due on
"averagable income"-defined as taxable income in
the current year less 120 percent of average base
period income. 3
We believe that the availability of income aver-
aging coupled with the responsibility imposed on
the Regional Offices to inform discriminatees that
they may be entitled to a reduced tax formula suffi-
ciently meet the concerns expressed by the judge,
and that no further remedial action is required.
ORDER
The National Labor Relations Board orders that
the Respondent, Laborers International Union of
North America, Local No. 282, AFL-CIO, Cape
Girardeau, Missouri, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Taking or threatening to take any adverse job
action or other restraining or coercive action
against any employee for exercising his or her right
to support, favor, campaign, and vote for any rival
candidate or slate in opposition to the incumbent
union slate at or in connection with any union elec-
tion.
(b) Taking or threatening to take any adverse job
action or other restraining or coercive action
against any employee for failing or refusing to con-
tribute to any political action or similar fund, tax,
dues, levy, or exaction.
I There are certain limitations on the use of income averaging relating
to such matters as self-support and marital status.
271 NLRB No. 132
878
LABORERS LOCAL 282 (AUSTIN CO.)
(c) Causing or attempting to cause The Austin
Company, or any other employer, to lay off or oth-
erwise discriminate against its employees in viola-
tion of Section 8(a)(3) of the Act because of their
engaging in activities protected under Section 7 of
the Act, in order to encourage or discourage mem-
bership in any labor organization.
(d) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make Lula Allen whole for any loss of earn-
ings and other benefits suffered as a result of the
discrimination against her, in the manner set forth
in this decision.
(b) Notify The Austin Company, in writing, and
furnish a copy of such notification to Lula Allen,
that it has no objection to Lula Allen's return to
the employment of The Austin Company in the job
from which she was terminated on 25 March 1983.
(c) Refer Lula Allen to The Austin Company for
employment, or, if such employment is no longer
available, refer her for employment elsewhere in a
substantially equivalent position to that from which
she was terminated on 25 March 1983.
(d) Remove from its files, and ask The Austin
Company to remove from The Austin Company's
files, any reference to the unlawful termination,
and notify Lula Allen in writing that it has done so
and that it will not use the termination against her
in any way.
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all of its job referral and related records and
entries necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its offices, union halls, and other
places of business copies of the attached notice
marked "Appendix." 4 Copies of the notice, on
forms provided by the Regional Director for
Region 14, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to its
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 material.
I4 f 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
(g) Forward to the Regional Director for Region
14 signed copies of the notice for posting by The
Austin Company, if it is willing, at its Cape Girar-
deau, Missouri jobsite in places where notices to
employees are customarily posted.
(h) 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 violated 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT take or threaten to take any ad-
verse job action or other restraining or coercive
action against any employee for exercising his or
her right to support, favor, campaign, and vote for
any rival candidate or slate in opposition to the in-
cumbent union slate at or in connection with any
union election.
WE WILL NOT take or threaten to take any ad-
verse job action or other restraining or coercive
action against any employee for failing or refusing
to contribute to any political action or similar fund,
tax, dues, levy, or exaction.
WE WILL NOT cause or attempt to cause The
Austin Company, or any other employer, to lay off
or otherwise discriminate against any of you to en-
courage or discourage membership in this or any
other labor organization.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL notify The Austin Company, in writ-
ing, that we have no objection to the employment
of Lula Allen, and WE WILL furnish Lula Allen
with a copy of that notification.
WE WILL refer Lula Allen back to her job with
The Austin Company. If that job no longer exists,
WE WILL refer Lula Allen to a job equivalent to
879
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the job from which she was terminated by The
Austin Company at our behest on 25 March 1983.
WE WILL notify her that we have removed from
our files, and have asked The Austin Company to
remove from The Austin Company's files, any ref-
erence to her termination and that WE WILL NOT
use the termination against her in any way.
WE WILL make Lula Allen whole for any loss of
earnings and other benefits resulting from our dis-
crimination against her, less any interim earnings,
plus interest.
LABORERS INTERNATIONAL UNION
OF NORTH AMERICA, LOCAL UNION
No. 282, AFL-CIO
DECISION
PRELIMINARY STATEMENT-ISSUE
STANLEY N. OHLBAUM, Administrative Law Judge.
