Lewis Mittman, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1979

245 N.L.R.B. 450 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lewis Mittman, Inc. and Thomas Phillipo. Case 29-
CA-6344
September 27, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On June 26, 1979, Administrative Law Judge Ste-
phen Gross issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Lewis
Mittman, Inc., New York, New York its officers,
agents, successors, and assigns, shall take the action
set forth in the said rcommended Order, as so modi-
fied:
1. Substitute the following for paragraph I:
"1. Cease and desist from:
"(a) Discriminating in wages or other forms of
compensation by reason of an employee's member-
ship in, lack of membership in, the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local 814, or any other
labor organization.
"(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), cnfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 Although the issue is not before the Board on exception. Member
Penello, noting his dissent in General American Transportation Corporation,
228 NLRB 808 (1977), would not rely on that case as authority for rejecting
Respondent's argument that the unfair labor practice allegations involved
herein should be deferred to arbitration.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOIc('E TO EMPI.()YEES
POSTED BY ORDER OF T1Hl
NATIONAI. LABOR REI.AI()ONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the Act and has ordered us to
post this notice. We intend to abide by the following:
WE WI.L NOT discriminate in wages between
employees who are union members and employ-
ees who are not union members.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed by Section 7
of the Act.
WE WILI. pay to Thomas Phillipo, the em-
ployee involved, the difference between what we
would have paid him if he had been a union
member and the lesser amount we actually paid
him, plus interest.
LEWIS MITTMAN IN(C.
DECISION
STATEMENT OF THE CASE
STEPHEN GROSS. Administrative Law Judge: On April
17, 1978, Thomas Phillipo filed a charge claiming that Lew-
is Mittman, Inc.. (the Company) discharged Phillipo be-
cause of Phillipo's membership in and support for Local
814, International Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America (Local 814 or the
Union). The Regional Director of Region 29 issued a com-
plaint in the matter on May 31. 1978. The Company filed a
timely answer and the case was heard in Brooklyn. New
York, on March 1, 1979.
As spelled out in the complaint, at issue is whether the
Company violated Section 8(a)(3) and (1) of the National
Labo, Relations Act by firing Phillipo, and thereafter failed
to reinstate him, because Phillipo had joined Local 814. A
second issue that arose in the course of the hearing is
whether the Company violated Section 8(a)(3) and (1) of
the Act by paying Phillipo wages below those specified in
the applicable collective-bargaining agreement because
Phillipo was not a union member.
All parties were given full opportunity to participate. to
introduce evidence, to examine and cross-examine wit-
nesses, to argue orally, and to submit briefs (although only
the General Counsel chose to submit a brief).
Upon the entire record. including my observation of the
witnesses and their demeanor, I make the following:
245 NLRB No. 61
450
LEWIS MITTMAN, INC.
FINDINGS OF FACT
I. THE COMPANY'S BUSINESS AND LOCAL 814's LABOR
ORGANIZATION STATUS
The Company is engaged in the manufacture and sale of
furniture. Its office, plant, and distribution facilities are lo-
cated in New York City. The complaint alleges, the Com-
pany admits, and I find and conclude that the Company is
and at all material times has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The complaint alleges, the Company admits, and I find
and conclude that Local 814 is a labor organization within
the meaning of Section 2(5) of the Act.
II. THEl AI.I.EGED UNFAIR LABOR PRA(TI( I-S
A. Phillipo's Discharge
1. Evidence of discharge because of Phillipo's union
membership
Thomas Phillipo began working for the Company as a
porter on March 6. 1978. Phillipo subsequently was
switched to the job of helper on the Company's delivery
truck. Phillipo was not then a union member. (The record is
not clear about the exact date Phillipo began working as a
helper.)
The Company's collective-bargaining agreement with
Local 814 for the period in question covered all of the Com-
pany's truckdrivers and helpers. The agreement contains no
exceptions. The agreement does contain a union-security
agreement that states that all of the Company's truckdrivers
and helpers "shall become and remain members in good
standing of the Union as a condition of employment on and
after the 31st day following . . . the first day of employ-
ment." It also provides that helpers were to receive $212 per
week. Although nothing in the agreement lent any support
to such an interpretation, Lewis Mittman, president of the
Company, read the agreement as giving him the right to
order nonunion employees to refrain from joining the
Union until they had worked for the Company 30 days, and
to pay nonunion employees less than the wage rates speci-
fied in the collective-bargaining agreement. Mittmann
made it clear, in fact, that the Company would ordinarily
discharge a nonunion employee who sought to join the
Union during the employee's first 30 days with the Com-
pany.
