Baltimore Paint and Chemical Corp.

National Labor Relations Board - Board Decisions

Oct 30, 1964

149 N.L.R.B. 368 (N.L.R.B. 1964)

368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof and maintained by it for 60 consecutive days thereafter in such conspic-
uous places. Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20, in writing, within 20 days
from the receipt by Respondent of a copy of this Decision, what steps it has taken
to comply herewith.?
It is further recommended that unless on or before 20 days from the receipt of
this Decision and Recommended Order Respondent notify the Regional Director
that he will comply with the foregoing recommendations, the National Labor
Relations Board issue an order requiring Respondent to take the action aforesaid.
7 In the event that this Recommended Order be adopted by the Board paragraph 2(c)
shall be modified to read* "Notify the Regional Director for Region 20, in writing, within
10 days from the date of this Order, what steps Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
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 our employees that:
WE WILL NOT refuse to bargain collectively with Independent Guards
Association of Nevada, Local No. 1, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT in any manner interfere with the efforts of Independent
Guards Association of Nevada, Local No. 1 to bargain collectively as the
exclusive representative of the employees in the bargaining unit described
below.
WE WILL, upon request, bargain with Independent Guards Association of
Nevada, Local No. 1, as the exclusive representative of all the employees in
the bargaining unit described below with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment. The
bargaining unit is.
All employees of Thunderbird Hotel, Inc ; and Joe Wells, James
Schuyler, and William Deer co-partners, d/b/a Thunderbird Hotel Com-
pany at the Winchester, Clark County, Nevada, operations of such em-
ployers, employed as security guards and timekeepers, but excluding all
other employees, clockmen or fire watchers, office clerical employees,
professional employees, and supervisors as defined in the Act.
THUNDERBIRD HOTEL INC.; AND JOE WELLS, JAMES SCHUYLER
AND WILLIAM DEER, CO-PARTNERS, D/B/A THUNDERBIRD
HOTEL COMPANY,
Employer.
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 450
Golden Gate Avenue, Room 13050, San Francisco, California Telephone No.
556-3197, if they have any questions concerning this notice or compliance with
its provisions.
Baltimore Paint and Chemical Corporation and Brotherhood of
Painters, Decorators and Paperhangers of America , AFL-CIO.
Case No. 5-CA.-273. October 30, 1964
DECISION AND ORDER
On August 10, 1964, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respond-
149 NLRB No. 44.
BALTIMORE PAINT AND CHEMICAL CORPORATION 369
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision. The Trial Examiner also found that the Re-
spondent had not engaged in certain other unfair labor practices and
recommended that the complaint be dismissed as to such allegations.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a supporting brief. The Respondent also filed a
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 Examiner's Decision and the entire record in the case, including
the exceptions 1 and briefs, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts, as its
Order, the Order recommended by the Trial Examiner and orders
that Respondent, Baltimore Paint and Chemical Corporation, its of-
ficers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
1 We find no merit in the General Counsel's exceptions in the absence of evidence estab-
lishing that the Trial Examiner ' s credibility findings were unwarranted. See Standard
Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case , heard before Trial Examiner Frederick U. Reel at Baltimore, Mary-
land, on June 8, 1964 , 1 pursuant to a charge filed the preceding March 5 and a
complaint issued April 29, presents questions whether the Respondent violated
Section 8 (a)(1) of the Act by unlawfully interrogating and threatening em-
ployees as to their union activity, and violated Section 8 ( a)(3) and ( 1) of the Act
by discharging four employees because of union or concerted activities.
Upon the entire record in the case,2 including my observation of the witnesses,
and after due consideration of the briefs filed on behalf of General Counsel and
Respondent , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
Respondent , herein called the Company , a Maryland corporation engaged at
Baltimore in manufacturing paint, annually ships over $50,000 worth of goods
1 All dates herein refer to the year 1964 unless otherwise indicated.
2 After the close of the hearing, the parties' entered Into a stipulation , which was duly
forwarded to me with an accompanying motion that it be received in evidence as Trial
Examiner 's Exhibit No. 1. That motion is herewith granted.
