J.E.L. Painting & Decorating

National Labor Relations Board - Board Decisions

Aug 7, 1991

303 N.L.R.B. 1029 (N.L.R.B. 1991)

1029
303 NLRB No. 163
J.E.L. PAINTING & DECORATING
1 The record shows that the Respondent’s agent, Jack Harvey, made the
statements in the area where employees were working. Seven people worked
at the jobsite: Quackenbush, Jack Harvey, Jack Harvey’s son, and four other
employees.
2 See Barnard Engineering Co., 295 NLRB 226 (1989), and Scott Lee
Guttering Co., 295 NLRB 497 (1989), where employees were similarly in-
formed that the exercise of Sec. 7 rights was the reason for discharge. 1 Unless indicated otherwise, all dates referred to are in 1990.
J.E.L. Painting and Decorating, Inc. and Inter-
national Brotherhood of Painters and Allied
Trades, Local 201. Case 3–CA–15899
August 7, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 10, 1991, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The General
Counsel filed exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and has decided to af-
firm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.
The judge found that the Respondent, J.E.L. Paint-
ing and Decorating, Inc., violated Section 8(a)(3) and
(1) of the Act by discharging Daniel Quackenbush on
September 5, 1990, because of his membership in the
Union. There were no exceptions to this finding. How-
ever, the General Counsel excepts to the judge’s fail-
ure to find that certain statements made at the time of
Quackenbush’s discharge independently violated Sec-
tion 8(a)(1) of the Act.
We find merit in the General Counsel’s exceptions.
The complaint alleges that the Respondent informed its
employees that an employee had been terminated be-
cause of his union membership. The General Counsel
provided unrebutted testimony that at the time the Re-
spondent discharged Daniel Quackenbush, it informed
Quackenbush in the presence of other employees that
he was discharged for being a union member and car-
rying a union book.1 Such a statement violates Section
8(a)(1) of the Act because it conveys the message to
employees that exercising their Section 7 right to join
a union is a reason for discharge.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, J.E.L.
Painting and Decorating, Inc., Clayville, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 1(b) and reletter
the subsequent paragraphs.
‘‘(b) Telling employees that another employee has
been discharged because of his membership in, or ac-
tivities on behalf of, the Union.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
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 or-
dered us to post and abide by this notice.
WE WILL NOT discharge our employees in retaliation
for their membership in, or activities on behalf of,
International Brotherhood of Painters and Allied
Trades, Local 201.
WE WILL NOT tell employees that other employees
have been discharged because of their union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights under Section 7 of the Act.
WE WILL offer Daniel Quackenbush immediate rein-
statement to his former position of employment or, if
that position is no longer available, to a substantially
similar position without prejudice to his seniority or
other rights and make him whole, with interest, for the
loss he suffered as a result of the discrimination
against him.
WE WILL remove from our files any reference to the
termination of Daniel Quackenbush and notify him in
writing that this has been done and that the evidence
of this unlawful activity will not be used as a basis for
future actions against him.
J.E.L. PAINTING AND DECORATING, INC.
Alfred M. Norek, Esq., for the General Counsel.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on April 1, 1991, in Albany, New York.
The complaint which issued on October 31, 1990,1 was
based on an unfair labor practice charge filed on September
13 by International Brotherhood of Painters and Allied
Trades, Local 201 (the Union), alleges that on or about Sep-
tember 5, J.E.L. Painting and Decorating, Inc. (the Respond-
ent), terminated the employment of Daniel Quackenbush due
to his membership in, or support for, the Union, in violation
of Section 8(a)(3) of the Act. Although Respondent, by Jack
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Counsel for General Counsel, in his brief, requests that I take judicial no-
tice of a Decision and Direction of Election involving Marx in Case 3–RC–
9350 which issued in 1988. In that case, jurisdiction was asserted over Marx
based on a stipulation that it purchased and received at its facilities and
jobsites in New York State goods, materials and supplies valued in excess of
$50,000 directly from points outside the State of New York.
