Richardson Paint Co.

National Labor Relations Board - Board Decisions

Nov 1, 1976

226 N.L.R.B. 673 (N.L.R.B. 1976)

RICHARDSON PAINT COMPANY
Richardson Paint Company and Bill J. Bass. Case 16-
CA-6260
November 1, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On April 6, 1976, Administrative Law Judge James
L. Rose issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions and
a supporting brief, and the General Counsel filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, except
as modified below, and to adopt his recommended
Order as modified herein.
1. We agree with the Administrative Law Judge's
ultimate conclusion that the layoff of employees
Bass, Bryant, and Bowling violated Section 8(a)(1) of
the Act. However, the Administrative Law Judge
misconstrued the General Counsel's theory of the
case, and we accordingly reach our conclusion based
on the following rationale.
As set out in the Decision of the Administrative
Law Judge, on September 15, 1975, the crew of Su-
pervisor Buddy Pate walked off the job rather than
wear the identification buttons supplied by Respon-
dent. The employees were protesting Respondent's
refusal to 'furnish them with ear protection. The Gen-
eral Counsel concedes, and we find, that the walkout
was not protected because there existed a valid no-
strike clause in the collective-bargaining agreement
between the Respondent and the Union.' However,
on September 16, 1975, the Respondent and the
Union settled the dispute. Respondent agreed to sup-
ply ear protection, and the Union agreed that the
men would wear the buttons. It was specifically
agreed to by the parties that there would be no repri-
sals for the walkout. Accordingly, inasmuch as Re-
spondent i,had thus condoned the concerted activity,
the walkout, in effect, became protected and any re-
prisals for it would violate the Act.'
i International Brotherhood of Painters and Allied Trades and its Local
459.
2Alabama Marble Company, 83 NLRB 1047 (1949), enfd. 185 F.2d 1022
(C A. 5, 1951); see also Ram, Inc, 218 NLRB 430 (1975), and American
River Constructors, 163 NLRB 551 (1967).
673
The Administrative Law Judge concluded that the
Respondent's layoff on October 8, 1975, of employ-
ees Bass, Bryant, and Bowling was in retaliation for
the September 15 walkout. Under the Board's doc-
trine of condonation, such retaliation would be viola-
tive of the Act. We agree with the Administrative
Law Judge's conclusion, though we do not rely en-
tirely on the same evidence, The Administrative Law
Judge relied, in part, on a statement by J. D. John-
son, the Respondent's southeast division superinten-
dent, that he would get the "instigators" (i.e., those
involved in the walkout). The Respondent contends,
with merit, that Johnson's statement was made prior
to the settlement and therefore did not necessarily
remain operative after the settlement. However, of
great significance is that Watson, who made the deci-
sion to lay off employees, opposed any settlement on
September 16 and took the position that he did not
want Buddy Pate's crew to return. Watson agreed to
their return only when so ordered by Johnson. Also,
Watson's reaction, discussed below, to Tipton's con-
certed activities demonstrates that Watson intended
to "run" the job without any interference from con-
certed activities by employees. Accordingly, under
all the circumstances herein, including especially
Watson's open hostility to the concerted activities,'
we find that the Respondent, by laying off employees
on October 8, was retaliating for the walkout of Sep-
3 Our dissenting colleague, in supporting his position, places undue reli-
ance on certain testimony of Union Representative Beard and Job Superin-
tendent Watson. The testimony in question is neither relevant or probative
because it relates to Operating Manager Johnson's posture toward the lay-
off Contrary to the assertion of our dissenting colleague, the record indi-
cates that Johnson, though he apparently discussed a layoff with Watson in
July 1975, did not play a role in the final decision to have a layoff on
October 8, 1975. The evidence shows-as amply demonstrated by the testi-
mony quoted by our dissenting colleague in fn 4, infra-that Johnson's
final discussion with Watson regarding a layoff occurred prior to the walk-
out of September 15 In regard to the implementation of a layoff on October
8, Johnson's uncontradicted testimony was as follows-
Q Now, at the time that the layoff occurred on October the 8th,
1975, were you involved in the decision to layoff the people on that
particular day, or was that decision made by Mr. Watson?
A. This decision was made by Mr. Watson on the particular day-
date.
Thus, the evidence confirms that Watson, not Johnson, was responsible for
the layoff of October 8.
Therefore, we place little weight on Beard's testimony that the Union had
had a good relationship with Johnson. Inasmuch as Johnson had very little
input into the decision to lay off employees, Beard's testimony is of little
relevance to the issue of the lawfulness of the layoffs.
Also, our colleague quotes testimony of Watson to the effect that John-
son, his superior, had told him there would be no retaliation for the walkout.
However, Watson's self-serving testimony does not negate the fact that he,
not Johnson, made the decision that a layoff should take place. The Admin-
istrative Law Judge specifically discredited Watson's testimony that the
walkout had no bearing on his decision to effectuate a layoff Obviously,
Watson would be as unlikely to admit he violated a directive from Johnson
as to admit he laid off employees because of concerted activity (which had
been condoned). Finally, Johnson's lack of participation in the final deci-
sion to have a layoff indicates that he was not in a position do insure en-
forcement of his pledge not to retaliate against those who had walked out.
