Thesis Painting, Inc.

National Labor Relations Board - Board Decisions

Oct 13, 2017

365 NLRB No. 142 (N.L.R.B. 2017)

365 NLRB No. 142
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Thesis Painting, Inc. and International Union of
Painters and Allied Trades, AFL-CIO, District
Council 51. Case 05–CA–167137
October 13, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On January 31, 2017, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief, and the Re-
spondent filed a reply. The General Counsel also filed
cross-exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions. In
sum, the Board certified the International Union of
Painters and Allied Trades, AFL–CIO, District Council
51 (Union) on November 2, 2015, as the exclusive col-
lective-bargaining representative of the unit employees.
Although the Respondent contested the certification, the
United States Court of Appeals for the Fourth Circuit, in
an unpublished order, enforced the Board’s Order requir-
ing the Respondent to recognize and bargain with the
Union. Thesis Painting, Inc. v. NLRB, 684 Fed. Appx.
321 (4th Cir. 2017) (per curiam). In this case, we con-
sider layoffs of unit employees that the Respondent un-
dertook in December 2015 and January 2016 without
bargaining with the Union. Layoffs are a mandatory
subject of bargaining under Section 8(d) and 8(a)(5) of
the Act, and the Respondent was obliged to give the Un-
ion notice and an opportunity to bargain before imple-
menting the layoffs. Further, as did the judge, we find
that the Respondent did not carry its burden of establish-
ing that an “economic exigency” or any other related
factors excused its admitted failure to bargain over the

1 The Respondent has 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
preponderance 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.
layoffs.2 Given that finding, we adopt the judge’s rec-
ommended Order as modified and set forth in full be-
low.3

