309 NLRB 973

Jerome Russo Quality Painting

Last amended: 1992Year: 1992Length: 10,035 wordsOfficial source

973 309 NLRB No. 158 JEROME RUSSO QUALITY PAINTING 1 The Respondents have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1950)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ, enfd. 188 F.2d 362 (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ3d Cir. 1951)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ. We have carefully examined the record and find no basis for reversing the findings. We do not adopt the judge’s finding regarding Respondent Russo’s alleged refusal to hire Carl Monyhan since the complaint did not al- lege that that conduct was a violation of the Act and the issue was not litigated at the hearing. The judge found that the Respondent violated Sec. 8(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ by requiring employees tamount to ‘‘yellow dog’’ contracts. He, however, inadvertently failed to include any provisions in the notice and Order with respect to this finding. We have made the appropriate modifications to the Order. Jerome Russo Quality Painting and Decorating, Inc. and International Brotherhood of Painters & Allied Trades of the United States and Canada, AFL–CIO, Local 452 Waite Painting Corporation and International Brotherhood of Painters & Allied Trades of the United States and Canada, AFL–CIO, Local 452. Cases 12–CA–14663, 12–CA–14664, 12– CA–14681, and 12–CA–14682 December 16, 1992 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH On July 29, 1992, Administrative Law Judge Lowell Goerlich issued the attached decision. The Respondents filed exceptions and a supporting brief. The General Counsel filed an answering 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 briefs and has de- cided to affirm the judge’s rulings, findings,1 and con- clusions as modified and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondents, Je- rome Russo Quality Painting and Decorating, Inc. and Waite Painting Corporation, Lake Worth, Florida, their officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph A,1(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂg)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ and relet- ter the subsequent paragraph. ‘‘(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂg)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Unlawfully requiring prospective employees to sign documents stating that they are no longer active members of a union.’’ 2. Substitute the following for paragraph A,2(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂc)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ. ‘‘(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂc)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Offe statement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the man- ner set forth in the remedy section of the judge’s deci- sion.’’ 3. Insert the following as paragraph A, 2(ﬁMDBUﬂ*ERR17*ﬁMDNM letter the subsequent paragraphs. ‘‘(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂd)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Resc lawful documents signed by prospective employees stating that they are no longer an active member in Local 452 and/or that they are not an active member of any union.’’ 4. Substitute the attached notice for the administra- tive law judge’s Appendix A. APPENDIX A 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 the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT fail or refuse to execute the collec- tive-bargaining agreement agreed to by us and the International Brotherhood of Painters and Allied Trades of the United States and Canada, AFL–CIO, Local 452. WE WILL NOT change the terms and conditions of employment set forth in the agreement during the term of the agreement without the consent of the Union. WE WILL NOT unilaterally and without notice to the Union change terms and conditions of employment of our employees or deal directly with our employees about matters falling within the scope of collective bar- gaining. WE WILL NOT unlawfully withdraw recognition and refuse to bargain with the Union during the period that the aforesaid collective-bargaining agreement is bind- ing on the parties. WE WILL NOT unlawfully discharge or discipline any of our employees or discriminate against them in any manner because of their union affection or union ac- tivities. WE WILL NOT unlawfully require prospective em- ployees to sign documents stating that they are no longer active members of a union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. 974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL forthwith sign the collective-bargaining agreement referred to above and recognize and bargain collectively with the Union during the term of the con- tract. WE WILL give retroactive effect to the provisions of the agreement and make whole our employees for any losses they may have suffered by reason of our failure to sign the agreement. WE WILL continue in effect any and all benefits of every kind or nature that we have given our employees since August 31, 1991. WE WILL offer Antoine Poma and John Babcock im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the judge’s decision. WE WILL remove from our files any reference to the unlawful discharges and notify the employees in writ- ing that this has been done and that the discharges will not be used against them in any way. WE WILL rescind and remove from our records the unlawful documents signed by prospective employees stating that they are no longer members of Local 452 and/or that they are not active members of any union. WE WILL make whole our unit employees by trans- mitting the contributions owed to the Union’s health and welfare, pension, vacation and holiday, and ap- prenticeship and training funds pursuant to the terms of our collective-bargaining agreement with the Union, and by reimbursing unit employees for any medical, dental, or any other expenses ensuing from our unlaw- ful failure to make such required contributions. This shall include reimbursing employees for any contribu- tions they themselves may have made for the mainte- nance of the Union’s health and welfare, pension, in- dustry, and apprenticeship funds after we unlawfully discontinued contributions to those funds; for any pre- miums they may have paid to third party insurance companies to continue medical and dental coverage in the absence of our required contributions to such funds; and for any medical or dental bills they have paid directly to health care providers that the contrac- tual policies would have covered. JEROME RUSSO QUALITY PAINTING AND DECORATING, INC. Shelley Plass, Esq. and Hector Nava, Esq., for the General Counsel. Charles S. Caulkins, Esq. and Kenneth A. Knox, Esq., of Fort Lauderdale, Florida, for the Respondents. Matthew J. Mierzwa, Esq., of West Palm Beach, Florida, for the Charging Party. