Red Spot Paint & Varnish Co., Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1965

155 N.L.R.B. 1249 (N.L.R.B. 1965)

RED SPOT PAINT & VARNISH CO., INC. 1249
2. Pacific Maritime Association is, and has been at all material times, an employer
within the meaning of Section 2(2) of the Act.
3. Wilbert Howard, Jr., Johnson Lee, James Cagney, Adrian McPherson, and
Kenneth Vierra have been, at all times material here, employees within the meaning
of Section 2(3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of a
right guaranteed them by Section 7 of the Act, as found above, Pacific Maritime
Association has engaged in unfair labor practices within the meaning of Section
8(a)( I) of the Act.
5. By restraining and coercing employees in the exercise of a right guaranteed
them by Section 7 of the Act, as found above, Local 10 has engaged in unfair labor
practices within the meaning of Section 8(b)(1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Red Spot Paint & Varnish Co., Inc. and International Chemical
Workers Union , AFL-CIO. Cases Nos. 25-CA-2039 and 2.5-CA-
2175. November 30,1965
DECISION AND ORDER
On August 24, 1965, Trial Examiner George A. Downing issued
his Decision in the above-entitled. proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
a.ffirma.tive action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that Respondent had not engaged
in certain other unfair labor practices and recommended that the com-
plaint be dismissed with respect to such allegations. Thereafter,
the Respondent filed acquiescence and exceptions to the Trial Exam-
iner's Decision, and the General Counsel filed exceptions thereto and
a brief in support thereof as well as a brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel [Chairmaal McCulloch and Members
Fanning anti Jenkins].
The Board has reviewed the rulings of the Trial. Examiner made
at the hearing arld finds that no prej udicial error was colmnitted. The
rulings are hereby ailirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in the case, and hereby adopts the .findings,' conclusions, and recoilt-
mendations of the Trial Examiner.
'In adopting the Trial Examiner's finding that Superintendent Mentzel told a group
of employees (including P.onnell) that he had union meetings under surveillance, we do
not rely upon the fact that Respondent called none of the employees as witnesses to
support \ientzel's denial of Bonnell's testimony on this point.
155 NLRB No. 122.
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
These consolidated proceedings under Section 10(b) of the National Labor Rela-
tions Act, as amended, were heard before Trial Examiner George A. Downing in
Evansville, Indiana, on January 25 and 26 and June 28, 1965, pursuant to due notice.
The complaint in Case No. 25-CA-2039, which was issued on November 20, 1964,
dm--a charge dated "September 14, alleged in substance that Red Spot Paint & Varnish
Co., Inc., herein called-the Respondent, engaged in unfair labor practices proscribed
by Section 8(a)(1) and (3) of the Act by assertions that Respondent had under
surveillance certain union activities and by discriminatorily discharging Athol Bruce
Gardner and Revel Allen Kingsbury, Jr., on July 17, 1964, because of their union
membership and activities. The complaint in Case No. 25-CA-2175, was issued
on May 7, 1965 (during a recess in the hearing in the former case ), on a charge
dated March 22, 1965; it alleged in substance that since February 1, 1965, Respond-
ent engaged in unfair labor practices proscribed by Section 8(a)(1), (3 ), and (4)
of the Act by discriminating in certain respects against Jack L. Bunnell because, of
his union membership and activities and because he gave testimony at the former
hearing. The proceedings were consolidated on May 17, 1965, by order of me on
the General Counsel's motion without objection by Respondent. Respondent filed
separate answers to said complaints in which it denied the allegations of unfair labor
practices.
The issues under the pleadings and under the evidence are purely factual ones;
they concern only questions whether Respondent in fact engaged in the unfair labor
practices alleged in the complaints.
Respondent's motions to dismiss, on which ruling was reserved at the hearing, are
disposed of on the basis of the findings herein.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent, an Indiana 'corporation, has its principal office, place of business,
and a manufacturing plant in Evansville, Indiana, where it is engaged in the manu-
facture, sale, and distribution of paints, varnishes, and related products. Respond-
ent purchases and receives annually directly from extrastate points goods and mate-
rials valued in excess of $50,000, and it sells and ships annually to extrastate points
goods valued in excess of $50,000. Respondent is therefore engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Chemical Workers Union , AFL-CIO, herein called the Union, is
a labor organization within the meaning of Section 2(5) of the Act.,
HI. THE UNFAIR LABOR PRACTICES
A. -Introduction
These proceedings were an outgrowth of an unsuccessful union campaign early
in 1964, which was itself the subject of a representation proceeding in Case No.
