Westside Painting

National Labor Relations Board - Board Decisions

Dec 19, 2000

332 N.L.R.B. 1534 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1534
Westside Painting, Inc. and International Brother-
hood of Painters and Allied Trades, District
Council #55, AFL–CIO. Case 36–CA–8067
December 19, 2000
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On September 30, 1999, Administrative Law Judge
William L. Schmidt issued the attached supplemental
decision. The Respondent filed exceptions, 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 supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,1 and
conclusions and to adopt the June 29, 1998 recom-
mended Order as modified.2
ORDER
The National Labor Relations Board adopts the June
29, 1998 recommended Order of the administrative law
judge as modified below and orders that the Respondent,
Westside Painting, Inc., Portland, Oregon, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
“(b) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.”
2. Substitute the following for relettered paragraph
2(c).
“(c) Within 14 days after service by the Region, post at
its Portland, Oregon facility copies of the attached notice
marked ‘Appendix.’6 Copies of the notice, on forms pro-
vided by the Regional Director for Region 19, after being
signed by the Respondent’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. Reasonable steps shall be taken by the Respon-
dent 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 Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since August 18, 1997.”

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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. Further, the Respondent contends that
some of the judge’s findings demonstrate bias. On careful examination
of the judge’s decision and the entire record, we are satisfied that the
contention is without merit.
2 We shall modify the judge’s June 29, 1998 recommended Order to
conform to Excel Container, Inc., 325 NLRB 17 (1997), and to correct
his inadvertent omission of a record’s preservation provision.

Linda Scheldrup, Esq., for the General Counsel.
Sam Boulis, President of Westside Painting, Inc., of Portland,
Oregon, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. On
June 29, 1998, I issued my Decision and Recommended Order
in the above matter finding that Respondent violated Section
8(a)(1) and (3) of the Act by unlawfully interrogating and
refusing to hire applicant Shawn Cotto. Thereafter, Respondent
filed timely exceptions to my decision with the National Labor
Relations Board asserting, inter alia, that I erred in granting the
General Counsel’s motion for approval to take telephonic tes-
timony.
On June 24, 1999, the Board issued its Decision and Order
Remanding to Administrative Law Judge wherein it concluded
that I should have denied the General Counsel’s motion on the
ground that telephonic testimony is not admissible under the
Board’s Rules. Westside Painting, Inc., 328 NLRB 796 (1999).
In its Order, the Board struck the telephone testimony of Shawn
Cotto and remanded the case to me to either reopen the record
to allow the General Counsel to bring in Cotto to testify in per-
son at a hearing, or to proceed on the record without considera-
tion of Cotto’s telephone testimony and to thereafter revise my
findings, conclusions, and recommendations, if appropriate, in
a supplemental decision.
Having now concluded consideration of this matter on re-
mand in accord with the Board’s direction, I make the follow-
ing
FINDINGS OF FACT
A. Action on Remand
On July 7, 1999, I issued an order providing the General
Counsel until the close of business on July 21 to notify me as to
which course of action permitted under the Board’s June 24
Order would be elected by the General Counsel. After granting
the General Counsel’s request to extend the time in which to
reply to July 28, counsel for the General Counsel filed an appli-
cation to take testimony by deposition dated July 28. In sup-
port, counsel for the General Counsel alleged that Cotto was
332 NLRB No. 148
WESTSIDE PAINTING, INC.

1535
confined to a correctional center in East Elmhurst, New York,
and, for that reason, would be unavailable to appear for a re-
opened hearing in Portland. On that same date, I issued an
Order to Show Cause requiring Respondent to show cause on
or before August 6 why the General Counsel’s application
should not be granted. Thereafter, Respondent timely filed its
Objection to Application to Take Deposition. Respondent ar-
gued that its right to due process and a fair hearing would result
from deposing Cotto in lieu of presenting in-person testimony
by Cotto before the administrative law judge as that would
deny the administrative law judge an opportunity to evaluate
Cotto’s demeanor.
Before ruling on Respondent’s objection, counsel for the
General Counsel filed a withdrawal of application to take testi-
mony by deposition. In that withdrawal request, counsel for
General Counsel also requested that I now decide this matter
“on the record without consideration of Cotto’s telephone tes-
timony.” On August 23, I issued an order approving with-
drawal and fixing date for filing of briefs. In this latter order I
granted the General Counsel’s withdrawal of application to take
testimony by deposition and allowed the parties until Septem-
ber 17 to file written briefs containing further argument. The
General Counsel submitted a written brief; Respondent did not.
B. Further Findings and Conclusions
In my original decision, I detailed the conflicting testimony
relative to Cotto’s August 18, 1997 personal interview for a job
as an apprentice painter with Respondent. At that time, I con-
cluded that the account of that interview provided by Cotto and
Gayland Gabbard, Cotto’s instructor at the Timberlake Job
Corps Center in rural Oregon, should be credited over the ac-
count provided by Sam Boulis, Respondent’s owner, and Roy
Porter, a superintendent for Respondent at the time of the rele-
vant event. Based on the credited account of Cotto and Gab-
bard, I further concluded that Respondent violated Section
8(a)(1) and (3) of the Act by unlawfully interrogating Cotto
concerning his union sympathies and by refusing to hire Cotto
after he disclosed his prounion sympathies.
As noted above, the Board struck the testimony of Cotto in
its entirety. In addition, the General Counsel has opted against
seeking to reopen the hearing in order to call Cotto as a witness
in person, or against obtaining and offering a deposition from
Cotto. Accordingly, I have now thoroughly reviewed the record
without giving consideration to Cotto’s prior testimony. Hav-
ing completed that review, I remain convinced Gabbard pro-
vided the more credible account of Cotto’s job interview.
Hence, without regard to Cotto’s corroborating testimony, I
find that Gabbard’s account standing alone is truthful and the
account provided by Boulis and Porter is not for the same rea-
sons specified in my original decision dated June 29, 1998.
Crediting Gabbard’s account as I do, I again find that Re-
spondent violated Section 8(a)(1) and (3) of the Act by unlaw-
fully interrogating Cotto about his union sympathies in the
course of the August 18, 1997 interview and refused to hire him
after Cotto expressed prounion sympathies. In these circum-
stances, I find it unnecessary to revise my June 29, 1998 find-
ings, conclusions, and recommendations. I therefore enter the
following recommended1
ORDER ON REMAND
1. The Respondent, Westside Painting, Inc., its officers,
agents, successors, and assigns, shall take that action specified
in the administrative law judge’s recommended Order of June
29, 1998, in order to remedy the unfair labor practices found in
this case.
2. The record in this case is amended to include the docu-
ments specified in the attached “Appendix” generated after the
Board’s June 24, 1999 Decision and Order Remanding to Ad-
ministrative Law Judge.

APPENDIX
The record in Case 36–CA–8067 shall include the following
documents:
1. Order of administrative law judge dated July 7, 1999.
2. The General Counsel’s request for extension of time to re-
ply to administrative law judge Order dated July 16, 1999.
3. Order of administrative law judge dated July 19, 1999.
4. The General Counsel’s application to take testimony by
deposition dated July 28, 1999.
5. Administrative law judge’s Order to Show Cause directed
to Respondent dated July 28, 1999.
6. Westside Painting, Inc.’s objection to application to take
deposition dated August 5, 1999.
7. The General Counsel’s withdrawal of application to take
testimony by deposition dated August 19, 1999.
8. Administrative law judge’s order approving withdrawal
and fixing date for filing of briefs dated August 23, 1999.

1 If no exceptions are filed as provided by Sec.102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order on Remand 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 purposes.