Gunnels Industrial Painters, Inc.

GUNNELS INDUSTRIAL PAINTERS, INC. Gunnels Industrial Painters, Inc. and Elton E. Hyatt. Case 23-CA-3992 June 15, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On November 24, 1971, Trial Examiner Arthur M. Goldberg issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions, only to the extent consistent herewith. Disagreeing with the Trial Examiner, we find that the evidence fails to establish that Respondent discharged Hyatt and Soffes because of Hyatt's protected concerted activities. Hyatt and Soffes, the alleged discriminatees, were journeymen painters employed by Respondent on maintenance painting work at the Houston Chemical Company plant in Beaumont, Texas. Hyatt generally performed tasks requiring him to work at significant heights, and Soffes worked in the sandblasting operation. About May 26, 1971, Job Foreman Holland assigned Hyatt, Soffes, and a third employee to spray-paint a room in the plant. Because of the hazard of lead inhalation, General Foreman Muck- leroy ordered the employees to wear air masks. The next morning, Union 1 Business Agent St. Clair, at Respondent's suggestion, conducted a meeting of Respondent's employees on Houston Chemical's parking lot to discuss plant safety rules. Neither Muckleroy nor Holland attended the meet- ing. Hyatt asked St. Clair who was supposed to give him orders on the job. St. Clair replied that it was Holland. Hyatt then inquired if the job steward should instruct Muckleroy to leave Holland's men alone, and if charges should be filed against Muckleroy with the Union. The next day, Muckleroy learned of Hyatt's inquiry. Muckleroy was concerned about his record in the Union, having been a member of a sister local Local Union 243, Brotherhood of Painters , Decorators and Paperhan- gers of America , AFL-CIO 599 for 31 years, and he asked St. Clair whether he could be fined. St. Clair advised him that he did not think it would go that far. The record shows that a day or two later, Job Foreman Holland assigned Hyatt and Soffes to the task of brush-painting the safety supply room in the Houston Chemical plant, a job estimated to require 40 man-hours. The work was part of the preparation for Houston Chemical's open house for its employees and their families to be held on Saturday, June 5. Generally, when the actual time spent exceeded the estimate by 10 percent or more, Houston Chemical would ask for,4 written explanation of the overage. Hyatt and - S fifes spent Friday (but not the following Monday, a holiday), Tuesday, and Wednes- day until 3 p.m. in painting the room, without finishing the job. At 3 p.m. on Wednesday, Muckler- oy discharged both Hyatt and Soffes, informing them that not enough work had been done considering the amount of time that they had spent on the job. The record clearly establishes that they had completed only two-thirds of the room in 46 man-hours, although the total job had been estimated at just 40 man-hours. The next day Holland assigned Marian R. Spoone- more, a regular "brushman," to 'complete the painting. Spoonemore finished the remaining third of the room in about 6 hours. Approximately a week after his discharge, Soffes asked St. Clair to call Muckleroy in an effort to get him, Soffes, reinstated. St. Clair did so, and Muckle- roy said that he would see !his superior and, bygoing through the proper channels, try to get Soffes back to work. Also after the discharge, Soffes began picket- ing Houston Chemical's plant with a sign reading "Gunnels Unfair To Me." Somewhat later, Muckle- roy told Soffes that„if he would "keep his noseplean" and not complain to the Board's Regional Office in Houston, Muckleroy would see if Soffes could have his job back. Muckleroy also told Soffes to take the picket sign down if he wanted any chance of being reemployed. The Trial Examiner concluded that Respondent's General Foreman Muckleroy discharged Hyatt and Soffes because of Hyatt's question to Union Business Agent St. Clair a week before as to whether charges should be filed with the Union against Muckleroy because of the orders he gave to Holland's employ- ees. The Trial Examiner found that Muckleroy was upset by Hyatt's inquiry, and that this, rather than Hyatt's poor work, was his motive for discharging Hyatt and Soffes. We agree that Hyatt's mere inquiry of the union agent was related to the employees' working condi- 197 NLRB No. 92 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions and was protected concerted activity within the meaning of the Act. Disagreeing with the Trial Examiner, however, we find that there is substantial evidence to show that Hyatt and Soffes were in fact terminated for their poor work and not because of Hyatt's inquiry. The original estimate of man-hours required to paint the safety supply room, not including the ceiling, was a total of 32. This estimate had been made by Muckleroy and Holland on April 28, 1971, and accepted by Houston Chemical before the events herein transpired. An additional 8 man- hours was estimated when the ceiling painting was added to the work. Hyatt and Soffes, while not customarily assigned to brush work, were journey- men experienced as brush painters. Furthermore, we note that Muckleroy had not made the assignment of Soffes and Hyatt to this work. That function was exercised by Job Foreman Holland. At the time of the discharges, Hyatt and Soffes had already expended a total of 46 man-hours on the job, but had finished only two-thirds of it. Spoonemore, admittedly an experienced brushman, then