C. Politis & Co.

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 183 (N.L.R.B. 2004)

C. POLITIS & CO.
343 NLRB No. 28
183
C. Politis & Company, Inc. and International Union
of Painters and Allied Trades District Council
21. Case 4–CA–32606
September 30, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND MEISBURG
On June 29, 2004, Administrative Law Judge David L.
Evans issued the attached decision. The Respondent filed
exceptions and a supporting brief.
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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and to adopt the recommended Order.
The Respondent has moved to strike certain remarks
made by the judge on the grounds that the remarks are
not supported by the record and are not necessary to the
resolution of the proceeding. Those remarks reflect a
judgment regarding the Respondent’s employment prac-
tices and the character of the Respondent’s owner. We
agree with the Respondent.
Parties appearing before this Agency must be treated
with respect. In addition, we must be diligent to ensure
that nothing stated in our decisions gives any party cause
to question whether they have been, or will be, treated
with respect.
We do not countenance the gratuitous remarks made
by the judge in his decision. We have therefore redacted
from the judge’s decision those and other related remarks
that are neither necessary to the resolution of this pro-
ceeding nor supported by the record.2
ORDER
The complaint is dismissed.
MEMBER LIEBMAN, concurring in the result.
I concur in the result here, and I agree that the judge
made gratuitously pejorative remarks in his decision,
which the Board should disavow.

1 There are no exceptions to the judge’s finding that the termination
of employee Robert Hinson did not violate Sec. 8(a)(1) and (3).
2 Our concurring colleague cites Victor’s Café 52, Inc., 338 NLRB
753, 756 fn. 10 (2002), for the proposition that the judge’s remarks
regarding the Respondent’s employment practices and the Respon-
dent’s owner’s character should not be redacted. We appreciate our
colleague’s concerns, but we believe that it is important to note that the
judge’s inappropriate remarks in Victor’s Café 52 pertained to credibil-
ity issues central to that decision that had been fully and fairly litigated
at the hearing. Here, on the other hand, the judge did not relate the
gratuitous observations to his legal conclusions. Furthermore, the
substance of these remarks did not pertain to the fully and fairly liti-
gated contentions, and the redactions have been narrowly drawn so as
not to detract from the public record.
But I part company with the majority with respect to
actually redacting the judge’s decision, to delete the re-
marks in question. This takes the Respondent’s motion
to strike too literally. What the judge wrote was, and
should remain, a matter of public record (and not a mys-
tery), whether or not it was appropriate.
Indeed, the majority’s approach is inconsistent with
our approach in a very similar case, Victor’s Café 52,
Inc., 338 NLRB 753, 756 fn. 10 (2002). There, a differ-
ent judge made pejorative remarks in his decision about
the charging party and counsel for the General Counsel.
Despite chastising the judge, we denied the General
Counsel’s motion to redact the judge’s decision, rejecting
the contrary view of the dissent. We should follow the
same approach here. The majority’s effort to distinguish
Victor’s Café is unconvincing but ultimately irrelevant.
What matters is whether we as a Board should be erasing
a matter of public record.
Barbara C. Joseph, Esq., for the General Counsel.
Walter M. Flamm, Jr., Esq., of Blue Bell, Pennsylvania, for the
Respondent.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case under
the National Labor Relations Act (the Act) was tried before me
in Philadelphia, Pennsylvania, on March 11, 2004. On Novem-
ber 24, 2003,1 International Union of Painters and Allied
Trades, District Council 21 (the Union), filed the charge in
Case 4–CA–32606 alleging that C. Politis & Co., Inc. (the Re-
spondent), had violated certain unfair labor practice provisions
of the Act. After administrative investigation of the charge, the
General Counsel of the National Labor Relations Board (the
Board) issued a complaint alleging that the Respondent had
violated Section 8(a)(3) and (1) of the Act by discharging em-
ployee Robert Hinson.2 The Respondent duly filed an answer to
the complaint denying the commission of any unfair labor prac-
tices.
Upon the testimony3 and exhibits entered at trial, and after
consideration of the briefs that have been filed, I enter the fol-
lowing findings of fact and conclusions of law.

