Brotherhood of Painters, Decorators & Paperhangers of America

National Labor Relations Board - Board Decisions

Dec 11, 1953

107 N.L.R.B. 323 (N.L.R.B. 1953)

BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS 323
there must also be affirmative, positive action bythe employer
which indicates that he is forgiving the unprotected activity of
an employee. Most frequently, this affirmative action has
taken the form of an invitation from, or agreement by, the
employer to reinstate strikers without penalty. The relevant
cases cited by the majority in support of their waiver finding
(footnote 4) are of this character." There is no affirmative
evidence of condonation in this case. The Respondent did not
promise to reemploy the strikers without penalty; nor did it
invite them to return to work under such circumstances as to
indicate an intent to overlook their conduct in the strike.
To me it is clear that the strikers engaged in unprotected
activity; that, even if relevant which I reject, Respondent did
not condone or waive such activities; and therefore that the
Respondent was lawfully entitled to discharge the strikers. I
would so find and dismiss the complaint.
Member Murdock took no part in the consideration of the
above Supplemental Decision and Order Denying Motion for Re -
consideration.
rank and file of the workers, we could not agree with it that this would be a waiver of
their breach of contract, and a condonation of their wrong headedness, their injurious
and harmful action both to the company and to the employees.
14 Alabama Marble Company, 83 NLRB 1047, enfd 185 F 2d 1022 (C A. 2) (Respondent
agreed to permit and did permit employees who struck in violation of a no- strike clause to
return to work without reserving the right to discipline any striker); E. A Laboratories,
Inc., 86 NLRB 711, enfd 188 F. 2d 855 (C A. 2) (Respondent agreed to reemploy strikers
who struck in violation of a no-strike clause); The Fafnir Bearing Company, 73 NLRB 1008
(Respondent invited strikers in violation of a no- strike clause to return to work and promised
them reinstatement to their former positions without exception or qualification); The Hoover
Company, 90 NLRB 1614, 1622, enfd as modified 191 F. 2d 380 (Respondent invited all em-
ployees who engaged in mass picketing to return to work; in court decision, court found
that when Respondent invited employees engaged in boycotting activities to return to work if
they first disassociated themselves from such activity, it thereby waived right to refuse to
reinstate employees who complied with its invitation); Clearfield Cheese Company. Inc.,
106 NLRB 417 ("In addition to its delay in raising the misconduct issue, despite the numerous
opportunities to do so, until long after the termination of the strike, the Respondent affirma-
tively indicated at the time of the applications for reinstatement on November 13, and in
its letters to, and conversations with, its employees an intent to condone the misconduct")
See also the following court decisions reversing Board findings of condonation: N. L R. B v.
Dorsey Trailers, Inc , supra; N. L. R. B. v. Warner Bros. Pictures, Inc , 191 F. 2d 217
(C A. 9), setting aside 82 NLRB 568; W. T. Rawleigh Co. v N. L. R. B , 190 F. 2d 832
(C. A. 7), enfg. as modified 90 NLRB 1924.
BROTHERHOOD OF PAINTERS, DECORATORS & PAPER-
HANGERS OF AMERICA, LOCAL UNION NO. 365, AND
HUGH J. SMITH, its Business Agent and JOHN SALANSKY
and ELMER LEE RIDGWAY. Case No. 10-CB-145. Decem-
ber 11, 1953
DECISION AND ORDER
On September 14, 1953, Trial Examiner Robert L. Piper
issued his Intermediate Report in the above-entitled proceed-
107 NLRB No. 93.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, finding that the Respondents had engaged in and were en-
gaging in certain unfair labor practices and recommending that
they cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondents filed exceptions
to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
the brief, and the entire record in the case, and hereby adopts
the findings, 1 conclusions, and recommendations of the Trial
Examiner with the following additions.
THE REMEDY
It has been found that the Respondents have engaged in cer-
tain unfair labor practices. We shall therefore order that they
cease and desist therefrom, and take certain affirmative action
to effectuate the policies of the Act.
