State Wide Painting & Decorating Co., Inc.

STATE, WIDE PAINTING & DECORATING CO., INC. State Wide Painting & Decorating Co., Inc. and Local Union No. 365, Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO. Case 12-CA-4189 January 8, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On September 10, 1968, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled proceeding, finding that 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 Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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, the brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations2 of the Trial Examiner, as modified herein. ' [Inadvertent errors in Trial Examiner's decision have been corrected.] 'We amend that portion of the Trial Examiner's remedy wherein he recommends immediate and full reinstatement for John and Joseph Riddle The record indicates that the Miami-Jackson High School project where the Riddle Brothers were working, was completed by June 15, 1968. There is evidence, however, that Respondent transferred men from one jobsite to another. Thus, it is uncertain whether these employees would have been terminated in the normal course of business sometime after their April 1 discharge. Accordingly, if, in compliance proceedings, it is determined that John W . Riddle and Joseph F. Riddle would have been transferred to another of Respondent's work sites, upon completion of the Miami-Jackson High School project, Respondent shall offer these employees immediate and full reinstatement to their former or substantial equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings in the manner set forth in "The Remedy" section of the Trial Examiner's Decision. In the event that the above-named employees would have been terminated in the normal course of business , Respondent need not offer them reinstatement, but shall make them whole for any loss of eamingst they have suffered by reason of the discrimination against them from the date of discharges to the date or dates they would have been terminated normally Additionally, Respondent shall send letters to them stating that notwithstanding their discharges they will be considered eligible for employment in the future at any of Respondent's projects if they should choose to apply for employment (See Interboro Contractors, Inc., 157 NLRB 1295, enfd . 388 F.2d 495 (C A. 2). ORDER 5 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respondent, State Wide Painting & Decorating Co., Inc.,. Hialeah, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete paragraph 2(a) of the Trial Examiner's Recommended Order and substitute: (a) In the event that John W. Riddle and Joseph F. Riddle would have been transferred to another of Respondent's work sites, upon completion of the Miami-Jackson High School project, Respondent shall offer these employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings, in the manner set forth in "The Remedy" section of the Trial Examiner's Decision. If the above-named employees would have been terminated in the normal course of business, Respondent shall make them whole for any loss of pay they may have suffered by reason of their discharges and assure them of their future eligibility for employment by the Respondent in the manner set forth in footnote 2 of this Decision. 2. Delete the third indented paragraph in the notice attached to the Trial Examiner's Decision and substitute the following: WE WILL offer John W. Riddle and Joseph F. Riddle immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or to other rights and privileges previously enjoyed, in the event they would not have been terminated in the normal course of business. WE WILL assure John W. Riddle and Joseph F. Riddle that they are eligible for future employment by us if they would have been terminated in the normal course of business. WE WILL make John W. Riddle and Joseph F. Riddle whole for any loss of pay they may have suffered by reason of the discrimination against them. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Trial Examiner: This proceeding was heard before me on July 9 and 10, 1968, in Miami, Florida, based upon a complaint by the General Counsel' alleging that the Respondent terminated the employment of John and Joseph Riddle in violation of Section 8(a)(1)i The charge was filed by the Union on April 4, 1968, and the formal complaint was issued on June 3, 1968. All dates are in 1968 unless otherwise shown. 174 NLRB No. 2 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and (3) of the Act. At the hearing, all parties participated and were afforded full opportunity to present relevant evidence and to argue orally on the . record. Only Respondent filed a brief, ' which has been given careful consideration. ' Upon the entire record in the case,3 and from my observation of the demeanor of the witnesses on the stand, I make the following- FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT State Wide Painting & Decorating Co., Inc., of Hialeah, Florida, is engaged in the building and construction industry as a painting contractor. The following is alleged and admitted : During the year preceding issuance of the complaint, Respondent performed services valued in excess of $50,000 for (1) Sam L. Hamilton , Inc., (2) James G. Thompson, Inc., and (3) Hessen-Robinson Construction Corp., each of which is engaged in the State of Florida as a contractor in the building and construction industry . Hamilton and Thompson, respectively , have annually purchased goods and materials valued in excess of $50,000 which they received directly from sources located directly outside Florida. During the calendar year 1967, Hessen -Robinson performed services , valued in excess of $100,000, which were related to and had a substantial impact on the national defense of the United States. Accordingly, it is found , contrary to Respondent's denial, that it is engaged' in commerce within the meaning of the Act and that assertion of jurisdiction would effectuate the policies of the Act.