Midland Painting Co.

National Labor Relations Board - Board Decisions

Oct 28, 1976

226 N.L.R.B. 616 (N.L.R.B. 1976)

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midland Painting Co., Spec Painting and Decorating,
Inc., and Harry Masarsky I and District Council No.
9 of New York City, International Brotherhood of
Painters and Allied Trades, AFL-CIO. Case 29-
CA-4602
October 28, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On May 11, 1976, Administrative Law Judge Paul
E. Weil issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions I of the Administrative Law Judge and
to adopt his recommended Order, as modified here-
in a,
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that-the Respondent, Mid-
land Painting Co., Spec Painting and Decorating,
i The name of Respondent is modified in accordance with the General
Counsel 's motion , duly served on Respondent prior to the hearing, which
was granted by the Administrative Law Judge at the aforesaid hearing
2 The General Counsel has excepted to the Administrative Law Judge's
failure specifically to find that Respondent also violated Sec 8 (a)(1) and (5)
when , on or about July 31 , 1975, and thereafter , it refused to honor or give
effect to the terms of the collective -bargaining agreement with the Union. In
support thereof , General Counsel relies on the facts establishing Respon-
dent's cessation of payments to the Union 's trust funds as required by that
agreement and its unilateral subcontracting of the work of the unit employ-
ees We agree with the General Counsel and accordingly find the additional
violation as urged
3 We note the inadvertence appearing in the second sentence of the para-
graph preceding the Administrative Law Judge's Conclusions of Law find-
ing a violation of "Section 8(a)(3) and (5)" instead of "Section 8(a)(1) and
(5) " In adopting his Conclusion of Law 3, we amend it by inserting "and by
not giving effect to the collective -bargaining agreement ," between the words
"Union," and "Respondent" therein
4 We find ment in the General Counsel's exceptions to the Administrative
Law Judge' s failure to include the names of Spec Painting and Decorating,
Inc, and Harry Masarsky in his recommended Order and notice and to
require that Respondent bargain in good faith with the Union , giving full
effect to their collective -bargaining agreement , in the event Respondent re-
sumes operations , and shall modify the said Order and notice accordingly
Inc., and Harry Masarsky, Rego Park, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as herein modified:
1. Add the following as paragraph 1(c) and relet-
ter the original 1(c) as '1(d):
"(c) Failing or refusing to honor or give effect to
the-terms of the collective-bargaining agreement with
the Union,"
2. Substitute the following as paragraph 2(a):
"(a) Resume operations from its place of business
in Rego Park, New York, using the employees of
Midland Painting Co., formerly employed in the per-
formance of such work, and bargain in good faith
with the Union, giving full effect to their collective-
bargaining agreement; or, in the alternative, meet
and bargain with the Union about subcontracting or
ceasing to perform such work."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a. chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor Rela-
tions Act and has ordered us to post this notice and
we intend to carry out the Order of the Board and
abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to
these rights.
WE WILL NOT negotiate directly with our em-
ployees concerning their wage, hours, and work-
ing conditions without consulting with the
union, and WE WILL NOT subcontract the work of
our employees without notifying the Union,
and, if it requests an opportunity to bargain,
bargaining with it.
WE WILL NOT refuse or fail to honor or give
effect to our collective-bargaining agreement
with the Union.
226 NLRB No. 92
MIDLAND PAINTING CO.
WE WILL make whole any employees who
were working for us before July 31, 1975, for any
pay they may have lost as a result of our unila-
teral decision - to subcontract the work that they
had done, as set forth in the decision in this case.
WE WILL either reopen our business , as it was
done before July 28, 1975, and bargain in good
faith with District Council No. 9 of New York
City, International Brotherhood of Painters and
Allied Trades , AFL-CIO, giving full effect to
our collective-bargaining agreement ; or WE WILL,
upon request , bargain with the Union about our
decision to subcontract our work or close our
business.