As noted above, Johnson did not discuss a layoff with Watson between the
time. of the walkout and the time of the layoff
226 NLRB No. 100
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tember 15. The fact that Respondent also laid off
three other employees not involved in the walkout is
not sufficient to vindicate Respondent's action.
Respondent' argues that legitimate business `rea-
sons justified the layoffs. Watson's testimony, dis-
credited by the Administrative Law Judge, indicated
that he was acting pursuant to pressure from John-
son and because the winter would leave less available
work. Johnson and Watson apparently had discussed
the possibility of a layoff as early as July, but the
final decision as to any layoff was left to Watson.
Watson admitted that he planned work well in ad-
vance, and only 3 weeks after the layoff Respondent
brought in four regular employees from another proj-
ect to work at Monticello. Respondent contends that
the relocation of these men was economically sound
because they had been working at a project only 20
miles away. However, Johnson testified that it was a
normal occurrence for regular employees to travel
wherever needed, including from State to State, and
it was not unusual to transfer these employees to job-
sites distant from where they had been working.
Johnson stated that, as of October 1975, and within
his jurisdiction, Respondent had a number of other
projects going, including ones in Arkansas, Texas,
and-Oklahoma. Under these circumstances, the
transfer of the four regular employees to the Monti-
cello jobsite clearly warrants an inference that there
was substantial work available at Monticello and
that the transfer was not merely to avoid forcing reg-
ular employees to travel a long distance to relocate.
Therefore, we 'agree with the Administrative Law
Judge's conclusion that Respondent did not persua-
sively demonstrate that economic reasons justified its
layoff. We further find, in agreement with the Ad-
ministrative Law Judge, that the layoffs of employees
Bass, Bryant, and Bolling were precipitated by the
concerted activity of September 15 and, inasmuch as
Respondent condoned that activity, the layoffs vio-
lated Section 8(a)(1) of the Act.
2. We ' also agree with the Administrative Law
Judge that Respondent discharged employee Tipton
in violation of Section 8(a)(1) of the Act. The Admin-
istrative Law Judge found that Respondent dis-
charged Tipton for circulating a petition on October
9 to protest the layoff of employees on October 8. We
agree with the Administrative Law Judge that
Tipton's activity was clearly protected concerted ac-
tivity and the Respondent discharged Tipton for en-
gaging in this activity.
Respondent contended that Tipton was discharged
for violating a rule requiring employees to remain at
their jobsites during the lunchbreak. Tipton admit-
tedly left his jobsite at lunch to gain signatures on his
petition. The Administrative Law Judge discredited
Watson's testimony that there existed any rule pro-
hibiting employees from leaving their work area dur-
ing the noon break. Respondent notes that Supervi-
sor Taylor also testified such a rule existed. However,
Supervisor Pate, whose testimony was credited, was
unaware of the rule and did not inform his crew of
any such rule. Tipton, who was part of Pate's crew,
testified that he had never been informed of the rule.
In his testimony, Watson conceded that Tipton's cir-
culating a petition was the "biggest reason" for the
discharge. Johnson, Watson's superior, testified that
Watson told him he discharged Tipton for circulating
a petition. In light of this evidence, we find that Re-
spondent's reference to Tipton's violating an alleged
rule prohibiting employees from leaving their work
area at lunchtime was merely a pretext. We'conclude,
in agreement with the Administrative Law 'Judge,
that the real reason for Tipton's discharge was his
engaging in protected concerted activities.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Richardson Paint Com-
pany, Mount Pleasant, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute the following for paragraph 1(a) of
the Administrative Law Judge's recommended Or-
der:
"(a) Laying off employees because said employees
have engaged in concerted activities which it has
condoned or discharging employees because said em-
ployees have engaged in protected concerted activi-
ties."
2. Insert the following as paragraph 1(c):
"(c) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act."
3. Insert the following as paragraph 2(b) and relet-
ter the subsequent paragraphs accordingly:
"(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
4. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER WALTHER, dissenting in part:
I do not agree with my colleagues that the General
Counsel has proven that Respondent laid off em-
RICHARDSON PAINT COMPANY 675
ployees Bass, Bryant, and Bolling for having en-
gaged in concerted activities in violation of Section
8(a)(1).
As a preliminary matter, I note that the majority
has repudiated much of the basis upon which the
Administrative Law Judge found that the layoffs of
these men were unlawful. The Administrative Law
Judge found that the three men together with other
employees had walked off the job on September 15,
1975, in protest of a requirement that they wear iden-
tification buttons, that the walkout was a protected
concerted activity, that the men were laid off on Oc-
tober 8, 1975, because of this activity, and that the
layoffs therefore violated Section 8(a)(1). As evi-
dence of Respondent's motivation in making the lay-
offs, the Administrative Law Judge relied on the
credited testimony of employee Daily that Operating
Superintendent Johnson had told him that he was
going to get the "instigators" of the walkout.
As a replacement for the Administrative Law
Judge's -theory, the majority finds that the walkout in
which the laid-off employees participated was not a
protected activity because it was' in violation of a
no-strike clause in the collective-bargaining contract
between Respondent and the Union, but that the
walkout was condoned by Respondent when it
agreed with the Union on September 16 that there
would be no, reprisals against participants. Although
the majority finds Johnson's "instigators" statement
cannot be used as evidence of Respondent's motiva-
tion in making the layoffs since it was made prior to
the settlement, they find motive in their conclusion
that Job Superintendent Watson, although Johnson's
subordinate, had agreed to the return of the strikers
only because he was ordered to do so by Johnson.