Having found that the contract between the Respondent
Union and Greater Miami Chapter Painting and Decorating
Contractors of America contains unlawful preferential hiring
provisions, we shall order that the Respondents cease and
desist from enforcing, executing, or entering into any contracts
containing such illegal provisions.
It has also been found that the Respondents caused Orange
State Painters, Inc., to discriminate against John Salansky
and Elmer Lee- Ridgway in violation of Section 8 (a) (3) of the
Act, and thereby violated Section 8 (b) (2) and 8 (b) (1) (A).
We shall order that the Respondents notify the Company that
they no longer object to the employment of Salansky and
Ridgway by the Company. We shall also order the Respondents
to make whole Salansky and Ridgway for any loss of earnings
they may have suffered as a result of the discrimination
against them, by payment to each of a sum of money equal to
that which he would have earned as wages from the date of the
discrimination against him to the date the Company offers to
reemploy him, less his net earnings during said period.' We
shall toll the Respondent's liability for back pay, however, 5
days after it serves upon the Company written notice that it
no longer objects to the immediate employment of Salansky
and Ridgway. Loss of earnings for this purpose shall be com-
puted in accordance with Board policy established in F. W.
Woolworth Company, 90 NLRB 289.
i We note and correct the apparent typographical error in section I of the Intermediate
Report to the effect that Baily- Lewis- Williams performed services of a value in excess of
$680,000 during the first 6 months of 1952. The correct year is 1953. Also, the record shows
that the 1952 and 1953 out-of-State business of Bailey-Lewis-Williams involved "gross
sales," rather than "services performed."
2 Crossett Lumber Company, 8 NLRB 440.
BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS 325
ORDER
Upon the entire record in this case , and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders the Respond-
ents, Brotherhood of Painters, Decorators & Paperhangers of
America, Local Union No. 365, Miami, Florida, and its offi-
cers, representatives , and agents , and Business Agent Hugh J.
Smith, shall:
1. Cease and desist from:
(a) Entering into, executing , or enforcing any contract with
Greater Miami Chapter Painting and Decorating Contractors
of America which requires that only persons who possess
working cards in good standing with the Respondent Union be
employed, or which prohibits the employment of permit men
or foreign dues-paying members of the Respondent Union
working on a visitor ' s permit, without the sanction of a busi-
ness agent of the Respondent Union, or any other form of
union security which exceeds that permitted under the proviso
to Section 8 (a) (3) of the Act.
(b) Causing or attempting to cause Orange State Painters,
Inc., its officers , agents, successors , or assigns , or any other
member of Greater Miami Chapter Painting and Decorating
Contractors of America , to discriminate against employees in
violation of Section 8 (a) (3) of the Act.
(c) Threatening employees with economic reprisals because
they are not members of'the Respondent Union, or in any like
or related manner restraining or coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Notify Orange State Painters, Inc., in writing, and
furnish copies to John Salansky and Elmer Lee Ridgway, that
the Respondents have no objection to their employment by the
Company.
(b) Make whole John Salansky and Elmer Lee Ridgway for
any loss of pay each of them has suffered because of the
discrimination against them , in the manner described in the
section herein entitled "The Remedy."
(c) Post in conspicuous places at the office of the Respondent
Union in Miami, Florida, including all places where notices
to members are customarily posted , copies of the notice
attached to the Intermediate Report and marked "Appendix."'
Copies of said notice, to be furnished by the Regional Director
for the Tenth Region, shall, after being duly signed by Hugh J.
Smith and representatives of the Respondent Union, be posted
by Respondents immediately upon receipt thereof and main-
3This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner," the words "A Decision and Order." In the event that this Order is enforced
by a decree of a United States Court of Appeals, there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order."
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained by them for sixty (60) consecutive days thereafter.
Reasonable steps shall be taken by the Respondents to insure
that such notices are not altered, defaced, or covered by any
other material.