1 All subsequently mentioned dates are in 2003, unless otherwise in-
dicated.
2 Sec. 7 of the Act provides that employees “shall have the right to
self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection.” Sec. 8(a)(1) provides that it is
unlawful for an employer “to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in section 7.” Sec. 8(a)(3)
provides that it is unlawful for an employer “by discrimination . . . to
encourage or discourage membership in any labor organization.”
3 Certain errors in the transcript have been noted and corrected.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD184
I. JURISDICTION AND THE LABOR ORGANIZATION’S STATUS
As the parties stipulated, the Respondent, a corporation with
an office and place of business in Newtown Square, Pennsyl-
vania, is engaged in the business of painting contracting. Dur-
ing the year preceding the issuance of the complaint, the Re-
spondent in the course and conduct of the business operations
purchased goods and materials valued in excess of $50,000
directly from suppliers located at points outside Pennsylvania.
Therefore, at all material times the Respondent has been an
employer that is engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. As the Respondent admits
in the answer, at all material times the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
In 2003, the Respondent, a nonunion painting contractor, had
a contract for certain work at the Upper Merion, Upper Provi-
dence, and Center City, Pennsylvania factories of GlaxoSmith-
Kline, Inc. (GSK). On April 18, the Respondent advertised in
the local newspaper for painters. Michael Getzfread, an experi-
enced painter and a paid organizer for the Union, responded to
the advertisement by calling the Respondent’s office. Pavona
(Pam) Politis-Berkowitz interviewed Getzfread over the tele-
phone. Politis-Berkowitz told Getzfread that he would be hired
at $15 per hour and told him to go to the Upper Merion site on
April 30 and report to Foreman Kurk Watson.4 On that date,
Watson put Getzfread to work at the Upper Providence loca-
tion.
Constantine (Gus) Politis is the Respondent’s owner and
president; he is also the father of Politis-Berkowitz. During the
afternoon of April 30, Politis inspected work that Getzfread had
been doing. Politis told Getzfread that he liked his work and
asked if Getzfread knew of other good painters. Getzfread re-
plied that he did, and Getzfread brought paid union organizer,
and experienced painter, John Bawell to the job on May 5. Dur-
ing that day, Politis told Getzfread that he was also pleased
with Bawell’s work, and Politis asked Getzfread if he knew of
any other good painters. Getzfread replied that he would try to
find another. Politis then told Getzfread and Bawell that the
Respondent was going to pay them $17 per hour. The next day,
Getzfread and Bawell brought paid union organizer, and ex-
perienced painter, Robert Hinson to the job. Watson took
Getzfread, Bawell, and Hinson to the Upper Merion job to
work there. During that day, Watson told Getzfread that the
Respondent was happy with the work that he, Bawell and
Hinson were doing.
Hinson is an African-American; Getzfread and Bawell are
white. Hinson testified that on May 9 he received his first pay-
check from the Respondent. It reflected that he was being paid
at $16 per hour. Hinson knew that Getzfread and Bawell were
being paid $17 per hour, and he suspected that the difference
was that he was an African-American. Hinson further testified
that on May 28 he asked African-American painters Mark Rus-
sell and Rick Ketchmore what they were being paid; neither