The majority also rejects, as did the Administrative
Law Judge, Respondent's alleged business justifica-
tion for the layoffs.
As stated, the Administrative Law Judge found
discriminatory intent in making the October 8 layoffs
in Johnson's "instigators" statement. The majority
quite properly rejects this and instead improperly, in
my opinion, finds the necessary unlawful intent in his
subordinate Watson's admitted opposition to the
September 16 settlement. However, in so doing the
majority has relied on only part of Watson's testi-
mony and has completely ignored relevant testimony
of Union Representative Beard who negotiated the
settlement of the walkout with Johnson.
Watson, who was present at the end of the settle-
ment meeting on September 16, testified:
Q. Did Mr. Johnson instruct you as to how
you were to deal with these employees who had
been engaged in this walkout? How you were to
treat them?
A. Yes, sir, he was a little firm with me on
this.
Q. What did he say?
A. Well, I didn't pull no bones at this particu-
lar time about -I didn't want the crew back. I
had talked to the crew-I missed this point. I
had actually begged this crew to stay with me. I
had commended them at this time for the work
they had done for me . . . Mr. Johnson took
firm steps with me.
Q. What did he say to you?
A. He told me that I would take the crew
back, and he told me that I would not harass
them. He told -me that I would not take any
steps to retaliate them which I didn't.
Q. Are you in a habit of listening when Mr.
Johnson tells you to do something?
A. If I don't, I won't have my job long.
Q. All right. Did you listen to him and do
what he said to do in this case?
A. Yes sir, I -never discussed this problem
with this crew.
Beard, who was called as a witness by the General
Counsel, testified that his Union's relationship with
Respondent was good, that he had had dealings with
Johnson in the past, that Johnson was an honorable
person, and that, when Johnson told him that men
who had walked out would not be harassed and that
it was not company policy to operate in that fashion,
he believed Johnson? -
4Fn 3 of the majority's decision states that Beard's testimony that the
Union had a good relationship with Johnson is of little relevance "[ilnas-
much as Johnson had very little input into the decision to lay off employ-
ees." It also states that Watson and not Johnson decided that a layoff
should be made and, finally, that "Johnson's lack of participation in the
final decision to have a layoff indicates that he was not in a position to
insure enforcement of his pledge not to retaliate against those who had
walked out" These statements as to Johnson's participation in the layoff
decision are based on a misreading of the evidence. Johnson's uncontra-
dicted testimony as to this matter is as follows
Q Did you have any part in the number of people to be laid off?
A I did
Q When had that been discussed, and what number had been dis-
cussed
A We had discussed this previously Jack Leath, Lem Watson, and
myself decided this They had discussed it amongst themselves, and we
had discussed it together Lem and I discussed it by ourselves We felt
that we could cut six people
Q. And were these dicussions before or after September 15th, when
this walkout occurred'
-A Prior to
The majority's attempt to play down the role of Johnson in the decision to
lay off employees in order to diminish the weight to be given to his testi-
mony ignores much of the relevant evidence Johnson's uncontradicted tes-
timony was that as early as July he had urged Watson to lay off some
employees, that prior to September 15 he and Watson had agreed that six
men would be laid off, and that at the September 16 meeting with Beard he
had told Beard, and later the Union's business agent at Texarkana, that
there was going to be a layoff because the job was winding down It is true
Continued
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of this testimony, I believe that the
majority's finding that Watson laid off Bass, Bryant,
and Bolling on October 8 because he had opposed
the September 16 settlement agreement is unwarrant-
ed. It was Johnson and not Watson who made policy
for Respondent.` Johnson had promised the Union
there would be no harassment of the employees who
had walked out on September 15. Watson was firmly
instructed that there was to be no retaliation. More-
over, on October 8, Respondent laid off six employ-
ees, only three of whom had participated in the Sep-
tember 15 walkout. The Administrative Law Judge
found that, if the layoff itself were motivated by law-
ful reasons, the selection of the particular individuals
to be laid off was justified. He found:
Analyzing each employee by himself, it is my
conclusion that his particular involvement in the
September 15 events was not the reason he was
selected for layoff. That is, once determining to
lay off employees, it seems as reasonable to have
picked the three from Pate's crew that Watson
picked as to pick any other three. With the pos-
sible exception of Bass, they do not stand out in
their participation or as leaders. And from their
testimony, as well as my observation of the de-
meanor of each, the Company would seem justi-
fied in its selection.
The Administrative Law Judge found that the Oc-
tober 8 layoff itself, but not the selection of employ-
ees for layoff, was motivated by an intent to retaliate
because of the September 15 walkout by some of the
employees. Watson, according to this scenario, was
so angered by the September 15 walkout that 3 weeks
later he figuratively used a shotgun to vent his rage
against some of the employees who had walked out.