MIDLAND PAINTING CO., SPEC PAINTING AND
DECORATING, INC., AND HARRY MASARSKY
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On September
26, 1976, District Council No. 9 of New York City, Inter-
national Brotherhood of Painters and Allied Trades, AFL-
CIO, hereinafter called the Union, filed with the Regional
Director for Region 29 of the National Labor Relations
Board, hereinafter called the Board, a charge alleging that
Midland Painting Co. and Spec Painting and Decorating,
Inc., hereinafter called respectively Midland and Spec and
collectively Respondent, violated Section 8(a)(5) and (1) of
the Act by transferring its business from Midland, which
had a collective-bargaining agreement with the Union, to
Spec, which did not, and by Spec refusing to recognize and
bargain with the Union. On November 5, 1975, the Re-
gional, Director for Region 29, on behalf of the Board's
General Counsel, issued a complaint and notice of hearing
alleging that Spec is a successor to Midland and that Spec
and Midland are a single integrated business enterprise,
and that Respondent ceased honoring and giving effect to
the contract between Midland and the Union, negotiated
individually with the employees concerning their wages,
hours, and working conditions, and subcontracted all of its
work without notice to the Union and without giving the
Union an opportunity to bargain about its decision to sub-
contract, all in violation of Section 8(a)(5) and (1) of the
Act. On December 16, Spec and Midland each filed letters
denying each and every allegation contained in the com-
plaint other than that the charge was filed. Each letter was
signed by Harry Masarsky. On December 19, Harry Ma-
sarsky, on a copy of each of the December 16 letters, addi-
tionally stated that the respective Respondent, Spec and
Midland, amended its answer to admit the jurisdictional
facts and that Spec is a successor to Midland. Respondent,
by the amendment, also admitted that the Association of
Master Painters and Decorators of the City of New York,
Inc., hereinafter called the Association, included Midland
as a member, negotiated a collective-bargaining agreement
617
on behalf of its members with the Union, and that the
Union is the collective-bargaining representative of the em-
ployees of the employer-members of the Association in an
appropriate unit consisting of all journeymen and appren-
tice painters and paperhangers and persons employed in
related work employed by the said employer-members, a
unit I find appropriate.
Respondent also admits that Harry Masarsky has at all
times been the president of Spec and Midland, acting on
their behalf and an agent thereof. On issues thus joined the
matter was set down for hearing on January 6, 1976; how-
ever, on December 22, Mr. Masarsky requested an exten-
sion of at least 1 month on the ground that Spec and the
Union are continuing settlement efforts. Pursuant to this
request, the hearing was rescheduled to February 17, 1976.
On February 3, 1976, a letter was delivered to the Regional
Office requesting another postponement of the hearing on
the grounds that Masarsky's physician advised him against
coming to New York due to poor health. This was accom-
panied by a letter dated February 3, 1976, signed by a
physician of New York City, stating that Masarsky suf-
fered from chronic bronchitis with moderate emphyse-
matous changes and that the doctor had recommended
that he spend as much time as possible in Florida, especial-
ly at this time of the year. Again the hearing was resched-
uled, from February 17 to April 1, 1976. On March 30,
1976, another request for postponement was received from
Spec's office in Rego Park, New York, signed by Jean Sil-
verberg, secretary of Spec Painting and Decorating, Inc.,
stating that Masarsky requested a postponement until May
1 due to doctor's orders. This was accompanied by another
letter, dated March 24, 1976, from Masarsky's doctor, stat-
ing that Masarsky has been under his care for 2 years for a
chronic bronchitis condition and he also has a moderate
case of emphysema, and that it was recommended that he
seek a warmer climate due to the extent of his problem.
This time the Regional Director refused to continue the
matter and it came on for hearing before me in, Brooklyn,
New York, on April 1, 1976. Respondent was duly notified
by telegram to his Rego Park, New York, office and to his
Miami Beach, Florida, residence that his request was de-
nied. Neither he nor anyone else representing him came to
the hearing.
All parties had an opportunity to call and examine wit-
nesses and to adduce relevant and material evidence. The
General Counsel called and examined witnesses who were
available for cross-examination if Respondent had attend-
ed the hearing.