4 The Respondent stipulated that Watson is its agent within Sec.
2(13) of the Act.
would tell Hinson what they were being paid, but they both told
him that it was less than $17 per hour. Russell also told Hinson
that he felt his “pain.” Hinson then confronted Watson on the
issue; Hinson testified: “I told him that I had discovered that
African-American painters were earning less than white paint-
ers on the job.” Watson told Hinson to take the matter up with
Politis-Berkowitz. Hinson telephoned Politis-Berkowitz, and,
according to his further testimony: “I mentioned to Pam about
my concerns about being a new hire and only earning $16 an
hour, when the other two new-hires were earning $17 an hour.”
Politis-Berkowitz replied that she could not explain the differ-
ence but she would ask Politis about it later that day and get
back to Hinson during the following day. However, Politis-
Berkowitz did not get back to Hinson on the following day,
May 29.
On Friday, May 30, about 6 a.m., which was an hour before
the painters were scheduled to report for work, Hinson ap-
peared at the construction gate at the Upper Merion plant of
GSK with a hand-lettered picket sign (about 3-by-6 feet) which
read: “Why are black painters earning less than white paint-
ers?” Politis arrived close to 7 a.m. and spoke to Getzfread and
Hinson separately. Getzfread testified that Politis asked him,
“What is the matter with that guy? Is he stupid or something?”
(Getzfread did not testify what he may have replied.) Hinson
testified that Getzfread asked him, “Why would you pull a stunt
like that?” Hinson replied that he had attempted to cure his
grievance by calling Politis-Berkowitz at the office, but he had
gotten no response, “[s]o I took it upon myself to demonstrate it
in this way.” A GSK guard appeared and told Politis and
Hinson to discuss their problem off GSK’s property. Politis told
Hinson to leave but that the Respondent would pay him for
working the day. Politis added, “I will call you over the week-
end.” Hinson left.
Getzfread and Bawell testified that, later during the morning
of May 30, Getzfread handed Politis an envelope that bore the
name and return address of the Union. Inside the envelope was
a letter from Jerry Volpe, business manager and secretary-
treasurer of the Union. Volpe’s letter stated that some of the
Respondent’s employees had expressed interest in being repre-
sented by the Union and that Getzfread, Bawell and Hinson
“have agreed to work as organizers in this drive.” (Before this
point, Getzfread, Bawell, and Hinson had not disclosed that
they were attempting to organize the Respondent’s employees.)
Getzfread testified that Politis “just walked away looking at
it.”5 Bawell testified that, at some point on May 30 after he and
Getzfread presented Volpe’s letter to Politis, he approached
Politis and Watson as they were reviewing the letter. According
to Bawell, Politis asked Bawell if he was an organizer. Bawell
replied that he was. Bawell further testified that he and Politis
discussed the competitive market and that he “tried” to discuss
with Politis “an agreement for organizing.”6

5 Getzfread did not testify whether “it” was the letter or just the en-
velope.
6 As discussed infra, in his testimony Politis acknowledged receiving
the envelope from Getzfread but, in testimony that I do not credit, he
denied that he opened it or read Volpe’s letter.
C. POLITIS & CO. 185
On Monday, June 2, having heard nothing from Politis,
Hinson returned to the site with the same sign. This time, how-
ever, Hinson went to GSK’s “corporate” gate at the Upper Mer-
ion facility, rather than to the construction gate where he had
picketed on May 30. At the same time on June 2, Getzfread and
Bawell began picketing the construction gate of that facility
with signs claiming that the Respondent had engaged in unfair
labor practices.7 After the picketing at the two gates had gone
on for a short while, Watson approached Hinson, Getzfread,
and Bawell and told them that Politis wanted to meet them at a
nearby McDonald’s restaurant.
Politis-Berkowitz met Getzfread, Bawell, and Hinson at the
McDonald’s and told them that they had a choice of going back
to work or going home. Getzfread, Bawell, and Hinson re-
sponded that they would resume picketing instead. Politis-
Berkowitz replied, “No, wait for my father. He will be here
shortly.” When Politis arrived at the McDonald’s, he told
Hinson that he would give him the raise to $17 per hour if he
would go back to work. Hinson asked if the other African-
American employees would also receive that rate, and Politis
replied that they would. Hinson, Getzfread, and Bawell then
agreed to go back to work, and they did so. (And the Respon-
dent thereafter did implement the promised raises to all of its
African-American employees.)
Hinson and Bawell testified that when they returned to work
on June 2, Politis inspected the contents of the canvas tool bags
that they had always carried to work. Politis had not done that
before. Hinson and Getzfread testified that after they returned
to the GSK plant, Politis began closely monitoring their work,
whereas before the picketing Politis had not often appeared on
the job.
Hinson further testified that on June 2 Politis assigned him to
paint in a certain area of a large boiler room. Most of the paint-
ing was with black paint, but some objects were color-coded,
and Hinson had cans of other colors of paint with him on a cart
that he would push to wherever he was working. Hinson did not
finish the job on June 2. On June 3, when he resumed, Watson
told him to paint another area in black when he finished what
he was doing. Hinson agreed. Still later in the morning, Russell
(who was something of a leadman) told Hinson that Politis also
wanted some overhead pipes painted green. Hinson told Russell
that he would do so when he finished his current assignments.
Still later in the morning of June 3, further according to
Hinson, Politis approached him and asked why he was not do-
ing the green painting. Hinson replied that he thought he should
finish his other assignments first. Politis told Hinson to stop
what he was doing and do the green painting. Hinson went to
another area of the boiler room to clean up the brushes that he
had been using. As he did so, he banged a roller on the rim of a
drum that contained the same color of paint. (Hinson testified
that he did this to free the roller’s cover and let it fall into the
paint where it would not dry out and become unuseable.) As
Hinson was doing so, Politis approached him again and stated:
“I thought I told you to paint the overhead pipes green. Why
aren’t you doing it?” Hinson told Politis that he was trying to

