Cascade Painting Co., Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1985

277 N.L.R.B. 926 (N.L.R.B. 1985)

926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cascade Painting Company, Inc. and District Coun-
cil of Painters No. 33, International Brother-
hood of Painters and Allied Workers
Peterson Painting, Inc. and District Council of
Painters No . 33, International Brotherhood of
Painters and Allied Workers
John Costa , a Sole Proprietorship , d/b/a John Costa
Painting Company and District Council of
Painters No. 33,' International Brotherhood of
Painters and Allied Workers. Cases 32-CA-
5842, 32-CA-5843, and 32-CA-5866
29 November 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 6 December 1984 Administrative Law Judge
James S. Jenson issued the attached decision.
The Respondents filed exceptions and a support-
ing brief, and the General Counsel and the Charg-
ing Party filed reply briefs.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings,' and
conclusions,2 and to adopt the recommended
Order as modified.3
' The Respondents have implicitly excepted to some of the judge's
credibility findings The Board's established policy is not to overrule an
administrative law judge's credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d
Cir 1951). We have carefully examined the record and find no basis for
reversing the findings.
2 In adopting the judge's finding that neither Respondent Peterson nor
Respondent Cascade rebutted the presumption of the Union' s continuing
majority status, we find it unnecessary to rely on the principle enunciated
in Golden State Habilitation Convalescent Center, 224 NLRB 1618 (1976),
that new employees support the union in the same ratio as those whom
they have replaced
S The judge found that Respondent Peterson violated Sec 8(a)(1) by
informing employees it would become a nonunion employer, but the
judge inadvertently omitted this finding from the Order. We correct this
omission.
In the remedy section of his decision, the judge recommended that Re-
spondents be ordered to reimburse the Union for benefit funds provided
for in the collective-bargaining agreement Because the provisions of em-
ployee benefit fund agreements are variable and complex, the Board does
not provide at the adjudicatory stage of a proceeding for the addition of
interest at a fixed rate on unlawfully withheld fund payments We leave
to the compliance stage the question of whether the Respondents must
pay any additional amounts into the fringe benefit funds in order to satis-
fy our "make-whole" remedy These additional amounts may be deter-
mined, depending on the circumstances of each case, by reference to the
provisions in the documents governing the funds at issue and, where
there are no governing provisions, to evidence of any loss directly attrib-
utable to the unlawful withholding action, which might include the loss
of return on investment of the portion of funds withheld, additional ad-
ministrative costs, etc, but not collateral losses . See Merryweather Optical
Co, 240 NLRB 1213 (1979).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that Respond-
ent Cascade Painting Company Inc., San Jose,
California, and Respondent Peterson Painting, Inc.,
San Jose, California, their officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
Insert the following as paragraph B,1(b) and re-
letter the subsequent paragraphs.
"(b) Informing unit employees that it would
become a nonunion employer."
Linda Bytof and William O'Connor, Esqs., for the General
Counsel.
Edward R. La Croix Sr., of San Jose, California, for Cas-
cade Painting Company, Inc., and Peterson Painting,
Inc., the Respondents.
John Costa, Esq., for John Costa, a Sole Proprietorship,
d/b/a John Costa Painting Company.
Robert Jesinger, Esq., of San Jose, California, for the
Charging Union.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. These
cases were heard in Campbell, California, on May 23, 24,
and 25, 1984, pursuant to charges filed by District Coun-
cil of Painters No. 33, International Brotherhood of
Painters and Allied Workers (District Council or Union),
and an order consolidating all three cases for hearing
dated May 10, 1984. The complaints involving Respond-
ents Cascade and Peterson were amended both prior to
and at the hearing.' The complaints as amended in Cases
32-CA-5842 And 32-CA-5843 in substance that Re-
spondents Peterson and Cascade each unlawfully refused
to bargain with, and withdrew recognition from, the Dis-
trict Council after their collective-bargaining agreements
expired on June 30, 1983; that each Respondent made
unilateral changes in wages and terms and conditions of
employment of unit employees; that each Respondent
dealt directly with its respective employees concerning
wages, benefits, and other terms and conditions of em-
ployment, all in violation of Section 8(a)(5); and that
each Respondent constructively discharged its employees
by forcing them to quit their employment rather than
continue without union representation, in violation of
Section 8(a)(3). Respondent Peterson is also alleged to
have unlawfully informed employees that it would
become nonunion, in violation of Section 8(a)(1). Al-
though admitting a number of the complaint allegations,
both Respondents deny the commission of any unfair
labor practices.
i After the hearing opened , the General Counsel moved to sever Case
32-CA-5866 from the other two cases and to dismiss the complaint in
that case upon the basis of a settlement agreement between the parties
involved therein The motion was granted.
277 NLRB No. 103
CASCADE PAINTING CO.
All parties were given full opportunity to appear, to
introduce evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. A brief was
filed by the General Counsel and has been carefully con-
sidered.
