Brotherhood of Painters, Local 130

National Labor Relations Board - Board Decisions

Nov 19, 1970

186 N.L.R.B. 663 (N.L.R.B. 1970)

BROTHERHOOD OF PAINTERS, LOCAL 130
Brotherhood of Painters, Decorators and Paperhangers
of America, AFL-CIO Local No. 130 (Perfection
Painting and Dry Wall, Inc.) and Robert E. Turner.
Case 23-CB-761
November 19, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 3, 1968, the National Labor Relations
Board issued a Decision and Order , finding, inter alia,
that Respondent Union sought to deny employment
to and attempted to cause the discharge of Robert E.
Turner in violation of Section 8(b)(1XA) and 8(bX2)
of the National Labor Relations Act, as amended;
and that thereby, Respondent Union caused the
employment relationship between Perfection Painting
and Dry Wall, Inc., to be prematurely terminated.
The Board's Order required that Respondent Union
make Turner whole for any loss of pay he may have
suffered by reason of its discriminatory conduct.'
On April 7, 1970, the Regional Director for Region
23 issued and served on the parties a backpay
specification and notice of hearing. On May 15, 1970,
Respondent Union filed an answer. On May 19, 1970,
Respondent Union filed a motion to reopen the
record and a motion for summary judgment and
reconsideration. After these motions had been denied
by the Board, and pursuant to notice, a hearing was
held before Trial Examiner Gordon J. Myatt on May
26, 1970, for the purpose of determining Respondent
Union's backpay obligation to Turner.
On August 5, 1970, the Trial Examiner issued the
attached Supplemental Decision in which he found
the discriminatee herein to be entitled to backpay in
the amount specified. Thereafter, Respondent Union
filed exceptions to the Trial Examiner's Supplemental
Decision.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has delegat-
ed its powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the Supplemental Hearing and
finds that no prejudicial error was committed. The
rulings are hereby affirmed. The board has considered
the entire record in this case, including the Supple-
mental Decision and the exceptions, and hereby
adopts the findings , conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
663
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent
Union, Brotherhood of Painters, Decorators and
Paperhangers of America, AFL-CIO, Local No. 130,
its officers, agents, and representatives, shall pay to
Robert E. Turner, the amount set forth in the attached
Trial Examiner's Supplemental Decision.
1 170 NLRB No. 123.
2 On August 25, 1970, in a motion to reopen record and take testimony
and/or depositions with the Board, Respondent Union requested the
Board to "take the Testimony and/or Deposition of Mr . and Mrs. Paul
Robertson and possibly one or two other witnesses appearing in the
original hearing." It is alleged in support of the motion that "newly
discovered evidence ... will prove intrinsic and extrinsic misrepresenta-
tion and/or misconduct of the adverse party," and that Respondent Union
"will be denied due process without the opportunity to have said evidence
in the record and duly considered as to whether an unfair labor practice
was committed." After due consideration , we find nothing in this motion
which would require that the unfair labor practice hearing be reopened.
Accordingly, said motion is hereby denied.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner : On April 3,1968, the
National Labor Relations Board issued its Decision and
Order finding that Brotherhood of Painters , Decorators
and Paperhangers of America, AFL-CIO, Local No. 130
(hereinafter called the Respondent Union), violated Section
8(b)(1)(A) and (2) of the Act by prematurely terminating
the employment relationship between Perfection Painting
and Dry Wall, Inc . (hereinafter called Perfection) and
Robert E. Turner.' Among other things , the Board's Order
required that the Respondent Union make Turner whole
for any loss of pay he may have suffered by reason of the
Union's discriminatory conduct . On April 7, 1970, the
Regional Director for Region 23 issued, in the name of the
Board, a backpay specification and notice of hearing
setting forth the specific amount of backpay which the
General Counsel alleged was due to Turner.
The Respondent filed an answer and also two motions
with the Board. One was a motion to reopen the record in
the underlying case and the other was a motion for
Summary Judgment and Reconsideration of the Board's
Decision and Order. The Board subsequently denied both
of these motions as lacking merit.