The evidence doesn't justify an inference that during
the 3-week period, between the walkout and the lay-
off Watson continued to harbor such resentment to-
ward the men who had walked out that he finally
exploded on October 8 and laid off innocent as well
as guilty.' Antiunion employers have sometimes, usu-
that Watson selected the particular day for the layoff and the employees
who were to be terminated, but the selection of the men was found by the
Administrative Law Judge not to have been discriminatorily motivated and
the date of the actual layoff , it appears to me , was reasonably related to
Johnson's warning of the upcoming layoffs To conclude , as does the major-
ity, in the light of the foregoing evidence that "Johnson 's lack of participa-
tion in the final decision to have a layoff indicates that he was not in a
position to insure enforcement of his pledge not to retaliate against those
who had walked out" is in conflict with the evidence
5 Although I agree that Watson discharged Tipton in violation of Sec
8(a)(1), I do not agree with the majority that this incident shows that layoffs
of Bass , Bryant , and Bolling were also unlawfully motivated In the first
place , the unprotected walkout of September 15 was condoned by Respon-
dent, and Watson was under instructions from his superior , Johnson, not to
retaliate against the walkout participants , there were no similar instructions
from Johnson as to Tipton In the second place , the petition circulated by
Tipton had a personal aspect which was not true of the events preceding the
ally in the course of an organizational campaign, dis-
charged neutral employees in order to camouflage
the discharge of union proponents .6 But here there
existed an amicable relationship between the Union
and Respondent. It is simply unbelievable that Wat-
son would risk his job and Respondent would jeopar-
dize this relationship by doing what the Administra-
tive Law Judge and the majority say that they did.
The majority members, as did the Administrative
Law Judge, have rejected Respondent's explanation
for the October 8 layoff. In doing so they have, in my
opinion, ignored relevant evidence which supports
Respondent's defense that the layoffs were not moti-
vated by an intent to retaliate for the unprotected
walkout. Johnson testified that employment at the
project where the layoffs occurred has fluctuated,
that there were numerous times when employees
were laid off as work slackened and then were re-
called as work picked up, that he had discussed lay-
offs with Watson before October 8,1 and that he and
Watson had decided that six men should be laid off
with Watson selecting the individuals to be laid off.
Johnson also testified, as did Watson, both without
contradiction, that at the September 16 meeting with
Beard to settle the walkout of the previous day John-
son told Beard that there was going to be a layoff
because the job was winding down. Johnson further
testified again without contradiction that he had in-
formed the Union's business agent at Texarkana to
the same effect that afternoon.'
Respondent laid off six employees at the Monticel-
lo jobsite on October 8. On October 23, it transferred
one of the cadre or permanent employees from the
River Crest project, 20 miles from Monticello, to the
Monticello project; on October 27 it transferred an-
other; and on November ' 11, two more. These were
the only additional painters placed on the Monticello
project payroll after October 8. Moreover, three
other painters at Monticello were laid off in January
1976. It is obvious from this bare recital of the facts
of hiring and layoff that there was less work after
October 8 than there was before, and justified a, layoff
of some employees. The majority states, however,
September 15 walkout The petition accused Watson of favoritism to his son
and another employee making layoffs, including the layoffs of October 8.
The petition which Tipton circulated and was given to him by Bass did not
state that the October 8 layoffs were unjustified , but only that Watson's son
and the other employee should have been laid off first.'
6 Interestingly, the complaint does not , allege that the layoffs of the non-
participants in the September 15 walkout were unlawful.
Johnson said he had first raised the question of layoffs in July but
Watson persuaded him at that time not to make the layoffs because Watson
wanted to get more of the outside work completed before the onset of
anticipated bad weather.
b Beard, who was called as a witness by the General Counsel , testified that
he could not remember whether Johnson had mentioned the possibility of a
layoff at the September 16 meeting , although he "might have ." The General
Counsel did not call the Union's Texarkana business agent to controvert
Johnson's testimony as to what he told the agent about a layoff.
RICHARDSON PAINT COMPANY 677
that because Respondent had a number of other
projects going in Arkansas, Texas, and Oklahoma
Respondent should have transferred the River Crest
employees to one of those other projects rather than
to the Monticello project and presumably make work
for four of the six laid-off employees. The failure to
do so, according to the majority, shows that econom-
ic reasons did not justify the October 8 layoff. I can-
not follow that reasoning.
Respondent completed its work at the River Crest
project in. late October and early November. Four of
the employees at this project were regular or cadre
employees and had to be placed at another project.
The laid-off employees at the Monticello project
were not considered regular employees. It seems to
me to be a perfectly reasonable decision to assign the
River Crest regular employees to the Monticello
project which was only 20 miles away rather than
assign them to a project hundreds of miles distant in
order to recall the laid-off temporary employees, sev-
eral of whom, according to the Administrative Law
Judge, were not particularly satisfactory employees.
Assignment of the River Crest project employees to
the Monticello project-would presumably not require
relocation of the employees and therefore would be a
convenience to them and to Respondent.
I certainly do not believe that this assignment of
cadre employees proves that the layoffs of October 8
were retaliatory. Accordingly, I dissent from the
finding that the layoffs were violative of Section
8(a)(1).
ment or, if those positions no longer exist, to
substantially equivalent positions without preju-
dice to their seniority or other rights or privi-
leges.
WE WILL make the above-named employees
whole for any losses they may have suffered as a
result of our having laid off or discharged them.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
RICHARDSON PAINT COMPANY
DECISION
STATEMENT OF THE CASE
JAMES L. RosE, Administrative Law Judge: This matter
came on for hearing at Mount Pleasant , Texas, on Febru-
ary 17 and 18, 1976, upon the Regional Director's com-
plaint alleging, in general terms, that Richardson Paint
Company had laid off and/or discharged four of its em-
ployees in violation of Section 8(a)(1) of the National La-
bor Relations Act, as amended, 29 U.S.C. § 151, et seq.,
because they had engaged in concerted activities for the
purpose of collective bargaining and other mutual aid and
protection.
