Fox Painting Co. And Fox Painting And Decorating, Inc.

FOX PAINTING CO. Fox Painting Company and Fox Painting and Deco- rating, Inc. and International Brotherhood of Painters and Allied Trades of the United States and Canada, Local 768, AFL-CIO. Case 9- CA-16050 September 29, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On April 18, 1989, Administrative Law Judge Bruce C. Nasdor issued the attached supplemental decision in this proceeding . The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions, and to issue an appro- priate backpay Order.2 ' We find no merit in the Respondent's exceptions to the judge's refus- al to apply the Board's subsequent decision in John Deklewa & Sons, 282 NLRB 1375 (1987), so as to cut off backpay for the period covered by the compliance specification, namely , May 7, 1980, through June 30, 1986. Dependable Tile Co., 292 NLRB 1034 (1989) We further find it un- necessary in this proceeding to pass on the question whether the Board's issuance of the decision in Deklewa has any effect on the Board's remedi- al Order in this case (263 NLRB 437 (1982)), enforced by the Sixth Cir- cuit Court of Appeals (732 F.2d 554 (1984)), for periods beyond those covered by the instant compliance specification. ORDER 833 The National Labor Relations Board adopts the findings of the administrative law judge and orders that the Respondent, Fox Painting Company and Fox Painting and Decorating, Inc., Lexington, Kentucky, its officers, agents, successors, and as- signs, shall pay the amounts set forth below. 1. The sum of $162,754.74 to employees as net backpay, in accordance with the listing of amounts owed to the individual employees in the attached "Appendix," plus interest computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), and accrued to the date of pay- ment, minus tax withholdings required by Federal and state laws. 2. The sum of $2263 .95 in administrative dues owed to the Charging Party, plus interest to the date of payment in accordance with New Horizons for the Retarded, supra, and the sums of $48,414.80, $48,181.75, and $844.04 to the Vacation, Health In- surance, and Apprenticeship Education Funds, re- spectively, as set forth in the attached "Appendix," plus any additional amounts as prescribed in Merryweather Optical Co., 240 NLRB 1213 (1979). 2 The Order and the appendix contain corrections of copying or addi- tion in the amended backpay specification . In addition, the parties have stipulated that Charles Brent , Claude Haynes, and Charles Brent Haynes, who are separately listed in the amended backpay specification , are the same individual As their respective backpay periods and work locations do not appear to be duplicative and the Respondent has taken no excep- tion, the net backpay and other amounts listed for Charles Brent Haynes are the sum of the figures set forth for all three names in the amended specification APPENDIX Name Net Backpay Adm. Dues Vacation Fund Health Insurance Fund Apprenticeship Education Fund Adams, J. L. $412.73 $_0_ $53.07 $47 .31 $1.04 Allen, R. 610.14 -0- 117.70 129.33 2.33 Bailey, C. 338.50 -0- 49.50 44.12 .97 Baker, Jimmy 105.32 9.90 39.58 28.20 .40 Ballinger, E. R. 155.35 119.80 235.48 274.32 5 86 Baugh, C. 6,087.73 -0- 854.90 938 . 83 16.89 Bell, J. 199.80 -0- 27.16 29.85 .54 Bishop, D. 253.69 -0- 35.63 25.38 .36 Blankenship, P. 1,570.11 -0- 436.01 520. 19 9.36 Bryant, M 566.24 -0- 74.45 81.80 1.47 Bumpase, T. 364.51 -0- 61.78 102 71 1.86 Burgess, Chas. 8,352 .40 720.87 2,912.64 2,699 .27 44.03 Burgess, C. 12,641.84 -0- 2,073 .22 1,895 .00 31.27 Burgess, M. 8,097.47 -0- 1,262.11 1,318.29 23.24 Burgess, P. 2,592.51 -0- 433.75 480.99 8.56 Cannon, R. -0- -0- 34.55 100.82 2.13 Cannon, Ray 3,903.01 -0- 758.27 884.89 15.88 Cannon, Ronnie 116.80 48.44 198.59 217.96 3.87 Cannon, Tom Jr. 6,096.81 436.69 2,128.10 2,440.74 44.21 Cannon, Tom Sr . 