Gerald Barras Paint Co.

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gerald Barras Paint Co. andCharles E. Wilson. Case 23-CA-5231 April 29, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO AFL-CIO ("the Union"), and in Violation of Section 8(a)(1) and (3) of the Act, refused and continues to refuse to hire Wilson because he had made such reports or engaged in other concerted or Union activity. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by Respondent and counsel for the General Counsel, I make the following: On January 21, 1975, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, Respondent' filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 and con- clusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Gerald Barras Paint Co., Port Arthur, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Or- der. 1 The request for oral argument made by the Respondent is hereby denied, as the record, including the exceptions and brief, adequately presents the issues and positions of the parties 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear prepondernace of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing her findings DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This pro- ceeding, heard at Beaumont, Texas, on November 12 and 13, 1974,1 pursuant to a charge filed on August 26 and a com- plaint issued on October 17, presents the question of whether Respondent Gerald Barras Paint Co. in violation of Section 8(a)(1) of the National Labor Relations Act, as amended ("the Act"), told the Charging Party, Charles E. Wilson, that Respondent would not employ him because he had reported violations of a collective-bargaining agreement between Re- spondent and Painters Union Local No. 328, The Brother- hood of Painters, Decorators, and Paperhangers of America, I All dates hereafter are 1974 unless otherwise indicated FINDINGS OF FACT I THE NATURE OF RESPONDENT'S BUSINESS, THE UNION'S STATUS AS A LABOR ORGANIZATION Respondent is a Texas corporation with its principal office and place of business in Port Arthur, Texas, where it is en- gaged in the construction industry-as a painting contractor. During the year preceding the issuance of the complaint, Respondent purchased goods and materials valued in excess of $50,000 which were transported to its Port Arthur, Texas, plant from other enterprises, which are located in Texas and received said goods and materials directly from States other than Texas. I find that, as Respondent concedes, it is engaged in commerce within the meaning of the Act, and that asser- tion of jurisdiction over its operations will effectuate the poli- cies of the Act. The Union is a labor organization Within the meaning of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. Background Between 1951 and about 1967, Wilson worked for Texaco, Incorporated. During the last 8 years of his work there, he did "just about all phases of painting such as sandblasting tanks, sandblasting pipes, rigging, [and] climbing." After quitting Texaco, Wilson joined the Union and, 2 or 3 months later, began work as a union painter. At all times relevant here, Respondent and the Union have been parties to collective-bargaining agreements which do not affect Respondent's right to hire employees directly. In Octo- ber 1973, Wilson obtained a job in this manner from Gerald Barras, who is Respondent's president and sole stockholder. On the first job to which Barras assigned him, the Gulf Chemical job, Wilson did primarily new-construction work. He spent 85 percent of his time using a brush, but also per- formed some spray painting. Because he was the first journey- man painter assigned to the Gulf Chemical job, he acted as steward on that job. About January 1974, Respondent finished the Gulf Chemi- cal job and transferred Wilson to the Firestone job. This job consisted partly of maintenance work, for which Respondent kept a permanent work force, and partly of new-construction work, to which Wilson was primarily assigned. This new- construction work called primarily for sandblasting and spray painting. About May 1974, Wilson requested and re- ceived from Leon Alexander, Respondent's foreman on the Firestone job, permission to post on Respondent's employee bulletin board an announcement of his candidacy for union business agent against incumbent Edward Fontenot. Wilson also quit his job in order to get time to campaign, but about 217 NLRB No. 107 GERALD BARRAS PAINT CO. 595 a week later he asked for his job back and Alexander rehired -him. Wilson's last day of employment on the Firestone job was May 22, when he sustained an on-the-job injury which com- pelled him to undergo an operation oniMay 27. While in the hospital, where he stayed until about June 3, Wilson tele- phoned Barras to solicit his support in the Union election, but Barras replied that he did not regard the matter as his affair. B. Wilson's Unsuccessful Efforts to Obtain Reemployment 'Nilson credibly testified that in the latter part of July, he began to feel well enough to anticipate an early release by his doctor to return to work. On July 19,2 Wilson visited Barras in his office to ask about returning to work. Wilson told Barras, "I've got an appointment this afternoon with the doctor and he might release me, but 11 am not for