Richardson Paint Co.

RICHARDSON PAINT COMPANY Richardson Paint Company and Bill J. Bass. Case 16- CA-6260 November 1, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On April 6, 1976, Administrative Law Judge James L. Rose issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, except as modified below, and to adopt his recommended Order as modified herein. 1. We agree with the Administrative Law Judge's ultimate conclusion that the layoff of employees Bass, Bryant, and Bowling violated Section 8(a)(1) of the Act. However, the Administrative Law Judge misconstrued the General Counsel's theory of the case, and we accordingly reach our conclusion based on the following rationale. As set out in the Decision of the Administrative Law Judge, on September 15, 1975, the crew of Su- pervisor Buddy Pate walked off the job rather than wear the identification buttons supplied by Respon- dent. The employees were protesting Respondent's refusal to 'furnish them with ear protection. The Gen- eral Counsel concedes, and we find, that the walkout was not protected because there existed a valid no- strike clause in the collective-bargaining agreement between the Respondent and the Union.' However, on September 16, 1975, the Respondent and the Union settled the dispute. Respondent agreed to sup- ply ear protection, and the Union agreed that the men would wear the buttons. It was specifically agreed to by the parties that there would be no repri- sals for the walkout. Accordingly, inasmuch as Re- spondent i,had thus condoned the concerted activity, the walkout, in effect, became protected and any re- prisals for it would violate the Act.' i International Brotherhood of Painters and Allied Trades and its Local 459. 2Alabama Marble Company, 83 NLRB 1047 (1949), enfd. 185 F.2d 1022 (C A. 5, 1951); see also Ram, Inc, 218 NLRB 430 (1975), and American River Constructors, 163 NLRB 551 (1967). 673 The Administrative Law Judge concluded that the Respondent's layoff on October 8, 1975, of employ- ees Bass, Bryant, and Bowling was in retaliation for the September 15 walkout. Under the Board's doc- trine of condonation, such retaliation would be viola- tive of the Act. We agree with the Administrative Law Judge's conclusion, though we do not rely en- tirely on the same evidence, The Administrative Law Judge relied, in part, on a statement by J. D. John- son, the Respondent's southeast division superinten- dent, that he would get the "instigators" (i.e., those involved in the walkout). The Respondent contends, with merit, that Johnson's statement was made prior to the settlement and therefore did not necessarily remain operative after the settlement. However, of great significance is that Watson, who made the deci- sion to lay off employees, opposed any settlement on September 16 and took the position that he did not want Buddy Pate's crew to return. Watson agreed to their return only when so ordered by Johnson. Also, Watson's reaction, discussed below, to Tipton's con- certed activities demonstrates that Watson intended to "run" the job without any interference from con- certed activities by employees. Accordingly, under all the circumstances herein, including especially Watson's open hostility to the concerted activities,' we find that the Respondent, by laying off employees on October 8, was retaliating for the walkout of Sep- 3 Our dissenting colleague, in supporting his position, places undue reli- ance on certain testimony of Union Representative Beard and Job Superin- tendent Watson. The testimony in question is neither relevant or probative because it relates to Operating Manager Johnson's posture toward the lay- off Contrary to the assertion of our dissenting colleague, the record indi- cates that Johnson, though he apparently discussed a layoff with Watson in July 1975, did not play a role in the final decision to have a layoff on October 8, 1975. The evidence shows-as amply demonstrated by the testi- mony quoted by our dissenting colleague in fn 4, infra-that Johnson's final discussion with Watson regarding a layoff occurred prior to the walk- out of September 15 In regard to the implementation of a layoff on October 8, Johnson's uncontradicted testimony was as follows- Q Now, at the time that the layoff occurred on October the 8th, 1975, were you involved in the decision to layoff the people on that particular day, or was that decision made by Mr. Watson? A. This decision was made by Mr. Watson on the particular day- date. Thus, the evidence confirms that Watson, not Johnson, was responsible for the layoff of October 8. Therefore, we place little weight on Beard's testimony that the Union had had a good relationship with Johnson. Inasmuch as Johnson had very little input into the decision to lay off employees, Beard's testimony is of little relevance to the issue of the lawfulness of the layoffs. Also, our colleague quotes testimony of Watson to the effect that John- son, his superior, had told him there would be no retaliation for the walkout. However, Watson's self-serving testimony does not negate the fact that he, not Johnson, made the decision that a layoff should take place. The Admin- istrative Law Judge specifically discredited Watson's testimony that the walkout had no bearing on his decision to effectuate a layoff Obviously, Watson would be as unlikely to admit he violated a directive from Johnson as to admit he laid off employees because of concerted activity (which had been condoned). Finally, Johnson's lack of participation in the final deci- sion to have a layoff indicates that he was not in a position do insure en- forcement of his pledge not to retaliate against those who had walked out. As noted above, Johnson did not discuss a layoff with Watson between the time. of the walkout and the time of the layoff 226 NLRB No. 100 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tember 15. The fact that Respondent also laid off three other employees not involved in the walkout is not sufficient to vindicate Respondent's action. Respondent' argues that legitimate business `rea- sons justified the layoffs. Watson's testimony, dis- credited by the Administrative Law Judge, indicated that he was acting pursuant to pressure from John- son and because the winter would leave less available work. Johnson and Watson apparently had discussed the possibility of a layoff as early as July, but the final