Alexis Painting Co.

National Labor Relations Board - Board Decisions

Sep 16, 2004

342 N.L.R.B. 1065 (N.L.R.B. 2004)

ALEXIS PAINTING CO.
342 NLRB No. 108
1065
Lincoln Alexis, d/b/a Alexis Painting Company and
Maurice Richard and Wilbert Mitchell and
Richard Mitchell and Earin Garner. Cases 15–
CA–16923, 15–CA–17024, 15–CA–17148, 15–
CA–17151
September 16, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS WALSH
AND MEISBURG
On March 31, 2004, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Re-
spondent filed exceptions, and the General Counsel filed
an answering brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3

1 In his answering brief, the General Counsel moved to strike the Re-
spondent’s exceptions, asserting a failure to conform to Sec. 102.46(b)
of the Board’s Rules and Regulations. Although the Respondent’s
exceptions do not conform in all respects to the Board’s Rules, they are
not so deficient as to warrant striking, particularly in light of the Re-
spondent’s pro se status. See Budget Heating & Air Conditioning, 333
NLRB 199 fn. 2 (2001), quoting A.P.S. Production/ A Pimental Steel,
326 NLRB 1296, 1297 (1998) (“The Board typically has shown some
leniency toward a pro se litigant’s efforts to comply with our proce-
dural rules”).
2 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3rd
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
3 For the following reasons, we agree with the judge’s conclusions
that the Respondent violated Sec. 8(a)(3) and (1) of the Act by laying
off employees Maurice Richard, Wilbert Mitchell, and Richard
Mitchell, that the Respondent violated Sec. 8(a)(4) and (1) by laying off
Richard Mitchell, and that the Respondent violated Sec. 8(a)(1) by
discharging employee Earin Garner. On the basis of the credited testi-
mony, the General Counsel made a showing of unlawful motivation by
proving the employees’ protected activity, the Respondent’s knowledge
of this activity, and the Respondent’s animus against the employees’
protected conduct. Thus, we agree with the judge that under Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), the General Counsel established by a
preponderance of the evidence that protected activity was a motivating
factor in the layoff and discharge decisions. Donaldson Bros. Ready
Mix, Inc., 341 NLRB 919, 923 (2004). On the basis of the credited
testimony, we further agree with the judge that the Respondent did not
meet its Wright Line burden of “demonstrating that the same action
would have taken place even in the absence of the protected conduct.”
Wright Line, supra at 1089.
and to adopt the recommended Order as modified4 and
set forth in full below.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Lincoln Alexis d/b/a Alexis Painting Com-
pany, Metairie, Louisiana, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their union and
protected concerted activities and those of their fellow
employees.
(b) Threatening its employees with termination be-
cause of their union and protected concerted activity.
(c) Threatening to refrain from transferring employees
to another jobsite because of their union and protected
concerted activity.
(d) Instructing its employees not to discuss their
wages.
(e) Interfering with Board process by seeking informa-
tion from its employees regarding ongoing Board actions
and threatening its employees if they withhold such in-
formation.
(f) Laying off employees because of their union and
protected concerted activity or to discourage employees
from engaging in union or protected concerted activity.
(g) Discharging employees because of their protected
concerted activity.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Maurice Richard, Wilbert Mitchell, Richard Mitchell,
and Earin Garner full reinstatement to their former posi-
tions, or if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
(b) Make Maurice Richard, Wilbert Mitchell, Richard
Mitchell, and Earin Garner whole for any loss of earn-

4 We agree that the Respondent’s seeking of information concerning
employee resort to the Board, and the Respondent’s threat of discharge
if the information were not supplied, violated Sec. 8(a)(1). We do not
pass on whether the conduct also violated Sec. 8(a)(4), inasmuch as that
additional violation would not materially affect the remedy. We shall
modify the judge’s recommended Order to conform to the violations
found and in accordance with our decisions in Ferguson Electric Co.,
335 NLRB 142 (2001), Excel Container, Inc., 325 NLRB 17 (1997),
and Indian Hills Care Center, 321 NLRB 144 (1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066
ings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful layoffs of
Maurice Richard, Wilbert Mitchell, and Richard
Mitchell, and the unlawful discharge of Earin Garner,
and within 3 days thereafter notify them in writing that
this has been done and that the unlawful layoffs and dis-
charge, respectively, will not be used against them in any
way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Metairie, Louisiana, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since March 3, 2003.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

5 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment 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

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT interrogate our employees about their
union and protected concerted activities and those of
their fellow employees on behalf of the International
Union of Painters and Allied Trades, District Counsel 80.
