United Painting Contractors

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 159 (N.L.R.B. 1970)

UNITED PAINTING CONTRACTORS 159
Karl Kristofferson and Sigvald Kristofferson, Co-
partners , d/b/a United Painting Contractors and
Blaine A . Johnson . Case 9-CA-5323
June 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On April 28, 1970, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not
engaged in certain other unfair labor practices al-
leged in the complaint, and recommended dismissal
of these allegations. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision.
The General Counsel and the Charging Party also
filed exceptions, and briefs in support thereof.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and
hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, United Painting Con-
tractors, Palos Height, Illinois, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner: This
proceeding tried before me with the parties present
and represented by counsel, at Gillipolis, Ohio, on
March 17, 1970, involves a complaint' pursuant to
Section 10(b) of the National Labor Relations Act,
as amended, alleging that United Painting Contrac-
tors, a partnership (herein Respondent or Com-
pany), while engaged in the performance of a
bridge painting contract, violated Section 8(a)(1)
of the Act by discharging and failing and refusing to
reinstate three employees because those employees
engaged in protected concerted activity for their
mutual aid or protection. By answer, Respondent
admitted certain allegations of the complaint, but
denied the commission of any unfair labor practice.
At the hearing the parties were afforded full op-
portunity to examine and cross-examine witnesses,
to adduce relevant evidence, to argue orally on the
record, and to submit briefs. Oral argument was
waived. A brief submitted by the General Counsel
has been duly considered. No brief was received
from Respondent.
Upon the pleadings, stipulations, evidence, in-
cluding my observation of the demeanor of the wit-
nesses, and the entire record in the case, I make the
following:
FINDINGS OF FACT2
Performance of the bridge painting contract
began in July,' but before starting the job Respon-
dent entered into a memorandum understanding
with Painters Local 813 of Huntington (herein the
Union), which asserts jurisdiction in the area of the
work, agreeing to comply with the Union's area
contract regarding the wages, hours, and terms and
conditions of employment of its members. During
July and August, Respondent employed a number
of the Union's members, including Blaine A. John-
son, William D. Cremeans, and David E. Cremeans,
the three alleged discriminatees, to work on the
job.
Blaine Johnson began working for Respondent at
the bridge project on August 4. Johnson did nc
painting himself, but was assigned to see that a
small group of painters properly performed their
work. He was paid a foreman's rate of 25 cents an
hour over the journeyman rate. The General Coun-
sel concedes that Johnson was a supervisor within
the meaning of the Act. About a week after starting
on the job, Johnson had a conversation with
General Foreman Michaels' at the jobsite. Johnson
' Issued January 27, 1970, on a charge filed and served on September 8,
1969
S No issue of commerce is presented Although Respondent denied the
commerce allegations of the complaint, the uncontradicted testimony
shows, and I find and conclude that Respondent , which maintains its prin-
cipal office at Palos Height , Illinois, is engaged in various States as a paint-
ing contractor , that at all times material it was engaged in the performance
of a contract for the painting of a new bridge across the Ohio River
between Point Pleasant, West Virginia , and Gillipolis , Ohio, known as the
Silver Memorial Bridge, the contract price for the painting being in excess
of $50,000 The bridge referred to was constructed to replace a bridge that
collapsed in December 1967, with considerable loss of life
This and all date- hereafter referred to are 1969
Michaels'supervisory status is conceded in Respondent's answer
184 NLRB No. 19
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complained to Michaels that he and the men were
being required to work with faulty rigging, and to
paint over rust and loose bolts. Michaels told John-
son that Respondent was working under a deadline,
and that if Johnson would follow orders and ask no
questions, he (Johnson) would get a bonus upon
completion of the job. Johnson, however, directed
the men to scrape and prime rust spots before
painting and not to paint over loose bolts, and ob-
served them closely to see that his instructions were
complied with.'
On August 15, Johnson and his fellow employee
William Cremeans went to an office which the
West Virginia Roads Commission maintained at
Point Pleasant , near the site of the bridge project,
to speak to Project Engineer Dorsey, an employee
of the State. Dorsey was not available, so Johnson
and Cremeans spoke with Office Manager Kenny,
complaining to the latter about unsafe rigging on
the bridge and the practice of painting oyer rust
and loose bolts. From there Johnson and Cremeans
went to the office of Congressman Heckler in
Huntington , where they spoke with Robert Nelson,
the Congressman's aide, telling him substantially
the same thing they had told Kenney.'