7 The complaint does not allege that any unfair labor practices by the
Respondent caused or prolonged an unfair labor practice strike.
clean up from his previous assignment. Politis then stated:
“Leave everything where it is and go paint green pipes.”
Hinson testified that he replied: “Okay, Gus. You are the boss.
If this is the way that you want it done, this is the way we will
do it.” Hinson further testified that he then proceeded to follow
Politis’ instructions.
On June 4, and until the end of the day on June 5, Hinson,
Getzfread, and Bawell worked without incident. At quitting
time on June 5, Politis met with Hinson, Bawell, and Getzfread.
According to Hinson, Politis addressed him and stated: “I am
firing you for insubordination and throwing paint and equip-
ment around.” Politis further stated that he had wanted to fire
Hinson “on the spot,” but that he did not know whether Hinson
was a member of a “protected class” and he wanted to discuss
the matter with his attorney before firing him. Hinson testified
that he started to protest that he did not know what Politis was
talking about, but Getzfread told Hinson not to argue and that
he (Getzfread) would meet Hinson in the parking lot.
(Getzfread acknowledged that he was the leader of the three
organizers.) Hinson then began to walk away. Further accord-
ing to Hinson:
As I was walking out of the building [Politis] yells out some-
thing [like], “That was a nice sign that you had. Where are
your brothers now?” something to that effect.
Hinson further testified that he replied that Politis would hear
from Hinson’s attorney. Getzfread testified consistently with
Hinson about what was said during the discharge interview.
Politis admitted that on May 30 Getzfread handed him an
envelope and stated that it contained a letter from the Union.
Politis testified that he did not have his glasses with him at the
time and could not then read it. Politis further testified that he
stuck the letter in his pocked but, somehow, it got lost without
his having ever opened it.
Politis testified that on June 3 he saw that one type of pipe in
the boiler room needed to be painted blue. He noted, however,
that Hinson did not have blue among the cans of paint on the
cart that he was using that day. Politis asked Hinson to get the
blue paint and add it to his cart. Politis is an extremely excitable
individual, and he shouted at many points in his testimony.8
The following is a copy of the transcript of what Politis testified
when asked what happened next. (Some of the sentences are
incomplete or convoluted, but that is the way that Politis testi-
fied. To make the transcript more easily readable, I have in-
jected many of the punctuation marks, as well as the words that
appear in brackets.)
When I asked [Hinson] to put another color on his cart,
he became enraged. He looked at me. My God he looked
at me, like, and he, and I hate to use the word, “What the F
you asking me to do? What the F is the matter with you?
I’m sick and tired of.” He [turns] and he wheels his cart.
He goes around the area where we are having this. And
I’m sorry if I’m shouting. He gets around the area. And in
the meantime I couldn’t believe what I was seeing, that
anybody could behave like that. And I followed [Hinson]