decision as to any layoff was left to Watson. Watson admitted that he planned work well in ad- vance, and only 3 weeks after the layoff Respondent brought in four regular employees from another proj- ect to work at Monticello. Respondent contends that the relocation of these men was economically sound because they had been working at a project only 20 miles away. However, Johnson testified that it was a normal occurrence for regular employees to travel wherever needed, including from State to State, and it was not unusual to transfer these employees to job- sites distant from where they had been working. Johnson stated that, as of October 1975, and within his jurisdiction, Respondent had a number of other projects going, including ones in Arkansas, Texas, and-Oklahoma. Under these circumstances, the transfer of the four regular employees to the Monti- cello jobsite clearly warrants an inference that there was substantial work available at Monticello and that the transfer was not merely to avoid forcing reg- ular employees to travel a long distance to relocate. Therefore, we 'agree with the Administrative Law Judge's conclusion that Respondent did not persua- sively demonstrate that economic reasons justified its layoff. We further find, in agreement with the Ad- ministrative Law Judge, that the layoffs of employees Bass, Bryant, and Bolling were precipitated by the concerted activity of September 15 and, inasmuch as Respondent condoned that activity, the layoffs vio- lated Section 8(a)(1) of the Act. 2. We ' also agree with the Administrative Law Judge that Respondent discharged employee Tipton in violation of Section 8(a)(1) of the Act. The Admin- istrative Law Judge found that Respondent dis- charged Tipton for circulating a petition on October 9 to protest the layoff of employees on October 8. We agree with the Administrative Law Judge that Tipton's activity was clearly protected concerted ac- tivity and the Respondent discharged Tipton for en- gaging in this activity. Respondent contended that Tipton was discharged for violating a rule requiring employees to remain at their jobsites during the lunchbreak. Tipton admit- tedly left his jobsite at lunch to gain signatures on his petition. The Administrative Law Judge discredited Watson's testimony that there existed any rule pro- hibiting employees from leaving their work area dur- ing the noon break. Respondent notes that Supervi- sor Taylor also testified such a rule existed. However, Supervisor Pate, whose testimony was credited, was unaware of the rule and did not inform his crew of any such rule. Tipton, who was part of Pate's crew, testified that he had never been informed of the rule. In his testimony, Watson conceded that Tipton's cir- culating a petition was the "biggest reason" for the discharge. Johnson, Watson's superior, testified that Watson told him he discharged Tipton for circulating a petition. In light of this evidence, we find that Re- spondent's reference to Tipton's violating an alleged rule prohibiting employees from leaving their work area at lunchtime was merely a pretext. We'conclude, in agreement with the Administrative Law 'Judge, that the real reason for Tipton's discharge was his engaging in protected concerted activities. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Richardson Paint Com- pany, Mount Pleasant, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(a) of the Administrative Law Judge's recommended Or- der: "(a) Laying off employees because said employees have engaged in concerted activities which it has condoned or discharging employees because said em- ployees have engaged in protected concerted activi- ties." 2. Insert the following as paragraph 1(c): "(c) In any other manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act." 3. Insert the following as paragraph 2(b) and relet- ter the subsequent paragraphs accordingly: "(b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. 4. Substitute the attached notice for that of the Administrative Law Judge. MEMBER WALTHER, dissenting in part: I do not agree with my colleagues that the General Counsel has proven that Respondent laid off em- RICHARDSON PAINT COMPANY 675 ployees Bass, Bryant, and Bolling for having en- gaged in concerted activities in violation of Section 8(a)(1). As a preliminary matter, I note that the majority has repudiated much of the basis upon which the Administrative Law Judge found that the layoffs of these men were unlawful. The Administrative Law Judge found that the three men together with other employees had walked off the job on September 15, 1975, in protest of a requirement that they wear iden- tification buttons, that the walkout was a protected concerted activity, that the men were laid off on Oc- tober 8, 1975, because of this activity, and that the layoffs therefore violated Section 8(a)(1). As evi- dence of Respondent's motivation in making the lay- offs, the Administrative Law Judge relied on the credited testimony of employee Daily that Operating Superintendent Johnson had told him that he was going to get the "instigators" of the walkout. As a replacement for the Administrative Law Judge's -theory, the majority finds that the walkout in which the laid-off employees participated was not a protected activity because it was' in violation of a no-strike clause in the collective-bargaining contract between Respondent and the Union, but that the walkout was condoned by Respondent when it agreed with the Union on September 16 that there would be no, reprisals against participants. Although the majority finds Johnson's "instigators" statement cannot be used as evidence of Respondent's motiva- tion in making the layoffs since it was made prior to the settlement, they find motive in their conclusion that Job Superintendent Watson, although Johnson's subordinate, had agreed to the return of the strikers only because he was ordered to do so by Johnson. The majority also rejects, as did the Administrative Law Judge, Respondent's alleged business justifica- tion for the layoffs. As stated, the Administrative Law Judge found discriminatory intent in making the October 8 layoffs in Johnson's "instigators" statement. The majority quite properly rejects this and instead improperly, in my opinion, finds the necessary unlawful intent in his subordinate Watson's admitted opposition to the September 16 settlement. However, in so doing