On the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing2
FINDINGS OF FACT
I. JURISDICTION
It is alleged, admitted, and found that each Respond-
enit has an office and place of business in San Jose, Cali-
fornia, where it is engaged in the painting of commercial
and residential buildings; that during the past 12 months
each Respondent sold goods or provided services valued
in excess of $50,000 to customers or business enterprises
in California, which customers or business enterprises
themselves met one of the Board's jurisdictional stand-
ards other than the indirect inflow or indirect outflow
standards; and that at all times material each of the Re-
spondents has been an employer engaged in commerce
within the meaning of Section 2(2). (6), and (7) of the
Act.
II, THE LABOR ORGANIZATION INVOLVED
It is alleged, admitted, and found that District Council
of Painters No. 33, International Brotherhood of Painters
and Allied Workers is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Respondent Cascade and Respondent Peterson are
each engaged in the painting business in San Jose, Cali-
fornia. Jack Cook is Respondent Cascade's president,3
and Victor Peterson and Raymond Peterson, his son, are
Respondent Peterson's president and vice president re-
spectively. Each of the companies admits that the named
individuals are its respective supervisors and agents
within the meaning of Section 2(11) and (13) of the Act.
For a number of years both Respondents were employer-
members of the Painting and Decorating Contractors As-
sociation of Central Coast Counties, Inc. (PDCA), to
whom each had given authorization to bargain collec-
tively. By virtue of their membership in PDCA, both
Respondents were parties to a series of successive collec-
tive-bargaining agreements with the Union, the most
recent being effective from July 1, 1980, through June
30, 1983. Traditionally negotiations for successor agree-
ments have begun in January of the contract expiration
year. Due to economic conditions, however, in late 1982,
the Union offered to reopen the 1980-1983 contract and
begun negotiations on a successor agreement early. On
2 The General Counsel's unopposed motion to correct transcript of
hearing is granted and is made a part of the record as G C Exh 24
3 Prior to mid-1981, Cascade performed its commercial work through
R & T Painting, a wholly owned subsidiary The two were merged in
1981 and have since operated as Cascade/R & T Painting Inc. (Cascade).
927
agreement by the PDCA, negotiations begun in Decem-
ber 1982 with Cook serving as chairman of the PDCA
negotiation committee. Victor Peterson was also on the
PDCA negotiating committee. Ken Lorentzen, the
Union's executive secretary, was the Union's chief nego-
tiator. Because several employers had indicated an intent
to withdraw from the PDCA and thus not be bound by
the negotiations, the question arose about when with-
drawals would be effective. The Union took the position
that, in order to be effective, withdrawals would have to
be submitted before agreement on a successor contract
was reached. Accordingly, approximately 30 PDCA
members notified the Union of their withdrawal from the
PDCA. Cascade's letter withdrawing bargaining author-
ity from the PDCA is dated November 19, 1982, and Pe-
terson's is dated December 8, 1982. No contention is
made that the notices were not timely. An agreement
amending the 1980-1983 agreement was reached on an
unspecified date in December 1982 and was signed on
behalf of the Union on January 4, 1983, and by the
PDCA on January 11, 1983. The new agreement titled
"Amendments to the Peninsula Area Painters & Decora-
tors Agreement 1/1/83-6/30/87" incorporated the 1980-
1983 agreement with certain notifications, among which
was an agreement by the Union to forgo a cost-of-living
adjustment of 65 cents which was due on January 1,
1983, under the 1980-1983 contract, and an agreement to
cut the wage rate of residential painters approximately $4
per hour on July 1, 1983. Those employers that gave
notice of their withdrawal from the PDCA were still
subject to the terms of the 1980-1983 agreement until it
expired on June 30, 1983, including the 65 cents COLA
due January 1, 1983, which both Respondents paid.4
The complaints in Cases 32-CA-5842 and 32-CA-
5843 allege, and the record establishes, that at all materi-
al times prior to July 11, 1983, the following employees
of the PDCA members constituted a stable unit appropri-
ate for collective-bargaining purposes:
All painters, decorators, paperhangers, building
workers and sandblaster employees employed
within San Mateo, Santa Clara, Santa Cruz, San
Benito and Monterey Counties, excluding all other
employees, office clerical employees, guards and su-
pervisors as defined in the Act.
It is further alleged, admitted, and proven that since at
least 1971 and until July 1, 1983, the Union was recog-
nized as the designated exclusive representative of the
employees. The complaint in Case 32-CA-5842 further
alleges that since January 13, 1983, a unit limited to Cas-
cade's employees which encompassed the job classifica-
tions and territorial scope of the multiemployer unit,
constituted a stable appropriate unit. The complaint in
Case 32-CA-5843 alleges that since January 24, 1983, a
unit limited to Peterson's employees also constituted a
stable appropriate unit. The respective complaints al-
leged that since those dates the Union has been the des-
ignated representative of the employees in the respective
4 Both Cook and Peterson had held various positions in PDCA and
participated in earlier contract negotiations with the Union.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
single employer 'units; and that from February 3, 1983,
until sometime l i June 1983 Cascade and Peterson recog-
nized and bargained with the Union concerning a succes-
sor agreement to cover their respective employees. It is
further alleged that about June 30, 1983, Cascade and Pe-
terson each 'constructively discharged their respective
painters and on July I discontinued and changed terms
and conditions of employment Without prior notice to
the Union, and since said date have refused to recognize
and bargain with the Union. It is also alleged that after
July 1, 1983, both Respondents dealt directly with em-
ployees regarding wages and conditions of employment.