This proceeding t under the National Labor Relations
Act was litigated before me in St. Louis, Missouri, on
October 4, 1983, with all parties participating throughout
by counsel afforded full opportunity to present evidence
and contentions as well as to file posttrial briefs and pro-
posed findings and conclusions (received by November
7, 1983). All have been carefully considered.
The principal issue presented is whether Respondent
Union violated Section 8(b)(1)(A) and (2) of the Act by
causing The Austin Company, Employer of Charging
Party Lula Allen, about March 25, 1983, to lay off Allen
from her job with The Austin Company at the latter's
Cape Girardeau, Missouri jobsite and not to recall her
because she supported and assisted opponents of the
Union's existing incumbent officers in intraunion elec-
tions; for reasons other than Allen's failure to tender
periodic dues and initiation fees and/or referral fees uni-
formly required as a condition of acquiring or retaining
membership in and/or job referrals through the Union;
and for unfair, arbitrary, and invidious reasons and in
breach of its fiduciary obligation to fairly represent em-
ployees.
On the entire record and my observations of the testi-
monial demeanor of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
At all material times Respondent Union has been and
is a labor organization as defined in Section 2(5) of the
Act.
At all material times, Charging Party Lula Austin's
Employer, The Austin Company, an Ohio corporation
engaged in general construction contracting, has main-
' Based on a consolidated complaint issued June 10 (as amended Octo-
ber 4), growing out of a charge filed April 18, 1983. by Charging Party
Lula Allen. This proceeding (Case 14-CB-5939) was consolidated on
June 10, 1983, with Case 14-CB-5429, which was severed on October 4,
1983, and all references thereto deleted from the amended consolidated
complaint.
tained offices and jobsites throughout the United States,
including an office and place of business in Clayton, Mis-
souri, and a jobsite at Cape Girardeau, Missouri, locus of
the violations alleged herein. During the representative
12-month period ending May 31, 1983, immediately ante-
dating issuance of the complaint, The Austin Company,
in the course and conduct of its business operations, per-
formed services in States other than Missouri valued in
excess of $50,000. I find that at all material times The
Austin Company has been and is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II1. ALLEGED UNFAIR LABOR PRACTICES
A. Facts as Found
About 1979 Lula Allen, a female with a husband out
of work, became a member of Respondent Union, which
has no physical strength, capacity, stamina, or compara-
ble admission requirements and which professes ("Na-
tional Agreement," R. Exh. 1, p. 3, art. V, secs. 2 and 4)
not to exercise or participate in sexual or other employ-
ment discrimination. Thereafter, in 1981, she was re-
ferred through Respondent Union's hiring hall to a work
jobsite of J. S. Alberici Construction Company, Inc., in
Marston, Missouri, where she worked, satisfactorily and
without incident, for some 8 months under Foreman and
Union Agent Joe W. Smith (who figures in Allen's later
discharge at the Austin Company jobsite at Cape Girar-
deau, to be discussed below) until her work there ended
some 10 months later. Subsequently, again through Re-
spondent's hiring hall, she was placed at the Cape Girar-
deau jobsite of The Austin Company, where she started
to work, as a laborer, on December 13, 1982, being the
fourth person hired there and the third of three referred
by the Union2 and therefore having considerable seniori-
ty there.
Allen worked there under Foreman Cochran for a day
or two, then under Union President Sachse for over a
month, then Bratton (later union auditor) for around a
month, and then finally under Union Foreman and Agent
(and later Union Executive Board Member) Joe W.
Smith-under whom, it will be recalled, she had worked
satisfactorily for some 8 months at the Alberici Compa-
ny's Marston jobsite-until her layoff on March 25, 1983,
here in issue. Although Allen worked primarily as a car-
penter's helper 3 at Cape Girardeau (as she had at Mar-
2 The employees previously hired there were Elmer F. Elfrank, not
referred by the Union, who was hired on November 23 and released on
December 8, 1982; Ernest L. (Ernie) Brown, union auditor and union
steward referred by the Union and hired on November 24, 1982; and
Tom R. Cochran, referred by the Union and also hired on November 24,
1982. Two others, likewise referred by the Union, were hired on the
same day as Allen (December 13, 1982); these were Union President
Joseph M. (Joe) Sachse and Union Steward (soon also to become Union
Auditor) Charles E. Bratton, both of whom were released or terminated
prior to Allen's termination (under circumstances to be described) on
March 25, 1983 (Sachse was released on February 10 and Bratton quit on
March 4, 1983). (See G.C. Exh. 3.)