25-RC-2557. The Union lost the election which was held in that case on March 17,
1964, but it filed no objections and the Regional Director certified the results on
March 25. Allen Kingsbury acted as the Union 's observer in that election, substi-
tuting for Bruce Gardner who had withdrawn.
Kingsbury and Gardner were discharged on July 17, and the charge in Case No.
25-CA-2039 was Piled on September 15. The Section 10(b) date is therefore
March 15, precluding the finding of any unfair labor practice based on conduct
which occurred prior thereto. Though the General Counsel offered evidence con-
cerning Respondent 's conduct during the election campaign as far back = as January,
RED SPOT PAINT & VARNISH Co., I3\ C. 1251
it is given weight herein only insofar as relevant to show hostility to the Union
(in support of the alleged discriminatory motive for the discharges) and knowledge
of the union activities.
B. Preelection and postelection conduct; interference, restraint, and coercion
The General Counsel offered a series of letters from Respondent to its employees
from January 31 through March 14. Examination of them shows that they advanced
legitimate campaign arguments within permissible bounds of free speech though they
also showed that the Respondent was opposed to the Union, a fact which Respondent
stipulated. Furthermore it Was stipulated that in a speech made by Respondent
President Harry Bourland shortly before the election Bouriand made no threats-con-
eerning the Union or union activities and stated that if a majority of the employees
wanted the Union he would go along with them and that no one would be discharged-
because of union activities.
Gardner testified that on January- 31 Plant Superintendent Gilbert Mentzel
approached him and began to discuss the Union, but that conversation is noteworthy
only for the fact that Gardner disclaimed any interest in the Union and stated the
matter was one "for the younger men to decide."
Jack Bonnell testified that in February Mentzel asked him -whether he had heard
anything about a union movement in the plant and how Borneil felt about it. Bon-
nell replied that he could not see that a union could do much good for the employees.
Bonnell testified further that a week before the election Mentzel discussed the elec-
tion with him and that Mentzel stated he knew of a favor the Company had done
for Bonnell arid that he knew of nothing that would hurt him worse than to know
that Bonnell would vote yes at the election.
Kingsbury testified, that in January Mentzel asked him whether he had been
approached by the Union and when he acknowledged that he had, Mentzel pro-
ceeded to tell him some of the things the Company proposed to do. Kingsbury
brought up the subject of an item in a local newspaper concerning the alleged pay-
ment of some $50,000 in Christmas bonuses to Respondent's employees. Mentzel
stated that that-was a mistake and should have been corrected.
Concerning those preelection -activities Mentzel- freely admitted that after the,
Company received the election notice from the Board, he "campaigned" on the
Company's behalf by-going to each,employee individually and asking him to support
the Company. He denied going any further than, that, though he testified that when
Kingsbury- mentioned the newspaper item he informed Kingsbury the figure of
$50,000 mentioned.in the newspaper story must have, been a misprint. -
. Both Kingsbury and Bonnell testified to-separate--conversations with Mentzel after
the election in which Mentzel allegedly made statements which the General Counsel
relies-upon as establishing violations of Section 8(a)(1.). Kingsbury testified that
around March 30, Mentzer called him into an office, referred to the fact that he had
just gotten Kingsbury a. 10-cent raise, stated that was the best he could do at the
time, and that he had concluded that Kingsbury was-one- of the union supporters
because he had brought up the item in the newspaper (concerning the Christmas
bonuses), Kingsbury commented that he was not supposed to have been the Union's
observer, and Mentzel replied that he knew that because he had someone who kept
him informed. of who was in the -Union and what they were doing and he therefore
knew that Kingsbury was "pinch-hitting for another party"' through the informer-
who kept Mentzel "up to date on everything that was said."
