Altemose Construction Co.

138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Altemose Construction Company and Energy Con- tracting Co. and Norman Young and John J. Zaleski. Cases 4-CA-6396 and 4-CA-6400 April 18, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 20, 1973, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief,' and General Counsel filed a brief in answer to Respondent's exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent Altemose Construc- tion Company and Energy Contracting Co., their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 The Respondent has requested oral argument This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C.A 3, 1951) We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge: This proceed- ing, with all parties represented, was heard on various i The original charge in Case 4-CA-6396 was filed on April 5, 1973, a copy of which was served on "Altemose Companies" by registered mail on the same day. An amended charge in that case was filed on May 30, 1973, copies of which were similarly served on the Respondents, Altemose Construction Company and Energy Contracting Co., on the same day In Case 4-CA-6400, the original charge was filed on April 9, 1973, with a copy being served on "Altemose Companies" by registered mail on the date of filing. The amended charge in the latter case was filed on May 30, 1973, copies of which were similarly served on the Respondents on the same day. 2 Section 8(axl) of the Act makes it an unfair labor practice for an dates from July 26 to August 24, 1973, in Philadelphia, Pennsylvania, on the consolidated complaint of the General Counsel issued on May 31, 1973,1 and the answer of Altemose Construction Company and Energy Contract- ing Co., herein called Altemose Construction and Energy, respectively, and the Respondents collectively. The issue presented by the pleadings, as clarified at the hearing, is whether the Respondents, as joint employers, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended,2 discharged plumbers John J. Zaleski and Norman Young on February 28, 1973, because they engaged in protected union and concerted activities. At the close of the hearing, the Respondents made motions to dismiss the complaint. Ruling on these motions was reserved. Thereafter, the General Counsel and the Respon- dents filed briefs in support of their positions. The motions are denied in accordance with my findings below. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENTS Altemose Construction, a Pennsylvania corporation, with its principal office and place of business in Center Square, Pennsylvania, is a general contractor in the building and construction industry. In the regular course of its operations Altemose Construction annually performs out-of-state services valued in excess of $50,000 and annually purchases goods or services from outside the Commonwealth of Pennsylvania also valued in excess of that amount. Energy, a Pennsylvania corporation , with its principal office in Center Square , Pennsylvania, is a plumbing subcontractor in the building and construction industry. It annually performs services for Altemose Construction valued in excess of $50,000. It is conceded, and I find, that Altemose Construction and Energy are employers, each of whom is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction,' Issues The discharge of John J. Zaleski and Norman Young occurred while employed as plumbers on the Sheraton Hotel and office building project under construction at Valley Forge Plaza, King of Prussia, Pennsylvania. The general contractor of this project is Altemose Construction employer "to interfere with , restrain, or coerce employees in the exercise of the rights guaranteed in section 7." Insofar as pertinent, Section 7 provides that "[e ]mployees shall have the right to self-organization , to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection :' Section 8(a)(3), with certain qualifications not material herein, prohibits an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ...." 210 NLRB No. 35 ALTEMOSE CONSTRUCTION CO. 139 and Energy is the plumbing subcontractor. Both compa- nies are nonunion employers and are wholly owned subsidiaries of Altemose Enterprises which also has a proprietary interest in the project. Since about 1971 Altemose Construction and the Building and Construction Trades Council of Philadelphia and Vicinity and affiliated unions, herein collectively called the Trades Council, have been involved in a continuing labor dispute.3 On June 5, 1972, about 1,000 persons appeared at the Valley Forge Plaza project and caused the destruction of the encircling fence, vehicles, and other equipment and property of the estimated value of $350,000. On application of Altemose Construction, the Court of Common Pleas of Montgomery County, Pennsylvania, granted a preliminary injunction4 which was still in effect, with modification, at the time of the hearing in the unfair labor practice case. As far as it appears, no charges have been filed with the Board against the Trades Council which is not a party to the instant proceedings. Testimony was furnished by the Respondents that various acts of violence, sabotage, and intimidation of employees and subcontractors have occurred since the issuance of the injunction . The Respondents assert that such conduct was designed to prevent completion of the project. About 2 months after the June 5 events, Zaleski and Young were hired to do plumbing work on the Valley Forge Plaza project. They were discharged on February 28, 1973, under circumstances which will be later discussed below. In an effort to justify the discharges, the Respon- dents at the hearing repeatedly accused Zaleski and Young of collusion with the Trades Council and engaging in a slowdown, sabotage, and other unlawful acts in further- ance of the Trades Council's objective of preventing the completion of the project. However, as later found, the record is absolutely devoid of any evidence of such complicity or involvement in illegal conduct by Zaleski and Young.5 The General Counsel contends that the discharges were prompted by Zaleski's and Young's protected concerted and union activities unrelated to any specific labor organization. Denying such motivation, the Respondents argue that the reason for the terminations was their "lack of productivity, which was either due to their lack of competence . . . or was the result of an intentional effort to slow down and sabotage construction in order to assist the . . . Trades Council in its war against Altemose." Also seriously contested is the question of Altemose Construc- tion's responsibility for the discharges, as a joint employer with Energy, which Altemose Construction insists it is not. According to the Respondents , the Trades Council and affiliated unions have been seeking to unionize the project with members of their organizations. A letter from the attorneys for the Trades Council dated May 31, 1972, to the attorneys for Altemose Construction asserts that the Trades Council was protesting the substandard wage and benefit conditions of employment prevailing on this project 4 Altemose Construction Company v. Building and Construction Trades Council of Philadelphia and Vicinity, et at, No. 72-6295, decree entered June 12, 1972, affd as modified by the Supreme Court of Pennsylvania , Eastern District, on Oct. 20, 1972, cert. denied 411 U.S. 932(1973). S