Under date of August 20, William Cremeans
wrote a letter to Congressman Heckler complaining
about the unsatisfactory rigging and other working
conditions on the bridge. On August 21, William
Cremeans had a general conversation about the
contents of this letter, in the paint shanty at which
Respondent Karl Kristofferson, General Foreman
Michaels, and Delaney Randolph, an employee of
the West Virginia Roads Commission, and a group
of Cremeans' fellow painters were present. The
conversation was in a normal tone of voice, with
Kristofferson about 4 feet, and Michaels about 2
feet, away, but neither made any comment.'
On the morning of August 20, Johnson had a
crew working on a pick some hundred feet or more
above water. Foreman Michaels approached John-
son on the bridge and told the latter that the men
were not moving fast enough, and that Johnson had
to make them move or fire them Johnson ex-
plained that the pick was too long, and that the
weight the men had to carry,' together with their
equipment, made it difficult to maneuver.
Nevertheless, Johnson joined the men on the pick
and reported to them what Michaels had said, and
Based on the uncontradu-ted and credited testimony of Johnson
Michaels was not called as a witness, nor was the failure to call him ex-
plained
" Based on the credited and uncontradicted testimony of Johnson and
William Cremeans
' Kristofferson admitted that he learned of this letter on the job, but gale
no testimony as to when or under what circumstances the information
came to his attention
" the men carry paint in a 5-gallon container, which normally weighs
about 75-80 pounds
" Based on the credited testimony of Johnson and William Cremeans
Knstofferson testified that Hoenig for a time was unable to get any explana-
tion from the men as to the reason for the walkoff, but that it finally came
that if they did not go along with Michaels' orders
they would be fired. While this conversation was in
progress, the pick broke throwing Johnson into the
cords. One man caught Johnson, and another, who
was wearing a safety belt, caught the pick, which
prevented the men from falling into the water.
Shortly after this event, all of the painters on the
bridge, some 17 to 19 in number, left their work
and went to the paint shanty, where they met with
Kristofferson and Hoenig, superintendent for Allied
Construction, the steel contractor on the job. John-
son, apparently spokesman for the group, argued
that the working conditions of the painters as laid
down by Respondent were unsafe. Hoenig there
upon remarked that he was unaware that Kristoffer-
son and Michaels were requiring the men to work
under the conditions Johnson stated, but that he
would require additional rigging to be put up if the
men would return to work. The men agreed and
work was resumed at the end of the lunch period.
The work of putting up rigging was also begun.9
On August 21, Johnson, William Cremeans, and
his brother David reported for work as usual and
except for the usual 12 to 12:30 lunch break,
worked until 1:30 p.m. During that morning
Michaels told Johnson that the latter was doing too
much talking to the men about unsafe conditions,
and that Johnson would have to work with the
brush and cease being a foreman. However, John-
son was never required to work with a brush or to
cease his supervisory duties. About 1:30 that after-
noon Johnson reported to Michaels that he was ill
and had to go home. Michaels gave permission for
Johnson to do so. Johnson then stated he would
have to notify William and David Cremeans
because they were riding with him and had no other
way home. ° Michaels agreed to this also. After
Johnson notified the Cremeans brothers that he was
leaving the job, Michaels took him in his truck from
the bridge to the paint shanty. On the way,
Michaels told Johnson to turn in his hard hat, life
jacket, and safety belt saying, "I've got a feeling
you won't be back." When Johnson asked why,
Michaels replied, "Oh, just because."" At the paint
shanty, Kristofferson was present and shortly
thereafter Union Steward Eicher arrived with the
Cremeans brothers. Johnson, in the presence of
Kristofferson, told Eicher that if he felt well enough
he would be at work the next morning, and if not,
out that they felt the rigging was unsafe, but did not say what was wrong
with it He further testified that the men agreed to return to work, but that
no commitment was made to do anything about the rigging, nor was
anything done about it ro the extent that Kristofferson's testimony is in
conflict with that of Johnson and William Cremeans, I do not credit him
Hoenig did not testify
"' Johnson and both of the Cremeans resided in Huntington, approxi-
mately 40 miles south of the worksite No other workers on the bridge lived
in Huntington
" This was contrary to normal practice For the major portion if not for
the entire period of his employment by Respondent, Johnson was per-
mitted to keep his equipment in his truck rather than lock it in the paint
shack as the other painters were required to do
UNITED PAINTING CONTRACTORS
he would send word by William Cremeans.