Upon the entire record in this case and including my
observation of the witnesses, and upon consideration of the
oral argument of the General Counsel, a letter received
after the close of the hearing, and a brief received from
Respondent, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Midland is a New York corporation engaged in apart-
ment painting and related services valued annually in ex-
cess of $50,000 for enterprises which are in interstate com-
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merce by reason other than indirect inflow and indirect
outflow. -
Spec is a New York corporation engaged in New York in
contracting for the performance of apartment painting and
related service since August 14, 1975.
Midland is a member of the Association of Master
Painters and Decorators of the City of New York, Inc,
which includes among its members, J. I. Hass, Inc., a
painting contractor in New York and in various other
States of the Union. J. I. Hass, Inc., is engaged in com-
merce within the meaning of the Act.
Midland and Spec are each owned and managed by
Harry Masarsky doing the same work for the same custom-
ers, and the two of them together with Harry Masarsky
comprise a single employer within the meaning of the Act.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the^Act.
III. THE UNFAIR LABOR PRACTICES
Prior to July 31, 1975, Midland was a member of the
Association and party to its contract with the Union. Un-
der the terms of that contract all journeymen and appren-
tice painters and paperhangers and persons employed in
related work employed by the employer-members of the
Association comprised the unit, which I find appropriate.
The contract includes a provision that employers shall not
contract out or subcontract any painting, decorating, wood
finishing, or paperhanging work to any subcontractor who
is not a party to the agreement or to an agreement with a
local or district council affiliated with the Union's interna-
tional. It also provides that no journeyman shall engage in
subcontracting directly or indirectly.
In May or June 1975 Dennis Blumberg, business repre-
sentative for the Union, heard a rumor that Respondent
Midland was going out of business. He called on Masarsky
and said that he understood that Decor Painting and De-
corating Corporation, hereinafter called Decor, was think-
ing of taking over Midland's painting business. Masarsky
told Blumberg that he was going to sell the business to
Decor. Blumberg asked how it happened that he had not
been informed of this- development, and Masarsky said
that he thought Blumberg knew. After a few more words
Blumberg left. He later ascertained that, on May 30, Mid-
land had informed the trustees of the insurance funds oper-
ated by the Union and the Association, that Midland was
no longer in business as of May 30, 1975.
Because Decor was a union contractor and was using
some of Midland's employees, Blumberg carried the matter
no further until he heard in mid-June that Decor was not
going to buy the business. Accordingly he again visited
Masarsky and asked him if he was back in business. Mar-
sarsky answered in the affirmative.
On July 28, 1975, Masarsky laid off all of his employees
and told them that he was going out of business. The
Union was informed by Carl Worth, Masarsky's foreman
for 17 years, that he had been laid off by Masarsky who
said that he was closing the shop. Blumberg checked with
Midland's office and found it closed. At-the end of July, a
report similar to that filed at the end of May was-received
at the trust offices again stating that Midland was going
out of business as of July 31, 1975. Armed with this infor-
mation Blumberg again went to Midland's offices. He met
a Mr. Demetrius from Rhythm Painting and Decorating
Company coming out of- Respondent's office. Demetrius
told him that he was going to, do the 'work for Midland
Painting Company. Blumberg suggested that, if he needed
men to call Blumberg, and within a day or two spoke to
Marsarsky who told him that Rhythm was going to do the
work.
A week or so later Blumberg again went to Midland's
office which is next door to an office occupied by Carol
Management Corporation, which manages the apartment
buildings in which Masarsky's enterprises do the painting
and decorating. No one was in Masarsky's office so Blum-
berg asked the office girl of Carol Management Corpora-
tion if Rhythm or Midland was around. She said, "No, not
yet." As he left the office, Blumberg noticed a letterbox on
a desk with a bill of lading addressed to Spec Painting and
Decorating, Inc. This aroused his curiosity and he went to
the secretary of state's office and got a copy of the incorpo-
ration papers of Spec which provided no information other
than that the certificate of incorporation was issued on
June_ 10, 1975, that the secretary of state is designated as
the agent of the corporation upon whom process may be
served, and that the corporate officer to whom the secre-
tary of state shall mail a copy of process is an attorney in
Long Island City, New York.'