The Respondents assert in their brief that they were improperly precluded from establishing "the connection between the Charging Parties and the .. Trades Council" and from producing testimony "tying [Zaleski and Young j into an overall conspiracy to further the objectives of the Finally, the Respondents urge that the unfair labor practice charges were "fraudulent" and were issued "pursuant to a scheme to injure Altemose Construction Company" and that the naming of that company as a Respondent was "the result of influence having been brought to bear in an attempt to subvert the processes of this Board." Before considering the evidence relevant to the substan- tive issues in this case, it may well be appropriate first to dispose of the Respondents' abuse of process argument. Clearly, the Board has the responsibility to safeguard its processes against abuse. Here, however, not a scintilla of evidence was adduced by the Respondents to show that any improper intervention or influence occurred in this case or that the unfair labor practice charges were otherwise fraudulently filed. Instead of presenting such evidence, the Respondents, relying on an article appearing in the New York Times on July 1, 1973, sought at the hearing to explore the truth of the allegations therein contained by interrogating one present and two former Administration officials concerning their involvement in the Trades Council's appeal to the Supreme Court of Pennsylvania taken in the injunction proceedings men- tioned above, as well as their involvement in other matters wholly unrelated to the instant unfair labor practice case. Because of the patent irrelevance of the testimony sought to be developed, the Respondents were precluded by me from pursuing this line of questioning which might more suitably be the subject of investigation in another forum. I, accordingly, adhere to my rulings rejecting the Respon- dents' offer of proof and find no abuse of process shown in the present case. B. The Evidence 1. The employment of Zaleski and Young; their union and concerted activities About July 26, 1972, Zaleski, with 20 years' experience in the steamfitting and plumbing trades,° applied for employ- ment as a plumber at the "Altemose" office building in Center Square, Pennsylvania, which houses the offices of Altemose Enterprises and its more than 20 wholly owned subsidiaries, including the Respondents, Altemose Con- struction and Energy. After filling out a job application form which was given to him, Zaleski was interviewed by Roger Altemose, vice president of Altemose Enterprises and Altemose Construction. Zaleski related his plumbing and steamfitting background and Roger Altemose, in turn, explained the nature of the job and project, the wage rate Trades Council." The record more than adequately refutes these assertions 9 The Township of Caln, Thorndale , Pennsylvania, issued certificates to Zaleski in 1972 and 1973 certifying that he was registered as a master plumber for those years in accordance with the Township Ordinance 1969-7. The Respondents were not permitted to litigate at the hearing the propriety of the issuance of these certificates and their subsequent motion to reopen the hearing for such purpose was denied on the ground that the evidence sought to be adduced related to collateral matters having no material bearing on the resolution of the critical issues in this case . As it is undisputed that registration as a master plumber was not a qualification for employment as a plumber on the Valley Forge Plaza project and as it is also clear that Zaleski was not discharged for failing to have proper registration, I adhere to my rulings. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and available benefits, and the potential of year-round work furnished by Altemose Construction. Roger Alte- mose then hired Zaleski at $5.50 per hour and told him to report to James (Jim) Dull, the manager of the plumbing operations at the project, the following day. Altemose also inquired of Zaleski whether he knew other plumbers who would be interested in a job and Zaleski named Young whom he agreed to bring to the jobsite. Young is a friend of Zaleski with whom he had worked for years. Since Zaleski had difficulty locating the project, he arrived late. There he met Manager Dull who informed Zaleski that he was the first plumber hired; questioned him about his experience; explained the great amount of plumbing work that had to be performed; and assured him of the opportunity to work long hours. Zaleski, however, expressed his desire not to work Saturdays.? He also advised Dull that his friend, Young, was going to report for work the following Monday, July 31. On the indicated day, Zaleski and Young arrived at the jobsite where Young completed a job application and was interviewed by Dull. Young informed Dull of his plumbing and pipefittmg experience, which began in 1951, and was hired as a plumber at the same hourly rate of $5.50 as that given to Zaleski. Dull outlined for Young's benefit the hours, starting and quitting time, breaks, holidays, and other terms of employment. Like Zaleski, Young expressed his preference to be off Saturdays and Dull tacitly consented. Both Zaleski and Young worked under Dull's supervision and since November 1972 under Robert Wheale's supervision, too, when Wheale became Dull's assistant.8 In December, Wheale was promoted to fore- man. In the early part of January 1973, Zaleski and Young received a 25-cent hourly wage increase. From the inception of their employment Zaleski and Young were openly critical of the plumbers' wage rates, the unsafe conditions, the poor housekeeping, and other working conditions at the jobsite, making their views known to the other plumbing employees. In these discus- sions, which usually occurred during the employees' free time, Zaleski and Young compared the plumbers' wage rates and working conditions with those prevailing on union jobs, which they asserted were far superior. In addition, they pointed out advantages and benefits of unionization and succeeded in arousing the plumbers' interest in union representation.9 Both Manager Dull and Foreman Wheale were aware of these discussions and of Zaleski's and Young's prounion sentiments and support for union representation. Indeed, Wheale participated in some of these discussions, at times voicing his disagreement with their views and expressing satisfaction with existing working conditions. In fact, Wheale acknowledged at the hearing that Zaleski and Young "did make quite a stink 7 Zaleski credibly testified, without contradiction, that he worked the first Saturday after being lured but never thereafter It appears that he was never reprimanded for not working on Saturdays. 8 Wheale began working as a plumber on the jobsite the same day Young was employed 9 During his prior employment with Beloit Eastern Corporation, Zaleski was shop steward for a local of the United Steelworkers Union, which represented Beloit 's employees In that capacity, Zaleski handled employee grievances. Young, who also was employed by that company, held various union offices, including that of president. 