Painters District Council No. 4, Etc.

National Labor Relations Board - Board Decisions

Oct 28, 1964

149 N.L.R.B. 220 (N.L.R.B. 1964)

220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel further contends that "post -contract 8(a)(2) conduct of Re-
spondent Sinko renders the contract invalid." It is not clear whether he would
contend this to be so based upon the postcontract unfair labor practices which I
have found . Since said unfair labor practices could not have affected Local 18's
majority status at the time the contract was executed and afford no basis for
concluding that, as a result thereof, Local 18 should not have been permitted to
continue as the bargaining representative of Respondent 's employees , I find no
merit in the contention that the contract be considered invalid.
Upon the basis of the foregoing finding of fact and upon the entire record in
the case, I make the following-
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act
2. Local 18 and District 50 are labor organizations within the meaning of the
Act.
3. General Counsel has failed to sustain the burden of proof of the allegation
that Local 18 did not represent an uncoerced majority of Respondent's production
and maintenance employees at the time Respondent and Local 18 entered into their
collective-bargaining agi cement of August 30, 1961.
4. General Counsel has failed to sustain the burden of proof with respect to all
allegations of unfair labor practices in the complaint , except as noted in the next
following paragraph.
5. By requiring employees Barbara Brown, B. C. Kemp, Estelle Roberson, and
Juanita Kirsch , as a condition of their employment , to become members of Local 18
prior to the date such membership was required by the terms of the aforesaid col-
lective bargaining agreement , Respondent discriminated against said employees in
violation of Section 8 (a) (3) and (1) of the Act and unlawfully assisted Local 18 in
violation of Section 8(a)(2) and (1) of the Act.
[Recommended Order omitted from publication.]
Painters District Council No. 4, Brotherhood of Painters, Deco-
rators & Paperhangers of America , AFL-CIO [The Colonial
Painting Company, Inc.] and John J. Pike. Case No. 3-CB-
704. October 28, 19(14
DECISION AND ORDER
On July 9, 1964, Trial Examiner Eugene E. Dixon issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
149 NLRB No. 24.
PAINTERS DISTRICT COUNCIL NO. 4, ETC. 221
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of theTrial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Recommended
Order of the Trial Examiner and orders that Respondent, Painters
District Council No. 4, I3rot llerhood of Painters, Decorators & Paper-
hangers of America, AFL-CIO, its officers, agents, and representa-
tives, shall take the action set, forth in the Trial Examiner's Recom-
mended Order.
I The section of the Trial 1,:vuniner's Decision entitled "The Remedy" is hereby amended
by deleting the words "as set forth abme '• from the third sentence of that section and
substituting therefor the following . " by payment to him of a sum of money equal to that
which he normally would have earned as wages from July 16, 1963 , to a date 5 days after
Respondent serves on The Colonial Painting Company, Inc., written notice that it has no
objection to the hiring of John J 1111:e, less his net earnings during said period."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, as amended (61. Stat. 136 ), herein called the Act, was heard before Trial
Examiner Eugene E. Dixon at Buffalo , New York, on December 16 and 17,
1963. The complaint , dated November 8, 1963, and amended at the hearing, was
based on charges filed August 29, 1963, and was issued by the Regional Director
for Region 3 (Buffalo, New York) on behalf of the General Counsel of the
National Labor Relations Board ( herein called the General Counsel and the
Board ). It alleged that Respondent had engaged in unfair labor practices pro-
scribed by Section 8 (b)(1)(A) and ( 2) of the Act. In substance the complaint
alleged that Respondent pursuant , to an exclusive job referral practice and ar-
rangement with the Colonial Painting Company , Inc., refused to approve , clear, or
refer John J . Pike for employment because of his nonmembership in Respondent
and caused and attempted to cause Colonial to refuse to hire Pike thus discriminat-
ing against him within the meaning of Section 8(a)(3) of the Act and thereby
violating Section 8(b) (1) (A) and (2) of the Act.