8 I had to stop the hearing twice to get the Respondent’s counsel to
control Politis at the table.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD186
through [the boiler room], and I go over, and I said to him,
“What is the matter with you, Bob? I only asked you to put
another color on it.” [Hinson replied that,] “Well I’m not
going to do anything else anymore and I’m sick and tired.”
And he’s holding at that point the four-inch black roller-
cover, and [by?] the handle, which he was trying to take it
off.
When I went over to try to say to him, “Don’t tell me
that; I want you to put another color on your cart and again
probably another half a gallon can on it,” he grabs the
roller and throws it down on the floor. [Hinson said,] “I’ve
had enough out of you.” Well, I got scared. I mean his
eyes were bulging, and I thought [that] the next thing
that’s going to happen [is that] he’s going to try to beat me
up. And I went over to Mike [Getzfread]. Mike was on his
knees and he was painting.
When asked specifically what Hinson had said to him when he
asked Hinson to add the blue paint to his cart, Politis testified:
“He told me to go fuck myself.”
The Respondent introduced a photograph of a splatter of
paint on the boiler room floor that Politis identified as having
been left by the roller, with handle, that Hinson threw down.
Politis further testified that Hinson was about 4 feet from him
when he threw down the roller. Politis testified that Getzfread
was in an area of the boiler room where he could have heard
what was happening, but he could not have seen Hinson throw
the roller. Politis testified that, immediately after his confronta-
tion with Hinson, he asked Getzfread what was wrong with
Hinson. Getzfread replied: “I’ll take care of it.” Politis walked
away from the work area and stayed away for several minutes.
When he returned, Hinson was working as if nothing had hap-
pened.9
Politis further testified that he felt that he should have fired
Hinson immediately upon the June 3 incident, but: “I didn’t
want to cause any trouble with the threats about the Union and
all of the aggravation that I was going through.” (Politis did not
testify what “threats about the Union” he was referring to; he
did testify that the Respondent was facing a deadline with
GSK.) Politis called his attorney and “I found out that I had a
right to fire him and I did that the very next day in the presence
of [Getzfread, Bawell, and Watson].” Politis testified that he
discharged Hinson “for insubordination; for disrespect.”
On cross-examination, Politis admitted that in an affidavit
that he submitted to the regional office, he states that, at the end
of the discharge interview, immediately after Hinson had
cursed him again, “I looked at [Hinson] and said ‘I’m sure your
white brothers will protect you now.’” When asked what he
meant by that remark, Politis answered: “Nothing in particular.
It just came to my mind. I was so mad and so upset it just came
out. Nothing in particular. I just said it.”

