Southern Paint & Waterproofing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1977

230 N.L.R.B. 429 (N.L.R.B. 1977)

SOUTHERN PAINT & WATERPROOFING CO., INC.
Southern Paint & Waterproofing Co., Inc. and
Brotherhood of Painters and Allied Trades, Local
Union 1756, AFL-CIO. Cases 11-CA-6621 and
I l-RC-4193
June 24, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On March 22, 1977, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
brief and has decided to affirm the rulings,
findings,2 and conclusions 3 of the Administrative
Law Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Southern Paint &
Waterproofing Co., Inc., Greensboro, North Caroli-
na, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
i Respondent's request for oral argument is hereby denied as, in our
opinion, the record in this case, including the exceptions and brief,
adequately presents the issues and positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 The Administrative Law Judge, apparently by inadvertence, failed to
explicitly conclude that Superintendent Rivers' conduct on May 22, 1976,
constituted a violation of Sec. 8(aXI). We hereby correct that omission and
make that finding.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Section 7 of the National Labor Relations Act
gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through represen-
tatives they choose
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT unlawfully discharge employees
for lawfully engaging in union activities or
protected concerted activities.
WE WILL NOT unlawfully interrogate employees
with respect to their union or concerted activities.
WE WILL NOT threaten employees with dis-
charge or other reprisals if they engage in
activities on behalf of the above-named Union, or
any other labor organization.
WE WILL NOT threaten employees that we will
close the plant if they select the above-named
Union, or any other labor organization, as their
collective-bargaining representative.
WE WILL NOT create the impression of surveil-
lance of our employees' union activities.
WE WILL NOT in any other manner interfere
with, coerce, or restrain employees in the exercise
of their rights protected by Section 7 of the Act.
WE WILL offer Wayne Hardy and Cleo Wilson,
Jr., their former jobs or, if those jobs no longer
exist, to substantially equivalent positions and
will restore their seniority and other rights and
privileges.
WE WILL pay them any backpay they have lost
because we discharged them, plus interest at the
rate of 6 percent per annum.
All of our employees are free to remain, or refrain
from becoming or remaining, members of a labor
organization.
SOUTHERN PAINT &
WATERPROOFING CO.,
INC.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This consoli-
dated proceeding, held pursuant to Section 10(b) of the
230 NLRB No. 61
429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Act, as amended (herein the
Act), was heard at Greensboro, North Carolina, on
October 27-29, 1976,1 pursuant to due notice. The issues
raised by the pleadings2 are, in essence, whether Southern
Paint and Waterproofing Co., Inc. (herein the Company or
Respondent), interfered with, restrained, and coerced its
employees in violation of Section 8(aX)() of the Act, and
discriminated against two of its employees in violation of
Section 8(a)(3) of the Act, by acts and conducts of its
agents and supervisors hereinafter set forth. 3
Subsequent to the hearing, and within the time allowed,
helpful posthearing briefs were filed by counsel for all
parties, which have been duly considered.
Upon the entire record in the case, including my
observation of the demeanor of the witnesses, 4 I make the
following:
FINDINGS AND CONCLUSIONS
I. THE ALLEGED UNFAIR LABOR PRACTICES 5
A. Background
Respondent, a North Carolina corporation with its
principal office and place of business in Greensboro, is
engaged in the business of painting and waterproofing
commercial and residential construction. The record
discloses that at the time of the NLRB election in June,
Respondent employed approximately 17 employees in a
unit which included all painters, leadmen, and helpers.
However, the record shows that Respondent also contracts
for painting jobs outside the city of Greensboro, and on
these occasions also employes painters and helpers at these
other locations during the period of such contracts. There
is no evidence that, at any time prior to the events here in
question, the employees of Respondent were ever repre-
sented for purposes of collective bargaining by a labor
organization.
The record herein shows that the union campaign
commenced in April, and the Union filed a petition on
May 3. The election was held on June 22, and the results
thereof are inconclusive in view of the objections and
challenges hereinabove set forth.
The complaint alleges that in April, May, and June
Respondent, by its agents and supervisors, engaged in a
course of conduct which sought to disabuse its employees
of the asserted advantages of belonging to and supporting
I All dates hereinafter refer to the calendar year 1976, unless otherwise
indicated.
2 The original charge was filed June 21 (amended June 28); the
complaint issued August 5.
3 The complaint case was consolidated with the representation case by
Order dated August 10 wherein the Regional Director found that certain
objections filed by Brotherhood of Painters and Allied Trades, Local Union
1756 (herein the Union) to an NLRB election conducted June 22 were
coextensive with certain allegations in the complaint, and could best be
resolved by a hearing. It also appears that the ballots of the alleged
discriminatees were challenged in said election, and the Regional Director
directed that a heanng be held to resolve such challenged ballots.
4 Cf. Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161
(1966).
5 There is no issue as to the Board's jurisdiction or the status of the
Charging Union as a labor organization. The complaint alleges sufficient
facts respecting direct inflow of goods into the State of North Carolina,
which are admitted by answer, upon which I may, and do hereby, find that
the Union's campaign, thereby violating Section 8(aXl)
and (3) of the Act. Respondent denies such allegations, and
further asserts that the two alleged discriminatees were
discharged for good and proper cause. Respondent further
asserted that one of the discriminatees (Wilson) was a
supervisor within the meaning of the Act at the time of the
discharge, and therefore was not entitled to the protection
of the Act. We now turn to the evidence adduced with
respect to these issues.