In its duly filed answer Respondent denied the commission of any unfair labor
practices.
Upon the entire record and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE EMPLOYER'S BUSINESS
The Colonial Painting Company , Inc., is a corporation duly organized under
and existing by virtue of the laws of the State of Maryland. At all times material
it has maintained its principal office and place of business in the City of Baltimore
and has been engaged in the performance of a subcontract at Buffalo, New York,
where it provided painting and related services for the north and south Grand
Island bridge. During the year preceding the issuance of the complaint the
Employer, in the course and conduct of its business operations , performed services
valued in excess of $300,000, $50,000 of which were performed in States other than
the State of Maryland . The Colonial Painting Company , Inc., at all times mate-
rial herein has been an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It. THE LABOR ORGANIZATION
Painters Distiict Council No. 4, Brotheihood of Painters , Decorators & Paper-
hangeis of Amci ica, AFL-CIO, at all times material herein has been a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The exclusive hiring arrangement
Before starting the Grand Island job, Colonial's Job Superintendent Stokes and
its President Biodsky "checked " with Respondent 's Business Manager James Wol-
ford to see if the latter could supply Colonial with "local men to do the job."
Wolford agreed to do so. While Stokes testified that he did not think there was
any mention at this time about the Union being "the exclusive source for getting
men on this job," he also testified that although Colonial did not have a contract
with Respondent, it was "a union contractor " and thus abided by the Union's
rules. Accoidingly, in this meeting with Wolford they discussed union matters
including the Union's welfare and pension funds. Stokes also testified that the
reason he preferred to get his men through the union hall was so that he "would
not be plagued with people coming on the job directly seeking work."
According to Stokes' further testimony, when he needed men he was supposed to
make his request through the job steward or directly to Wolford and the men
would be supplied . When asked (on direct examination ) if "there was any more to
this agreement" Stokes answered , "No, other than as long as they was cleared
through the hall. Of course , that I had nothing to do with . As long as I asked
for men , they came on the job." Stokes further testified in substance that it was
agreed between him and Wolford that Stokes would not hire anyone who had not
first obtained prior clearance from the Union.'
In his testimony Wolford denied ever giving "such a document as a slip signed
by [him] ... to an employee for work out there." Thereafter he was immediately
confronted with a refeiral slip to Colonial that he had given to one Richard Jordan
which he described as "nothing but something introducing a painter to a certain
job, which in some instance " he gives to an employer . Wolford also denied giving
a referral slip to Paul Wilson for the Colonial job. I credit Wilson 's contrary
testimony.
Respondent attempts to avoid any finding that there was an exclusive hiring
arrangement between it and Colonial on the basis , among others , that there were
three hires (Rudy Haidy, Henry Cotton, and the Charging Party, John J. Pike)
which were made without the benefit of referral slip from the Union.2 As to this,
the evidence is as follows:
Stokes testified that Wolford had told him that Rudy Hardy would be the job
steward.3 On July 5 ( the day Hardy was to have reported ) 4 when Hardy did not
show up Stokes hired Henry Cotton who was there with two other applicants.
I In this connection the questions and answers in the record appear as follows:
Q (By Mr. CowaN ) Did he say anything to you during this conversation with re-
spect to your request for a slip that the men bring a slip out, did Mr. Wolford?
A. Well, we kind of agreed on that.
Q What do you mean by agreed'
A. Agreed that instead of having men , if they came out not knowing what day I
could put any men to work, would be best to go back to the hall and contact them
through the hell and if they came out , r would tell them to get a slip and that way
I would know they came through the hall.
There was no specific denial by Wolford of this testimony ; I credit Stokes here.
2 These 3 were the only ones out of some 25 litres by Colonial that the record shows were
hired without the benefit of a referral slip.
