Warren Paint and Color Co.

National Labor Relations Board - Board Decisions

May 9, 1963

142 N.L.R.B. 494 (N.L.R.B. 1963)

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warren Paint and Color Company and Teamsters, Chauffeurs,
Helpers & Taxicab Drivers Local Union No. 327, affiliated with
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Cases Nos. 26-CA-1352 and
26-CA-1352-2. May 9, 1963
DECISION AND ORDER
On February 27, 1963, Trial Examiner Benjamin B. Lipton issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
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 Inter-
mediate Report and the entire record in these cases, including the
exceptions and brief, and hereby adopts the findings, conclusions, and
recommendations 1 of the Trial Examiner.
ORDER
The Board hereby adopts as its Order the Recommended Order 2
of the Trial Examiner.
1 For the reason given in his dissent in the Isis Plumbing i Heating Co . case, 138 NLRB
716, Member Rodgers would not grant any interest in this case.
9 The notice appended to the Intermediate Report is hereby modified by inserting the
phrase "and the Universal Military Training and Service Act of 1948, as amended" after
the phrase "Selective Service Act" which appears in the "Note" thereof.
INTERMEDIATE REPORT
STATEMENT OF THE CASES
A hearing was held before Trial Examiner Benjamin B . Lipton in Nashville,
Tennessee , on November 15 and 16, 1962, involving allegations by the General
Counsel that the Respondent engaged in various acts of interference , restraint, and
coercion and discriminatorily terminated two employees , in violation of Section
8(a)(1) and (3) of the Act.' All parties were represented and participated in the
hearing, and they waived oral argument on the record . Respondent filed a brief
which has been duly considered.
Upon the entire record in the cases and from my observation of the witnesses,2
I make the following:
1 The original charge in Case No. 26-CA-1352 was filed and served on August 14,
1962, and the original charge in Case No. 26-CA-1352-2 was filed and served on Septem-
ber 11, 1962.
2 All credibility findings herein are based in whole or in part on the demeanor of the
witnesses on the stand.
142 NLRB No. 62.
WARREN PAINT AND COLOR COMPANY
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
495
Respondent, at its plant and principal office in Nashville Tennessee , is engaged in
the manufacture of paint products . During the 12 months preceding issuance of
the complaint , Respondent had a direct outflow of finished products in interstate
commerce valued in excess of $50 ,000 and a direct inflow of purchased materials
in interstate commerce valued in excess of $50 ,000. Respondent admits , and I find,
that it is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Teamsters , Chauffeurs , Helpers & Taxicab Drivers Local Union No. 327, affiliated
with International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America , herein called the Union , is a labor organization within the meaning
of the Act.
IN. THE UNFAIR LABOR PRACTICES
A. Background and setting
Early in August 1962 ,3 the Union was approached by employees Samuel Nelson
Finney and Charles B. Williams for the purpose of organizing Respondent 's plant.
On August 7 and 8 , Finney and Williams obtained from 29 of about 49 employees
in the plant signed authorization cards for the Union to represent them. On August
9, the Union wrote Respondent requesting recognition as majority representative,
and on August 13, Respondent replied imposing the condition that the Union obtain
a Board certification . Thereafter , on August 15, the Union filed a representation
petition ; on September 7, following a hearing , the Regional Director issued a Decision
and Direction of Election ; 4 and on October 2, an election was held in which the
Union lost. On November 9, the Regional Director issued a decision setting aside
the election and directing that a new election be held , in view of certain objections
filed by the Union which , upon investigation , were found to have merit . The ob-
jections which the Regional Director found meritorious involved conduct by Re-
spondent which is similar in substantial respects to that alleged herein as violating
Section 8 ( a)(1).5 All relevant events in the present proceeding occurred during
the period from the Union 's inception at Respondent 's plant to the date of the
Board election.