2 In adopting the judge’s finding that the Respondent did not estab-
lish an “economic exigency” that would have excused its failure to
bargain over the disputed layoffs, we do not pass on whether such a
defense is available to an employer that is testing the validity of a union
certification by refusing to bargain. We consider such a defense here in
the absence of exceptions to its application. Member McFerran be-
lieves that, to the extent that such a defense is available to the Respond-
ent, it has the burden of proving that it is excused from bargaining
altogether, which is a heavier burden than proving economic exigency
for expedited bargaining. See RBE Electronics of S.D., 320 NLRB 80,
81–82 (1995).
Further, we do not rely on the judge’s discussion, in footnote 3 of his
decision, regarding Bottom Line Enterprises, 302 NLRB 373 (1991),
enfd. 15 F.3d 1087 (9th Cir. 1994), and RBE Electronics of S.D., above.
Moreover, while Chairman Miscimarra recognizes that Bottom Line
Enterprises and RBE Electronics are extant precedent, he expresses no
view on the soundness of those decisions. We also do not rely on Lati-
no Express, Inc., 359 NLRB 518 (2012), a decision that issued at a time
when the Board included two persons whose appointments to the Board
the Supreme Court subsequently held were not valid. See NLRB v.
Noel Canning, 134 S.Ct. 2550 (2014). Instead, we rely on AdvoServ of
New Jersey, Inc., 363 NLRB No. 143 (2016).
We also do not rely on the judge’s statement that the Respondent
“was certainly faced with an economic emergency requiring prompt
action.” Member Pearce, in finding that there was not an economic
exigency justifying unilateral layoffs, notes that the layoffs were stag-
gered over several weeks in December 2015 and January 2016, and
they did not begin until 5 days after the Respondent learned of a con-
tract cancellation. See Becker Group, Inc., 329 NLRB 103, 111 (1999)
(employer could have negotiated with the union during its week-long
deliberation over whether to lay off employees). Likewise, Member
Pearce would find that there were no reasonably unforeseeable events
requiring immediate layoffs given that the Respondent’s financial con-
dition had been deteriorating for months, that its workload had often
fluctuated, and that it had known, for some time, of a possible contract
postponement. See Ardit Co., 364 NLRB No. 130, slip op. at 5 (2016)
(loss of a major contract and unsuccessful bid for another contract “do
not rise to the level of a dire financial emergency that would completely
suspend the duty to bargain”); Farina Corp., 310 NLRB 318, 321
(1993) (loss of a customer account “does not constitute a compelling
economic consideration justifying a failure to bargain”). Additionally,
Member Pearce notes that there is no evidence that bargaining over the
Respondent’s need for cost savings, which is well-suited for collective
bargaining, would have been futile. See Lapeer Foundry & Machine,
Inc., 289 NLRB 952, 954 (1988) (layoff decisions are amenable to
resolution through the collective-bargaining process).
Finally, we reject the Respondent’s argument that the layoffs were
consistent with past practice and thus not an unlawful unilateral change.
The Respondent did not raise this argument, in any form, before the
judge. Consequently, it has been waived. See, e.g., Strategic Re-
sources, Inc., 364 NLRB No. 42, slip op. at 1 fn. 2 (2016); Yorkaire,
Inc., 297 NLRB 401, 401 (1989), enfd. 922 F.2d 832 (3d Cir. 1990).
Member Pearce would further find that, even if the Respondent had
timely raised and showed that a past practice existed, the Respondent
nevertheless had an obligation to bargain over the economic layoffs.
See Adair Standish Corp., 292 NLRB 890, 890 fn. 1 (1989) (“The
[r]espondent argues that because of its past practice of instituting eco-
nomic layoffs due to lack of work, it had no obligation to bargain with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ORDER
The National Labor Relations Board orders that the
Respondent, Thesis Painting, Inc., Springfield, Virginia,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off unit employees without first notifying
the Union and giving it an opportunity to bargain.
(b) 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
Salvador Humberto Rodriguez, Jose Lorenzo Osorio,
Orivel Betancourth, Alba Moran, Rubio Omar Diaz, Jose
Inmar Viera, Jose Vicente Cantor, Francisco Otoniel
Pacheco Martel, David Galindo, and Emiliano Diaz full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
(b) Make Salvador Humberto Rodriguez, Jose Lo-
renzo Osorio, Orivel Betancourth, Alba Moran, Rubio
Omar Diaz, Jose Inmar Viera, Jose Vicente Cantor,
Francisco Otoniel Pacheco Martel, David Galindo, and
Emiliano Diaz whole for any loss of earnings and other
benefits suffered as a result of their unlawful layoffs in
the manner set forth in the remedy section of the judge’s
decision as amended in this decision.
(c) Compensate Salvador Humberto Rodriguez, Jose
Lorenzo Osorio, Orivel Betancourth, Alba Moran, Rubio
Omar Diaz, Jose Inmar Viera, Jose Vicente Cantor,
Francisco Otoniel Pacheco Martel, David Galindo, and
Emiliano Diaz for their search-for-work and interim em-
ployment expenses regardless of whether those expenses
exceed their interim earnings.
(d) Compensate Salvador Humberto Rodriguez, Jose
Lorenzo Osorio, Orivel Betancourth, Alba Moran, Rubio
Omar Diaz, Jose Inmar Viera, Jose Vicente Cantor,
Francisco Otoniel Pacheco Martel, David Galindo, and
Emiliano Diaz for the adverse tax consequences, if any,
of receiving lump-sum backpay awards, and file with the

the [u]nion over such layoffs. However, because of the intervention of
the bargaining representative, the [r]espondent could no longer contin-
ue unilaterally to exercise its discretion with respect to layoffs.”), enfd.
in relevant part 912 F.2d 854 (6th Cir. 1990).
3 In accordance with our decision in AdvoServ of New Jersey, Inc.,
above, we shall amend the judge’s recommended tax compensation and
Social Security reporting remedy. We shall modify the judge’s rec-
ommended Order to reflect this remedial change and to conform to the
Board’s standard remedial language, and we shall substitute a new
notice to conform to the Order as modified.
Regional Director for Region 5, within 21 days of the
date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
(e) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful layoffs,
and within 3 days thereafter, notify the employees in
writing that this has been done and that the layoffs will
not be used against them in any way.
(f) 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 rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
its Springfield, Virginia facility copies of the attached
notice marked “Appendix”4 in both English and Spanish.
Copies of the notice, on forms provided by the Regional
Director for Region 5, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places, including all places where notices
to employees are customarily posted. In addition to
physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since December 8,
2015.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 5 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