Bonnell testified that some time after the election Mentzel spoke to a group of
some six employees in the shipping office one morning, stating that he knew every-
thing that went on during the union drive and who. the employees were who attended
the meetings because he had a man who was sitting in on the meetings and reporting
back to him. Bonneil named four of the other persons present on the occasion,
including Kenneth Bittner
1 fentzei denied Kingsbury's testimony concerning an alleged informer or spy at_
union meetings and denied that he had any such informer. He also denied the-
remainder of Kingsbuiy's testimony and testified that the only reference to a union
on the occasion when he spoke to Kingsbury about his raise was Kingsbury's com-
ment that he would not bother Mentzel about a union again. Mentzel admitted
knowing; however, through "rumors," that Kingsbury was the substitute for Gardner
as the Union's observer, explaining that in a-plant like that you hear everything.-
212--$09 -66-vol. 155-80
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mentzel flatly denied Bonnell's testimony concerning his alleged discussion of the
Union with a group of the employees in the shipping office. Respondent called no
witness to support Mentzel's latter denial despite the fact that Bonnell had supplied
the names of four other persons in the group, including Kenneth Bittner, who testi-
fied for Respondent on other matters.I
Determinative of the credibility issues between Mentzel and the General Counsel's
witnesses are the following circumstances: (1) Mentzel admitted that he cam-
paigned for company support among all of Respondent's employees. (2) Though
the postelection statements which Kingsbury and Bonnell testified to were made on
separate occasions, they were substantially identical in content as concerned Mentzel's
claims of surveillance and they may therefore be considered to an extent as mutually
corroborative. (3) Mentzel admitted knowing of Kingsbury's substitution for Gard-
ner and his explanation indicated that he heard everything else (concerning the
Union). (4) Finally, and most persuasive, Respondent did not attempt to support
Mentzel's denials concerning statements made to the group in the shipping office
though Bonnell - supplied the names of four other employees who were present,
including Respondent's witness Bittner.
I therefore credit the testimony of the General Counsel's witnesses concerning
both Mentzel's preelection statements and his postelection statements. Confining
my findings only to the latter, I conclude and find that by Mentzel's statements that
he had-kept under surveillance the meeting places, meetings, and activities of the
Union, Respondent interfered with, restrained, and coerced employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
C. The discharge of Bruce Gardner and Allen Kingsbury
Bruce Gardner was employed in 1951 as stockman at the rate of $1.10 per hour
and progressed by raises (cost-of-living, length of service, and merit ) to $1.90 on
July 6, 1959. He received no raises during the last 5 years of his employment,
a period which coincided with - Mentzel's tenure as plant superintendent. Allen
Kingsbury was hired on February 19, 1959, as a paint filler at the rate of $1.50 per
hour and after a year was made a paint shader. His rate of pay progressed ulti-
mately to $2.10 per hour, his two final raises of 10 cents each coming on January 13
and March 30, 1964.
Both Gardner and Kingsbury had signed authorization cards for the Union, and
stipulated testimony was received that they were among persons who secured cards
of other employees and delivered them to the Union's representative. Gardner at
one time had promised to act as the Union's observer in the election, but he
announced in a union meeting on March 13 that "for medical reasons" he was
unable to serve. Kingsbury was chosen at that meeting to substitute for him.
Mentzel admitted knowledge of that substitution as found in section B, supra.
Despite the foregoing, the evidence showed that Gardner possessed no genuine
sentiment for the Union and that Respondent had no reason to believe that he did.
Indeed, Gardner's testimony disclosed only slight interest in the campaign and slight
participation in it. Thus he testified he engaged in no public activity for a union
and that in an earlier campaign he had in fact talked against the Union, telling the
employees that a small place like Respondent's plant should not have a union.
Gardner also served as the Company's observer in the prior election. As for the
current campaign Gardner testified:
Q. (By Mr. FISHER.) Had you yourself asked other employees to sign union
cards during this union drive?
A. I did not. I probably handed a card or two to someone else when the thing
was mentioned, but merely handed them to them. I asked no one to vote.
Q. Not to vote, but to sign a card?
A. I asked no one to sign a card.
Furthermore on January 31 Gardner specifically disclaimed to Mentzel any interest
in the Union, saying that he did not care whether there was one union or a dozen
unions because at his age, 62, he was not concerned about the matter and that it was
one for the younger men to decide. Finally, Gardner admitted that he informed
1 Bittner's testimony on direct examination concerned only matters relating to Gard-
ner's discharge. On redirect examination Bittner was questioned in general terms about
whether Mentzel ever asked him to spy, whether he did spy, and whether he reported to
Mentzel, but at no time was he questioned about Mentzel's statements made to the group
which Bonnell identified.
