Valentine

National Labor Relations Board - Board Decisions

Jul 28, 2000

331 N.L.R.B. 883 (N.L.R.B. 2000)

VALENTINE PAINTING & WALLCOVERING 883
Valentine Painting and Wallcovering, Inc. and
Ronald Caputo. Case 29–CA–22752
July 28, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On March 27, 2000, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply 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,1 findings, and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Valentine Painting & Wall-
covering, Inc., Patchogue, New York, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order.

Richard Bock, Esq., for the General Counsel.
Tedd Blecher, Esq.,of New York, New York, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed on May 25, 1999, by Ronald Caputo, an individual,
a complaint was issued on September 21, 1999, against Valen-
tine Painting & Wallcovering, Inc. (Respondent).1

1 The Respondent has excepted to the judge’s rejection of its argu-
ment that the General Counsel used an inappropriate annual time period
to evaluate its purchases in commerce. The General Counsel used the
12–month time period prior to the issuance of the complaint. The Re-
spondent asserts that this is improper, as some of the purchases post-
date the occurrence of the actual labor dispute. However, it is well
established that the Board, when determining jurisdiction, may refer to
purchase data from the 12–month period immediately preceding the
complaint. See, e.g., Continental Packaging Corp., 327 NLRB 400
(1998). Thus, the Respondent’s contention is without merit.
2 We find it unnecessary to pass on the Respondent’s exception to
the judge’s conclusion that the Respondent violated Sec. 8(a)(3) and (1)
of the Act by failing to hire Ronald Caputo because of his union activi-
ties and affiliation. The Respondent’s exception to this conclusion does
not meet the minimum requirements of Sec. 102.46(b)(2) of the
Board’s Rules and Regulations. The Respondent merely cites to the
judge’s conclusion and fails to allege either in its exceptions or its brief
in support thereof the error it contends the judge committed in so con-
cluding, or on what grounds it believes the judge’s decision as to this
violation should be overturned. In these circumstances, we find under
Sec. 102.46(b)(2) that the Respondent’s exception on this point may be
disregarded. Show Industries, 312 NLRB 447, fn. 2 (1993).
1 Respondent’s answer denies knowledge or information concerning
the filing and service of the charge. The charge states that it was filed in
the Regional Office on May 25, 1999. GC Exh. 1, the formal papers,
includes the affidavit of a Board agent who certified that on May 26,
1999, she served the charge by postpaid mail on the Respondent at
113–8 Bay Avenue, Patchogue, New York 11772. Respondent’s an-
swer admits that its sole office and place of business is located at 113–8
Bay Avenue, Patchogue, New York. The Board agent’s signed and
sworn affidavit, as to which there is no evidence disputing its authentic-
ity, is sufficient by itself to establish service of the charge. United
States Service Industries, 324 NLRB 834 (1997).
The complaint alleges that on or about March 11 or 12, 1999,
Respondent failed and refused to hire Caputo because he
joined, supported, or assisted District Council 9, International
Brotherhood of Painters & Allied Trades, AFL–CIO (the Un-
ion), and because of his concerted activities, in violation of
Section 8(a)(1) and (3) of the Act.
Respondent filed an answer and an amended answer to the
complaint, denying the material allegations of the complaint
and on February 8, 2000, a hearing was held before me in
Brooklyn, New York. Upon the evidence presented in this pro-
ceeding, and my observation of the demeanor of the witnesses
and after consideration of the briefs filed by the General Coun-
sel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
A. Respondent’s Refusal to Produce Evidence
The complaint asserts, and the answers deny that the Board
has jurisdiction over Respondent. Jurisdiction is claimed over
Respondent upon the doctrine set forth in Tropicana Products,
Inc., 122 NLRB 121, 123 (1958) which held that:

The Board has determined that it best effectuates the
policies of the Act, and promotes the prompt handling of
cases, to assert jurisdiction in any case in which an em-
ployer has refused, upon reasonable request by Board
agents, to provide the Board or its agents with information
relevant to the Board’s jurisdictional determinations,
where the record . . . demonstrates the Board’s statutory
jurisdiction, irrespective of whether the record demon-
strates that the Employer’s operations satisfy the Board’s
jurisdictional standards.