10 It is not important to determine whether this visit occurred during the about a lot of conditions." In early December 1972, when Zaleski disapproved Wheale's requiring plumbers to stand on four or five cinder blocks to perform certain work, Zaleski called a meeting of the plumbers in the plumbing shop before work started the next morning and, in the presence of Dull and Wheale, cautioned the plumbers to use secure scaffolds, and not to lift and carry heavy loads by hand and declared that safety conditions must improve. On this occasion, Zaleski made and posted a safety sign urging the plumbers to be careful in the performance of their duties. On another occasion, when Zaleski found fault with a particular situation on the job, Wheale reminded him that he was not on a union job and that plumbers were to do their work the Company's way. Young on several occasions, in a spirit of levity, needled Dull when Dull undertook to do plumbing work by calling for a nonexistent shop steward to observe Dull's perform- ance of rank-and-file duties. At one time, Dull told Young to cease making those remarks. In the winter time, when picketing was in progress in front of the gates, Young defended the pickets' right to engage in peaceful picketing against comments by employees and Wheale to run them over when the employees and Wheale drove into the jobsite to go to work. Because of their prounion views and advocacy, Zaleski and Young were frequently greeted by fellow employees as "the union men." Between December 14, 1972, and January 1973 Zaleski and Young began to poll employees regarding their desires for union representation. According to Zaleski, he even made the inquiry of Dull and Wheale. After virtually all the plumbers expressed approval of union representation, Zaleski and Young visited Steamfitters Local 420 in Norristown to enlist its help in organizing the plumbers. However, nothing came of this effort when, following some discussion, Business Agent Edward J. Fitzpatrick indicated a lack of interest.io On December 22, 1972, at a Christmas party given by Altemose Construction on the jobsite, Zaleski and Young engaged Leon Altemose, the president of that Company, in a conversation in which Zaleski or Young proposed that Leon Altemose form an independent or company union like the one at Philadelphia Electric Company. Altemose rejected the idea.il 2. The February 26 Riverside Speakeasy meeting; Zaleski's coffee break grievance In the evening of February 26, 1973,12 Leon Altemose held a meeting at the Riverside Speakeasy to which all employees working on the Valley Forge Plaza project, including those of subcontractors, were invited. The purpose of the meeting, as stated in the'notice, was "to Christmas season or a month later or the specific reason Fitzpatrick gave Zaleski and Young for his lack of interest in organizing the plumbers. Fitzpatrick testified that, although his union did not represent plumbers, he would have passed on the information acquired from Zaleski to Local 690 which had jurisdiction over plumbers, had he been agreeable to the idea of organizing the plumbers at the Altemose jobsite 11 It is unnecessary to the issues in this case to resolve the conflicting testimony as to whether an "independent" or "company union" was suggested and the nature of Altemose's response. Leon Altemose testified that he thought Zaleski and Young were inebriated on this occasion. 12 Unless otherwise indicated, all dates refer to 1973. ALTEMOSE CONSTRUCTION CO. 141 inform our employees of the Company's current position regarding the union problem and also let you know what our plans are for the future . . . [and] to bring you up-to- date on all of the activities of the Company." Leon Altemose and Attorney Pelino addressed the assembled group. In substance, they reported on the status of the pending injunction proceedings which the Company had previously brought against the Trades Council. They discussed the problems of violence, sabotage, vandalism, and destruction of property that the Company was experiencing on the jobsite and the security and precau- tionary measures that had to be taken. Among these measures was a polygraph test which the employees were requested to take on a voluntary basis. In addition, the employees were urged to be on the alert for suspicious conduct and circumstances and to report to the Company incidents of violence and threats so that affidavits may be prepared. Leon Altemose also used this occasion to inform the employees about jobs which were coming up and the employment opportunities which would thus be available to them.13 Immediately after the meeting, Zaleski, Young, Richard Thompson, and another plumber approached Roger Altemose. Young told Roger Altemose that he would gladly take the polygraph test but that he wanted him to know that during his prior employment he was president of a union and held other offices in that organization. Roger Altemose made no response. Young departed as the subject of Foreman Wheale's action in terminating a coffee break was raised. It appears that on the morning of February 26, Wheale tried to locate the plumbers at their assigned work places but found them, instead, taking a break in the plumbing shop before the bell rang signaling the beginning of the coffee break. As a result, when the bell did ring shortly thereafter for the start of the break, Wheale ordered the men back to work. Young testified that the reason the plumbers had taken their break prematurely was that sometimes they did not hear the bell and on this occasion somebody had shouted breaktime. Disgruntled over Wheale's action, Zaleski, in the presence of the other plumbers, complained to Roger Altemose at the Speakeasy that Wheale had unjustifiably deprived the plumbers of their coffee break. Roger Altemose replied that he would look into the matter. When Wheale joined the group, Wheale gave his account of the incident to Roger Altemose, adding that Zaleski and Young were "dogging it" on the job. After Roger Altemose walked away, Wheale, evidently angered by Zaleski's complaint to Roger Altemose, became involved in a heated argument with Zaleski in the presence of Thompson and another employee. Zaleski testified that Wheale stated that he would see to it that Zaleski would "go down the road in the next day or two" because of his union activities and that he (Zaleski) retorted that Wheale 13 The foregoing findings are based on my appraisal of all the testimony on this subject. I further find that similar remarks were made by Leon Altemose and Pelmo in prior speeches delivered by them on thejobsde In coming to these conclusions, I am not persuaded by the testimony of Zaleski and Young that Leon Altemose also stated in his February 26 and prior speeches that employees who engaged in union activities would be weeded out or that Leon Altemose requested employees to be on the alert lacked the power to fire him. Zaleski further testified that Wheale then threatened to take him outside and that this evoked his (Zaleski's) query whether Wheale would take his gun with him. Thompson corroborated Zaleski that Wheale threatened to see Zaleski "go down the road" the next day and that Zaleski responded that Wheale lacked the authority to do so. However, Thompson testified that he did not hear Wheale say that he would take the threatened action on account of Zaleski's union activity nor did he hear the union mentioned at that time. He also testified that Wheale threatened to take Zaleski outside in the parking lot. Wheale, on the other hand, denied that he threatened to fire Zaleski or to see him "go down the road" for union activity, although he admitted that Zaleski told Wheale that he did not have the right to fire him and that if Wheale had that right to fire him to do it then and there. Wheale further testified that he answered that he had the power to discharge only on working time. Wheale also denied that he threatened to take Zaleski outside or that the latter questioned him about his gun. I find Zaleski's account, insofar as it is corroborated by Thompson's testimony plausible under the circumstances which provoked the heated argument between Wheale and Zaleski and I therefore credit it in those respects. In so doing, I am not entirely convinced that Wheale expressly mentioned Zaleski's union activity as the reason he would see him "go down the road," although it appears to me that it was Zaleski's complaint to Roger Altemose concerning the coffee break incident-a protected concerted activi- ty-that brought about the confrontation between Wheale and Zaleski. 