Blumberg next called on the maintenance manager of
Carol Management Corporation who told him that he
didn't know who owned Spec Painting Corporation, sug-
gested that it might be Rhythm or Midland, and stated that
Spec was doing his painting for him.
Blumberg next filed "charges," apparently a grievance,
through the Union against Midland and Rhythm Painting
Corporation regarding the subcontracting clause in the
contract.' He was informed by the Association that Mid-
land was no longer in business and the grievance in regard
to Rhythm has never come to a conclusion.
On September 26, Blumberg filed the instant charges
against Midland and Spec. In early October Masarsky tele-
phoned Blumberg and asked him why he filed the charge.
Blumberg pointed out that he had never been able to talk
to him with regard to the procedures of the contract or the
grievance. In this conversation Masarsky stated that he
was the owner of Spec and because of the increase in wages
in the contract he could no longer afford to pay the
painter's scale. He said that he asked the employees to ac-
cept 7 hours' pay for 8 hours' work a day, and asked Blum-
berg to meet with him. Blumberg agreed to meet with him
to talk about the subcontracting to Spec. Blumberg in-
formed the Board's attorney of Masarsky's telephone call
and shortly thereafter received another telephone call in
which Masarsky said, "What the hell did you tell that
1 A copy of the process in the instant case was attempted to be served on
Spec by service on the secretary of state, it was refused
MIDLAND PAINTING CO.
woman from the Labor Board ." Blumberg told Masarsky
that he had told the Labor Board attorney everything that
Masarsky had said . An argument ensued and Blumberg
hung up the telephone . At this time Blumberg was under
the impression that Masarsky was in Florida.
Since July 31 , no payments have been made by Midland
to the Union 's trust funds , no negotiations with regard to
subcontracting have taken place, and the Union has agreed
to no variances of the contract on behalf of Midland.
On February 3, Hugo Victor Alegre and Clyde Toranzo,
former employees of Midland who had been laid off on
July 28 , were called by Masarsky to his office in Queens,
New York . On February 4, the following day, the two men
met Masarsky there and he asked them if they would go to
work for him to work 8 hours a day for 7 hours' pay, telling
them that he could not afford to pay the Union's scale.
They refused to do so and he suggested that he could pay
them on a piecework basis and they could continue to col-
lect checks from the unemployment agencies . They again
refused . He told the two men to think it over and to call
him. They went to Toranzo 's house from which they called
Masarsky and told him they would not work on that basis.
Masarsky said at any rate they should come to his office
prepared to go to work at 9 o'clock the following Wednes-
day, which would have been February 11. The two men
appeared at Masarsky's office on that date. The secretary,
Jean Silverberg , was the only one in the office. She stated
that she knew nothing about them coming back to work.
Miss Silverberg called Masarsky by telephone and told the
two employees that he had to get an answer from the La-
bor Board or the Union before he could put them to work.
They have had no further contact with Masarsky.2
On March 12, 1976,, Blumberg went to Midland',s office
in Rego Park and was talking with Secretary Silverberg
who told him that as far as she knew Masarskyewas going
out of business on March 15 . While he was talking with her
a man dressed in painter 's clothes approached the door to
the office and Silverberg waved him away and called, "No,
not now, later." Blumberg left Masarsky 's office a few min-
utes later and noticed a truck with painting equipment
doubleparked in the street . He got into his car and waited
and in a few minutes the same man , dressed in painter's
clothes, came out and drove the truck to Central Gardens,
one of the buildings operated by Carol Management Cor-
poration . When the truck parked, Blumberg , parked and,
introducing himself to the - driver as , the business agent of
the Painters Union, asked the driver who he was working
for. The driver said he'was , George Prios and he was work-
ing for Masarsky . Blumberg asked Pnos if he'was a mem-
ber of the Union. Prios said that he was a member of Local
261. Blumberg then asked if Prios was working for Masar-
sky or was subcontracting , and Prios stated that it was his
job and the Union wasn't going to take it away from him.