Section 10(a) of the Act empowers the Board “to prevent any
person from engaging in any unfair labor practice affecting”
interstate commerce. Such a broad sweep, referred to as the
Board’s “statutory jurisdiction” applies when an employer’s
business in interstate commerce is more than “de minimis.”
NLRB v. Fainblatt, 306 U.S. 601, 606 (1939). Although one
respondent’s defense is that it is a small business, “Congress
has set no restrictions upon the jurisdiction of the Board to be
determined or fixed exclusively by reference to the volume of
interstate commerce involved.” Fainblatt, supra.
Because the exercise of its entire constitutionally mandated
jurisdiction would result in an inability to decide any case thor-
oughly and promptly, in 1950 the Board adopted jurisdictional
standards to limit the disputes it would hear to those employers
whose operations met a designated volume of interstate com-
merce. NLRB v. Pease Oil Co., 279 F.2d 135, 137 (2nd Cir.
1960). Under such standards, nonretail businesses such as Re-
spondent’s would have to purchase and receive $50,000 in
goods directly or indirectly from out of state sources.
However, as set forth above, pursuant to Tropicana, the
Board may assert jurisdiction over an employer who has re-

331 NLRB No. 109
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 884
fused to provide the Board with information relevant to the
Board’s jurisdictional determinations. Respondent is such an
employer.
Respondent’s answer to the charge, dated July 15, 1999, de-
nied that it is engaged in commerce or affecting commerce and
stated that the Board lacked jurisdiction over it.
Thereafter, on August 17, a subpoena duces tecum was
served upon the Respondent’s vice president, George DaLoia,
directing him to appear on August 25 and to produce certain
documents relevant to Respondent’s claim that the Board
lacked jurisdiction over it.
On August 25, Board Attorney Richard Bok wrote to Re-
spondent’s attorney, Richard Tedd Blecher, advising that
Blecher’s request for additional time to respond to the subpoena
was granted and the new return date was extended to Septem-
ber 1.
On August 27, Blecher wrote to Bok advising that his client
received the subpoena by certified mail, and that he was “re-
jecting” the subpoena, inter alia, because: (a) inasmuch as the
“Board lacks subject matter jurisdiction, it lacks subject matter
jurisdiction to issue a subpoena even to ascertain if it has sub-
ject matter jurisdiction;” (b) the subpoena was not requested by
a party; (c) no witness or mileage fees were tendered at the time
of service; and (d) the subpoena was not properly served.
On September 21, the instant complaint was issued, alleging
that the Board has jurisdiction over Respondent. The relevant
allegations state:

During the past calendar year, Respondent, in the
course and conduct of its business operations referred to
above in paragraph 2, purchased and received at its Pat-
chogue facility, goods, products, and materials amounting
to more than de minimis, directly from enterprises located
within the State of New York, which enterprises had re-
ceived said products, goods, and materials directly from
points outside the State of New York.
At all material times, Respondent has been an em-
ployer engaged in commerce within the meaning of Sec-
tions 2(2), (6) and (7) of the Act.