2,065.80 -0- 1,492.90 1,640.04 29.44 296 NLRB No. 103 834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX-Continued Name Net Backpay Adm. Dues Vacation Fund Health Insurance Fund Apprenticeship Education Fund Christian, D. 118.08 4.99 11.48 10.23 .22 Collins, D. 458.22 -0- 70.85 77.77 1.38 Comley, G. 150.87 -0- 98.32 87.64 1.92 Conley, G. -0- 8.40 19.32 17.22 .38 Consalvi, 0. 2,287.93 -0- 449.05 394.92 5.57 Courtney, B. 50.64 -0- 25.62 52.70 .95 Courtney, R. 651.05 -0- 115.92 144.01 2.59 Crump, E. 606.23 51.91 210.23 248.46 4.47 Crump, G. 408 .01 -0- 107.09 152.04 2.74 Davis, B. 482.16 -0- 263.79 264.94 5.34 Davis, J. 423.82 0- 434.07 596.68 11.01 Davis, Jimmy 766.03 14.23 2,425.40 2,664.68 47.86 Decker, T. 798.31 -0- 405.74 289.09 4.06 Decker, Tim 815.63 -0- 143.00 101.89 1.43 Dempster, C. 61.22 -0- 8.98 8.01 .18 Dennie, T. -0- 19.25 30.80 27.59 .58 Dennis, T. -0- -0- 1.86 1.67 .03 Duggins, D. 1,581 .60 -0- 511 .30 561 .69 10.08 Durham, E. .94 28.10 44.96 40.28 .84 Dykes, R. 235.62 -0- 32. 19 35.37 .64 Earvert , C. -0- -0- 15.48 13.86 .29 Ellis, D. 735.94 -0- 117.70 129.33 2.33 Ellis, J . 826.98 -0- 131 .79 144.80 2.60 Fain, K. 2,149.22 -0- 273.73 415.01 7.46 Faircloth, J. 0. 2,043.40 208.58 836.20 919.63 16.53 Ferrieri, M. 42.81 -0- 3.99 3.56 .08 Finn, L. Jr. -0- -0- 3.24 3.56 .06 Fomeri, M. -0- -0- 10.84 9.70 .20 Foster, D. -0- -0- 235.68 210.06 4.61 Foster, S. 507.04 -0- 69.42 76.27 1.37 Frith, 0. 439.54 -0- 72.89 66.11 1.53 Gayhart, R. 239.00 -0- 139.40 124.25 2.73 Gilbert, C. -0- 504. 15 2,022.84 1,547.01 22.67 Gilbert, D. 2,441 .07 -0- 382.66 277. 10 3.83 Gilbert, David 887.26 -0- 112.37 118.66 1.90 Godby, L. 626.05 -0- 315.68 224.92 3.16 Gray, E. 4,737.36 -0- 1,101 .88 865 .81 15.21 Greenwade, J. 1,050.56 -0- 163. 15 179.14 3.20 Griffin, B. 2,853.05 -0- 401.40 441 .05 7.93 Griffin, W. 363.96 -0- 129.42 207 .37 3.74 Hammons, B. 367.25 -0- 26.05 23.63 .55 Hampton, D. 1,696.23 -0- 305 .40 369.12 6.64 Hanson, R. 860.01 -0- 107.64 118.28 2.13 Haynes, Chas. B. 12,846.08 -0- 2,030.79 1 ,478.62 20.85 Helton, C. -0- -0- 10.95 9.76 .21 Helton, H. -0- -0- 39.18 42.84 .77 Hilland, G. A. 188.68 -0- 32.93 36.14 64 Hood, E. -0- -0- 27.48 24.53 .52 Hoover, R. 16.69 -0- 2.49 2.74 .05 Jackson, J. 235.38 -0- 121.87 191.55 4.16 Johnson, V. 332.00 -0- 46.71 51.15 .92 Jones, M. 490. 10 -0- 121.59 133.58 2.40 Jones, P. 976.65 -0- 132.79 145.91 2.62 Jones, T. 1,305.33 -0- 184.83 223 .54 4.02 Kidwell, D. -0- 2.50 369.86 449.51 9.66 Kidwell, L. -0- -0- 5.74 15.80 .34 King, S. 1,076.78 -0- 220.51 197.35 4.23 Logsdon, J. 6.83 -0- 3.97 3.56 .07 Logsdon, L. 3,418.98 -0- 1 ,333.89 1,511.99 30.01 Lynch, D. 1,058.48 -0- 447.88 436.97 8.75 Martin, C. -0- -0- 28.70 25.58 .56 May, M. 8,803.97 -0- 5,098.82 4,696.65 78.20 FOX PAINTING CO. 835 APPENDIX-Continued Name Net Backpay Adm. Dues Vacation Fund Health Insurance Fund Apprenticeship Education Fund McGuire, G . -0- -0- 69.82 48.29 1.31 McKnight, R. 956.56 -0- 119.72 131.54 2.36 Middleton, M. 5,093.85 -0- 805.41 1 ,014.65 18.33 Miracle, R. 396.80 -0- 54.83 60.24 1.08 Murphy, C. 27.86 -0- 3.02 3.32 .06 Nealy, D. 713.81 -0- 90.54 99.48 1.79 Perry, G. 506.34 -0- 60.36 66.32 1.19 Perry, R. 322.68 -0- 40.24 44.22 .79 Pettit, T. 457.21 -0- 143.39 127.80 2.81 Powell, S. -0- -0- 22.03 24.21 .44 Rearden , J. -0- -0- 1,626.74 1,480.38 28.61 Scott, R. 878.37 -0- 122.33 111.62 1.28 Sexton, D. 1,187.91 -0- 556.71 555.34 12.47 Shalash, A. 1,660.14 80.20 224.23 181 .91 3.50 Shanks, G. 424.96 -0- 190.50 135.73 1.90 Shanks, J. 1,481.82 -0- 771.32 731. 