4 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.”
THESIS PAINTING, INC. 3
Dated, Washington, D.C. October 13, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT lay off any of our unit employees with-
out first notifying the Union and giving it an opportunity
to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Salvador Humberto Rodriguez, Jose Lo-
renzo Osorio, Orivel Betancourth, Alba Moran, Rubio
Omar Diaz, Jose Inmar Viera, Jose Vicente Cantor,
Francisco Otoniel Pacheco Martel, David Galindo, and
Emiliano Diaz full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
WE WILL make Salvador Humberto Rodriguez, Jose
Lorenzo Osorio, Orivel Betancourth, Alba Moran, Rubio
Omar Diaz, Jose Inmar Viera, Jose Vicente Cantor,
Francisco Otoniel Pacheco Martel, David Galindo, and
Emiliano Diaz whole for any loss of earnings and other
benefits resulting from their layoffs, less any net interim
earnings, plus interest, and WE WILL also make these em-
ployees whole for their reasonable search-for-work and
interim employment expenses, plus interest, regardless of
whether those expenses exceed their interim earnings.
WE WILL compensate Salvador Humberto Rodriguez,
Jose Lorenzo Osorio, Orivel Betancourth, Alba Moran,
Rubio Omar Diaz, Jose Inmar Viera, Jose Vicente Can-
tor, Francisco Otoniel Pacheco Martel, David Galindo,
and Emiliano Diaz for the adverse tax consequences, if
any, of receiving lump-sum backpay awards, and WE
WILL file with the Regional Director for Region 5, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years for
each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoffs, and WE WILL, within 3 days thereafter, notify
each of them in writing that this has been done and that
the layoffs will not be used against them in any way.
THESIS PAINTING, INC.
The Board’s decision can be found at
www.nlrb.gov/case/05-CA-167137 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Clark C. Brinker, Esq., for the General Counsel.
Maurice Baskin (Littler Mendelson, P.C.), of Washington,
D.C., for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Washington, D.C. on November 10, 2016. The
Painters and Allied Trades Union, District Council 51 filed the
charge on January 5, 2016. The General Counsel issued the
complaint on March 31, 2016.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
The Regional Director of Region 5 certified the Union as the
exclusive bargaining representative of Respondent’s full-time
and regular part-time painters and lead painters on November 2,
2015.1 The Union demanded bargaining 3 days later. The
Board denied Respondent’s Request for Review of the certifi-
cation on March 24, 2016. Respondent then appealed the
Board’s decision to the United States Court of Appeals for the
Fourth Circuit.
On December 8, 2015, Respondent laid off 5 painters. It laid
off another painter on December 11, 3 more painters on De-
cember 28 and 1 more on January 18. Respondent did not noti-
fy the Union about the layoffs either before or after they oc-
curred. Respondent did not offer to bargain about the decision
to lay off or the effects of the layoff. Moreover, Respondent has
not recognized the Union nor offered to bargain with the Union
about anything.
While Respondent declined to bargain with the Union pri-
marily because it denied the legitimacy of its certification, this
case presents an additional argument, “compelling economic
circumstances.” Respondent contends that an economic emer-
gency justified its failure to notify the Union and offer it an
opportunity to bargain over the lay-off decision or the effects of
that decision.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
Findings of Fact
I. JURISDICTION
Respondent, a corporation, is a painting contractor based in
Springfield, Virginia. In the 12 months prior to February 29,
2016, Respondent performed services valued in excess of
$50,000 outside the State of Virginia. Respondent admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent’s worsening financial situation in 2015
Respondent has been in business since 1995. It is a painting
and wall covering contractor in the Washington, D.C. metropol-
itan area. Respondent operated at a loss for 8 of the 12 months
of calendar year 2015, including 5 of the last 6 months of the
year. Measured in terms of the number of hours Respondent’s
employees were working, 2015 was a much worse year than
2014 (GC Exh. 13). For example, in the last week of July
2014, Respondent’s employees worked 2353 hours; in the last
week of July 2015, they worked 1140 hours. The number of
hours worked by Respondent’s employees in the week ending
September 11, 2015, was 662, a drop of 478 hours since the last
week of July 2015. In the comparable week in 2014, company
employees worked 1844 hours. Thus, Respondent’s financial
position was very poor months before the events in December
2015 on which it relies in claiming “compelling economic cir-