In its answers to the complaint, Respondent asserted that the
Board issued an “illegal and improper subpoena requiring al-
most immediate compliance,” reasserted the defenses set forth
in its answer to the charge, and contended that the Board did
not cure those alleged defects or attempt proper service and did
not tender witness or mileage fees.
The answers further alleged that the Board “has made no
good faith effort to ascertain if it has subject matter jurisdiction
of this Complaint and that the issuance of said subpoena consti-
tuted an abuse of process.” The answers specifically denied the
jurisdictional allegation of the complaint set forth above and
“respectfully refers all questions of law to a court with jurisdic-
tion to decide same.” The answers further referred to the
Board’s alleged “improper conduct, illegal issuance and abuse
of process or writ, all of which was done to obtain an improper
legal advantage on the issue of subject matter jurisdiction [and]
has tainted this proceeding and this court should not assist the
Board.”
Respondent’s objections to the subpoena are without merit. It
does not specify in what way the subpoena is illegal or im-
proper. The subpoena was issued on the authority of Section
11(1) of the Act, which provides that an investigative subpoena
may be issued requiring the production of evidence. It was
issued by the Regional Director’s office, a “party” to this pro-
ceeding. Board’s Rule Section 102.8. Its assertion that service
was improper is contradicted by Blecher’s own statement that
his client received it by certified mail, a proper method of ser-
vice. Board’s Rule Section 102.113(c). Witness and mileage
fees need not be paid in advance. As set forth on the face of the
subpoena, such fees are paid upon the presentation of a
voucher.
Respondent argues that the Board must go through the exer-
cise of having its subpoena enforced before it is obligated to
provide the information. I disagree. Numerous cases have ap-
plied Tropicana to unfair labor practice cases in which a sub-
poena had not been enforced. J.E.L. Painting & Decorating,
303 NLRB 1029, 1030 (1991); Charles Parker Co., 285 NLRB
56, 60 (1987).
Respondent further argues that it has not refused to comply
with the Board’s requests for jurisdictional information, stating
that it completed a commerce questionnaire. Although that
document was not received in evidence, it is apparent that Re-
spondent denied that it was engaged in interstate commerce
therein which prompted the service of the subpoena.
It is clear that Respondent has refused, on reasonable request
by Board agents to provide jurisdictional information. Tropi-
cana, supra. Thus, the subpoena calling for jurisdictional in-
formation was served on August 17 providing for a return date
of August 25. Respondent’s request for additional time was
granted, the new return date being set for September 1. Re-
spondent’s answers establish that it has refused to provide ju-
risdictional information. It “rejected” the subpoena and stated
that the Board lacks jurisdiction to issue a subpoena to deter-
mine if it has jurisdiction. Respondent has refused to comply
with the subpoena lawfully issued and served, and I find that
Tropicana applies to this case.
B. The Board has Jurisdiction Over Respondent
Henry Schurman testified in behalf of the General Counsel.
He has been employed by the Sherwin-Williams Company for
10 years and was the manager at its Patchogue store, which
sold paint and other products to Respondent.
Records of Respondent’s purchases established that during
the period August 1998 through August 1999, it purchased a
total of $35,181.94 from the Sherwin-Williams Company. Of
that sum, purchases totaling $29,488.61 consisted of Sherwin-
Williams’ products manufactured at its Fredericksburg, Penn-
sylvania facility and shipped to New York.2
In finding that the Board has jurisdiction over Respondent, I
do not rely on the evidence concerning its work at a public
school. James Rogers, an organizer of the Union, testified that
in the summer of 1997, he photographed Respondent’s employ-
ees while they worked at the John W. Dodd Junior High School
in Freeport, New York. Rogers stated that Respondent per-
formed the work for Northridge Construction. The photographs
depict men painting a mural on the outside of a building. No
authenticated evidence of the amount of the contract was pre-
sented. This evidence is too limited to be relied upon.
The Board has held that $1500 in out-of-state activities “is
more than the trifle or matter of a few dollars, which the courts
have characterized as de minimis.” Marty Levitt, 171 NLRB
739 (1968). Clearly, the purchase and receipt by Respondent of