RED SPOT P_-U T - & VAR'_\ ISH-'CO., INC. 1253
Respondent Attorney Donovan that he was not active in the Union and testified his
only real activity concerning the Union occurred in the earlier campaign when he had
-worked against it. -
Mentzel discharged both Gardner and Kingsbury- on July 17, and except for the
coincident discharge of the Union's-observer there is little-in the record which tends
to support a finding that the General Counsel made out even a prima facie case that
Mentzel discharged Gardner because of his union activities. But whatever the
strength of an inference which might be drawn from the coincidence of the discharges,
from Mentzel s claims of survellance, and from the evidence that Mentzel (and
Respondent) were opposed to the Union, Respondent adduced evidence which over-
calne the General Counsel's showing and which established that Gardner was dis-
charged for causes unrelated to his meager prounion sentiments and activities. It is
unnecessary to review that evidence in detail for it showed, without substantial con-
flict, the following facts:
Gardner's job during his entire employment involved manual labor, i.e.. the moving,
storing, or stocking of the packed paint, and -he also helped in labeling from time to
time. The job became, with advancing age, an arduous one for Gardner, particularly
because of contracting emphysema, whose effects were felt in the cutting'down of an
oxygen supply and hence of energy. The hauling or moving of the heavy loads of
paint induced panting and loss of breath and the necessity for longer periods of rest
on the job. In addition to the foregoing Kenneth Bittner frequently complained to
Mentzel that Gardner did not help him with labeling when Gardner had nothing else
to do.
Mentzel in turn had long borne a grudge against Gardner because Gardner pre-
sumed on a long-standing personal friendship with President Harry Bourland and
Mentzel felt that Gardner was using Bourland as a whip over his head because Gard-
ner "had more pull with the boss." 2 He had given Gardner no raise during his 5-year
tenure as plant superintendent, excluding him even from a blanket raise to all
employees in April 1964.
Though Mentzel testified to getting other complaints concerning Gardner, it was
Bittner who complained most frequently (concerning Gardner's failure to help him)
and Bittner finally informed Mentzel he would have to choose between them. Even
then Mentzel put Bittner off, referring to rumors that Gardner proposed to quit at
age 62 and later in 1964 to a rumor that Gardner would wait until he got his 2 weeks'
vacation.3 Mentzel testified that in discharging Gardner he informed him the reason
was that Gardner was physically unable to do the work and that there was a rumor
that he was going to quit at age 62. Gardner's testimony was to substantially similar
effect: i.e., that lblentzel stated the reason was that Gardner had not helped Bittner
as he should and that he had not retired despite many statements that he was going
to retire. Gardner replied that he had not informed Mentzel of his intention to retire
and that Mentzel could believe what he wanted to. -
A notation on the Company's personnel records assigned as the reason for dis-
charge, "Work unsatisfactory," and a form which Respondent issued to the Indiana
Employment Security Division assigned, "Incapable to perform job requirement."
Mentzel cited as precedent for his action his discharge in 1962 or 1963 of one
Edmund Rhodes, an employee of some 10 years' standing, who-was also 62 years of
age and who also like Gardner became physically unable to work.
I conclude and find that Respondent's evidence, as above summarized, was plainly
sufficient to overcome the General Counsel's showing and to dissipate whatever infer-
ence or suspicion of discriminatory motivation might be drawn from the General
Counsel's case if considered alone. I therefore conclude and find that the General
Counsel failed to establish by a preponderance of the evidence that Mentzel dis-
charged Gardner because of the latter's union membership and activities.
Kingsbury's discharge, however, stands on an entirely different footing both as con-
cerned the strength of the General Counsel's case and as concerned the weaknesses in
Respondent's defense. On the first score there was here no corresponding disclaimer
by Kingsbury of union sentiments and activities, he did not withdraw as observer as
Gardner did, and Mentzel was fully informed through their conversations and
otherwise (see section B, supra) of Kingsbury's attachment to the Union. Further-
more, certain inconsistencies and weaknesses in Respondent's defenses tended only to
strengthen and confirm the General Counsel's own showing.
2 Jack Bonnell, a witness for the General Counsel, corroborated testimony of Respond-
ent's witnesses concerning both the extent of Gardner's claims of friendship with Bourland
and the fact of Mentzel's dislike for Gardner.
3 Gardner actually got his vacation in June before his discharge.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's records showed that Kingsbury received some eight separate raises
for "merit and length of service ," by which his pay was increased from $1 . 50 to $2.10.