At the hearing the complaint was amended to include
also a threat of discharge as an independent violation of
Section 8(a)(1).
Upon the record as a whole, including my observation of
the witnesses , and briefs and arguments of counsel, I make
the following:
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT lay off or otherwise discriminate
against any of our .employees because they, for
their mutual aid and protection, engage in con-
certed activities which we have condoned and
WE WILL NOT discharge or otherwise discriminate
against employees because they, for their mutual
aid and protection, engage in protected concert-
ed activity.
WE WILL NOT threaten our employees with dis-
charge should they engage in concerted activity
for their mutual aid or protection.
WE WILL offer Billy J. Bass, Danny Bryant,
Jack Bolling, and Keith Tipton their former or
substantially equivalent positions of employ-
FINDINGS OF FACT
I. JURISDICTION
Richardson Paint Company, Incorporated, is a Wiscon-
sin corporation doing business in several States including
Texas, where, among other projects , it is engaged in the
business of painting a power plant currently under con-
struction-the Monticello Steam Electric Station.
During the 12-month period preceding issuance of the
complaint, Respondent purchased and received materials
and machinery at the Monticello Steam Electric Station
project directly from points outside the State of Texas in
excess of $50,000.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Painters and Allied Trades
and its Local 459 represent employees ' employed by Re-
spondent at its Monticello facility . It is admitted, and I
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find, that International Brotherhood of Painters and Allied
Trades and its Local 459 are now, and at all times material
have been, labor organizations within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Situation
Respondent's first employee, General Superintendent
Lem Watson, came on the Monticello project in the spring
of 1972. At that time little had been done beyond a hole in
the ground having been dug. Steel for construction of the
first unit was beginning to arrive on the job as was certain
heavy construction equipment.
From then to the present, Respondent has had employ-
ees working at the project in varying numbers depending
on how much work was ready. Thus the work of painting
the steel as the power plant units" are erected, while fairly
steady, does have some peaks and valleys. This means that
sometimes more rank-and-file employees are required than
at others. When the work becomes slack, employees are
laid off.
Respondent and the local painters union entered into a
contract in 1972 to cover the work to be performed by the
Respondent at the Monticello project. This contract in-
cluded a wage scale , a grievance procedure, but did not
include how the Company would go about selecting em-
ployees for layoff.
This power plant, I gather from the testimony, is gigan-
tic. It consists of three units, each of which has a steam
turbine more than 200 feet high. Some of the paintmg'is
done while the steel is still on the ground. However, much
is done after erection. Such requires the painters to climb
up the steel columns and-to crawl out on the beams, hold-
ing on while painting, sometimes as much as 200 feet above
ground. This work was referred to by one witness as
"hairy."
Indeed, Bill Bass, who is named in the complaint, stated
that in 1973 he was laid off for about 8 months because
the only work available was high work and he was not at
that time psychologically equipped to- do it. He subse-
quently was rehired and apparently has been able to work
high.
In any event, construction has progressed through the
completion of the first unit. The second unit is almost fin-
ished; and the third unit is currently under construction.
During the final phases of construction, the steam tur-
bines are put through a process for a period of 2 to 3 weeks
called the "blowdown." During construction, residue mate-
rial gets into the turbines which has to be removed before
they- can be operated. To accomplish this, air under high
pressure is forced through the turbines blowing the residue
out. Such is done to the accompaniment of a tremendous
noise. The vibration created is sufficient to cause the struc-
ture to rock and cause employees who are working at the
construction site to cup their hands over their ears, in the
absence of wearing ear protection. Everyone who testified
stated that these blowdowns are so noisy that ear protec-
tion is necessary.
There is nothing in the collective-bargaining agreement
requiring the Company to furnish ear protection, which the
Respondent did not do, although requested to on a number
of occasions by employees. It does appear, however, that
employees of other employers were furnished ear muffs
and other ear protection devices.
There is credible testimony that it is particularly danger-
ous if one is out on a beam when an unannounced blow
occurs. One holding onto a beam cannot very well cup his
hands over his ears. When such happened, the individual
caught would just have to suffer for several minutes.
On a number of occasions, employees did ask Lem Wat-
son, the general superintendent, to furnish them ear protec-
tion during the blowdowns, the most recent of which was
the number two unit in July 1975.
It is undenied by Watson that he refused to furnish the
requested ear protection. He said that such was not re-
quired and, in any event, the employees would have left the
protective devices at home and would not have them when
needed. Thus, during the blowdowns of units one and two,
particularly unit two in July 1975, the employees asked that
they be furnished ear protection and were not. (Some fash-
ioned earplugs from electrical wire ends and still others got
swimming-type earplugs.)
Then it,happened, according to Watson at least, that in
July 1975, he and a, new supervisor, Leath, determined to
have the employees, wear identification buttons with num-
bers on them. Watson said the principal reason for this was
that Leath, being a new man on the project, did not know
the employees, and buttons would be helpful in identifica-
tion. The buttons were ordered in July but did not come
until some time in the early part of September. Even
though by that time Leath had been on the project approx-
imately 2 months, it nevertheless was determined to have
the employees wear the identification buttons. And such is
not an uncommon practice on construction projects.
