Painter Tool, Inc.

National Labor Relations Board - Board Decisions

May 8, 1978

235 N.L.R.B. 1468 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Painter Tool, Inc. and Gregory Spridik. Case 6-CA-
10245
May 8, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
TRUESDALE
On January 12, 1978, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in opposition to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Painter Tool, Inc., its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph l(b):
"(b) Discharging employees for engaging in pro-
tected concerted activities for mutual aid and protec-
tion with respect to wages, hours, or other terms and
conditions of employment."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance 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 his findings.
2 We shall modify the recommended Order and notice of the Administra-
tive Law Judge to conform more closely with the nature of the violation
found concerning the discharge of employee Spridik.
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 participated, it
has been found that we violated the National Labor
Relations Act in certain respects and we have been
ordered to post this notice and to carry out its terms.
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT threaten employees with dis-
charge, blacklisting, or plant closure for engaging
in union or other activity protected by Section 7
of the National Labor Relations Act.
WE WILL NOT discharge employees for engaging
in protected concerted activities for mutual aid
and protection with respect to wages, hours, or
other terms and conditions of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7 of
the Act.
WE WILL offer immediate reinstatement to
Gregory Spridik, without loss of seniority and
other benefits, and WE WILL make him whole for
any loss of earnings he may have suffered by
reason of our discrimination against him, plus
interest.
PAINTER TOOL, INC.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This
proceeding was heard in Pittsburgh, Pennsylvania, on
October 18, 1977, on an original unfair labor practice
charge filed on May 25, 1977, and a complaint issued on
July 28, 1977, which, as subsequently amended, alleges that
Respondent independently violated Section 8(a)(1) of the
National Labor Relations Act, as amended, by variously
threatening employees with discharge, a cessation of
operations, and blacklisting in reprisal for union activity,
and violated Section 8(a)(3) and (1) of the Act by
discharging Gregory Spridik in reprisal for his protected
235 NLRB No. 202
1468
PAINTER TOOL, INC.
concerted activity and/or his efforts in support of union
representation.
In duly filed answers, Respondent denied that any unfair
labor practices were committed. A posthearing brief was
filed on behalf of the General Counsel.
Upon the entire record in this proceeding, including
observation of the witnesses and their demeanor while
testifying, and upon consideration of the posthearing brief,
I find as follows:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Pennsylvania corporation with a place
of business in North Huntingdon, Pennsylvania, from
which it is engaged in the manufacture and nonretail sale
of precision machined products. During the 12-month
period preceding issuance of the complaint, a representa-
tive period, Respondent in the course and conduct of said
operation shipped goods valued in excess of $50,000 from
its Pennsylvania facility directly to points outside the
Commonwealth of Pennsylvania.
The complaint alleges, the answers admit, and I find that
Respondent is now, and has been at times material herein,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. CONCLUDING FINDINGS
The issue of fundamental concern in this case is whether
Respondent terminated Gregory Spridik for reasons pro-
scribed by the Act. Otherwise the complaint includes
independent 8(a)(1) allegations which, with a single excep-
tion, relate to statements imputed to Respondent's ac-
knowledged agents either contemporaneous with or after
said discharge was effected. The sole exception concerns an
alleged threat on the part of one Daniel Painter, whose
status and capacity to bind Respondent is in issue, and
who is alleged to have made the unlawful statement about
a month before Spridik's termination.
Respondent operates a small machine shop from which it
manufactures customized parts both for commercial users
and as a vendor to prime contractors engaged by the
United States Department of Defense. Said operation is a
closely held family venture, headed by Logan Painter, its
president. The four sons of the latter are in the employ of
Respondent, with Dave Painter, a vice president and office
manager, Roger Painter, treasurer and shop foreman, and
Terry Painter, secretary and general manager. The fourth
son, Daniel Painter, is but 20 years of age and, at the time
of the events here in question, had been employed as a
toolmaker apprentice for almost 2 years. There was no
history of union representation for any of Respondent's 29
employees, some 20 of whom were engaged in actual
production operations, with the balance engaged in inspec-
tion and office activity.