Michaels expressed agreement, but Kristofferson
made no comment.12
Early on August 22, Johnson telephoned William
Cremeans that he was not well enough to go to
work. William Cremeans and his brother David
thereupon left for work without Johnson, arriving
at the jobsite about 7:30 a m. William Cremeans
promptly notified Kristofferson that Johnson was
still ill and would not be at work that day." While
the men were waiting for the fog to lift so that they
might commence work, State Road Commission
employee Randolph appeared at the jobsite and
told William Cremeans that Dorsey, also a Road
Commission employee, wanted to see Johnson and
Cremeans at the Commission's office later that
morning . Cremeans, with his brother David, there-
upon went to Kristofferson's office and told the
latter that they would be unable to go to work that
morning because they were wanted at the Road
Commission's office.14 Kristofferson gave his per-
mission for the men to keep their appointment.15
August 22 being their regular payday, William
Cremeans also asked for and received from Kristof-
ferson, his paycheck, as well as that of his brother
and Johnson, saying that he expected to see the
latter that night at a union meeting, and would give
it to him.16 The Cremeans brothers then left for the
office of the Roads Commission, some 3 miles
distant from the jobsite, to see Dorsey. Finding
Dorsey unavailable for several hours, they went to
Huntington where they again complained to Con-
gressman Heckler's aide about safety conditions on
the bridge. Returning to the Roads Commission's
office, the Cremeans talked with Dorsey, making
same complaint to him."
Leaving the Roads Commission's office, the
Cremeans returned to the jobsite where they were
met by television news reporters. William
Cremeans was interviewed and film shots of the in-
terview were taken, which were shown on the
television evening news that day. In the interview
Cremeans complained about unsafe working condi-
tions on the bridge arid the painting over rust and
" Z Based on the uncontradicted and credited testimony of Johnson As
heretofore indicated Michaels did not testify Kristofferson testified that he
was not aware that Johnson became ill on the job on August 21 He admits
that he saw the three men leaving the job that day, and claimed that he
asked them why they were leaving, but that he got no satisfactory answer
Kristofferson claimed that he had no recollection as to whether Michaels
was present on this occasion or not William Cremeans testified that at the
paint shanty he was asked by Kristofferson if the men were quitting, and
that he replied to the effect that Johnson was ill and had to go home, and
that he and his brother had to go with him because they had no other way
home , but would he hack at work in the morning Because I credit
Cremeans and Johnson, I do not credit Kristofferson's testimony that he
was unaware of the reason the three men left the job on August 21
" Based on the credited testimony of William Cremeans Kristofferson
testified that he did not remember being advised that Johnson was still ill
and would not be at work on August 22 Additionally, he at first testified
that Johnson was not on the job on August 22, and later testified that he
was there To the extent that Kristofferson 's testimony is in conflict in that
regard with that of William Cremeans and Johnson , I do not credit it
14 Because Johnson was not at work that morning , William Cremeans de-
161
loose bolts . Although Kristofferson testified that he
knew of no complaints about unsafe working condi-
tions on the bridge even as late as August 25, he
admitted that he saw and heard the interview of
William Cremeans on the television telecast on Au-
gust 22." The local newspaper also carried news
items , all of which Kristofferson admitted he saw,
stating the protest made by the men. One of these
news items is dated August 23, and mentions Wil-
liam Cremeans as one of the persons complaining.
Kristofferson admitted that on Friday, August 22,
he asked the Union to refer six painters to the job
for work on Monday , August 25. He additionally
testified that on August 22, the Union was notified
that Respondent wished the men to work on Satur-
day, August 23, such notice being required by the
contract with which Respondent agreed to comply.
Kristofferson admitted that he personally did not
give such notice , but because notice was required
by the contract, he assumed it was given by
someone. No testimony was adduced, however, to
establish that such notice was in fact given. At the
union meeting during the evening of August 22,
both Johnson and Williams Cremeans inquired of
the Business Agent if Respondent had asked for
permission to work the following day, and were told
that no such request had been made. For this
reason neither Johnson nor the Cremeans went to
the job on Saturday, August 23. However, Kristof-
ferson testified without contradiction that on Au-
gust 23, 12 painters worked on the job. No
testimony was given to explain how these men were
notified that work would proceed that day.