1 The Union won a representation election conducted on July 31,
2015.
cumstances” that justifies avoiding notifying and bargaining
with the Union about the December layoffs.
Prior to December 2015, employees called an automatic sys-
tem each day to find out whether they were working the next
day, and if so where they were working. When the hours avail-
able to employees dropped, they simply received no work as-
signments for the next day. Thus, in late August-September
2015, employee Alba Moran received work assignments only
once or twice a week.
The events of December 2015
In December 2015, Respondent’s largest project was the
Park Potomac Apartments project, a $995,000 contract. The
work on this project was slated to be completed by December
17, 2015. Respondent had two new projects slated to begin the
same month.
On December 3, 2015, Hensel Phelps, the general contractor
on one of these projects, at Fort Mead, Maryland, cancelled its
$706,000 contract with Respondent. Barbara Spyridakis, Re-
spondent’s chief executive officer, immediately called Henry
Lloyd, a consultant, who had advised Thesis off and on since
2010. It is not clear exactly what advice Lloyd gave Spyridakis
on December 3. She testified that he said that Respondent
would have to cut expenses further than it had done already (Tr.
105), or “cut people.” Lloyd’s testimony is even less clear as to
when he advised her that she must lay-off employees (Tr. 136–
40). Lloyd and Spyridakis had telephone conversations after
December 3 and he met with her face to face on December 14.
Respondent also had a contract to paint sprinkler pipes on
the “Latitude Project.” On December 4, Respondent learned
that start date for this project was being pushed back from De-
cember 14 to March 7, 2016.
Respondent laid off 5 employees, all of whom had been
working at the Park Potomac job on December 8. On Decem-
ber 14, it laid off 1 more of those employees, 3 more on De-
cember 28 and an additional employee on January 18.2 The
principal, if not only reason, Respondent did not notify the
Union about the layoffs was that it was contesting the Union’s
certification (Tr. 114–115).
Analysis
Until such time as the Court of Appeals rules otherwise, the
Board’s certification of the Union is valid. Although an em-
ployer may properly decide that an economic layoff is required,
once such a decision is made the employer normally must noti-
fy a union representing the unit of the effected employees, and
upon request bargain with it concerning the layoffs, including
the manner in which the layoffs and any recalls are to be effect-
ed. When an employer is faced with dire economic circum-
stances, a union must request negotiations in a timely and
speedy fashion. Otherwise, the employer will have satisfied its