B. Alleged Interference, Restraint, and Coercion
The record shows that the Union's organizational
campaign commenced at the plant of Respondent in early
April when Wayne Hardy, an employee (painter), com-
menced distributing some union cards and leaflets to fellow
employees in and about Respondent's plant. Although it is
not abundantly clear from the record, it appears that the
Union was carrying on organizational campaigns at several
other paint companies in the area since Richard Doutt, Jr.,
vice president of the Company, went to nearby Winston-
Salem on April 16, at the invitation of another paint
company, to listen to the remarks of that company's
lawyer, who was discussing the rights and obligations of
employers in such a situation.6 Upon his return to
Greensboro, Doutt met Carl Kington, a superintendent of
the Company, and Cleo (Billie) Wilson in the back of
Respondent's plant. 7 According to the testimony of
Wilson, which is corroborated to this extent by Kington,
Doutt stated that he had been in Winston-Salem with an
attorney in an attempt to keep the Union out of the shop.
He further told Wilson that he would not disturb his status
as an employee if Wilson would promise to vote "no," but
that if Wilson intended to vote for the Union, Doutt would
change his classification to that of foreman so that he could
not vote. Wilson also testified that at one point in the
conversation, Doutt said that he would close the doors
before he would go union. However, this statement was not
corroborated by Kington, and is denied by Doutt. Under
all circumstances, I do not credit Wilson's testimony in this
latter regard.s
I find the foregoing statement of Doutt to Wilson to
constitute interference, restraint, and coercion with Wil-
son's right to engage in activities protected by Section 7 of
the Act, in violation of Section 8(a)(1) of the Act.
On or about April 19 or 20, Doutt called Wilson into his
office and asked him if he had signed a union card. Wilson
Respondent is engaged in commerce within the meaning of Sec. 2(6) and (7)
of the Act. It is also alleged, and admitted, that the Union is a labor
organization within the meaning of Sec. 2(5) of the Act.
6 Doutt testified that there were about seven paint contractors present at
that meeting.
I Wilson's status is an issue in this case: Counsel for the General Counsel
contends that he was an employee while Respondent argues that he was a
supervisor. I find, based upon a consideration of all of the relevant evidence,
as discussed more fully, infra, that at all times material herein Wilson was an
employee.
8 Wilson's demeanor on the witness stand was not particularly impres-
sive, and he further had an obvious interest in the outcome of the
proceeding. The same may be said with respect to Doutt. However, Kington
impressed me favorably, and I consider him to be a credible witness. In the
absence of his corroboration of Wilson's testimony on this occasion, I am
not convinced that Doutt made the remark concerning plant closure
attributed to him by Wilson.
430
SOUTHERN PAINT & WATERPROOFING CO., INC.
replied affirmatively, and stated that he had one in his
pocket at that time. Doutt responded that he was going to
make Wilson a supervisor, and pulled out a legal pad from
which he commenced reading off things that Wilson could
do and could not do. This conversation occurred after
quitting time, and Wilson left the premises stating to Doutt
that he had to go to the bank.9
I find the foregoing interrogation, which took place in
the sanctum of the vice president's office, and was made
without any assurances against recrimination, to constitute
interference, restraint, and coercion within the meaning of
Section 8(aX 1) of the Act.
On the morning of May 27, Doutt made an impromptu
speech to several employees on the parking lot. It appears
that Doutt was looking for employee Dean Bushee, who
had assertedly been soliciting or harassing some other
employees with respect to the Union. However, by the time
Doutt arrived at the parking lot, Bushee had already left
for his day's work. Whereupon, Doutt made several
statements to the remaining employees. According to the
testimony of Wilson, which is corroborated in part by that
of employee Rex Hiatt, Doutt said that he was tired of
Bushee (or anyone else) talking about this union "stuff,"
and that if any of the men intended to vote for the Union
they could consider themselves fired, and could go advise
the "union man" that he (Doutt) said so. Doutt, in his
testimony (which in its essential respects is corroborated by
Vice President Childress), acknowledged that he was upset
on this occasion in view of some complaints he had
received from employees to the effect that they had been
harassed by other employees concerning the Union while
traveling to and from work; that Bushee had been named
as one of the offenders, and that Doutt was looking for him
but that he had already left; and that he told the men that
he did not intend to have employees harassed while going
to and from the job, and if that continued and he had
another complaint, he was going to fire them. Doutt denied
telling the men that if they were for the Union they were
fired, and to so advise the Union.
Here, again, I am inclined to credit Wilson's testimony to
the extent that it is corroborated by that of Hiatt. In
addition to all other factors mentioned above, I have
considered that Doutt was admittedly upset on this
occasion and probably made some statements which he
perhaps would not have made under different circumstanc-
es. Moreover, I am convinced that Wilson did not fabricate
the statements attributed to Doutt, particularly the part
where Doutt advised the men to tell the Union of his
statements. Based upon all of the foregoing, I find and
conclude that the statements of Doutt on this occasion
constituted a threat of discharge to employees who favored
or engaged in activities on behalf of the Union, in violation
of Section 8(a)( ) of the Act.