B. Supervisors
Respondent admits, and I find, that the following individuals are supervisors within
the meaning of the Act: Joe M. Warren , president ; Edward Harper , Jr., technical
director ; Charles O. Tucker , production supervisor ; and Charles W. Cope, shipping
clerk . In the instant complaint case, Respondent disputes the alleged supervisory
status of Nicholas J. Storto, a salaried research chemist . President Warren had
testified in the representation case hearing that Storto 6 assigned particular work
to employees in the laboratory, was required to oversee such work , and had the
effective power to make recommendations in regard to promotions , transfers and
layoffs. Warren , being "refreshed" as to his prior testimony , admitted to the truth
thereof but added that Storto had never exercised his recommendatory powers.
Particularly as the possession of supervisory "authority" is sufficient for purposes
of the statutory definition in Section 2 (11), I find that Storto was a supervisor under
the Act.
C. Interference, restraint, and coercion
1. Supervisor Harper 7
Harper admitted that he undertook , about August 22, to interrogate individually
almost all the employees in the plant , during working hours and at their work
0 All dates herein are in the year 1962 unless otherwise specified.
Case No. 26-RC-1823.
5In considering the alleged unfair labor practices, I have assigned no weight to the
Regional Director's findings on the Union's objections to the election.
Storto was no longer employed with Respondent at the time of this hearing.
7It is fairly apparent from the record that Harper, as part of or in addition to his
duties as technical director, carried out high level functions of general supervision
throughout the plant.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
station , as to how they felt about the Union.8 Specific testimony was given by
Troy Martin, Allen Young, and James E. Horn that each of them was approached
by Harper who wanted to know if they had signed a union card. Without contra-
diction, Milton Bonner credibly testified concerning a conversation he had with
Harper on about August 21. Harper told Bonner that if the employees "would
vote the union out," they would receive certain new benefits, including a raise "across
the board" of 25 cents an hour, 2 weeks' paid vacation, 2 weeks' sick leave, and
paid-up insurance. Harper gave "his word" to Bonner that the promises would be
kept but indicated that nothing would be done until after the election. Bonner was
asked to "go around and tell the rest of the men about it," which Bonner did to
the extent of relating the conversation to eight employees in the shipping room.
2. President Warren
About August 10, Warren asked Charles R. Terry if he had gotten "one of them
union papers" and told him he could do more for him than any union. In the
latter part of August, Warren inquired of William Easley whether he had signed
a union card. About September 2, Warren told Easley that "if everything worked
out" the employees would get a raise of 25 cents an hour. About September 16,
Warren interrogated Robert A. Flippin, Jr., as to how he felt about the Union, and
stated that he could do more for him than the Union could. Warren also indicated
that if the Union came in Flippin could no longer work in the plant when there was
no work for him in his regular job as truckdriver.9 About September 21, Warren
told Troy Martin and Howard Thompson 10 that he could do more for them than
any union. Specifically he said that if they got drunk and landed in jail, he would
get them out, which no union would do.
On August 24, Warren approached Milton Bonner at his work station while Bonner
was talking to Supervisor Tucker concerning the Union. Warren asserted that he
could and would do more for Bonner than any union, at which point Tucker left.it
In the remainder of the conversation, so far as relevant, Warren said that he knew
that Bonner had gone to a union meeting , that he was "going to put all colored in
here" 12 (i.e., the shipping room), and that the employees would receive paid
vacation, sick leave, and a raise of 25 cents an hour.13
The foregoing is based on the credible testimony of the employees involved. War-
ren admitted he asked five or six employees on or about August 13 how they felt
about the Union, but denied that he spoke to any employees regarding the Union after
receiving notice of the representation petition, filed by the Union on August 15.
3. Supervisor Storto
Walter Jack Taylor credibly testified as to a conversation with Storto in the latter
part of August. Storto told him that Technical Director Harper had asked him to
tell Taylor that, if the Union were voted out, there would be a 25-cent raise, 2 weeks'
vacation, 2 weeks' sick leave, and paid-up insurance.14
By the above-described statements of President Warren, Technical Director Harper,
and Supervisor Storto, I find that Respondent interfered with, restrained, and coerced
employees in violation of Section 8(a)(1) of the Act. To discourage their union
adherence or activities, specific benefits were promised by Warren to Easley, Flippin,
and Bonner; by Storto to Taylor; and by Harper to Bonner. Harper's use of manage-
ment power to instruct Bonner "to go around and tell the rest of the men" about his
8 As his reason for these interrogations, Harper testified he was "merely curious" as to
whether the Union had the required showing of interest among the employees to obtain
a Board election
9 Flippin, who was hourly paid, worked in the plant about 2 or 3 days a week when he
was not on a driving assignment.