finished the remaining one-third of the work in only 6 hours. Hyatt and Soffes were well aware of the need to have the painting done in time for Houston Chemical's open house on the following Saturday, yet by Wednesday afternoon they had not completed the job, and at that rate would presumably have required yet another 20-odd hours to finish the remaining third. We find Muckleroy's increased scrutiny of Hyatt's and Soffes' work after the union meeting a natural consequence of Muckleroy's need to meet the deadline set by Houston Chemical. In addition, we find no significance in Houston Chemical's failure to require a written explanation for the additional time needed for the safety supply room job, since that does not tend to show Respondent's motivation. We note that the estimate for the job was made before the union activity here. Furthermore, we find that the evidence does not support the Trial Examiner's inference that Muckle- roy discharged Hyatt and Soffes because of Hyatt's inquiry. The union business agent, to whom Hyatt addressed his question, later told Muckleroy not to worry about any action being taken against him, because it would not go that far. We note that Muckleroy had been a member of a sister local for 31 years and the incident was never again mentioned after Muckleroy spoke to St. Clair. Considering the entire record, we are of the opinion that there can be nothing more than a mere suspicion of possible unlawful motivation here. Further, the postdischarge events relied on by the Trial Examiner do not serve to raise that suspicion to a legally supportable inference. Muckleroy's subse- quent promise to seek reemployment for Soffes could as easily have been the result of the Union's intervention on Soffes' behalf, as an implied admis- sion by Muckleroy that the discharge had been discriminatorily motivated, and we are therefore not persuaded that the latter inference either must or should be drawn. We conclude, therefore, that no substantial evidence exists to support the Trial Examiner's inference of unlawful motivation. Accordingly, we shall dismiss the complaint insofar as it alleges that Hyatt and Soffes were unlawfully discharged. Soffes' Picketing The Trial Examiner found that Respondent violat- ed Section 8(a)(l) of the Act when Muckleroy told Soffes that his possible reemployment depended upon the latter's cessation of picketing. We disagree with this finding of a violation. There is no evidence that Soffes consulted, or in any other way acted in concert with, any other person in establishing his one-man picket line. Indeed, his sign reading "Gunnels Unfair To Me" states on its face that his grievance centered only on himself. His admitted purpose was not to achieve any object which might benefit employees collectively, but rather to rectify his own individual complaint. He himself testified that he believed Muckleroy fired him because of Muckleroy's personal dislike for him. And since his discharge has not been proven to be a violation of the Act, his picketing cannot be viewed as a protest of an unfair labor practice. We find that Soffes' picketing was not concerted activity for, the purpose of mutual aid or protection, and therefore Respondent did not violate Section 8(a)(1) when it requested him to cease picketing. Respondent's Conditional Offer of Reemployment to Soffes We agree with the Trial Examiner that Respondent violated Section 8(a)(1) of the Act by Muckleroy's statement that Soffes might have his job back if he refrained from filing charges with the Board's Houston office. Clearly, Respondent sought to prevent Soffes from exercising his right to utilize the processes of the Board. Such interference with an employee's right to seek redress from the Board clearly deprives him of the protection of his concert- ed activities guaranteed by the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, GUNNELS INDUSTRIAL PAINTERS, INC. Gunnels Industrial Painters, Inc., Beaumont, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Conditioning reemployment of discharged employees upon their giving up the right to file charges with the National Labor Relations Board. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its place of business in Beaumont, Texas, copies of the attached notice marked "Appen- dix." 2 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by its representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that Respondent violated the Act other than as found herein. 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT condition reemployment of discharged employees upon their giving up the right to file charges with the National Labor Relations Board. WE WILL NOT in any like or related manner interfere with the rights of our employees guaran- teed by Section 7 of the National Labor Relations Act. Dated By GUNNELS INDUSTRIAL PAINTERS, INC. (Employer) 601 (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226- 4296. TRIAL EXAMINER'S DECISION ARTI3uR M. GOLDBERG, Trial Examiner: Based on a charge filed on June 7, 1971,' by Elton E. Hyatt, an individual, complaint herein issued on July 9 alleging that Gunnels Industrial Painters, Inc. (herein called Gunnels, Respondent, or the Company), had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). The putative violation of the Act consisted of the discharge of Elton E. Hyatt and George Soffes on June 2 "because Elton E. Hyattjoined or assisted the Union or because Elton E. Hyatt engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." The Respondent's answer