Blumberg told Prios he had no intention of taking the work
away from him but asked if he was working as an employ-
ee or subcontractor . Prios said that he was subcontracting
2I make no findings of a violation predicated on this evidence , but re-
fused to permit the General Counsel to amend his complaint at the hearing,
in the absence of notice to Respondent This evidence however corroborates
the findings below
619
the work from Masarsky because Masarsky was in some
kind of trouble with the Labor Board and went out of
business on March 15 . Blumberg pointed out that the man
was in violation of the contract if he was a union man
subcontracting from a union contractor, at which point the
man threatened to kill him if he stopped him from per-
forming on his subcontract . Blumberg drove away and
called Miss Silverberg and asked about this man who had
identified himself as George Prios. Miss Silverberg stated
that he,used to work for Harry. Masarsky . The Union has
had no contact with Masarsky since that date.
Discussion and Conclusions
It is clear from the record that Masarsky, operating un-
der the name of Midland Painting Co., a member of the
Association , had a continuing duty to bargain with the
Union as the representative of his employees . This duty to
bargain includes the duty to notify the Union if Respon-
dent decides- to subcontract the work theretofore done by
his organized employees? It is equally clear from the rec-
ord that Masarsky determined that he could not or would
not pay the union scale for the work for which he contract-
ed with the Carol Management Corporation, and attempt-
ed by subterfuge to, get it done by other means than
through his own employees. He first attempted to subcon-
tract it to Rhythm Painting Co. Apparently after trying it
for a while Rhythm declined to continue the work for Ma-
sarsky, whereupon Masarsky set up a new corporation,
Spec, and had employees working for Spec do the work,
unknown to the Union . When it became apparent that the
Union was aware of the existence of Spec and its relation-
ship with Masarsky , and the Labor Board commenced its
investigation , Masarsky then attempted to recall at least
some of his union employees and negotiated with them to
accept a lower rate than that which he was contractually
required , to pay. When his employees refused to work at
this , rate, Masarsky continued performing on his painting
contract using Prios, apparently, as a subcontractor .4
Throughout these changes Masarsky made no attempt to
negotiate with the Union. He told the union he had been
negotiating with his employees for a lower wage rate, a
clear violation of Section 8(a)(3) and (5), and he failed to
inform the Union, as he is required both by contract and
by law, that he is subcontracting the unit work. Under
these circumstances the violation of Section 8(a)(5) and de-
rivatively of Section 8(a)(1) is clear, and I so find.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
3 Fibreboard Paper Products -Corp v N L R B, 379 U S 203 ( 1964),
4 Prios ' standing with regard to Masarsky is not revealed in the record He
was apparently an exemployee of Masarsky ' s, but whether he was perform-
ing under a subcontract , on piecework , or on wages, is not revealed on the
record At any rate it may be inferred that he is performing on the contract
subordinate to Masarsky through Masarsky's New York office.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By unilaterally deciding to subcontract and imple-
menting this decision and by negotiating individually with
his employees who are represented by the Union, Respon-
dent has failed and refused to bargain collectively with the
Union as the representative of his employees in the unit
found appropriate above, thereby violating Section 8(a)(5)
of the Act.
4. By the acts and conduct set forth in paragraph 3,
above, Respondent interfered with, restrained, and coerced
employees in the exercise of their rights guaranteed under
Section 7 of the Act, thereby violating Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies and purposes of the Act.