3 As described at the trial, carpenters' helpers remove nails from
lumber, and stack and move lumber and forms.
880
LABORERS LOCAL 282 (AUSTIN CO.)
ston), she also assisted with shoveling gravel, dirt, and
sand, at measuring the depths of holes excavated by a
backhoe operator, and at unloading trucks.
Allen paid her monthly union dues as required, as well
as "supplemental dues," taken out of her pay, for oper-
ation of the union hiring hall. She was also asked to
make contributions of $2 per week "PD" to a union "Po-
litical Fund," and for a while she did so. In early March
1983, however, shortly before she was terminated from
her job on suggestion or behest of the Union, under cir-
cumstances which will be shown, when requested by
Union Auditor Brown to pay her "PD," she indicated
she might not be able to do so for a few months because
of financial stringencies, but Brown indicated that she
had to do so because "we have to keep this [PD ac-
count] book straight." About a week later, Union Official
Auditor Brown again approached Allen for her required
"PD" payment, warning her, "You know it's going to
hurt you if you don't." When Allen again pointed out
that she could not afford it, Brown again indicated it was
to be paid, adding, "You'd better keep your nose clean."
When, a day or so later, junior jobsite laborer Riley ap-
proached Union Auditor Brown to pay his "PD," Brown
asked Union President Sachse where to put Riley's name
in "the book." Sachse directed Brown to "mark Lula's
[i.e., Allen's, who had not paid her PD] name off and put
Riley's name in her place."
In late February-March 1983 (also shortly before
Allen's termination), Allen learned that Jerome P. (Roe
or Ro) Schlitt, another Cape Girardeau jobsite laborer,
intended to run in the upcoming intraunion elections to
attempt to unseat James P. (Jimmie) Bollinger, the
Union's repeated incumbent business agent/business man-
ager. Allen decided to support Schlitt in this endeavor
and attended all four of his campaign meetings, which
were held at his home commencing the first week in
March (the month of Allen's termination). On the morn-
ing of the day following Schlitt's first campaign meeting,
Union Auditor Brown approached Allen while she was
working on the jobsite and asked her if she had been to
Schlitt's meeting the night before. When Allen admitted
she had, Brown asked her how many others had been
there (there were about 25 or 30) and whether she in-
tended to go to any more of those meetings. When she
indicated she might since "he has guts enough to run,"
Union Auditor Brown said that Schlitt "[will] never
win" and cautioned Allen that "You're just going to
stick your neck out for nothing." When Allen thereupon
said, "I think I'm going to vote for him," Brown praised
incumbent Business Agent Bollinger and warned Allen
that "Jim [Bollinger] helps them that help him ....
[You'd] better keep [your] nose clean .... If you vote
for 'Roe' [Schlitt], you gotta go."4
In early March 1983, after Allen had been on the Cape
Girardeau job for months and after a previous stint of
almost a year on the same kind of work at the New
Madrid job, Union President Sachse began to twit her
about being unable to do a "man's job," an insinuation
4 Indeed, this was incumbent Union Business Agent/Manager Bol-
linger's campaign slogan, heard repeatedly by Allen: "You Vote for 'Roe'
[Schlitt], You Gotta Go."
she denied. Sachse thereupon asked her whom she was
going to vote for in the upcoming union election, 5
adding that "Roe [Schlitt will] never win" and praising
incumbent Business Agent Bollinger. When Mrs. Allen
told Union President Sachse that she did not like the
"unfair" way Bollinger referred workers to jobs from the
"referral list" and asked Sachse to explain how the ap-
parent favoritism in job referrals was accomplished,
Sachse responded merely that "We've got ways to get
people on the jobs" and that the Union had employers
claim they had requested certain union-favored and dis-
patched individuals "by name," and reiterated, finally,
"If [you] vote[d] for 'Roe' [Schlitt], you'd have to go
.... Anybody that vote[s] for 'Roe' [Schlitt] would be
hurting themselves."