I Unless otherwise indicated all dates refer to 1977.
2 These standards, though internal, were required of all vendors by the
Government.
Spridik occupied the position of manufacturing engineer,
and had been employed in that capacity from July 12,
1976, until his termination on May 18, 1977. As such,
Spridik's duties included the review of all contracts and the
preparation of procedures enabling the production of
components, which apparently was a necessary preliminary
step to assure that a specialized component under order
could be adapted efficiently within the Respondent's
production process.
The critical events to an assessment of the issues involved
in this proceeding begin with the resignation from Respon-
dent's employ of another individual, Larry Thornton, on
March 25, 1977.1 Prior to his resignation, Thornton had
been Respondent's quality control manager, and possessed
responsibility for the overall quality control and inspection
functions. Thornton, despite his resignation, sought unem-
ployment compensation, apparently on the theory that his
resignation was forced by action of the Painters, so as to
constitute a constructive discharge. The Company opposed
said claim on grounds that Thornton had quit, and that he
was welcome to return, since a job was available for him.
A hearing in that matter was held before the referee's
board of unemployment compensation on April 29. Seven
of Respondent's employees appeared at that hearing to
afford testimony in support of Thornton. Attending the
hearing on behalf of the Company were Terry and Logan
Painter.
Spridik credibly testified that he instigated the appear-
ance of the six other employees on that occasion. I find
that the Painters were mindful of this or, at the least, had
reasonable grounds for believing that such was the case. In
this regard I note that, prior to his resignation, Thornton
worked in the same immediate area, and collaborated with
Spridik on certain projects. In addition Spridik transported
the six employees to the hearing site in Spridik's car, a fact
which could not have gone unnoticed by Logan and Terry
Painter. He was the first to testify for Thornton, asserting
generally that Thornton was forced to resign, when
overruled by Roger Painter, while resisting release of
particular material for manufacture as a vendor under a
Government contract, which material allegedly neither met
the prime contractor's "buy-America" stipulation, nor
satisfied Respondent's internal quality control standards. 2
At one point in said hearing, after Logan Painter indicated
that Respondent was willing to employ Thornton, Spridik
countered that Thornton had no alternative but to resign in
view of the fact that any member of the Painter family
could at any time supersede Thornton's authority and
violate the quality system. To this, Logan responded,
"Well, I don't know here... It looks like Greg's trying to
start something." 3
At the close of the unemployment hearing, the seven
employees returned to work. That afternoon, after lunch,
Michael Betters, one of that group, engaged Daniel Painter
in a conversation in which he asked Daniel if the latter's
family was mad because employees had testified for
3 Based on the credited, uncontradicted testimony of Greg Spridik.
1469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thornton. In response, Daniel Painter stated that those
who attended would be fired within 6 months.4
That same day Betters approached Roger, Terry, Logan,
and Dave Painter in an apparent attempt to smooth over
the action of the employees on behalf of Thornton. In that
conversation, Betters asked Terry Painter if he would fire
anybody for testifying. The latter indicated that he had no
plans to do so. Logan Painter indicated to Betters that he
did not feel that the employees were really testifying to help
Thornton but he felt that Betters and Spridik "saw a
chance to hurt the Company and. . . took it."
Spridik was terminated on Wednesday, May 18,5 in the
course of a 45-minute harangue, variously participated in
by Roger, Terry, and Dave Painter. In its answer Respon-
dent asserts, inter alia, that in the course of this incident
"Respondent discharged Gregory Spridik because of his
refusal to carry out a work assignment to bring work
production charts up to date after repeated requests to so."
The confrontation in question was initiated with Roger
Painter approaching Spridik at his desk after lunch that
afternoon. Roger Painter told Spridik to revise a procedure
on a commercial job originally prepared by Spridik but not
on a sufficiently detailed form. Spridik indicated, "I'll do it,
but I can't do it right now. . . I have certain other things I
have to do first, but I'll get it later." Roger Painter replied,
"Well, if you spent more time doing your work instead of
bullshitting all the time, then you'd have time to do these
things." To this, Spridik replied, "Well, if you'd be more
concerned with yourself and your own job instead of me
and my job, we'd all get along a whole lot better here."