9 1 have credited Wilson's testimony, as regards this incident, over
Doutt's denial since the incident is a natural outgrowth of the conversation
of April 16 which was corroborated by Kington, and I cannot believe that
Wilson fabricated it out of the whole cloth. Moreover, the manner in which
he responded to Doutt's inquiry and in which he terminated the interview
appears consistent with his temperment as displayed in the courtroom.
10 Credited testimony of McSwain, who impressed me as a truthful
witness who had no direct interest in the outcome of the proceeding. Doutt's
general denial that he had any conversation with McSwain is not credited.
IL Credited testimony of Hiatt. Rivers denied making any statements to
On or about June 18, Doutt called into his office then
employee Coleman McSwain (McSwain has since quit the
employment of the Company). He asked McSwain how the
latter felt about the Union, but McSwain refused to give
Doutt a direct answer. Then Doutt went on to say that
before he (Doutt) "would let the union come in, he would
close his doors and operate under another name, and that
he would go out and hire help that wasn't union ... that
he had three men that he knew which (sic) was for the
Union, and that he would make it hard on them [get shut of
them] if the union did not come in." 10
I find the foregoing interrogation and threats to consti-
tute interference, restraint, and coercion within the mean-
ing of Section 8(aX 1) of the Act.
On or about May 22, in the Company's "shop lot,"
Superintendent Rivers interrogated employee Rex Hiatt as
to how the latter felt about the Union and how he intended
to vote in the election. Hiatt responded only by asking
Rivers "what is a union." Subsequently, on or about June
17, at a school job where the Company was a subcontractor
and Rivers was the superintendent, Rivers said to a group
of employees at lunchtime that he would be glad when the
"union thing" was over but that after the election the
Company would get a list of those that voted "yes" and
that "he was going to fire them and blackball them." Rivers
also noted that of the 19 employees in the shop, 13 were
against the Union and 6 were for it."l
C. The Alleged Discriminatory Discharges
1. Wayne Hardy
Wayne Hardy had worked for the Company for
approximately 18 months as a painter when he was
terminated on April 20, assertedly because his work was
unsatisfactory. The General Counsel argues that the
asserted reason was a pretext, and that the real reason for
the termination was because of Hardy's prominence in the
union campaign. I find, for the reasons set forth below, that
substantial evidence on the record, considered as a whole,
supports the argument of the General Counsel.
The undisputed evidence shows that Hardy was the
instigator of the union drive at Respondent's plant. Thus,
on or about April 5, he was in contact with an employee of
another paint company in Greensboro who gave Hardy
some union cards and leaflets, which the latter distributed
among his fellow workers, as aforesaid According to
Hardy's testimony, he returned 13 signed cards to the said
employee (Jim Tuck) who, in turn, gave the cards to the
union representative (Hill). On or about April 9, a meeting
of interested employees was held at the home of Tuck.
the employees concerning the Union except to the extent that he advised
them to cut down or eliminate union talk on the job because "that is what
we are here for, to get the job done." Rivers was not impressive as a witness.
Moreover, I have taken into consideration the fact that Hiatt was still an
employee of Respondent at the time he testified adversely to the interests of
Respondent. The Board has noted this factor as one which tends to support
his credibility as a witness. See Georgia Rug Mill, 131 NLRB 1304. 1305 fn.
2, (1961), enfd. as modified 308 F.2d 89 (C.A. 5, 1962); Astrosystems. Inc.,
203 NLRB 49 (1973); Federal Envelope Company, Omaha, Nebraska, A
Division of Nationwide Papers Incorporated, 147 NLRB 1030, 1036 (1964).
431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Present at this meeting was a supervisor of the Company
named Vernon Trexler.' 2 On or about April 15, Hardy
asked Alexander Neugent, also a supervisor of the
Company, if he wished to sign one of the cards. Neugent
declined, stating that he was a foreman and that the Union
did not apply to foremen.' 3
It will be recalled that on April 16, Vice President Doutt,
after attending a meeting in Winston-Salem with several
other painting contractors, returned to Greensboro and
had a conversation concerning the Union's organizational
drive with Superintendent Kington and Cleo Wilson, as set
forth above. Later that evening, Kington telephoned Hardy
at the latter's home and asked him if he was "doing the
stink out at the shop." Hardy replied, "Do you mean the
union?" Kington said, "yes." When Hardy acknowledged
affirmatively, Kington advised Hardy that the latter "was
going to get run off." Later that evening, Kington
telephoned Vice President Doutt at the latter's home and
stated that he (Kington) knew who was "pushing" the
Union at the shop-that it was a good friend of his, Wayne
Hardy. Doutt responded that he knew that Kington and
Hardy "gardened" together, and that they were friendly.
The next day, April 17, Kington telephoned Doutt again
and told the latter that Hardy was "as good a man as he
had out there and that Doutt should talk to him and see if
he could work the problem out with him." Doutt respond-
ed that he could not talk with any of the painters-that the
law would not let him.'4
On the basis of the foregoing, it is abundantly clear that
at least by April 17, Respondent was well aware of the
union campaign and Hardy's prominence in it. Further, on
April 19, Hardy was assigned to work for Superintendent
Rivers on the "Williams job." During the day, Rivers told
Hardy that he knew Hardy was involved in the Union
because (employee) Coleman Pruitt had turned into the
office one of the union cards that Hardy had given him
(Pruitt). Rivers also advised that the Union "painted a
pretty picture, but the end of it would not be as they had
painted." 15
As respects Hardy's work performance with Respondent,
it will be recalled that during the greater part of his
employment, Hardy worked under the supervision of
Superintendent Carl Kington. Kington rated him as an
"above average" painter, and so described Hardy to Doutt
in the telephone conversation above-described. However,
Kington left Respondent's employment on or about April
16. Hardy worked under the supervision of Rivers on at
least two occasions prior to his termination on April 20.