B. Cascade and Peterson Become Nonunion
Employers
As previously noted, on November 19, 1982, Cook no-
tified the Union by letter that Cascade was withdrawing
bargaining authorization from the PDCA and would no
longer be bound by the 1980-1983 contract as of July 1,
1983. This message was reiterated in an identically
worded letter dated January 13, 1983. Cook testified that
he decided to withdraw from the PDCA "because of the
attitude of labor" and that he did not want to deal with
Lorentzen because of a personality conflict. Alex Muir-
head,5 Cascade's superintendent, testified that sometime
in the latter part of 1982, Cook told him that he was
"thinking about going non-union, not signing the agree-
ment," and asked if Muirhead would stay with him
under those circumstances. Muirhead, a long-time union
member, responded in the negative.6 In early 1983, Cook
also held informal employee meetings wherein he dis-
cussed the possibility of Cascade becoming a nonunion
employer and questioned whether the employees would
work without a union contract. He also stated that if he
did not sign a union contract, he would supply equal
benefits. The evidence further shows that in a meeting
with Union Representatives Downey and Ruybaled on
June 22, 1983, Cook stated that he had not decided
whether he "was going to stay in the Union or not," and
that he had told his employees that Cascade was going
nonunion, and that they could select what they wanted
to do. Cook admitted having told Downey and Ruybaled
that he wanted to try and operate on a nonunion basis
because he did not feel he could negotiate in a positive
manner at that time; that he had a personality conflict
with Lorentzen, and "as long as he [Lorentzen] was head
honcho, he [Cook] wasn't going to negotiate with" the
Union. It is further clear from the record that all five of
Cascade's statutory employees-Ernie Lopez, Ryan
McBeth, Don Aure, Raul Allatorre, and Leonard Ruiz-
all members of the Union, left Cascade's employ because
Cook had decided that Cascade would operate as a non-
union employer commencing July 1, 1983. It is further
clear that when the 1980-1983 contract expired, and
6 Muirhead was alleged initially as one of the discnmtnatees in Case
32-CA-5842 When it became clear on the record that he was a supervi-
sor, the General Counsel amended par. 6 of the complaint in that case to
delete his name
6 Cook set up an interview for him with an official of Fortune Paint-
ing, a union employer, in the latter part of May 1983 , and Muirhead com-
menced working for that company the first of July when Cascade's con-
tract with the Union expired
without first notifying the Union, Cook ceased making
payments to the union trust funds, instituted a new medi-
cal plan and negotiated individually with new employees
over wages.
Also as previously noted, on December 8, 1982, Victor
Peterson notified the Union by letter that Peterson was
withdrawing bargaining authority from the PDCA and
would no longer be bound by the 1980-1983 contract as
of July 1, 1983. This message was reiterated in an identi-
cally worded letter dated January 24, 1983. Victor Peter-
son testified that about 70 percent of Peterson's painting
was performed for Shappell Industries, a large West
Coast home builder; that Shappell was going to set up a
dual-gate system which would allow both union and
nonunion contractors on a jobsite; and that if Shappell
did institute the dual-gate system, he intended to operate
as a nonunion contractor. In early 1983, Victor Peterson
held a meeting in his home with several employees at
which time he stated he was contemplating going non-
union and if he did so, they could continue working for
him if they wanted to; that they would be offered bene-
fits comparable to what the Union gave them, including
an IRA account to replace the Union's pension, and that
he would treat them fairly. In May and June, Victor Pe-
terson told various of his employees that he was not
going to sign a union contract and was definitely going
nonunion. When the 1980-1983 contract expired on June
30, Peterson was doing work at Moffett Field. Victor
Peterson testified that the job superintendent on the Mof-
fett Field job told him that Peterson could not finish the
job and to get a union contractor to complete it. Accord-
ingly, Peterson made arrangements with Tom Massey, a
union contractor, to complete it with Peterson's former
employees, all of whom obtained referrals from the
Union. It is clear from the record that all six of Peter-
son's statutory employees-Joe Champlin, Bill Rose, Na-
tividad Castilleja, Gabe Losada, Alfred Silva, and Ar-
mando Silva-all members of the Union, left Peterson's
employ because Victor Peterson had decided that Peter-
son would operate as a nonunion employer commencing
July 1, 1983. It is further clear that Peterson stopped
making payments to the union trust funds and stopped
complying with any of its terms and conditions when the
1980-1983 contract expired. After that, he negotiated in-
dividually with new employees and former employees
that were rehired.