3. Dull's threat of discharge ; the termination of Zaleski and Young on February 26 On the morning before the Speakeasy meeting, Manager Dull came up to the fifth floor of the building where Zaleski was working and told him that he was "getting all kinds of hell from the office on account of . . . [the plumbers'] union activities." Pointing out that other tradesmen could overhear the plumbers' discussions, Dull declared that these union activities must stop and that he did not intend to lose his job because of such activities. Moreover, he added, he now had the power to fire plumbers and would exercise it if union activities persist- ed.14 On the morning of February 28, before the plumbers proceeded to their work stations, Dull addressed them. He stated that he understood that someone was bringing tales to the Company about their union activities but that he did not know who it was. Observing that union activity was going on right under his nose which might cost him his job, Dull ordered that the plumbers so involved-and they for such union activities. I find that Zaleski and Young misinterpreted Altemose's remarks which were really directed against asserted acts of violence and sabotage by the unions with which Altemose Company was involved in a dispute. 14 These findings are based on Zaleski's credible testimony and, as discussed below, Dull effectuated his ominous warning 2 days later. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knew who they were-should put a stop to it or risk discharge.15 About 4:30 p.m., when Zaleski and Young were preparing to leave for the day, Dull told them to see him in the plumbing shop before they left. Shortly thereafter, Zaleski and Young went to the plumbing shop where Dull summarily discharged them . This action was taken in the middle of the workweek and before the regular payday.16 In crucial respects, there is an irreconciliable conflict in testimony as to what had transpired on this occasion. According to the mutually corroborative testimony of Zaleski and Young,l1 the following occurred : Dull in- formed Zaleski and Young that they were relieved of their duties because of their union activities and indicated that he was acting on orders from the front office . When Young asked for clarification, Dull answered that there were "other little things," adding that other tradesmen must have heard them talking union and turned them in. Young then inquired whether Dull was referring to his remarks which he had made to the plumbers during lunchtime when he said that he would buy a Volkswagon bus, paint it red, white, and blue, and take all the plumbers to a union job.18 Dull replied in the negative, declaring that he had never heard of that incident . Dull then commented that he had no intention of being fired on account of their union activities. This elicited Zaleski's response that he had engaged in union discussions only on his free time but never dung working hours. In the course of the conversa- tion, Dull advised them to apply for unemployment compensation and indicated that the Company would cooperate in seeing that they received it. In addition, Dull suggested that they tell the unemployment insurance office 19 that they were terminated because of lack of materials which the pickets prevented from being delivered to the project. Substantiating Zaleski's and Young's testimony in significant part is the testimony given by Anthony Stella, a plumber still employed in that capacity on the Valley Forge Plaza project, and Richard Thompson, a former employee. Stella testified that he waited for Young outside the plumbing shop door, which was open, when he heard Dull say that he was relieving "you fellows " of their duties because of their union activity. He also testified that upon hearing this he decided to leave and wait for Young in the parking lot. Thompson testified that at the time of the discharge he was in the plumbing shop getting some of his tools to take home with him. His presence there is confirmed by Zaleski and Young. Thompson further testified that while gather- ing his tools he heard Dull say that Zaleski and Young were being relieved of their duties because of their union 15 These findings are based on Zaleski's credited testimony which was not specifically contradicted. 16 The discharge occurred on a Wednesday The workweek normally ended on a Sunday and employees regularly received their pay on the following Thursday. 17 Whatever variations there are in their testimony, they relate to matters of no consequence. 18 According to Young's uncontradicted testimony, this incident occurred during the lunch period on the day of his and Zaleski's discharge, when the plumbers were discussing what would happen if the pickets did not let them enter the project Young, in a humorous vein, assured the activities and that he (Thompson) left the shop when Young began to ask Dull some questions. Dull categorically denied that he told Zaleski and Young that he was firing them for union activities or that he was acting on orders from anyone and gave the following version of the discharge conversation : After closing the door and with nobody else in the shop, he informed Zaleski and Young that he had to let them go . When asked why, he told them that they were "non-productive, they weren't producing." At one point, Young inquired whether their discharge had anything to do with the Volkswagon statements he (Young) had made to the plumbers. Dull answered in the negative and Young proceeded to relate that he told the plumbers that he would paint a Volkswag- on bus red, white, and blue and take all of them to Limerick . Dull admitted that he mentioned unemployment compensation to Zaleski and Young for the reason that he terminated them at a time of the year when it was practically impossible to obtain a construction job and he felt obligated to them because they had helped start the plumbing operations at the project. He also admitted that he told them that they could give the unemployment compensation office "another reason" for the layoff; namely, lack of material. I find that Zaleski's and Young's testimony concerning their discharge conversation with Dull has the ring of truth, although unquestionably it is not common for an employer bluntly to inform employees that their termination was on account of their union activities . Here, Dull admitted that he suggested to Zaleski and Young that they give a false reason for their discharge-lack of materials-to the Bureau of Employment Security to obtain unemployment