3 The practice was for the first painter hired to become the steward.
4 Hardy reported a day or two after this (without a referral slip) and acted as the job
steward until lie was discharged a few weeks later It Is clear and I find ( on the basis of
Wolford' s undenied statement to Stokes that Hardy was to be the steward on the job and
his comment to Stokes , as will appear , that the latter had made a commitment to Hardy)
that regardless of his appearance at the job without a referral slip from the Union, he was
in fact referred to the job by the Union
PAINTERS DISTRICT COUNCIL NO. 4, ETC. 223
Stokes needed one man at this time and since "there was no way [he] could contact
[Wolford] at that late hour in the day" he told the three he would take one of
them.
Thereafter, apparently on the same day that he hired Cotton, Wolford came out
to the job and wanted to know why Stokes had put Cotton to work, and asked if
Stokes knew that Cotton did not belong to the Union. Stokes explained that "the
man that was supposed to show up never showed" so needing a man he took
Cotton. Stokes further explained to Wolford that Cotton had told him he had
"worked on the other bridge" and Stokes "had taken it for granted the man had
a book" and thus was in good standing with the Union. Stokes further told
Wolford, "If you want to knock the man off go ahead." But Wolford "never told
[Stokes] he would knock the man off or have him taken off the job."
About this incident Cotton testified as follows: The day he was hired by Colo-
nial, Respondent's Assistant Business Manager Carroll and Wolford came out to the
job. Wolford was excited. He told Stokes that "when a contractor do come out
of town, the men that he hire on the job, he is supposed to hire them through the
Union and he also told Mr. Stokes that no one suppose to be hired on the job
unless they come in there and they suppose to have a slip when they do come out
there ...." Wolford also told Stokes that Cotton was not a book man.5 Carroll
told Stokes that "Wolford had had trouble like that before, contractors coming out
of town. They just hire men." -
In his direct testimony Wolford was asked if he had had a conversation "with
anybody while you were at the bridge site about Mr. Cotton." And. his answer
was, "No, sir, I didn't, with anybody, no sir." He was then asked if he had heard
Stokes testify about his having spoken to Stokes about Cotton and he answered,
"Yes, I spoke to, Mr. Stokes about it." He then asked what was said about Cotton
on this occasion and he answered as follows:
Oh, I- think I told Mr. Stokes at that time that when the Grand Island bridge
was being completed by the Long Island Painting Company6 that he had
made commitments to notify Mr. Hardy, Mr. Jenkins and those people to go
to work there and I reminded Mr Stokes these people were waiting for his
call and I think this is all I told him about he had told these people that they
were asking to go to work. That is all I told Mr. Stokes. That is all I said.
To the extent, if any, that there was any denial in Wolford's testimony of the
foregoing testimony of Stokes and Cotton I credit the latter two. On this basis
and on the record as a whole including the evidence as to Pike's relationship to
Respondent vis-a-vis his employment by Colonial ( as will appear) I find that there
was an exclusive hiring arrangement and agreement in effect between Colonial
and Respondent covering the Grand Island bridge job.
B. The causing of discrimination against Pike
Pike was a member of a Boston local of Respondent Union who had worked in
the Buffalo area in the past. As a result he and Wolford were acquainted, having
had controversies in-connection with Pike's conduct as a foreman on more than one
occasion. These occasions were marked by mutual animosity and involved physi-
cal encounters between the two7 or threats of them.
About his employment and subsequent termination by Colonial, Pike testified as
follows: In July of 1963 he finished a job in Massachusetts and came to Buffalo to
look for work. There, knowing that Colonial had the contract to paint the Grand
Island bridge, he went out on the job on July 16 and asked Stokes "if he was
going to do any hiring, and he said he would be very shortly." Stokes then
asked if he had had any experience at sand plasting or painting bridges. Pike
answered, "Yes, sir, for twenty years." About that time a Colonial foreman came
6It appears that Cotton was in the process of paying his initiation fee and had not yet
achieved the status of a full member but was working out of the Union as a permit man.
6 The painting contract for the Grand Island bridges had originally been awarded to a
contractor that had been unable to perform-it and it was then awarded to Colonial.
