Gerald Barras Paint Co.

National Labor Relations Board - Board Decisions

Apr 29, 1975

217 N.L.R.B. 594 (N.L.R.B. 1975)

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