benefits. Had Dull really told Zaleski and Young that it was their poor productivity that brought about their discharge, this reason would obviously have been sufficient to qualify for benefits and there would be no need for the falsification. In these circumstances, the only logical explanation for Dull's suggestion is his reluctance that Zaleski and Young mention his acknowledged illegal ground for the discharge-their union activities. Also supporting the credibility of Zaleski's and Young's testimony is the corroboration supplied by Stella who, as an employee still employed on the project, would hardly fabricate testimony against his Employer and thus incur his Employer's displeasure.20 Moreover, Thompson's testimony further confirms the testimony that Dull mentioned to Zaleski and Young that it was their union activities which caused their termination . As indicated previously, Thompson candidly testified that, when Fore- man Wheale on February 26 threatened Zaleski to send him down the road, he did not hear Wheale state that it was for union activities, as Zaleski testified. I am not plumbers that they need not worry because he would get a Volkswagon bus, paint it red, white, and blue, put stars on it, and take all of them to Limerick to work Young further testified that his reference to Limerick was to a unionjob which a newspaper reported was going to open up in that area. He also testified that Foreman Wheale was present , although Wheale denied that he ever heard about a Volkswagon bus incident . Young testified he had also made similar remarks on another occasion 19 The full name of that office is Bureau of Employment Security, Department of Labor and Industry, Commonwealth of Pennsylvania. 20 Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2. ALTEMOSE CONSTRUCTION CO. 143 persuaded that Thompson was not equally forthright when he testified that he heard Dull tell Zaleski and Young that they were being terminated for such reason. In view of the foregoing, I credit the testimony of Zaleski and Young, as well as that of Stella and Thompson, concerning the discharge conversation, which reveals an effectuation of Dull's prior ominous warnings. Dull testified that he alone was responsible for the discharge decision, which was professedly not an easy one to make, and that he relied solely on the complaints of Foreman Wheale and his own personal observation of Zaleski's and Young's poor performance. Elaborating, Dull testified that Wheale complained to him on at least six different occasions that Zaleski and Young were not producing; that he informed Wheale that he would take care of the matter, which he did by assigning Zaleski and Young to work they were capable of performing; and that he finally terminated Zaleski and Young after Wheale "pointed out to . . . [him] that it was almost a matter of either them or him [Wheale]" and he had to back up his foreman in the field. Dull further testified that, in making his decision, he also weighed the instances of Zaleski's and Young's nonproductivity, their refusal to work on Satur- day,21 and their taking breaks before the whistle blew.22 Dull, moreover, explained that the reason for not discharg- ing Zaleski and Young sooner in the face of their persistent deficiencies was his policy to give employees three or four chances to improve, which he had given Zaleski and Young. However, Dull conceded that they were never informed that they were being given another chance and that they were never otherwise warned that they risked discharge or lesser discipline if they failed to improve. Another reason that they were not terminated sooner, Dull testified, was that he needed men but finally acted on February 28 when competent plumbers became available. However, the record does not convincingly establish that the employment situation was much better in February than the preceding months 23 According to Wheale, he had continuously reported to Dull the unsatisfactory work performance and deficiencies of Zaleski and Young; their inability to hold their own; their lack of plumbing skills and inability to think for themselves, which required that they be shown "everything that had to be done"; their lack of productivity; and their dillydallying on the job.24 Wheale further testified that Dull's response to his complaints was that he would take care of them. At the beginning of February, Wheale testified, he recommended to Dull the dismissal of Zaleski and Young because of their inadequate production. He 21 However, the undisputed evidence shows that at the time of their employment they had informed Dull that they did not intend to work Saturdays and that Dull did not object . Furthermore, there is absolutely no evidence that Dull ever voiced his disapproval of their failure to work Saturdays, much less reprimanded them for this reason. ss Whatever problem existed in that respect , it appears that it was not one applicable to Zaleski and Young alone. 23 According to Wheale, "A good supply of . . [competent plumbers] started coming more towards November . We started getting a few. And January we got a couple of new men. And just recently in April. Around March we got a few new men ." There is other testimony by Wheale that there were between 10 and 14 plumbers on the jobsite from December 1972 to the February 28 date of discharge and 15 plumbers at the time of the hearing in this case. further testified that he decided to make the recommenda- tion after reviewing their past performance. In Zaleski's case, Wheale testified, he recommended his discharge "because of his work habits, some of the goofy things he came up with,25 [and] taking too long . . . [to do] jobs ... [which] . . . would take him anywheres [sic] from two to three times longer to do" than it would take the other plumbers. With respect to Young, Wheale testified that he recommended his termination because "he was more or less goofing off, taking time, doing as he well pleased, coming down and cleaning up ahead of time; costing money ill not working up to the end of the day like they were supposed to." To justify the discharges, Dull and Wheale portrayed Zaleski and Young to be so woefully incompetent and deficient as plumbers26 as to leave one perplexed why they were tolerated and retained as long as they were. Thus, Dull testified that from the inception of their employment it was apparent to him that neither Zaleski nor Young was actually a plumber; that they did not possess the skills to perform the usual work of the plumbers' trade; that the amount of work done by them did not measure up to what their fellow employees accomplished; and that the quality of their work was generally unsatisfactory.27 However, Dull admitted that he probably complimented Young for the pipework he did. Wheale's appraisal of Zaleski's and Young's perform- ance was much in the same disparaging vein. He testified that it was clear from the beginning of their employment that Zaleski and Young were inept plumbers. Specifically, he testified, they were "very low in mechanical ability"; they knew very little about plumbing or the installation of equipment and materials; they were familiar with less than half the tools customarily used in the plumbing trade; they did not possess certain plumbing skills and did not know what they were doing; they required instruction on half the jobs, which journeymen plumbers should not need; they worked very