Five of those raises were given after Kingsbury was made a paint shader and the last
two of them , given in 1964 , accounted for one-half (i .e., 20 cents of 40 cents ), of all
which were given him after he was made a paint shader . But Respondent sought to
impeach that showing of its own endorsement of Kingsbury 's job performance and
capabilities by testimony of Mentzel and Ray Sills, his assistant , which may be sum -
marized as follows:
Paint shading is a technical job and some 2 years or more of training are required
for a trainee to become a qualified shader . Kingsbury 's progress was satisfactory
for the first 2 years but after that his rate of progress slackened and his performance
generally became unsatisfactory . Mentzel attributed Kingsbury 's deterioration in part
to the fact that Kingsbury 's mental attitude became affected by certain financial and
other personal problems, resulting in inability to concentrate properly on the technical
details of mixing colors. Sills' testimony was to similar effect.
Sills testified that he frequently spoke to Kingsbury about the need to increase his.
production . On one occasion , approximately a year before the discharge , Kingsbury
defended himself against Sills ' criticism by implying that Sills was motivated by
religious differences . Sills testified further that he spoke to Kingsbury some three of
four times during the period from January to July 1964 , but he was unable to specify
the occasion of his last criticism or to fix the time of it except to say it was a month or
so before the discharge . Under Sills ' testimony all his criticisms were phrased in
terms of the need to increase production.
Mentzel testified that he discharged Kingsbury on July 17, assigning as the reason
at the time that Kingsbury 's work was unsatisfactory . That reason corresponded also
to the one noted on Respondent 's personnel records and to the one assigned in the
form issued to the Indiana Employment Security Division . Kingsbury 's testimony
was also in substantial accord ; i.e., Mentzel told him he was being discharged "because
you will never make a shader."
Despite the foregoing unanimity and the firm commitment explicit in the foregoing
evidence , Mentzel proceeded to testify , however, that the "immediate cause" of
Kingsbury 's discharge was that Kingsbury falsely claimed to be sick on Monday,.
July 13, when in fact he went to the Morris Plan Bank to apply for a loan. Mentzel
learned of the deception immediately through a call from the bank and after discuss-
ing the matter with Sills decided to discharge Kingsbury at the end of the week. How-
ever , though Mentzel spoke to Kingsbury about his absence when Kingsbury came in,
to work on Tuesday, his comment was limited to the innocuous observation that
Kingsbury "got well pretty fast ." Mentzel said nothing in criticism of Kingsbury's
deception , gave him no warning , and did not inform him of his impending discharge..
Indeed , so far as the evidence shows , Kingsbury was never informed that his Monday's
absence had anything to do with his discharge , much less than it was "the immediate,
cause," as Mentzel testified.
Concerning Kingsbury 's two raises in 1964 , Mentzel explained that he gave the final
one (March 30) to relieve Kingsbury 's financial worries and that he told Kingsbury
at the time he should try to get his mind on his job. Under Kingsbury 's testimony,.
however, that was the occasion on which Mentzel referred to Kingsbury as a union
supporter and to knowledge through an informer of Kingsbury 's selection as union
observer . Kingsbury 's testimony concerning that conversation has previously been,
credited in section B, supra.
Further evidence concerning developments after Kingsbury 's discharge is also of
some relevance as concerns the quality of Kingsbury 's work. Kingsbury testified that
around November 13 he was offered reinstatement through Respondent Counsel
Donovan and that he also got a letter from Mentzel which directed him to report to
work on November 16. Under Kingsbury's testimony neither Donovan nor Mentzel
made any reference to Kingsbury 's alleged prior unsatisfactory work though the job
to which he was assigned was not that of paint shader . Kingsbury testified that when,
he reported , Mentzel stated he did not think Kingsbury was coming back and that he
had given to another employee the job he was going to give Kingsbury . Respondent
stipulated that Kingsbury was not offered reinstatement to his job as shader and that
the job on which he was reemployed required less skill than that of shader:
Kingsbury also testified to an offer which he received in late December from Robert
Holland, the chemist in Respondent 's laboratory , to come into the laboratory as a
paint shader , working on metallizing . Though I credit Kingsbury 's testimony con-
cerning the circumstances surrounding that offer ,4 it was plain from the entire evidence
d Holland's testimony was characterized by abrupt reversals and self-contradictions, and
he ultimately admitted that he discussed with Kingsbury the "possibility" that Kingsbury
would come into the lab.
RED SPOT PAINT & VARNISH CO., INC. 1255
-that Holland was acting on his ,own initiative, that he knew nothing of the basis of
Kingsbury's discharge or of the circumstances surrounding his reinstatement, and
nothing of Kingsbury,s capabilities other than that Kingsbury once worked in the
-shading department. Holland's offer is therefore without significance on the issue of
Kingsbury's competence.