That policy of the Company constitutes half of the Gen-
eral Counsel's case. The other half is the chronological rela-
tionship between Phillipo's joining the Union and his dis-
charge. Phillipo joined Local 814 on the afternoon of
Thursday, April 13. He was fired on April 14.
Thus, at the time in question: (I) Phillipo had held his
job as a helper for less than 30 days; (2) the Company had
a policy of firing nonunion employees if they joined a union
within 30 days with the Company; and (3) Phillipo was
discharged the day after he joined the Union. As the Gen-
eral Counsel argues, there is no doubt that this set of cir-
cumstances does amount to prima facie evidence of dis-
crimination against an employee based on the employee's
exercise of his protected rights.
2. The Company's defense
(a) The Conlpatny's alleged lack of knowledge of Phillipo's
union membership.
Both Phillipo and a trustee of Local 814, Joseph Danetra.
testified in the course of the General Counsel's direct case
that Phillipo joined Local 814 sometime during the after-
noon of April 13. And Danetra said that he called Mittman
at Mittman's office that same day to tell him that Phillipo
had joined Local 814 and to demand that Phillipo be paid
at the proper wage rate.
Mittman agreed that he learned of Phillipo's membership
by means of a call to his office from Danetra. But Mittman
said that he got the call on the same day Phillipo was fired,
and after Phillipo had been told he had been fired. Mittman
also pointed out that since the Company's records showed
that Phillipo had worked a full day' (with perhaps some
overtime) on April 13, Phillipo must have joined the Union
after 5 p.m., too late for Danetra to be able to reach Mitt-
man at Mittman's office.
Danetra and Phillipo then came back on the stand to
suggest that the matter was handled during Phillipo's lunch
break. While I found that testimony questionable, it turned
out that Mittman had given the General Counsel an affida-
vit saying that Danetra had called Mittman on April 13.
Mittman argued that he had been duped by the General
Counsel's representative into making a misstatement. But
Mittman does not seem the type of person who would be
easily beguiled (even assuming that the General Counsel's
representative would seek to do so). All in all, what most
likely happened is that Phillipo did join the Union on April
13, early' enough for Danetra to call Mittman on the same
day. Perhaps Phillipo went to Local 814's office at lunch-
time. More likely he took some unreported time off from
work and Danetra probably did call Mittman on April 13.
In sum, a preponderance of the evidence shows that the
Company did know about Phillipo's union membership the
day before Phillipo's last day on the job.
(b) Phillipo's Work
As the testimony of Joseph Danetra, the union official,
made clear Mittman is an emotional kind of person who
expects his employees to meet standards that are extremely
high--perhaps unreasonably high. His company manufac-
tures and sells expensive, custom-made, easily-damaged
furniture. Phillipo clearly did not belong in that kind of
setting.
Not long after he went to work for the Company. Phillipo
"dropped" or "bumped" a teak console. The resulting dam-
age required costly repair.
Not long after that incident, Phillipo spilled a stain on a
chair being readied for delivery.
Obviously Phillipo's major function, or at least a major
function, was to assist the driver of the Company's delivery
truck in carrying furniture into customer's homes: See G.C.
Exh. 4, p. I at "First" (b). Yet about a wek before his
451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge. Phillipo refused to help the driver of the Compa-
ny's truck carry an armoire up some stairs to a customer's
home. As a result the driver had to hire someone "off the
street" to do the very work Phillipo had been employed to
do, at a cost of$10 to $15. That was not only a problem in
its own right, it led the Company's driver to complain about
having to work with an inexperienced helper.
Finally, on or about April I Phillipo misplaced a piece
of furniture in the course of delivering it to the Company's
showroom (Mittman testified at first that the event occurred
on April 8 or 9, 1978. But these are weekend dates, and
later it became clear that the date was probably April I1.