° II. THE LABOR ORGANIZATION INVOLVED Local Union 365, Brotherhood of Painters , Decorators & Paperhangers of America , AFL-CIO, herein called the Charging Party or the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Essential Issues General Counsel alleges in substance that Respondent refused to recall John and Joseph Riddle, after a job shutdown on April 2 and 3, because they engaged in, or Respondent believed they engaged in, union or concerted activity by complaining that Respondent was restricted under the existing union contract from painting certain work by spray method rather than by brush or roller. As appears' from its reliance upon testimony and arguments in its brief, Respondent's principal defenses consist as follows: Shortly prior to the shutdown of April 1, Respondent had decided, for economic reasons, to reduce the force effective on April 3. John and Joseph Riddle, among others, were selected for such reduction and were therefore not reinstated upon work resumption after the shutdown. They had been employed primarily to do trim work, of which there was little further demand on this job; and they were not steady employees, whereas the employees retained were regular shop men or employees who performed particular work for which Respondent 'Briefs were solicited by me of both sides 'Without opposition, General Counsel's motion to correct transcript, involving minor changes, is hereby granted. 'Sremons Mailing Service 122 NLRB 81; Ready Mixed Concrete & Materials, Inc, 122 NLRB 318, then had greater need. - Thus, the critical question presented- is whether, as alleged, Respondent was unlawfully motivated in terminating the two Riddles. The ultimate issue turns substantially upon resolution of credibility conflicts. B. General' Background and Subsidiary Findings Respondent is signatory to an existing collective-bargaining agreement between TrI-County Chapters, Painting and Decorating Contractors of America, and Brotherhood of Painters, Decorators and Paperhangers of America, District Council No. 56, the latter of which the Union herein is a constituent member. As of April 1, Respondent had a total payroll complement of 17 men, including its shop superintendent and job foremen, employed within the jurisdiction of the union contract, above.5 So far as specified in the record, the employees in Respondent's shop worked at only three separately located painting jobs during the approximate period from February through May.' A large proportion of the men (13 as of April 1) were assigned to Miami-Jackson High School,' particularly in issue and herein"ealled the Jackson job, at which Respondent had the painting subcontract for renovation of the premises.8 The other jobs were at Miami High School, herein called the Miami job, and at a church in West Hollywood, herein called the Hollywood job. The evidence indicates that Respondent followed the practice of transferring men for varying durations from one job to anbtliev, depending upon volume of work or need for particular skills. Other factors affecting transfers and job tenure included the considered status of the men as union stewards, foremen, and shop men. The union contract sets forth wage rates for specified classifications, e.g., a basic hourly rate for journeymen, graduating percentages of the base rate for seven steps of apprentices, and certain additions to the base rate for particular classifications.' Provisions are made for final and binding arbitration of all grievances and disputes arising over the interpretation and application of the contract, The arbitral decision is rendered by the Joint Trade Board, consisting of five journeymen selected by the Union, and five employers appointed by the contractors association - with procedures for appeals to joint trade boards at higher levels. As relates to the collateral question herein of . the dispute concerning certain spraying work done by Respondent "Article Sixteen" states in pertinent part Permission is granted to spray the following surfaces and/or materials upon notification to District Council No. 56. (f) Concrete slab ceilings, concrete beams and brick. The first coat is to be brushed or rolled if the specifications call for two or more coats. 'In addition, two men were employed outside such jurisdiction (and are therefore of no material concern herein) 'Respondent asserted that it had many other jobs in the jurisdiction 'See chart of assigned employees described in text below. 'Work on the Jackson job was initially performed from August-September 1967, and then suspended pending certain alterations On February 2, the job was resumed with three men; i e., Foreman Vincent Campo, Shop Steward Jack Alger, and Lawrence Jones 'Structural steel painters; stagemen; extension ladder and scaffolding work, spray painters; paperhangers; roller on commercial work; steeplejack; and foremen STATE WIDE PAINTING & DECORATING CO., INC. The contract provides for appointment by the Union's business agent of a shop steward "who shall remain employed by the shop" at all times painters perform work," i.e., superseniority. In practice, a job steward may be appointed by the business agent or shop steward. It was credibly testified" as to the custom of the trade in the area regarding job stewards - that they may be appointed oi, the job when the job steward is regularly assigned elsewhere, that their duties are in effect to act as the Union's agent on the job, and that they remain on the particular job until completion. In other respects, seniority preference is not required by the contract or given effect by Respondent. Further, the contract contains a checkoff clause, but no provisions for union security or hiring hall procedure. However, at all material times, Respondent has hired only members of the Union. Respondent calls the union hall and available men are sent; or individuals directly solicit employment on the job; or men are summoned on recommendation of incumbent employees. Applicants must be cleared by Respondent's president, Orville Lee Postle, before being hired; Postle either interviews them or they call him by telephone. While the superintendent and foreman have substantial discretion in the selection of men for hire or layoff, I find on the evidence that Postle himself exercises at times an effective voice in such decisions.' 