2 Those products were categorized as architectural products, industrial
maintenance, and brushes and rollers.
VALENTINE PAINTING & WALLCOVERING 885
more than $29,000 in products which originated outside New
York State is more than de minimis.
I reject Respondent’s argument that the period in which the
purchases were made, August 1998 to August 1999, may not be
considered since the complaint, issued in September 1999,
refers to purchases made during the “past calendar year”, which
according to Respondent would be January 1 to December 31,
1998.
In order to properly evaluate an employer’s operations an
annual period is used. Regardless of whether that annual period
is the past calendar year or the last annual period immediately
preceding the issuance of the complaint, the important consid-
eration is that a 1-year period may be expected to be representa-
tive of the employer’s operations. Accordingly, the record of
purchases for the period August 1998 to August 1999, was
properly selected by the General Counsel in order to prove
jurisdiction over Respondent, and was accordingly appropriate.
In addition, that period encompasses the time within which the
unfair labor practice occurred, March 11, 1999. The earlier
period suggested by Respondent would have ended 3 months
prior to the refusal to hire Caputo.
As set forth above, where Respondent has refused to provide
information relevant to the Board’s jurisdictional determina-
tion, only statutory jurisdiction need be proven for the General
Counsel to establish a sufficient basis for the assertion of juris-
diction. Continental Packaging Corp., 327 NLRB 400 (1998).
It is clear that Respondent has refused to provide jurisdictional
information.
I find and conclude that the General Counsel has established
that Respondent’s operations satisfy the Board’s statutory juris-
diction. I accordingly conclude that Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent’s answer denied knowledge or information con-
cerning the labor organization status of the Union.
Ronald Caputo has been a full-time paid organizer for the
Union since October 1998. His duties are to recruit new mem-
bers and contractors and to educate the membership regarding
the benefits of the Union. Caputo testified that the Union has
members and exists in whole or in part for the purpose of en-
gaging in collective bargaining with employers concerning
wages and other terms and conditions of employment.
Based on the above, I find and conclude that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
James Rogers, a union organizer, testified that in the summer
of 1997, four employees of Respondent asked the Union for
help in obtaining proper wages for certain work they were per-
forming.
Eugene Tonissen testified that he worked for about 5 weeks
in May 1998, as a painter for Respondent. At that time he was a
union “salt” becoming employed by nonunion employers in an
effort to organize them.
Tonissen stated that on May 8, he met with Respondent’s
vice president, George DaLoia, in the kitchen of DaLoia’s
home. He told DaLoia that he would like an “opportunity” to
speak on nonwork time with his coworkers in order to organize
the shop. DaLoia told him that he was fired and demanded that
he leave.
Tonissen did not work for Respondent thereafter. Prior to
their May 8 conversation, Tonissen did not tell DaLoia that he
was organizing for the Union.
Caputo has about 15 years experience in the painting indus-
try. He has performed such work as painting, plastering, taping,
spackling, drywall finishing, and skim glazing. He sought to
organize Respondent’s employees.
The following evidence is based on Caputo’s uncontradicted
testimony, DaLoia not having appeared as a witness. An adver-
tisement appeared in the September 30, 1998 issue of Newsday,
a Long Island newspaper. The ad stated:

PAINTER – IMMEDIATE
10 yrs. Must have own transportation. Benefits. 516-289-5100

The following day, October 1, Caputo called in response to
the ad. He testified that DaLoia answered the phone and asked
him to come to his office and complete an application. The next
day Caputo met with DaLoia and filled out an application and
was given a written test. Of the 20 or 25 questions, he answered
only one wrong. DaLoia asked about his experience, gave him
a list of company rules, and told him that he would let him
know.
The list, which is titled “1995–1996 Shop Rules” is on the
letterhead of Peter R. Valentine Painting-Wallcovering. It con-
tained working hours, lunch, and breaktimes, required tools,
paydays, a statement that employees receive one week’s paid
vacation after 1 year of service, a list of paid holidays, a rule
that the employee must call if he is expected to be absent from
work, and the “possibility” of a Christmas bonus if the com-
pany is “financially sound.”
The following day, October 2, DaLoia called and told
Caputo that he was hired for a full-time position at a salary of
$14 per hour. He was told to report to work on Monday, Octo-
ber 5 at 7 a.m. at a specific jobsite to which DaLoia gave him
directions.
On October 5 as Caputo was preparing to leave home to go
to the job, he received a phone call from DaLoia who told him
not to report to work, and that he (DaLoia) would call him later.
That afternoon, not having heard from DaLoia, Caputo called
him and left a message. DaLoia did not return his call that day.
The following day, October 6, Caputo again called and left a
message but DaLoia did not call back. At lunchtime that day,
Caputo visited Respondent’s office and was told by DaLoia that
there was no work. In the following week, Caputo called Da-
Loia and left a message but his call was not returned.
In November 1998, Caputo called DaLoia and left a mes-
sage. DaLoia called back. Caputo asked why he was not being
put to work and DaLoia told him that he did not want to discuss
with him then why he would not use him. Caputo asked
“what’s going on? You hired me. Now you’re not using me.
What’s the story?” DaLoia replied that he would not discuss it
with him.
From November 1998 through January 1999, Caputo did not
contact Respondent since the painting industry is typically slow
in the winter.
An advertisement was placed in the February 28, 1999
Newsday, which was identical to the previous one except this
one added that the position was fulltime.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 886
In response to the ad, Caputo visited Respondent’s office in
early March and spoke with DaLoia. A specific date of the
meeting was not testified to. The complaint alleges that it oc-
curred on March 11 or 12, and no evidence was offered in con-
tradiction of such dates. Accordingly, I find that the conversa-
tion occurred on March 11. Caputo recorded the conversation.3
DaLoia told him “Ron, sit down. Listen, I’m not going to use
you because I heard that you’re involved with union organiz-
ing.” Caputo admitted that he was a union painter and that he
was involved with organizing. DaLoia then said that he did not
want to be organized, and that he could not “have a guy on my
crew like that.” Caputo replied that he would not let his union
activities interfere with his work and that he would be very
productive and was a good mechanic. DaLoia said that he
agreed with that and believed that Caputo would probably be
one of his most productive workers, but that “it did not make
any difference” and that he would not use him “just for the sole
reason of union organizing.”
Another advertisement was placed in the April 25, 1999
Newsday. This ad was identical to the September ad. On April
30, Caputo visited DaLoia in Respondent’s office and recorded
their conversation. A tape and transcript of the recording were
provided to Respondent’s attorney at the hearing. He reviewed
both and stated that the transcript substantially conforms to the
tape recording.4 In addition, Caputo’s testimony as to the meet-
ing essentially corroborated the contents of the transcript.
A synopsis of the relevant parts of the conversation as set
forth in the transcript follows:

Caputo told DaLoia that he saw an ad in the newspaper and
asked whether he would put him to work, referring to the fact
that he had been hired in October, DaLoia was going to put him
to work but then called him on the morning of the job and said
he could not use him. DaLoia told Caputo that he (Caputo) was
already told that he would not be used and had also been told
the reason. The verbatim transcript continues as follows:5

Ron: Why? Just cause of the union?
George: Because of the union, because, not just because
you’re a union painter, I’ve had union painters before but be-
cause you’re gonna try to organize me.
Ron: Well sure man everybody you want everybody
to organize.
George: I don’t want anybody in my shop like that, I
already had someone in my shop like that, its already cost
me money, I’m not gonna put you to work here. I don’t
have any doubts that you’re a good painter, I got no
doubts.
Ron: Oh, I’m an excellent painter, I’m a great me-
chanic.
George: I got no doubts.
Ron: I got fourteen years behind me. I have all my
own tools, I’m qualified.
George: I know we’ve been through this and I believe
you are but I’m not gonna put you on my payroll.

3 Neither the tape of that conversation nor the transcript were offered in
evidence.
4 The original tape was received at the hearing. Following the close of
the hearing, by letter and enclosure dated February 29, 2000 copies of
the tape were served upon me and Respondent’s attorney.
5 In the verbatim part of the transcript which follows, “Ron” refers to
Caputo and “George” refers to DaLoia. The asterisks are in the original
transcript.
Ron: I need some f****** work man. I need to get
back to painting, you’re not gonna use me?
George: I’m not gonna use you Ron.
Ron: Just because of union organizing?
George: Ya.
Ron: I can’t believe this.
George: If you’re working for me and you start that
sh** I can’t fire you it costs me money to do that. You
know, I don’t have enough guys in my shop to have some-
one come in and start trying to organize I don’t make that
kind of money I don’t interfere with union work that they
need to organize me. You know.
Ron: (sigh) alright, see ya, there’s no chance, so I
shouldn’t bother you anytime you put an ad in the paper.
George: Pretty much.
Ron: There’s no way in hell you’ll ever use me.
George: I think you’re a nice guy, you know and I sure you’re
a good painter I talk to ya.
Ron: I am, I am a good guy I love it I love painting.
George: (laugh) I bet you do.
Ron: I mean you talked to Louie right? He told you
I’m a decent mechanic, right?
George: Yea
Ron: And I can run a crew.
Ron: But because of the union I’m out and that’s it cut
and dry.
George: Cut and dry. I ain’t bullshitting you I’m not
gonna beat around the bush and give you any kind of ex-
cuse this is why I’m not, this is, this is it.
Ron: I’ll see ya.
Ron: Hey George, have you ever talked to any of the
business agents over at the local?
George: No.
Ron: I mean like to try to develop a good relationship
to see if there is any kind of contracts that they negotiate
for your kind of work. Or you’re not just interested in or-
ganizing all together.
George: I’m not interested.
Ron: F***, it ahh man alright.
George: I got enough problems.
Caputo testified that he last worked in the trade actively as a
painter in November 1999. Prior to that time he worked part-
time as a painter and also as a union organizer. He testified that
he could work full-time for Respondent and at the same time as
a paid union organizer.
B. Analysis and Discussion
The complaint alleges that Respondent unlawfully failed and
refused to hire Caputo.
It is General Counsel’s initial burden to prove that the union
activities of Caputo was a motivating factor in the alleged re-
fusal to hire him. Wright Line, 251 NLRB 1083 (1980). Once
this has been proven, the burden shifts to Respondent to estab-
lish that it would have refused to hire him even in the absence
of such activities. Wright Line, supra.
The evidence establishes and I find that Caputo was an or-
ganizer for the Union, that he sought employment by Respon-
dent and was hired, and thereafter he was refused hire and em-
ployment by Respondent because it believed that he was a Un-
ion organizer.
Thus, in late September 1998, Caputo responded to an adver-
tisement for employment by Respondent, was interviewed, and
VALENTINE PAINTING & WALLCOVERING 887
1 day later was hired by DaLoia, and was told to report to work.
Immediately prior to leaving his home for work Caputo was
told by DaLoia not to report. Thereafter, DaLoia avoided
Caputo, not returning his calls and refusing to discuss the rea-
