Painters Local 277 (Polis Wallcovering)

National Labor Relations Board - Board Decisions

Jun 29, 1984

271 N.L.R.B. 58 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 277, International Brotherhood of
Painters and Allied Trades (Polis Wallcovering
Co.) and Edward W. Pygatt and Jennings V.
Love. Case 4-CB-4170
29 June 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 27 July 1982 the National Labor Relations
Board issued a Decision and Order in this proceed-
ing' in which the Board found that the Respondent
violated Section 8(b)(1)(A) of the National Labor
Relations Act, as amended, by maintaining an ex-
clusive hiring hall whereby employment referrals
were made without reference to objective consider-
ations and violated Section 8(b)(1)(A) and (2) by
refusing to refer applicant Edward W. Pygatt for
employment because he engaged in conduct
viewed by the Respondent as disloyal. 2
On 19 September 1983 the United States Court
of Appeals for the Third Circuit on petitions for
review and a cross-application for enforcement of
the Board's Order granted enforcement in part and
remanded the matter in part to the Board for fur-
ther consideration. 3 In its opinion the court en-
forced that part of the Board's Order concerning
the Respondent's hiring hall procedures lacking ob-
jective considerations in violation of Section
8(b)(1)(A). The court however set aside those por-
tions of the order pertaining to the refusal to refer
Pygatt and directed the Board to determine wheth-
er the Respondent had carried its burden of prov-
ing there were no requests for employees in Py-
gatt's job classification from employers who would
accept Pygatt if he were referred. 4
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
In accord with the opinion of the court of ap-
peals which the Board has accepted as the law of
the case and after a careful review of the record
we find for the following reasons that the Re-
spondent violated Section 8(b)(l)(A) and (2) by re-
fusing to refer Pygatt for employment.
1 262 NLRB 1336.
The Board dismissed other allegations that the Respondent violated
the Act by refusing to refer applicant Jennings V. Love for employment.
The Board also dismissed in its entirety the complaint in Case 4-CA-
11875 alleging that certain employer-respondents violated Sec. 8(a)(3) and
(1) with respect to the employment of Love and Pygatt.
3 717 F.2d 805.
4 The court also denied the petition of employee Love to set aside the
Board's Order dismissing the allegations pertaining to his job referrals
and denied Love's petition to set aside the Board's refusal to reopen the
record.
As found by the Board in our previous consider-
ation of the case and by the court of appeals on en-
forcement the record establishes that the Respond-
ent's refusal to refer Pygatt after June 1980 was
motivated by its hostility to Pygatt's criticism of
the Respondent. The court of appeals concluded
however that under the rule of NLRB v. Transpor-
tation Management Corp., 103 S.Ct. 2469 (1983), the
Respondent was entitled to prove as an affirmative
defense the claimed unavailability of employers
willing to hire Pygatt even if he were referred. 5
Our review of the record reveals that during the
period in which the Respondent declined to refer
Pygatt, a paperhanger, for employment it referred
paperhangers to numerous contractors. Thus, by
specific reference to a list of local area contractors
utilizing the Respondent's hiring hall6 the General
Counsel elicited from the Respondent's business
manager James T. Brennan the admission that nu-
merous area contractors identified by Brennan at
the hearing received referrals for paperhangers
from the Respondent subsequent to June 1980. In
the rebuttal to the General Counsel's case-in-chief
the Respondent presented Brennan who testified
that the Respondent refused to refer Pygatt during
this period because of Pygatt's allegedly proven in-
competence and therefore, according to Brennan,
notwithstanding the availability of positions for pa-
perhangers "there was no place to send him."
Brennan's proffered explanation for refusing to
refer Pygatt to any of the available positions how-
ever was specifically discredited by the administra-
tive law judge who found Brennan's testimony in
this regard not worthy of belief. 262 NLRB at
1342.7 This is the full extent of the evidence pre-
sented by the Respondent in support of its affirma-
tive defense.8 In our original decision in this pro-
s As directed by the court of appeals we accept as the law of the case
that the rule of Transportation Management is applicable herein to alleged
violations of Sec. 8(b)(1)(A) and (2).
e G.C. Exh. 22.
7 Although Brennan testified generally that no area contractors would
employ Pygatt he was able to identify only a few such contractors specif-
ically by name. Two of these contractors indicated to the Respondent by
letter that Pygatt was unacceptable. The Respondent however presented
no credible evidence concerning referrals to numerous other contractors
who had work available for paperhangers and had received referrals for
paperhangers from the Respondent's hiring hall subsequent to June 1980.
8 The Respondent requests that the Board conduct a new hearing to
give the Respondent an opportunity to submit additional evidence in sup-
port of its defense. The General Counsel has opposed this request. In its
request the Respondent does not indicate what additional evidence it
seeks to present nor does it explain why such evidence was not presented
previously. Further, the Respondent makes no contention that it was
denied an opportunity at the original hearing to litigate fully all matters
pertaining to the refusal to refer Pygatt as alleged in the complaint.
Indeed the record demonstrates that the Respondent did in fact submit
evidence in support of its defense. Accordingly we deny the Respond.
ent's request for a new hearing.
271 NLRB No. 10
58
PAINTERS LOCAL 277 (POLIS WALLCOVERING)
ceeding we affirmed the judge's findings in this and
all other pertinent respects and we find no basis to
now alter those findings. Accordingly, inasmuch as
the Respondent presented no credible or probative
evidence demonstrating that referring Pygatt
would have been futile because no area contractors
with jobs available would have hired him, we find
that the Respondent failed to carry its affirmative
defense. Because the General Counsel has demon-
strated that Pygatt's criticism of the Respondent
was a motivating factor in its refusal to refer
Pygatt and the Respondent has failed to carry its
affirmative defense in response to that showing we
shall reaffirm our original decision in this proceed-
ing that the Respondent violated Section 8(b)(1)(A)
and (2) by refusing to refer Pygatt for employment
and we shall issue an appropriate order.
ORDER
The National Labor Relations Board orders that
the Respondent, Local Union No. 277, Internation-
al Brotherhood of Painters and Allied Trades, At-
lantic City, New Jersey, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause discrimination
against Edward W. Pygatt by refusing to refer him
to work available under its exclusive referral pro-
cedure, or by otherwise causing discrimination
against him for reasons proscribed by the Act.
(b) In any like or related manner restraining or
coercing applicants for referrals 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 whole Edward W. Pygatt for any loss
of earnings he may have suffered as a result of the
discrimination against him by payment of a sum of
money equal to that which he normally would
have earned as wages from the date of the discrim-
ination against him until such time as he is referred
to employment in a nondiscriminatory manner,
with interest to be computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651
(1977). 9
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all hiring hall records, dispatch lists, referral
cards, and other documents necessary to analyze
9 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
the amount of backpay due under the terms of this
Order.
(c) Post at its office and hiring hall in Atlantic
City, New Jersey, copies of the attached notice
marked "Appendix."'1 Copies of the notice, on
forms provided by the Regional Director for
Region 4, 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 mem-
bers or applicants for referral are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
10 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the 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."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
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.
WE WILL NOT cause or attempt to cause employ-
ers to discriminate against Edward W. Pygatt or
any other applicant for employment for reasons
proscribed by the National Labor Relations Act.
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 make whole Edward W. Pygatt for
any loss of earnings he may have suffered by
reason of the discrimination we caused against him,
with interest.
LOCAL UNION No. 277, INTERNA-
TIONAL BROTHERHOOD OF PAINTERS
AND ALLIED TRADES
59