B.J.P. Painting and Decorating Co.

National Labor Relations Board - Board Decisions

Oct 30, 1973

206 N.L.R.B. 800 (N.L.R.B. 1973)

800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. J. Provenzale Company, Inc. d /b/a B.J .P. Painting
and Decorating Co. and Frank Land, Jr. Case 8-
CA-7240
October 30, 1973
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On April 30, 1973, Administrative Law Judge Well-
ington A. Gillis issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a brief in support thereof.
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, and
conclusions of the Administrative Law Judge only to
the extent that they are consistent herewith.
The Administrative Law Judge found that the evi-
dence was insufficient to sustain the allegations that
Respondent violated Section 8(a)(1) by threatening
employees for going to the Union, and Section 8(a)(1)
and (3) by laying off and failing to recall two employ-
ees because of their union activities. Accordingly, he
recommended that the complaint be dismissed in its
entirety. The General Counsel has filed exceptions to
the above findings which, for the reasons hereinafter
set forth, we find meritorious.
Provenzale's Threats to Frank Land, Jr., and Tom
Land
The facts relating to the alleged threats, as found by
the Administrative Law Judge, are undisputed. Brief-
ly, the record shows that Respondent's president,
Provenzale, while with a group of employees, on three
occasions made threatening remarks to two employ-
ees. Both employees had recently been in contact with
the Union, complaining about working conditions.
On each occasion the tenor of Provenzale's comments
was to register his displeasure caused by these em-
ployees' going to the Union with their complaints.
Moreover, on April 5, the second occasion on which
he made his remarks, the atmosphere was in the con-
text of his chastising the crew on duty for what he
believed to be their harrassment of his supervisor.
Obviously angered, he indicated he would not put up
with anyone interfering with the way he wanted to
run his business, and if the employees did not like this
situation, they could leave.
The Administrative Law Judge concluded that a
finding that these utterances constituted threats of
discharge or other reprisals was unwarranted, based
on the circumstances and context, including a lack of
union animus on the part of Respondent. We find it
difficult to see how these statements themselves can
be interpreted as anything other than as assertions
that Provenzale did not like dealing with his employ-
ees through their chosen representative. In addition,
Provenzale's comments on April 5 were a direct
threat.
The Board has held, in circumstances less intimi-
dating than those present here, that a statement by a
supervisor to an employee that the boss was angry
because the employee had taken a grievance to the
union constituted an independent violation of Section
8(a)(1), because it had the effect of inhibiting free
exercise of the employee's Section 7 rights.' In dis-
agreement with the Administrative Law Judge, we
find the statements made by Provenzale at least as
inhibiting as those made in the Colony case. Accord-
ingly, we find that the Respondent, by threatening
employees Frank Land, Jr., and Tom Land with dis-
charge or other reprisals because of their union activi-
ties, violated Section 8(a)(1) of the Act.
The Layoffs of Frank Land, Jr., and Tom Land
The General Counsel takes exceptions to various
factual findings of the Administrative Law Judge with
respect to the layoffs. While we do not agree com-
pletely with the General Counsel, as set out below, we
do find that the undisputed facts are sufficient in
themselves to sustain the alleged unlawfulness of
Respondent's actions in laying off the alleged discri-
minatees.2
Initially, we note that it is undisputed that both
discriminatees had engaged in union activities and
that Respondent was well aware of this. The Adminis-
trative Law Judge found and Respondent does not
contest the fact that Frank Land, Jr., was selected by
his fellow employees to be their shop steward in late
1971, and from that point until his layoff by Respon-
dent he had contacted the Union by three personal
' Colony Furniture Company, 168 NLRB 725, 726. The Board, in affirming
the Trial Examiner 's finding, noted that the employee was later terminated,
which is also the situation here.