WE WILL NOT threaten to refrain from transferring our
employees to another job site because of their union and
protected concerted activity.
WE WILL NOT threaten our employees with termination
because of their union and protected concerted activity.
WE WILL NOT instruct our employees not to discuss
their wages.
WE WILL NOT interfere with Board process by seeking
information from our employees regarding ongoing
Board actions and threatening our employees if they
withhold such information.
WE WILL NOT lay off our employees because they en-
gaged in union or protected concerted activity or to dis-
courage employees from engaging in union or protected
concerted activity.
WE WILL NOT discharge our employees because they
engaged in protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Maurice Richard, Wilbert Mitchell, Richard
Mitchell, and Earin Garner full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
WE WILL make Maurice Richard, Wilbert Mitchell,
Richard Mitchell, and Earin Garner whole for any loss of
earnings and other benefits resulting from our discrimi-
ALEXIS PAINTING CO. 1067
nation against them, less any net interim earnings, plus
interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoffs of Maurice Richard, Wilbert Mitchell, and
Richard Mitchell, and the unlawful discharge of Earin
Garner, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the
unlawful layoffs and discharge, respectively, will not be
used against them in any way.
LINCOLN ALEXIS, D/B/A ALEXIS PAINTING
COMPANY

Beauford D. Pines, Esq., for the General Counsel.
Lincoln J. Alexis Jr., pro se, for the Respondent.

DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard by me on February 17, 2004, in New Orleans,
Louisiana. The four cases are based on four separate charges
filed by Maurice Richard, an individual in Case 15–CA–16923,
by Wilbert Mitchell, an individual in Case 15–CA–17024, by
Richard Mitchell, an individual in Case 15–CA–17148, and by
Earin Garner, an individual in Case 15–CA–17151. The cases
were consolidated for trial by the Acting Regional Director of
Region 15 of the National Labor Relations Board (the Board).
The consolidated complaint alleges that Lincoln Alexis, d/b/a
Alexis Painting Company (Alexis Painting or the Respondent)
violated Section 8(a)(1) of the National Labor Relations Act
(the Act) by interrogating its employees concerning their en-
gagement in protected concerted activities and the engagement
or their fellow employees in protected concerted activities. The
complaint also alleges violations of Section 8(a)(1) of the Act
were committed by Respondent by the issuance of unlawful
threats to employees for their participation in protected con-
certed activities and by instructing its employees not to discuss
their wages and by informing its employees that their employ-
ment was being terminated because of their union activities.
The complaint also alleges that the Respondent violated Section
8(a)(3) and (1) of the Act by its layoffs of the Charging Parties,
Maurice Richard and Wilbert Mitchell, and violated Section
8(a)(3), (4), and (1) by its layoff of Richard Mitchell, and that
Respondent violated Section 8(a)(4) and (1) by interrogating its
employees about ongoing Board cases, and by threatening them
with termination if they did not provide Respondent with in-
formation regarding ongoing Board cases, and that Respondent
violated Section 8(a)(1) of the Act by its discharge of Charging
Party Earin Garner. The Respondent has, by his answer, denied
the commission of any violations of the Act.
On the entire record including my observation of the de-
meanor of the witnesses and after considering the briefs filed
by the parties, I make the following findings of fact and conclu-
sions of law.
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges, Respondent admits and I find that at
all times material herein for the 12-month period prior to the
issuance of the consolidated complaint. Lincoln Alexis, d/b/a
Alexis Painting Company has been engaged in commercial and
residential painting with his office and place of business at his
facility located in Metairie, Louisiana. The complaint also al-
leges, Respondent admits and I find that at all times material
herein, Respondent has been owned by Lincoln Alexis, a sole
proprietorship doing business as Alexis Painting Company and
has been engaged as a painting subcontractor, that annually,
Respondent in conducting its business operations provided
services valued in excess of $50,000 for Broadmoor L.L.C.