One of these occasions-the Sullivan job-occurred some
time in March. Hardy testified that he did not receive any
reprimand about his work on that job; indeed, on several
12 Undisputed testimony of Hardy; Trexler did not testify at the hearing.
13 Undisputed testimony of Hardy; Neugent did not testify at the
hearing.
14 Doutt did not deny that in the telephone conversations Kington urged
him to talk to Hardy.
15 Credited testimony of Hardy. Rivers denied every saying anything to
Hardy about the fact that Rivers thought he was involved in some union
activities. Such denial is not credited.
On cross-examination of Hardy, Respondent showed that in Hardy's
preheating affidavit it was stated that on no occasion of which Hardy was
aware did any supervisor see him distributing or receiving union cards. Also,
Hardy asserted in the statement that "no supervisor ever made any threats
occasions Rivers showed him the insufficiency of some of
the other men's work and stated that he was "tired of
having to work those kind of men," and wanted to keep
Hardy in his crew. On the other hand, Rivers denied
having ever praised Hardy for doing a good job, and
recalled having seen Hardy perform some rough work on
this job such as getting grit in his paint and not sanding
properly. Nevertheless, Rivers testified that he did not have
much "personal involvement" in the Sullivan job, but was
aware that Sullivan was displeased with Hardy because he
was not satisfied with his work.'6
The other job upon which Hardy worked under Superin-
tendent Rivers was the so-called "Presbyterian Home job"
in High Point, North Carolina. This took place about the
same time as the Sullivan job-around February or March.
Rivers testified that on this occasion Hardy was leaving
"holidays" in his work. That is to say, the paint was not
smoothed out very well, and that he spoke to Hardy about
it. Hardy acknowledged the discrepancy, and proceeded to
correct it. Again, there was no threat or warning of
disciplinary action.
Hardy was apparently working on another job in High
Point on April 19, but came to work for Rivers on the
Williams job because Rivers had asked for additional men.
The record shows that Rivers was not pleased with Hardy's
work on the morning of April 19 since, as Rivers described
it, Hardy had not "putted the holes properly and had not
sanded properly." Rivers directed Hardy to strain his paint
and do it over, and Hardy complied. It appears that Vice
President Doutt visited the job at midday on April 19, and
Rivers advised him of the above-described deficiencies in
Hardy's work. It further appears that Hardy had some
trouble with his teeth on that day and rode back to the
office with Doutt after the noon hour. However, during the
drive, Doutt testified that he did not remember discussing
any deficiencies of Hardy's work on the Williams job-that
"we discussed other jobs; he asked me when we were going
to start another job which he had worked on, and I told
him that I did not think that we were going to start it back
up, that I thought that it had been settled or subcontracted
out; and then we mentioned the fact that the roads being
torned up. .. ." In short, Doutt did not indicate to Hardy,
on that occasion, anything in the nature of a warning of
discipline should Hardy not perform his work in a more
satisfactory manner. Moreover, Doutt testified that he saw
Hardy at the plant the following morning before Hardy left
for work and asked him about his tooth, and Hardy said
that it was "all right." This was the extent of that
conversation.
Hardy reported again for work with Rivers on April 20
since his assignment to the job in High Point was closed
or promises to him in connection with the Union." In his testimony, Hardy
asserted that he did not consider the statements of Rivers to him on April 19
to be a threat nor did he consider that the testimony involving Coleman
Pruitt conflicted with anything in his prehearing affidavit.
Like Hardy, I do not consider his testimony at the hearing to be in
conflict with the statements made in his prehearing affidavit.
i' Sullivan testified at the hearing that he observed Hardy's work on this
occasion and stated that it was slow or sluggish and was not considered by
him to be of professional quality; that he reported this to Vice President
Childress and that as a result, the Company took Hardy off the job.
However, there is no evidence in the record that Hardy was ever threatened
or warned by Childress of disciplinary action as a result of this incident.
432
SOUTHERN PAINT & WATERPROOFING CO., INC.
that day. According to Hardy's testimony, Rivers made
only one complaint to him on the morning of April 20, and
that was with reference to having some baseboard paint on
the wall of the room. Hardy said that he would "touch it
up," and that was all that was said. Rivers, on the other
hand, testified that he warned Hardy several times that day
and about I p.m. decided to terminate him. Rivers testified
that he made this decision without contacting either Doutt
or Childress, and that he telephoned the secretary in the
office to have Hardy's check ready when he returned.
Hardy testified that at or about 4:15 p.m., Rivers told him
to hand in his brushes-that "We can no longer use you."
When Hardy asked why, Rivers said that he "had to go
behind so much of his work on the Sullivan job that the
Company just cannot continue to have this type of work."