The problem in appraising Respondent's evidence is not that of determining whether
valid or justifiable cause existed for discharging Kingsbury but whether Respondent
was in fact motivated by such causes. For where an alleged Section 8(a) (3) violation
is involved it is the "real motive" of the employer which is decisive N.L.R.B. v. Brown,
et al., d/b/a Brown Food Store, 375 U.S. 962, and cases these cited. In other words
"the fact that a lawful cause for- discharge is available is no defense where the
employee is actually discharged because of his Union activities." N.L.R.B. v. Ace
Comb Co., et al., 342 F. 2d 841 (CA. 8); and see N.L.R.B. v. Wells, Incorporated,
162 F. 2d 457, 460 (C.A. 9).
Furthermore the giving of implausible, inconsistent, or contradictory explanations
of a discharge may be considered in determining the real motive; it is circumstance
indicative of antiunion motivation. N.L.R.B. v. Condenser Corporation of America,
128 F. 2d 67, 75 (C.A. 3), N.L.R.B. v. Radctifje, et at, d/b/a Homedale Tractor &
Equipment Company 211 F. 2d 309, 314 (C.A. 9); Sandy Hill Iron & Brass Works,
-69 NLRB 355, 377-378, enfd. 165 F. 2d 660 (CA. 2); cf. N.L.R.B. v. International
Furniture Company, 199 F. 2d 648, 650 (C.A. 5). "When an employer shifts position
several times in explaining why an employee has been fired, his own case is weakened,
and the Board's conclusion that the true reason was for union activity is correspond-
ingly strengthened." N.L.R.B. v. Georgia Rug Mill, 308 F. 2d 89, 91 (C A. 5); and
see N.L.R.B. v. Schill Steel Products Inc., 340-F. 2d 568, 573 (C.A. 5).
The foregoing. principles are fully applicable here. if it be assumed that the cir-
^cumstances surrounding Kingsbury's absence on Monday were the real basis for--the
discharge, it seems inconceivable that Mentzel. would not promptly have confronted
Kingsbury upon the tatter's return to work and have informed him of Mentzel's
extreme displeasure and of the decision to discharge Kingsbury, particularly since the
evidence did not show that Kingsbury's record of absenteeism was ever a prior source
of complaint. But though Mentzel spoke to Kingsbury, he made no criticism and
gave no warning but contented himself with making a casual comment on Kingsbury's
recovery. It seems even more incredible, assuming the genuineness of Mentzel's
testimony, that Mentzel did not, in discharging Kingsbury, inform him' that his-
Monday's absence had sparked the discharge action. Instead, by oral statement and
by two official records Mentzel assigned the cause as unsatisfactory work.
But that alleged cause was in turn inconsistent with the record of Kingsbury's
advancement and Respondent's endorsement of his Job performance . Thus Kings-
bury received during his 4 years as a paint shader some five merit and length of serv-
ice raises, four of which were given him during the last 2 years on the job, which
according to Respondent's claims was- the very period when Kingsbury's performance
was lagging. Furthermore the last two of those raises were given in his final 6 months
on the job and accounted for one-half of the total amount of the raises be received as'
a shader. Those facts plainly attested to Respondent's current and continuing regard
for Kingsbury's competence and are plainly inconsistent with its contrary claims that
Kingsbury's work was in-fact unsatisfactory. Furthermore it would in no event have
taken 4 years for Mentzel to determine that Kingsbury would "never make a shader.",
'Significantly also, as found in section B, supra, •Mentzel informed Kingsbury of his
last raise in the setting of comments concerning Kingsbury's attachment to the Union
and of Mentzel's admitted knowledge through anyinformer of Kingsbury's union
activities.
Finally, though Respondent contends by brief that Kingsbury 's financial difficul-
ties also constituted "valid cause for discharge," the evidence showed that those
difficulties were chronic throughout Kingsbury's entire employment and _ further
showed that Mentzel did not assign them as a cause for discharge. And though
Mentzel sought to explain his final raise by-a desire to give Kingsbury some financial
relief, Respondent's records assigned as usual, "Merit and length of service."