That seemed to serve as a last straw, leading Mittman to
run after the Company's truck as it was pulling away from
the Company's facilities and to tell Phillipo through the
open door of the moving truck that Phillipo was "through
at the end of the week." Phillipo agreed that Mittman said
something to him through the open door of a moving truck
but testified that he did not remember misplacing a chair
and denied that Mittman told him that he was to be fired.
According to Phillipo, in fact, Mittman did not even sound
angry. But Mittman's account was more credible than Phil-
lipo's.
(c) The telephone conversation between Danetra and
Mirtman
As discussed above, on Thursday, April 12, the day be-
fore Phillipo's discharge, Danetra, the Union official, called
Mittman to tell Mittman that Phillipo had joined the Union
and that Phillipo was being underpaid. Mittman responded
by telling Danetra that the Company had previously de-
cided that Phillipo was to be discharged.
That response testified to by both Mittman and Danetra
is itself persuasive evidence that the Company decided to
fire Phillipo before it learned of Phillipo's union member-
ship.
First, it jibes with Mittman's testimony about his having
decided on April II (a Tuesday) to fire Phillipo at the end
of that week (Friday, April 14).
Second, even assuming that Mittman had a sophisticated
understanding of his and Phillipo's respective rights under
the Act, and that Mittman was prepared to lie to Danetra
to protect the Company, it would have taken remarkably
quick thinking to respond immediately by saying that the
Company had already decided to fire Phillipo.
Third, it is clear that Mittman really believed that he had
the right to order employees to refrain from joining a union
until they had been in the unit for 30 days. Given that
belief, there was no reason for Mittman to lie to Danetra
about Mittman having already made up his mind to fire
Phillipo.
3. Phillipo's discharge-conclusion
Based on the record and my weighing of the witnesses'
credibility, it appears that the Company did learn late in
the day on Thursday, April 13, 1978, that Phillipo had
joined Local 814. But by that time the Company had al-
ready concluded that Phillipo was not capable of handling
the job the way the Company wanted it done and that Phil-
lipo was to be discharged on April 14.
It is clear that had the Company not already concluded
to fire Phillipo as of April 14. the Company would have
fired Phillipo tir joining the Union prior to his 30 days in
the unit. And that would have been a violation of the Act:
Flock Bros., In.. 239 NLRB 939 (1978): Schluderherg-
Kurdle Co., 235 NLRB 1412 (1978). But what would have
happened is not what did in fact happen. Phillipo was fired
for reasons that related solely to the performance of his job
and accordingly the Company did not violate the Act in
discharging Phillipo.
B. Payment of Less than the C(ontractual Wage Rate
The collective-bargaining agreement between the Com-
pany and Local 814 provided that "helpers" would be paid
a weekly wage of $212.48, about $5.35 per hour, during the
period in which Phillipo was employed by the Company.
As touched on above. the agreement covers all of the Com-
pany's helpers, with no distinction between union members
and nonmembers and no exclusion for probationary em-
ployees. The Company concedes that Phillipo was a helper
for purposes of the agreement and that had Phillipo been a
member of Local 814 at the time the Company hired him,
the Company would have paid Phillipo the full $212.48
wage. Nonetheless, the Company paid Phillipo at the rate
of $3.25 per hour ($130 per week). or about 40 percent less
than the rate specified in the applicable collective-bargain-
ing agreement. The Company's basis for Phillipo's lower
pay scale was Mittman's view that the agreement applied
only to members of the Union and that Phillipo's limited
experience and abilities did not warrant a wage of more
than $3.25 per hour.
4. Absence of issue in complaint
The complaint makes no reference at all to the Company
paying wages to Phillipo at a rate that differed from the
wages paid to union members. Thus. there is a question of
whether the issue is a proper one to consider in this pro-
ceeding. I think it is.
First, the facts are undisputed. Mittman himself testified
that Phillipo was paid less than the rate specified in the
collective-bargaining agreement, and that, in turn, was be-
cause he was not a union member.
Second, the General Counsel's representative touched on
the wage disparity in his opening statement, specifically dis-
cussed the issue in his closing statement, and again covered
the matter in his brief. The Company at no time objected to
any of those discussions of the issue and at no time claimed
surprise or suggested that there might be other facts that
would rebut General Counsel's claims.