admitted the discharges of Hyatt and Soffes but denied all material allegations of the complaint. At the hearing, General Counsel moved to amend the complaint to allege that "on or about June 7, 1971, Respondent threatened an employee by stating to him that if he continued engaging in his activities of picketing concerning his discharge, that he would lose whatever chance he had of coming back to work." The amendment of the complaint was permitted as was Respondent's amendment of its answer to deny the amended allegation. All parties participated in the hearing in Beaumont, Texas, on August 19 and were afforded full opportunity to be heard, to introduce evidence, to examine and cross- examine witnesses, and to present oral argument. Respon- dent and General Counsel presented short closing state- ments at the hearing and both Respondent and the General Counsel thereafter filed briefs. As well, the Respondent filed proposed findings of fact and conclu- sions of law. Based on the entire record in the case, my consideration of the oral arguments, briefs, and the Respondent's proposed findings of fact and conclusions of law, and from my observation of the witnesses and their demeanor, I make the following: I Unless otherwise indicated all dates hereinafter were in 1971 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT confusion between Holland and himself and Holland took the men to the fifth floor to start working. After the men had set up to paint, Muckleroy reappeared and stated that the men would have to wear air masks at all times and for the first man caught without his air mask, "it was payday." A respirator is a small device worn over the mouth through which the wearer breathes. An air mask, on the other hand, is a breathing device which is hooked to an air outlet by means of a flexible hose. The air outlets located throughout the plant provide fresh air for breathing. Hyatt testified that the men did not mind wearing the air masks but that because Muckleroy had told them not to pay attention to what Job Foreman Holland or anyone else had said, Hyatt was concerned. Hyatt explained that it had been the practice on every job on which he had ever worked for the general foreman to set up the job to be performed and for the job foreman to place the men in their positions on the various tasks. Hyatt testified that the general foreman should follow this chain of command. However, Hyatt acknowledged, as Muckleroy testified, that it was one of the general foreman's primary responsi- bilities to insure that the safety rules established by Houston Chemical were complied with by painters on the job. Additionally, Hyatt acknowledged that it was not out of the ordinary for Muckleroy to come by where the men were working and instruct them in safety matters. During the same day as this incident, on the fifth floor of the T.E.L. building, the Gunnels employees were told by Preston Daughdrill, the job steward, that there would be a meeting in Houston Chemical's parking lot the following morning before the start of work and that J. L. St. Clair, the union business agent, would be in attendance. This meeting was set up when Daughdrill called St. Clair and advised the business agent that some of the men were not observing the safety rules. After Daughdrill's call, St. Clair checked with Nat Shapiro, a company official, and Shapiro stated that he would appreciate St. Clair's speaking to the men about the safety requirements on the job. All of the Respondent's painters who worked at the Houston Chemical facility attended the meeting held on the parking lot. However, General Foreman Muckleroy and Job Foreman Holland did not attend. After St. Clair had talked to the men about the hazards of working in a contaminated plant and what they should or should not do, Hyatt asked from whom he was supposed to take his orders and the business agent replied from Job Foreman Holland. Hyatt then inquired if it wouldn't be best for the job steward to advise Muckleroy to leave the men alone and that if the general foreman did not do so to file charges against him through the local union. Joe Kavanaugh, the president of the local union, who is employed by Gunnels, said that this would require a time-consuming procedure going through the executive board. Kavanaugh explained that it was not possible to simply impose a fine, but that charges would have to be brought against Muckleroy, and he would be brought before the trial board which would first have to find him guilty before a fine could be imposed. Nothing further was said at this meeting about a possible fine. Following the meeting on the Houston Chemical parking lot, Muckleroy was told by one of the Gunnels painters Gunnels Industrial Painters, Inc., a Texas corporation, is engaged in the business of providing painting services to various industries in the State of Texas and maintains its principal office and place of business at Clute, Texas. During the calendar year preceding issuance of complaint, Respondent, within the State of Texas, performed services valued in excess of $50,000 for employers located within the State of Texas, and each of such employers, whose principal offices are located outside the State of Texas, sold and shipped goods valued in excess of $50,000 directly to points located outside the` States where their principal offices are located. The complaint alleged, the answer admitted, and I find that the Company is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and meets the Board's standards for assertion