•io Thompson did not testify.
Tucker corroborated this part of the conversation
12 Bonner Is a Negro.
1 As expressed by Bonner, Warren confirmed the promises made to him by Harper,
supra.
is Storto did not testify, but his affidavit given to a Board agent was agreed to be placed
in evidence in lieu of his testimony Storto averred , inter alia, that Taylor spoke to him
about the "word" going around the plant that if the Union were voted out, the employees
would receive specified benefits from Respondent, but that Storto did not deny or confirm
this information to Taylor In view of the findings above of similar statements made
by Harper and Warren, the testimony of Taylor plainly appears the more plausible.
WARREN PAINT AND COLOR COMPANY 497
promises of benefit was itself a violation . 15 Warren 's statement to Bonner that he
would "put all colored " in the shipping room was an improper inducement ; and his
indication that he knew Bonner had gone to a union meeting unlawfully conveyed the
impression that the employees' activities were under surveillance. Warren's remarks
to various employees that he could do more for them than the Union or any union
embodied a promise of substance, particularly in the context of the specific induce-
ments concurrently disseminated in the plant. Warren threatened to deprive Flippin
of work in the plant when he was not employed in driving duties. The extensive
interrogations of employees by Harper and Warren, especially in light of other unfair
labor practices committed, were clearly of the variety consistently held to be coercive
by the Board. However, Warren's statement to Martin and Thompson that he would
get them out of jail if they were arrested for being drunk is too fragmentary and
ambiguous to support the finding of a violation.
D. The discriminatory "layoffs"
1. Samuel Nelson Finney
In April 1953, Finney commenced employment with Respondent in the shipping
department and a few months later was assigned the job of "assistant" in the labora-
tory, where he worked until he was "laid off" on August 8.
As earlier noted, Finney together with Charles B. Williams sought out the Union
to have Respondent's employees organized. After talking among themselves for
about a week, on August 4, they contacted the Union, and on August 6, they held a
meeting with Union Organizer George Broda. On August 7 and 8, Finney and
Williams engaged in an intensive campaign to sign up employees in the Union. They
solicited employees at the plant before starting time and during the breaks, and also
telephoned and visited a few employees at their homes. At about 4:25 p.m. on
Wednesday, August 8, Finney was summoned by Technical Director Harper.
Harper handed Finney a week's pay and a week's vacation and informed him that he
was being laid off.is When Finney asked why, Harper had first said he did not know,
and then replied, "We are cutting down and there is going to be more"
On August 9, at about 9 a.m., Finney returned to see Harper at the plant, having
been advised by Union Agent Broda to go back and get a "layoff slip." After Harper
wrote out the slip, he motioned for Finney to follow him. As they walked through
the aisles, Harper asked Finney, "Were you agitating for the union?" Finney answered
that he was. In further conversation, Harper agreed to give Finney a job recom-
mendation if he needed one.
On August 15, about 1 to 2 p.m., Supervisor Tucker called Finney on the telephone
stating that President Warren had asked him, Tucker, and employee Sterling
Thompson to go out to see Finney and talk to him. About 20 minutes later, Tucker
and Thompson arrived at the Finney home and spoke to Finney in the presence of
Mary Finney, his wife. They indicated Warren had sent them to talk to Finney to try
to get the Union stopped. They said Warren would be willing to sign a contract giving
the employees a raise now and a blanket raise each year if they would just forget
about the Union. They mentioned specific amounts as a wage raise, increasing their
offers from 10 cents to 35 cents an hour, and then said, "we are going to give you
what you all want if you will forget the union." Finney asked what would prevent
Warren from firing him the next week after the contract was signed. In reply,
Thompson suggested that Finney get a lawyer to draw up a personal contract and
Warren would sign it. At the conclusion Finney stated he would have to talk to
the rest of the employees. As Tucker and Thompson were about to leave, Mary
Finney remarked that "the way they are talking," Finney had "better go on back
to work." Thompson thereupon said, "Yes, come on back, it's all right." However,
Tucker disapproved, saying he "wouldn't do it until this thing is settled."