At this point, David Painter entered the conversation
and apparently supported Roger's instruction that Spridik
revise the procedure immediately. Spridik indicated that he
would do it, but other priority items had to be completed
first. Roger then said, "That's all you ever say is later, later,
I'll do it later."
The discussion then turned to the production control
sheets. Parenthetically, it is noted that the production
control sheets are designed to carry entries which enable
determination of the various stages of production that a
particular component is in. When up to date, they provide
a ready source of information useful in responding to
inquiries by customers as to when a particular job will be
completed and shipped, and enabling assessment of de-
mands on the production process at a particular time,
thereby aiding production planning. As of May 18, Spridik
had performed no work on the production control sheets
since late February.
In injecting this issue, Roger first asked about the
production control sheets, and then started looking for
them on Spridik's desk. Spridik told him that they were not
on the desk, but in the filing cabinet, "where they've been
for the last 3 months." Roger then went to the filing
cabinet, pulled the file containing the sheets, and asked
why they had not been completed. Spridik indicated that
4 The above is based on the credited testimony of Michael Betters.
Betters testified in a straightforward and direct manner and, as an
incumbent employee with 6 years of service, was not likely to fabricate
against the interest of his employer. Daniel Painter admitted to the
conversation in question, but testified that he simply informed Betters it was
his opinion that those who left to attend the hearing, without getting
permission, should be suspended or fired. As between Betters and Daniel
he did not have time and that his workload doubled since
Larry Thornton quit, adding that, since no production
control meeting had been held in 10 weeks, there was no
reason why the sheets should have been prepared. Roger
indicated that he did not care, and that Spridik should do
the sheets immediately. Spridik indicated that he would not
do them immediately, as he had a rush job, with a
commitment to a customer to have a procedure packaged
by the end of the week, as well as two other jobs which had
priority. Spridik added that he would do the production
control sheets after these items were completed. Roger
again indicated that he did not care, stating, "Do them and
do them now!" It is the sense of Spridik's testimony that at
this point the dispute shifted to whether Roger and Dave
Painter had authority over him, with Spridik charging,
"Well, neither of you guys are my boss," going on to state
"that Terry Painter told him when he was hired that he was
responsible to Terry Painter and John Zajac only." 6 David
Painter then replied "Well, we're part owner here, and
what we say goes." Spridik argued back that, if that were
the case, Daniel Painter, as one of Logan's sons, could also
tell him what to do. At this point, Dave Painter told Spridik
to "shut up," called him a "smart alec" and again told
Spridik to do the sheets. Spridik said, "No, I won't do them
right now. I'll do them at a later time." David Painter then
asked Spridik, "Are you refusing to do your work?" and,
after emphasizing to Roger that Spridik was in fact refusing
to do his work, stated, "He's fired." Roger then offered that
David should go ahead and fire him. At this point, Spridik
interjected, "Well, I'm not refusing to do my work."
At this point, Terry Painter arrived, asking what the
problem was. David Painter explained that Spridik was
refusing to do his work in that he refused to fill out the
production control sheets, and he had been fired. Terry
then confirmed that if he refused to do his work he was
fired. Spridik again denied that he refused to do his work.
There is no doubt that even more heated elements
developed as the conversation continued. Nonetheless, in
pausing at this point, it is noted that, of the various
witnesses to testify as to the later phases of the encounter,
their testimony is so fragmentary and marked with conflict,
even internally on both sides, that analysis of what
subsequently occurred does not present the simplest of
tasks. Indeed, it is perfectly understandable that with
respect to a heated exchange, such as this was, lasting for
some 45 minutes, the participants would have difficulty
recalling with precision and relating with objectivity what
actually transpired.
