Jerome Russo Quality Painting

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 973 (N.L.R.B. 1992)

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 cha ge terms and conditi ns of mployment 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 employ es or discri inate 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-
975JEROME 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 R spondent Waites’ collective-bargaining relationship
with the Union went back ‘‘about 22 years.’’
6 Jerome Russo named Maehlmann’s Brockway, Brandon &
Moreno, eil’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 b en 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 & oreno 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
977JEROME 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
979JEROME 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-
981JEROME 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*fiMDN flg)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 Regiona Direc or 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 Inter ational
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-
983JEROME 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