2 C. The General Counsel's Case John W. Riddle, who had previously wogl4edi for Respondent for a period, was employed on February 15 and assigned to the Jackson job. He gave testimony, in substance, as follows: He was hired by Postle, who told him to report to Vincent Campo, the foreman on the job. He is a first class painter and can do any type of work. On this job, he did interior walls and trim work,13 mostly the latter. Within Respondent's knowledge, he was the job steward, having been appointed by the shop steward, Alger." On Friday, March 29, when Campo advised him that spraying of ceilings would begin on Monday, he questioned whether Respondent had a spray permit from the Union. Campo later told him that they had a permit from the shop steward (Alger). Riddle was aware that Respondent was spraying ceilings in mid-February, when he was first employed on the job." On April 1, about 10 a.m., he was approached on the job by his brother, Lee Riddle, an official in District Council No. 56, accompanied by two other union representatives and Foreman Campo. The union agents indicated that Respondent was spraying areas which were not supposed to be sprayed, and they were going to stop it. The spraying continued until about 4 p.m. when Campo handed out paychecks and told the employees that the job was being closed down.16 He had been informed by Campo that the job was broken down into three areas, A, "The "shop" comprises all the jobs of the employer within the contract jurisdiction "George Taylor, Executive Secretary, District Council No. 56 "No credit is accorded to Postle's testimony that, in the 12 years he owned the Company, he never discussed with his foremen or superintendent the men by name who were to be on his payroll, excepting Lacedonia, the only man he personally hired (assertedly because he needed him as foreman for a future job) It is reasonably to be found that Postle and his supervisors are in consultation with each other as to particular decisions affecting hire, transfer , or layoff, and in any case, they are all clearly agents of Respondent 7 B, C. As of April 1, they were just starting in area C - or about one-third of the work remained, which embraced classrooms, cafeteria, kitchens, parts of the hallways, ceilings, walls, and parts of the exterior. This would include the "finish work," or the type of work he had been doing. He was not recalled to work upon resumption of the job. After April 4, he spoke to Postle, who told him he (Riddle) would have to check with the foreman. Joseph F. Riddle was employed on the Jackson job on March 8. He testified viz: His brother, John, told him "that he spoke to the boss (Postle) and said I could go to work." He reported to Campo and was hired on the job." He performed brush and roller painting on interior walls and trim work, but more on trim than on walls. On March 29, in the presence of Campo, Postle informed him that spraying would begin on April 1. He told Postle`that type of spraying could not be done, according to the union contract. Postle then said, "You tend to the painting and I'll take care of the spraying or running the job. I'm tired of painters telling me how to run my business."18 He indicated to Postle that his brother (John) was the job steward. On April 1, in the afternoon, the job was shut down; he was given his paycheck and laid off. About half the work remained to be done. On April 4, he reported on the job in the morning, but Campo told him he could not go to work unless Postle called him on the telephone. He has not since been recalled. Normand J. Provo, a journeyman painter who had worked for Respondent in 1967, was hired February 21 and placed on the Jackson job. He testified that, on April 1, after he was informed of the layoff, he asked Foreman Campo what the employees should do. Campo suggested that he talk to Postle. He telephoned Postle, who told him to call back the following evening as to whether or when he could return to work. In this conversation, about 4:30 p.m., Postle said that he "was closing down the job and . . . he had two trouble makers on the job." The next evening, April 2, when he telephoned Postle, he was told, - "You go to work Thursday (April 4) at Jackson High." On April 4, about 7:30 a.m., he reported to the job. He asked Campo "about the Riddle brothers, whether they were going back to work, because the one "E.g., doors, frames, cabinets, baseboards, chalk boards. "When Alger was transferred to the Miami job early in March. "Postle testified that, on March 29, he came to John Riddle, as job steward, concerning information that Respondent would not be able to start spraying on April 1; he informed Riddle that "presumably" Respondent had a spray permit from Alger ', on February 6, and Riddle replied that "he didn't know anything about it;" "Campo related that, about 2 p.m., Business Agent Coleman ordered the men to stop spraying a slab ceiling, and