Neither Cascade nor Peterson notified the Union of
the proposed changes in wages and other terms and con-
ditions of employment that were instituted on and after
July 1, 1983, and neither notified the Federal Mediation
and Conciliation Service nor the appropriate State
agency that it was terminating the contract.
C. The Appropriate Bargaining Units
Both Cascade and Peterson admit the multiemployer
unit is appropriate and that the Union represented a ma-
jority of the employees in the multiemployer unit. The
law is clear that upon Cascade's and Peterson's with-
drawal from that unit, there was a rebuttable presump-
tion that the Union continued to represent a majority of
CASCADE PAINTING CO. 929
their respective employees in single employer units.7 To
withdraw recognition lawfully, either this presumption
must be overcome by competent evidence that the Union
in fact did not represent a majority at the time of the
withdrawal, or the employer must establish on the basis
of objective facts that it had.a reasonable doubt as to the
Union's continuing majority status. Both Cascade and
Peterson failed to offer any objective considerations that
it had a reasonable doubt as to the Union's continuing
majority status, and the record affirmatively shows that
the Union in fact represented all their unit employees
through June 30, 1983. Further, the Board has ruled,
with court approval, that new employees will support
the Union in the same ratio as those whom they have re-
placed. Golden State Habilitation Convalescent Center, 224
NLRB 1618 (1976). Accordingly, it is found that at all
times material herein, the Union has represented a major-
ity of both Cascade's and Peterson's employees in sepa-
rate stable and appropriate units.
D. The Union Requests Bargaining
By letters dated February 3, 1983, the Union wrote
identically worded letters informing both Respondents
that since they had chosen not to be bound by the new
PDCA-union agreement, each was bound by the 1980-
1983 agreement until June 30, 1983, including payment of
the January 1, 1983 COLA. Both letters state "Please be
advised that this Council is prepared to enter into negoti-
ations with your firm, for the purpose of negotiating a
new contract." Neither Employer responded to the
letter.
1. Cascade
On June 8, 1983, Lorentzen sent Cascade another
letter asking that it notify the Union of a time and place
to begin negotiations. Not having received a response, on
June 20 Fermin Ruybaled, a union business representa-
tive, called Cook and arranged a meeting for June 22.
Ruybaled and Jerry Downey, another business represent-
ative, met with Cook on that date. Asked what he
wanted in a contract, Cook responded that he was not
sure and needed time to think about it but that he might
be interested in a repaint agreement which is an adden-
dum to the master contract. Cook stated that while the
PDCA contract was a pretty good one, the wages and
benefits were too high and he did not like the restrictions
on the "free flow" of men who worked outside the
Union's territorial jurisdiction." He acknowledged
having told his employees that "I hadn't decided wheth-
er I was going to stay in the Union or not." He also told
the union representatives he had told employees the
wages he intended to pay after the 1980-1983 contract
expired, and would do his best to get them a decent
health and welfare program. The meeting ended with
7 The record established, and it was not denied, that both Respondents
employed a stable work force.
The contract between the Union and PDCA contains a provision
that when an employer performs work outside the territorial jurisdiction
of District Council No 33, he must hire 75 percent of his employees for
that project from local union hiring halls Contracts between neighboring
District Councils contain similar provisions. Cook objected to any restric-
tions on the use of his employees outside the Union's jurisdiction.
Ruybaled stating he would contact Cook soon. The fol-
lowing day Ruybaled called Cook and asked if he had
made up his mind about signing an agreement. Cook
again stated he needed more time. Ruybaled called him
again on July 5 and was told the same thing, that he
needed more time and asked for 3 days. Ruybaled called
him again on July 11 and was told that Cook had "been
too busy, he hadn't thought about it and that . . . he
would call us back." The charge was filed by the Union
on September 2. On September 7, Cook called Ruybaled
concerning the charge. On September 9, Ruybaled went
to Cascade's shop to see if Cascade was employing any
union members. Cook and Ruybaled had a short conver-
sation wherein Cook expressed his feelings about. Lorent-
zen and that he was not going to let the Union dictate
what he could do. On September 8, Cook wrote the
Board agent assigned to investigate the charge, with a
copy to the Union, denying he had refused to bargain
and offering to meet with the Union. On September 13,
Lorentzen wrote Cook, asking that he "contact this
office to establish a time and place agreeable to both par-
ties." He also called Cook and a meeting was set up for
September 28. Downey and Ruybaled accompanied Lor-
entzen. Cook presented the Union the following hand-
written proposal:
Proposal to District Council #33
1. Establish new association of employers.-
a. Independent Painting Contractors Association
of Santa Clara Valley.
2. Repaint agreement open to all repaint.
3. Change in number of men-out of area (Re-
paint) First five from shop.
4. New work-Ceilings & closets-spray-All
exterior spray.
5. Option to have our own pension and medical
plan.