770-076-65-vol. 149-25
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and materials from Baltimore to points outside the State,, and is concededly en-
gaged in commerce within the meaning of the Act. The Charging Party,
herein called the Union, is a labor organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The complaint alleges that in mid-February General Manager Levenson and
Plant Superintendent Gillis interrogated employees as to their union activity and
sympathies, threatened them with reprisals if they selected the Union to represent
them, and promised them benefits if they did not. The complaint also alleges
that at about the same time Foreman Bresnahan threatened an employee with
reprisal for having selected the Union as his bargaining representative. The
evidence in support of these allegations is contained in the testimony of employee
Gilbert Elliott. As more fully detailed below, Elliott and another employee,
George Nelson, met with Levenson on February 15 in a discussion which cen-
tered on the Union's efforts to organize, and Elliott made it clear -that he was a
union supporter. In the course of the conversation Levenson observed that the
Company had enough paint in its warehouse "that we could shut this place down
fora year" and that if a union succeeded in organizing the plant, the Company
"would have to lay you off 3 months a year." The following Monday, February 17,
Supervisor Gillis remarked to Elliott, "Why do you get yourself involved in
stuff like this?" That evening, Foreman Bresnahan told Elliott that when Bres-
nahan left, Elliott might get the foreman's job, and Elliott should therefore
continue his good work "and take it easy." The next day Bresnahan told Elliott
how valuable an employee Elliott was, to which the latter replied that after his
conversation with Levenson the preceding Saturday he "probably [would not] be
here too much longer." Bresnahan responded: "Oh, no, I know they'll probably
do something but you're not going to be fired because they made that mistake
last year" (apparently a reference to a prior unfair labor practice case which the
Company lost, 135 NLRB 87, enfd. 308 F. 2d 75 (C.A. 4) ). Elliott's discharge
later that day is discussed infra. '
Bresnahan's advice to "take it easy" seems to me too ambiguous to be evidence
of an, unfair labor practice. Gillis'^query as to why Elliott got "involved in stuff
like this" can scarcely be deemed unlawful interrogation as Elliott had already
volunteered his reasons for supporting the Union in his conversation with Leven-
son. On the other hand, Levenson's threat to shut the plant if the Union came in
constituted interference, restraint, and coercion violative of Section 8(a)(1).
Also, Foreman Bresnahan 's comment that the Company would "probably do
something" to Elliott as a result of his conversation with Levenson was a predic-
tion that some reprisal would be visited upon Elliott for his support of the Union,
and hence further violated Section 8(a)(1).
B. The discharges
As noted above, on Saturday, February 15, employees Nelson and Elliott iden-
tified themselves as leading proponents of the Union. The following Tuesday
afternoon (at the end of the pay period) they were discharged, ostensibly for lack
of work. Two other employees, Robert Dent and C. H. Reid, were discharged at
the same time. The men were told at the time of their discharge that it was
occasioned by lack of work, and they were told they should apply for rehire in
6 to 8 weeks. Elliott was in fact rehired in mid-April and Nelson refused reem-
ployment at that time. The 4 men discharged were the junior employees of the
15 to 20 employed in the oil paint manufacturing department; Reid had been at
work for 1 week and Dent for 12 weeks at the time of their termination, while
Elliott had 3 weeks' seniority over Dent and Nelson 3 weeks' over Elliott. Gener-
al Counsel's theory is that Elliott and Nelson were discharged for their union
activity, and that Dent and Reid were discharged because they were junior to the
intended victims and had to go to furnish an air of plausibility to the Company's
defense of economic necessity. See Wonder State Manufacturing Company v.
N.L.R.B., 331 F. 2d 737, 738 (C.A. 6); Majestic Molded Products, Inc. v.
-N.L.R.B., 330 F. 2d 603, 606 (C.A. 2). The circumstantial evidence goes far to
'sustain General Counsel's theory. ' Elliott and' Nelson' revealed their prounion
stand in a conference with the general manager only 2 working days before
their discharge., Company hostility to the Union was apparent at this meet-
ing. The Company, had an expressed policy against "laying off" employees,
and had not previously done so even in slack periods. After the discharges;
BALTIMORE PAINT AND' CHEMICAL CORPORATION 371
Foreman Bresnahan spent what was for him an unusual amount of time in
production work, operating the machine Elliott had formerly worked on. Two
employees were transferred into the department from another department after the
discharges in question. The water base paint division and the oil base paint
division are both in the "trade sales department," and employees junior to Nelson
and Elliott were retained in the water base paint division, although Elliott testified
that he could mix water base as well as oil base paints.