13 12.65 Shaw, B. 69.19 5.94 23.75 16.92 .24 Shelley, M. 635.40 -0- 79.98 87.88 1.58 Short, D. -0- -0- 7.99 7.12 .16 Simpson, E. -0- -0- 3.44 3.78 .07 Smith, C. -0- -0- 131.17 116.91 2.57 Spurr, J. 2,735.06 -0- 990.58 1 ,323.02 23.83 Stallsworth, M. 136.01 -0- 130.63 93.07 1.31 Stephens, S. 622.18 -0- 83.50 91 .75 1.65 Stevens , L. 27.86 -0- 3.02 3.32 .06 Sumpter, B. 491.79 -0- 220.01 196.09 4.30 Sumpter, L. 27.17 -0- 48.03 42.81 .94 Tackett, C. 215.00 -0- 34.16 37.44 .68 Terry, J. 75.11 -0- 44.12 39.52 .83 Turner, B. 159 94 -0- 332.12 299.55 6.81 Tussey, M. 930.57 -0- 194.36 173.08 3.59 Ward, R. 4,158.98 -0- 599.07 727.13 13.09 Warfield, A. 1,808.00 -0- 254.26 297.92 5.37 Warner, C. 664.80 -0- 231.30 206.16 4.53 Watson, L. 4,734.17 -0- 1,999.21 1,715.33 26.97 Wheat, W. -0- -0- 95.50 68.04 .95 Will, J. 8,447.51 -0- 1,047.86 842.17 11.93 Williams, R. 1,058.25 -0- 418.39 490.98 8.85 Williams, S. 451.90 -0- 64.63 57.61 1.26 Wilson, M. -0- -0- 98.96 70.51 .99 Witham, R. -0- -0- 29.34 32.08 .58 Woolfolk, W. 3,115.46 -0- 414.55 456.40 4.08 Workman, L. -0- -0- -0- 21.13 .45 Wright, B. 32.28 -0- 4.49 4.93 .09 Totals $162,754.74 $2,263.95 $48,414.80 $48,181.75 $844.04 John Petrison, Esq., for the General Counsel. Robert F. Houlihan, Esq. and C. Wayne Shepherd, Esq., for the Respondent. SUPPLEMENTAL DECISION STATEMENT OF THE CASE BRUCE C. NASDOR , Administrative Law Judge. This case was tried at Lexington , Kentucky, on October 26, 27, 28, and December 8 and 9, 1987. The original backpay specification and notice of hear- ing issued on August 25, 1986, alleging that Fox Painting and Decorating, Inc. is a successor to Fox Painting Com- pany. An amended backpay specification issued on March 13, 1987. The backpay specification was further modified during the course of the hearing. The unfair labor practice decision giving rise to this proceeding was handed down by the Board in 1982, in 263 NLRB 437. The Board's Order was enforced by the United States Court of Appeals for the Sixth Circuit in 1984, in 703 F.2d 554. 836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the entire record , including my observation of the demeanor of the witnesses, and after due consideration of the briefs, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW At the hearing, Respondent 's counsel agreed that li- ability, if there is such , would be imputed to Fox Paint- ing and Decorating, Inc., thus resolving the successor/- alter ego issue. During the course of the hearing counsel for the Gen- eral Counsel withdrew the names of the following indi- viduals because they did not work within the Local Union's territorial jurisdiction and thus are ineligible to receive backpay: Jay Larry Bell Roland Hanson Michael Ferrieri Ryan McKnight Len Finn Charlie Murphy Steve Foster Tim Pettit Ricky Gayhart Bill Wright Bobby Hammon Charles Brent, Charles Haynes, and Claude Haynes, listed in three separate paragraphs of the backpay specifi- cation, are the same individuals. The Respondent contends that the employees listed below are not entitled to backpay because they were not employed as painters, rather they were laborers . Accord- ingly, these employees are in contention because Re- spondent asserts that work not directly involving the use of a spray gun, brush, or roller is not painter's work. Ronnie Allen Charles Baily Craig Baugh Charles Brent Martin Bryant Troy Bumpasse Mike Burgess Denny Christian David Collins Orlando Consalvi Bill Courtney Randy Courtney Rick Dykes Dan Ellis Jeffrey Ellis Revin Fain Mike Fomeri Dale Gilbert David Gilbert John Greenwade Billy Griffin Charles Haynes Claude Haynes Herbert Helton Edward Hood Vincinio Johnson Peter Jones Tony Jones Mark Middleton Dan Nealey Gary Perry Roger Perry Rodney Scott Ahmad Shalash Jackie Shanks Madison Shelley Scott Stephens Charles Tackell Richard Ward Albert Waterfield Rick Witham Walter Wolfolk Craig Baugh spent approximately 60 to 65 percent of his time in sanding. He spent approximately 20 percent of his time doing cleanup work , and the remainder of his time was spent painting. Charles Brent (also known as Charles Haynes and Claude Haynes) performed preparatory work' for paint- ' Taping, which is preparatory work, is included in the contract ing, assisted in spray painting, and functioned as a helper on spray painting as well as setting up the spray equip- ment. Troy Bumpasse performed sanding and erecting scaf- folding. He was used mainly as a laborer and did not engage in actual painting. Mike Burgess