slowly, dillydallied on jobs, and "dogged it"; Zaleski wasted time with his "crazy" suggestions, although Wheale permitted him to pursue them; and the attitude displayed by Zaleski and Young was poor and they were uncooperative. Under cross-examination, Wheale, howev- er, conceded that he told Zaleski at times that his work looked good but testified that this was after he had instructed Zaleski on how to do a particular job. Wheale further testified that Zaleski, nevertheless, made no progress with respect to his production. As for Young, Wheale also admitted that he told Young that he was doing good work, adding, however, that the compliments related 24 Wheale testified that on several occasions he spoke to Roger and Leon Altemose about Zaleski's and Young's shortcomings. sa This relates to suggestions Zaleski made to Wheale and Dull, which Zaleski was permitted to pursue but which might not have proven to be practical. Wheale testified that he considered one of these impractical suggestions when he made an earlier recommendation to Dull to discharge Zaleski in November 1972. However, Dull did not follow that recommenda- tion. 26 In view of my ultimate findings, it is unnecessary to discuss the details of Dull's and Wheale's testimony. 27 Dull testified that during January and February he spent most of his time away from the jobsite and that Wheals was in charge there in his absence. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only to the quality of his performance not to his productivity which was poor. Moreover, Wheale conceded that, except in one instance, he did not convey any of his above criticism to Zaleski or Young. Notwithstanding Zaleski's and Young's asserted in- competence and shortcomings, it is undisputed that they were never warned that they risked discharge if their performance did not improve. According to Zaleski and Young, not only were they not warned against discharge, but their work was never criticized. They also testified that there were instances when their work met with expressed supervisory approval. In addition, there is testimony by plumbers Stella and Thompson attesting to the satisfactory performance of Zaleski and Young. Finally, Dull conceded that in January before their discharge he had secured a 25- cent hourly wage increase for Zaleski and Young.28 From my careful evaluation of the testimony of Dull and Wheale concerning Zaleski's and Young' s asserted in- competence and deficiencies, I find that it is grossly exaggerated and beyond reasonable belief, although Zaleski's and Young's performance probably was not faultless. It is incomprehensible to me that, if they were as unsatisfactory as they were pictured to be, they would have been kept on the job for 7 months without even a warning that they were required to better their performance or suffer dismissal. Instead, Zaleski and Young were given a wage increase in January, which doubtlessly could not have been intended as a reward for their alleged inepti- tude.29 All things being considered, it appears to me that the reason why Zaleski and Young were not terminated sooner or why they were not even cautioned that they risked discharge unless their work improved is the fact that the Respondents did not really consider their work performance or work habits to be so deficient and intolerable as to require their summary discharge in the middle of the workweek. Accordingly, I do not credit the above testimony of Dull and Wheale pertaining to the discharge decision. 4. Zaleski's and Young's March 1 conversation with Roger Altemose; their application for unemployment benefits On the morning of March 1, the day after their discharge, Zaleski and Young visited the Bureau of Employment Security in Coatesville, Pennsylvania, to apply for unemployment benefits. There, they were informed that, as their earnings during that week had exceeded the benefits allowed, they should return the following Monday, March 5, to file their claims. Zaleski and Young thereupon went to the Altemose office building 28 Apparently to minimize the implication of the increase , Dull testified that at this time he also secured larger increases for other plumbers who were employed on the jobsite for 3 or 4 months Except for Stella who received an increase at the same time Zaleski and Young received theirs, there is no evidence who the other plumber-recipients of increases were. In fact, the record indicates that probably in January there were very few, if any, other plumbers with 3 or 4 months' service 19 Roger Altemose, vice president of Altemose Construction, testified that, if the employee "isn't doing the job, we tell him to leave If he's doing an exceptional Job, I guess he probably gets a raise " 30 There is no particular need to determine whether Roger Altemose declared that the discharge of Zaleski and Young was due to their '`inactivity," as they testified, or whether Roger Altemose stated that the in Center Square where they received their final paychecks. They then spoke to Roger Altemose, vice president of Altemose Construction, and inquired why they had been terminated. Roger replied by asking whether Dull had not informed them. Young answered in the affirmative, stating that Dull said that it was on account of their union activity. This elicited Roger Altemose's denial that that was the reason indicating, in substance, that their discharge was probably due to their low production.30 When Zaleski or Young remarked that Dull had also suggested to them that they apply for unemployment benefits and that they would be supported by the front office, Roger Altemose fore- warned them that he personally would oppose their claim 31 On this note, the conversation ended. Zaleski and Young did not return to the Bureau of Employment Security office until May 30 when they filed their claim for unemployment benefits.32 In accordance with Manager Dull's suggestion made at the time of their discharge, Zaleski noted in his claim form as the reason for his separation, "Let Go. Lack of Material," while the phrase "Let Go. No Materials" was inserted in Young's form. Both forms identified Altemose Construction as their Employer. The "Employer's Statement" on the reverse side of these claim forms, which were sent to Altemose Construction, was completed and returned to the Bureau over the signature of Energy Contracting Co. The statement for each claimant set forth as the reason for the separation "Failure to Meet Responsibilities As Employ- ee" and the claimant was "Not Employed by Altemose Construction Co. but by Energy Contracting Co."33 In separate notices of determination subsequently issued by the Bureau on June 21, Zaleski's and Young's claims were approved on the basis of findings that their separation was not for reasons of "wilful misconduct" but because such claimant "was not satisfactory worker." 5. Relationship between Altemose Construction and Energy Altemose Enterprises owns and operates more than 20 subsidiaries, some of which are engaged in the building and construction industry. Its officers are: J. Leon Altemose, president; his brother, Roger Altemose, vice president; his wife, Carole Altemose, secretary-treasurer; and Henry F. White, Jr., comptroller. Leon Altemose has roughly a 40-percent stock interest in that Company while Roger Altemose has a 20-percent interest, with the balance being shared by seven other active participants in the various companies. In general, the overall responsibility for operating the parent company and its subsidiaries is vested in Leon and Roger Altemose to whom the managers or discharge was probably brought about by a decrease in their production and efficiency in the past month or so, which he had learned from Foreman Wheale, as Roger Altemose testified. 