Lloyd Painting Co.

National Labor Relations Board - Board Decisions

Jun 30, 2000

331 N.L.R.B. 615 (N.L.R.B. 2000)

LLOYD PAINTING CO. 615
Gary Lee Lloyd d/b/a Lloyd Painting Company and
Painters and Allied Trades, District No. 36 affili-
ated with International Brotherhood of Painters
and Allied Trades. Case 31–CA–23898
June 30, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND BRAME
On March 3, 2000, Administrative Law Judge Gerald A.
Wacknov issued the attached decision. The General Coun-
sel filed exceptions and a supporting brief, and the Respon-
dent filed an answering brief.
The National Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions and to adopt
the recommended Order.2
ORDER
The complaint is dismissed.

Brian Gee, Esq., for the General Counsel.
James B. Markum, Esq. (Hodge & Markum), of Victorville, Cali-
fornia, for the Respondent.
Alexander Lopez, Business Representative, of Pasadena, California,
for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice a hearing in this matter was held before me in Los
Angeles, California, on December 6, 1999. The original charge
was filed by Painters and Allied Trades, District No. 36, affiliated
with International Brotherhood of Painters and Allied Trades (the
Union) on May 19, 1999, and was amended on August 30 and
again on September 9, 1999. On September 16, 1999, a complaint
and notice of hearing was issued by the Regional Director for Re-
gion 31 of the National Labor Relations Board (the Board) alleging
violations by Gary Lee Lloyd d/b/a Lloyd Painting Company (the
Respondent) of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (the Act), and an amended complaint was issued by the
Regional Director on November 5, 1999. The Respondent, in its
answers to the complaint and amended complaint, duly filed, de-
nies that it has violated the Act as alleged.