Analysis and Concluding Findings as to the
Discharge c_ Wayne Hardy
Although Hardy may not have been the most proficient
and exemplary painter in the employ of Respondent, the
record establishes that he was regarded as "above average"
by the superintendent with whom he worked for most of
his employment. It is hardly worthy of belief that his work
performance was so poor on the other occasions that it
constituted the sole reason for his termination.' Indeed, as
above-pointed out, there is nothing in the record to show
that prior to April 20, any officer or supervisor of
Respondent had ever warned or threatened Hardy with
any form of discipline if he did not improve his work.
Moreover, the timing of the discharge-only several days
following Respondent's knowledge that Hardy was the
leader of the Union's campaign to which Respondent was
unalterably opposed-is "most telling. T' In sum, I am
convinced and therefore find that a substantial factor in
Respondent's decision to terminate Hardy was his leader-
ship in the union campaign. It was therefore discriminatory
within the meaning of Section 8(a)(3) of the Act. 19
2. The termination of Cleo Wilson, Jr.
Cleo Wilson (sometimes referred to as "Billie" in the
record), commenced work for the Company on July 29,
1975, at $4 per hour; on February 24, 1976, he received a
pay raise to $4.50 per hour, and when he left the Company
on June 18, 1976, he was making $4.50 per hour.2 0 Wilson
IT As the court stated in N.LR.B. v. Symons Manufacturing Co., 328 F.2d
835, 837 (C.A. 7, 1946):
The mere existence of valid grounds for a discharge is no defense to a
charge that the discharge was unlawful, unless the discharge was
predicated solely on those grounds, and not by a desire to discourage
union activity.
1i See Hambre Hombre Enterprises, Inc., d/b/a Panchito's, 228 NLRB
136 (1977); see also Air Products and Chemicals, Inc., 227 NLRB 1281
(1977), where the Administrative Law Judge noted that at no time prior to
the dismissal of the two alleged discriminatees did any supervisor ever
caution or admonish them that their conduct might lead to dismissal. "Such
action on the part of an employer is not natural," citing E. Anthony & Sons,
Inc. v. N.LR.B., 163 F.2d 22, 26-27 (C.A.D.C., 1947), cert. denied 332 U.S.
773. Furthermore, it does not seem "natural" that Rivers would discharge
Hardy without at least some notice to or consultation with Doutt or
Childress (even though Rivers possessed such authority). This because, at
the time of termination, Hardy's regular job was in High Point, and he was
was an experienced painter, having been in business for
himself prior to his employment by the Company, of which
Doutt was aware. There is no issue as to his ability or
capacity to perform his job; Respondent defends this
aspect of the case on the grounds that Wilson "was
terminated because he refused to accept a job assignment
without giving a valid reason" (as per stipulation by the
parties) and that, in any event, he was not entitled to the
protection of the Act since he was a supervisor within the
meaning of the Act at the time of his termination.
Respondent contends that Wilson was made a supervisor
in February, when he asked for a raise in pay. Wilson
acknowledges that on this occasion he asked for-and
received-a raise in pay of 50 cents per hour, but denies
that a condition thereof was a change in status to that of
supervisor. Indeed, as related above, Wilson contends that
Doutt only attempted to make him a supervisor on or
about April 19 or 20 after Doutt learned that Wilson had
signed an authorization card for the Union. On the other
hand, Doutt and Childress testified that, in the February
interview, Wilson was made a supervisor in return for the
raise in pay. On this point, I believe it to be likely that
Doutt told Wilson on this occasion that he (Doutt)
expected Wilson to "shape up" and be more responsible,
i.e., be able to take charge of a group of men, so as to be in
a position to earn the raise which was being given to him;
however, I do not credit Doutt and Childress to the extent
that they contemplated or told Wilson that they were
giving him such supervisory authority as prescribed in
Section 2(1 1) of the Act.21 Rather, I find, as related above,
that Doutt sought to make Wilson a supervisor after he
learned, on or about April 16, of some of the intricacies of
the law pertaining to labor-management relations. On the
other hand, the record clearly shows, and Wilson acknow-
ledges, that he acted as a leadman on several jobs wherein
he took from two to four painters and was more or less "in
charge of them" as respects telling them where, what, and
when to paint on those occasions. Although Respondent
contends Wilson had complete authority after February to
exercise the indicia of supervisory status enumerated in
Section 2(11), the record is clear that he never utilized an
independent judgment in exercising the same. Indeed, the
record shows that there were only two incidents where he
even attempted to have an employee transferred from his
crew. On one of those occasions, the request was denied by
working on the Williams' job only because the High Point job was
inoperative.
19 See, e.g., N.LR.B. v. Hanes Hoisery Division, Hanes Corporation, 413
F.2d 457 (C.A. 4, 1969), where the court stated:
And if a desire to stifle protected activity is a factor in the employer's
decision Ito discharge I, the discharge is discriminatory (citing cases).
20 The foregoing findings are based upon a stipulation by all parties.
21 Sec. 2( I) of the Act states as follows:
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing, the
exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Doutt, indicating that the recommendation was not
"effective"; on the other occasion, according to the
testimony of Childress, Wilson advised Childress that an
employee (Hicks) simply could not do the job of applying
block filler, and Childress transferred Hicks to another job.