3i These findings are based on the substantially uncontradicted testimony of Zaleski, Young, and Roger Altemose. 32 Young testified that he did not file earlier because of Roger Altemose's announced opposition to any claim filed by him or Zaleski. 33 Subsequent documents received by Energy indicate that Energy was the Employer of Zaleski and Young and that Energy's account was charged for the benefits allowed them On the other hand, the notice of determination forms, which the Bureau sent to Zaleski and Young, show Aitemose Construction as the Employer ALTEMOSE CONSTRUCTION CO. 14S superintendents in charge of running the respective subsidiaries normally report. Altemose Enterprises and all its subsidiaries are housed in a company-owned office building in Center Square, which carries an exterior sign "Altemose." The cost of the space is allocated among all the companies on the basis of the area occupied by each one. One of the wholly owned subsidiaries of Altemose Enterprises is Altemose Construction which is the general building contractor of, among others, the Valley Forge Plaza project here involved. Leon, Roger, and Carole Altemose and Henry White occupy the same corporate offices as they hold in Altemose Enterprises. Energy, another wholly owned operation of Altemose Enterprises, is a plumbing subcontractor, which bids competitively for jobs from Altemose Construction and nonaffiliated con- tractors and, according to Leon Altemose, has, in fact, performed more jobs for the latter group. The only officer of Energy named at the hearing was Henry White, its president, who is responsible and reports to Leon Alte- mose. Energy's board of directors consists of Leon, Roger, and Carole Altemose who also comprise the board of directors of Altemose Construction. Almost all the board meetings for both companies are held in their attorney's office where routine corporate documents are usually signed. With a clerical staff under his supervision, Energy's president, Henry White, as comptroller of Altemose Enterprises and Altemose Construction, provides book- keeping, accounting, and payroll services for these compa- nies, as well as Energy and the other subsidiaries, to whom he also distributes Government wage control information. An IBM computer is utilized in the preparation of payrolls with the cost being allocated among the companies using it. It appears that Energy was activated by Leon Altemose at the end of June 197234 after the previously committed plumbing contractors declined to work on the project following the June 5 episode of violence. About that time, Leon Altemose interviewed James Dull and employed him to take complete charge of the day-to-day operations there and elsewhere, to recruit plumbers, to work with White and Roger Altemose, and to coordinate the plumbing work with Altemose Construction's project manager with the objective of expediting the completion of the Valley Forge Plaza job.35 Not surprisingly, Leon Altemose looks to Dull to make the plumbing operations profitable. Following Dull's appointment, Altemose Construction executed a series of plumbing subcontracts with Energy, the earliest date being July 28, 1972. Energy was also required by Leon Altemose, as head of Altemose Construc- 34 It appears that Energy was formed 3 or 5 years ago 35 Such cooperation by subcontractors with project managers of general contractors on construction projects is not unusual. ss Dull, however, testified that he was not familiar with Energy's internal organization except that he knew its president was White with whom he did not have much contact. 37 Roger Altemose also assists in the recruitment of plumbers and other help for nonaffiliated subcontractors especially because of the difficulty experienced by subcontractors in securing employees to work on the Valley Forge Plaza project 38 According to Dull, he has occasionally utilized an Altemose Construction employee to expedite the delivery of materials ordered prior to EossU's assumption of the plumbing work on the project Leon Altemose tion, and the bank which financed the project to post a performance bond, which Energy did. As manager of the day-to-day plumbing operations in the field, Dull is responsible and is required to report to Roger Altemose and White.36 He possesses authority to hire37 and fire plumbing employees, and to some extent to fix wages, hours, and working conditions, to prepare estimates and bid for jobs with Altemose Construction and nonaffiliated contractors, and to purchase and order supplies and materials.38 With respect to wage increases for plumbing employees, it is Dull's practice to submit written requests to Roger Altemose who usually approves them. Moreover, Leon Altemose testified that, if he were aware that an employee was being overpaid by any company, he would "attempt" to correct the situation. There is also uncontradicted testimony by a plumber, Stella, that in October 1972, about a month after he was employed, Dull handed him an application for hospitalization and life and accident insurance coverage under an Altemose Construc- tion contributory group insurance plan; that he completed the application and ultimately received an individual certificate, effective November 17, 1972, designating Altemose Construction as the group policyholder; and that since the effective day of his coverage, deductions have been made from his Energy paycheck.39 Concerning authority over Energy's labor relations, Leon Altemose testified that he assumed that he possessed ultimate control over them but that, as a practical matter, he does not exercise it but leaves it to Dull to make the decisions. However, he further testified that he would inject himself if he felt that Dull made the wrong decision. When questioned what he would do if a union had requested Dull to recognize and bargain with it, Leon Altemose candidly answered that he would take an active part in the decision and consult his attorney. Finally, it is clear that the first six paychecks received by Zaleski and Young during their period of employment did not bear the name of an employer. It is equally undisputed that the stubs accompanying their paychecks, at least for the payroll period ending September 3, 1972, which contained information concerning the deductions from their week's gross pay, did carry the name of Altemose Construction Company.40 All subsequent paychecks with attached stubs bore the name Energy Contracting Co. In addition, the Energy checks carried the same account number as that stamped on the earlier checks 4i C. Concluding Findings The General Counsel contends that Zaleski and Young were discharged because of their protected union and testified that Altemose Construction does some purchasing for both nonaffiliated and affiliated subcontractors , including Energy ae Also attached to the certificate is another sheet entitled "Employee Benefit Program" which appears to have above it the partially cutoff name of Altemose Construction Company. In addition to the insurance benefits, the paper describes employee paid holidays and vacation benefits. 