sure."' Barras replied that the new-construction work to which Wil- sort had been assigned when injured had been completed while he was in the hospital.4 Barras said that he "didn't have anything right at the present but that he would let [Wilson] know."5 Later that same day Wilson went down to the union hall, paid his dues, and registered for work on the Union's out-of- work list. He also asked Union Business Agent Fontenot, who had defeated Wilson for that office in a hotly contested June 19 union election, how the work situation was. Fontenot replied that no help was needed at the time. Fontenot asked Wilson whether he had heard about Jimmy Ratcliff's dis- charge the previous day for sleeping on the duPont job, where he had been working for Respondent. Wilson replied that he had heard something about this. Wilson asked who had fired Ratcliff, to which Fontenot replied that it was not a foreman who was a member of the Union, and that he thought that a duPont man had fired Ratchff.6 Wilson' then commented, "Well, the reason why they probably caught him up there is because they don't have the proper ratio on the job. I mean, you have 40 or 50 people working out there and there is not but two foremen." Fontenot replied that he had heard the same thing and would check that out with Barras.' C. Fontenot 's Investigation of Whether Respondent was Maintaining the Contractual Foremen-Journeymen Ratio; Subsequent Events At all material times, Respondent and the Union were parties to a collective bargaining agreement, received in evi- dence as General Counsel's Exhibit 2, which provided, inter alias ARTICLE VI WORKING RULES Section 1 (C) SUPERVISORY DIFFERENTIALS: The following supervisory differentials are recog- nized: (1) Foreman-The Foreman shall receive Fifty ($0.50) Cents per hour above the highest paid Journeyman under his supervision. (2) General Foreman-The General Foreman shall re- ceive Fifty ($0.50) Cents per hour above the highest paid Foreman under his supervision. (3) No Foreman shall work more than ten (10) Journey- man [sic] at any one time. Section 5-Apprentices 2 Both Wilson and Barras agreed to this date Union business representa- tive Fontenot attached an August 12 date to a conversation with Wilson which necessarily occurred at the Union hall later on the same day as the Wilson-Barras conversation, but testified that Wilson had also visited the Union hall about July 19 I believe that Wilson's and Barras' recollection was superior to Fontenot's. 3 This finding is based on Wilson's testimony on direct examination. On cross-examination, Wilson gave a negative answer to the inquiry, "So did you say anything to Mr Barras in those conversations with him advising him that you had not been released by your doctor to go to work?" However, on the basis of this question's context and Wilson's demeanor, I believe that at this point Wilson was subjectively thinking of a subsequent conversation with Barras on July 23, where reemployment was admittedly discussed and there is no evidence that doctor's release was mentioned. On the basis of the witnesses' demeanor, I do not credit Barras' testimony that on July 19 Wilson said that he had obtained a doctor's release and was ready to go back to work. In any event, the ultimate result herein' would be the same even accepting Barras' version a This finding is based on Barras' testimony, which I credit because of the probabilities of the situation. It is undisputed that since Wilson's injury, Firestone had run out of money for the new-construction work to which Wilson had been primarily assigned, and Respondent had laid off 7 to 10 men from that job, thereby returning its Firestone work force to the size needed for maintenance work only.,I attribute to a faulty memory Wilson's denial that Barras mentioned the Firestone job during this conversation 5 My finding in this sentence is based on Wilson's testimony On the basis of the witnesses' demeanor and my subsequent finding (infra, part, 11, C, 1) that Barras was untruthful in alleging certain limitations on Wilson's abili- ties, I discredit Barras' testimony that he said " in the event that anything, came up that I thought he could handle, I would call him " Barras' version in his pretrial affidavit was, " if work became available I would contact him." B. Each contractor shall be allowed one (1) apprentice provided he employs two (2) or more Journeymen. C. Contractors employing ten (10) or more Journeymen will be allowed one (1) apprentice for each five (5) Journeymen employed. Barras testified that the duPont job was manned by 2 fore- men and 40 painters. Assuming that article VI, Section 5(C) of General Counsel's Exhibit 2 were applicable to that job, at least 34 of these painters would have been journeymen and, therefore, 4 foremen would have been required. General Counsel's Exhibit 2 was the only contract applicable to the Gulf job, where Wilson had served as steward, and also ap- 6 My finding that it was Fontenot who identified the discharging foreman is based on Wilson's testimony on cross-examination, which I find more probable than his direct testimony that he himself supplied this information to Fontenot. My ultimate conclusions herein would be the same regardless of which version is accurate 7 My findings in this paragraph are