(Broadmoor), an enterprise within the State of Louisiana, that
Broadmoor, at all material times has been engaged as a con-
struction contractor, that annually Broadmoor, a Louisiana
Corporation, in conducting its business operations purchased
and received at its Louisiana facility and jobsites, goods valued
in excess of $50,000 directly from points outside the State of
Louisiana and that at all material times Respondent has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that at
all material times, the International Union of Painters and Al-
lied Trades, District Council 80 (the Union) has been a labor
organization within the meaning of Section 2(5) of the Act.
The complaint also alleges, Respondent admits, and I find
that at all material times, Lincoln Alexis, vice president and
Dieon Austin, supervisor, have been supervisors of Respondent
within the meaning of Section 2(11) of the Act and agents of
Respondent within the meaning of Section 2(13) of the Act.
FACTS
Respondent, Alexis Painting, has operated as a nonunion
painting contractor for over 20 years. Respondent entered into a
subcontract with Broadmoor to do the outside painting work at
the New Orleans Louis Armstrong International Airport (Air-
port). Broadmoor is a general contractor and had been given the
airport project. Broadmoor entered into a project agreement for
the airport job under which Broadmoor agreed with various
unions, including the International Union of Painters and Allied
Trades, District Council 80 (the Union) to employ employees
who become members of the Union. Pursuant to that agreement
Respondent entered into a “Memorandum of Understanding”
with the Union on October 10, 2002. Under the terms of this
agreement Respondent agreed that he is a party to a collective-
bargaining agreement with the Union until the completion of
the job. Under the terms of the memorandum of understanding
Respondent agreed to be bound by the collective-bargaining
agreement entered into between the Union and the Respondent,
“including but not limited to provisions covering wages, work-
ing conditions, and fringe benefits, or the existing collective
bargaining agreement by and between the Union and its em-
ployers effective until completion of job.” The collective-
bargaining agreement set commercial wage rates for journey-
man painters, paperhangers, sheet rock tapers, and floaters at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068
$14.04 per hour from April 1, 2002, through March 31, 2003. It
also provided for show-up pay and that “five (5) eight hour
days or four (4) ten (10) hour days shall constitute a weeks
work. Forty hours shall constitute a week’s work beginning
with Monday at 7:00 A.M. through Saturday 6: A.M.” It also
provided that Saturday work shall be paid at the rate of time
and one half with work on certain holidays to be paid at the rate
of double time.
Much of the testimony elicited by the General Counsel from
the witnesses including that admitted to by Lincoln Alexis on
the stand was uncontroverted. As set out in the General Coun-
sel’s brief, Respondent contracted with Broadmoor, a general
contractor, to paint the long term parking structure at the air-
port. Broadmoor executed a project agreement with several
labor organizations, including the Union for all construction
work to be performed at the airport with limited exceptions.
Article 6 of the project agreement provides that the signatory
unions are recognized as the sole source of employment refer-
rals for all onsite construction work covered by the agreement.
All employees who worked on this project were required to
register with a signatory union and obtain a job referral. Article
IX of the project agreement sets out the hours of work, a 30-
minute lunch period and overtime pay for all hours worked in
excess of 8 hours per day. Respondent’s employees worked a 7
a.m. to 3:30 p.m. shift at the airport and were entitled to a lunch
period from 12 to 12:30 p.m. Article X of the project agreement
provides for employees to receive 2 hours show-up pay for
reporting to work if no work is available. Article XI of the
agreement provides that employees shall be paid prior to the
end of their shift on the designated payday which was Friday
for Respondent’s employees.