of its jurisdiction. II. THE LABOR ORGANIZATION INVOLVED Local Union 243, Brotherhood of Painters, Decorators and Paperhangers of America , AFL-CIO (herein called the Union), is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES ' A. Background The Company performs full-time maintenance paint- work for the Houston Chemical Company at its Beaumont, Texas, plant. Houston Chemical manufactures lead addi- tives for gasoline as well as byproducts thereto. Because persons working at the Houston Chemical plant are exposed to lead which is ingested into their bodies, Houston Chemical requires that employees be tested each month for the lead content in their bodies. As a result of such tests, men are assigned a "color" indicating their own lead content. The colors assigned are green for a normal lead level and then in order of ascending rate of lead content yellow, orange, and red. If an employee is assigned red he is placed on a watch list and cannot work in certain prescribed areas of the plant. In the latter part of May, Elton E. Hyatt and George Soffes had been assigned to paint on the fifth floor of Houston Chemical's west T.E.L. building. They had already sprayed the ceiling and had reached a stage in the work where a third man was needed to apply the wall color up to the ceiling so that Hyatt and Soffes could spray the walls. Foreman Clyde Holland assigned Eugene Carr as the third employee to work with Hyatt and Soffes. After Foreman Holland had taken the crew of three men and equipped them for the painting, General Foreman Rex Muckleroy appeared on the scene and stated that Can could not work on the fifth floor of the T.E.L. building "because he was in the yellow." Holland stated that he had cleared with a Houston Chemical employee Can's working on the fifth floor if he wore his respirator. Muckleroy said that he would check into this matter to straighten out the GUNNELS INDUSTRIAL PAINTERS, INC. 603 about Hyatt's remarks concerning a possible fine of Muckleroy. During the day following this safety meeting, Muckleroy called St. Clair, stated that one of the men had told him about Hyatt's statements, and asked whether he could be fined "for this." St. Clair advised the general foreman that he did not think it would go that far, that charges would have to be brought against Muckleroy, and that he would have to come before the trial board and be found guilty before a fine could be imposed. St. Clair stated his opinion that it would not go that far. Muckleroy testified that he had called St. Clair just to find out the facts and that he was not concerned about Hyatt 's threats because "over a period of about 20 years as supervisor .. . have heard it before." However, Muckleroy also explained, "Well, placing a fine against a foreman or a supervisor in the Union is not a very good record." Although Muckleroy in his testimony sought to create the impression that Hyatt's statement about a possible fine was of no concern to him, I find that the general foreman was concerned about Hyatt's threat of a fine and reacted to this threat. That it was a matter of considerable concern to him is evidenced by the call he placed to St . Clair upon learning of Hyatt's threat and Muckleroy's clear impres- sion that "placing a fine against a foreman or a supervisor ... is not a very good record." Muckleroy's displeasure with Hyatt's suggestion that the general foreman be fined was further evidenced by a change in Muckleroy's behavior while carrying out his duties of supervising and observing the men at work. Hyatt testified without contradiction that, prior to the incident on the parking lot, Muckleroy in making his rounds of the men on the job would usually stop and talk and joke with the men and the men replied in kind to Muckleroy "as if he was one of the regular men." Hyatt characterized his relationship with Muckleroy prior to his statements on the parking lot as "very friendly." However, after the safety meeting at which Hyatt had suggested that Muckleroy be fined, he noticed that Muckleroy came around to where he was working more often than before and that on his visits Muckleroy did not stop and talk . Muckleroy would just check on what the men were doing and go on. Hyatt testified that the general foreman would stand and watch the work, that there was no conversation and no joking with Hyatt as there had been prior to the parking lot incident. B. The Safety Supply Room Job Houston Chemical was planning an open house for the employees and their families to be held on June 5. Among the other areas of the Houston Chemical plant which Gunnels was asked to paint was the safety supply room where safety equipment is stored and from which it is issued to employees working in the various areas of the plant. The safety supply room is approximately 12 by 24 feet with a linoleum-covered counter across the room which blocks entry to persons coming in . On two walls of the room there are cabinets which reach to the floor in which equipment is stored. On April 28 General Foreman Muckleroy, with Job Foreman Holland's assistance, prepared an estimate for Houston Chemical of the man- hours which would be required to paint the safety supply room. Muckleroy explained that Gunnels, which operates on a cost-plus basis , is required to submit a written estimate showing the man-hours of work required for all painting orders which it receives from Houston Chemical. Muckleroy testified further that he is usually required to submit a written explanation to Houston Chemical when the man-hours actually