6. Member of Association (Same as Business
agent) Paid by Assoc. for new Assoc.
Cook told the union representatives he was interested
in forming a nonunion association, and that he wanted an
agreement covering the entire Bay Area.9 Lorentzen ad-
vised Cook that while he could not negotiate for the
other District Councils, he would check with them re-
garding the possibility of a "free flow" agreement. There
was a further conversation between Cook and Lorentzen
in March 1984 when Lorentzen stated he would contact
the other District Councils about "free flow" of employ-
ees. In May, Lorentzen informed Cook by telephone that
he would not prevent Cascade from working in other
areas if he signed a contract.
2. Peterson
On June 8, 1983, Lorentzen sent Peterson another'
letter asking that it notify the Union of a time and place
to begin negotiations. Victor Peterson did not respond.
He acknowledged several conversations with Downey
e In addition to District Council No. 33, the Bay Area encompasses
District Council Nos. 8 (from San Francisco north) and 16 (the East Bay
through Sacramento).
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Ruybaled wherein they asked his intentions with re-
spect to signing or negotiating a contract and that he re-
sponded he did not know what he was going to do until
Shappell decided whether or not it was going to the
"dual gate" system but that he was possibly going non-
union. On June 30, he informed Downey that he was
going nonunion because Shappell wanted it that way,
"and that he would be sending some of the men into the
hail that would not be working for him." In early Sep-
tember, Victor and Raymond Peterson met with Lorent-
zen and Pat Lane, another union official. Lane asked
what it would take for Peterson to sign a contract and
was told that if John Moore of Shappell Industries told
him to sign, that he would; that Shappell had told him
he had to go nonunion. Raymond stated that the big
problem was with the builders who were taking non-
union bids. Asked if he felt he was negotiating, Victor
Peterson responded in the negative and that he was pre-
pared to negotiate "when I see some daylight at the end
of the tunnel."
Discussion
The Act gives employees the right to bargain collec-
tively through representatives of their own choosing. It
also requires employers to recognize and bargain with a
union where a majority of employees in an appropriate
unit have designated or selected that union to do so.
Here it was admitted that the District Council represent-
ed a majority of both Respondents' employees in a multi-
employer unit through June 30, 1983, and as discussed
earlier, neither Respondent offered any evidence to rebut
the presumption that the District Council continued to
represent a majority of each of Respondents' employees
in single employer units following withdrawal from mul-
tiemployer bargaining. Indeed, the record shows that all
the constructively discharged employees of both Re-
spondents continued to be union members even after the
1980-1983 contract expired on June 30, 1983. There is no
question that the Union was, at all times material, the
lawfully designated representative of the employees of
both Respondents in appropriate units. Nor is there any
question that both Respondents simply wanted no part of
the Union and informed their respective employees that
they were intending to become nonunion employers.
This, however, was a choice open only to the employ-
ees, not to the employers. Both Respondents, however,
made it clear that they would no longer operate with a
union or bargain meaningfully with their employees
through their duly designated collective-bargaining rep-
resentative. As soon as the 1980-1983 contract expired,
and without advising the Union or the Federal and State
mediation services, both Respondents ceased making all
payments to the union trust funds and stopped paying
wages in accordance with the contract. Both Respond-
ents negotiated individually with employees regarding
wages and other terms and conditions of employment.
Their resolve to remain nonunion employers after the ex-
piration of the 1980-1983 contract was made clear
through their unilateral action, direct dealing with em-
ployees, and a failure to engage in any meaningful bar-
gaining with the Union. By embarking on such a course
of action, Respondents evidenced a withdrawal of recog-
nition without ever putting it into words.
Section 8(a)(5), which makes it an unfair labor practice
for an employer "to refuse to bargain collectively with
the representative of his employees," precludes an em-
ployer from unilaterally changing terms and conditions
of employment that constitute mandatory subjects of bar-
gaining. NLRB v. Katz, 369 U.S. 736, 742-743 (1962); Fi-
breboard Corp. v. NLRB, 379 U.S. 203, 209-210 (1964). It
is well settled that the terms of a collective-bargaining
agreement define the status quo with respect to working
conditions, and that an employer is required to maintain
that status quo upon expiration of the agreement until the
parties reach a new agreement or bargain to impasse.
NLRB v. Cauthorne, 691 F.2d 1023, 1025 (D.C. Cir.
1982); NLRB v. Carilli, 648 F.2d 1206, 1214 (9th Cir.
1981). Neither of those conditions is present here. It is
further well settled that pension, health, and welfare
plans provided for by contract constitute terms and con-
ditions of employment that survive the expiration of the
contract and cannot be altered without bargaining. Buck
Brown Contracting Co., 272 NLRB 951 (1984); Auto Fast
Freight, 272 NLRB 561 (1984); NLRB Y. Cauthorne, 691
F.2d at 1024-1025 (D.C. Cir. 1982); Henhouse Market
No. 3, 175 NLRB 596 (1969), enfd. 428 F.2d 133 (8th
Cir. 1970). Each Respondent was duty bound to continue
recognizing and dealing with the Union as the bargaining
agent of its unit employees while at the same time con-
tinuing in effect all terms and conditions of employment
encompassed in its expired contract with the Union until
it had negotiated a renewal agreement or bargained to a
true impasse.