"According to Pike's testimony Wolford was the aggressor on these occasions and de-
liberately attacked him with little or no justification. Wolford's version would have one
believe that despite ample provocation his actions were largely in self-defense I am in-
clined to believe that regardless of the background circumstances, Pike's version is nearer
the truth In this connection it is interesting to note that Wolford had done some fighting
in the ring
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up who recognized Pike. He told Stokes , "Hell, I know Pike; we worked together
for a long time . He would be a good man on this job." With this information
and learning that Pike had belonged to the Union since 1954, Stokes told Pike to
"Go get a slip from Mr. Wolford and come to work Friday."
Pike then went to the union hall. There he showed Wolford his book and
asked if there was any work around . Wolford said theie was not. Pike then told
Wolford, "I have got a job if I can get a slip from you ." Wolford asked where
and Pike told him it was on the Grand Island bridge. Wolford said , "I have got
my own men waiting and furthermore , you don 't belong to this union . You would
have to clear in heie." Pike told Wolford that he would do so.
Pike then took the necessary steps to clear his book from his Massachusetts local
in Buffalo. By the end of July this had been accomplished. Thereupon Pike,
armed with his clearance , searched out Wolford and told him, "I am a member of
this union now. How about going to work ?" When Wolford answered that
theie was no work around Pike said, "Well , I know that I have still got a job with
Mr. Stokes if I can get permission from you to go out there ." But Wolford
refused to give him a ieferial slip.
On August 6 Pike went out to see Stokes and told him that he had cleared into
the Buffalo local but that Wolford would not give him "the slip necessary for
[him] to cone to work." Stokes told Pike that he would call Wolford and see if
he "could put [Pike] on" and that he would get in touch with Pike That night
Stokes called him and arranged to meet him the following night . They met as
scheduled and Stokes made several unsuccessful efforts to reach Wolford by tele-
phone . Finally Stokes told Pike that Wolford was coming out to the bridge the
following day and that he would talk to Wolford to see if he would "let [Pike] go
to work " He also told Pike to cone to work the following Friday . Pike report-
ed as told, starting to work for Colonial as foreman of the sandblasting crew.
Pike worked for Colonial in this position until August 28 . About 11 -30 that
morning as he started walking toward one of the sandblasting machines he saw
Stokes walking toward him on the bridge in the company of three union offi-
cials-Wolford , Carroll , and an International representative by the name of Gude-
kunst . Stokes and Gudekunst stopped a little way behind but Carroll and Wolford
walked up to hiin. Wolford said, "I see one of my boys got you, you SOB." 8
Pike said that he was not going to discuss anything there, that he had a job
to do and went over to Gudekunst and Stokes and said to Gudekunst , "For God
Sake, get this guy to leave me the hell alone." Some other comments were made
back and forth and Gudekunst said, "This is the same damn thing as we had on
Ohio Street , and I am getting sick of it ." Then Wolford accused Stokes of
having nothing but scabs working for him and the Company of not paying into
the welfare fund and said that he was going to bring Stokes , Pike , and Colonial
Painting Company "up on charges for discrimination ." Pike told Wolford, "You
can bring me up on any charges you want to, what ever time you want to when
I get off this hi idge , you tried everything to keep me off this job , but Stokes was
good enough to hire me and I am going to stay here."
At this point Wolford knocked him down. Pike got up and started to walk
away and Wolford attacked him again. This time they apparently both went
down with Wolford on top of him . He heard someone say, "For God sakes,
Jimmy, let go before you kill him ." Then Stokes, Gudekunst , and Carroll pulled
Wolford off him. At this point he walked over towards his compressor and he
heard Wolford holler to Stokes , "You get that SOB off this bridge or you will
never finish painting it." 9
As the union men started to walk away Stokes came over to Pike and said, "Pike,
1 am sorry , there is no hard feelings , I got to lay you off or we'll never finish this
bridge." When Stokes gave him his check he told Pike , "If I was you , I would
certainly have that man arrested ." Two days later Pike went back to the job and
told Stokes he needed a job badly and asked if he could give him a job doing
anything. Stokes told him that he did not dare give him a job at anything
because he was afraid of the charges that Wolford was going to bring against
the Company and him. The following Wednesday when he had received the
check for the balance of his pay from Stokes he again asked how his chances were
for getting back on the bridge but Stokes said, "No, I am sorry . I just don't dare
to put you back to work. I would certainly like to, but I don 't dare."