2 While it is undisputed that both men were laid off, Respondent offered
testimony through Roberta Smedly, one of its secretaries , that she had con-
tacted the wife of one of the men by phone and left word that the men could
return to work. Although the Administrative Law Judge credited this testi-
mony over the denials of each man's wife, we find this testimony of little
probative value, inasmuch as she could not identify the date of the conversa-
tion nor the exact person with whom she had spoken. The record is otherwise
devoid of any evidence that either man was ever contacted directly with an
offer to return to work and the testimony of both was that no offer was ever
made.
206 NLRB No. 131
B.J.P. PAINTING AND DECORATING CO.
trips to the union hall and by at least six phone calls.
On his last visit to the union hall, Frank was accompa-
nied by Tom Land. Respondent's knowledge of these
activities is established by Provenzale's reference to
them in his threatening comments.
Although the Administrative Law Judge concludes
otherwise, we have already found evidence of
Respondent's union animus by virtue of Provenzale's
threatening remarks which we have found violative of
Section 8(a)(1).
With regard to unlawful motivation, Respondent
claims that it had none and offers its defense of eco-
nomic necessity to support this claim. Although Gen-
eral Counsel contests this, we find it unnecessary to
resolve the conflict. As an alternative position, Gener-
al Counsel contends that even assuming the economic
necessity for laying off some employees,
Respondent's motivation for including these two men
in the layoff was unlawful. We agree.
In support of this position General Counsel points
to the timing involved. The record shows that by May
1, Respondent had chosen those employees who
would remain after the cut back, and neither of the
Lands was included. Thus, it was only 3-1/2 weeks
after Provenzale's last statement of animus regarding
the Lands' protected activities when the decision was
made to get rid of them.
Also, the evidence shows that Respondent's stated
reason for choosing the employees it did to remain as
its permanent crew was a pretext. Provenzale claimed
he chose the men to stay on the basis of their ability
to get along with their then supervisor, Solomon, as
well as on the quality of their work. However, there
is no evidence that there had ever been any problem
between Solomon and either Frank or Tom Land, nor
is there evidence that these men were less satisfactory
workers 'than the rest of the crew. In addition, both
men had seniority and although the area agreement
does not provide for seniority rights on layoffs, it goes
against generally accepted business practices to lay
off the most senior men, all else being equal. In fact,
the record shows that a new man was placed on the
permanent crew as of May 1, one who did not know
Solomon and had never worked for Respondent, and
whose ability to get along with Solomon, therefore,
could not have been known at the time. Thus, it re-
mains as a reasonable inference that the only negative
factor that could have contributed to Respondent's
decision to not include these men in the permanent
crew was their union activities, about which Respon-
dent had voiced its displeasure. Accordingly, we find
that Respondent's motivation for the termination of
Frank Land, Jr., and Tom Land was discriminatory
within the meaning of the Act and that Respondent
has therefore violated Section 8(a)(1) and (3) ,of the
Act.
REMEDY
801
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent has discrimina-
torily laid off Frank Land, Jr., and Thomas Land on
May 3, 1972, and has since failed and refused to recall
them, because of their union activities, in violation of
Section 8(a)(1) and (3) of the Act, we shall order the
Respondent to offer them immediate and full rein-
statement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and to make them whole for any
loss of pay they may have suffered as a result of this
discrimination against them by payment to them of a
sum of money equal to that which they would have
earned as wages, from the date of reinstatement, less
their net earnings during such period, in accordance
with the formula prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289, together with interest at the rate
of 6 percent per annum to be added to such backpay,
such interest to be computed in accordance with the
formula prescribed in Isis Plumbing & Heating Co.,
138 NLRB 716. Having further found that the Re-
spondent has threatened employees with discharge or
other reprisals for exercising their Section 7 rights, we
shall order that it cease and desist therefrom and post
the appropriate notices.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for paragraph 3 of the
Administrative Law Judge's Conclusions of Law:
"3. By laying off Frank Land, Jr., and Thomas
Land, on May 3, 1972, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act."
