A.P. Painting & Improvements, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1206 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1206
A.P. Painting & Improvements, Inc., t/a All Pro
Painting Co. and International Union of Painters
and Allied Trades, District Council No. 9. Cases
29–CA–24353 and 29–CA–24368
August 21, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
On February 22, 2002, Administrative Law Judge
Howard Edelman issued the attached decision. Respon-
dent filed exceptions, the General Counsel filed a brief in
support of the judge’s decision and cross-exceptions to
the judge’s decision, and Respondent filed a reply to the
General Counsel’s cross-exceptions.
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 affirms the
judge’s rulings, findings, and conclusions as discussed
below and adopts the recommended Order as modified1
and set forth in full below.
There are two issues before us. (1) The General Coun-
sel contests the judge’s failure to address the allegation
that statements made by the Respondent’s Vice President
Stephen Dunne while unlawfully discharging employee
John Koshmieder violated Section 8(a)(1) of the Act.2 (2)
The Respondent contests the judge’s finding that its offer
to reinstate Koshmieder was invalid because it was con-
ditioned on his acceptance of a restriction on his statu-
tory right to organize fellow employees. For the reasons
set forth below, we find the additional violation sought
by the General Counsel, and we affirm the judge’s find-
ing that the Respondent’s reinstatement offer was inva-
lid.
Facts
The facts are more fully set forth in the judge’s deci-
sion. Koshmieder was hired by Respondent’s President
Edward Dunne in early May 2001.3 Respondent was not
aware of Koshmieder’s union membership until Friday,
June 29, when Koshmieder told Stephen Dunne, Ed-
ward’s brother, that he was a member of the Union and
that his primary purpose was to organize Respondent’s
employees. Stephen Dunne responded, inter alia, that he
was “not interested,” he didn’t know if Koshmieder was