The General Counsel contends that under the facts here-
in and the applicable law the remedy should include but
not be limited to an order to Respondent to resume opera-
tions with its Midland employees and that said employees
be awarded backpay. It appears that Respondent, for pur-
poses of his health, now resides in Florida, but that he
maintains an office and place of business-in Rego Park,
New York, and has continued, at least until March 1976, to
perform on his painting and decorating contracts in and
around Queens County, New York. In view of the question
concerning Masarsky's health, an order to resume opera-
tions as an employer would not necessarily be just nor ef-
fective. Accordingly, I shall recommend that Respondent
be ordered in the, alternative either to resume operations
with Respondent's employees, making them whole for any
loss of pay suffered by them in the manner set forth in the
Board's decision in F. W." Woolworth Company, 90 NLRB
289 (1950), with interest as provided in the Board's deci-
sion in Isis Plumbing & Heating Co., 138 NLRB 716 (1962),
or, on the other hand, if Respondent deems it impossible to
resume operations with his own employees, he shall be re-
quired to bargain with the Union with regard'either to his
going out of business or' his continued operation of the
business by subcontracting the actual painting and deco-
rating work. In this event, i.e., that Respondent shall deem
it impossible to resume operations with his own employees,
Respondent shall make his employees' whole for any mon-
ey they would have earned until such time as they find
other appropriate employment, said backpay to be com-
puted according to the same formula as the backpay is to
be computed in the event Respondent chooses to resume
his painting and decorating operation using his own em-
ployees.
Upon the foregoing findings and the entire record, pur-
suant to Section 10(c) of the Act, I issue the following rec-
ommended:
ORDERS
The Respondent, Midland Painting Co., Rego Park,
New York, its officers, agents, successors, and assigns,
shall:
1.-Cease and desist from:
(a) Failing or refusing to bargain with District Council
No. 9 of New York City, International Brotherhood of
Painters and Allied Trades, AFL-CIO, or any other 'labor
organization, as the representative of his employees in a
unit- consisting of all journeymen and apprentice painters
and paperhangers and persons- employed in related work
by the members of the Association of Master Painters and
Decorators of the City of New York, Inc., including Mid-
land Painting Co., by unilaterally and without consultation
with said Union subcontracting the work theretofore per-
formed by the employees in said unit, or by setting up a
new business entity for the purpose of"performing the work
formerly performed by the employees in said unit but with-
out using the'employees in said unit.
(b) Negotiating individually with the employees in the
unit set forth above without knowledge of or consent by
the Union for the purpose of bypassing said Union.
'(c) In any like or related manner interfering with, re-
straining, or_ coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. 'Take the following affirmative action designed to ef-
fectuate the polices of the Act:
- (a) Resume operations from its place of business in
Rego Park, New York, using the employees of Midland
Painting Co., formerly employed ' in the performance of
such work, or, in the alternative, meeting and bargaining
with the Union about subcontracting or ceasing'to perform
such work.
(b) If Respondent chooses to resume operations it shall
offer to the employees it used prior to'its initial cessation of
work under the business name Midland Painting Co., im-
mediate and full reinstatement to their former jobs or, if
these jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other rights and priv-
ileges, and make them whole for any loss of pay they may
have suffered by `reason of Respondent's cessation of its
operations under the trade name "Midland Painting Co."
in the manner set forth in the section of this Decision enti-
tled "The Remedy."
(c) In the event Respondent decides either to cease per-
forming or to subcontract his functions as a painting and
decorating subcontractor he shall make whole those em-
ployees of Midland Painting Co. who were displaced by
this decision in'the amount they would have earned from
the time they were laid off on July 28, 1975, until such time
as they secure alternative regular employment in an appro-
priate job. Said backpay shall be computed as' set forth in
that portion of this Decision entitled "The Remedy."
5 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and-all objections thereto shall be
deemed waived for all purposes
MIDLAND PAINTING CO.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll and other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Post at Respondent's place of business in Rego Park,
New York, copies of the attached notice marked "Appen-
dix." 6 Copies of said notice, on forms provided by the
Regional Director for Region 29, after being duly signed
by Respondent, shall be posted immediately upon receipt
6 In the event that the Board's 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 "
621
thereof, and be maintained for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent'to insure that said no-
tices are not altered, defaced, or covered by any other ma-
terial.
(f) Mail copies of said notices, duly signed as set forth
above, to the last known addresses of each of the employ-
ees who were laid off as a result of the cessation of business
of Midland Painting Co. Proof of mailing of such copies of
the notice shall be afforded the Regional Director for Re-
gion 29.
(g) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.