United Painting Contractors

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- at- 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. 427-835 0 - 74 - 12