As the record evidence shows, the employees em-
ployed by Respondent quit their jobs because their em-
ployers had announced they were going to operate
thereafter as nonunion employers, and they did not want
to lose the benefits they had accrued through the Union.
By declaring that they were- going nonunion , each Re-
spondent forced its employees to either quit or forgo fur-
ther representation by their duly designated collective-
bargaining representative. A choice of this character may
not validly be imposed upon employees and violates the
Act. Superior Sprinkler, 227 NLRB 204 (1976). Accord-
ingly, it is found, as alleged that: (a) Cascade construc-
tively discharged Ernie 'Lopez, Ryan McBeth, Don
Aure, Raul Allatorre, and Leonard Ruiz; and (b) Peter-
son constructively discharged Joe Champlin, Bill Rose,
Nate Castilleja, Gabe Losada, Al Silva, and Armando
Silva, both Respondents thereby violating Section 8(a)(1)
and (3) of the Act.
IV. THE REMEDY
Having found that each Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5), (3), and (1) of the Act, I rec-
ommend that they each be required to cease and desist
therefrom, and, on request, bargain collectively with the
Union as the collective-bargaining representative of all
employees in their respective appropriate single employ-
er units and, if an understanding is reached by the re-
CASCADE PAINTING CO.
spective Respondents, embody such understanding in a
signed agreement.
Having found that each Respondent has unilaterally
and discriminatorily changed terms and conditions of
employment following the expiration of the 1980-1983
collective-bargaining agreement with the Union, includ-
ing the cessation of payments of contractually mandated
contributions for certain fringe benefits as set forth in the
agreement, in derogation of its ongoing obligation to bar-
gain with the Union about any such changes, in violation
of Section 8(a)(5), (3), and (1) of the Act, and having
found that Cascade unlawfully terminated Ernie Lopez,
Ryan McBeth, Don Aure, Raul Allatorre, and Leonard
Ruiz, and that Peterson unlawfully terminated Joe
Champlin, Bill Rose, Natividad Castilleja, Gabe Losada,
Al Silva, and Armando Silva, in violation of Section
8(a)(3) and (1) of the Act, I shall recommend that each
Respondent cease and desist therefrom and offer its re-
spective employees immediate and full reinstatement to
their former jobs or, if such jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges. It is recommend-
ed that each Respondent rescind all unilateral changes
instituted on and after July 1, 1983, reinstitute the terms
and conditions of the 1980-1983 agreement, and make
whole all unit employees, including those listed above
and employees hired after June 30, 1983, for any loss of
wages or other benefits suffered as a result of the unlaw-
ful discharges and unilateral changes, including payment
into the benefit funds provided for in the expired con-
tract, such sums as would have been paid into said funds
on behalf of such employees, absent the illegal conduct,
until such time as the respective Respondents negotiate
in good faith with the Union to a new agreement or to
an impasse. i ° Backpay is to be computed in the manner
set forth in F W. Woolworth Co., 90 NLRB 289 (1950),
with interest thereon to be computed in the manner set
forth in Florida Steel Corp., 231 NLRB 651 (1977). See
generally Isis Plumbing Co., 138 NLRB 716 (1962).
On the basis of the above findings of fact and on the
entire record, I make the following
CONCLUSIONS OF LAW
1. Cascade Painting Company, Inc., and Peterson
Painting, Inc. are each employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. ]District Council of Painters No. 33, International
Brotherhood of Painters and Allied Workers is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All painters, decorators, paperhangers, building
workers and sandblaster employees employed by Re-
spondent Cascade in San Mateo, Santa Clara, Santa
Cruz, San Benito, and Monterey Counties, excluding all
other employees, office clerical employees, guards and
flO I do not recommend that the Board order duplicate coverage and
benefits for those discriminatees who continued to receive those contrac-
tual benefits after June 30, 1983, pursuant to employment by employers
who themselves made contributions io said funds on their behalf pursuant
to a collective-bargaining agreement with the Union
931
supervisors as defined in the Act, constitute a stable unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material since January 13, 1983, the
Union has represented a majority of Respondent Cas-
cade's employees in the above appropriate bargaining
unit, and has been the exclusive representative of the em-
ployees for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By withdrawing recognition from and by refusing to
bargain with the Union since July 1, 1983; by unilaterally
discontinuing and changing existing wages and benefits
of unit employees; and by dealing directly with unit em-
ployees concerning wages and benefits on and after July
1, 1983, Respondent Cascade engaged in conduct viola-
tive of Section 8(a)(5) and (1) of the Act.