2. Add the following paragraph:
"4. By threatening employees with discharge or
other reprisals for exercising their Section 7 rights, the
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(l) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, B. J.
Provenzale Company, Inc., d/b/a B.J.F. Painting and
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decorating Co., Cleveland, Ohio, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the International
Brotherhood of Painters and Allied Trades, District
Council No. 6, AFL-CIO, or any other labor organi-
zation, by laying off or otherwise discriminating
against any employee with respect to hire, tenure, or
any other term or condition of employment.
(b) Threatening discharges or any other reprisals
for engaging in union activity.
(c) In any other manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guarenteed in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer to reinstate Frank Land, Jr., and Thomas
Land to their former positions or, if these positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges.
(b) Make whole Frank Land, Jr., and Thomas
Land for any loss of earnings they may have suffered
by reason of the unlawful action taken against them
in the manner set forth in the section of this Decision
entitled "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, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its place of business in Cleveland, Ohio,
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Re-
gional Director for Region 8, after being duly signed
by Respondent's authorized representative, shall 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 Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
3 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in the In-
ternational Brotherhood of Painters and Allied
Trades, District Council No. 6, AFL-CIO, or any
other labor organization, by laying off employees
or otherwise discriminating against them because
of their union activities.
WE WILL NOT threaten employees with dis-
charge or any other reprisals for engaging in
union activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
WE WILL offer to Frank Land, Jr., and to
Thomas Land immediate and full unconditional
reinstatement to their former positions or, if such
jobs no longer exists, to substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges previously enjoyed by
them, and WE WILL pay them for any loss of
pay they may have suffered as a result of their
being laid off on May 3, 1972.
B. J. PROVENZALE COMPA-
NY , INC. d/b/a B.J.P.
PAINTING AND DECORATING
Co.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1695 Federal Office Building, 1240
East 9th Street, Cleveland, Ohio 44199, Telephone
216-522-3715.
B.J.P. PAINTING AND DECORATING CO. 803
DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Administrative Law Judge: This
case was tried before me on February 28, 1973, at Cleve-
land, Ohio, and is based upon a charge and an amended
charge filed on September 12 and 29, 1972, respectively, by
Frank Land, Jr., an individual, upon a complaint issued on
November 30, 1972, by the General Counsel for the Nation-
al Labor Relations Board, hereinafter referred to as the
Board, against B. J. Provenzale Company, Inc., d/b/a B.J.
P. Painting and Decorating Co., hereinafter referred to as
the Respondent or the Company, alleging violations of Sec-
tion 8(a)(1) and (3) and Section 2(6) and (7) of the National
Labor Relations Act, as amended (61 Stat. 136), and upon
an answer timely filed by the Respondent denying the com-
mission of any unfair labor practices.
All parties were represented by counsel, and were afford-
ed full opportunity to examine and cross-examine witnesses,
to introduce evidence pertinent to the issues, and to engage
in oral argument. A timely brief was subsequently filed by
counsel for the General Counsel.
Upon the entire record in this case,' and from my obser-
vation of the witnesses, and their demeanor on the witness
stand, and upon substantial, reliable evidence "considered
along with the consistency and the inherent probability of
testimony" (Universal Camera Corp. v. N.L.R.B., 340 U.S.
474, 496), I make the following:
Findings and Conclusions
1. THE BUSINESS OF THE RESPONDENT
B.J.P. Painting and Decorating Co. is a division of B. J.
Provenzale Company, Inc., an Ohio corporation with its
principal place of business located in Cleveland, Ohio,
where it is engaged as a general contractor in the building
and construction industry. B.J.P. Painting and Decorating
Co. is engaged in painting and decorating subtrade work for
the building and, construction industry in Cleveland, Ohio.
Thu°Respondent annually performs services valued in ex-
cess,of $50,000 for Standard Oil Company of Ohio, which
enterprise in turn annually receives goods valued in excess
of $50,000 from points located outside the State of Ohio.