Harvey, its vice president, filed an answer to the complaint,
it did not appear at the hearing.
On the entire record, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York State corporation with its prin-
cipal office located in Clayville, New York, is a painting
contractor; this much Respondent admitted in its answer. In
answer to the complaint allegation that in the past 12 months
Respondent derived gross revenue in excess of $50,000, of
which an amount in excess of $50,000 was derived from pro-
viding services to other enterprises directly engaged in inter-
state commerce, such as U. W. Marx Corp., Inc., Respondent
answered: ‘‘Monies received from U. W. Marx were under
$50,000.’’ In answer to the conclusionary allegation, Re-
spondent answered: ‘‘We do not have knowledge of Section
2(2), (6) and (7) of the Act.’’ To cover these deficiencies,
General Counsel issued subpoenas to Respondent (served on
March 2, 1991), for this jurisdictional information. In addi-
tion to the fact that Respondent failed to appear at the hear-
ing, it also failed to respond to any of the items specified
in the subpoena. At the hearing, in order to prove jurisdic-
tion, General Counsel called Frank Potter, business manager
for the Union for 10 years. He testified that he is familiar
with U. W. Marx Corp, Inc. (Marx); that it is a general con-
tractor performing large contracting projects, such as univer-
sity field houses and schools, in the area. He testified that
Marx’s gross revenue for projects performed in New York
state was over $10 million. One of the contracts Marx had
was with the State of New York to construct a drug rehabili-
tation school in Johnstown, New York (the Johnstown job).
This contract was for in excess of $1 million. Respondent
was awarded the painting contract for this job at a value of
about $100,000. Respondent remained on this job for 2 or 3
months without completing the job; it received between
$40,000 to $50,000 for the work performed at the Johnstown
facility.2 In addition, during this period Respondent also had
the painting contract for a job in Saratoga, New York (the
Saratoga job). Respondent was on this job for about 3
months; Potter estimated that this contract would therefore
have been valued far in excess of $60,000. He also testified
that the general contractor on the Saratoga job had gross rev-
enue in excess of $200 million in 1990.
Potter appeared to be a credible witness who was knowl-
edgeable and familiar with the industry and the area. While
the figures he testified to are ‘‘educated guesses’’ they seem
to be reasonable. Quackenbush, who worked about 10 days
for Respondent on both jobs, testified that he was paid the
‘‘prevailing wage’’ of almost $20 an hour and during this pe-
riod observed that Respondent had about seven employees,
including himself, Harvey, and Harvey’s son. The weekly
wages for seven employees at this hourly rate would be
$5600, not including fringe benefits and other expenses that
a contractor would he reimbursed for in a contract. This is
also not inconsistent with Respondent’s answer that the mon-
eys it received from Marx were under $50,000.
In Tropicana Products, 122 NLRB 121 (1958), the Board
stated that it would assert jurisdiction in cases where the em-
ployer refused to provide the Board agents with information
relevant to jurisdictional findings, as long as its statutory ju-
risdiction has been satisfied. In Air Control Products, 132
NLRB 114 (1961), the Board asserted jurisdiction based on
secondary evidence presented by former employees of the
employer. In the instant matter, because Respondent failed to
reply to the subpoena for jurisdictional facts, General Coun-
sel attempted to establish jurisdiction through Potter, the
Union’s representative in the area, the same manner that ju-
risdiction was proven in Tropicana. As the subpoenas were
properly and timely served upon Respondent and were not
complied with, I find that General Counsel can use the testi-
mony of Potter to establish that Respondent’s operation satis-
fies its statutory jurisdictional requirements. I also find that
Potter’s credible uncontradicted testimony establishes that
Respondent’s operation satisfies the Board’s statutory juris-
diction. I therefore find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Potter testified that he represents the Union in a certain
portion of New York State. He negotiates contracts with em-
ployers in the area on behalf of the Union and polices the
area to determine whether these contracts are being complied
with. The Union exists for the purpose of negotiating the rate
of pay and working conditions of its members and its mem-
bers participate by attending the Union’s monthly meetings.