the majority has relied on only part of Watson's testi- mony and has completely ignored relevant testimony of Union Representative Beard who negotiated the settlement of the walkout with Johnson. Watson, who was present at the end of the settle- ment meeting on September 16, testified: Q. Did Mr. Johnson instruct you as to how you were to deal with these employees who had been engaged in this walkout? How you were to treat them? A. Yes, sir, he was a little firm with me on this. Q. What did he say? A. Well, I didn't pull no bones at this particu- lar time about -I didn't want the crew back. I had talked to the crew-I missed this point. I had actually begged this crew to stay with me. I had commended them at this time for the work they had done for me . . . Mr. Johnson took firm steps with me. Q. What did he say to you? A. He told me that I would take the crew back, and he told me that I would not harass them. He told -me that I would not take any steps to retaliate them which I didn't. Q. Are you in a habit of listening when Mr. Johnson tells you to do something? A. If I don't, I won't have my job long. Q. All right. Did you listen to him and do what he said to do in this case? A. Yes sir, I -never discussed this problem with this crew. Beard, who was called as a witness by the General Counsel, testified that his Union's relationship with Respondent was good, that he had had dealings with Johnson in the past, that Johnson was an honorable person, and that, when Johnson told him that men who had walked out would not be harassed and that it was not company policy to operate in that fashion, he believed Johnson? - 4Fn 3 of the majority's decision states that Beard's testimony that the Union had a good relationship with Johnson is of little relevance "[ilnas- much as Johnson had very little input into the decision to lay off employ- ees." It also states that Watson and not Johnson decided that a layoff should be made and, finally, that "Johnson's lack of participation in the final decision to have a layoff indicates that he was not in a position to insure enforcement of his pledge not to retaliate against those who had walked out" These statements as to Johnson's participation in the layoff decision are based on a misreading of the evidence. Johnson's uncontra- dicted testimony as to this matter is as follows Q Did you have any part in the number of people to be laid off? A I did Q When had that been discussed, and what number had been dis- cussed A We had discussed this previously Jack Leath, Lem Watson, and myself decided this They had discussed it amongst themselves, and we had discussed it together Lem and I discussed it by ourselves We felt that we could cut six people Q. And were these dicussions before or after September 15th, when this walkout occurred' -A Prior to The majority's attempt to play down the role of Johnson in the decision to lay off employees in order to diminish the weight to be given to his testi- mony ignores much of the relevant evidence Johnson's uncontradicted tes- timony was that as early as July he had urged Watson to lay off some employees, that prior to September 15 he and Watson had agreed that six men would be laid off, and that at the September 16 meeting with Beard he had told Beard, and later the Union's business agent at Texarkana, that there was going to be a layoff because the job was winding down It is true Continued 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of this testimony, I believe that the majority's finding that Watson laid off Bass, Bryant, and Bolling on October 8 because he had opposed the September 16 settlement agreement is unwarrant- ed. It was Johnson and not Watson who made policy for Respondent.` Johnson had promised the Union there would be no harassment of the employees who had walked out on September 15. Watson was firmly instructed that there was to be no retaliation. More- over, on October 8, Respondent laid off six employ- ees, only three of whom had participated in the Sep- tember 15 walkout. The Administrative Law Judge found that, if the layoff itself were motivated by law- ful reasons, the selection of the particular individuals to be laid off was justified. He found: Analyzing each employee by himself, it is my conclusion that his particular involvement in the September 15 events was not the reason he was selected for layoff. That is, once determining to lay off employees, it seems as reasonable to have picked the three from Pate's crew that Watson picked as to pick any other three. With the pos- sible exception of Bass, they do not stand out in their participation or as leaders. And from their testimony, as well as my observation of the de- meanor of each, the Company would seem justi- fied in its selection. The Administrative Law Judge found that the Oc- tober 8 layoff itself, but not the selection of employ- ees for layoff, was motivated by an intent to retaliate because of the September 15 walkout by some of the employees. Watson, according to this scenario, was so angered by the September 15 walkout that 3 weeks later he figuratively used a shotgun to vent his rage against some of the employees who had walked out. The evidence doesn't justify an inference that during the 3-week period, between the walkout and the lay- off Watson continued to harbor such resentment to- ward the men who had walked out that he finally exploded on October 8 and laid off innocent as well as guilty.' Antiunion employers have sometimes, usu- that Watson selected the particular day for the layoff and the employees who were to be terminated, but the selection of the men was found by the Administrative Law Judge not to have been discriminatorily motivated and the date of the actual layoff, it appears to me, was reasonably related to Johnson's warning of the upcoming layoffs To conclude , as does the major- ity, in the light of the foregoing evidence that "Johnson 's lack of participa- tion in the final decision to have a layoff indicates that he was not in a position to insure enforcement of his pledge not to retaliate against those who had walked out" is in conflict with the evidence 5 Although I agree that Watson discharged Tipton in violation of Sec 8(a)(1), I do not agree with the majority that this incident shows that layoffs of Bass, Bryant, and Bolling were also unlawfully motivated In the first place, the unprotected walkout of