The parties admit, and I find, that the Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
' Subsequent to the close of hearing and the receipt of the transcript herein,
counsel for General Counsel filed a motion to amend official transcript,
specifically citing 28 suggested corrections . Thereafter, Counsel for the Re-
spondent filed an opposition to the motion asserting, in effect , that such
changes should be made only by the Administrative Law Judge and only to
the extent that the latter's memory and notes prepared during the hearing
indicate that such corrections conform the transcript to the testimony. Con-
sistent with my actual recollection of the testimony, in some cases supported
by my notes, I hereby make certain corrections of the transcript, as set forth
in the Appendix attached hereto [omitted from publication], some of which
are included in the General Counsel's motion and some of which are not. The
General Counsel 's motion is granted to the extent that it is consistent with
my ruling, and is denied as to the remainder.
II THE LABOR ORGANIZATION INVOLVED
The parties admit, and I find, that International Brother-
hood of Painters and Allied Trades, District Council No. 6,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
1. Whether B. J. Provenzale, Respondent's president, on
or about April 3, 5, and 10, 1972, unlawfully threatened its
employees with loss of employment or other reprisals in
violation of Section 8(a)(1) of the Act.
2. Whether, in laying off Frank Land, Jr., and Thomas
Land during the month of May 1972,2 the Respondent did
so for reasons relating to their union activities in violation
of Section 8(a)(3) of the Act.
B. Facts
The Respondent, B.J.P. Painting and Decorating Co., is
for the most part if not entirely engaged in maintenance
work on a certain few buildings in Cleveland occupied by
the Sohio Standard Oil Company, with which company it
has a general contract agreement. With respect to the paint-
ing operations covered by this agreement, the only phase
with which this proceeding is concerned, Sohio controls the
amount and type of work to be performed, designating from
week to week the areas to be painted, and the number of
Respondent's painters to be used. While the record is not
entirely clear, it appears that the Respondent Company,
and its predecessor until sometime in February 1972, the
W. E. Heiden Painting Co., at least adhered to the provi-
sions of, and in fact probably assumed, the area working
agreement of District Council No. 6. Negotiations during
April culminated with the Respondent and District Council
No. 6 executing on May I a maintenance agreement for
work on Sohio's Midland building.
B. J. Provenzale, as company president, has the ultimate
responsibility for all operations, but places the control of the
painting crew in the hands of the foreman, who, up until
May 10, was Harold Soloman and, thereafter, Oliver Miller.
This authority, with occasional exception, extends to the
foreman selecting which painters will work on any given day
or week. Although the size of the painting crew was at all
times, subject to variance, during the month of March, ex-
cept for a period when there was no work, the Respondent
worked a crew of approximately 10 men. Toward the end
of March, Provenzale received word from Sohio that there
would follow a period of limited work, and that the Respon-
dent could only keep a foreman and four painters.
Provenzale discussed the problem concerning a reduction
of the painting crew with his foreman, Soloman, raising the
possibility of commencing a rotation system. Although So-
loman was reluctant to work a rotation plan, because he felt
it more equitable and would keep all of the men working
some of the time, Provenzale nevertheless decided to insti-
2 Unless otherwise noted all dates hereinafter set forth refer to 1972.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tute a 2-week rotation procedure, whereby half the men
would work for 2 weeks and then wouldlay off for 2 weeks
while the other half was on. Provenzale also had another
problem, concerning the payment of the premium rate. Un-
der a union agreement with area painting contractors, with
which contract Provenzale adhered, during the lull season
between December and March, painters work on a basis of
"seven for eight," i.e., 7 hours' work for 8 hours' pay. From
the first working day in April, however, until December 1,
the "seven for eight" does not apply, and painters are to be
paid time-and-a-half, premium rate, for night work.