This is hardly sufficient evidence to substantiate the
conclusion that Wilson was a Section 2(11) supervisor
although, as previously mentioned, Respondent argues that
it gave him complete authority in this regard. The United
States Court of Appeals for the Fourth Circuit answered
this contention in N.LR.B. v. Southern Bleachery & Print
Works Inc., 257 F.2d 235, 239 C.A. 4, 1958:
It is equally clear, however, that the employer cannot
make a supervisor out of a rank and file employee
simply by giving him the title and theoretical power to
perform one or more of the enumerated supervisory
functions. The important thing is the possession and
exercise of actual supervisory duties and authority and
not the formal title. It is a question of fact in every case
as to whether the individual is merely a superior
workman or lead man who exercises the control of a
skilled worker over less capable employees, or is a
supervisor who shares the power of management.
In this case I have little difficulty in finding that, in the
language of the court, Wilson was "merely a superior
workman or leadman who exercised the control of a skilled
worker over less capable employees." 22
On or about June 8 or 9, Wilson had a conversation with
Childress while working at a school project. It appears that
Childress had received a union card of employee Robert
Hinkel from Supervisor Neugent. When Childress asked
Neugent where he got the card, Neugent said that Wilson
had given him the card. Childress then conferred with
Wilson about it, and, according to Childress' testimony,
Wilson said that employee Dean Bushee had given him
(Wilson) the card to pass to Hinkel. Wilson acknowledged
that he did pass a piece of paper wrapped up in a folder to
Hinkel but denied he knew that there was a union card
inside. Childress told him that "by him being a foreman or
a supervisor that he should be more careful as to what he
hands back and forth." 23
The incident which gave rise to Wilson's termination
involved a job upon which Respondent was painting
contractor at Clinton, North Carolina, a town located
approximately 125 miles from Greensboro. The Clinton job
involved the construction of a multimillion dollar high
school, and extended over a substantial period of time
since it was completed in several phases. As respects
Respondent, the supervisor on the job during its first
22 See also Teledyne-Allvac, Inc., 217 NLRB 886, 894 (1975), and cases
cited therein. Accordingly, I do not reach the question of whether an
employer may deliberately depnve an employee of his Section 7 rights by
making him (or her) a Sec. 2(11) supervisor.
23 Testimony of Childress. Wilson's version of the conversation is
substantially similar to that of Childress except that at the termination
thereof, according to Wilson, Childress asked who gave the card to him to
which Wilson responded "that's none of your business." I deem it
unnecessary to resolve this particular conflict inasmuch as I regard the
incident significant only as it indicates and reflects Respondent's knowledge
and belief that as of that time Wilson was actively engaged in activities on
behalf of the Union.
24 Testimony of Allan Parsons, Jr., project superintendent of the general
phases was Superintendent Carl Kington. Wilson had
worked on the job under Kington for several weeks during
March, along with several other employees some of whom
were taken from Greensboro and the remainder hired
locally from the Clinton area. During the latter part of
March or the first of April, Kington was transferred to
another of Respondent's jobs in Fayetteville, North
Carolina, located some 30 miles away. However, the record
establishes that Kington remained in contact with the
Clinton job, returning there an average of once per week.24
Respondent performed no work on the Clinton job from
April until June 21. The record establishes that on
Wednesday, June 16, Parsons telephoned Doutt to advise
that the general contractor was ready for Respondent to
resume work at Clinton the following Monday. Doutt
advised that Respondent would be there. Following this
telephone call, Doutt directed his bookkeeper to place an
advertisement in the Fayetteville newspaper for Sunday,
June 20, as follows:
PAINTERS
Experienced Only. Apply New Clinton High
School, Clinton, N.C.
At the end of the day, when Wilson returned from work,
Doutt advised Wilson of what had occurred, as stated
above, and assigned Wilson to be in Clinton the next
Monday morning. Wilson indicated that he would go.
However, on the morning of the following day, June 17,
Wilson came into Doutt's office and advised that he would
be unable to go to Clinton because his wife was going to be
on vacation the following week and he had to stay in
Greensboro and babysit with his children. Doutt respond-
ed that he was shocked to hear this, and "I believe I asked
him if he would reconsider when he got home that night
with his wife and he said that he would . . . . 25 However,
later that morning Doutt happened to meet Wilson's
brother-in-law, Warren Kenley, at a nearby restaurant.
Doutt recounted to Kenley the problem with Wilson and
asked Kenley if he thought there was any way that
Wilson's wife could have her children stay somewhere else.
Kenley told Doutt that his mother normally stayed with
the children, and he telephoned his mother from the
restaurant. According to Doutt's testimony (Kenley did
not testify at the hearing), Kenley advised that his mother
was planning to keep Wilson's children and that, in any
event, Mrs. Wilson planned to be at the beach only for the
weekend. Whereupon, Doutt returned to his office and
advised Paul Childress that "if this is the way that it was
going to be that I didn't see that I even needed him
contractor on the Clinton job. Parsons further testified that after Kington
left for Fayetteville, he (Parsons) observed Wilson's work; that he "came
around in the morning, got the equipment out, got the paint out, and
dispersed it to the men. He took the spraying in the gymnasium, the actual
work," Parsons also testified that on a couple of occasions, during the
absence of Kington, he showed Wilson several places where the painting
needed to be redone, and it was corrected. However, I find nothing in the
record to support the contention of Respondent that, following the
departure of Kington from the Clinton job, Wilson exercised the indepen-
dent judgment required to constitute him a supervisor within the meaning of
the Act.
25 Testimony of Doutt.
434
SOUTHERN PAINT & WATERPROOFING CO., INC.