On Monday, August 25, Johnson and the
Cremeans went to the jobsite prepared to work. Ar-
riving before the 8 a.m starting time, they went to
the paint shack for coffee before beginning work.
While so engaged, Holly, who had been appointed a
foreman the preceding week,'9 came in, handed
Johnson and both the Cremeans a check, and
stated that they were laid laid off. They asked,
"Laid off or fired?" Holly replied, "The old man
just said you were laid off."20 The three men
thereupon left the job. Although Kristofferson
ceded to take his brother with him to the Commission's office David
Cremeans testified that he went at his brother 's request
" Based on the credited testimony of William and David Cremeans
Kristofferson admitted that Randolph came to the job that morning, and
that the Cremeans brothers told him that they would be unable to work
because they had something else to do, but denied that they informed him
what that something else was I do not credit his denials
"' Kristofferson admitted that while the men were normally paid at the
end of the workday on which the paycheck is due , checks for the three men
referred to were given out early that morning, although he claimed that he
could not recall whether he gave those checks, or whether he gave them to
Michaels for delivery
" Based on the credited and uncontradicted testimony of the Cremeans
" Based on the credited and uncontradicted testimony of the Cremeans
and the admission of Kristofferson
'" There is no evidence that Holly's appointment when made was in dis-
placement of Johnson as foreman
m Based on the uncontradicted and credited testimony of Johnson and
William Cremeans
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claimed that because these men did not work on
Friday or Saturday, he thought they had quit, and
never expected them to come back, he admitted
that he had their checks made out before he saw
them that morning, and had already decided that
they were not going to work. Kristofferson also ad-
mitted that on August 25, he had ample work for
the three men, that all of them were good painters,
and that he had no complaint about their work.
Contentions and Conclusions
Assuming for the moment that Johnson's
discharge under the circumstances of this case
could be a violation of Section 8(a)(1) of the Act,
a question hereafter considered, the first issue to be
determined is whether the men were discharged
because they engaged in concerted activity for their
mutual aid or protection, as contended by the
General Counsel, or whether their discharge was
solely because they were absent from work on Au-
gust 22 and 23, as Respondent contends. I find and
conclude that the men were discharged because
they in good faith concertedly protested what they
regarded as unsafe conditions on the bridge, conduct
protected by Section 7 of the Act, and for which at
least the Cremeans could not lawfully be
discharged. It is immaterial and therfore unnecessa-
ry to decide, or make any findings, as to whether
the men were correct or incorrect in their assertion
of unsafe conditions. It is sufficient to find, as I do,
that they were at all times acting in good faith in
their assertions and efforts to cause such conditions
to be corrected, and that their activity in that re-
gard is actively protected by Section 7 of the Act,
for which employees may not be lawfully
discharged. N.L.R.B. v. Washington Aluminum
Company, Inc., 370 U.S. 9, Ben Pekin Corporation,
181 NLRB 165. This conclusion is dictated, I be-
lieve, by a number of factors.
I have found notwithstanding Kristofferson's
denials , that he was well aware that the men were
protesting unsafe working conditions , as he ad-
mitted knowledge of the letter Cremeans wrote his
Congressman, the television broadcast, and that the
men engaged in a work stoppage on August 20,
returning to work only after an agreement was
made in Kristofferson's presence that additional
rigging would be put up to protect them. Kristoffer-
son admittedly had no complaint about the work
these men did, admittedly regarding them as com-
petent workmen, and as I have found gave his per-
mission for these men to leave the job on August 21
because Johnson's illness, knew on August 22 that
Johnson was still ill, and on that day gave his per-
mission to the Cremeans not to go to work in order
that they might keep their appointment with
representatives of the Roads Commission. Not-
21 In this connection it is not without some significance that when John-
son was leaving the job on August 21, General Foreman Michaels, contrary
to usual practice , asked Johnson to turn in his equipment , saying " I've got a
withstanding these facts, Kristofferson admittedly
called the Union on Friday for six men, three of
whom were to replace the three here involved, and
by Monday morning had checks in his possession to
pay them, in spite of his claim that he thought the
men had quit and would not be back on the job.