"Ile was referring to the fact that one of the painters by the name of Vargas had
punched hint in the mouth earlier that morning
g There was no mention of this comment in Pike's affidavit about this incident.
PAINTERS DISTRICT COUNCIL NO. 4, ETC. 225
About Pike's hiring and employment Stokes testified as follows: When Pike first
talked to him about a job he told Pike that he was not doing any hiring but was
waiting for final authorization to start the job and was doing temporary preparation
work. He did say, however, that he would be hiring men. He also testified that
when Pike applied for a job he indicated that he would take anything and did not
"particularly" want a foreman's position. When Stokes learned that Pike's union
book was out of Boston (after having asked Pike if he belonged to the Union) Stokes
"told him the best thing for him to do is straighten his book up " Stokes told Pike
that if he got cleared, as he hired men he "probably could take him on." Before he
left, Pike told Stokes where he could be contacted.
Several days before August 9 (the date that Pike started working for Colonial)
Stokes had made the decision to hire Pike. So he called Pike and asked to meet
him at the Tudor Arms Bar. There he told Pike (when he learned that Pike was
still without a job and that his book was all cleared) that he wanted him to go
to work the following day as the sandblasting foreman. He also told Pike that he
was going to contact the Union and inform Wolford of the hiring. The next day
Wolford came out to the job and when he was informed that Pike was being hired
as sandblasting foreman he did not object. He did say however, "Pike will only
cause you trouble. He will try to undermine the job and run your job for you "
As to what happened on August 28 between Wolford and Pike on the bridge,
Stokes' testimony (as it was elsewhere in the record) seemed purposefully vague
and obscured. Nevertheless it appears from Stokes' testimony that Wolford and
Pike were arguing "profusely." While claiming not to have seen "the actual
blows that took place," Stokes testified that he heard Pike say "get him off of me,"
so he naturally "grabbed hold of Wolford to keep him from going to Pike" and
held on to him trying "to calm him down " This all happened just before lunch.
During the lunch period Stokes told Pike that he had to do the job and could not
afford to have trouble on it from Pike, Wolford, or anyone else. Since Pike had
"complained about his elbow being sore" he told him, "I think the best thing you
could do is to go to the hospital and have your elbow X-rayed. If your elbow is
hurt, then you could get compensation." Pike said, "I got to work " Stokes said,
"I can't use a man that can't work." So he told Pike that "being his arm was hurt,
it was best for him and everybody concerned" that he leave the job Stokes also
denied in his testimony that he was asked or told in any way by Wolford or any
other of Respondent's officials to discharge Pike.
A few days later Stokes met Pike at the Tudor Arms Hotel to give him his
check. At that time Pike asked Stokes to let him come back to work "as a painter
or sandblaster, it didn't matter." Stokes further testified "of course I needed a
foreman at that time, whether Pike ever asked me to go back to work, I couldn't
truthfully say, but at that time after all the trouble had happened, I figured it
best at that time for Pike not to be on the job because there might be other men
that wanted to create trouble with him, so I thought it was best for the job and
everybody concerned, he could stay away." All this he told to Pike.
The relevant testimony by Wolford about the Pike matter was as follows:
About July 18 or 19 Pike came to the union hall, presented his union book, and said
he wanted to clear in. Pike indicated he was going to stay in Buffalo and
work Wolford told Pike he could not accept the book because it did not have a
clearance card. Pike asked what procedure was necessary to get the clearance
card and Wolford explained what the procedure was. There was no conversation
at that time about a slip for Pike for employment.