1 We modify the judge’s recommended Order in accordance with our
decisions in Indian Hills Care Center, 321 NLRB 144 (1996), and
Excel Container, 325 NLRB 17 (1997). We also modify the judge’s
recommended Order to more closely conform to current standard Board
language.
2 There are no exceptions to the judge’s finding that Koshmieder’s
discharge violated Sec. 8(a)(3) and (1) of the Act.
3 All dates are in 2001 unless otherwise stated.
going to continue to have a job, and “[i]t’s a non-union
job. We’re a non-union shop.” When Koshmieder per-
sisted in declaring his intent to come to work on Monday
and to organize the Respondent’s employees, Stephen
Dunne finally said, “No thank you, good bye, good luck.
You’re not going to have a job on Monday.” At the end
of this discussion, witnessed by other employees,
Stephen Dunne informed Koshmieder that Edward
Dunne had confirmed the decision to terminate
Koshmieder.
On Tuesday, July 3, Koshmieder received a letter sent
the day before by Edward Dunne. The relevant portions
of the letter instructed Koshmieder to contact Dunne and
to report back to work by Thursday, July 5. The letter
stated, “If you are found to be organizing during com-
pany time, it will constitute grounds for immediate dis-
charge.” The letter also stated that Dunne would con-
sider Koshmieder’s employment voluntarily terminated
if he did not report by Thursday, July 5.
On receipt of the letter, Koshmieder telephoned Ed-
ward Dunne and asked him what he meant by the forego-
ing language.4 Dunne responded, “It means, if you do it
on company time, that’s illegal and you’re terminated.”5
On further questioning by Koshmieder about what or-
ganizing was allowed on company time, Dunne said that
Koshmieder could talk about the Union at lunchtime.
Koshmieder asked Dunne how he felt about
Koshmieder’s organizing in the morning, and Dunne
stated, “John, you can come in. Like the letter says, if
any organizing is done on my time, you’ll be termi-
nated.” Koshmieder asked, “What do you mean, in the
eight hours that I’m working or the 12 hours that I’m
around your shop, you’re saying?” Dunne replied,
“You’re not going to be around my shop. You’re gonna
go straight to a job and meeting a foreman on the job.”
Dunne also stated, “If your goal is to be there and organ-
ize the shop, you’re not going to have any luck.” On
further questioning, Dunne stated, “You can do whatever
you want on your own time. If you do anything on the
job, the job site, you’ll be terminated.”
Koshmieder agreed to report to work, but later that
evening he called Dunne and left a message stating that
he could not report to work at that time due to a previous
appointment. The parties had no further correspondence
4 Although this conversation was not discussed or relied on by the
judge in his decision, the contents of the conversation are undisputed.
It was tape recorded by Koshmieder and a transcript of the conversation
was admitted into evidence with the tape recording.
5 Koshmieder also proposed wearing his union hat and shirt. Dunne
responded, “Part of our company rules is to wear our T-shirts that we
give out.” When Koshmieder asked later in the conversation if he
could wear his union hat and shirt, Dunne replied, “You can wear
painters’ whites and an All Pro shirt. That’s what was given out.”
339 NLRB No. 157
A.P. PAINTING & IMPROVEMENTS, INC. 1207
or contact other than Respondent’s July 6 letter terminat-
ing Koshmieder for failing to report to work.
Judge’s Decision
The judge concluded, and it is no longer disputed, that
Respondent’s termination of Koshmieder violated Sec-
tion 8(a)(1) and (3) of the Act. He did not consider
whether statements made by Stephen Dunne to
Koshmieder at the time of the discharge independently
violated Section 8(a)(1), as alleged in the complaint. The
judge also concluded that the Respondent’s July 2 letter
offering to reinstate Koshmieder was invalid because it
conditioned reinstatement on Koshmieder’s compliance
with an overbroad restriction of organizational activity,
but he did not consider Koshmieder’s subsequent con-
versation with Edward Dunne in reaching this conclu-
sion.6 Considering those matters overlooked by the
judge, we find that Stephen Dunne’s statements violated
Section 8(a)(1) and that Edward Dunne’s conversation
with Koshmieder did not redress the overbroad restric-
tion on solicitation that invalidated Respondent’s rein-
statement offer.
Discussion
1. The Alleged 8(a)(1) Discharge Statements
As summarized above, Stephen Dunne made numerous
statements linking Koshmieder’s organizing activity to
his discharge during their June 29 conversation. The
record indicates that several employees witnessed this
conversation.
The Board has found an independent 8(a)(1) violation
where an employer’s unlawful threat of discharge is con-
temporaneous with the employee’s actual discharge in
violation of Section 8(a)(3). For example, in Baker Elec-
tric, 317 NLRB 335, 339 (1995), enfd. mem. 105 F.3d
647 (4th Cir. 1997), cert. denied 522 U.S. 1046 (1998),
two other employees were present when a foreman dis-
charged an employee because of union activity, telling
the employee that the company president became “furi-
ous” on learning that the employee talked about the Un-
ion on his lunch break and directed the foreman to dis-
charge the employee. Id. at 339. Both an 8(a)(3) viola-
tion for the discharge and an independent 8(a)(1) viola-
tion were found because expression of the discriminatory
reason for the discharge tended to coerce the two em-
ployee witnesses in the exercise of their rights under Sec-
tion 7 of the Act. Id.
Similarly, in this case, the fact that other employees
witnessed the conversation between Stephen Dunne and