1 The General Counsel has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry Wall
Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing the find-
ings.
In his decision, the judge credited testimony by the Respondent’s owner,
Gary Lee Lloyd, that the Respondent completed work at the Victorville
Federal Prison on April 29, 1999. The judge also stated, inaccurately, that
the General Counsel failed to call a representative of the general contractor
on the project to testify concerning the completion date of the Respondent’s
painting subcontract, and that the General Counsel failed to argue in his
posthearing brief to the judge that there was any further work for the Re-
spondent at the jobsite at the time it ceased work. However, these errors do
not affect our decision. In this regard, the record shows that the General
Counsel called Reece Steele, business services manager of J. A. Jones Con-
struction Company, who testified that the Respondent had two subcontracts
at the Victorville jobsite, which were scheduled to be completed between
March and August 1999. Steele further testified that the Respondent com-
pleted work on both contracts, but that he did not know the date on which
the work was completed. We find that this testimony does not contradict
Lloyd’s credited testimony concerning the date on which the work was
completed.
2 The Respondent attached to its answering brief an affidavit and related
cover letter. We have not considered these documents as they are not part of
the record in this case.
The parties were afforded a full opportunity to be heard, to call,
examine and cross-examine witnesses, and to introduce relevant
evidence. Since the close of the hearing, briefs have been received
from counsel for the General Counsel (the General Counsel) and
counsel for the Respondent. On the entire record, and based on my
observation of the witnesses and consideration of the briefs submit-
ted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a sole proprietorship engaged in business as a
painting contractor, with an office and place of business located in
Hesperia, California. During the 12 months preceding the issuance
of the complaint the Respondent has provided services to J. A.
Jones Construction Company within the State of California valued
in excess of $50,000. J. A. Jones Construction Company, a North
Carolina corporation general contractor engaged in general con-
struction in Victorville, California, annually purchases in excess of
$50,000 worth of goods and services directly from points outside
the State of California for use at its California jobsites, including
the jobsite directly involved here. On the basis of the foregoing, I
find that the Respondent is engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all material times the Union is
and has been a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this proceeding are whether the Respon-
dent has violated Section 8(a)(1) and (3) of the Act by coercively
interrogating employees and by discharging employee Timothy
Golding.3
B. The Facts
The Respondent, a painting contractor, was hired by J. A. Jones
Construction Company, a general contractor, to perform certain
painting work at the Victorville Federal Correctional Project for the
Federal Bureau of Prisons, a prevailing wage job under the Davis-
Bacon Act.
Timothy Golding began working for the Respondent on March
8, 1999,4 at the Victorville Federal Prison facility, and was given
the job of painting sprinkler pipes. At first several other painters
worked with him, and about 2 weeks later the Respondent hired an
apprentice, Dan Fernandez, to work with Golding. Thereafter, just
3 The compliant was amended at the hearing to delete the allegation that
Daniel Fernandez was also unlawfully discharged.
4 All dates or time periods hereinafter are within 1999 unless otherwise
specified.
331 NLRB No. 79
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 616
Golding and Fernandez were assigned to this particular job, al-
though the Respondent had other painters performing other work at
the same facility.
Golding testified that when he was hired he had a discussion
with Gary Lee Lloyd, the Respondent’s owner, regarding wages.
Lloyd told him that it was a prevailing wage job, that Golding
would be making $23.42 per hour as a journeyman, and that other
painters made lesser amounts depending upon their experience.
Golding testified that on April 20, Ron Wheatly, a union repre-
sentative, came to the jobsite. Wheatley, in the presence of Fer-
nandez, asked Golding if he was making union scale on the job.
Golding said that he was. Wheatly asked if he was interested in
joining the Union. Golding replied that he had formerly been a
union member, and would consider rejoining the Union if
Wheatley could help him obtain the pension benefits that he be-
lieved he had earned during the period of his prior union member-
ship, but which, due to a paperwork error or deficiency, had been
denied him. Wheatley took some information from him and said
that he would contact him.
Approximately 45 minutes later, according to Golding, Lloyd
called him on the cell phone and said that he had received a phone
call regarding a union representative being on the job, and that
Golding and Fernandez were not to speak with the representative;
rather, they were to give him the Respondent’s phone number and
refer him to Lloyd for any information. Golding did not tell Lloyd
that Golding and Fernandez had already spoken to Wheatly. There
was no further mention of the matter.