Wolford next saw Pike about July 26 and 27 after he got his book back from
Boston. Pike apparently proffered his clearance card and book to Wolford at that
time who said that he could not accept them because it was the duty of the financial
secretary to do so. Wolford told Pike there was a meeting scheduled for August
2 and that he should dispose of the matter at that time.
In the week preceding August 12 Wolford went to the Grand Island job where
he was informed by Stokes that Pike was being hired as a foreman. Wolford told
Stokes, "Mr Stokes, all I have to say is this: I want no problem on this job. I
don't want no,^Saturday work, straight time. I want everyone's welfare and hospi-
talization reported, and I want the prevailing wage rate paid in accordance with
State laws. I don't want no deviation from that whatsoever." Stokes assured him
that "All of this would be complied with and there would be no problem on the
job." In this connection Wolford had also mentioned to Stokes the previous prob-
lems he had had with Pike.
7 70-0 7 6-6 5-v o f 149-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As for the August 28 incident on the bridge, Wolford testified that he, Carroll,
and Gudekunst went out to the jobsite to investigate a complaint they had received
from Vargas. There they asked Stokes why, when the day before he had agreed
to take Vargas back,10 Pike had intercepted him and abused him and told him that
he would be removed from the job. Stokes said he did not know what hap-
pened. He said he did not see Vargas and that all he knew was that Pike had come
to him and claimed that Vargas had hit him for no reason at all.
Thereupon Wolford and Carroll went down to ask Pike about his version. Pike
told him that Vargas had hit him for no reason at all. Wolford said, "Mr. Pike,
I told you I wanted no trouble on this job, already you are on the job a period of
time and already you are involved in fisticuffs with Mr. Vargas Wolford
went on to say that he was going to present charges to the district council about
it Pike then called him "a rotten thief, and a shakedown artist" and said that the
welfare funds were "crooked ." Wolford attempted an explanation and Pike
lunged at him . All Wolford did was raise his arms to force Pike's hands off him,
Pike lunged at him again and Wolford pushed him and Pike fell to the concrete.
Several other comments passed between the two men. Wolford denied saying
at any time "Get that s -o-b off the bridge " or of saying , "You will never finish
the painting if you don't."
Henry Cotton testified as follows: He went to the union hall to pay his permit
fee several days after Pike was hired. Wolford asked how he was doing with his
new foreman . Cotton said he had no complaints . Wolford said, "He is an
S B I had trouble with him on another job, watch him ; you are liable to have
trouble with him out there." Wolford also told Cotton that he had "punched him
out on the Ohio Street Bridge" and added , "I will punch him out there before he
leaves. He is a little bastard ." 11 Wolford then told him and Vargas that when
they went to work the following day they were "to play sick" and walk off the
job. Wolford indicated that "nobody was going to work and he would tell his
steward about it and his steward would relate it to the rest of the men .
Wolford also indicated that Vargas was "the man here he was discriminating
against." The following day he drove to work with the steward, Ruby Hardy, and
three others. When they got to the job they all got out of the car and Hardy
walked over to the shanty where they changed clothes and went inside. Cotton
spoke to Stokes and walked over to his car. Hardy then came out of the shanty
and they all got into the car and drove back to town. When Cotton picked him
up to go to work that morning Hardy conveyed the message about playing sick
and not working.
In his testimony, Hardy admitted that they walked off the job about 8 o'clock on
the morning in question . However, he denied that there had been any discussion
with Wolford in connection with the work stoppage before it occurred . Elsewhere
he testified that he "mentioned the fact to Mr. Stokes on one occasion and on
several other occasions there was such things as working 5 or 10 minutes past
lunch or 5 or 10 minutes past quitting time, and . about stopping work at
the appointed time to stop work . ." As a result of this conversation with
Wolford, the latter told him "to go back to work and told the fellows that had left
[him] to go back to work."