6 The judge found Respondent’s prohibition of union T-shirts irrele-
vant to the issues in this case. There are no exceptions to this finding.
We, therefore, will not consider this restriction in our analysis.
Koshmieder provides a basis for concluding that Dunne’s
remarks linking Koshmieder’s union activity with dis-
charge reasonably tended to coerce employees in the
exercise of their Section 7 rights. We therefore find that
Dunne violated Section 8(a)(1) by threatening to dis-
charge employees for engaging in union activities.7
2. The reinstatement offer
Respondent excepts to the judge’s finding that it im-
posed a broad condition against any kind of organizing
on company time and thereby invalidated the reinstate-
ment offer to Koshmieder. It contends that Edward
Dunne clarified Koshmieder’s rights to organize the Re-
spondent’s employees during his nonworking time in a
telephone conversation on July 3. For the reasons stated
below, we affirm the judge’s finding that the reinstate-
ment offer was invalid.
A rule that prohibits union solicitation or activities on
“company time” is overbroad and presumptively invalid
because it could reasonably be construed as prohibiting
solicitation at any time, including break times or other
nonwork periods. M. J. Mechanical Services, Inc., 324
NLRB 812, 813 (1997), enfd. mem. 172 F.3d 920 (D.C.
Cir. 1998) (citing Gemco, 271 NLRB 1190 (1984)).
Even a rule that is presumptively valid on its face will be
invalid if it is applied discriminatorily or modified orally
to prohibit solicitation during nonworking time. Our
Way, Inc., 268 NLRB 394, 395 (1983). In Colburn Elec-
tric Co., 334 NLRB 532 (2001), a rule that specifically
prohibited union activities during working hours was
found to be unlawful on its face because it singled out
union solicitation, and evidence of other solicitations was
not needed to establish a violation of Section 8(a)(1).
Id.at 552.8 The fact that the employer in Colburn had not
7 Member Walsh agrees with his colleagues that the threat to dis-
charge Koshmieder independently violated Sec. 8(a)(1), but Member
Walsh does not join their rationale to the extent that they suggest that
the presence of the other employees was a necessary element of the
violation. The presence of the additional employees was not necessary
to establish the violation because, at all material times, Koshmieder
himself was an employee of the Respondent and an employee within
the meaning of the Act. See, e.g., Extendico-Professional Care, 272
NLRB 599 fn. 1 (1984) (finding merit in the General Counsel’s conten-
tion that the respondent violated Sec. 8(a)(1) by individually informing
two employees on separate occasions that they were each discharged
for having engaged in union activity), enfd. mem. 767 F.2d 926 (7th
Cir. 1985); R & H Masonry Supply, Inc., 238 NLRB 1044, 1048 (1978)
(“As Lippe was unlawfully discharged, his status as an employee con-
tinues, and the Order herein will call for his reinstatement. [The re-
spondent’s] remark [that Lippe was discharged because of his union
activity], therefore, has a future impact and a remedy is appropriate.”),
enfd. in pertinent part 627 F.2d 1013 (9th Cir. 1980).
8 A no-solicitation rule covering “working hours” (as in Colburn) is
considered presumptively invalid. Our Way, supra, 268 NLRB at 394–
395. However, this factor was not determinative in Colburn because
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1208
previously announced any neutral no-solicitation rule to
its employees also supported the finding of a violation
based on the discriminatory rule. Id. at 552 fn. 44.
Further, it is well established that to toll the backpay
period, an offer of reinstatement to a discriminatee must
be “specific, unequivocal, and unconditional.” See Cas-
sis Management Corp., 336 NLRB 961, 969 (2001), and
cases cited therein. With respect to conditions contained
in a reinstatement offer, the Board has noted: “It can
hardly be contended that a reinstatement offer that in-
cludes what amounts to an independent violation of the
Act is a valid offer.” Consolidated Freightways, 290
NLRB 771, 772 fn. 4 (1988), enfd. in pertinent part 892
F.2d 1052 (D.C. Cir. 1989), cert. denied 498 U.S. 817
(1990).
Finally, the employer bears the burden of proving that
a reinstatement offer was valid. See Cassis Management
Corp., supra, and cases cited therein. Any ambiguity in
the explanation of the offer should be construed against
the employer. See Cliffstar Transportation Co., 311
NLRB 152, 153 (1993).
Applying the law to the facts in this case, we find that
Respondent failed to meet its burden of proving that its
offer of reinstatement to Koshmieder was “specific, un-
equivocal, and unconditional.” The July 2 letter and the
July 3 telephone conversation between Koshmieder and
Edward Dunne established that Koshmieder would be
restricted in communicating with employees about the
Union and that he would be subject to discharge if he
failed to abide by the restriction.
The July 2 letter contained the express condition that
Koshmieder would be fired if he engaged in union activi-
ties during “company time,” a prohibition that is over-
broad and presumptively invalid, as noted above. Fur-
ther, as in Colburn, supra, there is no evidence that the
Respondent had promulgated or enforced any rules re-
garding any kind of solicitation prior to this prohibition
against union organizing. Thus, the restriction on orga-
nizing activity contained in the reinstatement offered was
both facially invalid and discriminatory.9