2 The General Counsel moved to amend the complaint to include
Emiliano Diaz because his name appeared on a subpoenaed list of
employees laid off. Respondent in its brief asserts Diaz was not laid
off. I rejected this contention. Respondent’s claim that Freddy Robles
quit and thus should not be on the list is supported by sworn testimony,
Tr. 96. Its assertion about Diaz is not. Thus, I conclude that Diaz was
laid off as indicated by GC Exh. 14.
THESIS PAINTING, INC. 5
bargaining obligation. Moreover, the negotiations must occur
in a timely and speedy fashion, Lapeer Foundry & Machine,
289 NLRB 952, 953–954 (1988).
An employer that fails to notify its employees’ bargaining
representative of a layoff, while challenging to the union’s
certification, acts at its peril, Clement Wire, 257 NLRB 1058
(1981). If the certification is upheld, the employer will be
found to have violated Section 8(a)(5) and (1).
Notification and an offer to bargain over lay-offs may be ex-
cused in extraordinary circumstances. Angelica Healthcare
Services Group, 284 NLRB 844, 852–853 (1987). In the ab-
sence of precedent to the contrary, I will assume the defense of
“economic exigency” is available to an employer who has no
intention to notify and bargain with the Union under any cir-
cumstances.3
Respondent herein was certainly faced with an economic
emergency requiring prompt action, i.e., the sudden loss and
postponement of the work expected in December 2015. How-
ever, this begs the question as to whether it was necessary for it
to implement layoffs without at least notifying the Union and
offering the Union an opportunity to bargain over the layoffs
and the effects of the layoff, such as the recall rights of the laid
off employees.
Even assuming that prompt action was required, Respondent
has not established that it was necessary to implement layoffs.
Instead, it could have continued its past practice at least until it
had given the Union an opportunity to bargain. That practice
was to have employees call in and discover that there was no
work for them on a daily basis. Secondly, since Respondent
had sufficient time to notify and consult with Henry Lloyd
before implementing the lay-offs, it certainly had time to notify
the Union and discuss the layoff and its effects. As stated
above, it is unclear when Lloyd advised Respondent that it must
resort to layoffs and the number of layoffs he advised. Even
assuming that the company did not have sufficient time to noti-
fy the Union about the layoffs on December 8 and 11, it cer-
tainly had sufficient time to notify the Union prior to the De-
cember 28 and January 18 layoffs.
Moreover, even if one were to excuse Respondent for not no-
tifying and offering the Union an opportunity to bargain over
the layoffs, it certainly violated the Act in not offering the Un-
ion an opportunity to bargain over the effects of the layoffs,
such as recall rights.4 In this regard, the record indicates that

3 Bottom Line Enterprises, 302 NLRB 373 (1991), and RBE Elec-
tronics of S.D., 320 NLRB 80, 81 (1995), pertain to situations in which
an employer in the course of collective-bargaining negotiations, is
confronted with an “economic exigency.” In such situations, the em-
ployer may not be required to wait until an impasse is reached before
implementing a layoff. However, in most cases, the employer would
still be required to provide advance notice of the layoffs to the union
and the opportunity for speedy negotiations. These cases have little or
no applicability to the instant case.
4 Respondent appears to suggest that the Union waived its bargain-
ing rights at p. 6 of its brief. I reject such a suggestion. The company
had made it clear long before December that it would not bargain with
the Union about anything. Thus, it would have been a futile gesture for
the Union to have specifically requested bargaining over the layoff or
its effects.
Respondent’s economic fortunes have improved since Decem-
ber 2015. For example, the Latitude project appears to have
commenced as rescheduled in March 2016 (Tr. 104). There is
no evidence that any of the laid-off employees were recalled to
work on that project.
CONCLUSION OF LAW
Respondent, Thesis Painting, Inc. violated Section 8(a)(5)
and (1) by failing to notify the Charging Party Union in ad-
vance of the layoffs of December 8, 11, 28, 2015, and January
18, 2016. Respondent violated the Act in failing to give the
Union the opportunity to bargain over these layoffs and the
effects of these layoffs.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, having unlawfully laid-off Salvador Hum-
berto Rodriguez, Jose Lorenzo Osorio, Orivel Betancourth,
Alba Moran, Rubio Omar Diaz, Jose Inmar Viera, Jose Vicente
Cantor, Francisco Otoniel Pacheco Martel, David Galindo, and
Emiliano Diaz, must offer them reinstatement and make them
whole for any loss of earnings and other benefits. Backpay shall
be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
Respondent must also compensate these employees for their
search-for-work and interim employment expenses regardless
of whether those expenses exceed their interim earnings.
Search-for-work and interim employment expenses shall be
calculated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, supra, compounded daily
as prescribed in Kentucky River Medical Center, supra.
Respondent shall file a report with the Social Security Ad-
ministration allocating backpay for these employees to the ap-
propriate calendar quarters. Respondent shall also compensate
the discriminatees for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering
periods longer than 1 year, Latino Express, Inc., 359 NLRB
518 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Springfield, Virginia, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Laying off unit employees without first notifying the Un-
ion and giving it an opportunity to bargain.
(b) In any like or related manner interfering with, restrain-