In sum, Respondent's own evidence itself furnished part of "reasonable cause for
believing that the ground put forward by [it] was not the true one and the ground
was because of union activity." N.L.R.B. v. Texas Bolt Company, 313 F. 2d 761,
763 (C.A. 5). Plainly when the weaknesses and inconsistencies in Mentzel's explana-
tions are considered in the light of the circumstances of the discharge, of Kingsbury's
service as the Union's observer, of Mentzel's earlier statements concerning Kingsbury's
attachment to the Union and of Mentzel's professed surveillance through an informer
of union membership and activities, the preponderance of the evidence on the record-
as a whole established that Mentzel was in fact discriminatorily motivated in discharg-
ing Kingsbury I so conclude and find.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The alleged discrimination against Bonnell
Jack Bonnell testified as the General Counsel's witness in Case No. 25-CA-2034
on January 25. See section B, supra. Recalled on June 28 in support of the com-
plaint in Case No. 25-CA-2175, Bonnell testified that for some 2 years before
January he was available for overtime work at night only on infrequent occasions
because his wife had nighttime employment and his presence was required at home:
as "babysitter." " Bonnell had informed his supervisor, Edward McDaniel, of those
circumstances and they had an understanding that Bonnell would notify McDaniel
on occasions when he was available for overtime work at night. The last occasion on
which Bonneli worked overtime at night prior to January 25 was in November or
December, and after January 25 he worked no overtime, day or night, pnor to the
filing of the new charge on March 24. Thereafter he worked 121/2 hours of daily
overtime prior to the resumed hearing out of a total of 87 daytime hours and a grand
total of 132 overtime hours. An ordinary overtime assignment at night ran from
3 to 4 hours.
Comparative figures for the year 1968 (contained in a tabulation) snowed that
Bonnell had worked a total of 56 overtime hours, 471/2 daytime and 81 at night, out
of a total of 4001/2 hours, or approximately 14 percent of the total. If it be assumed
that Bonneli was entitled to a comparable percentage of the 1965 overtime, he would
have received an additional 6 hours of overtime work. Bonnell admitted, however,
that there were one or two occasions between January 25 and March 25 when he could
have worked overtime at night but he did not inform McDaniel that he was available
and did not ask for overtime work. _Bonnell also admitted that from January to
March there were two occasions when McDaniel asked him if he wanted to work
overtime at night and he refused because he had to babysit.
As for other alleged discriminatory treatment, Bonnell testified that prior to the
former hearing McDaniel spoke to him occasionally during the day and that they
would "cut up" and "carry on." He testified that after the hearing something seemed
to come between them and that McDaniel did not want to talk with him.
Bonnell testified further than on March 11 McDaniel spoke to him at a time when
he had no work to do, stating that though it did not matter to McDaniel, Bonnell had
better find something to do because Mentzel had seen Bonnell standing around and
that Bonnell had better start working on something if it was only making up-boxes.
Bonnell testified he assumed that Mentzel had seen him loafing and that McDaniel
was simply relaying Mentzel's message to him.
Bonnell also testified to an occasion around February 1 when he was put to selling
in the retail store for some hour and a half (not his normal work) while one Gilliland
was doing his usual work.
The difficulty with the General Counsel's case is that Bonnell's testimony does not
establish that he was in fact discriminated against. Though his failure to receive any
overtime assignment until the charge was filed was a suspicious circumstance, the
force of that suspicion was largely dissipated by the fact that Bonnell was twice offered
overtime work and on two other occasions he failed to notify McDaniel that he was
available for a nighttime assignment. As for the postcharge period, neither the tabula-
tion nor Bonnell's testimony establishes that any discrimination occurred.
Bonnell's remaining claims of mistreatment were devoid of substance. As to his
brief assignment to the retail store, there was no showing that either harassment or
discrimination was intended. Also trivial was Bonnell's complaint that McDaniel
no longer "cut up" -with him, particularly since Bonnell admitted he once complained
to Mentzel that it was all play and no work in the department and suggested an
interest in being transferred. As for McDaniel's direction that he should find some
work to do, discrimination is claimed because McDaniel said nothing to employee-
Gilliland at the time though Gilliland, who was also out of (plant) work, was engaged
in working on McDaniel's personal antique furniture. That contention ignores the
fact that McDaniel was simply relaying a message from Mentzel, who had apparently
seen Bonnell loafing on the job, and there was no showing that Mentzel knew that
Gilliland also was out of work or knew that he was working on McDaniel's furniture.