based on Wilson's testimony and on uncontradicted portions of Fontenot's testimony Fontenot testified that Wilson remarked that Barras did not need anyone and then asked Fontenot to check on Barras' foreman-journeymen ration. However, Fontenot also testified that Ratclilf was his former son-in-law and had been fired the day before Wilson's visit On the basis of the witnesses' demeanor, I credit Wilson's version of the conversation to the extent it is inconsistent with Fontenot's. In any event, my ultimate conclusions herein would be the same even accepting Fontenot's version 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plied to Wilson on most, if not all, his work for Respondent on the Firestone job. Moreover, Wilson credibly testified that his July 19 allegation to Fontenot about the foreman journey- men ratio on the duPont job was based on remarks by 3 or 4 employees on that job to him in the hospital that the job employed 2 foremen and 40 or 50 painters, and on similar conversations with other union members at union meetings after about June 19.1 In view of this evidence and Wilson's demeanor, and notwithstanding the testimony by Barras and Fontenot that Respondent was contractually entitled to em- ploy on the duPont job a higher ratio of apprentices to jour- neymen that that called for by article VI, section 5(C), of General Counsel's Exhibit 2,9 I conclude that Wilson hon- estly believed that Respondent was violating the bargaining agreement by employing only two foremen on that job. I further find that he reported this belief to Fontenot mostly because Wilson believed that adequate supervision by painter foremen might forestall future occasions of extreme miscon- duct by and consequent severe discipline of painters, but partly because he hoped that promotion of a painter to a foreman's job might afford that painter a raise, cause the promotion of a foreman to a general foreman at a raise, and leave a vacancy which Wilson could fill. Immediately after receiving this report from Wilson, Fontenot telephoned Barras that Wilson had complained to Fontenot about the number of Respondent's foremen at the duPont job.10 Fontenot asked him how many journeymen, how many apprentices, and how many foremen were em- ployed on that job. Barras checked his records and reported that 22 journeymen, 1' 2 foremen, 5 apprentices, and 7 or 8 "school boys" were working there-in short, that to comply with the letter of the bargaining agreement regarding the foremen journeymen ratio, Respondent would have to either add a foreman or terminate two journeymen. Fontenot asked Barras to make another foreman. Barras, who had a cost-plus contract with duPont, replied "Fontenot, if I do bring it up 8 Wilson credibly added that when the instant case came up, the em- ployees who had told him in the hospital about Barras' alleged breach said, "Don't use my name because I am still working for him and he will fire me " 9 Barras testified that because the duPont job is a maintenance job, a higher apprentice-journeymen ratio was permitted by G.C Exh 2 (art VI, sec. 5(B), quoted supra) and/or an "addendum" (apparently written) to G.C Exh 2, to which "addendum" Respondent, duPont, and the Union were all allegedly parties. The alleged "addendum" was not produced. Fontenot testified that apart from G.C Exh 2, Respondent and the Union were parties to only two contracts-a "maintenance agreement for the old work" and a "cottage and commercial" contract The two latter contracts were not produced, and Fontenot did not testify that duPont was a party to either of them. Fontenot testified that an "area understanding" urged by the Union's parent International permitted Respondent to employ "school Kids" to the extent possible, but Union recording secretary Teddy Long credibly testified that he had never heard of any side agreement in connec- tion with apprentices or "kids." There is no evidence that Wilson knew about either the alleged written "addendum" or the alleged "area under- standing" regarding "school kids." For the reasons set forth infra, fn. 28, and attached text, I find it unnecessary to determine the contractually permissible apprentice-journeymen ratio on the duPont job 10 Fontenot denied attributing the complaint to Wilson. I credit Barras' testimony otherwise, in view of the witnesses' demeanor and Wilson's tes- timony that 4 days later Barras attributed the complaint to him-testimony corroborated by Barras See also, infra, In 13. 11 This finding is based on Fontenot's testimony on direct examination In view of Barras' admission that he had 2 more journeymen than the number of foremen contractually permitted, and the uncontradicted evi- dence regarding subsequent discussions of the situation , I regard as mistaken the "20" figure given by Fontenot on cross-examination. to duPont, they are going to tell me to lay off two men. If you think you want to go talk to duPont, I'll bring you in any time [,,but it] is going to cause two men to lose their jobs." Fonte- not said that he would bring the matter up at the union meeting the next evening, that he would call Barras if the membership had anything against leaving matters the way they were, and that otherwise he would "just drop it." After discussing the matter, the membership decided to `just leave it