Golding testified that on Thursday, April 29, at about 2:30 p.m.,
Lloyd called Golding on the cell phone and told him to “clean up
the pump and spray rigging and get all the paint and bring it all into
the shop because he was pulling off the job.” According to Gold-
ing, Lloyd said that he had other jobs that needed to be completed,
that he was “swamped with work,” and that Golding and Fernan-
dez would be back out on the prison job as soon as he had caught
up with the other nonprison jobs that had been scheduled. When
Lloyd’s son, Darren Lloyd, came to the jobsite that afternoon to
pick up the spray rig and materials, he told Golding that he was not
aware of any reason why the Respondent would be pulling off the
job, and said that he thought work was slow. According to Gold-
ing the painting work at the prison was not near completion, and
there was sufficient work for approximately another month and a
half. Thus, Golding testified, “[A]t that point in time we were
spraying primer on spot welds and a corrugated ceiling and we still
had four or five mechanical rooms to complete.”
On Friday, April 30, Golding and Fernandez, who rode together,
reported to the Respondent’s shop. According to Golding, other
employees were present. Lloyd, dismissing the rest of the crew by
sending them to the warehouse, asked Golding and Fernandez what
was said during their conversation with the union representative out
on the job, allegedly referring to the aforementioned April 20 con-
versation they had with Wheatly. Golding related the conversation
to him. Golding does not recall whether Lloyd asked Fernandez
anything. Golding then handed Lloyd the daily reports regarding
the work that had been done on the prison job each day, and Lloyd
“got agitated” about the reports and tore them up and threw them in
the trash. Then, according to Golding, Lloyd brought the 9 or 10
other painters in from the warehouse area and assigned them work.
Only Golding and Fernandez were not assigned work that day.
Golding asked why he was not assigned any work, and Lloyd said
that things were slow and that there was no work for them. Gold-
ing replied that there was still a lot of work at the prison, and Lloyd
said that he was pulling off the job because “they owed him back
money and he wasn’t going to invest any more time in out there
until they paid him up.” Golding asked why one employee, who
had been hired after Golding, had been assigned work that morning
rather than Golding. Lloyd said that the painters who were as-
signed work “were already on homes that they were painting and
that they knew what they were doing, where to go, and that was
about it.” Lloyd said that his son had a side job that weekend and
might need some help, but that he would have to talk to his son
about it. He told Golding to call in and that if there was any week-
end work he would call Golding.5
On Monday, May 3, Golding did not call in but rather went to
the shop. Lloyd asked him if he knew who Alex Lopez was.6
Golding said no. Lloyd said that he didn’t know who Alex Lopez
was either but that he had heard that Golding and Fernandez had
been talking to union representatives out on the jobsite. Golding
acknowledged this, and said that their conversation with the union
representative did not pertain to the work they were doing, but that
the union representative was only wanting him to join the Union.
Lloyd told him there was no work for him that day.
Golding called Lloyd the next day, May 4, and inquired about
work. There was no work. He went to the shop the following day,
and was told there was no work, and that Lloyd would contact him
if there was any work. He phoned on May 6 and inquired about
work, and Lloyd said there was no work. On May 7, he called in
the morning and was told there was no work, and then went to the
shop at about noon, and was again told there was no work. On this
occasion, Lloyd told him that he heard that Wilson and Hampton, a
painting contractor, was hiring out at the prison site.7 Golding con-
tacted Lloyd again on May 13, and again on May 18,8 and was told
there was no work.
Fernandez did not testify in this proceeding.
Lloyd testified that on about April 29 he received a call from
Bruce Heckert, the project/accounting manager for J. A. Jones
Construction Company, asking him to come out to the prison and
discuss a matter with Ana Hansen, whom he identified as being
from the “compliance department.” On about April 22, Heckert
had received a Freedom of Information Act request from Hansen, a
case investigator for Southern California Painting and Dry Wall
Industries Apprenticeship Trust-Public Works Compliance, re-
questing that J. A. Jones submit the “certified payroll records” of
the Respondent. Heckert apparently wanted Lloyd to straighten
this out with the Union. Lloyd met with Heckert at the prison site,
and Heckert asked him to phone Hansen from Heckert’s office.
During the phone conversation Hansen proceeded to tell Lloyd that
he had not been paying his employees the correct wages and that he
was not in compliance with Davis-Bacon Act requirements. Lloyd
disagreed, stating that before bidding the contract he had called the
Painters’ union to find out what the prevailing wage was for the
job. Hansen also told him that he was not permitted to use his own
apprentices on the job, but was required to obtain apprentices from
the apprenticeship training program. Lloyd had not been made
aware of this requirement. Lloyd told Hansen that he would have to
call his attorney about the matter.