5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Offer full reinstatement to Salvador Humberto Rodri-
guez, Jose Lorenzo Osorio, Orivel Betancourth, Alba Moran,
Rubio Omar Diaz, Jose Inmar Viera, Jose Vicente Cantor,
Francisco Otoniel Pacheco Martel, David Galindo, and Emili-
ano Diaz 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.
(b) Make Salvador Humberto Rodriguez, Jose Lorenzo
Osorio, Orivel Betancourth, ASlba Moran, Rubio Omar Diaz,
Jose Inmar Viera, Jose Vicente Cantor, Francisco Otoniel
Pacheco Martel, David Galindo, and Emiliano Diaz whole for
any loss of earnings and other benefits suffered as a result of
their unlawful layoffs in the manner set forth in the remedy
section of this decision.
(c) Compensate these employees for their search-for-work
and interim employment expenses regardless of whether those
expenses exceed their interim earnings.
(d) File a report with the Social Security Administration al-
locating backpay for these employees to the appropriate calen-
dar quarters.
(e) Compensate affected employees for the adverse tax con-
sequences, if any, of receiving lump-sum back awards, and file
with the Regional Director for Region 5, within 21 days of the
date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the ap-
propriate calendar year for each employee.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records 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.
(g) Within 14 days after service by the Region, post at its
Springfield, Virginia facility copies of the attached notice
marked “Appendix” in both English and Spanish. Copies of the
notice, on forms provided by the Regional Director for Region
5 after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition
to physical posting of paper notices, the notices shall be distrib-
uted electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the 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, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since December 8, 2015.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C., January 31, 2017
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT lay you off without giving your collective bar-
gaining representative, International Union of Painters and
Allied Trades, AFL–CIO, District Council 51, advance notifi-
cation and an opportunity to bargain over the lay-off and its
effects.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 this Order, offer
full reinstatement to Salvador Humberto Rodriguez, Jose Lo-
renzo Osorio, Orivel Betancourth, Alba Moran, Rubio Omar
Diaz, Jose Inmar Viera, Jose Vicente Cantor, Francisco Otoniel
Pacheco Martel, David Galindo, and Emiliano Diaz 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.
WE WILL make Salvador Humberto Rodriguez, Jose Lorenzo
Osorio, Orivel Betancourth, Alba Moran, Rubio Omar Diaz,
Jose Inmar Viera, Jose Vicente Cantor, Francisco Otoniel
Pacheco Martel, David Galindo, and Emiliano Diaz whole for
any loss of earnings less any net interim earnings and search-
for-work and interim employment expenses (regardless of inter-
im earnings) and other benefits resulting from their layoffs,
plus interest compounded daily.
WE WILL file a report with the Social Security Administration
allocating these employees’ backpay to the appropriate calendar
quarters.
THESIS PAINTING, INC. 7
WE WILL compensate these employees for the adverse tax
consequences, if any, of receiving one or more lump-sum back-
pay awards covering periods longer than 1 year.
THESIS PAINTING, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/05-CA-167137 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.