like it is instead of making two people lose their jobs."12 Barras never heard any more from Fontenot about the mat- ter. On July 23, 4 days after Fontenot brought up with Barras Wilson's complaint about the foremen journeymen ratio on the duPont job, Wilson telephoned Barras and asked if Wil- son could take the place of another employee who was about to quit that job. The contents of this conversation are the subject of a sharp conflict resolved infra. However, it is undis- puted that Barras declined to rehire Wilson and expressed unhappiness about Wilson's complaint to Fontenot. Wilson never again asked Barras for a job, and Barras never thereafter offered him one. Wilson's doctor did not release him for work until August 12. Wilson did not recall seeking work with another painting contractor during the rest of August, nor did he work that month, but he later obtained work elsewhere.13 D. Analysis and Conclusions 1. The reasons for Respondent's failure to rehire Wilson Barras testified that when augmenting his work force, he "naturally" gives "first preference" to "Those people that I have had working for me in the past that I have determined to be competent people." He also admitted that after Wilson's July 23 application for work, Barras hired two journeymen industrial painters who had never worked for Respondent before.14 Barras, testified that he did not rehire Wilson be- cause at no time after he asked for work did Respondent have "any kind of work that I feel like he can handle, qualified for." However, the record as a whole casts grave doubts on Barras' testimony about his motives. Thus, Barras testified that Wilson was only "marginal" as 12 Fontenot credibly testified that he thought duPont would have insisted on the layoffs rather than agreeing to add a foreman, and that he so advised the membership In view of Wilson's truthful denial that Fontenot ever reported any violation by Barras , I conclude that Fontenot was mistaken in testifying that Wilson attended and participated in the meeting where this matter was discussed 13 At a time not clear in the record , Wilson filed a charge against the Union alleging discrimination by Fontenot in hiring practices Pursuant to a settlement agreement which did not involve any finding that the Union had violated the Act, Fontenot posted a notice that he would not discrimi- nate against "anybody that run against anybody for office " Fontenot's affidavit that he did not tell Barras that it was Wilson who complained about Respondent's foreman-journeymen ratio led to the dismissal of the charge against the Union regarding Respondent On the basis of the witnesses' demeanor, I credit over Fontenot's denial the testimony of Union Recording Secretary Long that after the June 19 union election, Fontenot told him to tell Wilson that he might as well transfer his book to some other city because he would never go to work again out of Local 328 14 Barras testified that one of these was also a "cottage painter" whom the foreman had requested by name and who had special skills not shown to be possessed by Wilson Fontenot credibly testified that after July 19 Barras hired a tank painter, but Fontenot could not recall his name GERALD BARRAS PAINT CO. 597 a "brush hand," which was his principal work on the Gulf job However, upon the completion of that job Barras trans- ferred him to the Firestone job even though Barras conceded that some of other employees who had been on the Gulf job may have been laid off altogether;15 and he was accepted on that job by Respondent's foreman, Alexander, who had pre- viously had an opportunity to observe Wilson's structural- steel painting during a 1-week period when he was on loan from the Gulf job.16 Moreover, although Alexander (who was still in Respondent's employ at the time of the hearing and was called by it as a witness) testified that he usually assigned Wilson to work with a man who had worked for Respondent for several years because the inorganic zinc oxide coating used at Firestone is not normally used at other plants, he did not testify that Wilson's work (primarily sandblasting and spray painting) was otherwise inferior in either quality or quantity to the work performed by other journeymen on the job, or failed to meet the standards expected of a journeyman who had never before worked on that particular job." Nor is there any evidence that Respondent ever told Wilson that his work was deficient.'$ Furthermore, even accepting Alex- ander's testimony about a shortage of painters while the Fire- stone construction work was still in progress, Respondent's action in keeping him on the payroll at premium rates and in 1`-' Respondent produced no records to show that all such employees were in fact transferred elsewhere. See Golden State Bottling Company, Inc formerly d/b/a Pepsi-Cola Bottling Company ofSacremento. v NL R.B., 414 U S 168; International Union, United Automobile Aerospace, and Agricultural Implement Workers of America (UAW) (Gyrodyne Co. of America) v. N.L.R.B. 459 F.2d 1329, 1335-46 (C A.D.C, 1972). In any event, Barras' inability to recall whether Wilson's transfer was in effect automatic strongly suggests the absence of any real belief that he would otherwise have been unacceptable. 