spent on a job exceed the written estimate by 10 percent or more . Muckleroy's estimate for the safety supply room job appears under a heading describing the required work as "Paint walls and cabinets in Safety Equipment Room." The man-hours estimated for the job were 32. Muckleroy first testified that the estimate included painting the ceiling of the room. However, other witnesses, including J. E. Morrison , Houston Chemical's safety director, testified that painting of the ceiling was added to the work after Hyatt and Soffes had started work in the safety supply room. When Muckleroy appeared on the stand for the second time during the hearing, he changed his testimony and stated that he had been in error in his prior statement that the original estimate had included the ceiling. During his second appearance as a witness, Muckleroy estimated that painting the ceiling would have added 8 man-hours of work to the original estimate of 32 hours. On Friday, May 28, Job Foreman Holland took Hyatt and Soffes to the safety supply room and issued instruc- tions that they should make a day's work of cleaning and preparing the room for painting and "to start painting on it Tuesday morning." Holland testified that he knew that the preparation of the room for painting would take nearly all day and that Hyatt wanted to leave work at noon , "so that would leave only 12 hours to clean it and prepare it." Painting of the safety supply room was to be done by brush. Hyatt had worked for the Respondent for approxi- mately 2- 1/2 years prior to assignment to the safety supply room. He testified that most of his work for the Company involved sandblasting, spraying, and high work on sus- pended scaffolds. Hyatt explained that there were only three men employed by the Company who did high work and that some people have a fear of height , especially if there is no support under their feet. For high work the Company pays premium pay . Muckleroy testified that Hyatt is a spray painter . Soffes testified that he is not a first-class brushhand. For a period of approximately 3 years prior to his being assigned to work with Hyatt, Soffes had worked in the sand yard with Preston Daughdnll. Soffes at the time he was assigned to working with Hyatt pointed out to Muckleroy that he had not done any brushwork for 3 years and asked if someone else could not have been assigned to that work. Soffes testified without contradiction that Muckleroy replied that Soffes was doing a mighty fine job and that Muckleroy wouldn't think of putting anyone else on the work. Monday, May 31, was a holiday and Soffes and Hyatt returned to work in the safety supply room on Tuesday, June 1, and started painting the inside and outside of the cabinet doors and the walls. On either Tuesday or Wednesday, Muckleroy advised Hyatt and Soffes that the painting of the ceiling had been added to the work to be done in the safety supply room . On Tuesday, June 2, Hyatt and Soffes started painting the ceiling which required 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working on ladders. During the time they were working in the safety supply room, Hyatt and Soffes discussed the fact that Muckleroy was watching them very closely. Soffes testified that when Muckleroy does something like that he is usually up to something and that he and Hyatt figured that "they were in for it." Soffes stated that he and Hyatt, worked harder than usual and tried their best to get as much work done as they could . Hyatt testified that Muckleroy came to the safety supply room 8 or 10 times a day and would stand in the door and look in. Hyatt characterized Muckleroy's behavior as "just plain bird- dogging us." Lester L. Smith, a Houston Chemical employee, testified that he had occasion to go to the safety supply room while Hyatt and Soffes were painting. On one such occasion, Smith testified, Muckleroy came into the safety supply room and someone in the room asked Muckleroy why he was "bird-dogging" these men. Smith told Muckleroy that it was not necessary for him to bird- dog the men as they were working. Smith testified that Muckleroy replied that it was his job to bird -dog, that he was paid to bird-dog, and that that was what he was going to do. Smith replied that Hyatt and Soffes were working and "were about two of the best guys he had." Smith contracts house painting in his time away from Houston Chemical. Muckleroy testified that he visited the safety supply room four or five times on June 1 and increased his visits on June 2 to approximately eight because , he stated, the job was not progressing. Muckleroy claimed that, during his visits on June 1 and 2, he observed Hyatt with his safety goggles off leaning against the counter talking to the safety clerk and other employees who were there for the purpose of picking up safety equipment. Further, Muckleroy, while stating that he couldn't be specific, claimed to have asked Hyatt and Soffes to speed up their work on one or two occasions on June 1 and 2. Hyatt and Soffes denied that Muckleroy at any time asked them to speed up the rate at which they were painting the safety room or spoke to them about their work. I credit Hyatt and Soffes in their denials that Muckleroy had spoken to them about the progress of the job. In preferring Hyatt and Soffes' version I afford weight particularly to Soffes' testimony. From my observa- tion of Soffes while testifying, I conclude that he is incapable of prevarication and testified with simplicity and directness to the truth. Muckleroy, on the other