In the evening of August 15, after Finney had discussed the matter with Williams,
they visited Tucker at his home.17 Tucker repeated, particularly for Williams'
benefit, substantially the same things he said at Finney's house that afternoon.18
Supervisor Tucker's testimony was not materially at variance with the foregoing,
except that he said he visited Finney's home as a friend and "strictly on his own."
15 See Babcock & TV,lcor Co , 128 NLRB 239 ; New England Upholstery Co., 121 NLRB
234.
16 Wednesday was the end of the pay period, but the regular pay day was on Friday
17 Williams testified that Tucker told him, at about 4 :30 p m. at the plant , that Warren
had sent him to talk to Finney about a "settlement "
18 The preceding is based on the credible testimony of Samuel Nelson Finney, Mary
Finney, and Charles B. Williams.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He maintained that he was not authorized by, and had not discussed the matter with,
President Warren before or after the conversations with Finney and Williams.19
As a supervisor, Tucker's conduct is in any event imputable to Respondent. Stanley
Thompson, an employee , was not called to testify. His presence with Tucker at
the Finney home during working hours on August 15, in the absence of Respondent's
explanation therefor, clearly refutes the testimony of Tucker and supports that of
Finney and Williams that Tucker and Thompson were acting as agents of
Respondent 2°
Inconsistently, Tucker indicated that his first information of Finney's connection
with the Union came from Technical Director Harper. Early in the morning of
August 9, Harper had mentioned to him that the Union "was trying to organize
the Company, and he said he heard Mr. Finney was in it." Following this discus-
sion with Harper, and some time before 9 or 10 a.m. on August 9, Tucker in the
company of Salesman Vandiver saw Finney at the plant and asked him why he
chose the Teamsters?' As shown, in the morning of August 9, Harper had asked
Finney whether he was "agitating for a union here," and received an affirmative
response . Harper testified this was his first "knowledge" of the Union and of Finney's
role therein, although he had earlier "suspicioned" union activities upon observing
groups of employees talking in the plant. From Tucker's testimony, it would appear
that Harper advised Tucker concerning Finney's union interest before Harper spoke to
Finney that morning of August 9, as related above.
Tucker's testimony contains significant admissions in other respects. He said the
reason he decided, on August 15, to approach Finney, as one having influence with
the employees, was because Finney had asked him to sign a union card and he knew
that Finney had solicited other employees. The clear purport of this admission is
that Respondent was aware of Finney' s union leadership before Finney's termination
on August 8, Indeed, the circumstances of the August 15 visit to the Finney house
alone would permit such an inference to be drawn.
Respondent's defense, through Harper's testimony, is that Finney was laid off
because of a lack of work, and it was intended that he would be recalled. Harper
admitted that Finney was a "valuable" and "dutiful" employee over the 9 years of
his employment, and that Finney was the only employee in the laboratory at that
time having "special talents" in a "rather artful science of tinting" paints. Finney
had received raises from an initial 90 cents to $2 per hour, had been complimented
and never reprimanded. At the hearing, Harper indicated certain factors which sub-
stantively entered into the decision to select Finney for "layoff" as against a junior
employee, Walter Jack Taylor, who was retained. (1) Tucker had told Harper that
Finney was "reluctant" to substitute for a tinter who was going on vacation. Harper
then assigned Finney to this temporary job, which Finney held at the time of his
termination . Harper termed Finney's conduct as "insubordination"; (2) Harper
said something was "eating at" Finney in the last several months; but he did not
bring this to anyone's attention; (3) Respondent effected an economy by letting
Finney go at $2 an hour while retaining Taylor who made $1.50 an hour. Harper's
affidavit given to a Board agent on August 30 states unequivocally that Finney was
laid off solely due to a lack of work in his department. Upon being questioned in
the matter, Harper said there was "no reason to" mention Finney's "insubordina-
tion" to the Board agents taking his affidavit 22
Additionally, it is noted that Finney, having a temporary assignment as a tinter,
was "laid off" on a Wednesday even though the employee on vacation for whom
Finney was substituting was not due to return until the following Monday. After
Finney's "layoff," a new employee was hired in the laboratory who, Harper testified,
was merely a replacement for a summer student who left in mid-August. Finally,
a critical consideration operating against Respondent's defense is the evidence of
Respondents ' various offers of benefit to Finney on August 15 as an inducement
to have the Union stopped. These overtures to Finney clearly reflect Respondent's
10I do not accept as credible Tucker's testimony that Finney asked him after the dis-
cussions in the evening of August 15 not to say anything at the plant about the meeting;
that Finney stated he and Williams would not say anything to the men about it; and
that he, Tucker, agreed and never mentioned these discussions to President Warren.