5 Golding filed a claim for unemployment insurance shortly thereafter.
Under the heading “Reason for Separation,” the form submitted to the Re-
spondent by the California Employment Development Department states,
“Laid off lack of work. Indefinite.”
6 Lopez is a union business representative.
7 In fact, Golding rejoined the Union and began working for Wilson and
Hampton at the prison site on about May 10.
8 The record does not show whether this was by phone or in person.
LLOYD PAINTING CO. 617
Lloyd testified that on April 29, the same day he received the
call from Heckert and spoke with Hansen, the work on the time and
materials “purchase order” contract for touching up the steel,
namely, the work that that Golding and Fernandez had been hired
to perform, had been completed. At the same time the Respondent
had completed other work pursuant to a separate and distinct con-
tract at the prison, performed by about five additional painters.
Thus, as of April 29 there was no further work to complete. He
told Golding on that day that the work was completed and that
Golding should put what materials he could into his truck and that
he was sending out his son, Darren, with a larger truck to pick up
ladders, scaffolding, and other equipment. Golding, according to
Lloyd, was well aware that the work had been completed and that
there was no more work to perform. Thus, in mid-April, Golding
came to him and inquired about whether there was any additional
work to do at the prison after he and Fernandez completed the
touch up work on the steel. Lloyd said no. Golding said that since
there was only a couple of weeks of touch up work remaining, “do
you want me to like stretch it out a little bit because it’s time and
materials.” Lloyd said no.
According to Lloyd, on Friday, April 30, a payday, Golding
came to the shop to pick up his check. When Lloyd gave him his
check Golding mentioned that someone from the Union had told
him that he had not been receiving the correct wages. Lloyd, hav-
ing had the conversation with Hansen the day before about prevail-
ing wage discrepancies, said that he needed to get to the bottom of
this and rectify the matter as quickly as possible. He asked Gold-
ing the name and number of the union representative that Golding
had spoken with so that he could get the situation straightened out
as soon as possible as this would affect his bid on an upcoming job
for the painting of handrails which was to begin in August. Lloyd
testified that he did not tear up the work reports that Golding
handed him at that time. According to Lloyd, Golding never came
to the shop or called in after April 30, and Lloyd had no further
contact with Golding whatsoever until August when he happened
to see Golding working at the prison for Wilson and Hampton, a
union painting contractor.
Lloyd denied that he had a conversation with Golding on about
April 20 about union representatives being on the job, or that he
ever told Golding not to speak with union representatives on the
job. Nor did Golding ever tell him that he was joining the Union.
Other than the one April 30 conversation, there were no other con-
versations with Golding.
Lloyd testified that between April 29 and August, the Respon-
dent performed no further work at the prison because the work had
been completed. Further, work was very slow for the Respondent
after April 29. The Respondent’s payroll records show that it em-
ployed no painters from about April 29 until the payroll period
beginning June 3. Lloyd testified that the available work was given
to his regular painters who called in to seek work, and that Golding
never called in to seek work.
Analysis and Conclusions
The record evidence is clear that, as I find Lloyd credibly testi-
fied, the Respondent had completed all of the work at the prison
jobsite by April 29, and had no further work to perform at that
location. If in fact this were not the case, the General Counsel
could have easily demonstrated this by calling a representative of
the general contractor, J. A. Jones Construction Company, to show
that the Respondent pulled off the job in a precipitous manner, as
alleged by Golding. In fact, the General Counsel produced no such
evidence, and does not even appear to maintain in his brief that
there was any further work for the Respondent at the jobsite. Ac-
cordingly, I do not credit the testimony of Golding that there was
work yet to be completed.
Further, given the fact that Golding would deign to give such in-
accurate testimony on this point, I am similarly suspicious of the
accuracy of the remainder of his testimony. And regarding the
alleged April 20 phone call from Lloyd inquiring about the pres-
ence of a union representative on the job, it is significant that the
General Counsel did not produce Fernandez as a witness to cor-
roborate Golding’s testimony. Fernandez, insofar as the record
shows, although not wanting to become involved in this matter,
was certainly available and could have been readily contacted and,
if necessary, subpoenaed by the General Counsel. On the other
hand, Lloyd impressed me as a forthright witness, and the scenario
herein presented by the Respondent seems to be more plausible and
likely than the scenario presented by Golding and the General
Counsel.
I conclude that the only time Lloyd asked Golding any questions
about the Union was on April 30, in response to Golding’s remark,
after he received his final paycheck, that he had learned from a
union representative that he had not been paid the appropriate pre-
vailing wage. Lloyd, having been admonished the day before by
Hansen, was concerned about this matter, and asked the name and
phone number of the union representative who spoke with Golding.
Obviously, this was a noncoercive type of question, and in fact
Golding could have reasonably assumed that the question was
designed to assist Lloyd in determining that Golding would be paid
correctly. Thereafter, I find, Golding did not contact the Respon-
dent for further work, and, even if he did, no work was available as
the Respondent’s business was very slow at the time.
Assuming arguendo that the General Counsel has presented a
prima facie case, I conclude that the Respondent has amply demon-
strated that Golding was neither discharged nor thereafter refused
employment because of his alleged union affiliation or activity.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
On the basis of the foregoing, I shall dismiss the complaint in
this matter.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Respondent has not violated Section 8(a)(1) and (3) of
the Act as alleged.
On these findings of fact and conclusions of law, I issue the fol-
lowing recommended9
ORDER
The complaint is dismissed in its entirety.

9 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 objections to them shall be deemed waived for all purposes.