I therefore conclude and find that the evidence does not establish that Respondent
in fact discriminated against Bcnnell, and I shall recommend that the complaint in
Case No. 25-CA-2175 be dismissed.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices I shall
recommend that it cease and desist therefrom and that it take certain affirmative action
which is conventionally ordered in such cases as provided in the Recommended Order
below and which I find necessary to remedy and to remove the effects of the unfair
labor practices and to effectuate the policies of the Act. For reasons which are
RED SPOT PAINT & VARNISH CO., INC. 1257
stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall
recommend a broad cease and desist order. I shall recommend that Respondent be
required to make the usual offer of reinstatement to Kingsbury, since the record estab-
lishes that Kingsbury was not reinstated to his former job of paint shader. Back-pay
of course should be computed in the usual manner as recommended below.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF Law
1. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (1).
2. By discharging Revel Allen Kingsbury, Jr., on July 17, 1964, and by thereafter
failing to reinstate him to his former position because of ins union membership and
activities, Respondent engaged in discrimination to discourage membership in the
Union, thereby engaging in unfair labor practices proscribed by Section 8(a) (3) and
(1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
4. Respondent did not discriminatorily discharge Athol Bruce Gardner on July 17,
1964, and did not discriminate against Jack Bonnell as alleged in the complaint in
Case No. 25-CA-2175.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, I recommend that the Respondent , Red Spot Paint & Varnish Co., Inc., its
officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Chemical Workers Union, AFL-
CIO, or in any other labor organization of its employees, by discharging, failing to
reinstate, or in any other manner discriminating against employees in regard to hire
or tenure of employment or any term or condition of employment.
(b) Informing employees that it has kept under surveillance the meeting places,
meetings, and activities of the Union. -
(c) In any other manner interfering with, restraining , or coercing its employees in
the exercise of their right to self-organization , to form, join , or assist said International
Chemical Workers Union, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing or to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid or pro-
tection , or to refrain from any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer to Revel Allen Kingsbury , Jr., immediate and full reinstatement to his
former or substantially equivalent position , without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay he may have suffered
by payment to him of a sum of money equal to that which he would normally have
earned from July 17, 1964, to the date of the offer of reinstatement, less his net earn-
ings during said period (Crossett Lumber Company, 8 NLRB 440), said backpay to
be computed on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of
6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716.
(b) Notify Revel Allen Kingsbury, Jr., if presently serving in the Armed Forces of
the United States of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training Service Act of
1948 as amended after discharge from the Armed-Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under this Recommended Order.
(d) Post in its offices and plant at Evansville, Indiana. copies of the attached
notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional
Director for Region 25, shall, after being duly signed by Respondent's representative.
5If this Recommended Order is adopted by the Board , the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of a Trial Examiner" in the
notice. If the Board 's Order is enforced by a decree of a United States Court of Appeals,
the notice will be further amended b y the substitution of the words "a Decree of the
United States Court of Appeals , Enforcing an Order" for the words "a Decision and Order."
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be posted by Respondent immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter , in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said -notices are not altered , defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 25 , in writing, within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply herewith .6
It is recommended that the complaint in Case No . 25-CA-2175 be dismissed.
6If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 25, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in International Chemical Workers
Union, AFL-CIO, or in any other labor organization, by discharging or failing
to reinstate employees or in any other manner discriminating in regard to hire
or tenure of employment or any term or condition of employment.
WE WILL NOT inform employees that we have kept under surveillance the
meeting places, meetings , and activities of the Union.
WE WILL NOT in any other manner interfere with, restrain, or coerce employees
in the exercise of their right to self-organization, to form, join, or assist said
International Chemical Workers Union, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, or to
engage in other concerted activities for the purpose 'of collective bargaining or
other mutual aid or protection, or to refrain froth any or all such activities.
WE WILL offer to Revel Allen Kingsbury, Jr., immediate and full reinstatement
to his former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole for any loss of pay
he may have suffered as a result of our discrimination against him in the manner
provided in the Trial Examiner 's Decision.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of the above-named or any other labor oganization.
RED SPOT PAINT & VARNISH Co., INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
NOTE.-We will notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and Universal Military Training and Serv-
ice Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana, Telephone No. Melrose
3-8921.
Stark Ceramics , Inc. and United Brick and Clay Workers of
America, AFL-CIO. Cases Nos. 8-CA-3547. 8-CA-3716. and 8-
CA-3891. November 30,1965
DECISION AND ORDER
On September 17, 1965, Trial Examiner Federick U. Reel issued
his Decision in the above-entitled proceeding, finding that Respond-
155 NLRB No. 120.