In spite of having bound itself to the applicable provisions of
the memorandum of understanding and to the provisions con-
tained in the Union’s area contract, the testimony of employees
and alleged discriminatees Maurice Richard, Wilbert Mitchell,
Richard Mitchell, and Earin Garner which was in part undis-
puted by Respondent, establish that Respondent largely ignored
the contractual obligations it had undertaken. Alexis required
his employees to be at the airport by 8 a.m. but Alexis regularly
did not arrive at the job until 10 or 11 a.m. The testimony of
these employees established that they were unable to start work
until they received instructions from Alexis, and thus, were
required to wait for his arrival to start to work. They were not
paid show-up time as contractually required. Respondent stipu-
lated there was work available on this project until at least No-
vember 16, 2003. Respondent also had work to perform at a
Sears store in Gautier, Mississippi, and had contracts with Sears
to provide exterior painting for stores in Louisiana and Missis-
sippi which was to be performed during February to May 2003.
The employees were not paid overtime for hours worked in
excess of 8 hours per day. They were also not permitted to take
lunch at the contractually provided time of 12 noon. They were
also not regularly paid the union rate of $14.04 per hour for
journeyman painters. They were not paid prior to the end of
their shifts on Fridays as contractually required, but were not
paid until the following Saturday or later. They were not given
statements of earnings and sometimes were paid in cash with
no regularity of the amount of their pay. Having failed to pay
his employees the contractually required rate of pay on Fridays
as required, the Respondent made them loans to tide them over
which were to be repaid at such times as Alexis might belatedly
pay them. Respondent Alexis attempted to deflect the effects of
his failure to timely and accurately pay these employees by the
end of their shift on Fridays and otherwise comply with Re-
spondent’s contractual obligations by asserting that he some-
times bought lunch for the employees. This attempted defense
to the complaint allegations is irrelevant to the issues of Re-
spondent’s failure to comply with its contractual obligations.
Respondent’s employees became dissatisfied with their
treatment by Alexis and they complained to the Union whose
business representative, Ray Laux, met with some of the em-
ployees and Alexis. The union representative told Alexis he
needed to comply with the agreement and warned him not to
retaliate against the employees. Alexis agreed to comply, but
instead singled out Maurice Richard, Wilbert Mitchell, and
Richard Mitchell who had complained to the Union about
Alexis’ failure to comply with the agreement and laid them off
with negative comments on their having engaged in protected
concerted activities by making complaints against Alexis’
treatment of the employees.
Respondent brought employees who he had selected for hire
to the Union’s offices where they signed authorization cards to
join the Union and were issued referral slips by the Union to
Respondent’s job on the airport project. Wilbert Mitchell had
28 years experience as a painter and a 10-year work experience
with Respondent. He worked for Respondent on residential
projects and commercial projects including work on Sears’s
projects in Mississippi. Wilbert had painted the residence of
Alexis and had shared a motel room with Alexis when he
worked on projects outside the New Orleans area. Wilbert went
to the union hall, and signed the union authorization card, and
received a referral slip to the airport project on October 11,
2002. He was one of the first employees hired for this project.
Wilbert testified he became dissatisfied regarding wages and
conditions on the airport project as employees were not receiv-
ing show-up pay and were not receiving the correct hourly and
overtime rate. On some days the employees reported to work
but could not work because Alexis did not show up. He ad-
dressed these concerns to Alexis.
Maurice Richard who had 5 years experience as a painter
went to the union hall on January 13, 2003, and signed a union
authorization card and received a referral slip to work at the
airport. He performed trim work at the airport. He received a
pay raise. Approximately a week after Maurice started work at
the airport he asked Alexis why he was required to work 10
hours per day, but was only paid for 8 hours. Alexis told him
that Respondent did not pay for 10-hour shifts. Maurice dis-
cussed this with his coworkers and found that they were also
dissatisfied with working conditions at the airport.
Richard Mitchell who has almost 20 years experience as a
painter was referred to Respondent by his brother, Wilbert, and
worked for Respondent at a Sears in Kenner, Louisiana. On
February 19, 2003, Richard went to the union hall and signed a
union authorigation card and received a referral for the airport
project.
ALEXIS PAINTING CO. 1069
Earin Garner who has worked as a painter most of his life,
went to the union hall on March 19, 2003, and signed a union
authorigation card and received a referral for airport project. At
that time he was told he would receive his pay on Fridays prior
to the end of the workday.