The Company to some extent explained some of the foregoing circumstances
in such a fashion as to neutralize their impact. The company policy against
layoff was explained as applicable only to employees with more than 6 months'
continuous tenure. The transfers from the other department were occasioned by
lack of work there, and were given on a part-time basis to two men training to
become qualified oil base paint mixers. By the time these two men were put in
the department on a full-time basis, work had picked up, Elliott had been rehired,
and Nelson had been offered reemployment. Also, the Company denied that a
mixer of oil base paints could transfer to mixing water base paints without
intensive training in the latter work, and explained the qualifications in that
respect of the men retained in the water base department.
The crucial fact in the case, however, is a memorandum from Company Presi-
dent O'Brien to General Manager Levenson. This memorandum, dated February
14, 1964, reads as follows:
In view of the fact that we are into our slow season, I wish you would take
immediate steps to reduce your work force in the Trade Sales Oil Paint
Manufacturing Department.
O'Brien testified that he sent this memorandum when he discovered that employ-
ment in the Trade Sales Department was five above the figure for the preceding
October. Realizing that the Company was entering its slack season, and notic-
ing that oil base paint production and inventory were too high when compared
with those for water base paint, O'Brien ordered-the reduction in the oil base paint
division. According to both O'Brien and Levenson, O'Brien orally told Levenson
to cut the staff by five, and Levenson met this directive by transferring one man
to another division and discharging the four here in issue. If O'Brien 's testi-
mony is credited, the Company's defense is established; General Counsel is left
only with the argument that Elliott and Nelson might have been moved to other
work, and as to this I credit the testimony that the water base men had special
experience or training.3 If, on the other hand, O'Brien's testimony is not credit-
ed, then the General Counsel's case is established, for the Company will have put
on false testimony and introduced a spurious memorandum, and I would infer
that it was attempting by such reprehensible means to cover up its real reasons
for letting Elliott and Nelson go.
There are , to be sure, many suspicious circumstances attending the memoran-
dum. Although it bears the date of Friday, February 14, it did not reach Leven-
son, located in a building only a few hundred feet away, until the following
Monday or Tuesday. O'Brien could not recall how or when he gave the word to
Levenson that five men were to be removed from the department. He explained
the failure to produce the stenographic notebook which might establish the date
he dictated the memorandum by testifying that he had not dictated it in the
course of normal dictation in his office, but had stood at his secretary's desk and
she "scratched it down on a piece of paper."
Employers in cases of this nature have been known to testify falsely, and the
step between giving false testimony and preparing a fabricated memorandum is
not a long one. On the other hand, coincidences do occur in life, and it is not
beyond possibility that the fate of Nelson and Elliott was sealed on Friday, the
day before they revealed to the Company their support of the Union. In the final
analysis, and with due regard for the suspicious circumstances, I am unwilling to
discredit O'Brien, whose demeanor (unlike that of Levenson) lent credence to his
testimony, and whose affiliation with this Company postdates its prior unfair labor
practices. I therefore recommend dismissal of the complaint insofar as it alleges
discrimination against four employees for union activity.
'
General Counsel also argues that the trade sales department had already been reduced
by two in the week ending February 14, and that O'Brien was not aware of this when he
wrote_ his memorandum. But according to Levenson, the oral directive to reduce by five
was given the following week at which time both Levenson and O'Brien knew of the two-
man cutback.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Company by threatening reprisals against its employees for union
activity has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a) (1) and Section 2(6) and (7) of the Act.
2. The Company has not engaged in acts of discrimination violative of Section
8(a) (3) of the Act.
THE REMEDY
I shall recommend that the Company cease and desist from the unfair labor
practices found, and that it post an appropriate notice.