With respect to Spridik although all of his testimony was
not deemed reliable, the foregoing aspects of his account
struck me as entirely probable and believable. On the other
hand, contrary to Spridik, I find that his position through-
out the confrontation was that he would complete the
production control sheets only after eliminating other
priority matters. I find that he maintained this position
Painter, I regarded the former as more reliable and find that the threat was
direct and broadly stated, as he indicated.
I After the Thornton hearing on April 29, Spridik took his vacation
during the first week in May.
6 Terry Painter did not refute Spridik's testimony that such a statement
was made at the time of Spridik's hire.
1470
PAINTER TOOL, INC.
even when instructed by Terry Painter to update the sheets
immediately.7
With respect to the terminal segments of the incident, I
also discredit the impression created by the testimony of
Spridik and Gigliotti that certain expressions of animus on
the part of Terry and Roger Painter preceded his actual
discharge. Instead, I find it was not until Spridik realized
the finality of Terry Painter's decision to confirm the
discharge that he took the offensive and referred vengefully
to the discontent of employees, while threatening that
"they" were going to contact a union representative.
Nonetheless, I do find that Terry Painter reacted angrily
thereto, yelling that Spridik "get the f- out of here." Roger
also injected, "Yeh, you bastard," with Logan Painter
informing Spridik, "You'll never live to see a union come
into this place." After Spridik replied, "Maybe you won't
either, Logan," David warned, "Don't talk that way to my
father." Logan then left the room. Terry then stated, "I'll
shut down the plant and put a padlock on the door before I
ever let a union come into this place," going on to state,
"Nobody will have a job here .... Me and the family,
we'll work here, and none of you people will .... We did
it before and we can do it now."s
Based on the foregoing threats of plant closure, I find
that Respondent violated Section 8(a)(1) of the Act. The
threats were expressed in an office area which housed the
normal work stations of some nine employees and, in
addition to Gigliotti, who attested to the threats, it is also
fair to assume that other employees heard the threatening
remarks uttered by Logan and Terry Painter on that
occasion.
Turning to the discharge issue, it is initially noted that
the record does not support the General Counsel's claim
that union activity was a motivating consideration. The
union animus reflected in the closedown threats emerged in
response to an expression as to the possibility that others
might engage in organization activity, first made by Spridik
after his discharge had become final. Quite plainly, there-
fore, this reference could not in any sense be viewed as a
clear predicate for the termination. Furthermore, the
record affords no reasonable basis for inferring that
I Kenneth Gigliotti, a witness for the General Counsel, testified that
Terry Painter advised Spridik "that if he wasn't going to do the sheets then
to get out." Conspicuously absent from Spridik's original account was any
reference to the fact that Terry Painter instructed him to do this job
immediately. And on cross-examination Spridik attested that, during the
confrontation, the "best offer" he would make was to "do them after I had
the other commitments to the buyers and the rush work to Westinghouse
done." Subsequently, on examination by me, Spridik's testimony underwent
a dramatic shift, with the revelation that, when asked twice by Terry Painter,
he agreed to do the production control sheets immediately. Needless to say
Spridik's testimony in this later regard was unbelievable. Aside from its
implausible nature, it is difficult to imagine how Spridik could have
overlooked so material a concession during his earlier accounts of this
incident.
I The foregoing is based on the credited testimony of Spridik who, at
least as to the threat imputed to Terry Painter, was corroborated by former
employee Gigliotti. Logan and Roger Painter were not called. Terry Painter
was not examined as to this aspect of the case. As for David Logan,
although the issue was not opened by Respondent's counsel during his
examination in chief, the General Counsel elected to do so on cross. In any
event, David Logan confessedly lacked a clear recollection of exactly what
was said and his attempt to designate Spridik as the author of the closedown
statement struck me as argumentative and incredible.