engaged in the putty of woodwork, pre- paring for a spray crew . He did very little painting. The parties stipulated that Denny Christian was a painter and therefore covered by the collective-bargain- ing agreement. The witness Mark Ray testified that to his knowledge if David Collins was on a particular job he would have been part of the preparatory crew . He was unable to place his face or occupation. Orlando Consalvi had poor eyesight and was hired to be the pot tender for sandblasting and spray painting. He did no painting but he did engage in preparatory work. Randy Courtney was engaged in painting units and the walls and ceilings of units in a building. Dan Ellis performed preparatory work for painting, and his brother Jeff Ellis performed painting work. Revin (Kenny) Fain spent 50 percent of his time paint- ing with a roller or a brush. The balance of his time was spent sanding, taping, and cleaning. Vincino Johnson spent 10 percent of his time painting and the rest of the time sanding. Jackie Shanks has an extensive background in painting and performed painter's work when in the employ of Fox. He also did some carpentry work and trim on Fox's house. This was not "painter's work" and Respondent has no obligation to compensate Shanks for the work on Fox's house. Ronnie Allen carried paint, performed cleanup , sanded door facings, puttied holes, and cleaned out window fac- ings. The Respondent contends that the employees listed below are not entitled to backpay bcause they were em- ployed as registered apprentices. Charles Burgess2 Tommy Cannon, Jr. Ernest Gray Stanley King Donald Sexton Billy Sumpter Merle Tussey Christ Warner What the Respondent characterizes as apprentice agreements were executed between the employees and Fox, at Fox's request. The agreements were sent to Fox by the State of Ken- tucky. None of the "apprentices" evolved pursuant to the collective-bargaining agreement nor were they under the supervision or control of the joint apprenticeship committee. (G.C. Exh. 17, art. VIII, p. 18.) Joe Rearden testified that he worked for the Respond- ent using the tools of the trade as a painter. At other 2 Charles Burgess is the father of Chuck Burgess, and according to the testimony of Fox, he is a painter. FOX PAINTING CO. 837 times he functioned as a superintendent and/or working superintendent . In view of the fact that the instant case began to unfold in 1980, it is easy to understand Rear- den's problem with recalling specific times and dates. Rearden did testify that in October 1982 he was "work- ing strictly with the tools" as a journeyman painter. In its answer Respondent contends that Mark May was a supervisor and thus not covered by the collective- bargaining agreement . May testified that he was hired in January 1981, and worked as a journeyman painter for 2 to 3 years. His best recollection is that, in 1984, he became a foreman and a supervisor within the meaning of the Act. The Respondent contends that the following employ- ees were employed as carpenters and accordingly are in- eligible to receive backpay : Phil Burgess, Danny Rid- well, and Robert Williams. No testimony was adduced relative to Ridwell or Wil- liams. Philip Burgess testified with respect to certain specific jobs. On one job he was designated as a carpenter and did 100-percent carpentry work. On other jobs he would paint 55 to 60 percent of his time. On certain other jobs he testified that he was involved in preparatory work from 40 to 45 percent of the time. Respondent's principal defense to the backpay specifi- cation is the Board 's decision in John Deklewa & Sons3 applies retroactively to the decision of the administrative law judge4 as affirmed by the Board, and negates the de- cision of the administrative law judge insofar as the deci- sion imposes remedies, monetary and otherwise, because of Respondent's failure, subsequent to March 31, 1982, to observe collective-bargaining agreements between the PDCA5 