Pursuant to notice, a supplemental trial was held before
me in Houston, Texas, on May 26, 1970 . All parties were
represented and participated fully at the trial . The claimant,
Turner, was present and testified and was cross -examined
by the Respondent Union . Early in the proceedings, the
General Counsel moved to strike certain portions of the
Respondent Union's answer as not complying with the
1 Brotherhood of Painters, Decorators and Paperhangers of America,
AFL-CIO, Local No. 130, 170 NLRB No. 123.
186 NLRB No. 98
663A DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's Rules and Regulations governing backpay
proceedings.2 In response to the allegation that the backpay
period commenced March 19, 1967, when Turner was
discharged by Perfection, the Respondent Union denied
that Turner was discharged on that date. In response to the
allegation that but for the unlawful discharge Turner would
have worked on and completed approximately 13 addition-
al painting jobs and the work would have lasted until
October 23, 1968, the Respondent Union denied the
discriminatorily discharge. The answer also affirmatively
alleged that Perfection was a party to a collective-
bargaining agreement which contained a grievance and
arbitration procedure. Respondent Union further alleged
that since Perfection and Turner failed to follow the
grievance procedure, no unfair labor practice had been
committed and no backpay was due and owing to Turner.
In response to the allegation that under the General
Counsel's formula Turner was entitled to a payment
aggregating $12,868, with interest, the Respondent Union
denied any liability for backpay since Turner did not follow
the grievance procedure and, according to the Respondent
Union, was not entitled to protection under the Act.
Viewing the Respondent Union's answers in the context of
Section 102.54(b) I granted the General Counsel's motion
to strike these portions of the Respondent Union's answer.3
The General Counsel then moved for Summary Judgment
regarding the allegations in the specification concerned
with the formula used and the computation of Turner's
gross backpay.4 Respondent Union's counsel stated on the
record that the Respondent Union did not contest the
computation of the gross backpay figure, but took the
position that Turner was not entitled to any backpay
whatsoever because of the failure to follow the grievance
procedure which the Respondent Union claimed governed
the parties' conduct. The Respondent Union was offered
the opportunity to plead in the alternative, thereby
preserving its claim that no liability had been incurred but
allowing it to contest the amount of gross backpay alleged.
The Respondent Union declined to adopt this suggestion
and the General Counsel's motion for Judgment on the
Pleadings regarding the claimant's gross backpay was
granted. Having granted the General Counsel's various
2 National Labor Relations Board Rules and Regulations, Sec.
102.52-102.54.
Sec. 102.54(b) in part provides:
. the respondent shall specifically admit , deny, or explain each
and every allegation of the specification, unless the respondent is
without knowledge , in which case the respondent shall so state, such
statement operating as a denial. Denials shall fairly meet the substance
of the allegations of the specification denied . When a respondent
intends to deny only a part of an allegation , the respondent shall
specify so much of it as is true and shall deny only the remainder. As
to all matters within the knowledge of the respondent , including but
not limited to the various factors entering into the computation of
gross backpay, a general denial shall not suffice . As to such matters, if
the respondent disputes either the accuracy of the figures in the
specification or the premises on which they are based, he shall
specifically state the basis for his disagreement , setting forth in detail
his position as to the applicable premises and furnishing the
appropriate supporting figures.
Subsec. (c) of this same provision in part provides:
... if the respondent files an answer to the specification but fails to
deny any allegation of the specification in the manner required by
subsection (b) of this section, and the failure so to deny is not
adequately explained , such allegation shall be deemed to be admitted
motions the only triable issue before me was the amount of
the claimant's interim earnings for each quarter and hence
the resultant net backpay.
Upon the entire record of the supplemental proceeding5
and upon my observation of the witnesses who testified
herein, I make the following:
FINDINGS OF FACT
In view of the rulings on his motions, described above,
the General Counsel called Turner as his only witness.