there were no exceptions to the judge’s failure to find the rule over-
broad on that basis. 334 NLRB 532 at fn. 4.
9 The restriction of Koshmieder’s right to engage in solicitation,
though not specifically alleged as an unfair labor practice, is similar to
rules that violate Sec. 8(a)(1). As noted above, a reinstatement offer
containing what amounts to a violation of the Act is not a valid offer.
Consolidated Freightways, supra, 290 NLRB at fn. 4. Because the
offer proscribes lawful protected Sec. 7 activity, it follows that it cannot
be “specific, unequivocal, and unconditional.” Under similar facts, the
Board found an offer of reinstatement insufficient to toll backpay be-
cause it was conditioned on employees following a no-solicitation rule
that the Board found to be unlawful. M. J. Mechanical Services, Inc.,
supra, 324 NLRB at 818. In that case, union salts who did not reveal
their status as organizers until after beginning work were discharged in
Contrary to our dissenting colleague, we do not find
that the conditional aspect of the written reinstatement
offer was clarified or cured during the July 3 telephone
conversation between Edward Dunne and Koshmieder.
Although Dunne told Koshmieder at certain points of the
conversation that Koshmieder could do what he wanted
“on [his] own time,” at other points Dunne told
Koshmieder that if he did “anything on the job, the job
site, you’ll be terminated,” or words to that effect. For
example, when Koshmieder asked whether he could en-
gage in conversation about the Union with other employ-
ees while painting, Dunne responded, “You go ahead and
do it, and you’ll find out, alright?” Although Dunne
eventually stated that Koshmieder was free to do what he
wanted during his lunch break, he did not acknowledge
the lawfulness of other jobsite conversations about the
Union.
Our colleague states that “working time is for work,”
and therefore that Dunne’s “statements correctly laid out
lawful restrictions on solicitation.” As stated above,
however, an employer may not prohibit only those work-
ing time conversations relating to union organizing.
There was no evidence that, either prior to Koshmieder’s
reinstatement offer or afterwards, the Respondent main-
tained a general ban on working time conversation
among employees.
Our colleague also places great weight on the fact that
the conversation ended amicably, and that Dunne con-
cluded by stating that “[a]s long as you’re out there at
8:00, there’s no problem.” Although this may have
amounted to a retraction of an earlier statement during
the conversation—that Koshmieder, unlike other em-
ployees, would have to report directly to the jobsite in-
stead of to Respondent’s facility—it did not blunt
Dunne’s larger message, that union talk was uniquely
prohibited.
In sum, Respondent failed to show that it made
Koshmieder a valid reinstatement offer; therefore, Re-
spondent’s liability for backpay will not be tolled. Re-
spondent contends in its exceptions that Koshmieder was
ultimately lawfully terminated for failing to report to
work pursuant to the offer of reinstatement. However,
we find no merit in this exception because the Board
does not evaluate an employee’s response until there has
been a valid, unconditional offer of reinstatement. Tony
Roma’s Restaurant, 325 NLRB 851, 852 (1998) (citing

violation of Sec. 8(a)(3). Several days later, they were offered rein-
statement but told not to engage in union activities on company time or
during breaks, although they could do so before or after work. The
Board found the restriction on organizing to be overly broad and inva-
lid, and consequently, the Board found the reinstatement offer contain-
ing this condition to be invalid. Id. at 817–818.
A.P. PAINTING & IMPROVEMENTS, INC. 1209
CleanSoils, Inc., 317 NLRB 99, 110 (1995); and Con-
solidated Freightways, supra, 290 NLRB at 772–773).
Furthermore, as set forth in a case cited by Respondent in
its exceptions, “the acceptance of an invalid reinstate-
ment offer does not toll the backpay period.” NLRB v.
Browne, 890 F.2d 605, 610 (2d Cir. 1989) (citing
IMCO/International Measurement & Control Co., 277
NLRB 962 (1985), enfd. mem. 808 F.2d 837 (7th Cir.
1986), and Sumco Mfg. Co., 267 NLRB 253, 258 (1983),
enfd. 746 F.2d 1189 (6th Cir. 1984) (per curiam), cert.
denied 471 U.S. 1100 (1985)). Therefore, because Re-
spondent has not established a valid offer of reinstate-
ment, we find it unnecessary to examine Koshmieder’s
response to the offer.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that Re-
spondent, A.P. Painting & Improvements, Inc., West
Hempstead, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting International Union of
Painters and Allied Trades, District Council No. 9 or any
other labor organization.
(b) Threatening to discharge any employee for sup-
porting International Union of Painters and Allied
Trades, District Council No. 9 or any other labor organi-
zation.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
John Koshmieder full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make John Koshmieder whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter notify the employee in writ-
ing that this has been done and that the discharge will not
be used against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its West Hempstead, New York facility copies of the
attached notice marked “Appendix.”10 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by Respondent’s author-
ized representative, shall be posted by Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, Respon-
dent has gone out of business or closed the facility in-
volved in these proceedings, Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by
Respondent at any time since June 29, 2001.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Respondent has taken to comply.