11' Barras testified, " . it is only natural that I Mould not put a man on the job that the foreman didn't have the confidence in that he was capable of doing the work naturally I get a say-so from the foreman as to whether or not this man is capable of doing whatever work he has to be done." i' In view of this testimony by a witness for Respondent who had first- hand opportunity to observe the facts, and in view of the witnesses' de- meanor, I discredit Barras' testimony that at Firestone Wilson acted more as a journeyman's assistant or helper than as a journeyman, and credit Wilson's testimony that the painters would "swap off" on the blaster unit and he did about as much blasting work as anyone else. When asked on direct examination whether he was in any way dissatisfied with Wilson's work, Alexander replied: No sir Not to the point I was dissatisfied with his work because, just like I say, I had absentees to the point that I had to live with anything As a team, we got the job done. You know, as a whole I am not going to pin out any individual and say no, he wasn't, he wasn't the best or he wasn't the worst or what because as a team we got the job done From Alexander's demeanor and his testimony as a whole, I infer that his quoted testimony constituted an effort to help Respondent's cause without malking what Alexander believed would be an unfair attack on Wilson's abilities 16 Indeed, Barras admitted that while Wilson was working for Respond- ent, Barras had never expressed to Wilson any dissatisfaction with his work Barras testified that he did not refer to Wilson's qualifications during his July 19 and 23 requests for work because Barras does not like to "belittle" persons merely because they cannot do the work available While not inher- ently implausible as regards job applicants, this explanation has little rele- vance to Respondent's silence during the 8-month period when Wilson was actually working for it and any improvements in his work would benefit Respondent immediately taking him back after he quit to campaign for Union office indicates that Barras was exaggerating, to say the least of it, when he testified that Wilson would "not get past the first qualification" of the trade-a brush painter and "a limited one at that." For the foregoing reasons, and on the basis of Barras' demeanor, I do not credit his testimony that he believed Wilson to be an incompetent spray painter and sandblaster and refused to rehire him for that reason . The question re- mains of Barras' real reasons for such action. I believe that this question is answered by the credible evidence regarding the July 23 telephone conversation between Barras and Wil- son during which, according to the testimony of both, Wilson asked for a job and Barras refused to rehire him. Barras' version of this conversation contains his only other objections to Wilson of which there is any record evidence. Barras testified that during this conversation: . . . . I told him at that time I didn't appreciate the kind of game that he was playing, and he asked me what I meant by that. And I told him that I had been advised that a complaint had been filed against me with the Union that I was in violation of the working agreement in a plant that he had never worked in, wasn't presently employed in, could not know the situation that existed in that plant other than by people telling him, which is I thought not substantial evidence, and that, as I say, I didn't appreciate that at all because we had built into the working agreement procedures whereby if there is some irregularities the mechanics is there to be handled by, first of all, the job steward, secondly, the business agent if he is so advised by any of the people that are working on the job, whether it be the steward or not. And, as I say, I told him that I was not happy at all that he had brought this thing up because I felt like he didn't know what he was talking about. t' Notwithstanding this testimony by Barras about his re- marks to Wilson during this conversation, Barras went on to testify, "I did not tell him that I would never hire him again. I told him at that time, repeating what I had told him before, that I would hire him in the event that I got something that 19 Similarly, Barras testified on cross-examination, I am faulting [Wilson] for trying to do the work of a steward in a plant that he had never worked in and wasn't working in at the time and could not have known except by hearsay what was going on in the plant . The mechanics to take care of those situations exist in this con- tract, and if he wanted to do anything about it he should have followed it up If Mr Wilson had been the steward in that plant and he had lodged that complaint, there would have been nothing said . He has a representative in that plant to do just that job, and if he thought there was anything wrong . . with something that existed there, a contact-made by him to the steward or have the business agent check it . I am objecting to the man not following basic procedures in what he did, and I tried to advise him of that fact . He could have checked with the steward on the job. Respondent's counsel does not appear to contend that Wilson's conduct was in any way inconsistent with the contractual grievance-arbitration pro- cedure, nor do I see any basis for any such claim. Nor does Respondent's