s There is a lack of a consistent ring in the testimony offered by the
General Counsel as to certain aspects of the union activity. Thus, Spridik
Respondent was aware of union activity on the part of
Spridik, or indeed, any other of its employees, prior
thereto. It is true that Spridik and several other employees
previously had discussed the possibility of organizing a
union, going as far as to canvass employees as to their
interest in such a venture. Beyond this, the only action
taken toward that end was an effort by Mike Betters to
contact a brother-in-law who -was a union steward at
Westinghouse. Although Betters indicates that he contact-
ed his brother-in-law, there is no indication that, in
consequence thereof, the scope of the union activity was in
any sense broadened. Thus, the evidence fails to show that,
prior to May 18, the union activity had matured beyond
general discussion as to employee interest. It does not
appear that union authorization cards were ever distributed
or indeed that any specific labor organization had been
identified by any employee as a possible representatives In
the circumstances, I am unwilling to infer that Respondent
knew that such discussions were going on, and I credit the
testimony of David and Terry Painter that at the time of
the discharge they had no knowledge that Spridik was
engaged in union activity. 0
While the proof is unconvincing that union activity
influenced the decision to terminate Spridik, the inquiry
does not end there. For it is a fact that the discharge
occurred shortly after Spridik, with other employees,
appeared as a witness in support of the unemployment
claim of Larry Thornton. As the General Counsel observes,
Section 7 of the Act in defining employee rights includes
among its guarantees the right to engage in "other
concerted activities for the purpose of. . . other mutual
aid or protection." Under established Board policy, efforts
by employees to seek relief affecting terms and conditions
of work through resort to various governmental agencies
constitute activity protected thereby. Furthermore, in the
instant case, the employees who attended the unemploy-
ment hearing had a stake in Thornton's charge made
against the Painters, for the assertion that Roger Painter
had violated governmental specifications and Respon-
dent's quality control system, at least arguably, was in
conflict with the definition of employee responsibilities, as
testified that he first discussed the Union with employees, including Betters,
in January, but indicated that the discussions did not take serious form until
the discharge of Thornton. Spridik claims that he took a poll of employees
to determine who was for and who was against the Union. Betters, on the
other hand, testified that the union activity did not commence until the
April 29 hearing on the Thornton termination. He also testified that he
conducted a poll to determine which employees wanted the Union. Gigliotti
agrees with Spridik that union activity was first discussed a couple of
months before Thornton quit, but then goes on to indicate that it was next
discussed after Thornton's hearing. Rocco Capasso agreed with Betters that
the first talk concerning a union occurred at the time of the Thornton
hearing.
t0 In my opinion, no such inference is warranted by consideration of an
incident in early April attested to by Spridik. According to Spridik, as
Spridik was going to the restroom, an employee named Vesley threw up a
clenched fist and laughingly referred to Spridik as a "union steward." At the
time, Rocco Capasso and Daniel Painter were some 20 feet away. Capasso
offered no testmony corroborating or indicating that he heard such a
remark. Even assuming that Daniel Painter was an agent of the Respondent,
the testimony of Spridik in this respect fails to warrant a finding that
Respondent thereby suspected that Spridik was engaged in union activity.
No clear foundation exists for inferring that either Capasso or Daniel
Painter overheard Vesley's characterization of Spridik. Furthermore, were
that not the case, Vesley's remark was communicated in a ludicrous rein,
and was too remote to signal the existence of union activity.
1471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contained in a document which they were required to sign
as a condition of employment." Since the employees acted
in pursuit of the principle that they not be rendered
vulnerable to legal penalties as a result of intervention by
members of the Painter family, under conditions requiring
violation of their stipulations to the Federal Government,
those offering testimony at the Thornton hearing were
clearly engaged in protected activity within the meaning of
Section 7 of the Act.
For the reasons heretofore indicated, Respondent had
every reason to believe that Spridik was the instigator of
the appearance of incumbent employees as witnesses on
behalf of Thornton at the unemployment compensation
hearing. Accordingly, the question remains as to whether
this conduct on his part constituted a substantial motivat-
ing factor in his termination. I find that it was.