Shortly thereafter, around mid-March 1983, Union
Foreman and agent (and soon to become Union Execu-
tive Board Member) Smith-then, as well as previously
at the New Madrid jobsite, Allen's foreman-also asked
Allen whom she was going to vote for. She responded
that she had not made up her mind. Smith thereupon
criticized Schlitt, adding that "I hope 'Roe' [Schlitt] does
get around 100, 125 votes.... cause that's just that
many people I won't have to fool with. We don't want
any fence riders either. You're either for us or against
us."
On March 25, 1983, after completion of some assigned
work, when Allen asked Union Foreman and agent (soon
to become Union Executive Board Member) Smith what
to do next, without any prior notice or intimation what-
soever Smith told Allen, "You've just been laid off." He
added, "I didn't know there was going to be a
layoff.... I didn't have anything to do with your
layoff."6 Allen remarked that "I knew . . . it was just a
matter of time [because of] the way they had been har-
assing me and riding me and telling me all this stuff."
Allen thereupon immediately sought out Austin Compa-
ny Cape Girardeau Job Superintendent "Ron" Diehl,
who stated to her that he "didn't have a thing to do with
it.... Joe Smith had recommended [your] layoff,"
adding that Diehl had "no complaints against your
work." The Austin Company engineer, standing by, re-
minded Allen that "I've told you before ... the Union's
cutting your throat."
Since her described March 25, 1983 termination, Allen
has at no time been recalled or referred to any job by
Respondent Union, even though, according to Austin
Company Cape Girardeau Project Superintendent Peter
Holster, the laborers' work component there has risen
from 12-14 in March 1983 to 34 in October 1983. 7 At no
6 To be held on May 21, 1983, thus seemingly indicating that the
Union was in early March contemplating that Allen would still be in her
job at election time under appropriate circumstances, i.e., at any rate if
she supported incumbent Bollinger rather than Schlitt and otherwise kept
her "nose clean" as she had been warned.
^ Credited evidence establishes, as shown below, that this was clearly
untrue, since it was Smith who designated and selected Allen for layoff.
I When, about 10 days after the layoff of Allen, her Employer, The
Austin Company, called on Respondent Union to supply six laborers and
explicitly reminded the Union that Allen had not been discharged and
that it had "no objection to [her] being redispatched," the Union later,
through President Sachse, inquired of Company Project Manager Peter
Continued
881
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time prior to her termination had Allen's work perform-
ance been criticized.
There is no indication that laborer Riley, who was
hired on the job on March 3, 1983, long after Allen, and
whose name, it will be recalled, at Union President
Sachse's direction, replaced that of Allen in the Union's
"Political Fund" book as a contributor, was at any time
terminated, laid off, or furloughed from the job. (See
G.C. Exh. 3.)