counsel contend-that this procedure calls for dismissal of the complaint under the principles articulated in Collyer Insulated Wire, 192 NLRB 837 (1971) Cf. International Association of Heat & Frost Insulators & Asbestos Workers, AFL-CIO, Local 22 (Rosendahl, Inc.), 212 NLRB 915, in. 1 (1974), Morrison-Knudsen Co., Inc., 213 NLRB No. 48, in. 2 (1974); United States Postal Service, 215 NLRB No. 81 (1974) 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I thought he could handle."20 Wilson, on the other hand, testified that after he asked Barras to hire him for the job which was to open up at duPont on July 26: [Barras] said, "You no more than left my office the other afternoon and you run right down to the Union hall bitching, complaining, and raising hell about my supervisors out at duPont, and I just don't have room in my organization for people like that." - And I told him well, I went down to the hall but I wasn't raising any hell about it, and he said after that that for me not to bother him no more. If he needed me, he would call me. r I accept Wilson's version of the July 23 conversation, and discredit Barras' version except where corroborated by Wilson,21 on the basis of Barras' untruthfulness about Wil- son's alleged work deficiencies; Barras' admitted unhappiness about Wilson's complaint to the Union; the absence of any credible evidence that Barras was dissatisfied with Wilson for any other reason; Barras' action in later hiring industrial painters (only one of whom is claimed to be a "cottage painter" as well) who had never worked for Respondent before, rather than rehiring Wilson in accordance with Bar- ras'practice of rehiring competent former employees and the assurances to Wilson alleged in Barras' testimony; Barras' intentionally misleading testimonial efforts to imply that his admitted post-July 19 requests to Fontenot for workers could not have led to Fontenot's giving him Wilson's name;22 Wil- son's failure subsequently to apply for work with Respond- ent, although he had' previously made two applications in 4 days, and did not obtain a job until more than a month later; and the witnesses' demeanor.23 Accordingly, I find that on 20 Barras' version in his pretrial affidavit was, "I had no job for him but if work became available I would contact him " 21 Specifically, I discredit Barras' testimony, interalia, that Wilson denied having made the complaint to Fontenot, asked who had told Barras about it, and expressed sympathy with Barras' resentment of it Rather, I believe Wilson's denial that he expressed such sympathy. 22 Although admitting that he had "almost a standing order for tank sandblasters," a job which Wilson had performed for Texaco but not for Respondent, Barras testified that he "would tell the business agent I need a tank sandblaster" and the business agent "would tell" him what tank sandblasters were available. However, Barras' 27 years' experience as a Union member or contractor must have acquainted him with Fontenot's practice, to which he credibly testified, of responding to requests for tank sandblasters by reading (until the contractor said he had enough names) the name of every industrial painter on the out-of-work list, from which the contractor picked out the painters he wanted Counsel averred in his open- ing statement that Wilson's name "did in fact come up on a list and. that list was turned down in toto by a foreman for the reason that Mr Wilson, did not possess the requisite qualifications for the particular work that was involved", but both Barras and Fontenot testified that Fontenot had never given Wilson's name to Barras 23 In challenging Wilson's reliability as a witness, Respondent contends that in connection with a personal injury suit, Wilson solicited from Fonte- not misrepresentations about the length of Wilson's disability Wilson testi- fied that he discarded the unsigned typewritten statement he solicited and received from Fontenot, and denied that it set forth the period "June 1, 1973 to December 1, 1973," during the last 2 months of which he was working for Barras Fontenot testified that a document which sets forth these dates, which was received in evidence as Resppndent's Exhibit 1, is a facsimile of a carbon copy of the statement which Fontenot gave Wilson, who admit- tedly provided the dates on the statement he in fact received Fontenot testified on each of the two hearing days that he refused to sign this state- ment because, after it was typed, Barras told him by telephone that Wilson "has been working for me for the past three months." Fontenot further and after July 23, 1974, Respondent refused to consider Wil- son for rehire because of his action in reporting to the Union that on the duPont job Respondent may have been breaching its bargaining agreement with the Union. N.L.R.B. v. Fergu- son, L. C, and E. F Von Seggern d/b/a Shovel Supply Com- pany, 257 F.2d 88, 92 (C.A. 5, 1958). I do not agree with Respondent's characterization of Barras' remarks as "am- biguous;" but, in any event, any ambiguities about his mo- tives are resolved by his own testimony about what he re- sented about Wilson's contacts with the Union and why he resented them. 2. Whether Respondent violated the Act by failing to rehire Wilson and telling him the reason I have found that