September 15 was condoned by Respon- dent, and Watson was under instructions from his superior , Johnson, not to retaliate against the walkout participants , there were no similar instructions from Johnson as to Tipton In the second place , the petition circulated by Tipton had a personal aspect which was not true of the events preceding the ally in the course of an organizational campaign, dis- charged neutral employees in order to camouflage the discharge of union proponents .6 But here there existed an amicable relationship between the Union and Respondent. It is simply unbelievable that Wat- son would risk his job and Respondent would jeopar- dize this relationship by doing what the Administra- tive Law Judge and the majority say that they did. The majority members, as did the Administrative Law Judge, have rejected Respondent's explanation for the October 8 layoff. In doing so they have, in my opinion, ignored relevant evidence which supports Respondent's defense that the layoffs were not moti- vated by an intent to retaliate for the unprotected walkout. Johnson testified that employment at the project where the layoffs occurred has fluctuated, that there were numerous times when employees were laid off as work slackened and then were re- called as work picked up, that he had discussed lay- offs with Watson before October 8,1 and that he and Watson had decided that six men should be laid off with Watson selecting the individuals to be laid off. Johnson also testified, as did Watson, both without contradiction, that at the September 16 meeting with Beard to settle the walkout of the previous day John- son told Beard that there was going to be a layoff because the job was winding down. Johnson further testified again without contradiction that he had in- formed the Union's business agent at Texarkana to the same effect that afternoon.' Respondent laid off six employees at the Monticel- lo jobsite on October 8. On October 23, it transferred one of the cadre or permanent employees from the River Crest project, 20 miles from Monticello, to the Monticello project; on October 27 it transferred an- other; and on November ' 11, two more. These were the only additional painters placed on the Monticello project payroll after October 8. Moreover, three other painters at Monticello were laid off in January 1976. It is obvious from this bare recital of the facts of hiring and layoff that there was less work after October 8 than there was before, and justified a, layoff of some employees. The majority states, however, September 15 walkout The petition accused Watson of favoritism to his son and another employee making layoffs, including the layoffs of October 8. The petition which Tipton circulated and was given to him by Bass did not state that the October 8 layoffs were unjustified, but only that Watson's son and the other employee should have been laid off first.' 6 Interestingly, the complaint does not , allege that the layoffs of the non- participants in the September 15 walkout were unlawful. Johnson said he had first raised the question of layoffs in July but Watson persuaded him at that time not to make the layoffs because Watson wanted to get more of the outside work completed before the onset of anticipated bad weather. b Beard, who was called as a witness by the General Counsel, testified that he could not remember whether Johnson had mentioned the possibility of a layoff at the September 16 meeting , although he "might have ." The General Counsel did not call the Union's Texarkana business agent to controvert Johnson's testimony as to what he told the agent about a layoff. RICHARDSON PAINT COMPANY 677 that because Respondent had a number of other projects going in Arkansas, Texas, and Oklahoma Respondent should have transferred the River Crest employees to one of those other projects rather than to the Monticello project and presumably make work for four of the six laid-off employees. The failure to do so, according to the majority, shows that econom- ic reasons did not justify the October 8 layoff. I can- not follow that reasoning. Respondent completed its work at the River Crest project in. late October and early November. Four of the employees at this project were regular or cadre employees and had to be placed at another project. The laid-off employees at the Monticello project were not considered regular employees. It seems to me to be a perfectly reasonable decision to assign the River Crest regular employees to the Monticello project which was only 20 miles away rather than assign them to a project hundreds of miles distant in order to recall the laid-off temporary employees, sev- eral of whom, according to the Administrative Law Judge, were not particularly satisfactory employees. Assignment of the River Crest project employees to the Monticello project-would presumably not require relocation of the employees and therefore would be a convenience to them and to Respondent. I certainly do not believe that this assignment of cadre employees proves that the layoffs of October 8 were retaliatory. Accordingly, I dissent from the finding that the layoffs were violative of Section 8(a)(1). ment or, if those positions no longer exist, to substantially equivalent positions without preju- dice to their seniority or other rights or privi- leges. WE WILL make the above-named employees whole for any losses they may have suffered as a result of our having laid off or discharged them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the National Labor Relations Act. RICHARDSON PAINT COMPANY DECISION STATEMENT OF THE CASE JAMES L. RosE, Administrative Law Judge: This matter came on for hearing at Mount Pleasant , Texas, on Febru- ary 17 and 18, 1976, upon the Regional Director's com- plaint alleging, in general terms, that Richardson Paint Company had laid off and/or discharged four of its em- ployees in violation of Section 8(a)(1) of the National La- bor Relations Act, as amended, 29 U.S.C. § 151, et seq., because they had engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection. At the hearing the complaint was amended to include also a threat of discharge as an independent violation of Section 8(a)(1). Upon the record as a whole, including my observation of the witnesses, and briefs and arguments of counsel, I make the following: APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT lay off