The foregoing account of Allen's termination is based
largely on her testimony, which I credit because of my
conviction, based on my close observation of her testi-
monial demeanor, that it is true. Her sincerity shone
through her testimony, which is further corroborated by
that of other witnesses including officials of her Employ-
er, The Austin Company, who likewise impressed me ex-
tremely favorably based on its closely observed testimo-
nial demeanor-in marked contrast to most of the testi-
mony of Respondent's witnesses, chiefly its own interest-
ed officials. Thus, it is crystal clear and I find-noth-
withstanding Union Foreman, agent, and Executive
Board Member Smith's testimony to the contrary, which
I would in any event discredit, in this aspect, based on
my close testimonial demeanor observations of him as he
testified on this particular subject-that it was Union
Foreman and agent Smith, and not any official or agent
of Allen's Employer, The Austin Company, who select-
ed or designated Allen for termination or layoff. When
Respondent's Cape Girardeau Job Superintendent Ro-
land (Ron) Kent Diehl, as he credibly testified, decided
because of a temporary engineering or supply problem to
lay off two laborers for a few days, he so informed
Union Foreman and agent Smith, adding that Diehl
wished one of them to be Larry Gaines and for Smith to
designate the other. When Smith designated Allen, Diehl
demurred, not only because, as he testified, he had ob-
served and was satisfied with Allen's job performance,
but also because "she was the only woman," union agent
Smith nevertheless insisted that Allen be the other em-
ployee to be terminated and that Smith would "handle
all the trouble." Diehl later reluctantly and against his
own better judgment acceded to Smith's insistence that
Allen be terminated. As already stated, Diehl testified
Holster whether it was calling for Allen "by name." When Holster re-
minded Sachse that it was contrary to the Company's policy to call for
any laborer "by name" and that it had never done so (explicitly in that
way) but that he nevertheless again wished to point out to Sachse that
Allen (as well as the other laborer, Larry Gaines, laid off at the same
time) had not been discharged but merely temporarily laid off and that
the Company had no objection to her (and his) return to her (and his)
job, Respondent Union nevertheless did not return, refer, or redispatch
Allen to her job with Austin Company, it being Respondent Union's con-
tention that it was precluded from doing so because of an internal hiring
hall "work rule" of the Union to the effect that an employee who contin-
ues in layoff status for 5 days drops to the bottom of the Union's work
referral list and will not be referred unless the employer explicitly and
specifically asks for him or her "by name," and it being the Union's fur-
ther contention that an employer's reference to given employees accom-
panied by a statement that it had "no objection" to their return to their
jobs after their very recent temporary layoff was not, in the Union's esti-
mation, a request for them "by name." The alleged hiring hall "work
rule" in question was not produced at the instant trial, although Respond-
ent had and was afforded ample opportunity to do so. Furthermore, it
was in no way shown that The Austin Company was a party to or
agreed to or acquiesced in any such "rule" or practice.
here that he had observed and was satisfied with the
work performance of Allen, and he further testified that
so far as Diehl was concerned he would not have laid off
or terminated Allen. I credit Diehl's testimony.
Thus, it is entirely clear and I find, rejecting Respond-
ent Union's "proof" to the contrary, that it was Re-
spondent Union and not Allen's Employer, The Austin
Company, which was responsible for and brought about
Allen's layoff or termination on March 25, 1983.8
Based on my close comparative testimonial demeanor
observations, I unequivocally reject the testimony put
forward by Respondent Union to the effect or suggestion
that Allen was unfit to perform, incapable of performing,
or inefficiently or unsatisfactorily performed, her job and
work. To begin with, the Union imposed no physical
qualifications or standards for admission or job referral.
It was not shown, and there is no reason to suppose, that
some men on the job possessed more physical capability
than Austin to do the tasks assigned to her. I reject the
carping and in many cases trifling, tongue-in-cheek, criti-
cisms of Austin's competency allegedly recollected and
dredged up at the trial by Respondent's officials-these
could either be equally applicable to male laborers,9 or
were grossly exaggerated or overblown, or were so
minor and inconsequential in any event' ° as not worthy
of mention. Insofar as laboring tasks, if any, requiring
"extraordinary" strength or height or other bodily con-
figuration were or may have been concerned, since there
was no showing that they were not also beyond the ca-
pability of "ordinary" male laborers, no reason has been
shown why such tasks, if there were any, could not be
or were not in fact assigned to laborers (male or female)
possessing the "extraordinary" capability required. It is
additionally to be observed that the Respondent's own
"National Agreement" specifies that "The Employer
shall be the sole judge of the competency and qualifica-
tions of individuals referred by the Union" (R. Exh. 1, p.
3, art. V, sec. 3), and that the testimony of the Employ-
er's Job Superintendent Diehl, as shown above, persua-
sively establishes that Respondent was thoroughly satis-
fied with Allen's work competency, qualifications, and
performance; that he had never received any complaint
or adverse report concerning her work performance; and
that, in addition to what has already been quoted above,
8 I reject the testimony of Respondent Union's International represent-
ative Edward Smith, its business agent Bollinger, and its president Sachse
concerning alleged admissions to the contrary by Austin Company Offi-
cials Diehl, Peter Holster, and Neil D. McArthur, denied by the latter
under oath at the instant trial, since, based on testimonial demeanor as
closely observed, I much prefer the testimony of Holster, McArthur, and
Diehl to that of Edward Smith, Bollinger, and Sachse.