(d) Mail to the Regional Director for the Tenth Region
copies of the notice attached to the Intermediate Report, for
posting, the Company and the Association willing, at their
places of business where notices to employees are customarily
posted. Copies of said notice, to be furnished by the said
Regional Director, shall, after being signed as provided in
paragraph (c) above, be forthwith returned to the Regional
Director for such posting.
(e) Notify the Regional Director for the Tenth Region in
writing within ten (10) days from the date of this Order what
steps the Respondents have taken to comply herewith.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing thereon
having been issued and served by the General Counsel of the National Labor Relations
Board, and an answer having been duly filed by Local No. 365, Brotherhood of Painters,
Decorators & Paperhangers of America (hereinafter called the Union) and Hugh J. Smith,
its business agent, (the Union and Smith being hereinafter collectively called Respondents),
a hearing involving allegations of unfair labor practices in violation of Section 8 (b) (1) (A)
and (2) of the National Labor Relations Act, 61 Stat. 136, was held in Miami, Florida, on
July 20, 1953, before the undersigned Trial Examiner.
In substance the complaint alleges and the answer denies that Respondents restrained and
coerced employees in the exercise of the rights guaranteed by the Act, and attempted to
cause, caused, and are causing Orange State Painters, Inc. (hereinafter called the Company),
and Greater Miami Chapter Painting and Decorating Contractors of America (hereinafter
called the Association), to discriminate against employees in violation of Section 8 (a) (3) of
the Act, by:
(1) Threatening John Salansky with economic and other reprisals because he was not a
member of the Union.
(2) Entering into, executing, and enforcing an agreement between the Union and the Associ-
ation providing that only employees possessing a working card in good standing from the
Union could be employed, and providing that no permit man or foreign dues-paying member
of the Union working on a visitor's pernut could be employed by any member of the Associa-
tion without the sanction of the business agent of the Union.
(3) Causing the Company on February 18, 1953, to discharge Salansky pursuant to the
terms of the collective-bargaining contract, and on March 7, 1953, to discharge Salansky
and Elmer Lee Ridgway, pursuant to the terms of the contract, in both instances because
they had not received the sanction of Respondents to be employed.
At the hearing all parties were represented by counsel, were afforded full opportunity to
be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the
issues, to argue orally upon the record, and to file briefs and proposed findings of fact and
conclusions. None of the parties filed briefs.
Upon the entire record in the case, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND OF THE ASSOCIATION
The Company is a Florida corporation having its principal office and place of business
in Miami, Florida, where it is engaged in the business of painting and decorating as a
painting and decorating contractor.
BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS 327
The Association is an association of painting and decorating contractors in Greater
Miami, Florida. Bailey-Lewis-Williams of Florida, Inc., is a member of the Association.
During the year 1952, this single member of the Association performed services of a value
in excess of $881,000, of which more than $281,000 were performed outside the State of
Florida. During the first 6 months of 1952, this single member of the Association performed
services of a value in excess of $ 680,000, of which more than $145,000 were performed
outside the State of Florida. The Company is also a member of the Association.
In passing upon the jurisdictional-issue herein, the Association and the individual members
thereof must be regarded as a single enterprise. i Accordingly, I find that the Company and
the Association are engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The facts are substantially undisputed. On March 30, 1952, the Association and the Union
entered into a collective-bargaining contract for a term of 2 years, which agreement is
still in full force and effect. It provides, inter alia, that members of the Association may
hire only employees who possess working cards in good standing from the Union, and that
no permit man or foreign dues-paying member or members of the Union working on a
visitor's permit may be employed by a member of the Association without the sanction of
the business agent of the Union. It may now be considered well settled that the execution,
enforcement, and continued existence of such an agreement by a labor organization violates
Section 8 (b) (2) of the Act by causing or attempting to cause an employer to discriminate
against employees in violation of Section 8 (a) (3), unless it falls within the permissible
area of union security found in the proviso to Section 8 (a) (3), which this does not. 2
Smith and Albert S. Krupsaw were at all times material herein business agents of the
Union. During November of 1952 Salansky, a member of another local of the Brotherhood
of Painters, moved into the Miami area and sought to secure employment as a painter
through the Union. He spoke to Krupsaw, who told him that he would help him in any way he
could. For personal reasons, Salansky did not immediately have his membership card
transferred into the Union as required by the Union's bylaws. Shortly thereafter Salansky
secured employment through his own efforts as a painter in the area. Sometime during
December he met Krupsaw, who asked him if he was working in town. Krupsaw told Salansky
that he had had complaints that he was working in town and that he (Krupsaw) had been
looking for him for 3 weeks. Salansky said that he had been working in Hollywood, Florida,
and also in Miami Beach, which was the territory under Krupsaw's direction. Salansky then
told Krupsaw that he could stop looking for him because he was going to start working for
the post office. According to Salansky, Krupsaw then told him, "If you are still working,
remember, we will get you yet." This was about the only fact in the record denied by Re-
spondents. Krupsaw admitted talking to Salansky at the time. Krupsaw also admitted that he
was surprised when Salansky told him that he had been working in Krupsaw's territory.