The employees were not satisfied with their terms and condi-
tions of employment at the airport project. Alexis learned that
Wilbert Mitchell had complained about not receiving show-up
pay and not being paid on Fridays. About March 3, 2003,
Alexis told Wilbert that the employees seemed upset and asked
Wilbert if he would help him as the employees respected
Wilbert. He also asked Wilbert if he had gone to the Union and
told Wilbert that he did not want the Union to know his busi-
ness. Later that day or the next day Alexis asked Wilbert if he
was sure that he had not gone to the Union.
On approximately Wednesday, March 5, 2003, Wilbert and
Richard Mitchell went to the union hall and met with Business
Representative Herman Laux. They told him employees were
not receiving show-up pay, lunch at 12 p.m., or their paycheck
prior to the end of the workday on Fridays. On Thursday,
March 6, 2003, Laux visited the employees at the airport pro-
ject to investigate the complaints. Laux met with and inquired
of the employees whether they had check stubs, W-2 forms or
other documentation showing their correct pay. None of the
employees were able to produce documentation, as they were
not getting paid with checks. Laux told the employees, that they
were entitled to show-up pay, a lunch period at noon, and their
paychecks by 3 p.m. on Fridays. Alexis arrived at the project
while Laux was there and Laux told Alexis he was “f—king
these guys out of their money” and that the Union was going to
get to the bottom of this matter. After Laux left, Alexis told the
employees, “[N]ow if anybody asks you what you make, you
tell them $14.08 an hour, nothing more and nothing less.”
Union Representative Ray Schlaudecker testified he met
with Alexis, on Friday, March 7, at the union hall to discuss the
Respondent’s failure to follow the contractual rules with re-
spect to show-up time pay, lunch periods, and payday. Alexis
told him he would correct the problems. However, on the same
day (March 7), Respondent failed to pay employee Maurice
Richard for work he performed that week. On the following day
(March 8), Alexis told Maurice he did not have the money to
pay him but he would loan Maurice $100 and then required
Maurice to sign a loan agreement for this amount instead of
paying Maurice for the work he had performed.
On Monday, March 10, Alexis told all the employees to
wash cars because paint had blown over several cars. Wilbert
Mitchell declined as he was recovering from the flu and did not
want to get wet. Alexis told him to leave and he did so. On the
same day employees Maurice Richard, Ray Hampton, and
Dieon Austin met with Union Representative Schlaudecker and
told him they were not receiving show-up pay. Alexis tele-
phoned Schlaudecker who told him that none of his employees
had come to the union hall. Schlaudecker told the employees to
contact him if Alexis gave them any problems. As they left the
union hall the employees observed Alexis in his truck outside
where he observed them leaving the union hall. Alexis called
them over to him and asked them what they were doing. The
employees were fearful of retaliation and told Alexis they had
been told to go to the Union and file a grievance but had not
filed a grievance. At that point Schlaudecker came out of the
hall and told Alexis the employees had come to the hall and
met with him because they had problems to be resolved. He
asked Alexis into the hall to discuss the problems and Alexis
and the employees met with Schlaudecker who told Alexis to
write the employees’ problems down so they could be cor-
rected. Alexis told them to tell him of the problems. They told
him of their dissatisfaction with Respondent’s failure to give
them show-up time pay, overtime pay, and having to wait until
1 to 3 p.m. to take lunch. Maurice also told Alexis he was tired
of not receiving his weekly pay until Saturdays, Sundays, and
Mondays which he had earned in the prior week rather than on
Fridays as required by the Union’s area contract and project
agreement. Alexis told Schlaudecker he had purchased lunch
for the employees. Schlaudecker told him the employees were
still entitled to a lunch period between 12 and 12:30 p.m. He
also told Alexis to make sure that the employees were not
harmed for coming to the Union with their problems. That eve-
ning Alexis telephoned Maurice at home and told him he was a
good worker, and very reliable but that he was not going to
permit him to work. Alexis said, “I’m not going to be needing
you no more. I’m not going to be working you over at the Air-
port nor either [at] Sears because you talk too much. You’re
hurting me and I have to set an example for guys that’s going
down to the Union on me.” At the hearing Alexis contended
that Maurice Richard was laid off because he was not needed at
the airport and did not have the skills to work at Sears.