9 Such as, in one case, involving the starting of a Diesel engine hard
for anybody to start in cold weather, since it lacked a warmup device-as
credibly attested to by the General Counsel witness Schlitt, who readily
admitted that he as well as many other male employees had difficulty
with it. Schlitt also testified credibly that he has been a foreman with
various laborers including Allen under him, that he has observed Allen's
work performance, that he had "no [ne] [problems] whatsoever" with
her, that she had no observable physical or other infirmity or difficulty,
and that she did every kind of work the male laborers did. I credit
Schlitt's testimony.
iO Such, for example, as occasionally pulling or dragging lumber
(without damaging it) "instead of' lifting and carrying it without touch-
ing the ground.
882
LABORERS LOCAL 282 (AUSTIN CO.)
when Diehl was asked at the trial whether Allen's "job
performance was in question . . . as far as the Company
was concerned," he responded with an emphatic and re-
sounding, "No, sir." Finally, it is to be noted that Union
Foreman, agent, and Executive Board Member Smith,
who brought about Allen's termination, himself conced-
ed at the trial that "[T]here was nothing wrong with her
[Allen's] work" (Tr. vol. II, p. 166).
Under these circumstances, I further find that Allen
was not laid off or terminated on March 25, 1983, based
on or for any reason related to her work performance,
but only because Respondent Union through its agent Joe
W. Smith designated her for layoff or termination for a
reason or reasons unrelated to her work performance and
wholly unrelated to any proper, lawful, fair, noninvi-
dious, or nondiscriminatory reason.
B. Rationale and Resolution
Respondent Union is here alleged to have violated
Section 8(b)(1)(A) and (2) of the Act. A union violates
Section 8(b)(1)(A) if it "restrain[s] or coerce[s] .... em-
ployees" in the exercise of the rights guaranteed in Sec-
tion 7 of the Act." A union violates Section 8(b)(2) if it
"cause[s] or attempt[s] to cause an employer to discrimi-
nate against an employee in violation of subsection
[8](a)(3)."12
Here Respondent Union violated both. It violated Sec-
tion 8(b)(1)(A) when, through its actions as described
and found in bringing about the termination of Allen, it
restrained and coerced her and her fellow employees in
the exercise of her and their rights to oppose the incum-
bent union hierarchy and to support a rival candidate
(Schlitt), as well as in the exercise of her and their right
not to contribute to a "political fund" ("OID") set up by
the Union. It is beyond contention that Allen and her
fellow employees were thereby restrained and coerced
by Respondent Union since for those reasons-no other
reason having been established-it brought about Allen's
termination, thus making its handiwork directly effective
over her, as well as making the restrainful and coercive
message of that termination dramatically clear to her
fellow employees. The Union also violated Section
8(b)(2)13 by causing Allen's Employer, The Austin Com-
pany, to discriminate against her by laying her off or ter-
minating her so as to encourage or discourage her (and
other employees') membership in the Union through
demonstrating the Union's "clout" in bringing about the
termination of Allen for reasons wholly unrelated to her
t Employees' Sec. 7 rights include "the right to self-organization, to
. join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection" as well as the right to refrain from any or all such activities."
12 Sec. 8(aX3) forbids employers to "discriminat[e] in regard to hire or
tenure of employment to encourage or discourage membership in any
labor organization."
13 But not, as alleged in par. "5C" of the complaint, as amended, the
portion of Sec. 8(b)(2) pertaining to "discrimination against an employee
with respect to whom membership in [the Union] has been denied or ter-
minated, as alleged in that complaint paragraph, since there is no show-
ing that Allen has at any time been denied continued membership in Re-
spondent Union, of which, she testified, she remains a member.
work performance but related only to her exercise of her
rights under Section 7 of the Act.