hand, sought to color the events to buttress his claim that Soffes and Hyatt were failing to perform the work in the safety supply room in an expeditious manner . Thus, at first Muckleroy sought to establish that the estimate of 32 man- hours for completion of the painting of the safety supply room included work on the ceiling. It was only after other impartial witnesses had established that the ceiling had not been included in the estimate , but had been added to the work after the job had been started , that Muckleroy conceded that the original estimate did not contemplate painting the ceiling and that additional man-hours of work were needed for that extra work. Job Foreman Holland was absent from work on June 1 and 2 and in his absence Preston Daughdrill, the job steward, was acting foreman. Daughdrill testified that he visited the safety supply room once on June I and once on June 2. On his first visit, on June 1 , he claimed that Soffes and Hyatt were in a corner having a conversation with a third person whom he could not identify and further claimed that he could not tell if the two employees were working. However, Daughdnll stated that he could not see too well because of the counter in the front of the room and the fact that there were men in front of him. Daughdrill's June 2 visit to the safety supply room was at approximately 2:30 p .m. He stated that at that time it appeared to him that Soffes was sitting either on the floor or on the box. He stated that he could not tell whether Soffes was working at the time . Hyatt was sitting further back in the room and Daughdrill couldn't tell just what it was that Hyatt was doing. Daughdnll stated that he reported to Muckleroy that "it looked like they weren't doing too much in it" and Muckleroy said that he would do some checking. On neither of his two visits to the safety supply room did Daughdrill speak to either Soffes or Hyatt. Examined further on his June 2 visit , Daughdrill acknowledged that the counter blocked his vision of Soffes so that he could only see the employee's head and that in fact he did not even know if Soffes was indeed sitting at the time. Muckleroy claimed that after this visit on June 2 to the safety supply room, Daughdrill came and reported to Muckleroy that "they were sitting down." Daughdrill denied that he had told Muckleroy that Hyatt and Soffes were sitting at the time of his visit to the safety supply room. Daughdrill stated , "I told him exactly what I seen, and that was all." He had told Muckleroy that he had seen Soffes. Soffes testified that , at the time of Daughdnll's visit to the safety supply room on June 2 , he and Hyatt were working on the ceiling which required the use of ladders. Further, Soffes denied that he had ever sat on the floor although several times he had had to get down on one knee to work. Safety supply room clerk Johnson , a Houston Chemical employee, testified that there were times when Hyatt and Soffes had to assume a sitting position to work on the bottom of the cabinets which extend all the way to the floor. ' At approximately 3 p.m. on June 2, Muckleroy came to the safety supply room and told Soffes and Hyatt to load their equipment in the Company's pickup truck . After they did so, he drove them to the paint shack where employees change their clothes and clean their equipment . No words were exchanged during this trip. At the paint shack, Muckleroy informed Soffes and Hyatt that he was letting them go. Hyatt claimed to have asked three times for a reason for their discharge and that three times Muckleroy refused to give an answer. However, Hyatt testified that Muckleroy at one point said that there had been too many complaints. When Hyatt asked who was complaining, Muckleroy replied that he was. Muckleroy confirmed that the exchange about complaints had taken place, but added that he had told the employees that he was complaining because not enough work had been done considering the amount of time they had spent . Muckleroy testified that he fired Soffes and Hyatt because they were not getting sufficient production and he knew this because based on his experience in the industry he was in a position to know approximately how much time it takes to paint an area. Hyatt testified that subsequent to the discharge he went GUNNELS INDUSTRIAL PAINTERS, INC. 605 to the union office and told Union Business Agent St. Clair that he had been laid off. St. Clair called Muckleroy who informed the union agent that the two men had been fired for unsatisfactory work. St. Clair asked Muckleroy to supply Hyatt with a termination slip which he had refused to do at the time of the discharge and Muckleroy subsequently sent the termination slip to St. Clair who delivered it to Hyatt. On Thursday, June 3, Job Foreman Holland returned to work and assigned Marian R. Spoonemore to complete the painting of the safety supply room. Spoonemore, who is known as a brushman, completed the work remaining in approximately 6 hours. At the time Spoonemore reported to the safety supply room approximately one-third of the ceiling remained to be painted as well as some work on the walls and a few of the cabinets. C. Postdischarge Events Soffes testified that approximately 1 week after the discharge Muckleroy called his home. Soffes was not there and his daughter took the message that Soffes was to return the call. Upon his return home, Soffes called Muckleroy who asked if Soffes wanted his job back. When Soffes replied that he did, Muckleroy said that in a few days he figured to