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge. The Charging Party is the International Brotherhood of Painters & Allied Trades of the United States and Canada, AFL–CIO, Local 452 (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂthe Union)ﬁMDBUﬂ*ERR17*ﬁMDNM rome Russo Quality Painting and Decorating, Inc. (ﬁMDBUﬂ*ERR17*ﬁMDNM ent Russo)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ, and Waite Painting Corporation ( Waite)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ. The original charge in Case 12–CA–14663 was filed by the Union on September 9, 1991, and a copy was served by certified mail on Respondent Russo on the same date. The first amended charge in Case 12–CA–14633 was filed by the Union on September 30, 1991, and a copy thereof was served by certified mail on Respondent Russo on that same date. The second amended charge in Case 12–CA–14663 was filed by the Union on November 27, 1991, and a copy was served by certified mail on Respondent Russo on the same date. The original charge in Case 12–CA–14664 was filed by the Union on September 9, 1991, and a copy was served by certified mail on Respondent Waite on the same date. The first amended charge in Case 12–CA–14664 was filed by the Union on September 30, 1991, and a copy was served by certified mail on RespondentWaite on that same date. The original charge in Case 12–CA–14681 was filed on September 1, 1991, and a copy was served by certified mail on Respondent Russo on the same date. The first amended charge in Case 12–CA–14681 was filed by the Union on November 29, 1991, and a copy was served by certified mail on Respondent Russo on that same date. The original charge in Case 12–CA–14682 was filed by the Union on September 18, 1991, and a copy was served by certified mail on Respondent Waite on the same date. The first amended charge in Case 12–CA–14682 was filed by the Unionon November 29, 1991, and a copy was served by certified mail on Respondent Waite on that same date. An order consolidating cases, consolidated complaint and notice of hearing was issued November 29, 1991. Among other things it is alleged in the complaint that the Respond- ents have failed and refused to execute a written contract with the Union; that Respondent Russo discharged its em- ployees Antoine Poma and John Babcock; that Respondent Waite withdrew benefits from its employees George James and Segundo Luciano; and that Respondent Russo said to its employees that they would be terminated because of their af- filiation with the Union and also required prospective em- ployees to enter individual contracts as a condition of em- ployment in which they would terminate their membership in the Union or any other labor organization, all in violation of Section 8(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ(ﬁMDBU Act (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂthe Act)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ. Respondents filed timely answers denying that they had engaged in the unfair labor practices alleged. The matter came on for hearing in Fort Lauderdale, Flor- ida, on March 23, 24, 25, and 26, 1992. Each party was afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and con- 975 JEROME RUSSO QUALITY PAINTING 1 The facts found herein are based on the record as a whole and the observation of the witnesses. The credibility resolutions have been derived from a review of the entire testimonial record and ex- hibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1962)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ. As those witnesses testifying in contradiction of the findings, their testimonies have been discredited either as hav- ing been in conflict with the testimonies of credible witnesses or be- cause the testimony was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. No testimony has been pretermitted. 2 Par. 7(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ of the consolidated complaint states: The following employees of Respondent Russo herein called Russo’s Unit, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂb)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ of the Act: All employees of Respondent Russo who perform work which is described in and covered by the Working Agreement effec- tive September 1, 1991 through August 31, 1992 between the Union and any person, firm or corporation performing work under the trade and geographical jurisdiction as set forth in this Working Agreement. 3 Par. 7(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂb)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ of the consolidate The following employees of Respondent Waite, herein called Waite’s Unit, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Act: All employees of Respondent Waite who perform work which is described in and covered by the Working Agreement effec- tive September 1, 1991 through August 31, 1992 between the Union and any person, firm or corporation performing work under the trade and geographical jurisdiction as set forth in this Working Agreement. 4 In 1990 according to Jerome Russo the negotiating committee’s final offer was to extend the contract another year with a wage freeze. This was accepted by the Union. 5 The parties stipulated that Respondent Russo’s collective-bargain- ing relationship with the Union went back ‘‘approximately 15 years’’ and Respondent Waites’ collective-bargaining relationship with the Union went back ‘‘about 22 years.’’ 6 Jerome Russo named Maehlmann’s Brockway, Brandon & Moreno, Neil’s Painting, Russo Painting, and Waite Painting as Continued clusions, and to file briefs. All briefs have been carefully considered. On the entire record in this case and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT,1 CONCLUSIONS, AND REASONS THEREFOR I. THE BUSINESS OF THE RESPONDENT At all times material, Respondent Russo, a corporation with an office and place of business in Lake Worth, Florida (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂRespondent Russo’s facility)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ, has been engaged in providing painting, decorating, and related services. At all times material, Respondent Waite, a corporation with an office and place of business in Lake Worth, Florida (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂRespondent Waite’s facility)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ, has been engaged in providing painting, decorating, and related services. Annually, Respondent Russo, in the course and conduct of its business operations described above, purchased and re- ceived at its Lake Worth, Florida facility goods and materials valued in excess of $50,000 from other enterprises located within the State of Florida, each of which other enterprises had received these goods and materials directly from points outside the State of Florida. Annually, Respondent Waite, in the course and conduct of its business operations described above, purchased and re- ceived at its Lake Worth, Florida facility goods and materials valued in excess of $50,000 from other enterprises located within the State of Florida, each of which other enterprises had received these goods and materials directly from points outside the State of Florida. Respondents are now, and have been at all times material, employers engaged in commerce within the meaning of Sec- tion 2(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ2)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ, (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ6)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ, and (ﬁMDB II. THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material, a labor organization within the meaning of Section 2(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ5)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ of the Act. III. THE UNFAIR LABOR PRACTICES First: Respondent Russo has not denied that about Septem- ber 1985, Respondent Russo, an employer engaged in the construction industry, as described above, granted recognition to the Union as the exclusive collective-bargaining represent- ative of the unit2 by entering into a collective-bargaining agreement with the Union for the period September 1, 1985, to August 31, 1986, without regard to whether the majority status of the Union had ever been established under the pro- visions of Section 9 of the Act. Respondent Waite has not denied that about September 1986, Respondent Waite, an employer engaged in the con- struction industry, as described above, granted recognition to the Union as the exclusive collective-bargaining representa- tive of the unit3 by entering into a collective-bargaining agreement with the Union for the period September 1, 1986, to August 31, 1987, without regard to whether the majority status of the Union had ever been established under the pro- visions of Section 9 of the Act. Russo and Waite were signatories of separate identical contracts which expired August 31, 1991. This agreement had been negotiated by and for the Con- tractors’ Negotiating Committee which was a loose organiza- tion in the construction industry of employers who were en- gaged in business similar to the business of Respondent Russo and Respondent Waite. For the negotiation of the 1990 contract this group chose as negotiators three persons, two of whom were Jerome Russo, president of the Respond- ent Russo, and Joy Waite, agent of Respondent Waite. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂThese persons are referred to as the negotiating c An acceptable contract was negotiated by the negotiating committee and representatives of the Union.4 All members of the Contractors’ Negotiating Committee signed the agreement. Both Respondents Waite and Russo signed the agreement as they had been doing for several years.5 In 1991 signatory contractors met in March and again chose by election Jerome Russo and Joy Waite to be on the negotiating committee of three. The third member was Wal- ter Brandon from Brandon & Moreno Painting Corp., which has since ceased business. The same contractors who signed the 1990 agreement participated in the 1991 negotiation through the committee they had chosen.6 976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD present at the contractors’ meeting. Absent were Miller, General Caulking, and Griffin. 7 McGinley also testified, ‘‘I asked them if they were proposing that we freeze the contract for another year and they said yes.’’ All three of the committee answered, ‘‘yes.’’ 8 Jay Waite also testified: Mr. McGinley said to everybody there, both sides, can we take back a wage freeze to the membership to see how they feel. . . . We said, go ahead and take it back to membership and see what they have to say. 9 Joy Waite’s testimony on this point is not credited. These three persons were to act as the contractors’ spokes- persons and negotiators. On April 8, 1991, Respondent Russo addressed a letter to to the Union including this sentence ‘‘It is the intention of this correspondence to terminate the agree- ment effective August 31, 1991 unless modifications satisfac- tory to the undersigned are made to such agreement.’’ The same letter was received by the Union from Respond- ent Waite, Neil’s Decorating, Brandon & Moreno Painting Corp., Chas G. Brockway & Sons, Inc., and Maehlmann’s, Inc. Respondent Russo also addressed the following letter to the Union on April 8, 1991. Painters & Allied Trades Local Union 452 1218 Omar Road West Palm Beach, Florida 33405 Local 452 Re: Negotiations Dear Labor Negotiations Committee, Jerome Russo Quality Painting and Decorating Inc. is notiying you that Russo Quality Painting and Deco- rating, Inc. will not negotiate on a one to one basis, Russo Painting will only negotiate through the elected contractors negotiating committee. The committee will consist of Walt Brandon, Jerry Russo, and Joy Waite. The four alternates will be Robert Brockway, Harold Clark, Neil Rasmussen and John Waite. The Union received identical letters from Waite Painting Corp., Neil’s Decorating, and Brandon & Moreno Painting Corp. The first negotiating meeting occurred June 13, 1991. Written minutes, which were later typed, were taken at the meeting. The minutes were ‘‘read out loud.’’ Both parties approved the minutes. The minutes reveal that the meeting was 10 minutes long. ‘‘Labor offered manage- ment $1.00 a hour over a two year period and put in pocket, no increase in benefits. . . . Management would take the offer back to the contractors for an answer.’’ Jerome Russo was the spokesperson for the contractors. No written propos- als had been prepared by management, however, Jerome Russo advised the Union that the negotiating committee would return with a counterproposal. According to Jerome Russ, he went to management with the Union’s proposal. Management rejected the proposal. Some of the contractors said they would entertain the idea of a wage freeze. Jerome Russo also told management that he had represented to the Union that he would come back with a counterproposal. Ac- cording to Russo the response was ‘‘we could not generate a penny . . . no increase in wages.’’ However, no written proposals were prepared. The second negotiating meeting as convened on July 11, 1991. Written minutes were again taken and reduced to typed form. Jerome Russo prepared the notes. The typed minutes reveal among other things: [I]t was a 100% decision by management, a penny could not be generated, and the answer to labor’s re- quest was no. . . . that we are lucky we have work to bid and labor has jobs to go to on daily basis, and that an even keel is being maintained so far. ‘‘Labor would take offer back to members for a vote.’’ (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂT version is ‘‘Labor take proposal back to membership.’’)ﬁMDBUﬂ*ERR17* Jeff McGinley, recording secretary, who attended the ne- gotiating session testified that among other things Jerome Russo said, ‘‘in order to survive we had to keep things as they were to maintain an even keel. . . . [T]hat they could not afford to pay a penny for a raise.’’ At this point McGinley called a caucus of the union representatives in order to consider the Contractors’ proposal. McGinley rec- ommended to the other conferees that they ‘‘go along with the contractors and keep things as they were for a year be- cause of the economic conditions and to just work together because nobody can afford to be out of work at this time.’’ Further testifying McGinley said: We came back and we discussed it with management that we understand how they felt and I wanted to make it very clear that we were going to go take their pro- posal back to the membership for a vote so that we can continue working and get the agreement signed. And they agreed. They said that that would be good and that to take the proposal back, to just freeze the contract for another year.7 Whereupon McGinley said he would notify the member- ship and ‘‘take it for a ratification vote.’’ According to McGinley, after the meeting he had a con- versation in the parking lot with the management representa- tives. They told him they were ‘‘happy with the way things went’’ and Jerome Russo said, ‘‘you have to sell this to the members.’’ Tim D. Maitland, business representative of the Union, also testified about the events of the July 11 meeting. His testimony corroborated the testimony of McGinley. Of the July 11 meeting Joy Waite recorded in her affida- vit, ‘‘towards the end of the meeting of the Union said they would go back to the membership to see if they could get another wage freeze like had been done last year. Joy Waite testified, ‘‘We told Mr. McGinley to go find out what the membership has to say [about freezing wages for another year] and come back and let us know.’’8 She testified that nothing was said from which the Union could draw the infer- ence that management was making an offer of a wage freeze.9 Joy Waite testified that a subsequent date for a negotiation meeting was not scheduled because she was leaving on vaca- tion as was Jerome Russo. Jerome Russo testified that at the July 11 negotiation meeting he took the minutes, read them to conferees, and they were approved. Jerome Russo also prepared the typed 977 JEROME RUSSO QUALITY PAINTING 10 McGinley told the members at the meeting, ‘‘And at that meet- ing I got up and I told the members of the contractors’ position and that their proposal was to freeze the contract for another year be- cause they could not afford any raises of any sorts, in the fringe ben- efits or the wages and that their proposal was to freeze the contract for another year.’’ 11 Jerome Russo denied that he had received the letter or engaged in the telephone conversation with Maitland. His denial is not cred- ited. 12 This date must have been after August 6, 1991, since the Union’s ratification meeting was on August 6. 