Turner's testimony related to his efforts to find interim
employment and the sums of money he earned during the
interim period. Turner testified that after his employment
ceased with Perfection in Houston, he registered with the
Houston office of the Texas Employment Commission. It is
not clear from the record whether Turner received a referral
to a job or whether he got a job on his own, but shortly
thereafter he performed work for a party named Schultz
and received $60. After the Schultz job Turner returned to
the Employment Commission in an effort to find additional
work. Turner was unable to find work and sometime during
the first week in April 1967, he moved his family to Dallas,
Texas. In Dallas, Turner again registered with the Texas
Employment Commission and he also contacted the
business agent for the Painter's Union in the area. Turner
testified that he was told by the business agent that he could
not be referred to jobs by the Local Union until he had
straightened out the matter in Houston. Turner then started
looking for jobs on his own and secured several small jobs
in the Dallas area.6 Turner testified that his interim
earnings for the second quarter of 1967 consisted of those
listed in the backpay specification for that period. He stated
that he received $125 for painting his landlord's house;
$160 for work performed for an individual named
Hancock; $50 for work performed for an individual named
Prichard; and $16 for work performed for an individual
named Holcomb. Turner testified that none of these
employers withheld federal or state taxes from his wages.
He also testified that he made $625 during the second
quarter of 1967 while employed by an individual named
to be true, and may be so found by the Board without the taking of
evidence supporting such allegation, and the respondent shall be
precluded from introducing any evidence controverting said
allegation.
3 Par. 3, 5 , and 9 of the Respondent Union's answer.
4 Par ; 4, 5, 6, 7, and 8 of the backpay specification.
5 Subsequent to the hearing , the General Counsel forwarded to the Trial
Examiner copies of Internal Revenue Information returns for the calendar
year 1967 for Turner from two separate employers ; Preston Hale and
Hales & Reeves Co., Inc. In his covering letter, the General Counsel
requested that these documents be made a part of the official file by
stipulation and copies were forwarded to the Respondent Union's counsel.
Since these items bear on the interim earnings and the resultant net
backpay, and since no objection has been received from the Respondent
Union 's counsel, it is hereby ordered that the documents be, and they
hereby are, made a part of the official record in this case.
6 During this time Turner received a check for $71 from Perfection for
work which he had performed prior to his leaving Houston . The backpay
specification indicates that this money was received during the second
quarter of 1967, but the General Counsel orally amended the specification
to show this sum as being received during the first quarter of 1967, thereby
reducing the net backpay for that period.
BROTHERHOOD OF PAINTERS, LOCAL 130 663B
Preston Hale. According to Turner, Hale made deductions
from his wages for federal and state taxes.?
During the third quarter of 1967, Turner was employed
by Hales & Reeves Co., Inc., and he earned $1320. Turner
finally found steady employment during the fourth quarter
of 1967, with a firm called Southern Decorators. For the
fourth quarter of 1967, Turner earned $1,400.27 while
working with this employer. During the first quarter of
1968, Turner's earnings were $1,343.25. For the second
quarter of 1968 , his earnings were $ 1,442 .26. Turner earned
$1,132.09 during the third quarter of 1968, with Southern
Decorators. The backpay period, according to the General
Counsel only includes 3 1/2 weeks of the fourth quarter of
1968. Based on reported earnings of $1,596.30 to Social
Security Administration, the General Counsel calculates
that Turner's interim earnings should be $430. My
arithmetic computation indicates that the exact amount is
$429.77.
The Respondent Union, contends in its brief that the
General Counsel has not established that Turner was
available for employment during the entire backpay period.
In support of this contention , the Respondent Union claims
(1) that Turner's testimony is not worthy of belief; and (2)
even on the basis of his testimony, Turner did not diligently
seek interim employment.