5. Conclusion wage differential
In the situation at hand there are two problems inherent
in the Company paying higher wages to union members
than nonunion members, each cutting in a different direc-
tion. The first is that it is a form of discimination that tends
to encourage union membership. The second is that it tends
to cause the Company to prefer hiring nonunion members
452
LEWIS MITTMAN. INC.
over union members. Obviously the Company did not pay
Phillipo sub-par wages in order to encourage union mem-
bership. And there is no direct proof that the Company's
paying nonunion employees less than union employees did
in fact cause the Company to discriminate in whom it hired.
Nonetheless, the payment of wages that differ depending on
whether or not an employee is a union member is a form of
discrimination so inherently likely to encourage or discour-
age membership in a labor organization that the existence
of the discrimination alone is enough to constitute a viola-
tion of the Act. Gayvnor News Company, v. N.L.R.B.. 347
U.S. 17, 45-47 (1954).
1II. THE COMPANY'S CI.AIM IHAT BOARD A(IION IS
INAPPROPRIATE
At the hearing the Company argued that Phillipo's Local
814 should be required to exhaust the grievance and arbi-
tration procedures provided in the collective-bargaining
agreement, that they had not done so and that Board action
was not appropriate given the procedures provided by the
agreement. But the Board does not defer to grievance ma-
chinery cases involving discharges alleged to be in violation
of Section 8(a)(3) and (1) of the Act. General American
Transportation Corp., 228 NLRB 808 (1977).
THE REMEDY
The recommended Order will require the Company to
cease and desist from discriminating between union and
nonunion employees in wages or other forms of compensa-
tion, to make Phillipo whole for the loss of earnings he
suffered by reason of the discrimination against him, and to
post a notice advising of these requirements.
In respect to the amount Phillipo is to receive from the
Company, the Company is to pay him a sum of money
equal to what he would have earned during his employ by
the Company as a helper had he been paid at the rate speci-
fied in the collective-bargaining agreement between the
Company and Local 814,' less the amounts the Company
did pay him, with interest computed as required by Florida
Steel Corporation, 231 NLRB 651 (1977).2
CONCLUSIONS OF LAW
1. The Company violated Section 8(a)(3) and (I) of the
Act by paying wages to Thomas Phillipo at a rate lower
I Phillipo and the Company appear to disagree about the date on which
Philhpo began working as a "helper" within the meaning of the applicable
collective-bargaining agreement. Since the question was not fully litigated, it
will be left for resolution in the compliance stage.
I In a supplemental brief, the General Counsel urges that I depart from
Florida Steel and impose a remedial interest rate of 9 percent. The Board has
the interest rate issue under consideration: see Hansen Cakes, Inc.. 242
NLRB 472 (1980). But for now. at least, Florida Steel remains law: Id.
than the Company would have paid to him had he been a
member of Local 814.
2. The Company has not otherwise engaged in any un-
fair labor practice alleged in the complaint.
Upon the foregoing findings of fact. conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER'
The Respondent, Lewis Mittman, Inc., Brooklyn, New
York, its officers, agents, successors, and assigns, shall:
I. Cease and desist from discriminating in wages or other
forms of compensation by reason of an employee's mem-
bership in, or lack of membership in, the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 814, or any other labor organiza-
tion.
2. Take the following affirmative action. which is
deemed necessary to effectuate the policies of the Act:
(a) Make Thomas Phillipo whole for the loss of earnings
he suffered as a result of Respondent's discrimination in
rates of pay between members of Local 814 and nonmem-
bers, in the manner set forth in the section of the attached
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports. and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its places of business copies of the attached
notice marked "Appendix."4 Copies of the notice on forms
provided by the Regional Director for Region 29, after
being signed by the Company's authorized representative,
shall be posted by the Company as soon as it receives them.
The notice shall be kept posted for 60 consecutive days,
including all places where notices to employees are custom-
arily posted. The Company shall take reasonable steps to
insure that the notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, of the steps
the Company has taken to comply with this Order.
3 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.
' In the event that this Order is enforced by a Judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
453