son for his refusal to employ Caputo. Finally on March 11 and
on April 30, 1999, DaLoia told Caputo the real reason for not
putting him to work.
In both conversations, DaLoia admitted that he believed that
Caputo was a union organizer, that he did not want Respondent
to be organized and could not have a union organizer on his
crew. DaLoia also conceded that he believed that Caputo would
be a productive worker, and notwithstanding he had just placed
advertisements for experienced painters he refused to employ
Caputo.
Animus toward the Union is amply supplied in DaLoia’s
admission that he believed that Caputo was a union organizer,
he would not hire a union organizer, would not tolerate union
organizing, and his refusal to hire Caputo in retaliation for his
union activities. Stark Electric, 327 NLRB 518 fn. 2 (1999). A
refusal to hire union organizers violates the Act. Brown & Root
USA, Inc., 319 NLRB 1009 (1995). See NLRB v. Town &
Country Electric, Inc., 516 U.S. 85 (1995). Animus is further
established in Respondent’s discharge of Tonnison for asking
to speak to employees in an effort to organize them.
I accordingly find and conclude that Caputo’s union activi-
ties and affiliation was a motivating factor in Respondent’s
refusal to hire him. Wright Line, supra.
Having made such a finding, the burden shifts to Respondent
to prove that it would have refused to hire Caputo even in the
absence of his union activities or affiliation. Wright Line, supra.
Following the close of the General Counsel’s case, Respon-
dent rested without presenting any witnesses or evidence. The
General Counsel stated at the hearing that he had subpoenaed
Respondent’s vice president DaLoia to appear at the hearing.
Respondent’s attorney stated that he told DaLoia to “be on call”
and “be available.” Accordingly, DaLoia ignored the subpoena.
His attorney advised him not to come in, but to “be on call.”
Respondent’s attorney’s attempts to contact DaLoia were un-
successful.
Respondent cannot complain about its failure to present a de-
fense. DaLoia ignored the subpoena and did not see fit to be
present at the hearing or contact his attorney. Respondent made
no request for postponement to permit DaLoia to be present,
and following the close of the hearing, no motion to reopen was
made. Respondent’s attorney’s only request at the hearing was
that he sought to have his client listen to the tape recording.
This presumably was accomplished by General Counsel’s mail-
ing the tape to the attorney on February 29. I received a copy of
the tape on March 1 with a notation that a copy of the tape was
sent to Blecher on the same date. Presumably, Respondent re-
ceived it at about the same time. I received no motion that the
tape was inaccurate. Respondent’s brief, filed 2 weeks after the
tape was sent, was solely concerned with the jurisdictional
issue. It did not address the merits of the alleged unfair labor
practice.
Accordingly, Respondent presented no defense at the hearing
concerning its reasons for refusing to hire Caputo. However, its
answer to the charge set forth the defense that Respondent did
not hire Caputo because it “has a small business consisting of
three employees and because of personality differences per-
ceived or felt by the principal” of the Respondent.
The fact that Respondent may be a small business is not a
defense to a violation of the Act. With respect to the alleged
personality differences between DaLoia and Caputo, the only
personal contact between them was three meetings. Immedi-
ately after the first, Caputo was hired. The next two consisted
of DaLoia’s explaining that he was refusing to hire Caputo
because of his Union activities.
I agree with Respondent that DaLoia “perceived or felt” a
personality difference between himself and Caputo. Caputo’s
personality drove him to organize Respondent’s employees.
DaLoia’s personality led him to be unlawfully opposed to such
an effort. Even assuming a personality difference, the Board
has found “an alleged ‘personality conflict’ to be an insufficient
reason for not hiring a job applicant where the evidence other-
wise shows unlawful discrimination.” Queen Mary, 317 NLRB
1303, 1310 (1995) citing Brownsville Garment Co., 298 NLRB
507, 508 (1990). Here, of course, compelling evidence of
unlawful discrimination has been established.
In addition, Respondent’s answers to the complaint set forth
certain affirmative defenses including that Caputo: (a) did not
apply for a job with Respondent in good faith and had no sin-
cere intention of working full-time for Respondent; (b) lacked