From all of this it is apparent to me that Kristoffer-
son was so angered by the events of August 20 and
22, climaxed as they were by fact that on August
22, the Cremeans took their complaint to the
Roads Commission and publicly aired them on
television, that he decided to rid himself of those
whom he regarded as the leaders of the movement.
His claim that the men were discharged because
they were absent from the job on August 22 has all
the earmarks of an afterthought seized upon in the
attempt to obscure the true motive for the
discharges.21 I so find and conclude. As the Court
of Appeals for the Ninth Circuit stated in Shattuck
Denn Mining Corporation v. N.L.R.B., 362 F.2d
466, 470:
If he [the trier of fact] finds that the stated mo-
tive for a discharge is false, he certainly can
infer that there is another motive. More than
that, he can infer that the motive is the one
that the employer desires to conceal-an un-
lawful motive-at least where, as in this case,
the surrounding facts tend to reinforce that in-
ference.
For the reasons stated, I find and conclude that
the Cremeans brothers were discharged by Respon-
dent because they engaged in concerted activity
protected by the Act, and that such discharges in-
terfered with, restrained, and coerced employees in
the exercise of their Section 7 rights, and therefore
violated Section 8(a)(I) of the Act.
With respect to Johnson, however, other con-
siderations apply which lead me to the conclusion
that in discharging him, Respondent did not violate
any Section of the Act. Although claiming that
Johnson's supervisory authority was "minor," the
General Counsel conceded at the hearing, and
again in his brief, that he was a "supervisor" within
the meaning of the Act. As such, Johnson did not
have the protection of the Act against reprisal by
Respondent (Mississippi Valley Barge Line, Inc.,
151 NLRB 678), except in a very limited area. As
Trial Examiner Louis Libbin, with Board approval,
wrote in Great Lakes Towing Company, 168 NLRB
695 at 702:
The cases in which the Board has found that
disciplinary action against a supervisor tends to
interfere with the employees' Section 7 rights
in violation of Section 8(a)(1) of the Act
generally fall into two categories. One category
involves disciplinary action against a supervisor
for having testified in a Board proceeding [Oil
City Brass Works, 147 NLRB 627; Better Mon-
feeling you won't be back " The facts tend to support the inference that the
remark was more than prophetic
I UNITED PAINTING CONTRACTORS 163
key Grip Company, 115 NLRB 1170]. The
other category involves disciplinary action
against supervisors for failing or refusing to
assist the employer in his campaign to combat
the employees' self-organization efforts by con-
duct constituting an unfair labor practice,
generally in a context of known employer
hostility and opposition to the employees' or-
ganizational efforts. [Transitron Electric Corp.,
129 NLRB 828; Talladega Cotton Factory, Inc.,
106 NLRB 295; Brookside Industries, Inc., 135
NLRB 16]. The Board's findings of a violation
in the first category rests primarily on the
reasoning that such conduct infringes upon the
freedom of employees to vindicate their Sec-
tion 7 rights in a Board proceeding because it
creates fear of a similar fate befalling them for
testifying in a Board proceeding, because their
Section 7 rights include the right to have su-
pervisors with knowledge of the facts testify in
Board proceedings without risking disciplinary
action, and because such conduct interferes
with the Board's process and orderly adminis-
tration of the Act. [Oil City Brass Works,
supra; Better Monkey Grip, supra; Grand-Cen-
tral Chrysler, Inc., 165 NLRB 185, 188]. The
Board's finding of a violation in the second
category rests primarily on the reasoning that
the conduct for which the supervisor was
disciplined was his refusal to commit an unfair
labor practice for the intended purpose of
chilling unionism, and that disciplinary action
for that reason had such a clear and direct im-
pact on the employees' Section 7 rights that it
is quite obvious that it would reasonably tend
to impinge on their exercise of those rights.