Barras refused to consider Wilson for rehire because Wilson-m an effort to preserve other em- ployees' job security, procure promotions and a wage increase for other employees, and obtain a job for himself-drew Union Business Representative Fontenot's attention to what Wilson honestly and correctly believed was a contractual breach by Respondent on the duPont project, and thereby caused Fontenot to look into the matter. By taking this action with respect to Wilson, Respondent violated Section 8(a)(1) and (3) of the Act;24 and, by telling Wilson that he -would not be rehired because of his complaint to Fontenot, 'Re- spondent violated Section 8(a)(l).25 I find unmeritorious Respondent's contention that Wil- son's complaint to Fontenot did not constitute protected ac- tivity because, although Wilson had previously worked under the contract at least partly applicable to the duPont job and was seeking employment on that job, he never actually worked thereon;" and because Wilson based his factual alle- testified that this incident, whose date Wilson was not asked about, occurred "after June" 1974 Because Fontenot thus dated this incident as having occurred more than a month after Wilson stopped working for Barras, because no reason appears why Barras should have misinformed Fontenot about Wilson's employment status, and because Barras was not asked about this conversation, I find Fontenot's testimony about the statement less probable than that of Wilson, whom I therefore credit about the dates which appeared on the statement which Fontenot gave him See also, supra, fn 13. I do not think the defects in Fontenot's testimony are overcome by his subsequent testimony, in reply to leading questions on direct examination, that during his alleged conversa- tion with Barras he learned that Wilson had been working for Barras during part of the period set forth in Respondent's Exhibit 1. Indeed, when there- after asked by Respondent's counsel why he had refused to sign the state- ment, Fontenot testified, "For this reason, when I called [Barras] I found out [Wilson] had been working for at least three months," and then gave an affirmative answer to the leading question, "During the period of time that's covered by [Resp. Exh 1?]," which, as noted, encompasses less than 2 months of Wilson's employment with Barras In thus crediting Wilson over Fontenot, I have taken into account the implausibility of Wilson's testimony that he did not give Fontenot a reason for wanting the statement or ask him to sign it and that it "wouldn't be of no value to me" whether signed or not, and also the vacillations in his testimony about whether he told Fontenot that Wilson did not need the statement. 24 Procon, Inc, 161 NLRB 1304, 1307 (1966), N.L R.B. v Bowman Transportation, Inc., 314 F 2d 497 (C.A 5, 1963) 25 Bi-State Warehousing, Inc, and Associated Shippers Inc., 192 NLRB 608 (1971), enfd. 82 LRRM 2688 (C.A. 7, 1972); Universal Fuel, Inc., 204 NLRB 26 (1973), enfd 498 F.2d 1400 (CA 5, 1974) 26 See Broyles & Broyles Mechanical Contractors, Inc., 166 NLRB 834 (1967) See also Houston Insulation Contractors Association v N.L.R.B., 386 U S 664, 667-669 (1967); Morrison-Knudsen Company, Inc and Ha- waiian Dredging and Construction Company, a Division of Dillingham GERALD BARRAS PAINT CO. gations to Fontenot on hearsay evidence, although they were borne out by Respondent's own payroll records27 and Bar- ras conceded that such facts established that Respondent did not have the mathematical foremen journeymen ratio as re- quired by the contract .21 I also reject Respondent's conten- tion that Barras' refusal to hire Wilson because of Barras' conceded dislike of the particular Union and concerted activ- ity in which Wilson participated was not unlawful because such dislike did not extend to all aspects of Union activity.29 So far as the establishment of unlawful personnel reprisals against Wilson is concerned, I also find immaterial the ab- sence of evidence that work was available for him on July 23, when he asked for a job; the fact that Wilson's doctor did not release him for work until August 12; and the fact that Wil- son never again applied to Respondent for a job. I so find because Barras made it clear to Wilson on July 23 that further applications for work would be futile, by telling him that Barras had no "room in [Barras'] organization" for people who made such complaints at the Union hall, and not to "bother him no more. If he needed [Wilson], he would call" him.30 I have, however, taken such evidence into account in determinig the appropriate remedy. CONCLUSIONS OF LAW 1. Respondent is an employer 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. Respondent has violated Section 8(a)(1) of the Act by telling Charles E. Wilson that Respondent would not rehire him because of his complaint to the Union about Respon- dent's breach of a collective-bargaining agreement. 4. Respondent has violated Section 8(a)(1) and (3) of the Act by refusing to rehire Wilson for that reason. 5. Such unfair labor practices affect commerce within the meaning of the Act. THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that Respondent be re- quired to cease and desist therefrom. In view of the evidence that Respondent is not opposed to aspects of union activity other than the kind of union activity which led Respondent Corp., a Joint Venture v NLR.B., 358 F 2d 411, 413-414 (C.A 9, 1966). Respondent followed the practice of moving its employees between jobs on both a temporary and a permanent basis. 