and the Union. The Respondent argues that in Deklewa the Board re- vised the principles of law and its Section 8(f) pro- nouncements applicable to collective-bargaining agree- ments within the purview of these agreements. Further- more, the Board abolished its conversion doctrine, which vested an 8(f) union with status as an 9(a) representative by means other than a Board election or voluntary rec- ognition. Respondent correctly states, citing American Thoro-Clean, Ltd., 283 NLRB 1107 (1987), that the Board granted certain limited enforcement rights to par- ties to 8(f) collective-bargaining agreements. Moreover, according to Respondent, "obviously [em- phasis added] the PDCA collective-bargaining agreement began as to Fox as a Section 8(f) agreement." Respond- ent states that Fox simply decided to operate as a union contractor without a Board-conducted election or a showing of majority status among its employees, Fox signed the PDCA contract. Counsel for the General Counsel argues that the law as enunciated in Reliable Electric Co., 286 NLRB 834 (1987), is applicable herein, and that the facts in that case bear close resemblance to the factual situation in the original unfair labor practice case. a 282 NLRB 1375 (1987) This reference is to the administrative law judge in the unfair labor practice proceeding 5 This reference is to the Painting and Decorating Council of America Respondent in its answer sets forth an affirmative de- fense that they effectively withdrew from PDCA as of March 31, 1982, and effectively notified the Union as of that date that they no longer were members of the association of employers bargaining with the Union; Respondent effectively notified the Union during 1980 and at all times since then , that they no longer recognized the Union as bargaining representative of their employees or any of them. The Respondent's defense during the unfair labor prac- tice segment of this litigation was that it was not bound by the new agreement because the 1978 contract expired by its terms on March 31, 1980 . Therefore, Respondent's acts were neither a breach of contract nor an unfair labor practice. Respondent maintains now that it effectively withdrew from PDCA as of March 31, 1982, and effectively notified the Union as of that date that they no longer were members of the asso- ciation of employers bargaining with the Union; Re- spondent effectively notified the Union during 1980 and at all times since then , that they no longer rec- ognize the Union as the bargaining representative of their employees or any of them. Conclusion and Analysis Counsel for the General Counsel and counsel for the Respondent agreed that counsel for the General Counsel would withdraw the allegations of backpay for time peri- ods where certain individuals worked outside the juris- diction of Local No. 768, to the extent that such facts were established . The following individuals are affected: John Adams Charles Bailey Denny Christian Chester Dempster Everett Durham Rick Dykes Craig Earvett Michael Ferrieri Len Finn, Jr. Donald Foster Steve Foster Ricky Gayhart Walter Griffin Bobby Hammons Roland Hanson Calvin Helton Ray Hoover Lonnie Ridwell James Logsden Grover McGuire Roger McKnight Charles Murphy Tim Pettit Dennis Short Charles Smith Jim Terry Chris Warner Steve Williams Some of these individuals have been referred to earlier as having been eliminated from receiving backpay for the same reason. Fox's testimony patently reveals that he was bent on eliminating employee jobs which were covered by the collective-bargaining agreement and paid pursuant to that agreement . The following questions and answers by Fox are illuminating: Q. All right, do you recall requesting that there ought to be a helper's category created? A. Yes, I do recall that. 838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. And why did you want a helper's category created? A. Because I thought that there was a lot of quite a few tasks