6. By constructively discharging Ernie Lopez, Ryan
McBeth, Don Aure, Raul Allatorre, and Leonard Ruiz
about June 30, 1983, because of their membership in the
Union, Respondent Cascade engaged in conduct viola-
tive of Section 8(a)(3) and (1) of the Act.
7. All painters, decorators, paperhangers, building
workers and sandblaster employees employed by Re-
spondent Peterson in San Mateo, Santa Clara, Santa
Cruz, San Benito, and Monterey Counties, excluding all
other employees, office clerical employees, guards and
supervisors as defined in the Act, constitute a stable unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
8. At all times material since January 24, 1983, the
Union has represented a majority of Respondent Peter-
son's employees in the above appropriate bargaining unit,
and has been the exclusive representative of these em-
ployees for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act.
9. By informing unit employees in June 1983 that it
would become a nonunion employer, Respondent Peter-
son violated Section 8(a)(1) of the Act.
10. By withdrawing recognition from, and by refusing
to bargain with, the Union since July 11, 1983; by unilat-
erally discontinuing and changing existing wages and
benefits of unit employees; and by dealing directly with
unit employees concerning wages and benefits on and
after July 1, 1983, Respondent Peterson engaged in con-
duct violative of Section 8(a)(5) and (1) of the Act.
11. By constructively discharging Joe Champlin, Bill
Rose, Natividad Castilleja, Gabe Losada, Al Silva, and
Armando Silva about June 30, 1983, because of their
membership in the Union, Respondent Peterson engaged
in conduct violative of Section 8(a)(3) and (1) of the Act.
12. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed''
i i 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.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
A. Respondent Cascade Painting Company, Inc., San
Jose, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
,(a) Withdrawing. recognition and refusing to bargain
with the Union on and after July 1, 1983, as the exclu-
sive representative of its employees in the appropriate
unit described below; unilaterally discontinuing and
changing existing wages and benefits of unit employees;
and dealing directly with unit employees concerning
wages and benefits on and after July 1, 1983. The appro-
priate bargaining unit is:
All painters, decorators, paperhangers, building
workers and sandblaster employees employed by
Respondent Cascade in San Mateo, Santa Clara,
Santa Cruz, San Benito and Monterey Counties, ex-
cluding all other employees, office clerical employ-
ees, guards and supervisors as defined in the Act.
(b) Discouraging membership in the Union by con-
structively discharging employees because of their mem-
bership in it.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of all employees in the aforesaid appropri-
ate unit with respect to rates of pay, wages, hours, and
other terms and conditions of employment and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
(b) Offer Ernie Lopez, Ryan McBeth, Don Aure, Raul
Allatorre, and Leonard Ruiz immediate and full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed, and make them and all employees
employed on and after July 1, 1983, 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.
(c) Revoke the unilateral changes instituted from July
1, 1983, and reinstitute the terms and conditions of the
expired 1980-1983 collective-bargaining agreement with
the Union.
(d) Pay into the benefit funds provided for in the
1980-1983 contract the sums which would have been
paid into the funds on behalf of such employees, absent
the illegal unilateral changes.
B. Respondent Peterson Painting, Inc., San Jose, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition and refusing to bargain
with the Union on and after July 1, 1983, as the exclu-
sive representative of its employees in the appropriate
unit described below; unilaterally discontinuing and
changing existing wages and benefits of unit employees;
and dealing directly with unit employees concerning
wages and benefits on and after July 1, 1983. The' appro-
priate bargaining unit is:
All painters, decorators, paperhangers, building
workers and sandblaster employees employed by
Respondent Peterson in San Mateo, Santa Clara,
Santa Cruz, San Benito and Monterey Counties, ex-
cluding all other employees, office clerical employ-
ees, guards and supervisors as defined in the Act.
(b) Discouraging. membership in the Union by con-
structively discharging employees because of their mem-
bership in it.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of all employees in the aforesaid appropri-
ate unit with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
(b) Offer Joe Champlin, Bill Rose, Natividad Castileja,
Gabe Losada, Al Silva, and Armando Silva immediate
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 and all
employees employed on and after July 1, 1983, 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.
(c) Revoke the unilateral changes instituted from July
1, 1983, and reinstitute the terms and conditions of the
expired 1980-1983 collective-bargaining agreement with
the Union.
(d) Pay into the benefits funds provided for in the
1980-1983 contract the sums which would have been
paid into the funds on behalf of such employees, absent
the illegal unilateral changes.
C. Each of the Respondents, their officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from in any like or related manner
interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following further affirmative action neces-
sary to effectuate the policies of the Act.
(a) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary for determination of the amount of
backpay due employees and the amount of the sums to
be paid into the benefit funds provided for in the afore-
mentioned contract.
(b) Post at their respective offices copies of the appli-
cable attached notice marked "Appendixes A and B."12
12 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 Nation-
al 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 "
CASCADE PAINTING CO.