Credited testimony establishes that Respondent was less
than pleased with the support offered Thornton through
employees on active payroll status. Spridik, on two occa-
sions on April 29, was specifically referred to by Respon-
dent's president, Logan Painter, as a divisive influence
because of Spridik's efforts on behalf of Thornton. Thus, at
the hearing itself, when Spridik disputed a point made by
Logan, the latter retorted with the comment, "It looks like
Greg's trying to start something." At the close of work on
that same day, Logan Painter, in a conversation with
Michael Betters, expressed the view that Betters and
Spridik were not trying to help Thornton, but "[were]
trying to hurt the Company." Also significant to an
assessment of the actual causation for the May 18 confron-
tation was the conversation, also on April 29, between
Betters and Daniel Painter, wherein the latter stated that
those who attended the meeting would be terminated
within 6 months.' 2 I further find that this remark by Daniel
II See G.C. Exh. 2.
12 1 find that the conduct of Daniel Painter was binding upon the
Respondent and that through this statement Respondent violated Sec.
8(a)X ). This finding acknowledges that Daniel Painter is simply a rank-and-
file employee in the plant, and that he has no managerial or supervisory
status. Nonetheless, in the circumstances, to assume that Daniel Painter was
not privy to all policy and managerial considerations affecting the destiny of
this closely held business is to defy reality. He was a son of Logan, and the
only son who did not have an ownership interest in the business. He was,
however, but 20 years of age, and lived in the home of his parents, which
was located almost adjacent to Respondent's plant. He did not lunch at the
plant with other employees, but did so at home. His sole source of income
was from his employment with Respondent and, quite obviously, his
personal economic destiny would be foretold by the success or failure of the
Company. There is not one scintilla of evidence suggesting that Daniel
Painter held any allegiance with his fellow employees. Accordingly, I find
that Daniel Painter's actions were binding upon the Respondent, and that
Respondent violated Sec. 8(aXl) by his coercive statement to Betters on
April 24. See, e.g., Whiting Corporation, 188 NLRB 500, 501-502 (1971);
International Association of Machinists; Tool and Die Makers Lodge No. 35,
etc. [Serrick Corporation] v. N.LR.B., 311 U.S. 72, 80(1940).
'3 In so finding, I did not believe, and discredit, Daniel Painter's
testimony that his remarks to Betters were an expression of his own opinion.
It is fair to infer that Daniel Painter was privy to discussions with his father
and brothers concerning their attitude towards the work force. Specifically,
Daniel Painter admits that, prior to his conversation with Betters, he
discussed with his brother Roger the fact that the employees had left the
plant to attend the hearing. It was my impression that Daniel Painter was
not entirely candid in revealing the content of this conversation. It will be
recalled that Roger Painter was cited by Thornton as having provoked the
latter's resignation. Although Daniel Painter did relate that Roger's puzzled
look suggested that the seven employees left without permission, his overall
testimony as to the concern expressed on that occasion by Roger struck me
Painter was a binding expression of Respondent's hostility
toward the employees who participated in the unemploy-
ment compensation hearing.'3
As for the events of May 18, the conduct of Spridik is not
to be condoned. At the same time, however, the guarantees
afforded by Section 7 of the Act are not so elusive as to
render employees remediless where their misconduct is
provoked by irrational management directives motivated
by a hostility towards the exercise of statutory rights. On
the totality of the credible evidence, I am convinced that
Roger Painter, who, as will be recalled, was obviously the
villain in Thornton's theory as to the circumstances
provoking his resignation, incited the entire incident out of
resentment held by himself and the Painters generally
towards Spridik's challenge to their authority evident from
his support of Thornton's claim.
In so finding, it is noted that Terry Painter conceded that
Spridik held an important position and, from the descrip-
tion of his duties, his job appears to have required the
exercise of independent judgment, based on a knowledge
of materials, an understanding of Respondent's production
capacity, including the utility of its equipment, and the
needs of customers. After his termination, Respondent did
not hire a new employee to replace Spridik but, instead,
David Painter took over his duties.