The General Counsel having established a clear prima
facie case of violation of the Act on the part of Respond-
ent Union, it devolved on Respondent Union to establish
through preponderating credible evidence, under the
principle promulgated by the Supreme Court in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983),
which I believe and hold to be controlling here as it
would be in a case of an alleged 8(a)(3) violation, that it
did not bring about the termination of Allen for a pro-
scribed reason. Thus it failed to do so. Since, for reasons
explicated above, I have rejected Respondent Union's
claims that it was not responsible for Allen's termination,
and that her termination was due to her inefficient work
performance, no reason remains for that termination
other than the unlawful reasons established prima facie
by the General Counsel.
It is well established that a union which, as here, re-
strains or coerces employees in the exercise of their Sec-
tion 7 rights violates Section 8(b)(l)(A) of the Act. See,
e.g., Teamsters Local 357 v. NLRB, 365 U.S. 667, 674-
675 (1961); Carpenters (Daniel Construction), 227 NLRB
72, 81 (1976); International Packings Corp., 221 NLRB
479, 484 (1975), enfd. 542 F.2d 1163, 94 LRRM 2125 (Ist
Cir. 1976); Carpenters Local 22 (Graziano Construction),
195 NLRB 1 (1972); Engineers Local 4 (Carlson Corp).,
189 NLRB 366 (1971), enfd. 456 F.2d 242 (Ist Cir. 1972);
Carpenters (Harold E. Picou), 182 NLRB 49 (1970), enfd.,
444 F.2d 254 (5th Cir. 1971); Teamsters Local 923,
(Yellow Cab), 172 NLRB 2137 (1968); Hod Carriers Local
300 (Desert Pipeline), 145 NLRB 1674, 1678 (1964).
It is also well established that a union which, also as
here, causes the discharge of an employee for discrimina-
tory and invidious reasons to demonstrate its "clout,"
and thereby to steer employees into (or away from)
union membership, violates Section 8(b)(2) of the Act.
See, e.g., Food & Commercial Workers Local 454 (Central
Soya of Athens), 245 NLRB 1295 (1979), enfd. 108
LRRM 2280 (1980); Carpenters (Daniel Construction), 227
NLRB 72 (1976); Teamsters Local 860 (Admiral Corp.),
195 NLRB 68 (1972); Iron Workers Local 350 (Atlantic
Building Assn.), 164 NLRB 644 (1977); Teamsters Local 5
(Ryder Truck Lines), 161 NLRB 493 (1966), enfd. 389
F.2d 757 (5th Cir. 1968); Carpenters Local 742 (J. L Sim-
mons Co.), 157 NLRB 451 (1966), enfd. 377 F.2d 929
(D.C. Cir. 1967), cert. denied 389 U.S. 843 (1967);
Plumbers Local 100 (Beard Plumbing), 128 NLRB 398
(1960), enfd. 291 F.2d 927 (5th Cir. 1961).
It is accordingly determined that, through its described
actions as found in section III, A, supra, in bringing
about the layoff and termination of Lula Allen from her
job with her Employer, The Austin Company, at its
Cape Girardeau, Missouri jobsite on March 25, 1983, Re-
spondent Union violated Section 8(b)(1)(A) and (2) of
the Act.
A somewhat more difficult question is whether Re-
spondent Union further violated the same portions of the
Act through its failure and refusal since the date (March
25, 1983) it brought about Allen's termination, to refer
her back to that or any other job because of its so-called,
883
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged 5-day rule referred to above.14 As indicated
there,' 5 the facts concerning that so-called rule, what it
is if it is, whether it applies here, whether-in view of
the testimony of Respondent's own witness Burton (Tr.