However, Krupsaw denied that he made any threats to Salansky concerning his employment.
I credit Salansky and accordingly find that the Union through its business agent, Krupsaw,
threatened Salansky with economic reprisals in the manner testified to by Salansky.
On February 18, 1953, Salansky was working on a job for the Company. Smith found him
there and asked him what he was doing there. Salansky replied that he was trying to get in
a couple of days work and had just started. Smith then told Salansky that he was not in good
standing with the Union, that he was not going to work there as long as Smith was in charge,
and that he had better pack his things and get off the job. At that time Salansky had not
presented his membership card for clearance into the Union, and was to do so that evening.
He asked Smith if he could not work until that evening, but Smith told him that he could not
work at all, and that he should leave the job immediately. Salansky then talked to the foreman
on the job, Robert W. Boles, and told him that he had contacted Barney O'Field, the president
of the Company. Salansky told Boles that O'Fieltl had given Salansky permission to work the
rest of the day and take the matter up that evening with the Union. Boles told Salansky that
iCarpenter & Skaer, Inc, 90 NLRB 417; Gottfried Baking Co., Inc., 103 NLRB 227; J L.
Wroan & Son, 106 NLRB 231.
2J L Wroan & Son, supra
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he could not work and that he had to leave the job immediately and go down to the Union and
get the matter straightened out. Boles was also a member of the Union. Salansky left the job
and was not permitted to return to it by the Union.
About a week later Salansky had his membership card cleared into the Union. However,
under the Union's bylaws, the working cards of transferring members were stamped as
visitors' permits for 60 days after the transfer. As previously found herein, under the terms
of the contract with the Union, no member of the Association could employ any employee
with a visitor's permit without the sanction and approval of a business agent of the Union.
On February 27, 1953, Salansky and Ridgway, both of whom then had visitors' permits from
the Union, secured employment with the Company on another job as painters. On March 2,
the second day they were working on the job, Smith again appeared at the job and asked
Salansky what he was doing there. Again Salansky said that he had just secured the job.
Smith then said that he had already told Salansky that he wasn't going to work as long as
Smith was the business agent. Smith then left Salansky and Ridgway to see O'Field. About
1 1/2 hours later O'Field came up to Salansky and Ridgway and told them that he had been
ordered by Smith to let them go, that there was nothing wrong with their work, but that he
was required to lay them off. Salansky and Ridgway were discharged pursuant to the terms
of the agreement between the Association and the Union. O'Field corroborated this and
testified that Smith had told him to check article 2 of the agreement, which article provided
that employees with visitors' permits could not be hired without approval of the business
agent of the Union, and that he would have to fire Salansky and Ridgway because of that fact.
O'Field testified that that was the only reason he fired Salansky and Ridgway. With respect
to the incident of February 18, when only Salansky was discharged. O'Fleld testified that he
did not see Smith and that Smith spoke to Boles, the foreman, who discharged Salansky on
that occasion.