hire Soffes back. Soffes then asked why he had been fired. Muckleroy replied that he had his reasons but he believed he could get Soffes back on the job. Soffes asked when that would be and the general foreman replied in a few days, perhaps in a week or two. Muckleroy explained that he had to check with Nat Shapiro, one of his superiors at Gunnels. Soffes testified that Muckleroy advised him to keep his nose clean, not to do anything about it, and not to go to Houston.2 The conversation ended with Muckleroy saying he would see that Soffes got hisjob back. Muckleroy testified that he did not think he ever called Soffes on the phone but did not specifically deny making such a call. However, Muckleroy testified that some 3 or 5 days after the discharge while on his way to work he came upon Soffes who was picketing the plant with a sign reading "Gunnels Unfair To Me." Muckleroy testified that he asked Soffes to take the sign down saying, "My god, George, don't lose the last chance you have to get back to work. Take that thing down, put it in your truck, and go home." Muckleroy testified that the intent of his statement was "that perhaps Soffes could come back to work." After reemployment did not take place Soffes visited Business Agent St. Clair at the union office. St. Clair testified that he called Muckleroy in an effort to get Soffes back to work with the Company. In this conversation, Muckleroy informed the union business agent that he would see Shapiro and by going through the proper channels try to get Soffes back to work. St. Clair then informed Soffes that Muckleroy would make an effort to secure his reemployment. Muckleroy acknowledged having received this call from St. Clair and having said that he "would have to go through the procedures of going through my supervision," mentioning Shapiro's name in the conversation. D. Conclusions and Findings I have heretofore found that General Foreman Muckle'- roy was upset by Hyatt's suggestion at the union'meeting!on the parking lot that a fine be levied against Muckleroy because of the manner in which he was assigning work to the men.3 Muckleroy contacted the Union's business agent to determine whether the disciplinary action suggested by Hyatt could and would be imposed and thereafter Muckleroy's attitude toward Hyatt changed and the procedures he followed in carrying out his responsibility of observing Hyatt at work were also modified. The record establishes that neither Hyatt nor Soffes was an experienced brushman, the skill required for painting the safety supply room. Hyatt was experienced in spray painting and high work, and Soffes had worked for 3 years in the sand yard. In the work which Hyatt and Soffes performed on the fifth floor of Houston Chemical's T.E.L. building they performed the tasks by spraying and for the brushwork required to bring the wall color up to the ceiling a third man had been assigned to their crew. However, for painting of the safety supply room where experience with a brush was needed, Muckleroy and Holland assigned Soffes and Hyatt who were not known for such a skill. Respondent's claim that the two men were laying down on the job and that the time they spent on the safety supply room far exceeded the estimate for that work is not borne out by the facts. The original estimate for man-hours required to paint the safety supply room, not including the ceiling, was a total of 32. Taking Muckleroy's estimate of an additional 8 hours to paint the ceiling, a total of 40 hours was contemplated for completion of the work. Noting Holland's testimony that Hyatt was to put in only half a day on Friday, Soffes and Hyatt had put in a total of 42 man-hours on the safety supply room at the time of their termination at 3 p.m. on Wednesday, June 2. Spoonemore, an experienced brushman, then spent an additional 6 hours on Thursday, June 3, to complete the work. As Muckleroy testified, when Gunnels exceeded the estimate for any particular job assignment Houston Chemical required a written explanation. Thus, Houston Chemical's failure to require a written explanation for the excess time consumed in the safety supply room lends substantial support to the conclusion that Houston Chemical, the firm which was footing the bill on a cost-plus contract, did not consider the overage of man-hours expended on this particular job as excessive. Moreover, the evidence totally fails to support the assertion that Hyatt and Soffes were failing to diligently perform the work in the safety supply room. Thus, Muckleroy's claim that Acting Job Foreman Daughdrill had reported on Tuesday, June 2, that Hyatt and Soffes were sitting down is refuted by Daughdrill's own testimo- ny. Daughdrill stated that on his visit to the safety supply room all he could see was Soffes' head because the rest of 2 Hyatt filed the underlying charge in this case with the Houston Regional Office on June 7 3 Hyatt's complaint and suggestion of disciplinary action against the general foreman in connection with the assignment of work to the men constituted concerted activity protected by the Act N L R B v Guernsey- Muskingum Electric Cooperative, Inc, 285 F 2d 8 (C A. 6); cf Joanna Cotton Mills Co v NLRB , 176 F 2d 749, 752-753 (C A. 4) 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Soffes was blocked by the counter across the front of the safety supply room and by Houston Chemical employees who were standing at the counter. Therefore, Daughdrill could not say whether Soffes was sitting at the time. Further, Daughdnll testified that all he