When the buttons arrived, a number of employees, all of
whom were on the same crew, concluded among them-
selves that inasmuch as Respondent had refused to furnish
ear protection because it was not required to do so by the
contract, they would refuse to wear the identification but-
tons also because to do so was not required by the con-
tract.
The employees' determination in this respect apparently
made its way back to the Company, but there was no con-
frontation on this point until September 15. On that day,
J. D. Johnson, the southwest division superintendent of
the Respondent, was at the project. At a supervisor's meet-
ing, among other things, the question concerning the wear-
ing of these buttons came up and while there is some con-
flict in the testimony, it does appear generally that Johnson
said, in effect, that if Watson ordered employees to wear
the buttons, they must do so. If they did not, they would be
discharged.
Crew Foreman Buddy Pate said something to the effect
that all of the employees who were refusing to wear the
buttons were in his crew and that he would tell them what
Johnson said. He left that meeting and went to his crew.
He told them that Johnson had said they would either wear
the buttons or "hit the gate."
The employees apparently took this to be an either-or
RICHARDSON PAINT COMPANY 679
ultimatum on the part of the Company, and 10 of the 12
men present on the crew went to the change shop and
changed clothes. The parties are in general agreement that
at this time Lem Watson asked (he said begged) them to go
back to work. They stated generally that they would not
wear the numbered identification buttons but would be
willing to go back to work.
At the hearing Johnson took the position that the em-
ployees had quit when they left the work area. The employ-
ees, on the other hand, stated that they were discharged by
the Company for having refused to wear the identification
buttons.
Regardless of the semantic distinctions, it is clear that,
on the afternoon of September 15, there was a confronta-
tion between the employees of Buddy Pate's crew and the
Company concerning whether they had to wear the identi-
fication buttons. It is further clear that these employees'
refusal to wear the identification buttons was concerted
and, in part at least , grew out of their unhappiness over the
Company's failure to furnish appropriate ear protection
devices. Whether the employees quit or were discharged is
not a material issue in this matter.'
Whether they engaged in protected, concerted activity is
material, and I find they did. Without question, the dispute
here could have been more nicely handled. However, as
sometimes happens on construction projects, particularly
with employees who are not of the employer's regular ca-
dre, disputes arise which are not as well handled as would
be hoped. In any event, the employees had a very legiti-
mate concern involving the lack of ear protection, to which
the Company,did not respond in any appropriate fashion.
While the employees might have taken the matter
through the somewhat sketchy grievance procedure in the
contract, they at least made an attempt to discuss it with
supervision on a number of occasions through Bass, thejob
steward at the time. (Bass was replaced on September 16
for reasons unstated .) The matter of ear protection was a
sometime thing, with the blowdown of unit two having
been completed in July 1975. Thus ear protection was not a
pressing problem, particularly in September. Nevertheless,
when the matter of the buttons came up, to refuse to wear
the buttons was their way of protesting the Company's re-
fusal to furnish ear protection and an effort to force the
Company to furnish protection in the future. Therefore I
find it was protected, concerted activity for the employees'
mutual aid and protection and was protected by Section 7
of the Act.
Following the events on September 15, the Union's local
business agent and international representative were con-
tacted. On the night of September 16, the international rep-
resentative met with Johnson, and a solution was worked
out whereby the employees would wear the buttons, the
Company would furnish ear protection, and the employees
would return to work but would not be cocky about it.
Apparently the Company was very interested in some kind
of a face-saving agreement, and was concerned that the
i They returned to work 2 days later. There is no allegation of an unlawful
discharge for which backpay would be due. On the other hand, Respondent
does not defend the allegations here by claiming that the employees struck
in breach of contract
returning employees not brag about the fact that they had
beaten the Company. Johnson also promised that the em-
ployees would not be retaliated against.
Johnson testified that, at his meeting with the interna-
tional representative, he said there was going to be a layoff
in the near future. He further testified that he had been
suggesting to Watson since early spring that they prepare
for a layoff.
The layoff came on October 8, 1975. At that time two
employees from Taylor's crew, one from Bernetti 's crew,
and three from Pate's crew were picked for layoff. The
three employees from Pate's crew, Bass, Bryan, and Boll-
ing, are alleged in the complaint to have been discharged
because of their participation in the September 15 events.
There are no allegations of unfair labor practices as to the
other three.
In its answer the Company averred that Bass, Bryan,
and Bolling were not discharged, but were laid off-and "are
subject to recall should Respondent require additional em-
ployees.at some future date."
There is testimony that some employees who were kept
after October 8 were not as good employees as Bass,
Bryan, and Bolling. On the other hand, company witnesses
testified that there were good and sufficient business rea-
sons for picking these particular three for layoff : Bass was
not a particularly good worker; Bryan, while having the
capacity to do outstanding work, had difficulty getting
along with supervisors; and Bolling missed a great deal of
work.
On the morning of September 9, Bass met employee Tip-
ton at the plant gate. Bass had a petition which contained
some fairly uncomplimentary statements about the Com-
pany and the manner in which the layoff was handled.