13 Jerome Russo’s recollection of this conversation seems quite vague. 14 Jerome Russo agreed that Maitland had phoned him about some of his workers and asked him whether he was going to sign the con- tract. 15 Jerome Russo testified that at this time he had already decided not to sign the agreement. minutes which were distributed to the conferees. No objec- tions were lodged against the typed minutes. According to Jerome Russo the July 11 meeting com- menced with his advising the union representatives that man- agement ‘‘could not generate a penny for any wage in- creases.’’ In regard to the subject of a wage freeze Jerome Russo testified: If I remember correctly, Jeff mentioned, or brought up the subject that he would like to take back to Labor, or go back to Labor, or if I remember correctly, and sell . . . see if he could sell freezing wages. . . . If I remember correctly, Management of course was on the other side of table. We all looked at one another, and I believe I replied that, Why don’t you try to do that. Jerome Russo testified that he remembered ‘‘complement- ing Jeff [McGinley] on making the suggestion of taking back to labor, to try to sell the wage freeze.’’ During the July 11 negotiations the contractors’ negotiat- ing committee asked for no modifications to the contract. On August 6, 1991, the Union held a ratification meeting pursuant scheduling a ‘‘Special called meeting’’ for August 6, 1991, at 8 p.m. ‘‘to vote on contractors’ proposal.’’ At the special meeting, the membership approved the con- tractors’ proposal for an agreement.10 According to Maitland, ‘‘The ratification was on the contractors’ proposal of rolling over the agreement for another year, the same wages and working conditions.’’ On August 7, 1991, Maitland sent the following letter to Jerome Russo: Management Negotiating Committee Jerome Russo, Chairman Jerome Russo Quality Painting & Decorating 3551 23rd Avenue South Suite 6 Lake Worth, FL 33461 Dear Jerry: On August 6, 1991, the Labor Negotiations Commit- tee took Management’s last offer back to the member- ship. The proposal to freeze the wages and benefits for a one year contract was accepted by vote. We are looking forward to meeting with you to sign the Agreement. Maitland testified: ‘‘I talked to Jerry on the phone and told Jerry that the membership had voted to accept the proposal. And Jerry said that he thought that that was good, and he was awful busy, but he would try to get together and sign the agreement. We would try to make a date.’’11 In the meantime the Union ordered the printing of the contract for the contractors’ signatures. According to Joy Waite a couple of weeks after the July 11 meeting in early August she called Jerome Russo and asked him whether he had heard anything from the Union. His answer was negative. He said he would call the Union. The next day Jerome Russo called Waite and informed her that he had spoken to McGinley who advised him ‘‘they have a contract.’’ Waite responded, ‘‘there’s no way we have a contract.’’ Jerome Russo testified that he had received a call from Joy Waite. Jerome Russo phoned McGinley, the date of which he placed in the ‘‘first or second week of Au- gust.’’12 McGinley informed Jerome Russo ‘‘that we weren’t going to negotiate and that the minutessaid we had an agree- ment.’’ Jerome Russo replied, ‘‘it was B S.’’13 Thereupon Jerome Russo called all the contractors and told them of his conversation with McGinley and that in his opinion a contract had not been negotiated. None of the con- tractors told Jerome Russo that they would not sign the con- tract. On August 8, 1991, Maitland visited one of Respondent Russo’s jobsites where he observed nonunion members working. The next day, August 9, 1991, he called Jerome Russo to inquire about the situation. Among other things Maitland said, ‘‘I had called the other day and we were going to set up a date to sign the agreements, when we can get together and do this.’’ Jerome Russo answered that ‘‘there is a problem’’ and that ‘‘it is too big to discuss over the phone.’’ A luncheon meeting was scheduled for August 16, 1991.14 On August 16, 1991, Jerome Russo, McGinley, and Maitland met at Barbecue Ben’s for lunch. According to McGinley Jerome Russo stated that he ‘‘felt that he could not afford to pay fringe benefits on all of his employees and still survive in the business that he’s in’’ and that he felt that ‘‘the management committee did not give a proposal to us at the time.’’ McGinley produced the minutes in which the contractors’ proposal was recorded and said that the Union had accepted the proposal. Jerome Russo stated that he was not sure whether he would sign the contract but would let the Union know on August 26, 1991. Maitland also remembered that Jerome Russo had said that ‘‘the contractor committee did not make a proposal to us’’ and that McGinley showed Jerome Russo the minutes in his own handwriting. Jerome Russo agreed that he was asked to sign the agree- ment. His response, ‘‘I would give this great importance over the vacation, and when I got back, I would have a definite answer for them, as to whether I would sign the agreement, or not.’’15 On August 26, 1991, a meeting occurred at the union hall at which McGinley, Maitland, Jerome Russo, Walter Bran- don, John and Joy Waite, and Neil Rasmussen were 978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 McGinley invited Rasmussen to attend because he had told McGinley that he would sign the contract ‘‘so long as we froze the contract for another year.’’ 17 This inference is further supported by the fact that, according to Jerome Russo when he learned that the contract had been accept- ed, and thereafter contacted the other contractors to inform them of the acceptance, the evidence is that not one was reported by Jerome Russo to have disavowed the contract. 18 Although it seems clear from the credible record that initially Jerome Russo and Joy Waite were agreeable to the offer, it may have been that Jerome Russo did not make the offer for himself in good faith; that anticipated that the Union would reject the offer. This, of course, would have left Jerome Russo free to follow another tack. present.16 Jerome Russo insisted that no proposal had been made. His minutes were shown him and the contractors present were asked to sign the agreement. Respondents re- fused. Jerome Russo insisted that hewould not pay its fringe benefits. Rasmussen stated that as long as the Union was freezing the contract for another year he would sign and left. According to Joy Waite the three employers said that if they did not get modifications they would terminate. According to Russo the conferees were told that the Union’s attorney had reviewed the matter and opined that the contract was ‘‘binding.’’ On August 30, 1991, John and Jo Waite, Jerome Russo, and Brandon sited McGinley at the union hall and met with McGinley. They indicated that they felt they did not have an agreement and they had letters which they wanted McGinley to sign recognizing that they were ‘‘terminating any and all affiliation with the local in respect to the signed agree- ments.’’ McGinley responded that there was an agreement. Their reply was ‘‘in order to have the union members work they were going to have to sign papers dropping out of the Local Union and not being affiliated with it.’’ Respondent Waite and Russo left the letters which set a termination of the contract as of August 31, 1991. Respondent Russo decided to go nonunion as of August 31, 1991, of which event prior to August 31, 1991, he ad- vised his employees at the jobsite and that the Company would no longer make contributions to the fringe benefit funds. Respondent Waite decided immediately after the August 26, 1991 meeting to go nonunion. This decision was related to Respondent Waite’s employees at the jobsites. Employees were also told there would be no contributions to the fringe benefits after August 31, 1991. On August 30, Respondent Waite’s employees were told that if they had any questions they should go to the Union for answers. Joy Waite testified that its employees were told the ‘‘differences with the Union was not over money and whatever we paid in the Union . . . we would pay to them.’’ At the time Respondent Waite em- ployed three union members. Each of the contractors who were not present during either the June 13 or July 11 nego- tiating sessions has signed the collective-bargaining agree- ment with the Union. Brandon & Moreno have ceased busi- ness. Second: The fact that the contractors who authorized col- lective bargaining through the elected contractors’ negotiat- ing committee (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂexcept Russo and Waite)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ signed the agree- ment creates a strong inference that, when Jerome Russo met with the contractors to deliver the Union’s offer and receive a counteroffer, they authorized him to counteroffer a rollover of the contract. This inference is strengthened by the fact that not one contractor (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂnot even Brandon)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ was called to gainsay this inference. This inference is further strengthened by the minutes of July 11, 1991, ‘‘Labor would take offer back to members for a vote.’’17 Moreover, after the July 17, 1991 negotiating meeting the Union conducted itself as if it had been tendered a bona fide offer of a rollover of the contract. It held a membership ratification meeting pursuant to post- card notices and the extension of the rollover agreement was approved by the union membership after which the contract was printed. If the Respondent’s position is well taken that no offer was made, then the Union must have been fooled. It is not reasonable to conclude that it was the intent of the contractors’ negotiating committee to mislead or bilk the Union. The Union’s course of conduct was wholly incompat- ible with the Respondents’ insistence that an offer was not given. Nor do I find that the Union’s action was devious or the result of a misunderstanding.18 All credible factors indicate that the intent of the parties was to wrap up a rollover contract as had been done in the past. All the conferees knew the procedures. I credit the General Counsel’s version of the July 11, 1991 negotiating meeting which is verified by the minutes of the meeting. McGinley and Maitland were credible witnesses. The testimony of Jerome Russo and Joy Waite was tailored. I find that the credible record supports the finding that the contractors negotiating committee made a rollover contract proposal of the 1991 contract and that the proposal was ac- cepted by the Union prior to any attempt by Waite and Russo to repudiate it. As were the other contractors, Joy Waite and Jerome Russo were bound by the acceptance of the offer which they made to the Union at the July 11, 1991 negotiating meeting. They, as did the other contractors, agreed that they would ‘‘not negotiate on a one to one basis’’ but ‘‘on through the elected contractors negotiating committee.’’ I find that the Respondents’ refusal to execute the agree- ment violated Section 8(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMD Respondent’s failure to continue in full force and effect all terms and conditions of the 1991–1992 working agreement was in violation of Section 8(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17* The Carl S. Monyhan Incident First: Carl S. Monyhan was a journeyman painter and a member of the Union. On September 8, 1991, Monyhan and Angel Rodriguez applied for work with the Respondent Russo. Jerome Russo indicated that he could use a ‘‘couple of guys’’ but before he would put them to work they would have to sign ‘‘some papers.’’ These are the ‘‘some papers’’: September 9, 1991 Carl Monyhan 514 Jackson Avenue Greenacres, Florida 33463 This letter is to state that the above mention[ed] em- ployee as of August 31, 1991 is no longer an active 979 JEROME RUSSO QUALITY PAINTING member in Local Union 452, nor an active member of any union, painters local. Jr/mcl /s/ Carl L. Monyhan Carl Monyhan /s/ Jerome Russo Jerome Russo Sandra A. Russo (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂnotary)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ 9–9–91 September 9, 1991 Carl Monyhan Russo Painting & Dec., Inc. is no longer responsible for payment of Pension, Health and Welfare, Appren- ticeship, NJATC Fund and dues check off to the Inter- national Brotherhood of Painters and Allied Trades Union and Industry Pension Annuity Fund, Suite 501 United Unions Building, 1750 New York Avenue, N.W., Washington, D.C., phone number (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ202)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ 783– 4880. The above mentioned employee has full knowledge and understanding that Russo Painting and Dec, Inc., is no longer a Union Contractor as of August 31, 1991 after terminating their contract with Local 452. llllllll Carl Monyhan llllllllllllllllll Jerome Russo, Non-Union Painting Contractor Monyhan carried the papers to the union hall for advice, ‘‘They said the paper didn’t mean nothing being he’s in the Union.’’ The next day Monyhan went back to Respondent Russo and signed the papers. Monyhan was never called for work. According to Jerome Russo he gave the first letter to applicants who were union members only and the second let- ter to all applicants. No employee refused to sign the letter. Second: Jerome Russo’s demand that employees sign doc- uments tantamount to ‘‘yellow dog’’ contracts before they would be considered for employment was in violation of Section 8(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ of the Act NLRB 887 (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1991)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ. George L. James and Segundo Luciano First: George L. James and Segundo Luciano were em- ployees of Respondent Waite. They were journeymen paint- ers and members of the Union. Joy Waite prepared the following letter on August 30, 1991, for the signature of each employee: September 3, 1991 Segundo Luciano This letter is to state that the above mentioned em- ployee as of August 31, 1991 is no longer working for a Painting Contractor that has a signed working agree- ment with International Brotherhood of Painters and Al- lied Trades Local Union 4512. Waite Painting Corp. is no longer responsible for payment of Pension, Health and Welfare, Apprentice- ship Fund, NJATC Fund and Dues Check Off to the International Brotherhood of Painters and Allied Trades Union and Industry Pension and Annuity Fund, Suite 501, United Unions Building, 1750 New York Avenue, N.W., Washington, D.C., phone number (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ 4880. The above mentioned employee has full knowledge and understanding that Waite Painting Corp. is no longer a Union Contractor as of August 31, 1991 after terminating their con- tract with Local 452. lllllllllll Segundo Luciano, Employee llllllllllllllllll John Waite, Non-Union Painting Contractor [G.C. Exh. 33.] According to James, a couple of months before the con- tract was up, John Waite told him and Luciano that he was ‘‘going to go non-union and he would like for me to stay with him.’’ John Waite said he would give James ‘‘a fifty cents raise, and a $2,000.00 CD a year, and insurance.’’ James responded that he would think about it. Later John Waite came to James on the jobsite and wanted him to ‘‘knock off’’ early ‘‘to try to get Jeff to sign a paper so we could go to work.’’ The purpose of the paper was to ‘‘relieve Waite Painting Corporation from taking out any benefits, Union benefits.’’ James went to the union hall. McGintry would not sign the paper John Waite wanted. McGintry wanted Waite to sign the contract. He told him to ask John Waite whether he was fired or laid off. James put the ques- tion to John Waite but did not receive an answer. John Waite said that he and Joy were going to ‘‘make a paper stating, you know, if we signed a paper than we could work on Tuesday.’’ Luciano was present. On September 2, 1991, James went to the jobsite. Luciano had the ‘‘paper.’’ The paper was the same as noted above. James ‘‘couldn’t’’ sign the paper and left the jobsite and sought another job. A cou- ple of days later James called John Waite and told him that he would not sign the paper; that he had another job. According to Joy Waite, Luciano was given a copy of the letter set out above; he handed it back because he knew its contents. On August 30, 1991, he visited the Waites with his daughter, since he was unable to read English. He wanted to know what was going on between the union people and Waite. The contents of the letter was communicated to Luciano. Luciano worked for Respondent Waite until September 10, 1991, at which time he called John Waite and told him he was going to work for Harold Clark and Maehlmann’s. Luciano had told Joy Waite that he did not want to lose his pension. He told John Waite, ‘‘I can’t stay with you be- cause you got no union no more.’’ Luciano had been a union member for 21 years. Second: By conditioning the employment of its employees Luciano and James on their working without union repres entation and under working conditions other than those spec- ified by the collective-bargaining agreement applicable to them, and by James and Luciano having chosen to forgo their employment rather than accept those unlawful condi- tions, they were thereby constructively and unlawfully dis- charged. Advance Electric, 268 NLRB 1001 (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ cases cited therein. By engaging in the misconduct described 980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD above Respondent Waite violated Section 8(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1)ﬁMDB the Act. Antoine Poma and John Babcock First: Antoine Poma and John Babcock were employed as journeymen printers by Respondent Russo. They were mem- bers of the Union. Poma left Respondent Russo’s employ- ment on August 30, 1991. Two days before his termination Jerome Russo visited him at a jobsite and said to him ‘‘That he was gonna go non-union, and Friday would be my last day of work.’’ The next morning Poma approached Jerome Russo and asked him if he could work until he found another job. Jerome Russo agreed but later returned and said, ‘‘His attorney advised him not to keep me, cause he would be in trouble with the Union, if he does.’’ Poma then left employ- ment, on Friday. Jerome Russo testified that, ‘‘he could ei- ther stay in my employment but I will not be paying him benefits the 31st, or your [sic] could choose to do what- ever.’’ The last day Babcock worked for the Respondent Russo was August 30, 1991. During the first week of August, Je- rome Russo told Babcock he was contemplating going non- union. Jerome Russo asked Babcock what he would do if he went nonunion. He answered that he would ‘‘probably stay with the Union.’’ Jerome Russo said that he had not yet made up his mind. In the third week of August Jerome Russo advised Babcock that he was going nonunion. Babcock responded that he was ‘‘probably leaving.’’ Bab- cock further testified that when Jerome Russo complained about the Union he said, ‘‘I can’t understand what he was complaining about, being that the employees hadn’t received a raise in approximately five years.’’ On August 30, 1991, Jerome Russo advised Babcock that he would have to let him go; that ‘‘his lawyer advised him that it would be a conflict of interest to keep me working for him.’’ Second: The credible evidence establishes that Russo dis- charged Babcock and Poma because of their union connec- tions and that they would have been continued in employ- ment if they had been nonunion. Accordingly the discharges violated Section 8(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ an 251 NLRB 1083 (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1980)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ. CONCLUSIONS OF LAW 1. Respondents are employers engaged in commerce with- in the meaning of Section 2(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ2)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ, (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ6)ﬁMDBUﬂ*ERR17*ﬁ it will effectuate the purposes of the Act for jurisdiction to be exercised. 2. The Union is a labor organization within the meaning of Section 2(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ5)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ of the Act. 3. The following units constitute appropriate units for the purposes of collective bargaining within the meaning of Sec- tion 9(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂb)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ of the Act: All employees of Respondent Russo who perform work which is described in and covered by the Working Agreement effective September 1, 1991 through August 31, 1992 between the Union and any person, firm or corporation performing work under the trade and geo- graphical jurisdiction as set forth in this Working Agreement. All employees of Respondent Waite who perform work which is described in and covered by the Working Agreement effective September 1, 1991 through August 31, 1992 between the Union and any person, firm or corporation performing work under the trade and geo- graphical jurisdiction as set forth in this Working Agreement. 4. The Union has been at all times material the exclusive representative of the employees in the aforesaid appropriate units for the purposes of collective bargaining within the meaning of Section 9(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDN 5. By unlawfully failing and refusing to execute a written contract (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂG.C. Exh. 27)ﬁMDBUﬂ*ERR17*ﬁMDN of the agreement reached with the Union, the Respondents engaged in unfair labor practices in violation of Section 8(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ(ﬁMDBUﬂ*ERR 6. By unilaterally, and without notice to the Union, chang- ing existing terms and conditions of employment as set forth in the agreement, the Respondents violated Section 8(ﬁMDBUﬂ*ERR17*ﬁMD the Act. 7. By withdrawing recognition from and refusing to recog- nize and bargain with the Union, the Respondent violated Section 8(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ(ﬁMDBU 8. By refusing to hire Carl S. Monyhan on or about Sep- tember 8, 1991, and by causing the termination of Antoine Poma and John Babcock on August 3, 1991, Respondent Russo has engaged in unfair labor practices within the mean- ing of Section 