(Wilson); if he couldn't do what I needed him to do, when I
needed it done; and I had to do it anyway that I did not
need him." Doutt then telephoned Parsons and advised
that if any painters "like some of the fellows who had
already previously worked there" showed up on Monday
morning to place them at work doing such things as
priming walls, staining doors, etc., and that he (Doutt)
would be in Clinton on Wednesday morning (June 23).
The following morning, June 18, Wilson went into
Doutt's office and, according to Wilson's testimony, told
him that he guessed he would go to Clinton next week, and
Doutt responded that he did not need Wilson to go-that
he had someone else, namely himself. On the other hand,
Doutt testified that when Wilson came into his office,
Doutt asked Wilson to give Doutt the brushes and tools
that were the property of the Company and that he had
Wilson's full pay through the afternoon of June 17. Doutt
testified that Wilson did not respond but went back out to
the warehouse and got the tools. 26 Wilson testified, without
contradiction, that Doutt followed him into the warehouse
and in the presence of some other painters stated that
Wilson could now "go over and work for Wayne Hardy."
Analysis and Concluding Findings as to the
Termination of Cleo Wilson
It will be recalled that Respondent's defense on this
aspect of the case was that Wilson was "terminated
because the employee refused to accept a job assignment
without giving a valid reason." 27 I find that there is
insufficient evidence to substantiate Respondent's conten-
tion in this regard. To be sure, Wilson indicated to Doutt
and Childress on the morning of June 17 that "he had a
problem; that he wasn't going to be able to go to Clinton
Monday morning."2 8 The record establishes that, at that
time, Wilson's wife had arranged for a weekend vacation at
the beach wherein she would not return to Greensboro
until Monday evening.29 According to Childress' testimo-
ny, Doutt told Wilson on June 17 that "it was sure putting
him in a bind," because someone had to be on the job the
following Monday morning, and asked Wilson, "was there
any way possible that he could go .... "
Q. (By Mr. McGinn) Did Mr. Wilson make any
response to that?
A. He sat there a minute and then he said that he
would see.30
Whereupon, Doutt, after receiving some second-hand
information which led him to believe that Wilson was not
being entirely truthful, proceeded to terminate Wilson
26 It seems highly incredible that Wilson would not have stated anything
during this very critical interview, and I therefore do not credit Doutt's
version thereof.
27 Stipulation of the parties.
28 Testimony ofChildress.
29 However, she testified that because of a thunderstorm while at the
beach on Sunday evening, they decided to return to Greensboro at that time
rather than wait until Monday.
30 Testimony ofChildress.
31 Doutt's statement to Wilson in the warehouse following the termina-
tion to the effect that Wilson could now work for Wayne Hardy is quite
significant, in my view, as revealing a union animus as a factor in both
terminations.
without giving the latter an opportunity to respond to
Doutt's request that Wilson reconsider his position which
Wilson had indicated he would do. Such haste in
terminating an admitted experienced and competent
employee seems entirely unwarranted under the circum-
stances unless there was another reason involved. I am
convinced, and therefore find, that such other reason was
Wilson's active participation in the Union's campaign to
which Respondent was thoroughly and openly hostile.3 ' As
the United States Court of Appeals for the Ninth Circuit
stated the principle in Shattuck Denn Mining Corporation v.
N.LR.B., 362 F.2d 466, 470 (1966):
If he [the trier of the fact) finds that the stated motive
for a discharge is false, he certainly can infer that there
is another motive. More than that, he can infer that the
motive is one that the employer desires to conceal-an
unlawful motive-at least where, as in the instant case,
the surrounding facts tend to reinforce that inference.
The record herein reflects that Wilson was active on
behalf of the Union from April until his termination, and
that Respondent's officers were well aware of such
conduct.3 2 Respondent argues that since it considered
Wilson to be a supervisor at the time, and therefore could
be discharged with impunity by Respondent, "there was no
'union' reason for getting rid of him at that time (before the
election)." 33 This argument is not persuasive since the
record is clear that Respondent was strongly opposed to
the union campaign and it certainly can be reasonably
inferred that it was just as opposed to one of its
"supervisors" being actively engaged on behalf of the
Union.
Respondent further argues that a company may legally
discharge an employee for lying, which, of course, is
absolutely correct if such was the "real reason" for the
termination. However, as previously noted, such was not
the reason stated on Wilson's termination slip.3 4 Neverthe-
less, I have considered that Wilson, admittedly not desiring
to return to Clinton, was less than entirely honest with
Respondent in his conversation with Doutt on June 17.
Were this a case of private litigation, a judge or jury might
very well refuse a remedy to Wilson under these circum-
stances. However, as has been oft-stated, this is a case
brought in the public interest, and not to redress private
rights. The sole issue here is the motivation behind
Respondent's termination of Wilson on June 17. For
reasons hereinabove set forth, I have determined that
32 In addition to the incidents in April and June previously discussed.
Wilson testified that on or about June 15, Doutt approached him on the
back lot and advised that another employee (McLamb) had complained to
Doutt that Wilson had been "harassing him about the Union." Wilson
denied it, and the following day Doutt called Wilson and McLamb together.
McLamb receded from his prior position.