that he told Coleman if that was the procedure the job would be halted, as Respondent was entitled to spray concrete slabs. "Campo testified that John Riddle had asked him to put his brother on, and when Joseph showed up he put him to , work. He agreed that both Riddles were hired as journeymen painters , and were qualified to do all types of work. He knew that both were good trim men, there was particular need for such work when they were hired, and he used them "mostly for trim." Shop Steward Alger testified that he had recommended to Postle the hiring of John and Joseph Riddle. At the time, Postle remarked that John cannot do "rough work ." Postle testified that John had repeatedly applied to him for employment, when men were needed on the Jackson job, he told John to see Campo and if he could be used he would be put to work. He was also approached by John to hire Joseph He replied that "we would let him know and he could send his brother to Campo, who would hire him if he could be used " It is clear from all sources of evidence that there was no discussion with John or Joseph Riddle limiting the nature of the work for which they were hired. "He did not recall whether Postle told him'he had a permit to spray the areas in question. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being the job steward he should return." Campo said he had no authority to put those two back to work. Provo then spoke by telephone with Business Agent Coleman. He returned to Campo and said he was not going to work, but was going to see a doctor on Monday about an infected elbow which he had, and by that time "the thing should be straightened out." Campo responded that he thought Provo "ought to 'go to work," as he had a pretty good job there. Provo told Campo "if he (Postle) did it to them (the Riddles) he would do it to me."" Jack Alger testified, in pertinent part, that periodically Postle or Superintendent Romeo Cecere shifts men from one job to another as necessary. In early March, he was transferred from the Jackson job to the Miami job; on April 5, Cecere sent him back to the Jackson job, where he remained until the job was completed shortly after the deadline date (June 15 ).20 On cross-examination, he stated that, on February 6, Postle asked him, as shop steward, to call the Union for a permit to spray; he called Business Agent Coleman and got a verbal agreement by telephone; he relayed this information to Postle; and spraying started 6 days later. In addition, he indicated that, 6 or 7 days before April 1, Cecere told him that there would be a layoff at the Jackson job, as the gang there was too big, but no date for such curtailment was mentioned. George Taylor, executive secretary of District Council No. 56, described the circumstances of the controversy concerning Respondent's spray painting at the Jackson job. On March 29, the matter was brought to his notice by one of several unemployed members gathered at the union hall. On Monday, April 1, he instructed Lee Riddle with another union agent to check the Jackson job, and they reported back that Postle wanted to discuss the problem the next morning. On April 2, he met at his office with Postle, Lee Riddle, and Jack Burlinger, representative of the Joint Trade Board. It was agreed that they had to look at the job to determine whether there was a violation. At 10:30 a.m., he and Postle inspected the job, together with Lee Riddle, Coleman, the Union's president, Eckerson, and a rank-and-file member, Augustine. He told Postle that spraying of certain described areas was not permissible, but if the specifications called for one coat he could spray the concrete ceilings. Postle, stated that the shop steward, Alger, had received from Coleman a permit to spray "these .things," They (Taylor, Postle, Lee Riddle) proceeded to the Miami job "to get this straightened out with the steward." Alger confirmed that he had received a permit by telephone to spray the Jackson job (i.e., on February 6). He (Taylor) told Alger that the only way permission to spray could be granted was in the union contract, that anything not in the contract had to come before the Joint Trade Board. Then Alger said, "Well, if the Riddle boys hadn't caused all these problems, everything would have been all right." Postle indicated "Campo was not questioned concerning Provo's direct and specific testimony relating to him. Campo testified that, on April 2 or 3, Postle instructed him to recall, at his own discretion , seven men for resumption of the Jackson job on April 4, and that he did not call Provo because Shop Steward Alger (transferred from the Miami job) took Provo's place on the scaffold. (But see chart of stipulated payroll data, infra.) Postle testified that Provo did not call him at any time about returning to work on the Jackson job, that Campo nor anyone else asked him to put Provo to work after the layoff, and that he has no knowledge of how Provo came on the job on April 4. He denied telling Provo that he had two trouble makers on the job "Alger gave the deadline date as May 15 . Postle fixed it on June 15 (but said in his affidavit that the job would be finished by May 15) that the steward, as the union representative on the job, gave him permission to spray, and that it was therefore, correct Postle wanted to find out if he could spray "a lot of ceilings" he still had to do, and they returned to the Jackson job to view these areas.21 Taylor said that some were plastered ceilings and the contract does not -allow this spraying, except as permitted by the Joint Trade Board upon specific request. Later that day, he met again with Postle and advised him that the concrete slab ceilings could be sprayed if only one coat was specified. Upon Postle's request, Coleman wrote