17 See N.L R.B v. Acme Industrial Co., 385 U.S. 432 (1967) Indeed, such payroll records may well have been the only direct evidence of the foreman- journeymen ratio; and Fontenot's complaints to Barras, to the extent they were based on Wilson's allegations, were more remote hearsay than his. is In view of this concession, I find it unnecessary to determine whether the apprentice journeymen ratio contractually permitted on the duPont job (see suprafn. 9) made it reasonable to infer that 2 foremen and 40 employees violated the contractual foreman-journeymen ratio. 19 Broyles, supra, 166 NLRB at 836 (1967), and cases there cited at fn 8. 10 Utility and Industrial Construction Co., 214 NLRB No. 152 (1974), N L.R.B. v The Lummus Co., 210 F.2d 377, 380-381 (C.A 5), N.L R.B. v. Patterson Menhaden Corp. d/b/a Gallant Man, 389 F 2d 701, 703 (C.A. 5, 1960); N.L.R.B. v Swinerton, 202 F.2d 511, 515 (C.A 9), cert. denied 346 US. 814 599 to refuse to rehire Wilson, Respondent will be forbidden to engage in like or related conduct which infringes on employee rights, rather than forbidden to engage in any other infringing conduct. I shall also recommend that Respondent be required to offer Wilson a job as journeyman industrial painter, dismiss- ing, if necessary, any employee hired as a journeyman indus- trial painter after August 12, 1974, the date on which Wil- son's doctor released him for work; or, if no such job is presently available, to put Wilson on a preferential hiring list and offer him such a job before hiring or rehiring any others therefor. In addition, I shall recommend that Respondent be required to make Wilson whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of the sum of money he normally would have earned as wages from Respondent's first hire of an employee as a journeyman industrial painter after August 12, 1974, to such offer of employment or placement on a preferential hiring list, as the case may be, the backpay to be computed on a quarterly basis in the manner established by the Board in F W. Woolworth Company, 90 NLRB 289 (1950), with interest as called for in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In addition, I shall recommend that Re- spondent be required to post appropriate notices. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c)-of the Act, I hereby issue the following recommended: ORDER3i Respondent, Gerald Barras Paint Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling applicants for employment that they will not be hired or rehired because they reported violations of a collec- tive-bargaining agreement with Painters Union Local No. 328, The Brotherhood of Painters, Decorators, and Paper- hangers of America, AFL-CIO, herein called the Union. (b) Refusing to hire or otherwise discriminating against employees because they reported to the Union violations of a collective-bargaining agreement, or because they engaged in other protected concerted activity, or to discourage member- ship in the Union, or any other labor organization. (c) In any like or related manner interfering with, restrain- mg, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer a job as journeyman industrial painter to Charles E. Wilson, dismissing, if necessary, any employee hired as a journeyman industrial painter after August 12, 1974; or, if no such job is available, place Wilson on a preferential hiring list and offer him such a job before hiring or rehiring anyone else therefor. 31 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order and all objections thereto shall be deemed waived for all purposes 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make Wilson whole for any loss of pay he may have suffered after August 12, 1974, by reason of the discrimina- tion against him, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary or useful to an analysis of the amount of backpay due under the terms of this Order. (d) Post at its office in Port Arthur, Texas, and at all jobsites where its employees are working, copies of the at- tached notice marked "Appendix."32 Copies of the notice on forms to be provided by the Regional Director for Region 23, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that'the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. 32 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT tell people that we will not, hire or rehire them because they have complained about the violation of a collective-bargaining agreement. WE WILL NOT refuse to hire or rehire people for this reason. WE WILL NOT otherwise discriminate against our em- ployees in order to discourage membership in Painters Union Local No. 328, the Brotherhood of Painters, Decorators, and Paperhangers of America, AFL-CIO, or any other Union. WE WILL offer a journeyman industrial painter's job to Charles E. Wilson or, if no such job exists, put him on a preferential hiring list. WE WILL make Charles E. Wilson whole, with inter- est, for loss of pay resulting from our refusal to rehire him. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under the Act. GERALD BARRAS PAINT CO