20 Excepting admissions, Tucker's testimony is not credited, as I find, among other
things, that it contains obvious inconsistencies and inherent implausibilities.
u According to Tucker, Finney's reply was that "he wanted somebody as tough as Mr.
Warren."
xa As a witness, Harper impressed me as being disingenuous and unreliable. At times
he gave changing and evasive testimony. Apart from his admissions, he is generally not
credited.
WARREN PAINT AND COLOR COMPANY 499
discriminatory motive in regard to Finney and its readiness to take him back if
the union threat were eliminated.
Accordingly, I find that the Respondent further independently violated Section
8(a)(1) by Technical Director Harper's interrogation of Finney on August 9; and
by the August 15 conduct of Supervisor Tucker and employee Thompson, as
Respondent's agents, in offering benefits to the employees and to Finney and condi-
tioning Finney's return to work upon abandonment of the Union.
In particular view of Finney's leadership in the Union; Respondent's knowledge
thereof; the timing of his "layoff" in relation to the Union's organizational drive
and his activity therein; and the admissions inherent in the visit to the Finney home
on August 15, I conclude that Respondent discriminatorily terminated Finney in
violation of Section 8(a)(3), as alleged.
2. James E. Horn
Horn was hired on April 27, 1962, as an order clerk in the shipping department,
and on September 7, he was "laid off" for "lack of work." Horn became active in
behalf of the Union from the outset, having signed a union authorization card on
August 8, solicited other employees to sign cards and to vote for the Union, and
attended four of the five union meetings held. As earlier found, Technical Director
Harper interrogated Horn concerning the Union.
In Horn's case, Harper admits that the "layoff" was not because of any lack of
work, although this was the only reason given to Horn. At the hearing, Harper
stated that the "primary reason" was "a suspicion of theft," but that Respondent
had no proof, and it was not trying to keep Horn from having another job.
Elmer E. McBride, a shipping employee, testified for Respondent concerning the
circumstances giving rise to the alleged suspicion of theft. On September 7, about
11:30 a.m., Shipping Supervisor Charles W. Cope asked McBride to help him keep
watch over a case of paint which someone had put on the edge of the shipping
platform. They were suspicious because the case did not have the usual marking
of a customer's name, as ready for shipment. At 11:57 a.m., about lunch time,
McBride saw Horn put the case of paint on his shoulder and carried it out toward
the street where McBride knew Horn's car was parked. As was his custom, Horn
drove home for lunch that day. McBride reported the matter to Cope. On cross-
examination, McBride indicated that there was no evidence of any paint missing
from inventory, that he had seen unmarked cases of paint on the dock before, that
employees ordinarily buy paint from Respondent, and that he had often seen em-
ployees carry paint out of the plant. He stated, however, that he knew this case of
paint had not been sold, because he and Cope were the ones who sold paint to
employees.
On rebuttal, Horn testified he had purchased 3 gallons of paint from Respondent,
put the paint in a used box, and at lunch time, took the paint home in his car.