Accordingly, upon the foregoing findings and conclusions and upon the en-
tire record, I recommend, pursuant to Section 10(c) of the Act, issuance of the
following:
RECOMMENDED ORDER
Respondent, Baltimore Paint and Chemical Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from threatening its employees with reprisal for union
activities, from threatening to shut the plant for a period if a union succeeds in
organizing it, and from in any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights under Section 7 of the
Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Post at its plant in Baltimore, Maryland, copies of the attached notice
marked "Appendix." 4 Copies of said notice, to be furnished by the Regional
Director for Region 5, shall, after being duly signed by an authorized represent-
ative of the Respondent, be posted immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily posted
Reasonable steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 5, in writing, within 20 days
from the date of the receipt of this Decision what steps the Respondent has taken
to comply herewith.5 _
41T this Recommended Order be adopted by the Board, the words "as Ordered by" shall
be substituted for "as recommended by a Trial Examiner of" in the notice In the further
event that the Board's Order be enforced by a United States Court of Appeals the wards
"a Decree of a United States Court of Appeals, Enforcing an Order of" shall be inserted
immediately following "as Ordered by."
In the event that this Recommended Order is 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 the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board
we are posting this notice to inform our employees of the rights guaranteed
them in the National Labor Relations Act:
ALL OUR EMPLOYEES have the right to join or assist Brotherhood of
Painters , Decorators and Paperhangers of America , AFL-CIO, or any other
labor organization , or to refrain from doing so.
WE WILL NOT interfere with our employees in their exercise of these rights.
WE WILL NOT threaten our employees with reprisal for any activity on
behalf of a labor organization.
WE WILL NOT threaten to shut down for a period if a union becomes the
representative of our employees.
BALTIMORE PAINT AND CHEMICAL CORPORATION,
Employer.
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.
POTTER ELECTRIC SIGNAL COMPANY 373
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, 707 N. Calvert Street, Baltimore , Maryland, Telephone No. 752-8460, Ext.
2100, if they have any question concerning this notice or compliance with its
provisions.
Potter Electric Signal Company and International Guards Union
of America . Case No. 9-CA-3044. October 30, 1964
DECISION AND ORDER
On June 22, 1964, Trial Examiner James F. Foley issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Decision and a
supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman McCulloch and Members Leedom 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 exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
1 The Trial Examiner refused to allow the Respondent to continue cross-examining
Heheman, an official of the Charging Union , in its effort to develop that the Charging
Union was somehow affiliated with a Local of the Teamsters Union . It is clear from the
record that Respondent 's only ground for doubting Heheman's testimony that no affiliation
between the two unions existed is the fact that the Charging Union filed its petition for
a guard unit the day after the Teamsters Local withdrew its petition for a unit of non-
guard employees . This would be insufficient to estaiblish an affiliation between the two
unions even if the petition for a guard unit had been filed as a direct result of the with-
drawal of the earlier petition . We affirm the Trial Examiner 's ruling shutting off further
cross-examination of Heheman on this point after it became apparent that Respondent had
no other grounds for controverting Heheman ' s testimony as to the absence of affiliation
between the two unions. The lack of any factual allegations in its offer of proof that, if
permitted to continue questioning Heheman it could obtain an admission from him as to
affiliation , substantiates our conclusion that further examination would only have been
repetitious.
2 We agree with the Trial Examiner that cases such as Berea Publishing Company, 140
NLRB 516, and Carlisle & Jacqueline, 55 NLRB 678 , are not applicable to dual-function
guards or guard unions . The latter case , in effect , holds that because a dual -function em-
ployee may be included in more than one unit , his representative in one unit may not
bargain with respect to functions which have been excluded from that unit. But since
employees who regularly perform both guard and nonguard work may not be represented
by a nonguard union for any purpose , St. Regis Paper Company, 128 NLRB 550, their
only opportunity for full representation must come from a guard union. The legislative
history to Section 9 ( b) (3), cited by Respondent , does not convince us that Congress in-
tended otherwise . Congress was concerned with the possibility of a Conflict of interest if
a union represented both guards and other employees . No such conflict arises when a guard
union is permitted to represent employees who in their own person combine guard and
nonguard duties.
149 NLRB No. 38.