or otherwise discriminate against any of our .employees because they, for their mutual aid and protection, engage in con- certed activities which we have condoned and WE WILL NOT discharge or otherwise discriminate against employees because they, for their mutual aid and protection, engage in protected concert- ed activity. WE WILL NOT threaten our employees with dis- charge should they engage in concerted activity for their mutual aid or protection. WE WILL offer Billy J. Bass, Danny Bryant, Jack Bolling, and Keith Tipton their former or substantially equivalent positions of employ- FINDINGS OF FACT I. JURISDICTION Richardson Paint Company, Incorporated, is a Wiscon- sin corporation doing business in several States including Texas, where, among other projects, it is engaged in the business of painting a power plant currently under con- struction-the Monticello Steam Electric Station. During the 12-month period preceding issuance of the complaint, Respondent purchased and received materials and machinery at the Monticello Steam Electric Station project directly from points outside the State of Texas in excess of $50,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Painters and Allied Trades and its Local 459 represent employees' employed by Re- spondent at its Monticello facility. It is admitted, and I 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find, that International Brotherhood of Painters and Allied Trades and its Local 459 are now, and at all times material have been, labor organizations within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Factual Situation Respondent's first employee, General Superintendent Lem Watson, came on the Monticello project in the spring of 1972. At that time little had been done beyond a hole in the ground having been dug. Steel for construction of the first unit was beginning to arrive on the job as was certain heavy construction equipment. From then to the present, Respondent has had employ- ees working at the project in varying numbers depending on how much work was ready. Thus the work of painting the steel as the power plant units" are erected, while fairly steady, does have some peaks and valleys. This means that sometimes more rank-and-file employees are required than at others. When the work becomes slack, employees are laid off. Respondent and the local painters union entered into a contract in 1972 to cover the work to be performed by the Respondent at the Monticello project. This contract in- cluded a wage scale, a grievance procedure, but did not include how the Company would go about selecting em- ployees for layoff. This power plant, I gather from the testimony, is gigan- tic. It consists of three units, each of which has a steam turbine more than 200 feet high. Some of the paintmg'is done while the steel is still on the ground. However, much is done after erection. Such requires the painters to climb up the steel columns and-to crawl out on the beams, hold- ing on while painting, sometimes as much as 200 feet above ground. This work was referred to by one witness as "hairy." Indeed, Bill Bass, who is named in the complaint, stated that in 1973 he was laid off for about 8 months because the only work available was high work and he was not at that time psychologically equipped to- do it. He subse- quently was rehired and apparently has been able to work high. In any event, construction has progressed through the completion of the first unit. The second unit is almost fin- ished; and the third unit is currently under construction. During the final phases of construction, the steam tur- bines are put through a process for a period of 2 to 3 weeks called the "blowdown." During construction, residue mate- rial gets into the turbines which has to be removed before they- can be operated. To accomplish this, air under high pressure is forced through the turbines blowing the residue out. Such is done to the accompaniment of a tremendous noise. The vibration created is sufficient to cause the struc- ture to rock and cause employees who are working at the construction site to cup their hands over their ears, in the absence of wearing ear protection. Everyone who testified stated that these blowdowns are so noisy that ear protec- tion is necessary. There is nothing in the collective-bargaining agreement requiring the Company to furnish ear protection, which the Respondent did not do, although requested to on a number of occasions by employees. It does appear, however, that employees of other employers were furnished ear muffs and other ear protection devices. There is credible testimony that it is particularly danger- ous if one is out on a beam when an unannounced blow occurs. One holding onto a beam cannot very well cup his hands over his ears. When such happened, the individual caught would just have to suffer for several minutes. On a number of occasions, employees did ask Lem Wat- son, the general superintendent, to furnish them ear protec- tion during the blowdowns, the most recent of which was the number two unit in July 1975. It is undenied by Watson that he refused to furnish the requested ear protection. He said that such was not re- quired and, in any event, the employees would have left the protective devices at home and would not have them when needed. Thus, during the blowdowns of units one and two, particularly unit two in July 1975, the employees asked that they be furnished ear protection and were not. (Some fash- ioned earplugs from electrical wire ends and still others got swimming-type earplugs.) Then it,happened, according to Watson at least, that in July 1975, he and a, new supervisor, Leath, determined to have the employees, wear identification buttons with num- bers on them. Watson said the principal reason for this was that Leath, being a new man on the project, did not know the employees, and buttons would be helpful in identifica- tion. The buttons were ordered in July but did not come until some time in the early part of September. Even though by that time Leath had been on the project approx- imately 2 months, it nevertheless was determined to have the employees wear the identification buttons. And such is not an uncommon practice on construction projects. When the buttons arrived, a number of employees, all of whom were on the same crew, concluded among them- selves that inasmuch as Respondent had refused to