In his testimony , Wolford denied ever discussing a work stoppage with Cot-
ton. He claimed that he first heard about it when Hardy and Cotton and the
others walked into the union hall one morning. He testified that he told Hardy
and the boys to go back to work at that time . He told them that he would try
to straighten out the problem himself by seeing Stokes.
Of the foregoing testimony I credit the essentials of Pike's for the following
reasons: I have already noted my skepticism of the witness Stokes. It was quite
clear from his testimony that he was an unwilling and reluctant witness for the
General Counsel . I was equally unimpressed with Wolford as a witness . His lack
of reliability and objectivity was shown , among other ways, by the several of the
self-contradictions he indulged in on the witness stand.
Accordingly , I believe and find that on July 16 Stokes (hearing of Pike's union
membership and past experience including warm recommendations of him ) offered
him immediate employment provided he got union clearance . I also believe and
10 It appears that prior to this Vargas' work had been unsatisfactory and that the in-
spector on the job had complained to Stokes "a good many times about the man's work."
As a result , Stokes had laid him off. Then Wolford interceded for Vargas and Stokes
agreed to take him back. It was on the day of his return that Vargas hit Pike.
11 These comments which I credit were undenied by Wolford.
PAINTERS DISTRICT COUNCIL NO. 4, ETC. 227
find in accordance with Pike's testimony that Pike thereupon asked Wolford for a
referral to Colonial and was refused with the explanation in substance that he did
not belong to the Union. This refusal in the face of the exclusive referral ar-
rangement and agreement between Colonial and Respondent caused Colonial to
discriminate against Pike within the meaning of Section 8(a)(3) of the Act thus
violating Section 8(b)(1)(A) and (2) of the Act. Lummus Company, 142
NLRB 517, 520.
I find also in agreement with the General Counsel that the only significance of
Pike's subsequent employment by Colonial between August 9 and 28 as a foreman
is its effect on the remedy herein by way of what his interim earnings were from
the time of the discrimination against him. I further find, in the light of the
original discrimination caused against Pike by Respondent and the record as a
whole, that the refusal to rehire Pike after his discharge was the direct result of
Respondent's conduct regarding Pike including the physical attack against Pike
by Wolford and the walkout described herein 12 This finding I make without
determining whether or not Wolford made the statement attributed to him by Pike
that Colonial would never finish the job if it did not get rid of Pike. It seems to
me that Respondent's actions here bespoke of such a threat more loudly than words
could have spoken.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent found to be unfair labor practices as set forth in
section III, above, occurring in connection with the operations of the Employer
described in section I, above, having 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 I
will recommend that they cease and desist therefrom and take appropriate affirma-
tive action in order to effectuate, the policies of the Act. Specifically, I shall
recommend that Respondent be ordered to notify the Colonial Painting Company,
Inc., and John J. Pike, in writing, that they withdraw their objections to the
employment by Colonial of Pike should Colonial so desire. I shall also recom-
mend that Respondent be required to make Pike whole for any loss of pay he may
have suffered by reason of the discrimination practiced against him as set forth
above. Loss of pay, as aforesaid, shall be computed in accordance with the for-
mula set forth in F. W. Woolworth Company, 90 NLRB 289, and shall bear interest
at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
Upon the foregoing findings of fact and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. The Colonial Painting Company, Inc., is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Painters District Council No. 4, Brotherhood of Painters, Decorators & Paper-
hangers of America, AFL-CIO is a 'labor organization within the meaning of
Section 2(5) of the Act.
3. By causing or attempting to cause The Colonial Painting Company, Inc., to
refuse to hire John J. Pike within the meaning of Section 8(a)(3) of the Act,
Respondent has engaged in unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and upon the entire
record in the case, I recommend that the Board enter an order providing that
1That the alleged discrimination against Vargas as a cause of the walkout was simply
a pretext to mask Respondent's antipathy toward Pike is shown by Hardy's testimony con-
necting the walkout with having been required on several occasions to work a few minutes
past quitting time.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent , Painters District Council No . 4, Brotherhood of Painters , Decorators.