Payment for the paint was taken out of his check. He returned after lunch, con-
tinued to work, and at the close of day Harper gave him his layoff ship indicating
as the reason, "lack of work." Respondent never made any mention to Horn, and
he had no knowledge, until later advised by a Board agent, that he was suspected of
stealing paint.
Horn's testimony that payment for the paint came out of his paycheck, if untrue,
could readily have been refuted by Respondent 23 The circumstances are such that
Respondent had to have the definite knowledge in the matter-either that Horn did
steal the paint or that he did not. There is no basis in these facts for a "suspicion"
of theft.
I must, therefore, reject this ground urged by Respondent and conclude that it was
an afterthought and an artifice resorted to by Respondent to cover its true motive.
In view of the timing of Horn's discharge during the currency of the union drive, the
uncontroverted evidence of Horn's active participation therein,24 Respondent's animus
toward the Union as shown from the various violations described, and the false
ground Respondent asserted to justify the layoff, I find that Horn was discharged
for discriminatory reasons, and that Respondent thereby violated Section 8(a)(3),
as alleged.
23 Note is made that September 7 was a Friday, the end of the workweek and the usual
pay day
24As earlier found, President Warren said he knew of Bonner's presence at a union
meeting ; inferentially he knew of others
712-548-64-vol 142 33
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
will recommend that it cease and desist therefrom 25 and take certain affirmative
action designed to effectuate the policies of the Act.
It will be recommended that Respondent offer Samuel Nelson Finney and James E.
Horn immediate and full reinstatement to their former and substantially equivalent
positions, without prejudice to their seniority or other rights and privileges, and
make them whole for any loss of earnings suffered by reason of the discrimination
against them by payment to them a sum of money equal to that which they normally
would have earned, absent the discrimination, from the date of their termination to
the date of the offer of reinstatement, less their net earnings during such period,
with backpay computed on a quarterly basis in the manner established by the Board
in F. W. Woolworth Co., 90 NLRB 289. Such pay loss shall be computed with
interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing
& Heating Co., 138 NLRB 716. It will be further recommended that Respondent
preserve and make available to the Board upon request, all payroll records, social
security payment records, timecards, personnel records and reports, and all other
records necessary and useful to determine the amount of backpay due and the rights
of reinstatement under the terms of these recommendations.
Upon the foregoing findings of fact, and upon the entire record in the cases, I
make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. By discriminating against Samuel Nelson Finney and James E. Horn in regard
to their hire and tenure of employment, thereby discouraging membership in the
Union, Respondent engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a(3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the cases, I recommend that Respondent Warren Paint and Color
Company, Nashville, Tennessee, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Teamsters, Chauffeurs, Helpers & Taixcab
Drivers Local Union No. 327, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or in any other labor organiza-
tion, by laying off, discharging, or refusing to reinstate employees, or in any other man-
ner discriminating in regard to their hire or tenure of employment or any term or
condition of employment.
(b) Interrogating employees in a coercive manner; offering of promising employees
benefits and threatening them with reprisal to discourage their union activities; making
statements to create the impression that the employees' union activities are under
surveillance; requesting employees to tell other employees of Respondent's unlawful
promises of benefit ; or in any other manner interfering with , restraining , or coercing
its employees in the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer Samuel Nelson Finney and James E. Horn immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to their
m With respect to the broad order recommended upon findings of Section 8(a) (1) and
(3) violations, see N.L.R B v. Empress Publishing Company, 312 U S. 42,6; N L R.B. v.
Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
WARREN PAINT AND COLOR COMPANY 501
seniority or other rights or privileges , and make them whole for any loss of earnings
in the manner set forth in "The Remedy" section of the Intermediate Report.
(b) Preserve and , upon request , make available to the Board or its agents all
payroll and other records, as set forth in the "The Remedy" section of the Intermediate
Report.