vol. II, p. 125)-the "rule" was honored in the breach as
well as observance, and whether Allen's employer's, The
Austin Company's indication of its willingness to return
Allen to her job was sufficient to trigger an obligation on
Respondent Union's part to refer her back, are somewhat
murky. In view of the determination here that Allen's
March 25, 1983 layoff was caused by Respondent Union,
it is unnecessary to grapple with the question of whether
the Union's conceded failure and refusal to return her to
her job or otherwise refer her for employment comprised
further violation of the Act, since the remedy would be
no different whether Respondent was right or wrong in
its purported application of its alleged "5-day rule." It
being entirely clear that Respondent's unlawful selection
and designation of Allen for termination on March 25,
1983, formed the predicate for its professed inability to
refer her back to her job under its so-called 5-day rule-
even though her Employer explicitly indicated willing-
ness to have her back, thereby inviting the Union to do
so-it is Respondent Union, and not Allen, who should
shoulder responsibility for the consequences of its illegal
actions in bringing about her termination, for if that un-
lawful termination had not occurred its alleged "5-day
rule" would not have been called into play at all. Judge
Learned Hand's reminder that "it rest[s] upon the tort-
feasor to disentangle the consequences for which it [is]
chargeable" (NLRB v. Remington Rand, 94 F.2d 862 at
872 [2d Cir. 1938]) is singularly apt here. Under the cir-
cumstances shown, whether or not Respondent Union's
alleged 5-day rule is applicable here to Allen, it will in
neither event affect the remedy and the extent of Re-
spondent Union's backpay liability to her, and I so deter-
mine.
On these findings and on the entire record, I state the
following
CONCLUSIONS OF LAW
A. Jurisdiction is properly asserted here.
B. Through its actions, described and found in section
III, supra, Respondent Union has violated and continues
to violate Section 8(b)(l)(A) and (2) of the Act.
C. Said violations and each of them have affected, are
affecting, and, unless permanently restrained and en-
joined, will continue to affect commerce within the
meaning of Section 2(6) and (7) of the Act. 16
14 Supra at fn. 7.
15 Id.
'8 Respondent's proposed findings and conclusions are allowed only to
the extent consistent with the findings and conclusions made in this deci-
sion; and its proposed Order is rejected.
REMEDY
Respondent Union should be required to cease and
desist from violating the Act in the respects found, as
well as in like or related respects. Respondent should
also be required to take the affirmative measures required
in cases of this nature; namely, formal written withdraw-
al of any objection to the reemployment of Allen,
prompt referral of Allen to her previous job (or, if it no
longer exists, equivalent employment), and making her
whole for all sums and benefits lost by her in conse-
quence of her unlawful ouster from her job on and since
March 25, 1983, plus interest, computed as explicated in
F W. Woolworth Co., 90 NLRB 289 (1950), Isis Plumbing
Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231
NLRB 651 (1977). The make-whole remedy should en-
compass not only backpay until Allen's restoration to
equivalent employment (see Sheet Metal Workers Local
355 (Zinsco Electrical), 254 NLRB 773 (1981)), but also
restoration of seniority and all benefits and entitlements
lost by reason of the unlawful ouster, including lost holi-
day and vacation benefits and overtime if any, and also
recompense for any expenses incurred by reason of any
cancellation of health or other insurance policies or cov-
erages in consequence of her ouster. In brief, Allen
should in all respects be restored to the position and
status she would have occupied if she had not been un-
lawfully ousted from her job. She should also be made
whole by Respondent for any added income tax obliga-
tion on her part resulting from payment to her of any
sums due hereunder in a lump sum, rather than as and
when originally due and payable, so as to increase the
amount of her tax liability through a change in her
income tax bracket or otherwise in consequence of such
delayed lump sum payment. 17 Respondent should further
be required to preserve and open its books and records
to the Board's agents for backpay and compliance deter-
mination purposes. Finally, Respondent should be re-
quired to post the usual informational notice to members.
[Recommended Order omitted from publication.]
17 Cf. Sears v. Atchison, Topeka & Santa Fe R.R.Co., 31 EPD para. 33,
388 (U.S.D.C. Kans. 1983). Board and courts have repeatedly pointed out
that the purpose of backpay is to make the unlawfully treated employee
whole. Payment to such employee of backpay in a delayed large sum
could be substantially detrimental to the innocent employee through forc-
ing the employee into a higher income tax bracket, thereby reducing the
employee's net income he or she would have derived if he or she had
been paid on time. Since that result would be a direct consequence of the
nonpayment of moneys due on time, when they would and should have
been paid but for Respondent's unlawful actions in preventing that, it
seems utterly clear that the Respondent who brought that about should
indemnify the innocent employee for any such loss. The foregoing is the
rationale for including the indicated requirement in the remedial order
here.
884