told Muckleroy following this visit to the safety supply room was what he had seen and what he had seen was Soffes' head. The nature of the safety supply room work, with cabinets and cabinet doors running to the floor, required that Hyatt and Soffes at the times when they were cleaning and painting the bottoms of the cabinets would in some way, either by sitting, kneeling, or crouching, assume a position close to the floor so that this work could be performed. Muckleroy was not a credible witness. His efforts to create the impression that the original 32-hour estimate included the painting of the ceiling, his misstatement of Daughdnll's June 2 report, and his claimed lack of knowledge that Job Foreman Holland had instructed Hyatt and Soffes to spend the entire day on Friday in cleaning and preparing the room for painting establish that Muckleroy was stretching the truth to justify his termination of the two men. Accordingly, I do not credit Muckleroy's claim that on a number of occasions when he visited the safety supply room job he had urged the men to speed up the painting of the room. Finally, in concluding that the claim that Hyatt and Soffes were failing to perform the safety supply room work in an expeditious manner, I note the testimony of Lester L. Smith, a disinterested Houston Chemical employ- ee and an experienced painter, who testified that at one point when Muckleroy was visiting the safety supply room he had noted to the general foreman that Hyatt and Soffes "were just about two of the best guys he had." Muckleroy's promise on two occasions following the June 2 terminations to make efforts to reemploy Soffes further buttresses the finding that the discharges for the asserted reason that the two men failed to perform a satisfactory amount of work in the safety supply room were pretextual in nature and that Muckleroy's real motive was to eliminate from the Company's employ Hyatt who had shown the temerity to suggest that discipline be imposed within the Union on Muckleroy for the manner in which he performed his job as a general foreman. Under the circumstances, I find that Soffes was terminated to mask the discriminatory nature of Hyatt's discharge. Superex Drugs, Inc., 143 NLRB 110, 115, enfd. in pertinent part 341 F.2d 747 (C.A. 6). In his telephone conversations with both Soffes and Union Business Agent St. Clair, Muckleroy promised to speak to Gunnels Official Shapiro in an effort to get Soffes back to work. Further, at the time when Muckleroy came up on Soffes picketing the Compa- ny following his discharge, Muckleroy indicated to Soffes that there was a possibility of his reemployment. Had the true reason for the termination of the two men been their common failure to give a full day's work in the safety supply room, there was no reason for Muckleroy to 4 Muckleroy's statements to Soffes on the occasion when Soffes was picketing the plant violated Sec 8(a)(1) of the Act The general foreman conditioned Soffes' reemployment upon his cessation of picketing and the warning to Soffes that he not go to Houston was coupled with the question as to whether Hyatt had already done so The clean implication of the warning that Soffes not go to Houston as Hyatt had done was a linking of Soffes' possible reemployment with his eschewing the right to file a charge promise to endeavor to restore Soffes to employment with the Company.4 Accordingly, I find that the discharges of Hyatt and Soffes were in retribution for Hyatt's protected concerted activity at the union meeting on the parking lot when he suggested disciplinary action against the general foreman because of the manner in which he performed his supervisory tasks affecting all of the men and violated Section 8(a)(1) of the Act.5 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 described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully dis- charged Elton E. Hyatt and George Soffes, I shall recommend that Respondent be ordered to offer to the employees named immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings suffered as a result of Respondent's unlawful conduct. Backpay shall be comput- ed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended, in view of the nature of the unfair labor practices in which the Respondent engaged,6 that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. Gunnels Industrial Painters, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 243, Brotherhood of Painters, Decora- tors and Paperhangers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in certain described conduct referred to hereinabove, in section III, B and C hereof, Respondent interfered with, restrained, and coerced its employees in under the Act 5 In view of the fact that the remedy afforded for this 8 (a)(1) discharge of the two employees is the same as that which would flow from a finding of a violation of Sec . 8(a)(3) of the Act, I do not deem it necessary to reach the question as to whether these discharges violated Sec 8(a)(3) of the Act as well. 6 See NLRB v. Entwistle Mfg Co, 120 F 2d 532, 536 (C A. 4) GUNNELS INDUSTRIAL PAINTERS, INC. 607 the exercise of rights guaranteed to them in Section 7 of the Upon the foregoing findings of fact, conclusions of law, Act, and thereby has engaged in and is engaging in unfair and the entire record, and pursuant to Section 10(c) of the labor practices within the meaning of Section 8(a)(1) of the Act, I hereby issue the following. Act. [Recommended Order omitted from publication.] 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.