9 Politis further testified that, by the time of this incident, he knew
that Hinson and Getzfread were “working for the Union,” but he did
not testify how he knew this. (Of course, Politis had admitted that on
May 30 Getzfread had told him that the return-addressed envelope that
he was giving Politis was from the Union, even if Politis did not admit
reading the letter.)
The Respondent called employee Mark Russell who also tes-
tified about the events of June 3. According to Russell:
I was going to get materials. We keep materials in a
certain place and as I was going in the back there I heard a
loud someone speaking loud and it was Bob [Hinson].
Gus’ [Politis’] back was to me and Bob was facing him
and he said, “I’m tired of this. I’m a grown man.” And at
that point he had materials in his hand. I can’t tell you
whether it was a brush and roller. That was thrown to the
ground.
At that point I didn’t want to get involved in it if they
were going to do something. I walked back where I was
working. About a minute later Bob comes out, goes to
Mike [Getzfread, and asks], “Hey what should I do?” Ten
minutes or maybe 15 minutes later I see Bob going out the
door.
Russell testified that what he witnessed of the incident took “15
seconds to 20 seconds, tops,” that Hinson’s voice was “loud,”
and that Hinson was “upset.” Russell further testified that he
could not see whether it was a brush or a roller that Hinson
threw down because Politis was between him and Hinson, and
Politis’ body obstructed his view of whatever instrument lay on
the floor after it had been thrown there by Hinson. On cross-
examination, Russell acknowledged that he did not hear Hinson
curse when speaking to Politis.
Hinson denied that he threw anything to the floor when he
was approached by Politis on June 3, or that he cursed Politis,
or that told him that he was “sick and tired.”
B. Credibility Resolutions and Conclusions
The complaint alleges that the Respondent discharged
Hinson in order to discourage the union activities of its em-
ployees in violation of Section 8(a)(3) and (1), or it discharged
him in order to discourage the protected concerted activities of
its employees in violation of Section 8(a)(1), or it discharged
him for both unlawful objectives. In order to establish a prima
facie case of such alleged unlawful discrimination, the General
Counsel must first persuade the Board that employer animus
against known union or protected concerted activities was a
substantial or motivating factor in the challenged employer
decision. The burden then shifts to the employer to demonstrate
that it would have taken the same action even if the employee
had not engaged in protected activity. Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983).
On May 28, Hinson discussed with Ketchmore and Russell
the (undisputed) fact that African-American painters were be-
ing paid less than white painters. Russell agreed that he was
unhappy about the fact that he was not making as much as the
white painters. Hinson then protested to Watson that the Re-
spondent was paying African-American painters less than white
painters. Even if he was only a self-appointed spokesman,
Hinson was thereby engaging in concerted activities that are
protected by Section 7 because his action was for the mutual
aid or protection of all of the Respondent’s African-American
C. POLITIS & CO. 187
employees.10 By the same token, it must be concluded that
Hinson’s picketing of the GSK job on May 30 and June 2 to
protest the mutually suffered wage disparities likewise consti-
tuted protected concerted activities. Nevertheless, before it may
be concluded that the General Counsel has presented a prima
facie case of discrimination under Section 8(a)(1) or (3), Wright
Line requires proof of not only known union or protected con-
certed activities by an alleged discriminatee; Wright Line also
requires the General Counsel to prove animus toward those
activities.
On brief, the General Counsel contends that unlawful animus
toward Hinson’s protected concerted activities is demonstrated
by five factors: (1) the timing of the discharge, having come so
soon after Hinson had engaged in the protected concerted ac-
tivities of appealing to Watson and of picketing at the GSK
gates; (2) Politis’ checking Hinson’s and Bawell’s tool bags
after they had returned to work from the picketing; (3) Politis’
increasing the supervision of Hinson and Getzfread after they
returned to work; (4) Politis’ giving Hinson “multiple assign-
ments simultaneously” after he returned to work; and (5) as the
General Counsel puts it: “Gus Politis’ departing comment to
Hinson after firing him, ‘your white brothers will help you
now’11 makes it clear that Politis was motivated to discharge
Hinson because of his protected concerted activities.” I do not
agree. (1) The General Counsel’s argument on timing assumes
that nothing of consequence happened between Hinson’s pro-
tected concerted activities and his discharge, except for “the
fabricated, or at least greatly exaggerated incident” of June 3.
As I discuss below, however, Hinson’s conduct in the interven-
ing incident was neither fabricated nor exaggerated. (2 and 3)
Neither Hinson nor Getzfread nor Bawell testified that there
was anything onerous or burdensome in Hinson’s checking
their tool bags or his watching them more closely after they
returned to work. Perhaps Politis was looking for contraband
when he searched the bags, and perhaps he was looking for a
reason to discharge Hinson (or Getzfread) when he watched
them as they worked on June 2 and 3 (and June 4 and 5). In
either case, however, speculation is all that could support the
conclusion that the General Counsel seeks. (4) As well, Hinson
did not testify, or even suggest, that the assignments that Politis
gave to him on June 3 did not need to be done, or that there was
anything that was particularly onerous, or even unusual, in his
being told to stop one part of a project and go to another, which
is what happened. (5) Finally on the point of animus, the Gen-
eral Counsel contends that Politis’ “your white brothers will
protect you now” parting shot to Hinson “makes it clear that