that you just simply did not need a painter to perform . There were a lot of times that painters were performing, at a high rate of pay, that you thought should be performed at a lesser rate of pay. A. Well, actually the painters weren't performing these tasks either. We were using laborers to per- form these tasks, and I felt that we could create a category somewhere in between, more like an ap- prentice, more in between labor and bona fide painter. Q. And what particular task did you suggest be given to the helpers category? A. Tasks that did not involve handling the tools of the trade, the erecting of scaffolding , carrying in of materials, spreading drop cloths and plastic, masking up, cover-up, brooming up, moving scaf- folding around. Just numerous labor tasks. Q. You classify those all as laborers tasks, do you? A. Yes, I do. Q. That would include the taping? A. Yes. Q. And the scaffolding, building of scaffolding? A. Yes. Q. All right, how about finishing, was that labor- ers tasks? A. Finishing? Q. Yes. A. When we use the word finishing, I think we're talking about finished painting? Q. uh huh. A. No, that would not be a- Q. How about preparatory work in general, how did you classify that? A. That would be a laborer's work. Q. Which would include what? A. Brooming down a wall prior to the painter painting it, any sanding that was necessary, the washing of walls, the brooming up of floors, any preparatory work that didn't involve the use of a brush or a roller or a spray gun. Q. So, the sanding of doors, preparatory to paint- ing, how would you include that? Is that painters work or not? A. No, I would call that laborers work. One of the things was this ambiguity about what work be- longed to a painter and what work didn't, and that was one of the things I thought needed to be ad- dressed, a clarification. All the contractors, at the time, were kind of guessing, and the key to it seemed to be the tools of the trade. I think there was language in the agreement that mentioned that. So we were assuming that if a man handled tools of the trade, the tools that distinguished his trade from all others, that he was a painter, the brush, the roller and the spray . But, I think I was looking for some clarification, there, because there was a lot of ambiguity and uncertainty. Q. It's your contention that only those employees who are handling machinery or tools that are wholly distinguishable from other trades, classify that individual as coming out of under contract? A. Yes. Thus, Fox unilaterally created a "laborers" category in which he placed helpers and whom he wants to pay what he deems as laborers wages. Carl T. Radden, an employer whose employees had been represented by this same Union prior to 1986, was a reliable and credible witness . He clearly had no interest in the outcome of this case. Radden convincingly testi- fied that preparatory work was covered by the contract. Radden, who had been secretary of the PDCA for 10 or 15 years, testified that the repeated efforts by the PDCA to remove tasks such as sanding doors, caulking and sanding walls, i.e., tasks not involving tools of the trade, into a helper's classification were unsuccessful. Indeed, the administrative law judge and the Board found in the unfair labor practice proceeding that Fox at- tempted to get a "helper's" category into the collective- bargaining agreement, that he failed to do so, and he then attempted to abandon his obligations to recognize and bargain with the Union. Even at this juncture, the backpay litigation, Fox's car- dinal intention is to refuse to pay painters wages for what he considers laborers' work. Clearly, it was decid- ed that Fox was obligated to sign the contract and he could no longer refuse to pay painters ' wages because he considered them laborers. Accordingly, I find and conclude that Respondent is obligated to pay those employees in contention painters' wage rates in accordance with the backpay