Prior to the May 18 incident, it does not appear that the
Painters voiced any complaints concerning the quality of
Spridik's work or the volume of his output. Indeed, in
March, although Spridik was criticized by Terry Painter
because of his record for lateness, he received a wage
increase and was complimented on his work."
Thus, the sudden dissatisfaction with Spridik's output
expressed by Roger Painter at the outset of the May 18
confrontation, insofar as this record discloses, was without
as a deliberate attempt on Daniel's part to mitigate the anger expressed by
his brother. I think it entirely possible that the threat which Daniel Painter
related to employee Betters, after the latter's return from the hearing, found
its origin in the earlier conversation with Roger.
14 That Spridik was a good worker with an acceptable output seemed
confirmed by his adverse record for punctuality. Uncontradicted evidence
establishes that, since the inception of his employment until the April 29
unemployment hearing, Spridik developed a regular pattern of lateness,
being on time generally only once per week. Despite this record of tardiness,
and the additional fact that Spridik left early, and in completing his
timecards customarily did so to reflect a full 8 hours' work, it does not
appear that Respondent expressed dissatisfaction with his lateness until
Terry Painter did so in March 1977, while giving Spridik a 5-percent
increase and otherwise complimenting him on his work performance. It is
difficult to imagine that management would condone such an attendance
record, except in the case of an otherwise productive worker whose output
was of satisfactory quality and volume.
In its answer to the complaint, Respondent indicates that Spridik was
discharged because of his refusal to bring the production charts up to date,
but also refers to Spridik's poor attendance record and falsification of time
records. I am satisfied that these later adversities had nothing to do with the
discharge. Spridik testified credibly and without contradiction that he was
not late on a single occasion after his appearance at the April 29
unemployment hearing. Although Terry Painter made some attempt to link
the May 18 confrontation with Spridik's history of tardiness, his testimony
was vague, seemingly contrived, and unworthy of credence. During the May
18 incident, despite its length, no evidence whatever was offered acknowl-
edging that any participant made reference either to Spridik's lateness or the
manner in which he maintained his time records. In the circumstances, the
latter struck me as no more than a makeweight, offered to debase Spridik,
and in every sense these shortcomings on his part were collateral to the
considerations prompting his discharge.
1472
PAINTER TOOL, INC.
precedent. Yet Roger Painter did not testify, and there is
no probative evidence establishing that he ever previously
instructed Spridik to complete the production control
records. There also is no explanation as to why these
records, not having been completed since late February or
early March, suddenly became a priority item.'5
The credited evidence convinces that Spridik was a good
worker, who knew and understood how to effect the
Company's interest within the area of his responsibility.
His position on May 18 in reaction to Respondent's
insistence that he immediately drop what he was doing,
ignore the commitments to customers he had made on
behalf of the Company, proceed to a task which was not
time critical but relegated to abandon for some 3 months,
served no apparent personal interest of Spridik and
obviously was a stance highly compatible with the interests
of the Company. On the other hand, the posture of the
Painters seemed irrational, counterproductive, and born of
a disposition to harass, at the expense of business judg-
ment.'6 In my opinion, considering the animus expressed
toward those involved in the Thornton case, I am persuad-
ed that the instruction concerning the production control
sheets was first raised by Roger Painter in acrimonious
assault upon Spridik, provoked by the former's resentment
of Spridik's support of Thornton's claim, a claim which
portrayed Roger Painter as the violator of both the quality
system invoked at governmental insistence and stipulations
required of Respondent in performing under Government
contracts. Being convinced that Spridik's behavior on May
18, which triggered his discharge, was deliberately pro-
voked by Roger Painter, and later supported by his
brothers David and Terry, either out of an interest in
harassment or a hope that Spridik, like Thornton, would
quit or react in a manner warranting his discharge, I find
that Spridik's response to this hostile assault on his exercise
of statutory rights did not remove him from the protection
of the Act. Instead, I find that Spridik, who was regarded
as a productive, competent, and responsible performer
until he affronted the Company through his protected
concerted activity, was discharged less than 3 weeks later,
and after Respondent's hostility to employee support of the
Thornton claim had become manifest, in violation of
Section 8(a)(1) of the Act.' 7
1s Terry and David Painter testified that, several times prior to May 18,