out a form of permit, as quoted in the margin.22 As appointed, on the next morning, April 3, they consulted on the job with the architect, who provided Taylor with a note that the specifications called for one coat of spray on these ceilings. Then Taylor inquired of Postle23 whether all the men would be put back to work. Postle stated he was planning to put them all back, with the exception of the Riddle boys. Asked why, Postle replied that - "he felt they had caused him a lot of problems on the job." Taylor argued that it was not true, that he knew both men very well, and they had nothing to do with reporting the violation. He said John Riddle was a very good mechanic, and needed the employment, and he asked as a personal favor that John be put back to work. He would appreciate it if all the men were recalled because work had been slow in the area. Postle replied that he would have to discuss it first with his superintendent.24 During General Counsel's case in chief, a stipulation was reactih,d that certain documents, containing the weekly hgilr eked by Respondent's employees from February 14 through May 29, constituted "authentic" reporting forms for various checkoff purposes under the union contract. 25 The substance of these documents, together with clarifications in the testimony, is set forth in chart form in Appendix A. From the foregoing, it is evident that the General Counsel adequately established prima facie support of the violations alleged. Thus, it is shown that the shutdown on 11 Coleman, Eckerson and Augustine were present on the job. "Permit to spray according to agreement . Art. 16(F) only where one coat is specified " It is apparent from this language and from the testimony that this written permit was intended simply to reiterate the specific contract provision, and that the parties were disputing different types of spray painting under the contract. "No others present. "As to the foregoing narrative of events, Postle's version contains no material conflict, - with the exception of certain denials, as the questions were put to him, - that (on April 2) he heard Alger say anything about the Riddle brothers starting all the trouble , and that (on April 3) he, told Taylor he would put "all the men back except the Riddle boys because they caused a lot of problems on the job or words to that effect " I, find Taylor's detailed account more plausible and persuasive Among other things, it is apparent that, unless told by Postle, Taylor would have had no knowledge at such time of Respondent's intention not to recall the Riddles Moreover, Postle is not generally credited, infra. "The documents were admitted, over Respondent's objection that they are not relevant and that they are not confined to the Jackson job but reflect during this period all Respondent's employees on about 10 different jobs. Respondent was subject to a subpoena duces tecum from General Counsel which requested, inter olio, payroll and other records of the employees who worked on the Jackson job for the period from February 1 until the conclusion of the Miami job. Respondent's petition to revoke the subpena on grounds that the requests were "cumbersome, burdensome; and oppressive" was denied prior to the hearing, and renewal thereof , was denied at the hearing . The specific information sought in this aspect of the subpena was not supplied for the record, and General Counsel did not expressly waive the request for such information on receipt of the stipulations described herein. STATE WIDE PAINTING & DECORATING CO., INC. April 1 was directly caused by the dispute over Respondent's right under the union contract to spray paint portions of the Jackson job. Beginning April 4, when work on the job was reactivated, Respondent denied employment only to John and Joseph Riddle, among the various employees temporarily laid off by reason of the shutdown. (As earlier found, Provo voluntarily refused reinstatement offered to him by Foreman Campo on April 4.) At the same time, certain employees were transferred to and from the Jackson job, and a new employee, Rene Villa, was hired as of April 4 and assigned to the Miami job. On March 29, John Riddle, as job steward, and Joseph Riddle raised the question with Respondent of the propriety of certain spray painting scheduled for April 1. In particular, Joseph Riddle was admonished by Respondent's president, Postle, to tend to his painting and not to interfere with running the business. On April 1, the spraying question developed into a full blown dispute with the Union, as above described. It is immaterial whether the Riddles, or either of them, lodged a complaint which brought the Union, as such, on the scene. The Union's position was substantially the same as that taken by the Riddles. Undoubtedly, the spraying issue was a matter of general concern among the employees on the job, all union members. From the testimony of Taylor, Provo, and Alger, collectively, it is directly inferable that Respondent's motive in refusing to recall the Riddles was based upon the belief that they were "trouble makers," instrumental in creating the spraying dispute. Such complaints as were made by the Riddles;---or so believed by Respondent, would constitute a Icta`ftetted activity engaged in for mutual aid and protection-wider Section 7 - whether considered as a grievance affecting the rights of all employees, or as an attempted implementation of the terms of the collective-bargaining contract covering the employees, which would consist of "but an extension of the concerted activity giving rise to that agreement."26 Moreover, such complaints, particularly from John Riddle acting as job steward, are a cognizable form of union activity as plainly calculated to preserve job opportunities