I find that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. FACTS AND ANALYSIS
Because Respondent failed to appear at the hearing, my
findings are based solely on the testimony of Quackenbush,
a credible and (obviously) uncontradicted witness.
Quackenbush has been a painter for about 20 years and has
been a member of the Union since May 1989. On or about
August 24, he was at the Johnstown job looking for work
and was referred to Jack Harvey, Respondent’s vice presi-
dent. He saw Harvey and asked him if he was hiring paint-
ers; Harvey asked him if he had a union book and he said
that he did not. He then told Harvey about his experience
and Harvey gave him his telephone number and told him to
call him that evening. He did so and Harvey told him to re-
port for work the next morning at the Saratoga job, where
Respondent was performing the painting work. On August 25
Harvey had a meeting with the employees and told them that
those that wanted to work for him were hired. Quackenbush
worked a full day that day (a Saturday), but did not work
the following day. Quackenbush worked, at least, 7 hours
each day for Respondent from Monday, August 27, through
Monday, September 3 (the Labor Day holiday), at the Johns-
town job, except that he did not work on Sunday, September
2. On Tuesday, September 4, he worked 7 hours for Re-
spondent at the Saratoga job, and was told to report to the
Johnstown job the following day. He reported as directed on
Wednesday, September 5, to the Johnstown job; while he
1031J.E.L. PAINTING & DECORATING
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
4 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
was having his lunch, Harvey told him that he was going to
fire him because he heard that Quackenbush had a union
book; he didn’t want any problems, but he had gotten caught
before. This was his livelihood, and if he slipped up again
he would he in trouble. Quackenbush said that he had no
reason to fire him and that he would go to the Board. Harvey
yelled: ‘‘I knew it; that’s union talk.’’
It does not require an extensive analysis of Wright Line,
251 NLRB 1083 (1980), to determine that Respondent has
violated Section 8(a)(1) and (3) of the Act. When he hired
Quackenbush on August 25 he asked him if he had a union
book; Quackenbush answered, untruthfully, that he did not.
With the exception of Sundays he worked every day for Re-
spondent until, September 5; he even worked at premium
rates on Labor Day, September 3. On September 5, Harvey
told him that he was fired because Harvey had learned that
he had a union book. I therefore find that by firing
Quackenbush on September 5, because of his membership in
the Union, Respondent violated Section 8(a)(1) and (3) of the
Act.
CONCLUSIONS OF LAW
1. Respondent J.E.L. Painting and Decorating, Inc. is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the Act
by discharging employee Daniel Quackenbush on or about
September 5, 1990.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it he ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act, to wit, that
Respondent offer Quackenbush immediate reinstatement to
his former position of employment or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
to remove from its files any reference to his termination. It
is also recommended that Respondent be ordered to make
Ouackenbush whole for any loss of earnings he suffered by
reason of his discharge. Backpay shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
and New Horizons for the Retarded, 283 NLRB 1173 (1987).
See generally Isis Plumbing Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, J.E.L. Painting and Decorating, Inc.,
Clayville, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging its employees in retaliation for their mem-
bership in, or activities on behalf of, the Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Daniel Quackenbush immediate reinstatement to
his former position of employment or, if that position is no
longer available, to a substantially similar position without
prejudice to his seniority or other rights, and make him
whole for the loss he suffered as a result of the discrimina-
tion in the manner set forth above in the remedy section of
this decision.
(b) Remove from its files any reference to the termination
of Daniel Quackenbush and notify him in writing that this
has been done and that the evidence of this unlawful activity
will not be used as a basis for future actions against him.
(c) Preserve and, on request, make available to the Board
or its agents for examination or copying, all records and doc-
uments necessary to analyze and determine the amount of
backpay owed to Daniel Quackenbush.
(d) Post at its office, and all of its jobsites, copies of the
attached notice marked ‘‘Appendix.’’4 Copies of the notice
on forms provided by the Regional director for Region 3,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(e ) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.