specification. These employees are encompassed within the contract and there is no legal or factual basis for removing their coverage from the contract. The apprentice issue is substantially identical to the la- borers scenario . Fox, in an effort to avoid paying the full painters wages, unilaterally established his own appren- ticeship program . Fox designated who were to be ap- prentices and not paid the journeyman scale pursuant to the contract. In my opinion, Respondent throughout has used this backpay proceeding to relitigate its unfair labor prac- tices. I find that Fox is obligated to pay those employees he contends are apprentices the full journeyman scale as provided for in the collective-bargaining agreement. Danny Ridwell and Robert Williams did not testify nor was there any testimony in their behalf. Philip Burgess, who did testify credibly, established that he was a painter, entitled to painters wages, and I so find. His testimony was unrebutted . I recommend that his backpay be awarded pursuant to the contract. Although Ridwell and Williams did not testify, I con- clude that Respondent has not met its burden of estab- lishing that they were carpenters. I therefore recommend that they be awarded backpay pursuant to the painters scale provided for in the contract. The Board found, as alleged, that Respondent violated Section 8(a)(1) and (5) and Section 8(d) of the Act by ab- FOX PAINTING CO. rogating the collective-bargaining agreement. By its con- tention that Deklewa, supra, is the law of this case, the Respondent is again using this backpay litigation as a ve- hicle to set aside the Board 's finding with respect to the unfair labor practices. It is not within my province, nor do I have the authority , to reverse the Board's findings. Moreover, in agreement with counsel for the General Counsel, I do not believe Deklewa is applicable. Neither the administrative law judge nor the Board addressed prehire agreements in the unfair labor practice case, nor is Section 8(f) of the Act alluded to. The administrative law judge, with Board approval, did find that during critical periods the employees were members of the Union. Furthermore, Reliable, supra, in my opinion bears closer resemblance to the instant case, although an 8(f) relationship was specifically found . As I understand the Board's language in Reliable, an 8(f) relationship herein, if there was such, would not release this Respondent (Fox) from its bargaining obligations or its responsibility for backpay. Accordingly, I conclude that this defense is without merit. Regarding Respondent's position as to its effective withdrawal from PDCA , the Board and the Sixth Circuit Court of Appeals did not agree with Respondent 's posi- tion. Indeed, the Board and the court found that Re- spondent violated its statutory obligations . It is manifest- ly clear that Respondent has never remedied its unlawful 839 conduct. In my opinion, this defense is inappropriate at this stage of the proceedings, backpay litigation. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed6 ORDER The Respondents, Fox Painting Company and Fox Painting and Decorating, Inc., Lexington, Kentucky, its officers, agents, successors, and assigns, shall I have determined that the backpay formula as set forth in the backpay specification is appropriate . I there- fore conclude that Respondents owe the unit employees backpay as alleged in the amended backpay specification as modified. Respondents also owes contributions to the various benefit funds . Moreover, in addition to these amounts, Respondents shall pay interest thereon as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987).' 5 If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses. 7 Under New Horizons, interest is computed at the "short term Federal rat " for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest accrued before January I, 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp, 231 NLRB 651 ( 1977).