MEMBER SCHAUMBER, dissenting in part.
Summary
Contrary to my colleagues, I find that Respondent
made a valid offer to reinstate employee and union salt
John Koshmieder, untainted by an unlawful no-
solicitation condition.1
As the majority points out, the Board has held that a
rule that prohibits union solicitation or activities during
“company time” is overly broad and presumptively inva-
lid because it can be construed as prohibiting such activi-
ties during nonworking time on the job. However, it is
settled Board law that an employer can rebut the pre-
sumption that an overly broad no-solicitation rule is inva-
lid by communicating or applying the rule to permit so-
licitation during breaktime or nonworking time. Our
Way, Inc., 268 NLRB 394, 395 fn. 6 (1983). I believe
that is exactly what occurred here.

10 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 I agree with my colleagues that Respondent’s statements on June
29 independently violate Sec. 8(a)(1) of the Act because other employ-
ees were present during the conversation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1210
I think a fair reading of the transcript of their July 3,
2001 telephone conversation—the conversation was sur-
reptitiously tape recorded by Koshmieder—shows Kosh-
meider baiting Dunne a bit and trying to catch him in
misstatements. While it also reflects some misstatements
by Dunne, by the end of the conversation, Dunne had
explained to Koshmieder that he did not intend by the
term “company time” to restrict Koshmieder’s right to
organize during his lunchbreak or on his own time, such
as before work. Koshmieder understood as much and he
accepted Dunne’s reinstatement offer on the basis of that
understanding.
Remarkably, in his decision the administrative law
judge ignores this conversation entirely. Consequently, I
believe we should reverse the judge and find on a review
of the record de novo that the reinstatement offer
Koshmieder accepted did not contain an overly broad no-
solicitation rule. Thus, by failing to report to work,
Koshmieder quit, which tolled the Respondent’s backpay
obligation to him.
Facts
Respondent unlawfully terminated Koshmieder, a un-
ion salt, after he announced his intent to organize Re-
spondent’s employees on June 29, 2001.2 However, in a
letter dated July 2, Respondent offered him reinstate-
ment. In that letter, Edward Dunne, Respondent’s presi-
dent, advised Koshmieder: “If you are found to be orga-
nizing during company time, it will constitute grounds
for immediate discharge.” Dunne’s letter provided tele-
phone contact numbers and directed Koshmieder to re-
port to work by Thursday, July 5, or Dunne would con-
sider him to have voluntarily terminated his employment.
On July 3, Koshmieder called Dunne to discuss the let-
ter and its restriction on organizing activities during
company time. During that secretly tape recorded con-
versation, Koshmieder repeatedly asked Dunne what the
letter’s statement meant. For example, he asked, “So,
you say no organizing during company time, what do
you mean by that?” “Are you going to let me organize at
all on company time?” “Can I talk at lunchtime to the
guys?” and “[D]oes that mean anytime, during my lunch
or anything else?” When, at one point, Dunne re-
sponded, “You can do whatever you want on your own
time,” Koshmieder misstated his response, asking, “So, I
can’t, I can’t organize? You’re saying, while I’m work-
ing, even on my lunchtime, or anything else?” Dunne
repeated, “Your lunchtime is your business. Lunchtime
you can do whatever you want on your lunchtime.”
Significantly, the conversation ended as follows:

2 As the majority notes, there are no exceptions to the finding that
the termination was unlawful.
KOSHMIEDER: Alright, whatever, that sounds
good to me. I, I still say that I’m going to be there
[at Respondent’s shop] at 6:30. I’ll be back at the
Hamptons [jobsite] at 8:00 because I have an hour
and a half to travel and that’s no big deal ‘cause
Steve don’t leave the shop until 6:30, you know, in
the morning anyway. I just want to see some of the
guys. I want to organize starting on Thursday, al-
right?
E. DUNNE: As long as you’re out there at 8:00,
there’s no problem.
KOSHMIEDER: No problema, alright man.
E. DUNNE: Alright.
KOSHMIEDER: Thank you for hiring me back.
Analysis
As mentioned above, the restriction on union organiz-
ing during “company time,” while presumptively invalid,
can be rebutted by the employer showing that the “‘rule
was communicated or applied in such a way as to convey
an intent clearly to permit solicitation during breaktime
or other periods when employees are not actively at
work.’” Our Way, Inc., 268 NLRB 394, 395 fn. 6 (1983)
(quoting Essex International, 211 NLRB 749, 750
(1974)) [emphasis in original]. For this reason, Dunne’s
July 2 letter to Koshmieder cannot be considered in iso-
lation but must be read together with the transcript of the
follow-up conversation of the parties on July 3. This
conversation resolves any ambiguity over the nature and
scope of the letter’s restriction on union organizing ac-
tivities.
Unlike my colleagues, in evaluating whether Dunne
communicated an intent to permit solicitation during
nonworking time, I would rely on the understanding
reached by the parties by the end of their conversation
rather than on earlier fragments of it. The majority’s
emphasis on earlier parts of the conversation focuses on
misstatements by Dunne, obscuring Dunne’s message
that Koshmieder finally understood and agreed on. In
addition, as a union salt surreptitiously tape recording his
telephone conversation with his employer, Koshmieder
may reasonably be suspected of being less interested in
clarifying Respondent’s reinstatement offer and in its
solicitation rules than in capitalizing on any misstate-
ments, as the latter could serve as the basis for an unfair
labor practice charge that may be viewed as helpful to
the Union’s organizational drive.3 Indeed, had Kosh-
mieder stopped earlier in the conversation, he might have
actually “caught” Dunne. By pressing Dunne further,
3 The judge found that as a union salt, Koshmieder “seeks work from
non union contractors for the primary purpose of trying to organize the
employees of non union contractors.” JD decision at 1212, fn. 1.
A.P. PAINTING & IMPROVEMENTS, INC. 1211
however, he gave Dunne the opportunity to fully explain
his intentions.
By the end of the conversation, Dunne had repeatedly
indicated that Koshmieder could engage in organizing
activity on his breaks, at lunchtime, on his own time, at
any time when he was not actively at work. These
statements correctly laid out lawful restrictions on solici-
tation, i.e., the “long-accepted maxim of labor relations”
that “‘[w]orking time is for work.’” Our Way, supra, 268
NLRB at 394 (quoting Peyton Packing Co., 49 NLRB
828, 843 (1943)). Dunne also left no ambiguity about
Koshmieder’s right to organize prior to beginning work.
At the conclusion of the conversation, Koshmieder said
that he would be at the shop at 6:30 a.m. and at the job
site by 8 a.m., stating, “I want to organize starting on
Thursday, alright?” Dunne replied, “As long as you’re
out there at 8:00, there’s no problem.”
Conclusion
In sum, Dunne and Koshmieder fully discussed the
meaning of the phrase “during company time” as used in
Dunne’s July 2 letter and came to an understanding the
following day that it referred to working time but not
lunchtime or nonworking time such as in the morning
before work. Koshmieder, a knowledgeable union or-
ganizer who obviously knew his rights, should have had
no trouble understanding Dunne’s clarifications of the
permissible restriction he was placing on organizing ac-
tivities. Koshmieder evidenced his understanding when
he accepted Dunne’s reinstatement offer at the end of
their conversation.
For these reasons, I respectfully disagree with my col-
leagues. I find that Koshmieder’s right to employment
with Respondent, and its backpay obligation to him,
ended when Koshmieder failed to report to work in ac-
cord with this valid reinstatement offer.

APPENDIX
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 Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT discharge or otherwise discriminate
against any of you for supporting International Union of
Painters and Allied Trades, District Council No. 9, or any
other labor organization.
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, within 14 days from the date of the Board’s
Order, offer John Koshmieder full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make John Koshmieder whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of John Koshmieder, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
A.P. PAINTING & IMPROVEMENTS, INC.