Thus, on April 3, Provenzale called the painters to his
office and told them that Sohio could not afford to pay the
premium rate and that if they wanted to continue working
until Sohio and the Union could work something out, they
would have to continue on the "seven for eight" basis. Prov-
enzale then apprised the men that, because of there not
being much work, he was going to have to put the men on
a rotating shift, indicating to them how it would work. The
men decided to go ahead and work and expressed their
willingness to go along with the rotation. At some point
during the discussion with the men, in reference to Frank
Land's having gone to the Union on a matter relative to
spray painting wages, hereinafter discussed, Provenzale
asked Land why he chose to go to the Union to collect his
spray wages rather than coming directly to him, and, at
some point told Land that "If he had any differences, he was
to come to him and not keep running down to the Union
about it.- 3
The Respondent then initiated the rotation plan, and,
with Solomon as foreman, five painters, including Frank
Land, commenced the first 2-week period.' On April 5,
Solomon, assertedly very upset over a number of harassing
telephone calls from the men concerning unfair treatment
giving rise to his having become fearful for himself and his
family, spoke with Provenzale and told him that he had quit
and left the job. Provenzale, in turn quite distressed, went
to the seventh floor of the Guildhall Building in the Termi-
nal Tower where the painting crew was working. He ad-
dressed the men, advising them of Solomon's quitting, and
letting them know how he felt about the whole matter.
Provenzale stated that, "I did not care if my foreman was
a Jew or if he was black or what his origin was and no one
is going to run my foreman off the job." Provenzale also let
the men know that if anyone did not like working under
these conditions he could quit. While it does not appear that
these remarks were directed at any particular person,' at
some point Provenzale looked at Frank Land and stated
that he did not "need no`middleman running back and forth
to the Hall complaining about what was going on in this
building." Following this open discussion with his men,
Provenzale telephoned Solomon, assured him that there
3 The quoted testimony is from that of former employee, Charles Gutauc-
kas. Provenzale testified that he merely made a comment concerning spray
painting to the effect that he did not see why anyone had to go to the Union
when he could come to him.
4 These five worked the 2-week period ending April 19, at which point five
other painters, including Tom Land, worked the 2-week period ending May
3.
5 There is no indication who, or which employees, had called Solomon and
thus prompted this incident.
would be no further harassment , and asked him to come
back . Solomon, reluctant , agreed to return , and did so for
another 4 weeks before leaving for good.
Tom Land testified that on or about April 10 or 12, at the
conclusion of a conversation pertaining to rotation between
Cass Stovcik and Provenzale in Tom Land's presence, Prov-
enzale asked Land, "What the hell is this about you and
your nephew going to the Union Hall?" Tom Land asserted-,
ly did not reply.
Toward the end of the second 2-week rotation period,
because of a lack of work , Sohio directed that the Respon-
dent lay off employees . About this same time , after several
weeks of- negotiations the Respondent and the Union on
May 1 entered into a maintenance agreement . The agree-
ment set forth the names of the reduced painting crew, as
decided by Provenzale , consisting of four painting employ-
ees under Foreman Solomon .6 Tom Land on May 3 and
Frank Land on May 5 were among those laid off. At the
time, Provenzale told those laid off, including both Lands,
that he had the men who were going to stay, and the rest
of them could go collect unemployment . Although appris-
ing Solomon of the selection, Provenzale made the decision
as to who would be laid off, as Solomon wanted no part in
this decision.
A week or so after the layoff, at a time when there was
a slight increase in work requiring a couple more painters,
Provenzale told Roberta Smedley , company secretary and
bookkeeper , to call both Lands. Smedley testified that she
called each two or three times before she finally made con-
tact with the wife of one of the two men, leaving word that
there was work available for both men and that they should
call the office.7
Neither Frank nor Tom Land thereafter worked for the
Respondent . Tom Land testified that on May 18 he was
called by a company bookkeeper named John , and told that
the rotation was over and that when the work picked up the
Company would give him a call . He also testified that he at
no time contacted the Respondent about getting his jobs
back . Although Frank Land testified that after his layoff he
called the Company inquiring about work, other than to
someone named Bill there is no indication to whom he
talked or what the response was.