Copies of the notices, on forms provided by the Regional
Director for Region 32, after being signed by a repre-
sentative of the respective Respondents, shall be posted
by it immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all
such places where notices to employees in the appropri-
ate unit are customarily posted. Reasonable steps shall be
taken by the respective Respondents to ensure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 discourage membership in District
Council of Painters No. 33, International Brotherhood of
Painters and Allied Workers, or any other labor organi-
zation, by constructively discharging employees because
of their union membership.
WE WILL NOT make or effect any change in the
wages, hours, or other terms and conditions of employ-
ment of employees in the collective bargaining unit de-
scribed below without first giving notice to the above-
named Union and affording the Union an opportunity to
engage in collective bargaining with respect to any such
change.
WE WILL NOT deal directly with our employees re-
garding wages, benefits, and working conditions in dero-
gation of our duty to bargain with the above Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by the Act.
WE WILL revoke the unilateral changes in terms and
conditions of employment instituted by us on and after
July 1, 1983, and WE WILL reinstitute the terms and con-
ditions of the July 1, 1980, to June 30, 1983, collective-
bargaining agreement with the Union.
WE WILL, on request, bargain collectively with' Dis-
trict Council of Painters No. 33, International Brother-
hood of Painters and Allied Workers, as the exclusive
representative of all our employees in the unit described
below and, if an agreement is reached, we will embody it
in a signed contract. The appropriate unit is:
All painters, decorators, paperhangers, building
workers and sandblaster employees employed by
Respondent Cascade in San Mateo, Santa Clara,
Santa Cruz, San Benito and Monterey Counties, ex-
cluding all other employees, office clerical employ-
ees, guards and supervisors as defined in the Act.
933
WE WILL offer to Ernie Lopez, Ryan McBeth, Don
Aure, Raul Allatorre and Leonard Ruiz immediate and
full reinstatement to such positions as each would have
been in absent the discrimination against each or, if such
position no longer exist, to a substantially equivalent po-
sition without prejudice to their seniority or other rights
and privileges, and WE WILL make each of them and all
employees employed on and after July 1, 1983, whole for
any loss of pay or other benefits suffered by reason of
the discrimination against them.
WE WILL, in accordance with the terms of the July 1,
1980 to June 30, 1983 collective-bargaining agreement
between us and the Union, pay all delinquent contribu-
tions to the fringe benefit funds, and WE WILL continue
to pay such contributions until such time as we negotiate
in good faith with the Union to a new agreement or to
an impasse.
All of our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization, except to the extent provided by Sec-
tion 8(a)(3) of the Act.
CASCADE PAINTING COMPANY, INC.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF TIRE
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 discourage membership in District
Council of Painters No. 33, International Brotherhood of
Painters and Allied Workers, or any other labor organi-
zation, by constructively discharging employees because
of their union membership.
WE WILL NOT make or effect any change in the
wages, hours, or other terms and conditions of employ-
ment of employees in the collective-bargaining unit de-
scribed below without first giving notice to the above-
named Union and affording the Union an opportunity to
engage in collective bargaining with respect to any such
change.
WE WILL NOT deal directly with our employees re-
garding wages, benefits, and working conditions in dero-
gation of our duty to bargain with the above Union.
WE WILL NOT tell employees that we have decided to
become a nonunion employer.
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.
WE WILL revoke the unilateral changes in terms and
conditions of employment instituted by us on and after
July 1, 1983, and WE WILL reinstitute the terms and con-
ditions of the July 1, 1980 to June 30, 1983 collective-
bargaining agreement with the Union.
WE WILL, on request, bargain collectively with Dis-
trict Council of Painters No. 33, International Brother-
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hood of Painters and Allied Workers, as the exclusive
representative of all our employees in the unit described
below and, if an agreement is reached, we will embody it
in a signed contract. The appropriate unit is:
All painters, decorators, paperhangers, building
workers and sandblaster employees employed by
Respondent Peterson in San Mateo, Santa Clara,
Santa Cruz, San Benito and Monterey Counties, ex-
cluding all other employees, office clerical employ-
ees, guards and supervisors as defined in the Act.
WE WILL offer to Joe Champlin, Bill Rose, Natividad
Castilleja, Gabe Losada, Al Silva, and Armando Silva
immediate and full reinstatement to such positions as
each would have been in absent the discrimination
against each or, if such position no longer exists, to a
substantially equivalent position without prejudice to
their seniority or other rights and privileges, and WE
WILL make each of them and all employees employed on
and after July 1, 1983, whole for any loss of pay or other
benefits suffered by reason of the discrimination against
them.
WE WILL, in accordance with the terms of the July 1,
1980, to June 30 , 1983 collective-bargaining agreement
between us and the Union, pay all delinquent contribu-
tions to the fringe benefit funds contained therein, and
WE WILL continue to pay such contributions until such
time as we negotiate in good faith with the Union to a
new agreement or to an impasse.
All of our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization, except to the extent provided by Sec-
tion 8(a)(3) of the Act.
PETERSON PAINTING, INC.