(c) Post at its Nashville, Tennessee , plant copies of the attached notice marked
"Appendix." 26
Copies of said notice, to be furnished by the Regional Director for the Twenty-
sixth Region shall, after being duly signed by Respondent, be posted immediately
upon receipt thereof in conspicuous places and be maintained for a period of 60
consecutive days. Reasonable steps shall be taken to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-sixth Region, in writing, within
20 days from the receipt of this Intermediate Report and Recommended Order, what
steps Respondent has taken to comply herewith.27
20 If these Recommendations are adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of the United States Court
of Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
27 If this Recommended Order is adopted by the Board, this provision shall be modified
to read : "Notify the Regional Director for the Twenty-sixth Region, in writing, within 10
days from the date of this Order, what steps the Respondent has taken to comply here-
with."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in Teamsters, Chauffeurs, Helpers &
Taxicab Drivers, Local Union No. 327, Affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in
any other labor organization , by laying off, discharging , or refusing to reinstate
employees , or in any other manner discriminating in regard to their hire and
tenure of employment or any term or condition of employment.
WE WILL not interrogate employees in a coercive manner; offer or promise
employees benefits or threaten them with reprisal to discourage their union ac-
tivities ; make statements to create the impression that the employees' union
activities are under surveillance ; or request employees to tell other employees of
Respondent 's unlawful promises of benefit.
WE WILL NOT in any other manner interfere with, restrain, or coerce employees
in the exercise of the right to self-organization, to form labor organizations, to
join or assist the above-named , or any other, labor organization, to bargain
collectively through representatives of their own choosing , and to engage in
any other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities.
WE WILL offer the employees named below immediate and full reinstatement
to their former or substantially equivalent positions , and make them whole for
any loss of earnings they may have suffered by reason of the discrimination
against them:
Samuel Nelson Finney
James E. Horn
All our employees are free to become , remain, or refrain from becoming or re-
maining, members of Teamsters , Chauffeurs , Helpers & Taxicab Drivers, Local
Union No . 327, Affiliated with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , or of any other labor organization.
WARREN PAINT AND COLOR COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NoTE.-We will notify the above -named employees if they are presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
application in accordance with the Selective Service Act after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , 22 North
Front Street , Seventh Floor Falls Building , Memphis, Tennessee , 38103 , Telephone
No. Jackson 7-5451, if they have any question concerning this notice or compliance
with its provisions.
The Ready-Mix Concrete Company of Lawrence , Kansas and
Truck Drivers and Helpers Local Union No . 696, affiliated with
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America . Case No. 17-CA-2022. May
9, 1963
DECISION AND ORDER
On February 5, 1963, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
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 Interme-
diate Report and the entire record in this case, including the exceptions
and brief, and hereby adopts the findings,' conclusions,2 and recom-
mendations 3 of the Trial Examiner to the extent indicated below.4
'Although the Trial Examiner found that Respondent violated Section 8(a) (1) by
threatening its employees with loss of employment and other economic reprisals because
of their union activity , adherence , and loyalty ; by promising economic benefits to em-
ployees who remained loyal to Respondent during the union campaign ; and, by coercively
interrogating employees concerning their union activities , the identity of their union
leader, and the outcome of the scheduled election , and although the Trial Examiner
recommended a notice containing provisions for discontinuing these violations , he inadver-
tently failed to provide remedies for these violations in his Recommended Order. We shall
therefore correct-this inadvertency in our Order herein.
2 While we adopt the Trial Examiner 's conclusion that Respondent was discriminatorily
motivated in discharging employee Keith Kriesel, we do not rely upon the Trial Examiner's
reference to the fact that Respondent filed a charge against the Union and obtained an
injunction against certain picketing by the Union as evidence of such illegal motivation.
8 In the remedial section of his Intermediate Report, the Trial Examiner recommended
that Respondent reinstate Kriesel and award backpay to him from the date of his layoff
on July 31, 1962, to the date on which Respondent offers to reinstate him. However, by
letter dated August 30, 1962, Respondent had unconditionally offered reemployment to
Kriesel on a part-time basis commencing on September 5, 1962. All employees were then
on a part-time basis, and there is no claim that this was unlawful . In view of these
circumstances , we conclude that Kriesel forfeited his right to reinstatement by his failure
to accept Respondent's unconditional offer, and that he is entitled to backpay only to
142 NLRB No. 61.