As to the union activity of the two alleged discriminatees,
the record reveals that Frank Land, a member of Local 867,
was selected as job steward by informal vote of his fellow
painters, all union members , at a 9 p .m. night-shift lunch
break in November 1971. Although this fact was atone
point or another made known to officials of the Respon-
dent, including Provenzale , the District Council did not
recognize the action , for, commencing with the employment
6 On the last page of the agreement , under the heading "Name of Perma-
nent Employees" were listed the following. Harold Solomon-Foreman,
Sam Weissfeld, Sam Levine , Paul Fleming, and William Ed Stender.
7 Both wives, Judy Land and Geraldine Land, took the witness stand on
rebuttal for the limited purpose of testifying on this matter, each denying that
she had ever received a call from the Company in this regard. Notwithstand-
ing that Roberta Smedley could not recall which of the two she finally did
reach and the fact that neither of the wives was on the stand long enough
for one to evaluate her demeanor, I was totally impressed with the forthright-
ness of Smedley while on the witness stand . In fact, of all the witnesses who
testified in this proceeding, with one or two exceptions, Smedley appeared
to be the most believable. I credit her.
B.J.P. PAINTING AND DECORATING CO. 805
of Charles Gutauckas toward the latter part of February,
Gutauckas was designated union steward by Neil DeMarco,
executive secretary of the Union. The appointment of Gu-
tauckas was made notwithstanding union knowledge of
Land's claim to the position.
Whether in such capacity or otherwise, Frank Land's
union activity during his employment with the Respondent
prior to his layoff consisted of meeting with Union Business
Agent Theodore Kramer on two occasions and with Kram-
er and DeMarco on a third, concerning spray painting, and
telephoning the Union on some six occasions relative to the
same matter.
The first contact occurred in November 1971, when Land
went to see Kramer to complain about the fact that he and
his uncle, Tom Land, were performing spray painting with-
out'a permit having been issued by the Union. Kramer told
Land that he would check on it.
The second contact took place in early February 1972,
when Land again met Kramer at the union hall and com-
plained about the same thing, spray painting without a
spray permit. On this occasion, Kramer took issue with
Land concerning when a spray permit was required and,
when it was not, resulting in Land's decision not to raise the
point further with Kramer.
On the third and last occasion Land, with Tom Land, met
with DeMarco and Kramer on March 7, with Frank Land
complaining that they had not received the additional 40-
cent-an-hour pay for a spray painting job.' Kramer told
them that he would talk with their employer and see that
they got what they were entitled to, indicating that as long
as they were spraying, they were entitled to the spray rate
of pay. As a result, within a few days Kramer contacted
Provenzale, and Land received a check in the amount of
$2.95, reflecting a 40-cent increase per hour for an 8-hour
job, minus taxes and withholding. Tom Land, whose entire
union activity during his tenure with Respondent appears to
have been confined to this one visit to union headquarters
March 7, testified that he also received a check a week later
covering spray time.
Analysis and Conclusions
The General Counsel asserts that utterances of Prov-
enzale on April 3, 5, and 10 constitute threats of discharge
or other reprisals for seeking the assistance of the Umon
concerning employment practices with the Company. Con-
cerning the layoffs of Frank and Tom Land, the General
Counsel initially challenged the layoff selection of the two
Lands as unlawful, but not the business necessity giving rise
to the layoff requirement, or, at least, the need for some sort
of action. Subsequently, counsel for the General Counsel
took alternative positions in this regard, asserting as unlaw-
ful both the lack of a requirement for a-layoff as well as the
selection of the two discriminatees.
$ The Union's action in this regard is consistent with its bylaws, which
direct that the job steward must be" appointed by the business agent or-
executive secretary of the Union
9 Up until March 6, spray painting had been done by employees Scott
Hugebeck, Ralph Prunchak, and the two Lands. Thereafter Hugebeck and
Prunchak having left, only Frank and Tom Land performed-spray painting
work.