31 Respondent's brief
34 It will be recalled that the reason stated on the termination slip was
"refus[al ] to accept a job assignment without giving a valid reason." The
evidence does not, in my view, substantiate a finding of refusal; rather, it
indicates a willingness on the part of Wilson to reconsider and attempt to
"work out" a means of complying with Doutt's assignment.
435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantial evidence supports the position of the General
Counsel on this issue.35
Finally, Respondent urges that I should hold as a matter
of law that Wilson was a supervisor since the Union and
the Company stipulated such to be the case in the
representation hearing. I am not persuaded by this
argument since it is well established that neither the
General Counsel nor the Board is bound by positions or
stipulations taken by the parties in a representation case in
which the General Counsel is not a party. 36 Accordingly, I
reject this contention of Respondent.3 7
Based upon all of the foregoing, I find and conclude that
the termination of Wilson on or about June 17 was in order
to discourage membership in the Union in violation of
Section 8(a)(3) and (1) of the Act.
D. The Representation Proceeding (Case 11-RC-
4193)
Based upon the foregoing findings and conclusions, I
hereby recommend that the challenges to the ballots of
Hardy and Wilson be overruled: that their ballots be
opened and counted, and that a revised tally of ballots be
served upon the parties.
Based upon the foregoing findings and conclusions, I
find that the Petitioner's Objections I and 2 to the election
be sustained since there is substantial evidence in the
record that Respondent engaged in wrongful and unlawful
conduct of the nature alleged in the objections following
the filing of the petition on May 3 until the election on
June 22.38
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section I, above,
occurring in connection with its interstate operations, have
a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By coercively interrogating employees concerning
their union activities, by threatening employees with
35 Respondent argues in its brief that if Wilson lied to Respondent's
officers, he may very well have lied in his testimony as to what he stated to
them on June 17. It is for this reason that I have decided this aspect of the
case solely on the testimony of Respondent's officers as respects what
occurred during the conversation among Doutt, Childress, and Wilson on
the morning of June 17.
36 See, e.g., Shelly & Anderson Furniture Mfg. Co., Inc., 199 NLRB 250,
255 (1972).
3' Similarly, I reject the contention of Respondent that it was entitled to
rely upon such stipulation in its subsequent conduct, i.e., that it (Respon-
dent) was entitled to a defense of its discharge of Wilson based upon a
theory of reliance upon such stipulation.
discharge or other reprisals if they selected the Union as
their collective-bargaining representative, by threatening to
close its plant should the employees select the Union as
their collective-bargaining representative, and by creating
an impression of surveillance of its employees' union
activities, Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed
them in Section 7 of the Act, in violation of Section 8(a)(1)
of the Act.
4. By discharging its employees Wayne Hardy and
Cleo Wilson, in order to discourage membership in the
Union, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3)
and (I) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THm REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom,
and take certain affirmative action designed to effectuate
the policies of the Act.
It having been found that Respondent unlawfully
discharged its employees, Wayne Hardy and Cleo Wilson,
it is recommended that Respondent offer said employees
immediate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of earnings that they may have suffered as a result of
the discrimination against them. Any backpay found to be
due shall be computed in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
As the unfair labor practices committed by Respondent
strike at the very heart of employee rights safeguarded by
the Act, I shall recommend that Respondent be placed
under a broad order to cease and desist from in any
manner infringing on the rights of employees guaranteed in
Section 7 of the Act. 39
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 40
The Respondent, Southern Paint & Waterproofing Co.,
Inc., Greensboro, North Carolina, its officers, agents,
successors, and assigns, shall:
3s However, depending upon the outcome of the election following the
counting of the challenged ballots, Petitioner may, of course, wish to
withdraw its objections.
39 N.L R.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A.
4, 1941).
40 In 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 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.
436
SOUTHERN PAINT & WATERPROOFING CO., INC.
1. Cease and desist from:
(a) Discouraging membership in Brotherhood of Painters
and Allied Trades, Local Union 1756, AFL-CIO, or any
other labor organization, by discharging or otherwise
discriminating against employees because of their union
membership or activities.
(b) Coercively interrogating employees concerning their
union membership or activities.
(c) Threatening employees with discharge or other
reprisals should they join or assist the above-named Union
or select it as their collective-bargaining representative.
(d) Threatening employees with plant closure should
they select the above-named Union, or any other labor
organization, as their collective-bargaining representative.
(e) Creating the impression of surveillance of its
employees' union activities.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist the above-named labor
organization, or any other labor organization, to bargain
collectively through representatives of their own choosing,
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Wayne Hardy and Cleo Wilson, Jr., immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make each whole for any loss of earnings he
may have suffered by reason of the discrimination against
" 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
him in the manner set forth in the section of this Decision
entitled "The Remedy."
(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 records necessary
and relevant to analyze and compute the amount of
backpay due under this recommended Order.
(c) Post at its Greensboro, North Carolina, plant, copies
of the attached notice marked "Appendix." 4' Copies of
said notice, on forms provided by the Regional Director for
Region 11, after being duly signed by the Company's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Company to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region I 11, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the challenges to the
ballots of Wayne Hardy and Cleo Wilson be overruled,
and that their ballots be opened and counted in the manner
aforesaid, and that a revised tally of ballots be served upon
the parties.
IT IS FURTHER RECOMMENDED that the election in Case
11-RC-4193 be set aside, and that a new election be
scheduled at a time found by the Regional Director to be
appropriate, unless such objections are previously with-
drawn by the Union.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
437