Bass asked Tipton to take this petition and, if he agreed
with it, to sign it and ask other employees to sign it. Tipton
did so. He passed the petition around among his crew at
the 10 a.m. break. Then at the noon break, between 12 and
12:30 p.m., he left his work area and passed the petition
among other crews.
That afternoon he was called in by Watson who said he
had heard that Tipton was passing out a petition and asked
to see it. Tipton stated that he was not able to, get enough
signatures and had destroyed the petition, although in fact
he had not done so. In any event, at that time Watson fired
Tipton and gave him a slip which stated he was being dis-
charged for "instigation among the crews."
Watson testified that Tipton violated company policy by
leaving his work area at noon. However, he admitted that
the principal reason for the discharge was because Tipton
had sought signatures on the petition.
In the latter part of October, or about 3 weeks after the
layoffs, four employees of the Company from another proj-
ect were brought in to work on the Monticello project.
Johnson testified that these men were regular employees of
the Company who were willing to work anywhere the
Company wanted them at any time, .as opposed, appar-
ently, to the local union members who would not travel for
the, Company from job to job.
Johnson further stated that, in his southeast division at
that time, there were seven or eight projects going which
required the use of painters.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Analysis -
1. The layoff
Although Johnson and Watson testified that they had
discussed the need for a layoff, according to Johnson as
early as July and, according to Watson as early as March,
it was not effectuated until October 8. Periodic layoffs are
common in this industry. And, of course, the Company has
a right to lay off whomever it wishes, whenever it wishes,
with or without good business reasons. It cannot, however,
so structure a layoff as to violate the Act.
Thus the question here is whether the layoff itself was in
retaliation for the employees having engaged in protected,
concerted activity or whether the particular selection of
employees to be laid off was because of their participation.
If, either is the case, then the Company thereby violated
Section 8(a)(1). Cf. Helrose Bindery, Inc., and Graphics Arts
Finishing, Inc., 204 NLRB 499 (1973).
Analyzing each employee by himself, it is my conclusion
that his particular involvement in the September 15 events
was not the reason he was selected for layoff. That is, once
determining to lay off employees, it seems as reasonable'to
have picked the three from Pate's crew that Watson picked
as to pick any other three. With the possible exception of
Bass, they do not stand out in their participation or as
leaders. And from their testimony, as well as my observa-
tion of the demeanor of each, the Company would seem
justified in its selection.
On the other hand, from the totality of the evidence, it is
my conclusion that the precipitating cause of the layoff in
October 1975 was because the employees had engaged in
the September 15 activity.
I discount Watson's statement that he had been pres-
sured by Johnson to lay off employees prior to that time,
although I am convinced that the question of whether the
Company has too many men on a job is a'matter of contin-
uing concern. However, there is no evidence that as of Oc-
tober 8, 1975, there was a business reason to lay off 6 of 30
employees. There is no evidence of a reduced amount of
work required to be done. And of particular significance,
within 3 weeks after the layoff, the Company transferred
four employees from other projects to the Monticello proj-
ect.
Johnson tried to explain this by saying that these were
four cadre employees and presumably the Company had to
make room for them in order to keep them employed.
However,-there were seven or eight other projects to which
they could have been transferred. Further, neither Watson
nor Johnson said that the six were laid off specifically so
that these four could have jobs. To the contrary, Watson
testified that'the six were laid off because there was not
enough work for' them. It is noteworthy that Watson testi-
fied that he keeps the work lined out months in advance;
yet, within 3 weeks of the layoff four employees were
added. I do not believe the Company's manpower require-
ments fluctuated so much in such a short time.
Given the timing of the layoff, the total lack of credible
evidence of business reasons for it at that time, plus the
fact that four employees were brought in from another
project, lead me to the inescapable conclusion that the
layoff itself was motivated by a determination on the part
of company agents to retaliate against employees for hav-
ing engaged in the September 15 activity.
This conclusion is inescapable notwithstanding that
caught up in the layoff were three employees who had
nothing to do with the September 15 events, and not laid
off were some employees who did. These facts do, not vin-
dicate the Respondent.
In addition, there is testimony from Milton Daily, one of
the men on Pate's crew. He testified that be talked to John-
son on the night of September 16 asking for his job, but
Johnson stated that he would not give it back until after he
met with the union representatives and settled the dispute.
Daily testified that Johnson then said h'e was going to get
"the instigators." Comparing their respective demeanor
and noting Daily's straightforward testimony, I credit Dai-
ly over Johnson and Johnson's denial. I conclude that
Johnson's statement shows a determination to discipline
employees because they engaged in activity which I find to
be protected and concerted.
To the extent' Watson testified that the September 15
events had no bearing upon his decision to effectuate the
layoff, his testimony is discredited. In discrediting
Watson's testimony in this regard, I rely on my observation
of his demeanor. It is clear that Watson, intended to "run"
the project, and this would not allow for employees refus-
ing to wear buttons, or in any other way questioning his
decisions through concerted activity.
2. The discharge of Tipton
Unrelated to the layoff but tending to'prove that Watson
was fully capable of retaliating against the employees for
engaging in concerted activity is his discharge of Tipton on
October 9. Although stating that there were several reasons
for the discharge, Watson admitted that principally he
fired Tipton because Tipton had passed around a petition
which Watson referred to as "instigation among the
crews."