Regarding the first contention, I reject the Respondent
Union's claim that Turner was not a credible witness. He
testified concerning his efforts to find employment at his
trade in Houston and in Dallas . In the process of giving this
testimony it is apparent that Turner's recollection of the
precise periods that he worked on interim jobs was sketchy
and getting this information from him was a tortuous
process . It is my observation that Turner was something
less than an ideal witness . I am persuaded that his
deficiency as a witness was not due to an intent to conceal
or to deceive , but because under the most ideal circum-
stances his memory was poor, and because the passage of
time had obscured the sequence of events in his mind. Thus,
it is easy to understand how a skillful cross-examiner, such
as Respondent Union 's counsel, could get Turner to
confuse the times when he worked for the various
employers and cause him to agree to different time
sequences for these jobs . It is also readily understandable
that Turner would have testified that two employers
(Preston H. Hale and Hales & Reeves Co., Inc.), deducted
withholding taxes from his wages, when in fact he had only
received information copies of notifications to Internal
Revenue indicating the amounts he earned as a subcontrac-
tor for these employers .8 In spite of these defects, Turner, in
my judgment , testified in a convincing manner that he had
worked the jobs listed as interim employment in the
backpay specification during the periods indicated therein.
In these circumstances , I am persuaded that Turner did
7 The General Counsel examined Turner from a listing of his earnings
and employment record supplied by the Social Security Administration for
the years 1967 and 1968. This document did not show any record of any
earnings reported by employer Preston Hale for Turner . The document was
admitted into evidence as the TX Exh. 1. G .C. Exh. 3, received subsequent
to the trial herein , indicated that Preston Hale and another employer,
Hales & Reeves Co., Inc., reported Turner's wages as subcontract earnings.
Neither of these employers made deductions for Federal or state taxes.
Since the latter exhibit explains why there was no record of employment or
truthfully recount all of his interim employment and the
wages he earned. Any inconsistencies brought out on cross-
examination were due to the skill of the examiner in dealing
with a witness whose memory was slow and who could not
recall with precision the exact dates that he had worked on
the interim jobs. Moreover, as I have found that Turner did
account for all of his interim employment, it does not
appreciably effect the overall net backpay due him because
a shifting of the 'interim earnings would merely reduce the
net backpay for one quarter but increase it for a subsequent
quarter. Furthermore, the Respondent Union offered
nothing by way of probative evidence to establish that
Turner did not earn the interim wages set forth in the
backpay specification. In the absence of such evidence, I
cannot accept the Respondent Union's contention that
Turner's testimony must be rejected because he was not the
"perfect witness."
The Respondent Union's other contention regarding
Turner was that he did not prove that he was available for
employment during the backpay period. This position
ignores the burden which the law imposes upon the
Respondent Union to prove a willful loss of earnings by a
claimant. As stated in Mastro Plastics:
[W ]pile the general burden of proof is upon the General
Counsel to establish the damage which has resulted
from Respondent's established discriminatory dis-
charge, i.e., the gross backpay over the backpay period,
the burden of proof is upon the Respondent as to
diminution of damages, whether from the willful loss of
earnings by the failure to either look for or keep a
substantially equivalent job... 9
The Respondent Union did not present any evidence which
could have conceivably established that Turner failed to
make reasonable efforts to seek work during the backpay
period. Indeed, the Respondent Union merely points out
that Turner only paid two visits to the Texas Employment
Commission in Dallas, but ignores the fact that the
claimant sort and did in fact work at odd jobs in his trade
until he secured a steady position as a painter with
Southern Decorators. There is no requirement that a
claimant who has made reasonable efforts to seek out new
employment repeat specific job applications which he
knows are foredoomed. Cornwell Company, Inc., 171 NLRB
No. 43. Thus, I find that the Respondent Union has failed
to demonstrate by any probative evidence that Turner did
not make reasonable efforts to secure a gainful interim
employment or that he incurred a willful loss of earnings
during the backpay period. In the absence of such evidence,
it is clear that the General Counsel has established a prima
facie case regarding Turner's reasonable efforts to find
interim employment.10 Heinrich Motors, Inc., 166 NLRB
783; Mastro Plastics Corp., supra.