for union members employed by Respondent.27 The same reasoning would follow -even assuming, as Respondent argues, that only one of the Riddles actually voiced a complaint to Respondent, or that neither Riddle made a protest directly to the Union. Nor, in the circumstances here, is the protection afforded by the Act dependent upon the correctness of the Riddles' interpretation of the contract, or by the merit or lack of merit of the concerted activity." Indeed, the evidence does not show that their activity was unwarranted or unreasonable. Therefore, Respondent's termination of the Riddles because they engaged in, or it believed they engaged in, such conduct would independently violate Section 8(a)(1) and'(3).29 It was thus incumbent upon Respondent to come forward with evidence of legitimate business justification for its refusal to recall John and Joseph Riddle. D. Respondent's Expressed or Implied Defenses 1. That a reduction in force was previously decided to take effect on April 3 and was carried out: Superintendent "E g., Procon, Inc, 161 NLRB 1304, 1307, and cases cited therein 2'Ibid "Walls Manufacturing Company, Inc., 137 NLRB 1317, enfd. 321 F.2d 753, cert. denied 375 U. S. 923; Anaconda Aluminum Company, 160 NLRB 35, 40, Indiana Gear Works. etc , 156 NLRB 397, 400. "And see N.L R.B. v. Great Dane Trailers. Inc , 388 U S 26. 9 Cecere testified that, 2 or 3 weeks before the layoff on April 1, Postle told him that he had to get rid of three or four men on the Jackson job because he was not collecting on the job and could not meet the payroll. Cecere was firm that Postle did not say when the layoff was going to be effected. Postle testified it was on March 26 that he spoke to Cecere concerning financial problems, and he instructed Cecere to reduce the force no later than the week ending April 3. On the same day, he told Foreman Campo that three or four men would be laid off by April 3 for financial reasons and that three or four men completing work on other jobs would be available to help out. He asked Campo to "evaluate" and select the men to be laid off. Campo similarly testified to such conversation, during the 3rd week in March, in which Postle fixed the layoff date by April 3. Confronted with his affidavit given to a Board agent in which he stated that no date was given for the layoff, Campo explained that he later discussed his affidavit with Postle, who refreshed his memory.30 He also testified that at the time of this conversation about March 26, he had in mind, or knew, he was going to layoff the Riddles, Jose Bolas, and Gonzalo Villa, but he did not convey this to Postle. Postle further testified as follows: On April 3, he told Campo that the Jackson job would be started up the next morning and to call the seven painters chosen to resume work. A decision had already been made to recall the seven men. On April 1, when they were preparing the payroll for shutting down the job, Postle asked Campo, - "who are the men that you have selected for us to keep, and those we will not be calling back when we resume work?" Campo gave him the names of the Riddles, Provo, Brazley and Lacedonia as those who would not be called back to work on the job. On April 3, when he instructed Campo to call the men for resumption of work, no names were stated. That was the entire conversation on April 3. Campo's testimony (as well as his affidavit) was directly in conflict. He related no such discussion on April I as Postle described. He stated, rather, that on April 2 or 3, Postle told him the Jackson job would be started (on April 4) and to get in touch with seven men "because the work had been caught up."37 Postle left it to him to'select the men he needed, and no names were then mentioned by him or by Postle. In his affidavit, Postle states that, on April 3, he asked Campo "who he wanted to lay off," and Campo named "the Riddle boys," and also the "names of Norman Provo. Gus Polizos quit on March 29 and Paul Ackerson [who was on the Miami job] quit on March 29. 132 With respect to certain inconsistencies, Postle "As to other conflicts shown between his testimony and his affidavit, Campo disavowed the affidavit. I do not credit Campo in such explanation and disavowal 'Postle stated in his affidavit that he "called each man and told them to report to work without fail," but did not call the Riddles . Campo averred that he just called Menendez, who got in touch with "the rest of the men." (Menendez did not testify.) He then clarified that Lacedonia and Brazley were not called as they were already shifted to the Hollywood job, nor was Alger as he was being transferred from the Miami job While Campo stated elsewhere that Alger took Provo's place on scaffold work, he indicated that Lacedonia and Brazley also did such work Further it is noted that as shop steward, Alger would take over the functions of John Riddle, the Jackson job steward. "Postle was inaccurate as to Polizos and Ackerson. See chart of payroll dated, supra. Similarly, in a letter dated June 8 to the Regional Director, admitted without objection (G.C Exh . No I (e)), Postle stated that three men were laid off and two men quit. In its original answer to the complaint, Respondent took the position that it' did not recall the two Riddles and Gus Polizos, but at the hearing amended its answer to delete Polizos. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (repudiated his affidavit. I find his explanations implausible, and do not credit Postle.33 In sum, I do not accept this defense of a coincidence in the timing of a planned layoff and the spraying dispute and shutdown of April 1. Nor does the record and documentary data substantiate that such a reduction in force was accomplished on or about April 3. 