With respect to the basis for both the alleged 8(a)(1) and
(3) conduct, the record fails to support a finding that the
Respondent, and specifically, B..1. Provenzale, was pos-
sessed of animus toward the Union or toward union activity
generally on the part of his employees, all of whom were
members of the Union. In fact, the contrary appears to have
been the case, as so testified by Business Agent Kramer. At
no time during negotiations with the Union on the agree-
ment executed on May 1 was there evidence of other than
amicable relations between the Respondent and the Union.
With respect to the alleged 8(a)(1) conduct, it appears that
Provenzale was concerned that Frank Land did not first
approach him on the problem of spray wages before going
to the Union, and thus that Provenzale's feeling in this
regard prompted his bnef comments to Land on April 3 and
5, and to Tom Land on April 10. While, perhaps, Provenzale
was a little strong in registering his feelings that employees
should come to him if they have problems involving their
work, under the circumstances, and considering the context,
including a lack of union animus on the part of Provenzale,
to find that his utterances on these three occasions consti-
tuted threats of discharge or other reprisals is, in my opin-
ion, totally unwarranted. Accordingly, I find the
Respondent's conduct in this regard does not constitute a
violation of Section 8(a)(1) of the Act.
Turning to the two alleged discriminatees, contrary to the
belated assertion of Counsel for the General Counsel, the
record evidence reflects that, in fact, there was a diminution
of work starting in April when the rotation was instituted,
and growing more severe around May 1, when Sohio direct-
ed the Respondent to cut back its painting crew.10 Nor do
I find support for a finding of discriminatory motivation on
the part of Provenzale in selecting, among others, Frank and
Tom Land for layoff. Provenzale testified that in deciding
who to keep on as a permanent crew, he chose men whom
he felt were most compatible with his foreman, Solomon,
and compatible with the type work then being done. Solo-
mon, although not taking part in the selection, was made
aware of Provenzale's decision and registered no objections
to it. In this regard it is clear that Provenzale thought highly
of Solomon as a foreman, and that he wanted to keep him,
even though it was obvious the man was having some per-
sonal problems.
Provenzale did not offer any specific reason for not in-
cluding either Land on the permanent crew to be retained.
Under the circumstances, however, I attach no adverse sig-
nificance to this. While both Lands had more time with the
Respondent than others who were retained, including a new
employee, it is undisputed that seniority plays no part in
employee tenure with the Respondent or in the trade' gener-
ally. And in the absence of evidence of union animus on the
part of the Respondent or other evidence of discriminatory
motivation on the part of Provenzale toward the Lands, an
unlawful inference should not be drawn based upon the
failure to observe seniority, particularly where, as here,
none of the Respondent's employees had been with the'
Company for more than a matter of months.
Under all of the circumstances, including the existence of
io The lack of work, with sporadic and brief exception, continued at one
point in June requiring a mass layoff of all employees.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an economic justification for the layoff, the lack of union
animus on the part of the Company, and the fact that subse-
quent to the layoff the Respondent made efforts to contact
both employees concerning available work, I find that the
General Counsel has failed to prove by a preponderance of
the evidence that in laying off Frank Land, Jr., and Thomas
Land during May 1972, and thereafter not reemploying
them, the Respondent did so for discriminatory reasons in
violation of Section 8(a)(3) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, I make the following: 11
11 At the conclusion of the Respondent's case, Counsel for the Respondent
moved for a directed verdict, which motion I held in abeyance pending my
CONCLUSIONS OF LAW
1. B. J. Provenzale Company, Inc., d/b/a B.J.P. Paint-
ing and Decorating Co., is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Painters and Allied
Trades, District Council No. 6, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in any unfair labor
practices as alleged in the complaint.
[Recommended Order omitted from publication.]
review of the evidence . Consistent with my findings and conclusions herein,
and treating the motion as one to dismiss the complaint, I hereby grant said
motion.