10 Meyers Industries, 281 NLRB 882, 885, 887 (1986), enfd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487
U.S. 1205 (1988) (protected concerted conduct when an individual
attempts to bring a group complaint to the attention of management).
According to his own testimony, however, Hinson protested to Politis-
Berkowitz on May 28 only about “my concerns about being a new hire
and only earning $16 an hour, when the other two new hires were earn-
ing $17 an hour.” I would not find that this complaint to Politis-
Berkowitz about only his own wage deficiency was a separate act of
concerted activity.
11 Actually, as quoted above, Politis said “protect you now,” rather
than “help you now.”
Politis was motivated” by Hinson’s protected concerted activi-
ties. The General Counsel, however, does not explain how that
remark “makes it clear,” and I do not see it. The statement was
not an act that separately reflects animus toward the protected
concerted activities (or union activities) in which Hinson had
engaged. Therefore, based on the General Counsel’s failure to
prove the existence of the Respondent’s animus toward activi-
ties that are protected by the National Labor Relations Act (as
opposed to other laws, or morality), I will recommend dismissal
of the allegation that Hinson was discharged in violation of
Section 8(a)(1) or (3).
Assuming, however, that the General Counsel has shown
that the Respondent bore animus toward Hinson’s protected
activities, I would nevertheless recommend dismissal of the
complaint. This is because, pursuant to Wright Line, the Re-
spondent has shown that, after Hinson returned to work from
his picketing, he engaged in conduct for which he would have
been discharged, even absent his having engaged in protected
concerted activities.
Hinson testified that when Politis gave him another assign-
ment on June 3 he responded only by stating: “Okay, Gus. You
are the boss. If this is the way that you want it done, this is the
way we will do it.” I did not believe that testimony when I
heard it, and I do not believe it now. As he gave this testimony,
Hinson appeared to be affecting a demeanor that was too meek
to believe, especially in contrast to his demeanor at other pas-
sages of his testimony. In addition to relying on Hinson’s un-
impressive demeanor, I note that if, as he testified, Hinson had
only agreed to do his assignment without insolent protest he
would have had no reason to immediately go over to Getzfread,
who was also in the boiler room and ask Getzfread what he
should then do. Politis and Russell testified that that is exactly
what Hinson did, and Hinson did not dispute that testimony
when he was called in rebuttal. Nor did the General Counsel
call Getzfread in rebuttal to dispute that testimony. Finally,
Russell testified that he saw Hinson throw something down
during his confrontation with Politis. The General Counsel
advances no argument of why Russell would perjure himself,
other than to conclude that he “was obviously trying to please
his employer.” To me, however, Russell was “obviously” at-
tempting to tell the truth to the best of his recollection.
To be sure, there are credibility problems with Politis. He
does not appear to be able to control his mouth when he really
needs to. I further firmly believe that Politis lied when he testi-
fied that he did not read the Union’s letter that Getzfread
handed him on May 30. Nevertheless, the penalty for a wit-
ness’s lying about a relatively insignificant issue is not the
automatic rejection of all testimony that that witness has given.
Where a witness is corroborated, at least to the extent that Poli-
tis was corroborated by the apparently disinterested Russell,
and where that witness is contradicted only by the testimony of
one who is as incredible as Hinson, I will credit that witness.
Therefore, I credit Politis, and I find that on June 3, when
Politis gave Hinson the order to do additional painting, Hinson
threw down a paint roller and cursed Politis.12 Politis testified

12 On brief, the General Counsel contends that, even if I do credit
Politis, Politis provoked Hinson into his intemperate actions. Hinson,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD188
that he considered Hinson’s action to be one of insubordination,
and I agree. The General Counsel having adduced no evidence
of disparate treatment of other employees by the Respondent, I
conclude that the Respondent has demonstrated that it would
have discharged Hinson for such conduct, even absent his pro-
tected concerted (or union) activities.

however, did not testify that he was provoked (or even slightly upset)
by Politis’ orders. Moreover, the cases cited by the General Counsel
find provocation only where employees have previously been subjected
to repeated unfair labor practices.
Accordingly, I issue the following recommended13
ORDER
The complaint is dismissed in its entirety.

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.