2. That the Riddles were hired exclusively for the Jackson job: On the evidence available, the entire shop, with all jobs in the jurisdiction, must be considered as one employment situation. The number of men on the Jackson job was subject to regular transfers to and from other jobs. On April 4, it appears that Respondent hired Rene Villa and ,placed him on the Jackson job, while one man was shifted from Miami to Jackson, and two men from Jackson to Hollywood.34 The specific job needs and employee functions on these other jobs were not shown by Respondent. Further, it is evident that Botas and Gonzalo Villa were not laid off with the Riddles, as Campo testified he initially intended. And those allegedly selected for the reduction in force (the Riddles and Provo) were in no way informed of such reason for termination by any representative of Respondent, nor was the Union (i.e., Taylor) while'the matter was openly in controversy. 3. That the "shop men" were retained following the shutdown: Campo described shop men as employees with "all around" painting skills, and who qualify by length of service; (e.g., 2 years of more) and quality of work in Respondent's judgment. Asked to name who were considered shop men, Campo specified: Lacedonia (because he was hired as a foreman);3' Brazley; Burgin ,(because he is in the industry and a shop man for 8 years); and Alger (because he is shop steward). Provo was definitely not a shop man (because he was not there long enough), and Campo had no knowledge as to Roberto Villa or Rene Villa (the new hire). Postle stated that he had six to eight "steady" men, but did not name them except in excluding the Riddles from such category. Probative weight cannot be given to such fragmentary, generalized, and otherwise questionable testimony to establish justification for the selection for layoff of John and Joseph Riddle. Moreover, as earlier noted, Campo agreed that the Riddles are journeymen and are qualified for all types of work. 4. That the Riddles were hired essentially to perform trim work and there was little further need for such work when they were laid off.- Campo testified that he hired John to do "mostly trim" and Joseph to do varnishing and trim work. He related that the Jackson job required painting of about 100 school rooms and that, as of April 1, only 10 classrooms were left to be done. Prior to April 1, he was able to do as many as 5 classrooms at a time "Except as to substantially corroborated testimony and admissions against interest. "Campo's testimony concerning Lacedonia and Brazley is less than clear and in conflict with his affidavit. In substantial effect, he stated that since February these two employees worked mostly on the Jackson job and were used for short periods on the Hollywood job, that on April 1 they were sent from Jackson to Hollywood , and that a week or two later theycame back to Jackson Respondent 's position that they were merely being returned to the Hollywood job where they were regularly assigned - is not supported by this testimony "There is no evidence that Lacedonia acted as foreman on any job. And the shop steward had no knowledge of such fact. (while school was in session) but, about March 28 or 29, he was told by the school administration that thereafter he could do only 1 classroom at a time, as there was too much disruption in having to remove students and equipment from these rooms. On such basis, there was insufficient trim work to warrant the retention of the Riddles; the other men who painted the ceilings and walls could also do the trim.36 However, Respondent took no action concerning this change of procedure while the Riddles continued to be employed until the shutdown on April 1. John Riddle's testimony was not refuted that Campo told him that about one third of the, work on the entire job remained to be done, as of April 1. Such work included not only classrooms, but the cafeteria, kitchens, parts of hallways, parts of the exterior, and (as Campo mentioned elsewhere) the library and bandroom. It is apparent that much of this work involved trim. The Riddles were fully qualified to do interior walls and ceilings; they did in fact perform such work for Respondent; and like many of the other men they could well have been utilized for other types of painting at times when trim work was caught up. Surely a journeyman adept in trim work has a greater range of skills in the painting craft. Respondent made no attempt to show the type of work done by Rene Villa, hired April 4, or that done by certain of the other employees retained in the shop on and after April 4. The Riddles were not told, and I cannot find, that their employment was intended to be restricted principally to trim work. In connection with this defense 'and the question of specialized work performed by its employees, the testimony adduced by Respondent was highly conclusory, incomplete, and unsubstantiated as ground for termination of the Riddles E. Conclusion In view of the entire record, the credibility conflicts are resolved contrary to Postle and Campo. The overall evidence supports the finding that the Riddles would have been continued in employment but for the spraying controversy, the resulting shutdown, and Respondent's knowledge or belief that these two employees' caused such "trouble" or would likely create such difficulties in the future. It is perforce to be concluded that Respondent failed to overcome the prima facie evidence of discrimination, and that General Counsel successfully maintained the burden of proof that Respondent, for unlawful reasons, refused to recall these two employees, on and after April 4, upon resumption of work following the shutdown. Accordingly, Respondent violated Section 8(a)(1) and (3), as alleged. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent as 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. "Campo also stated that he did not call the Riddles because he was "caught up with all the trim." STATE WIDE PAINTING & DECORATING CO., INC. 11 V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent terminated the employment of John and Joseph Riddle in violation of Section 8(a)(3) and (1) of the Act. It will therefore be recommended that the Respondent offer these employees immediate and full reinstatement to their former or 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, of a sum of money equal to that which they normally would have earned, absent the discrimination, from the date of the discrimination to the date of the offer of reinstatement, less 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. Backpay shall carry interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Further, it will be recommended that Respondent preserve and, upon request, make available to the Board all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amounts of backpay due and the rights of reinstatement under the terms of this Recommended Order. v of Upon the foregoing findings of fact, and d1W;W -the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily terminating John and Joseph Riddle, thereby discouraging union membership, and interfering with, restraining, and coercing employees in the exercise of the 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)(3) and (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. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that Respondent, State Wide Painting & Decorating Co , Inc., Hialeah, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local Union 365, Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO, or in any other labor organization, by laying off or terminating employees, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. (b) In any like or related manner interfering with, restraining, or coercing 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 John W. Riddle and Joseph F. Riddle immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings, in the manner set forth in "The Remedy" section of the Trial Examiner's Decision. (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, all payroll and other records as set forth in "The Remedy" section of the Trial Examiner's Decision. (d) Post at its current jobs and facilities in Dade, Broward, and Monroe Counties, Florida, copies of the attached notice marked "Appendix."37 Copies of said notice, on forms provided for the Regional Director for Region 12, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicuous places, and be maintained fora period of 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced,, or covered by any other material. (e) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Trial Examiner's Decision and Recommended Order, what steps Respondent has taken to comply herewith.31 37In the event that this Recommended Order is 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. In, the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regii4iial Director for Region 12, in writing, within 10 days from the date of this Order, what steps Respondent had taken to comply herewith " APPENDIX A Respondent Payroll Dataa Jackson Job On Payroll Quit or Or -Hired Terminated Laid Off Recalled after Status 4/_ 1 Layoff b Transfers Alger, Jack J' 2%2- Miami job as From Miami job to (shop steward) J 'of 4/1 Jackson job-4/5 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ackerson, Paul 3/4 3/23d Miami job Botas, Jose 3/8 5/3 X 4/8 Brazley, Henry 2/7 From Jackson job to Hollywood job-4/ 1 Burgin, Wayne 2/7 X(4/2) 4/4e Campo, Vincent 2/2 Foreman on Jackson job retained Cecere, Romeo (shop Supt.) 2/7 Miami job as of 4/1 Cote, Aime 2/7 X(4/2) 4/4e Gomez, Albert 3/13 5/3 X 4/5 Jones, Lawrence 2/2 Miami job as of 4/1 Lacedonia, Norbeto 2/26 From Jackson job to Hollywood job-4/1 Menendez , Vicente 2/26 X 4/8 Naramjo, Jose 3/8 X 4/5 Polizos, Konst f 1/8 2/23 Provo, Normand 2/2 4/1 X Riddle, John 2/15 4/1 X Riddle, Joseph 3/8 4/1 Job Steward on Jackson job X Villa, Gonzalo 3/4 X 4/5 Villa, Rene 4/4 Miami job Villa, Roberto 3/25 Miami job as of _T/_ 1 aAs derived from stipulated records of weekly hours worked for purposes of union check -off, and clarified in testimony bTestimony of general recall on April 4 does not comport with stipulated data. Note that full 40 hours were generally worked before and after shutdown period cDates shown as end of payroll week in 1968 d Worked 9 hours week ending April 10. eFrom stipulated payroll date, it appears that Cote lost only 7 hours and Burgin 10 hours after shutdown on April 4. 1 Originally the parties stipulated that he was hired Jan 8 and quit Feb. 2. The later stipulated payroll records show that he worked through Feb 23. 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 our employees that: WE WILL NOT discourage membership in Local Union 365, Brotherhood of Painters , Decorators & Paperhangers of America , AFL-CIO, or in any other labor organization , by laying off or terminating employees, or in any other manner discriminating in regard to the hire or tenure of employment or any term or condition of employment. WE WILL NOT in any like or related 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 activites for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer John W. Riddle and Joseph F. Riddle immediate and 'full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization of their choice. Dated By STATE WIDE PAINTING & DECORATING CO., INC. (Employer) (Representative) (Title) Note: We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 706 Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 228-7711, Extension 257.