furnish ear protection because it was not required to do so by the contract, they would refuse to wear the identification but- tons also because to do so was not required by the con- tract. The employees' determination in this respect apparently made its way back to the Company, but there was no con- frontation on this point until September 15. On that day, J. D. Johnson, the southwest division superintendent of the Respondent, was at the project. At a supervisor's meet- ing, among other things, the question concerning the wear- ing of these buttons came up and while there is some con- flict in the testimony, it does appear generally that Johnson said, in effect, that if Watson ordered employees to wear the buttons, they must do so. If they did not, they would be discharged. Crew Foreman Buddy Pate said something to the effect that all of the employees who were refusing to wear the buttons were in his crew and that he would tell them what Johnson said. He left that meeting and went to his crew. He told them that Johnson had said they would either wear the buttons or "hit the gate." The employees apparently took this to be an either-or RICHARDSON PAINT COMPANY 679 ultimatum on the part of the Company, and 10 of the 12 men present on the crew went to the change shop and changed clothes. The parties are in general agreement that at this time Lem Watson asked (he said begged) them to go back to work. They stated generally that they would not wear the numbered identification buttons but would be willing to go back to work. At the hearing Johnson took the position that the em- ployees had quit when they left the work area. The employ- ees, on the other hand, stated that they were discharged by the Company for having refused to wear the identification buttons. Regardless of the semantic distinctions, it is clear that, on the afternoon of September 15, there was a confronta- tion between the employees of Buddy Pate's crew and the Company concerning whether they had to wear the identi- fication buttons. It is further clear that these employees' refusal to wear the identification buttons was concerted and, in part at least, grew out of their unhappiness over the Company's failure to furnish appropriate ear protection devices. Whether the employees quit or were discharged is not a material issue in this matter.' Whether they engaged in protected, concerted activity is material, and I find they did. Without question, the dispute here could have been more nicely handled. However, as sometimes happens on construction projects, particularly with employees who are not of the employer's regular ca- dre, disputes arise which are not as well handled as would be hoped. In any event, the employees had a very legiti- mate concern involving the lack of ear protection, to which the Company,did not respond in any appropriate fashion. While the employees might have taken the matter through the somewhat sketchy grievance procedure in the contract, they at least made an attempt to discuss it with supervision on a number of occasions through Bass, thejob steward at the time. (Bass was replaced on September 16 for reasons unstated .) The matter of ear protection was a sometime thing, with the blowdown of unit two having been completed in July 1975. Thus ear protection was not a pressing problem, particularly in September. Nevertheless, when the matter of the buttons came up, to refuse to wear the buttons was their way of protesting the Company's re- fusal to furnish ear protection and an effort to force the Company to furnish protection in the future. Therefore I find it was protected, concerted activity for the employees' mutual aid and protection and was protected by Section 7 of the Act. Following the events on September 15, the Union's local business agent and international representative were con- tacted. On the night of September 16, the international rep- resentative met with Johnson, and a solution was worked out whereby the employees would wear the buttons, the Company would furnish ear protection, and the employees would return to work but would not be cocky about it. Apparently the Company was very interested in some kind of a face-saving agreement, and was concerned that the i They returned to work 2 days later. There is no allegation of an unlawful discharge for which backpay would be due. On the other hand, Respondent does not defend the allegations here by claiming that the employees struck in breach of contract returning employees not brag about the fact that they had beaten the Company. Johnson also promised that the em- ployees would not be retaliated against. Johnson testified that, at his meeting with the interna- tional representative, he said there was going to be a layoff in the near future. He further testified that he had been suggesting to Watson since early spring that they prepare for a layoff. The layoff came on October 8, 1975. At that time two employees from Taylor's crew, one from Bernetti's crew, and three from Pate's crew were picked for layoff. The three employees from Pate's crew, Bass, Bryan, and Boll- ing, are alleged in the complaint to have been discharged because of their participation in the September 15 events. There are no allegations of unfair labor practices as to the other three. In its answer the Company averred that Bass, Bryan, and Bolling were not discharged, but were laid off-and "are subject to recall should Respondent require additional em- ployees.at some future date." There is testimony that some employees who were kept after October 8 were not as good employees as Bass, Bryan, and Bolling. On the other hand, company witnesses testified that there were good and sufficient business rea- sons for picking these particular three for layoff : Bass was not a particularly good worker; Bryan, while having the capacity to do outstanding work, had difficulty getting along with supervisors; and Bolling missed a great deal of work. On the morning of September 9, Bass met employee Tip- ton at the plant gate. Bass had a petition which contained some fairly uncomplimentary statements about the Com- pany and the manner in which the layoff was handled. Bass asked Tipton to take this petition and, if he agreed with it, to sign it and ask other employees to sign it. Tipton did so. He passed the petition around among his crew at the 10 a.m. break. Then at the noon break, between 12 and 12:30 