8(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ(ﬁ 9. By causing the termination of George L. James on Au- gust 31, 1991, and Segundo Luciano on September 10, 1991, Respondent Waite has engaged in unfair labor practices with- in the meaning of Section 8(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17* 10. The above violations of the Act are unfair labor prac- tices affecting commerce within the meaning of Section 2(ﬁMDBUﬂ*ERR17*ﬁ and (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ7)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ of the Act. REMEDY Having found that the Respondents have engaged in cer- tain unfair labor practices, I recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having also found that the Respondent Russo unlawfully refused to hire Carl S. Monyhan on or about September 8, 1991, and unlawfully caused the termination of employment of Antoine Poma and John Babcock on August 31, 1991, and that Respondent Waite unlawfully caused the termination of employment of George L. James on August 31, 1991, and Segundo Luciano on September 10, 1991, and has failed and refused to offer them employment in violation of the Act, it recommended that the Respondents remedy such unlawful conduct. In accordance with Board policy it is recommended that the Respondents respectively offer Poma, Babcock, James, and Luciano immediate and full reinstatement to their former positions and that Respondent Russo offer Monyhan the po- sition he would have filled had he been lawfully hired or, if such positions no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other rights and privileges previously enjoyed, dismissing, if necessary, any employees hired on or since the date of their discharges to fill the positions, and make them whole for any loss of earnings they may have suffered by reason of the Respond- 981 JEROME RUSSO QUALITY PAINTING 19 See Kraft Plumbing & Heating, 252 NLRB 891 (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1980)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ; Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1979)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ. 20 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended 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. 21 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 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.’’ ents’ acts here detailed, by payment to them of a sum of money equal to the amount they would have earned from the date of the unlawful action taken against them to the date of valid offers of reinstatement, less their net interim earnings during such periods, with interest thereon, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1950)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ, with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1987)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ. It is further recommended that the Respondents sign the collective-bargaining agreement marked General Counsel’s Exhibit 27; that it give effect to such written contract retro- actively to August 31, 1991; that it continue the contract in effect for its 1-year term; and that it make whole its employ- ees for any loss of wages or other employment benefits19 they may have suffered as a result of the Respondent’s fail- ure to sign the contract, plus interest. The loss of earnings and any interest under the recommended Order shall be com- puted in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1950)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ, and New Horizons for the Retarded, 283 NLRB 1173 (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1987)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ. Additionally the Respondent shall continue in effect any and all benefits it has given its employees since August 31, 1991. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended20 ORDER A. Respondent Jerome Russo Quality Painting and Deco- rating, Inc., Lake Worth, Florida, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Unlawfully failing and refusing to execute the collec- tive-bargaining agreement (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂG.C. Exh. 27)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ agreed to by Re- spondent Russo and the Union. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂb)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Unlawfully changing terms and conditions of employ- ment set forth in the collective-bargaining agreement during the term of agreement. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂc)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Unlawfully unilaterally and without notice to the Union, changing terms and conditions of employment and dealing directly with its employees in regard to matters with- in the scope of collective bargaining. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂd)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Unlawfully advising employees that it will operate its establishment nonunion. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂe)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Unlawfully refusing to recognize and bargain in good faith with the Union as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All employees of Jerome Russo Quality Painting and Decorating Inc. who perform work which is prescribed in and covered by the Working Agreement effective September 1, 1991 through August 31, 1992 between the Union and any person, firm or corporation perform- ing work under the trade and geographical jurisdiction as set forth in this Working Agreement. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂf)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Unlawfully di any other labor organization, by unlawfully and discriminatorily discharging employees discriminating against them in any manner in respect to their hire or tenure of em- ployment or conditions of employment in violation of Sec- tion 8(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ(ﬁMDBUﬂ* (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂg)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ In any like or ing, or coercing employees in the exercise of the rights guar- anteed by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Forthwith sign ferred to in the remedy and recognize and bargain collec- tively with the Union during the term of the agreement. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂb)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ On the execut roactive effect to the provisions, and make whole it employ- ees for any losses they may have suffered by reason of the Respondent’s failure to sign the agreement in the manner set forth in the remedy section, continue in effect any and all benefits that it has given employees since August 31, 1991, and otherwise comply with the remedy. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂc)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Offer Antoine to their former jobs, and to Carl S. Monyhan the job he would have filled had he been fully hired or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against them, in the manner set forth in the rem- edy section of the decision. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂd)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Remove from discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂe)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Preserve and, 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. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂf)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Post at its Lak the attached notice marked ‘‘Appendix A.’’21 Copies of the notice, on forms provided by the Regional Director for Re- gion 12, after being signed by Respondent’s authorized rep- resentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in con- spicuous places including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂg)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Notify the Re from the date of this Order what steps the Respondent has taken to comply. B. Respondent Waite Painting Corporation, Lake Worth, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from 982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 See fn. 21, supra. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Unlawfully failing and refusing to execute the collec- tive-bargaining agreement (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂG.C. Exh. 27)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ agreed to by Re- spondent Waite and the Union. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂb)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Unlawfully changing terms and conditions of employ- ment set forth in said collective-bargaining agreement during the term of agreement. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂc)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Unlawfully unilaterally and without notice ot the Union changing terms and conditions of employment and dealing directly with its employees in regard to matters within the scope of collective bargaining. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂd)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Unlawfully advising employees that it will operate its establishment nonunion. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂe)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Unlawfully refusing to recognize and bargain in good faith with the Union as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All employees of Waite Painting Corporation who perform work which is described in and covered by the Working Agreement effective September 1, 1991 through August 31, 1992 between the Union and any person, firm, or corporation, performing work under the trade and geographical jurisdiction as set forth in this Working Agreement. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂf)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Unlawfully discouraging membership in the Union, or any other labor organization, by unlawfully and discriminatorily discharging employees or discriminating against them in any manner in respect to their hire or tenure of employment or conditions of employment in violation of Section 8(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ(ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ3)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ and (ﬁMDB (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂg)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂa)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Forthwith sign the collective-bargaining agreement re- ferred to in the remedy and recognize and bargain collec- tively with the Union during the term of the agreement. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂb)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ On the execution of the aforesaid agreement, give ret- roactive effect to the provisions, and make whole its employ- ees for any losses they may have suffered by reason of the Respondents’ failure to sign the agreement in the manner set forth in the remedy section, continue in effect any and all benefits that it has given employees since September 1, 1991, and otherwise comply with the remedy. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂc)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Offer George L. James and Segundo Luciano reinstate- ment to the former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other ben- efits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂd)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂe)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Preserve and, on 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. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂf)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Post at its Lak the attached notice marked ‘‘Appendix B.’’22 Copies of the notice, on forms provided by the Regional Director for Re- gion 12, after being signed by Respondent’s authorized rep- resentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in con- spicuous places including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂg)ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ Notify the Re from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER RECOMMENDED that the consolidated com- plaint be dismissed insofar as it alleges violations of the Act other than those found in this decision. APPENDIX B 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail or refuse to execute the collective-bar- gaining agreement agreed to by us and the International Brotherhood of Painters and Allied Trades of the United States and Canada, AFL–CIO, Local 452. WE WILL NOT change the terms and conditions of employ- ment set forth in the agreement during the term of the agree- ment without the consent of the Union. WE WILL NOT unilaterally and without notice to the Union change terms and conditions of employment of our employ- ees or deal directly with our employees about matters falling within the scope of collective bargaining. WE WILL NOT unlawfully withdraw recognition and refuse to bargain with the Union during the period that the aforesaid collective-bargaining agreement is binding on the parties. WE WILL NOT unlawfully discharge or discipline any of our employees or discriminate against them in any manner because of their union affection or union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. WE WILL forthwith sign the collective-bargaining agree- ment referred to above and recognize and bargain collec- tively with the Union during the term of the contract. WE WILL give retroactive effect to the provisions of the agreement and make whole our employees for any losses they may have suffered by reason of our failure to sign the agreement. WE WILL continue in effect any and all benefits of every kind or nature that we have given our employees since Au- gust 31, 1991. WE WILL offer George L. James and Segundo Luciano im- mediate and full reinstatement to their former jobs or , if those jobs no longer exist, to substantially equivalent posi- 983 JEROME RUSSO QUALITY PAINTING tions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. WE WILL remove from our files any reference to the un- lawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. WE WILL make whole our unit employees by transmitting the contributions owed to the Union’s health and welfare, pension, vacation and holiday, and apprenticeship and train- ing funds pursuant to the terms of our collective-bargaining agreement with the Union, and by reimbursing unit employ- ees for any medical, dental, or any other expenses ensuing from our unlawful failure to make such required contribu- tions. This shall include reimbursing employees for any con- tributions they themselves may have made for the mainte- nance of the Union’s health and welfare, pension, industry, and apprenticeship funds after we unlawfully discontinued contributions to those funds; for any premiums they may have paid to third-party insurance companies to continue medical and dental coverage in the absence of our required contributions to such funds; and for any medical or dental bills they have paid directly to health care providers that the contractual policies would have covered. (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂSee Adv tric, 268 NLRB 1001 (ﬁMDBUﬂ*ERR17*ﬁMDNMﬂ1984)ﬁMDBUﬂ*ERR17*ﬁM WAITE PAINTING CORPORATION