None of the factors detailed above are present in
the instant case Plainly, Johnson was not
discharged for giving testimony in a Board proceed-
ing, nor for refusing to carry out an instruction to
engage in unfair labor practices. It is true that the
rank-and-file employees must have been aware of
the circumstances of and the reasons for, Johnson's
discharge, but it does not necessarily follow from
this that they could reasonably fear that the same
fate would befall them if they engaged in concerted
or union activity. For if that were true every
discharge of a supervisor for engaging in union ac-
tivity would be a violation of Section 8(a)(1), a
result plainly at variance with the intent of Con-
gress in creating the dichotomy between "em-
ployees" and "supervisors." Cf. Panaderia Sucesson
Alonzo, 87 NLRB 877, 881. Thus, a threat to
discharge or even the discharge of a supervisor
because he signed and was active in procuring em-
ployees to sign authorization cards for a union en
gaged in an organizational campaign does not vio-
-e Section 8(a)(1 ), because such a discharge is
not for refusing to participate in unfair labor prac-
tices, or for giving testimony in a Board proceeding,
but because he engaged in conduct inconsistent
with his status as a supervisor, and this would be
true even though some employees might regard
such a discharge as an indication that if an em-
ployer would discharge for signing a union card,
employees could expect a similar fate . Cf. Al-
gonquin Bowling Center, 170 NLRB 1768 , and the
cases there cited at fn. 2. So here , Johnson , as a su-
pervisor , had no protected right to engage in con-
certed activity , either in his own behalf, or on be-
half of employees . His conduct in that regard was
inconsistent with his status as a supervisor , and his
discharge for that reason does not violate Section
8(a)(I) of the Act.
Accordingly , I find and conclude that Johnson's
discharge did not violate any Section of the Act,
and shall recommend that the complaint herein, to
that extent, be dismissed.
Upon the foregoing findings of fact and the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the mean-
ing of Section 2(2) of the Act, and is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. In protesting alleged unsafe working condi-
tions, Respondent's employees engaged in con-
certed activities for their mutual aid and protection
within the meaning of Section 7 of the Act.
3. By discharging William and David Cremeans
for engaging in concerted activities for their mutual
aid and protection, Respondent interfered with,
restrained, and coerced its employees in the exer-
cise of rights guaranteed by Section 7 of the Act,
and thereby engaged in and is engaging in unfair
labor practices proscribed by Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce. within the
meaning of Section 2(6) and (7) of the Act.
5. The discharge of Johnson by Respondent did
not violate any Section of the Act, and the allega-
tions of the complaint in that respect should be
dismissed.
THE REMEDY
Having found that Respondent engaged in unfair
labor practices, it will be recommended that it be
required to cease and desist therefrom and take
certain affirmative action designed and found
necessary to effectuate the policies of the Act.
Having found that Respondent interfered with,
restrained, and coerced its employees in the exer-
cise of rights guaranteed by Section 7 of the Act, it
will be recommended it be required to cease and
desist therefrom.
Having found that Respondent discharged Wil-
liam and David Cremeans because they engaged in
protected concerted activity for their mutual aid
and protection, it will be recommended that it be
required to offer each of them reinstatement to
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their former job on the bridge project, if the same is
still in progress, without prejudice to their seniority
or other rights, privileges, or working condidions,
and make each of them whole for any loss of
earnings suffered by reason of their discharge, by
paying to each a sum of money equal to the wages
he would have earned from the date of his
discharge to the date of reinstatement, if the bridge
project is still in progress , and if completed, to the
date of his employment would have ceased in the
normal course of events , less his net earnings dur-
ing such period , in accordance with the Board's for-
mula set forth in F. W. Woolworth Company, 90
NLRB 289, with interest thereon at the rate of 6
percent per annum, as provided in Isis Plumbing &
Heating Co , 138 NLRB 716. To assist in determin-
ing compliance with this provision, it will be recom-
mended that Respondent be required to preserve
and make available to agents of the Board, all
payroll and other records necessary or useful in ob-
taining compliance with the Board's order, or in
computing the amount of backpay.
Because the record does not disclose whether
Respondent's bridge project is still in progress, it is
not possible to determine whether the notices nor-
mally required by the Board can be posted at the
jobsite. Accordingly, it will be recommended that
Respondent be required to follow the usual notice
posting procedure if the bridge job is still in
progress, and if not, that it be required to mail a
copy of the notice to each person employed on the
project on August 20, or at any time thereafter.
Because of the nature of the unfair labor prac-
tices found, which go to the very heart of the Act, it
will be recommended that Respondent be required
to cease and desist from in any manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed by Section 7 of the Act.