On Wednesday, March 12, Alexis called Wilbert at his house
and asked if he was going to return to work. Wilbert said they
needed to discuss the pay scale before returning to work. Alexis
then said he would call him back and did so 15 minutes later.
He then told Wilbert, “I don’t think its going to work out be-
cause I need people out there that I can trust. I don’t need peo-
ple out there that’s going to be going to the Union every time
they have a beef.” At the hearing Alexis stated that Wilbert was
laid off because he did not trust him. Subsequently on Friday,
March 14, Wilbert and Richard Mitchell met Alexis at a Circle
K (a gas station) to receive their paychecks. Alexis told them
that the employees he could trust not to go to the Union would
work at a Sears in Jackson, Mississippi, but that he would not
take employees he could not trust.
On March 18, Respondent hired five employees to work at
the airport. On March 19, Respondent hired three employees
including Earin Garner to work at the airport. Garner was paid
on Friday, March 21, for work he performed during that week.
Garner did not report to work on Monday, March 24, because
of rain. He testified he had been told by Alexis to come to work
when the rain stopped. Garner reported for work on Tuesday,
March 25, as the rain had stopped and he had not received any
message telling him not to return to work. When he arrived he
noticed that three other employees were working. None of them
knew what Garner’s assignment was that day and they at-
tempted to call Alexis but Garner was unable to speak to Alexis
until 4 hours later. Alexis asked Garner why he had reported to
work and Garner told him, that he (Alexis) had told him to
come to work when the rain stopped. Alexis told Garner to
leave the airport and said he would call him. On Wednesday,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1070
March 26, Garner called Alexis and asked if he would be paid
for the time he had worked. Alexis said he would receive show-
up pay but would not be paid for the hours he worked. Garner
called Alexis on Thursday, March 27, and asked him if he
would get paid on Friday. Alexis told him to call at noon on
Friday, March 28. Garner did so and was told by Alexis to call
at 3 p.m.. Garner did so and was told by Alexis to call him back
at 5 p.m. Garner called at 5 p.m., 7 p.m., and 8 p.m., but on
each occasion Alexis did not answer the phone. He finally
reached Alexis at 9 p.m. Garner told Alexis he needed his
money to pay a bill. Alexis told him, “[I]f I pay you tonight,
I’m not going to need you anymore.” At 10 p.m. that evening
employee Roy Hampton came to Garner’s house and handed
him a check postdated for March 29, for $43 and two one-page
letters. One letter states that Garner was “paid in full not to
return to job site.” The second letter states that Garner was not
permitted to return to the airport as an employee. On the next
day, March 29, Alexis called Garner and told him he would be
arrested if he returned to the airport. A day or two later, Alexis
called Garner and told him he was a good worker and would
get with him in about 2 months when Garner resolved his situa-
tion, but did not specify what situation he was referring to.
Garner later called Alexis and told him he wanted to come back
to work. He was not permitted to return to work. Alexis con-
tended at the hearing that Garner was terminated because he
was insubordinate by reporting to work when he had been in-
structed not to come to work. Between March 31 and June 6,
Respondent hired four employees for the airport job.
In July 2003, Alexis took Richard Mitchell to lunch and
showed Richard a copy of the charge filed by his brother
Wilbert in Case 15–CA–70724 and a copy of the consolidated
complaint dated June 2. He asked Richard if he knew anything
about these documents or what his brother was doing. Respon-
dent did not present any testimony or other evidence to refute
Richard’s testimony but contended that he had never had a
conversation with Richard about Wilbert. Richard also testified
that in July 2003, Alexis called him at home about 20 times
between 6:30 and 7 p.m., and on each occasion asked Richard
if he was sure he had not spoken to Wilbert or knew what
Wilbert was doing. Alexis did not advise Richard that he was
not required to answer the questions nor that he would not suf-
fer any reprisals if he refused to answer the questions. Respon-
dent did not present any evidence to dispute Richard’s testi-
mony.
Additionally in July 2003, Richard was approached by
Alexis and Dieon Austin while he was working at the airport.