Emily De Sa, Esq., for the General Counsel.
Kevin Quill, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on November 15, 2001, in Brooklyn, New
York.
Pursuant to charges filed by the International Union of Paint-
ers, and Allied Trades, District Counsel No. 9 (the Union),
against A.P. Painting & Improvements Inc., t/a All Pro Painting
Co. (Respondent), a consolidated complaint issued on October
3, 2001, alleging a violation of Section 8(a)(1) and (3) of the
Act.
Based on the entire record, my observation of the demeanor
of the witnesses, and the briefs submitted by counsel for the
General Counsel and counsel for Respondent, I make the fol-
lowing findings of fact and conclusions of law.
STATEMENT OF FACTS
Respondent is a domestic corporation with its principal of-
fice and place of business located in West Hempstead, New
York, where it is engaged in the business of a painting contrac-
tor for commercial and residential home customers. It is admit-
ted, and I conclude, that Respondent is engaged in interstate
commerce as defined in Section 2(2), (6), and (7) of the Act.
It is admitted, and I find, that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1212
Respondent is owned and controlled by Edward Dunne, pre-
sident, and Stephen Dunne, vice president. It is admitted, and I
find, that they are supervisors and agents of Respondent within
the meaning of Section 2(11) of the Act.
John Koshmieder is a painter and has been engaged in this
work for about 20 years. During the last few years he has en-
gaged in “salting” activities on behalf of the Union.1
Koshmieder is not employed by the Union, nor does he receive
any remuneration from the Union for his organizational activi-
ties on behalf of the Union.
Koshmieder applied for work with Respondent in early May
2001. He was interviewed, filled out an application for work,
and was hired by Edward Dunne. It is admitted, and the facts
establish, that the subject of membership in a union, or union
activities were not discussed during this interview and that
Respondent had absolutely no knowledge of Koshmieder’s
membership in the Union, or his activities on it’s behalf until
June 29, 2001.
Koshmieder initially began working under the supervision of
Steven Wagner, a working foreman, but not a supervisor within
the meaning of Section 2(11) of the Act. He worked under
Wagners’ supervision for about a week. His work was good,
and at times he handled small jobs by himself. The quality of
his work is not in dispute: he was a good worker.
On June 29, after work, Koshmieder walked into Stephen
Dunne’s office and told him that he was a member of the Union
and that his primary purpose to organize Respondent’s employ-
ees.2 Koshmieder asked Dunne if it was “alright with you.”
Dunne replied, “No it is not.” Koshmieder then asked, “What
about my job.” Dunne replied, “No, no we’ll talk on Monday.”
June 29 was a Friday. The next working day was Monday.
Koshmieder then said, “Well, because I plan to come in on
Monday, in the morning early and talk to the guys. I’ll talk to
the guys in the morning.” Dunne replied, “Eddie’s not going to
allow that.” Koshmieder replied, “I’ll still be doing the work
that I’ve been doing though.” Dunne then stated, “No, that’s
alright, I’m not interested, thank you very much. I’ll tell you
on Monday. I don’t know if you’re going to have a job though.
It’s a nonunion job. We’re a nonunion shop.” When
Koshmieder persisted about coming in the following Monday,
Dunne replied, “That’s fine, we’ll give you a weeks notice,
something like that, we’re a non-union shop. We don’t want a
union.” When Koshmieder persisted on trying to work on
Monday, Dunne replied, ‘‘No thank you goodbye, good luck.
You’re not going to have a job Monday.” Stephen Dunne then
telephoned Edward Dunne in the presence of Koshmieder, told
him about his conversation with Koshmieder and Edward
Dunne confirmed to Stephen that Koshmieder was terminated.
Stephen Dunne then informed Koshmieder that this brother had
confirmed his decision and that he was terminated.

1 A union “salt” is defined, in this decision, as an individual engaged
in a trade, and a member of a union, who seeks work from nonunion
contractors for the primary purpose of trying to organize the employees
of nonunion contractors.
2 This June 29 conversation was tape recorded by Koshmieder. The
authenticity of the tape recording is admitted.
To the extent that Stephen Dunne’s testimony is inconsistent
with the tape recording of the above June 29 tape recording, I
do not credit such testimony.
Cases simply don’t come any clearer than this case.
Koshmieder was a good worker throughout his employment
with Respondent. Respondent had no knowledge of his union
membership or activities on behalf of the Union until June 29,
when he came in to Respondent’s office and told him he was a
member of the Union and was here to organize Respondent’s
employees. Respondent’s supervisor, Stephen Dunne, told him
that Respondent was nonunion, that they didn’t want a union,
and that because of his activities on behalf of the Union, he was
being terminated. This termination was confirmed and ap-
proved by Edward Dunne, president and owner or Respondent.
Respondent attorney contends that Stephen Dunne did not have
the authority to fire employees. I find such contention without
merit. Stephen Dunne was admittedly a supervisor within the
meaning of the Act. In the complaint, he was described as
project manager, however, Respondent attorney refers to him in
his brief as Respondent’s vice president. In any event, he was a
supervisor and agent acting on Respondent’s behalf. I find that
Stephen Dunne did have authority to hire and fire employees. I
discredit any self-serving statements by Stephen or Edward
Dunne to the contrary. Moreover, as the June 29 tape recording
establishes, Edward Dunne confirmed Stephen Dunne’s deci-
sion to discharge Koshmieder. Accordingly, I conclude that by
terminating Koshmieder, Respondent violated Section 8(a)(1)
and (3) of the Act.
Respondent by a letter dated July 2 addressed to Koshmieder
stated as follows:

Please contact me upon receipt of this letter to report
back to work by Thursday, July 5, 2001.
If you are found to be organizing during company
time, it will constitute grounds for immediate discharge.
You can reach me at the following phone numbers:

Office: (516) 481–2787
Pager: (516) 245–7745
Cell: (516) 220–1653

If you do not report by Thursday July 5th, 2001, then I
will consider that you have voluntarily terminated your
employment. Also, as you know I left a message on your
answering machine today, Monday, July 2, 2001.

In view of my conclusion that Koshmieder was discriminato-
rily discharged on June 29, I consider the July 2 letter as an
offer of reinstatement. However the offer of reinstatement was
conditioned as follows:

If you are found organizing on company time, it will
constitute grounds for immediate discharge.

In an early landmark decision in Republic Aviation Corp. v
NLRB, 324 U.S. 793 (1945), the Supreme Court adopted the
presumption that enforcement and promulgation of a rule pro-
hibiting union solicitation by employees outside working time,
although on company property is “an unreasonable impediment
to self-organization and therefore discriminatory in the absence
A.P. PAINTING & IMPROVEMENTS, INC. 1213
of evidence that special circumstances make this rule necessary
for maintaining production and discipline.”
Respondent’s July 3 letter conditions reinstatement broadly
on any kind of organizing on company time, as distinguished
from working time. Respondent submitted no evidence of
“special circumstances” that could make such probation neces-
sary.
In Sycon Corp., 258 NLRB 1159, 1160 (1981), the judge, af-
firmed by the Board concluded that an offer of reinstatement to
an employee conditioned on his agreement not to as chairman
or committeeman for the local union was an unlawful offer of
reinstatement and in violation of Section 8(a)(1) of the Act.
See also Romal Iron Works Corp., 285 NLRB 1178, 1183
(1987).
Respondent contended that Koshmieder would not be al-
lowed to wear T-shirts with the Union’s logo on them, but
rather was required by its rules to wear T-shirts with Respon-
dent’s logo. I find such contention irrelevant to the issues pre-
sented in this case. However, Koshmieder was not fired be-
cause he wore union T-shirts or any other clothing with a union
logo. In fact he credibly testified that he did not at any time
during his employ with Respondent wear any union clothing.
Indeed Respondent was completely unaware of his union af-
filiation until June 29, when he told Stephan Dunne of his in-
tention to organize Respondent’s employees. Moreover,
Koshmieder credibly testified that initially he wore T-shirts
with the logos of paint manufacturers, and that other employees
wore plain long sleeved white shirts to prevent sunburn. This
testimony is corroborated by the affidavit of Steven Wagner,
taken by the Board agent investigating this case, in the presence
of Respondent’s attorney.
REMEDY
Having found that Respondent has engaged in violations of
Section 8(a)(1) and (3) of the Act, I find that Respondent must
be ordered to cease and desist therefrom, and take affirmative
action to effectuate the policies of the Act.
In view of my finding that Respondent unlawfully dis-
charged its employee, John Koshmieder, I recommend that they
be reinstated to their former position of employment, or if such
position of employment no longer exists, to a substantial
equivalent position, without prejudice to his seniority, or other
rights and previously enjoyed by him.
In addition, I recommend that Koshmieder must be made
whole for any loss of earnings or other benefits suffered against
him with the backpay period to commence from June 29, 2001,
until Respondent offers him an unconditional offer of rein-
statement as defined by Board authority.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
In addition, Respondent must be ordered to remove from its
files any reference of Koshmieder’s discharge and notify him
that this has been done and that this personnel action will not be
used against him in any way.
[Recommended Order omitted from publications.]