N.L.R.B v. Entwistle Mfg. Co., 120 F.2d 532 (C.A.
4); California Lingerie, Inc., 129 NLRB 912, 915.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in the
case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is recom-
mended that the National Labor Relations Board
order Karl Kristofferson and Sigvald Kristofferson,
co-partners, doing business as United Paint Con-
tractors, their officers, agents, successors, and as-
signs, to:
1. Cease and desist from:
(a) Discharging employees because they have
engaged in, for their mutual aid or protection, con-
certed activity which is protected by Section 7 of
the National Labor Relations Act, as amended.
(b) In any other manner interfering with,
restraining, or coercing employees in the exercise
of their rights to self-organization, to form, join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing, and
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities.
2. Take the following affirmative action found
necessary and designed to effectuate the policies of
the Act:
(a) If its bridge painting job at Point Pleasant,
West Virginia, is still in progress, offer William D.
Cremeans and David E. Cremeans, immediate, full,
and unconditional reinstatement to their former
jobs or, if such a job no longer exists, to a substan-
tially equivalent position, without prejudice to their
seniority or other rights, privileges, or working con-
ditions, and notify each of them, if presently serving
in the Armed Forces of the United States, of his
right to full reinstatement upon application in ac-
cordance with the Selective Service Act and
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(b) Make whole William D. Cremeans and
David E. Cremeans for any loss of earnings they
suffered by reason of their discharges on August
25, 1969, in the manner set forth in the section
hereof entitled "The Remedy."
(c) Preserve and, upon request, make available
to the Board and its agents for examination and
copying, all records necessary or useful in deter-
mining compliance with the provisions of this
order, or in computing the amount of backpay due,
including, but not limited to social security pay-
ment records, timecards, and personnel records and
reports.
(d) If the bridge painting project is still in
progress, post at said project copies of the attached
notice marked "Appendix."22 Copies of said notice,
on forms provided by the Regional Director for Re-
gion 9 (Cincinnati, Ohio), shall, after being signed
by an authorized representative, be posted by them
immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any
other material If said bridge painting project has
been fully completed, then, and in that event, suffi-
cient copies of said notice on forms to be furnished
by the aforesaid Regional Director, shall after being
signed by an authorized representative, be
ex In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 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 Na-
tional Labor Relations Board " shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
UNITED PAINTING
delivered to said Regional Director in properly ad-
dressed but unsealed envelopes, with legal postage
affixed, for mailing by him to all persons employed
on said bridge painting project on August 20, 1969,
or at any time thereafter. At the same time there
shall be delivered to said Regional Director, a
separate list showing the name and last known ad-
dress of all persons to receive such notice, as herein
provided.
(e) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith.'
Z' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith '
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which both sides had the oppor-
tunity to present their evidence, the National Labor
Relations Board has found that we, Karl Kristoffer-
son and Sigvald Kristofferson, Co-partners, doing
business as United Painting Contractors, violated
the National Labor Relations Act, and ordered us
to post this notice, and we intend to carry out the
order of the Board, the judgment of the court, and
abide by the following:
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these
things.
CONTRACTORS 165
WE WILL NOT do anything to interfere with
you in the exercise of these rights.
WE WILL NOT discharge employees because
they engage in concerted activity for their mu-
tual aid or protection which is protected by
Section 7 of the National Labor Relations Act
As it has been found that we violated the law
when we discharged William D. Cremeans and
David E. Cremeans, WE WILL, if our bridge
painting job at Point Pleasant, West Virginia, is
still in progress, offer each of them their job
back, with full seniority, and we will make up
to each of them the pay they lost, together with
6-percent interest.
WE WILL notify William D. Cremeans and
David E. Cremeans, if they are serving in the
Armed Forces of the United States of their
right to reinstatement, upon application, if the
bridge painting job is still in progress, in ac-
cordance with the Selective Service Act and
the Universal Military Training and Service
Act, as amended, after discharge from the
Armed Forces.
KARL KRISTOFFERSON AND
SIGVALD KRISTOFFERSON,
CO-PARTNERS, DOING
BUSINESS AS UNITED -
PAINTING CONTRACTORS
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Room 2407, Federal Office Build-
ing, 550 Main Street, Cincinnati, Ohio 44199,
Telephone 216-522-3715.
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