Alexis told Richard that Austin was the supervisor and then
said, “Richard, I don’t want any problems on the job. If any-
thing goes down, I am going to have to lay you off or if I think
you are sabotaging my job, I will have to fire you.” Alexis also
told Richard he would be terminated if he was withholding
information. This testimony of Richard was not disputed by
Alexis who failed to present any evidence to refute it.
Dieon Austin informed Richard on a Wednesday in July
2003, that Respondent was going to pay the employees on Sat-
urday whether they liked it or not. The following day, Thurs-
day, Richard asked Alexis if this was true. Alexis said it was
true because the employees did not want to work on Saturday.
Richard told Alexis it was against the law to fail to pay the
employees on Friday. The next day (a Friday), Alexis paid the
employees. When he gave Richard his check, he told him he
was laid off due to budget cuts.
Two or three weeks later in August 2003, Alexis called Rich-
ard to return to work at the airport. When he arrived at the air-
port Alexis told him he did not want him talking to anyone and
that he would be terminated if there was any kind of “static” on
the job. Richard told Alexis he just wanted to do his job and be
paid. After his second day back on the airport job Alexis called
Richard and asked him how Broadmoor had found out about
his business with Wilbert. Richard said he did not know. He
then asked Richard what other charges Wilbert had filed. Rich-
ard said he did not know. Alexis said it was a problem so he
had to lay Richard off. He then asked Richard if he were going
to join the bandwagon and file charges with the Board. Richard
said he would do what he had to. Respondent contends that he
no longer needed Richard in July and had only needed him for
a day in August to do some finish work at the airport. Respon-
dent hired Gary Matthews on August 18 and Derrick Domino
on September 18 to work at the airport.
Analysis
As the General Counsel stated in his opening statement, this
case is about the failure of the Respondent to follow the terms
of the contractual obligations it had undertaken and its determi-
nation to rid itself of any employees who questioned his failure
to abide by these contractual obligations. In pursuing this
course of conduct, Respondent unlawfully interrogated and
threatened its employees and ultimately laid them off or dis-
charged them in retaliation for their assertion of their rights
under the terms of the contract. I credit the testimony of Mau-
rice Richard, Wilbert Mitchell, Richard Mitchell, and Earin
Garner as set out above. The evidence is clear that Respondent
not only interrogated and threatened them and terminated them
in violation of their rights under Section 7 of the Act, but made
it abundantly clear to his employees that these actions were
taken against them because of their attempts to seek the help of
the Union in protecting their rights as set out in the contract and
as provided by Section 7 of the Act. I did not find Alexis to be
a credible witness and to the extent that there are conflicts in
his testimony and that of the aforementioned employees, I
credit their testimony over that of Alexis. I note also that much
of the circumstances in which Alexis took adverse actions
against these employees were not in dispute. In answer to the
allegations that he failed to pay the employees the hourly rates
of pay set out in the contract and to pay overtime for time
worked in excess of 8 hours per day and that he failed to pay
them show-up time and pay them prior to the end of the day on
Fridays as required by the contract, Alexis sought to deflect
these allegations by his assertions that he bought lunch for the
employees and lent them money. These contentions by Alexis
do not in any way rebut the testimony presented by the General
Counsel, which was that Alexis did not follow the contract he
had agreed to, by paying the employees the hourly rate of pay,
overtime, show up time, time and a half for overtime and pay-
ing them weekly on Friday afternoons on working time, as set
out in the contract. Supervisor Dieon Austin did not testify.
ALEXIS PAINTING CO. 1071
I thus find that Respondent violated Section 8(a)(1) of the
Act by the interrogation of and threats issued to its employees,
and by its instructions that the employees not discuss their
wages. I find that Respondent violated Section 8(a)(3) and (1)
of the Act by its layoffs of Maurice Richard and Wilbert
Mitchell and violated Section 8(a)(3), (4), and (1) of the Act by
its layoffs of Richard Mitchell and violated Section 8(a)(4) and
(1) of the Act by its interrogation of employees as to whether
the employees had resorted to seeking the protection of the
Board and what they had disclosed to the Board and by threat-
ening them with termination if they withheld information, all of
which was clearly interference with Board process and the em-
ployees’ rights under the Act. I find that Respondent violated
Section 8(a)(1) of the Act by the discharge of employee Earin
Garner.