the skills and experience to be a competent painter/and or wall-
coverer to be hired, and if hired would be promptly terminated;
and (c) failed to mitigate his damages by actively seeking em-
ployment elsewhere.
None of these defenses have merit. The Supreme Court has
held that a paid union organizer is an “employee” within the
meaning of the Act. NLRB v. Town & Country, supra. There is
no evidence that Caputo did not apply for work in good faith. In
fact, he was prepared to report to a job when he was called and
told not to do so. He also testified that he could work full time
for Respondent while working as a paid organizer. Ferguson
Electric Co., 330 NLRB 514 (2000). Contrary to Respondent’s
answer that Caputo did not possess the skills to be hired,
Caputo was in fact hired in early October after describing his
experience to DaLoia. In addition, DaLoia told Caputo he had
no doubt that he was a good painter, had confirmed that with
reference Louie, and stated that Caputo would be one of his
most productive workers. The issue of Caputo’s obtaining in-
terim employment and mitigating his damages is a compliance
matter and is not relevant to this proceeding.
Respondent’s answer admits that DaLoia is its vice presi-
dent, and “has been an agent thereof while acting lawfully on
its behalf and that any illegal acts were outside the scope of his
agency and authority.” The evidence establishes that DaLoia
hired and fired employees and is a supervisor within the mean-
ing of Section 2(11) of the Act. His acts, whether legal or ille-
gal, are binding upon Respondent. Springfield Air Center, 311
NLRB 1151 (1993).
Accordingly, I find that Respondent has not met its burden of
proving that it would have refused to hire Caputo even in the
absence of his Union activities or affiliation. Wright Line, su-
pra.
CONCLUSIONS OF LAW
1. Respondent, Valentine Painting & Wallcovering, Inc., is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. District Council 9, International Brotherhood of Painters
& Allied Trades, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 888
3. By failing and refusing to hire Ronald Caputo on March
11, 1999, because of his union activities and affiliation, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily refused to hire
Ronald Caputo, it must offer to hire him, and make him whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Valentine Painting & Wallcovering, Inc.,
Patchogue, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing or refusing to hire applicants for employment be-
cause they are members of a union or because they are union
organizers for District Council 9, International Brotherhood of
Painters & Allied Trades, AFL-CIO, or any other union.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Ronald
Caputo a job for which he was denied employment, or if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Ronald Caputo whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusal to hire, and within
3 days thereafter notify the employee in writing that this has
been done and that the refusal to hire will not be used against
him in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Patchogue, New York, copies of the attached notice

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
marked “Appendix.”7 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt 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 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 in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since March 11, 1999.
(f) 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.

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 the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT fail or refuse to hire applicants for employment
because they are members of a union or because they are union
organizers for District Council 9, International Brotherhood of
Painters & Allied Trades, AFL-CIO, or any other union.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL within 14 days from the date of this Order, offer
Ronald Caputo a job for which he was denied employment, or
if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
WE WILL make Ronald Caputo whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against.
WE WILL within 14 days from the date of this Order, remove
from our files any reference to the unlawful refusal to hire, and
within 3 days thereafter notify Ronald Caputo in writing that
this has been done and that the refusal to hire will not be used
against him in any way.

VALENTINE PAINTING & WALLCOVERING, INC.
7 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.”