Boles testified that on February 18 Smith came to him and told him that Salansky had not
been cleared into the Union, that something would have to be done about it, and that Salansky
could not work there until he was straightened out with the Union. Boles substantially cor-
roborated everything testified to by Salansky. Boles said that later, after Smith talked to
Salansky, Salansky came to Boles and told him that O'Field said that Salansky could work
until that evening and then straighten the matter out with the Union, but that he (Boles) then
told Salansky that he could not do so, that he would have to leave the job immediately, and
that when he was straightened out with the Union to come back. Boles admitted that he fired
Salansky because he was not a member of the Union, and because Boles would have been
subject to charges and fines by the Union if he had not discharged Salansky. As previously
stated, the facts with regard to the discharges of February 18 and March 2 are substantially
undisputed. Without reviewing in detail all of the evidence in the record, the testimony of
Smith on cross-examination plus his sworn statement which was received in evidence as an
exhibit substantially admit all of the facts testified to by the other witnesses concerning the
two discharges. A preponderance of the credible evidence in the entire record convinces me,
and I find, that Respondents, by entering into, executing, and enforcing the contract with the
Association, including the Company, and by causing the Company to discharge Salansky on
February 18, 1953, and to discharge Salansky and Ridgway on March 2, 1953, because they
did not possess working cards in good standing with the Union and because as holders of
visitors' permits they were employed by the Company without the sanction of the Union's
business agent, attempted to cause and caused the Company and the Association to discrimi-
nate against employees, including Salansky and Ridgway, in violation of Section 8 (b) (2) of
the Act, and by such acts and by threatening Salansky with economic reprisals because he
was not a member in good standing of the Union, restrained and coerced employees in the
exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8 (b)
(1) (A) of the Act.
Upon the basis of the above findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. The activities of Respondents set forth in section III, above, occurring in connection
with the operations of the Company and the Association described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and the free
flow thereof.
2. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS 329
3. By entering into, executing , and enforcing the provisions of the contract with the
Association , Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (b) (1) (A ) and (2 ) of the Act.
4. By threatening employees with economic reprisals for not being members in good
standing of the Union , and by causing the Company to discriminate against Salansky and
Ridgway in regard to their employment in violation of Section 8 (a) (3) of the Act. Respondents
have engaged in and are engaging in unfair labor practices within the meaning of Section 8
(b) (1) (A) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting conunerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE
TO ALL MEMBERS OF LOCAL NO. 365, BROTHERHOOD
OF PAINTERS, DECORATORS & PAPERHANGERS OF
AMERICA, AND TO ALL EMPLOYEES OF THE GREATER
MIAMI CHAPTER, PAINTING AND DECORATING
CONTRACTORS OF AMERICA
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify you that:
WE WILL NOT enter into, execute, or enforce any contract with the Greater Miami
Chapter, Painting and Decorating Contractors of America which requires the members
of such Association to employ only persons having working cards in good standing from
this union, or which prohibits members of said Association from employing any permit
man, or foreign dues-paying members of the union working on a visitor ' s permit
without the sanction of a business agent of this union, except to the extent that such
agreement may be authorized under the proviso to Section 8 (a) (3) of the Act.
WE WILL NOT cause or attempt to cause the members of said Association, their
officers, agents, successors, or assigns, to discriminate against employees in violation
of Section 8 (a) (3) of the Act.
WE WILL NOT threaten employees with economic reprisals because they are not
members of this union, nor in any other manner restrain or coerce employees in the
exercise of the rights guaranteed them in Section 7 of the Act.
WE WILL immediately notify Orange State Painters, Inc., in writing, and furnish
copies to John Salansky and Elmer Lee Ridgway, that we do not object to, but on the
contrary now request, that company to employ John Salansky and Elmer Lee Ridgway.
WE WILL make John Salansky and Elmer Lee Ridgway whole for any loss of earnings
they may have suffered because of the discrimination against them.
LOCAL NO. 365, BROTHERHOOD OF PAINTERS,
DECORATORS & PAPERHANGERS OF AMERICA,
Labor Organization.
Dated ................ By..................
.
........ ......................••...........................
(Representative) (Title)
Hugh J. Smith
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered byany other material.