It is clear that Garner engaged in protected concerted activity
when he demanded to be paid on Friday, March 28, for his
work on the previous Tuesday which was consistent with the
union contract which set out the terms of the employment rela-
tionship. Garner’s insistence that he be paid on the Friday af-
ternoon was a reasonable invocation of the collectively bar-
gained right and was protected concerted activity. Interboro
Contractors, 157 NLRB 1295 (1966); NLRB v. City Disposal
Systems, 465 U.S. 822 (1984); Lorac Construction Services,
318 NLRB 1034 (1995), citing NLRB v. City Disposal Systems,
Inc., at 840 supra, where the Court held that, “as long as the
nature of the employee’s complaint is reasonably clear to the
person to whom it is communicated and the complaint does, in
fact, refer to a reasonably perceived violation of the collective
bargaining agreement, the complaining employee is engaged in
the process of enforcing the agreement.”
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), the Board set forth its causation test for cases alleging
violations of the Act that turn, as does the instant case, on em-
ployer motivation. Initially the General Counsel must establish
that antiunion motivation was a factor in the challenged em-
ployer conduct or decision. The burden then shifts to the em-
ployer to prove that it would have taken the same action even in
the absence of the employees’ engagement in protected con-
certed activity. See Manno Electric, Inc., 321 NLRB 278, 280
fn. 12 (1996). In order to establish a prima facie case the Gen-
eral Counsel must demonstrate by the preponderance of the
evidence that (1) the employee was engaged in protected con-
certed activity; (2) the employer was aware of the activity; (3)
the activity was a substantial or motivating reason for the em-
ployer’s action; and (4) there was a causal connection or nexus
between the employer’s animus and its discharge decision.
Applying the aforesaid principles of law, I find that the Gen-
eral Counsel has established a prima facie case in each of the
cases, that Respondent’s antiunion animus was a motivating
factor in Respondent’s layoffs and discharge of these employ-
ees, and that Respondent has failed to rebut the prima facie case
by the preponderance of the evidence as Respondent has not
established that he would have laid off or discharged these
employees in the absence of the unlawful antiunion animus.
CONCLUSIONS OF LAW
1. Respondent Lincoln Alexis d/b/a Alexis Painting Com-
pany is an employer within the meaning of Section 2(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 violated Section 8(a)(1) of the Act by its
unlawful interrogation of its employees who went to the Union
concerning their wages and hours and other terms and condi-
tions of employment and by instructing them not to discuss
their wages.
4. Respondent violated Section 8(a)(1) of the Act by threat-
ening its employees with termination and with refusal to trans-
fer them to additional projects because of their resort to the
Union.
5. Respondent violated Section 8(a)(4) and (1) of the Act by
interfering with Board process by seeking information as to
whether its employees had resorted to the Board and threaten-
ing its employees with termination if they withheld the infor-
mation.
6. Respondent violated Section 8(a)(3) and (1) of the Act by
laying off its employees Maurice Richard and Wilbert Mitchell,
because of their engagement in protected concerted activity.
7. Respondent violated Section 8(a)(3), (4), and (1) of the
Act by laying off employee Richard Mitchell because of his
engagement in protected concerted activity.
8. Respondent violated Section 8(a)(1) of the Act by its dis-
charge of employee Earin Garner because of his engagement in
protected concerted activity.
9. The above unfair labor practices in conjunction with Re-
spondent’s status as an employer affect commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that Respondent has violated Section 8(a)(1)
of the Act, it shall be ordered to cease and desist therefrom and
to take certain affirmative actions designed to effectuate the
policies of the Act.
Respondent, having discriminately laid off Maurice Richard,
Wilbert Mitchell, Richard Mitchell, and discharged Earin Gar-
ner shall be ordered to offer them reinstatement to their former
positions, or if those positions no longer exist, to substantially
equivalent positions and make them whole for any loss of earn-
ings and benefits they sustained as a result of the unlawful dis-
crimination against them less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]