One other matter deserves attention here. Respondent
earnings listed by Social Security Administration for Turner from these two
employers , it is clear that Turner's testimony in this regard was in error.
8 G.C. Exh. 3, submitted after the conclusion of the trial on the backpay
issue.
9 Mastro Plastics Corp., 136 NLRB 1342, .1346, enfd. 354 F.2d 170 (C.A.
2, 1965), cert. denied 384 U.S. 972 (1966).
10 It should also be noted at this point, that Turner was precluded from
securing employment from the Dallas Local of the Painter's Union: until he
had straightened out the matter with the Respondent Union in Houston.
6630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union submitted an affidavit from one Paul Robertson,
superintendent on the Perfection job in Houston at the time
that Turner's employment was terminated. The affidavit
purports to state that Turner was not under any employ-
ment contract with Perfection and that Perfection was not
scheduled to paint 16 Shop Rite Food stores as found by
the Board in the underlying unfair labor practice case.
Aside from the fact that the Respondent Union failed to
affirmatively plead this as a defense in its answer to the
backpay specification, it should be noted that the
Respondent Union did not present Robertson as a witness,
nor was any explanation ever offered as to why Robertson
was not available to testify concerning the matters brought
out by the affidavit. In these circumstances, I consider the
affidavit to have no probative value in these proceedings.
CONCLUDING FINDINGS
On the basis of the above, I find that Turner is entitled to
be made whole under the Board's Order by payment to him
of the following amounts plus interest accrued to the date
of payment minus the tax withholding, if any, required by
Federal and State laws: 11
First Quarter 1967 (2-week period):
Gross Backpay
Less Interim Earnings:
Schultz
Perfection
Net Backpay
Second Quarter 1967:
Cross Backpay
Less Interim Earnings:
Landlord
Hancock
Prichard
Holcomb
Preston Hale
Net Backpay
Third Quarter 1967
Gross Backpay
Less Interim Earnings:
Hales & Reeves Co., Inc.
Net Backpay
Fourth Quarter 1967:
Gross Backpay
Less Interim Earnings:
Southern Decorators
Net Backpay
First Quarter 1968:
Gross Backpay
Less Interim Earnings
Net Backpay
$ 504.00
$ 60.00
71.00 131.00
373.00
3,276.00
125.00
160.00
50.00
16.00
625.00 976.00
2,300.00
3,276.00
1.320.00
1,956.00
3,276.00
1,400.27
1,875.73
3,276.00
1.343.25
1,932.75
11 The net backpay computation set forth herein is essentially that Perfection during the first quarter of 1967 and contains minor arithmetic
contained in the General Counsel's backpay specification except that it adjustments in the calculation.
reflects an amendment made during the proceedings to show earnings from
BROTHERHOOD OF PAINTERS , LOCAL 130 6636
Second Quarter 1968:
Gross Backpay 3,276.00
Leas Interim Earnings 1,442.26
Net Backpay 1,833.74
Third Quarter 1968:
Gross Backpay 3,276.00
Less Interim Earnings 1.132 . 09 2,143.91
Net Backpay 2,143.91
Fourth Quarter 1968
period) :
Gross Backpay
(3 1/2 week
882.00
Less Interim Earnings 429.77
Net Backpay 452.23
Total Net Backpay: $12,867.36
CONCLUSION OF LAW
Robert E . Turner is entitled to backpay in the amount of
$12,867 .36, plus appropriate interest but less taxes , if any,
withheld in accordance with Federal and state laws.
RECOMMENDED ORDER
of the foregoing findings of fact and conclusion of law, it is
ordered that the Respondent Union , Brotherhood of
Painters, Decorators and Paperhangers of America,
AFL-CIO, Local No . 130, its officers , agents, representa-
tives, shall pay to claimant, Robert E . Turner, as net
backpay the sum of $12 ,867.36 with interest at 6 percent per
annum and less any withholding taxes required by Federal
and state laws.
Pursuant to Section 10(c) of the Act, and upon the basis