p.m., he left his work area and passed the petition among other crews. That afternoon he was called in by Watson who said he had heard that Tipton was passing out a petition and asked to see it. Tipton stated that he was not able to, get enough signatures and had destroyed the petition, although in fact he had not done so. In any event, at that time Watson fired Tipton and gave him a slip which stated he was being dis- charged for "instigation among the crews." Watson testified that Tipton violated company policy by leaving his work area at noon. However, he admitted that the principal reason for the discharge was because Tipton had sought signatures on the petition. In the latter part of October, or about 3 weeks after the layoffs, four employees of the Company from another proj- ect were brought in to work on the Monticello project. Johnson testified that these men were regular employees of the Company who were willing to work anywhere the Company wanted them at any time, .as opposed, appar- ently, to the local union members who would not travel for the, Company from job to job. Johnson further stated that, in his southeast division at that time, there were seven or eight projects going which required the use of painters. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Analysis - 1. The layoff Although Johnson and Watson testified that they had discussed the need for a layoff, according to Johnson as early as July and, according to Watson as early as March, it was not effectuated until October 8. Periodic layoffs are common in this industry. And, of course, the Company has a right to lay off whomever it wishes, whenever it wishes, with or without good business reasons. It cannot, however, so structure a layoff as to violate the Act. Thus the question here is whether the layoff itself was in retaliation for the employees having engaged in protected, concerted activity or whether the particular selection of employees to be laid off was because of their participation. If, either is the case, then the Company thereby violated Section 8(a)(1). Cf. Helrose Bindery, Inc., and Graphics Arts Finishing, Inc., 204 NLRB 499 (1973). Analyzing each employee by himself, it is my conclusion that his particular involvement in the September 15 events was not the reason he was selected for layoff. That is, once determining to lay off employees, it seems as reasonable'to have picked the three from Pate's crew that Watson picked as to pick any other three. With the possible exception of Bass, they do not stand out in their participation or as leaders. And from their testimony, as well as my observa- tion of the demeanor of each, the Company would seem justified in its selection. On the other hand, from the totality of the evidence, it is my conclusion that the precipitating cause of the layoff in October 1975 was because the employees had engaged in the September 15 activity. I discount Watson's statement that he had been pres- sured by Johnson to lay off employees prior to that time, although I am convinced that the question of whether the Company has too many men on a job is a'matter of contin- uing concern. However, there is no evidence that as of Oc- tober 8, 1975, there was a business reason to lay off 6 of 30 employees. There is no evidence of a reduced amount of work required to be done. And of particular significance, within 3 weeks after the layoff, the Company transferred four employees from other projects to the Monticello proj- ect. Johnson tried to explain this by saying that these were four cadre employees and presumably the Company had to make room for them in order to keep them employed. However,-there were seven or eight other projects to which they could have been transferred. Further, neither Watson nor Johnson said that the six were laid off specifically so that these four could have jobs. To the contrary, Watson testified that'the six were laid off because there was not enough work for' them. It is noteworthy that Watson testi- fied that he keeps the work lined out months in advance; yet, within 3 weeks of the layoff four employees were added. I do not believe the Company's manpower require- ments fluctuated so much in such a short time. Given the timing of the layoff, the total lack of credible evidence of business reasons for it at that time, plus the fact that four employees were brought in from another project, lead me to the inescapable conclusion that the layoff itself was motivated by a determination on the part of company agents to retaliate against employees for hav- ing engaged in the September 15 activity. This conclusion is inescapable notwithstanding that caught up in the layoff were three employees who had nothing to do with the September 15 events, and not laid off were some employees who did. These facts do, not vin- dicate the Respondent. In addition, there is testimony from Milton Daily, one of the men on Pate's crew. He testified that be talked to John- son on the night of September 16 asking for his job, but Johnson stated that he would not give it back until after he met with the union representatives and settled the dispute. Daily testified that Johnson then said h'e was going to get "the instigators." Comparing their respective demeanor and noting Daily's straightforward testimony, I credit Dai- ly over Johnson and Johnson's denial. I conclude that Johnson's statement shows a determination to discipline employees because they engaged in activity which I find to be protected and concerted. To the extent' Watson testified that the September 15 events had no bearing upon his decision to effectuate the layoff, his testimony is discredited. In discrediting Watson's testimony in this regard, I rely on my observation of his demeanor. It is clear that Watson, intended to "run" the project, and this would not allow for employees refus- ing to wear buttons, or in any other way questioning his decisions through concerted activity. 