Spridik had been asked to update the production control sheets. Terry
Painter referred to a memo, which he suggested that he possessed but which
was not offered in evidence, indicating that Spridik was asked for a status
report on a particular job, which the production control sheets did not
reflect, and that this prompted a second request that Sprdik bring these
documents up to date. On the other hand, Spridik testified that he was not
asked to do any work with the production control sheets between the end of
February and the date of his discharge. As between Spndik and the Painters
in this instance, I believed the testimony of the former. It is the sense of
Terry Painter's testimony that the maintenance of the production control
sheets was of continuing importance and no different on May 18 than at any
previous time. It strikes me as implausible that if Spridik, on earlier
occasions, had been amiss in failing to adhere to instructions to bring those
documents up to date, Respondent would have tolerated it, and neglected to
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent violated Section 8(aX1) of the Act by
threatening employees with plapt closure if they designate
a union as their exclusive bargaining representative, by
threatening them with discharge and blacklisting because
they engage in activity protected by Section 7 of the Act,
and by discharging Greg Spridik on May 18, 1977, in
reprisal for his protected concerted activity.
3. The unfair labor practices found above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom, and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Respondent having unlawfully discharged Gregory Spri-
dik, it shall be recommended that Respondent offer him
immediate and full reinstatement to his former position or,
if said position no longer exists, to a substantially equiva-
lent position, without loss of seniority or other benefits,
and make him whole for any loss of pay resulting from the
discrimination against him by payment of a sum of money
equal to the amount he normally would have earned as
wages from the date of his discharge to the date of a bona
fide offer of reinstatement, less net interim earnings. The
backpay due under the terms of the recommended Order
shall include interest to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).'1
As the unfair labor practices committed by Respondent,
particularly the act of discrimination, strike at the heart of
the Act, a broad cease-and-desist order shall be recom-
mended, precluding Respondent from "in any other man-
ner" interfering with, coercing, or restraining employees in
the exercise of their rights guaranteed by Section 7 of the
Act.
Upon the foregoing findings of fact, and conclusions of
law, and upon the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
take firmer, more clearcut steps than those vaguely referred to by David and
Terry Painter. I find that, prior to May 18, the production control sheets had
remained in a dormant state since February.
I6 The assertion by Spndik that the work he insisted on performing was
subject to deadlines was neither challenged on May 18 nor at the hearing
herein.
I7 It is also concluded that Respondent further violated Sec. 8(aXl) by a
blacklisting threat. This finding is substantiated by Terry Painter's own
testimony that, after the discharge of Spridik and in reaction to Spndik's
suspected instigation of an investigation of Respondent by OSHA, he told
employee Michael Betters, "If I have anything to do with it he's [Spndik]
going to be on a breadline the rest of his life."
is See, generally, Isis Plumbing & Heating Company, 138 NLRB 716
(1962).
1473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 19
The Respondent, Painter Tool, Inc., North Huntingdon,
Pennsylvania, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with discharge, blacklisting,
or plant closure, because they engage in union or other
protected concerted activity protected by Section 7 of the
Act.
(b) Discouraging employees from engaging in concerted
activity protected by Section 7 of the Act by discharging or
in any other manner discriminating against them because
they engage in such activity.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights, guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which is found
necessary to effectuate the purposes and policies of the
Act:
(a) Offer Gregory Spridik immediate reinstatement to his
former position or, if such position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
19 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.
whole for any loss of earnings resulting from the discrimi-
nation against him in the manner set forth in the section of
this Decision entitled "The Remedy."
(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 this
recommended Order.
(c) Post at its place of business in North Huntingdon,
Pennsylvania, copies of the attached notice marked "Ap-
pendix." 20 Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly signed by
Respondent's authorized representative, shall be posted
immediately upon receipt thereof, and be maintained by
Respondent for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
20 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1474