Respondent states that there is some kind of a rule
against leaving the work area, even on the lunchbreak
when the employees are not being paid. But this seems
incredible, and there is no real evidence of such a rule,
except Watson's testimony. I find that there was no pro-
mulgated rule prohibiting employees from leaving their
work areas during the noon break.
In any event, violation of this alleged rule was not the
reason Tipton was discharged. He was discharged for pass-
ing around the petition, not on company hours but on
breaktime. There appears to be no rule prohibiting this nor
could there be.
To pass out a petition deploring working conditions
which implicitly seeks to improve them is clearly protected,
concerted activity. And to be discharged for engaging in
such activity is clearly violative of Section 8(a)(1) of the
Act. Taylor Instrument Companies, 165 NLRB 843 (1967);
McNeill Industries, Inc., 216 NLRB 343 (1975).
While fundamentally a different problem from that of
the layoffs, in finding that the layoffs were unlawfully mo-
tivated I do rely in part on the subsequent activity of the
company in firing Tipton for engaging in protected activi-
RICHARDSON PAINT COMPANY 681
ty. Given the timing of the discharge with relation to the
layoffs, it is reasonable to infer that the Company, through
Watson , was predisposed to retaliate against employees for
engaging in activity which he concluded was detrimental to
his authority. Such is not permissible conduct on the part
of an employer if the activity of the employees is protected
by Section 7 of the Act.
Respondent contends that Tipton's act and the Septem-
ber 15 events were efforts by a dissident group of employ-
ees to undermine the Union and the collective-bargaining
agreement . Even if this would vitiate the otherwise protect-
ed nature of the acts here, there is no real evidence to
support such a conclusion . While the Union's agents do
not seem to have been particularly rigorous in their support
of the men, nevertheless I find nothing in passing out the
petition by Tipton which would undermine the Union's
status as the bargaining representative , or be so serious a
threat to stable relations to cause Tipton's act to lose its
protected character. The same applies to the events of Sep-
tember 15 , when, in fact , union agents were called in and
became involved.
From the totality of the evidence , including my observa-
tion of the witnesses , I conclude that the Company has
engaged in the unfair labor practices alleged by laying off
employees on October 8, and by discharging Keith Tipton
on October 9.
exercise of rights guaranteed them by Section 7 of the Act
and has thereby violated, Section 8(a)(1) thereof.
4. By advising employees that they would be discharged
if they engaged in activity similar to Tipton's, Respondent
has interfered with, restrained, and coerced employees in
the exercise of the rights guaranteed them by Section 7 of
the Act and has thereby violated Section 8(a)(1) thereof.
5. The aforesaid unfair labor practices occurring in con-
nection with Respondent 's business, described above, are
unfair labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(1), it will be recommended that the Respondent be
ordered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER2
3. The threat by Pate
Pate testified that, when Tipton was discharged , Watson
told Pate to tell his men, in effect, that anyone else "insti-
gating" would be fired. And Pate did so. Without objec-
tion, the complaint was amended to include this as a threat
in violation of Section 8(a)(1). This order by Watson is
undenied . As I find Tipton's activity protected, it necessar-
ily follows that Pate's statement to employees on Watson's
instructions is a threat of discharge should employees en-
gage in protected activity. It is therefore violative of Sec-
tion 8(a)(1), without regard to Pate's particular status. Even
though he had aligned himself with his men throughout
this dispute, he nevertheless was a supervisor , and reason-
able conduit for such instructions . I need not find Pate to
be a member of management to find that he acted on
Watson 's instructions , and thereby the Respondent vio-
lated Section 8(a)(1).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. By laying off employees on October 8, 1975, and fail-
ing and refusing to reinstate them, because employees had
engaged in protected , concerted activity on or about Sep-
tember 15 , 1975, Respondent has interfered with, re-
strained, and coerced employees in the exercise of the
rights guaranteed them by Section 7 of the Act and has
thereby violated Section 8(a)(1) thereof.
3. By discharging employee Keith Tipton on October 9,
1975, because he passed around a petition , Respondent has
interfered with, restrained, and coerced employees in the
Respondent, Richardson Paint Company, Mount Pleas-
ant, Texas, its officers , agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Laying off or discharging employees because said
employees have engaged in or are engaging in protected,
concerted activity for their mutual aid or protection.
(b) Threatening employees with discharge should they
engage in protected, concerted activity for their mutual aid
or protection.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Reinstate to their former or substantially equivalent
positions of employment Billy J. Bass, Danny Bryant, Jack
Bolling, and Keith Tipton, and make them whole for any
losses suffered by them as a result of the discrimination
practiced against them in accordance with the provisions
of F. W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
(b) Post at its Monticello facility copies of the attached
notice marked "Appendix." 3 Copies of said notice, on
forms provided by the Regional Director for Region 16,
after having been duly signed by an authorized representa-
2In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and the recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
3 In the event that the Board 's 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 Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive of the Respondent , shall be posted by the Respondent spondent to insure that said notices are not altered, de-
immediately upon receipt thereof and maintained by it for faced, or covered by any other material.
60 consecutive days thereafter, in conspicuous places, in- (c) Notify the Regional Director for Region 16, in writ-
cluding all places where notices to employees are custom - ing, within 20 days from the date of this Order, what steps
arily posted . Reasonable steps shall be taken by the Re- have been taken to comply herewith.