& Paperhangers of America , AFL-CIO, by its officers, agents, representatives,
successors , and assigns , shall:
1. Cease and desist from:
(a) Causing or attempting to cause The Colonial Painting Company, Inc., to,
discriminate against John J. Pike or any other employee in violation of Section
8(a)(3) of the Act.
(b) In any other manner restraining or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act, except to the extent that such right
may be affected by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a)(3) of the Act as
amended by the Labor-Management Reporting and Disclosure Act, of 1959.
2. Take the following affirmative action which I find will effectuate the policies.
of the Act-
(a) Notify The Colonial Painting Company, Inc., and John J. Pike, in writing,,
that they have no objection to and will not interfere with the employ of Pike by
The Colonial Painting Company, Inc, should Colonial so desire; and also notify
John J Pike , in writing , that henceforth it will not unlawfully infringe upon any
rights guaranteed to him by Section 7 of the National Labor Relations Act, as
amended.
(b) Make John J . Pike whole for any loss of earnings he may have suffered by
reason of the discrimination against him, in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Post at its offices and meeting hall in the Buffalo, New York, area, copies of
the attached notice marked "Appendix" 13 Copies of said notice , to be furnished'
by the Regional Director for Region 3, shall, after being duly signed by Respond-
ent's representatives , be posted by them immediately upon receipt thereof, and'
maintained by them for 60 consecutive days thereafter . Reasonable steps shall be
taken by Respondent to insure that said notices are not altered , defaced, or covered
by any other material
(d) Additional copies of the notice marked "Appendix " shall be signed by
Respondent 's authorized representatives and forthwith returned to the aforesaid
Regional Director for posting by The Colonial Painting Company, Inc., said'
employer being willing, at its business offices and construction projects where,
notices to its employees are customarily posted.
( e) Notify said Regional Director , within 20 days from the receipt of this.
Decision , what steps Respondent has taken to comply herewith 14
13 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
14 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF PAINTERS DISTRICT COUNCIL No. 4, BROTHERHOOD OF
PAINTERS, DECORATORS & PAPERHANGERS OF AMERICA, AFL-CIO, AND TO ALL
EMPLOYEES OF THE COLONIAL PAINTING COMPANY, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT request The Colonial Painting Company, Inc, to refuse to
hire John J. Pike, or in any other manner attempt to cause The Colonial
Painting Company, Inc., to discriminate against John J. Pike, or any other
employee, in violation of Section 8(a)(3) of the Act, except as permitted by
an agreement authorized by said section of the Act.
WE WILL NOT in any other manner restrain or coerce employees in the
exercise of rights guaranteed by Section 7 of the National Labor Relations
Act, as amended.
NELSON B. ALLEN 229
WE WILL notify The Colonial Painting Company, Inc., in writing, that we
have no objection to and will not interfere with its employment of John J.
Pike.
WE WILL make John J. Pike whole for any loss of earnings he may have
suffered because of the discrimination against him.
PAINTERS DISTRICT COUNCIL No. 4, BROTHERHOOD OF PAINTERS,
DECORATORS & PAPERHANGERS OF AMERICA , AFL-CIO,
Labor Organization.
Dated--- ---------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone
No. TL 6-1782 , if they have any question concerning this notice or compliance
with its provisions.
Nelson B. Allen and Line Drivers Local 224, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs , Warehouse-
men and Helpers of America . Case No. 21-CA-5051. Octo-
ber 09, 1964
DECISION AND ORDER
On May 19, 1964 , Trial Examiner Louis S. Penfield issued his De-
vision in the above -entitled proceeding , finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision . Thereafter , the Respondent and the General Counsel filed
exceptions to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers herein to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins] .
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
'Trial Examiner 's Decision , the Respondent 's and General Counsel's
exceptions and briefs , and the entire record in this case , and hereby
adopts the findings, conclusions , and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, his
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
149 NLRB No. 27.