2. The discharge of Tipton Unrelated to the layoff but tending to'prove that Watson was fully capable of retaliating against the employees for engaging in concerted activity is his discharge of Tipton on October 9. Although stating that there were several reasons for the discharge, Watson admitted that principally he fired Tipton because Tipton had passed around a petition which Watson referred to as "instigation among the crews." Respondent states that there is some kind of a rule against leaving the work area, even on the lunchbreak when the employees are not being paid. But this seems incredible, and there is no real evidence of such a rule, except Watson's testimony. I find that there was no pro- mulgated rule prohibiting employees from leaving their work areas during the noon break. In any event, violation of this alleged rule was not the reason Tipton was discharged. He was discharged for pass- ing around the petition, not on company hours but on breaktime. There appears to be no rule prohibiting this nor could there be. To pass out a petition deploring working conditions which implicitly seeks to improve them is clearly protected, concerted activity. And to be discharged for engaging in such activity is clearly violative of Section 8(a)(1) of the Act. Taylor Instrument Companies, 165 NLRB 843 (1967); McNeill Industries, Inc., 216 NLRB 343 (1975). While fundamentally a different problem from that of the layoffs, in finding that the layoffs were unlawfully mo- tivated I do rely in part on the subsequent activity of the company in firing Tipton for engaging in protected activi- RICHARDSON PAINT COMPANY 681 ty. Given the timing of the discharge with relation to the layoffs, it is reasonable to infer that the Company, through Watson, was predisposed to retaliate against employees for engaging in activity which he concluded was detrimental to his authority. Such is not permissible conduct on the part of an employer if the activity of the employees is protected by Section 7 of the Act. Respondent contends that Tipton's act and the Septem- ber 15 events were efforts by a dissident group of employ- ees to undermine the Union and the collective-bargaining agreement. Even if this would vitiate the otherwise protect- ed nature of the acts here, there is no real evidence to support such a conclusion. While the Union's agents do not seem to have been particularly rigorous in their support of the men, nevertheless I find nothing in passing out the petition by Tipton which would undermine the Union's status as the bargaining representative, or be so serious a threat to stable relations to cause Tipton's act to lose its protected character. The same applies to the events of Sep- tember 15 , when, in fact, union agents were called in and became involved. From the totality of the evidence, including my observa- tion of the witnesses, I conclude that the Company has engaged in the unfair labor practices alleged by laying off employees on October 8, and by discharging Keith Tipton on October 9. exercise of rights guaranteed them by Section 7 of the Act and has thereby violated, Section 8(a)(1) thereof. 4. By advising employees that they would be discharged if they engaged in activity similar to Tipton's, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them by Section 7 of the Act and has thereby violated Section 8(a)(1) thereof. 5. The aforesaid unfair labor practices occurring in con- nection with Respondent's business, described above, are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices within the meaning of Section 8(a)(1), it will be recommended that the Respondent be ordered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER2 3. The threat by Pate Pate testified that, when Tipton was discharged, Watson told Pate to tell his men, in effect, that anyone else "insti- gating" would be fired. And Pate did so. Without objec- tion, the complaint was amended to include this as a threat in violation of Section 8(a)(1). This order by Watson is undenied. As I find Tipton's activity protected, it necessar- ily follows that Pate's statement to employees on Watson's instructions is a threat of discharge should employees en- gage in protected activity. It is therefore violative of Sec- tion 8(a)(1), without regard to Pate's particular status. Even though he had aligned himself with his men throughout this dispute, he nevertheless was a supervisor, and reason- able conduit for such instructions . I need not find Pate to be a member of management to find that he acted on Watson's instructions, and thereby the Respondent vio- lated Section 8(a)(1). CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. By laying off employees on October 8, 1975, and fail- ing and refusing to reinstate them, because employees had engaged in protected, concerted activity on or about Sep- tember 15, 1975, Respondent has interfered with, re- strained, and coerced employees in the exercise of the rights guaranteed them by Section 7 of the Act and has thereby violated Section 8(a)(1) thereof. 3. By discharging employee Keith Tipton on October 9, 1975, because he passed around a petition , Respondent has interfered with, restrained, and coerced employees in the Respondent, Richardson Paint Company, Mount Pleas- ant, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off or discharging employees because said employees have engaged in or are engaging in protected, concerted activity for their mutual aid or protection. (b) Threatening employees with discharge should they engage in protected, concerted activity for their mutual aid or protection. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Reinstate to their former or substantially equivalent positions of employment Billy J. Bass, Danny Bryant, Jack Bolling, and Keith Tipton, and make them whole for any losses suffered by them as a result of the discrimination practiced against them in accordance with the provisions of F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (b) Post at its Monticello facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 16, after having been duly signed by an authorized representa- 2In 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 the 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. 3 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive of the Respondent, shall be posted by the Respondent spondent to insure that said notices are not altered, de- immediately upon receipt thereof and maintained by it for faced, or covered by any other material. 60 consecutive days thereafter, in conspicuous places, in- (c) Notify the Regional Director for Region 16, in writ- cluding all places where notices to employees are custom - ing, within 20 days from the date of this Order, what steps arily posted. Reasonable steps shall be taken by the Re- have been taken to comply herewith.