40 The color of these stubs did not match the color of the checks I credit Young's uncontradicted testimony that the stub he received with his above paycheck was not attached to the check Zaleski's contrary testimony regarding his stub and paycheck is obviously erroneous 41 The final Energy paycheck dated July 17, 1973, which Thompson received after he quit, shows that the amount was imprinted by a checkwnter with the name "Altemose" preceding it 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerted activities. The Respondents deny that they were so motivated, insisting that Zaleski and Young were terminated because of their lack of productivity resulting from their incompetence or intentional efforts to slow down and sabotage the job in furtherance of the Trades Council's attempts to prevent completion of the Valley Forge Plaza project. In addition, they argue that Zaleski's and Young's activities were not statutorily protected and, in any event, that Altemose Construction was not their co- employer responsible for their discharge, as the General Counsel contends. I find that the record amply supports the General Counsel's position. As shown above, Zaleski and Young during their period of employment were outspoken critics of the unsafe working and poor housekeeping conditions at the project, the wages paid plumbers, and other terms and conditions of employment. They engaged in frequent discussions with the plumbing employees on their own time at the jobsite concerning these matters, comparing the working condi- tions at the project with those prevailing on union jobs which they pointed out were far superior. About 2 months before their discharge, Zaleski and Young polled the plumbers whether they desired union representation. Their prounion activities earned them the sobriquet of "the union men." Although Manager Dull and Foreman Wheale were aware of Zaleski's and Young's union and concerted activities, Dull apparently was indifferent to them until his own job was threatened by the existence of these activities. As found above, Dull warned Zaleski on the morning of February 26 and all the plumbers on the morning of February 28 that information concerning union activities at the project was reaching the Company's office, that such activities must stop or the participants would be terminated, and that he (Dull) did not intend to lose his job on account of union activities. Viewed in this context, the summary discharge of Zaleski and Young, coming as it did at the close of the day Dull sounded the second warning and in the middle of the workweek, plainly indicates that it was dictated by their union advocacy and concerted activities and not by their alleged low production or other shortcomings, as urged by the Respondents. Lending strong support for the inference that the discharge was discriminatorily motivated is the fact that at no time were Zaleski and Young forewarned that they were vulnerable to discharge if their performance did not improve. It is just not in the nature of things for an employer to keep in its employ for 7 months employees who were allegedly incompetent, without cautioning them that their continued poor performance would result in their dismissal. Indeed, it is equally hard to understand why, instead of warning them, such ostensibly undeserving employees as Zaleski and Young were granted a 25-cent wage increase less than 2 months before their discharge. Probably the reason Zaleski and Young were retained as long as they were and were granted the increases was that the Respondent really did not believe that they were the deficient employees they were depicted to be at the hearing, whatever inadequacies they might have had. In short, I find that Zaleski's and Young's purported lack of productivity and incompetence assigned by the Respon- dents as the reasons for their separation are, at best, afterthoughts designed to hide their true motivation to destroy union interest among the employees and to discourage their criticism of the existing terms and conditions of employment at the project. Dispelling any doubts that Zaleski and Young were victims of discrimina- tion is Dull's admission to them at the time of their discharge that the action was taken on account of their union activities. As indicated above, the Respondents also contend that Zaleski and Young were discharged because they engaged in an intentional slowdown and various acts of sabotage in collusion with the Trades Council with the object of preventing the completion of the Valley Forge Plaza project. Although at the hearing the Respondents' counsel made repeated intemperate accusations of this nature and asserted that Zaleski and Young were discharged for such misconduct, not a scintilla of evidence was produced to substantiate these accusations.42 In fact, Dull, who purportedly alone made the discharge decision, did not even assign involvement in such unlawful acts as the reason for the discharges . Accordingly, I reject the Respondents' contention and find that the alleged miscon- duct of Zaleski and Young is only a pretext conjured up by the Respondents to conceal their true discriminatory motive.43 Finally, Altemose Construction disavows responsibility for the discharge of Zaleski and Young, arguing that only Energy, which is a distinct entity from Altemose Construc- tion, was their employer and that therefore the complaint should, at least, be dismissed against it. I find no merit in this contention. On the contrary, I find that, irrespective of their relationship for other purposes , Altemose Construc- tion and Energy occupy a single or joint employer status with respect to the latter's employees. Without repeating the details recited in the preceding section of this Decision, this status is indicated, inter alit; by the common ownership of Altemose Construction and Energy through Altemose Enterprises, their parent holding company, whose controlling interest resides in the Altemose family; the fact that the Altemose family serves as the board of directors of Altemose Construction and Energy; the fact that the same individuals are officers of Altemose Enterprises and Altemose Construction and the comptrol- ler of both of these companies is the president of Energy; the fact that the overall responsibility for operating the parent and the Altemose Construction and Energy subsidi- aries is vested in Leon and Roger Altemose; the fact that the comptroller provides bookkeeping, accounting, and payroll services for these companies, which have their headquarters in the same "Altemose" building; the fact that Energy is completely dependent on the Altemose family for its existence and, indeed, Energy was reactivated 42 Obviously, the Respondents' suspicion of misconduct is insufficient to (C.A 4, 1%8), in which the court observed that "Iwlhere an asserted deprive Zaleski and Young of their statutory rights. NLRB. v. Burnap and business motive is discredited or contradicted by substantial evidence, the Sims, Inc., 379 U.S. 21(1964). Board is free to treat it as pretextuous and infer discrimination on account 43 See Winchester Spinning Corporation v. NLRB, 402 F.2d 299, 306 of union activity." ALTEMOSE CONSTRUCTION CO. 147 to assume the plumbing functions at the Valley Forge Plaza project,44 even though Dull was placed in charge of Energy's day-to-day field operations; the fact that Energy's plumbing operations are integrated with Altemose Con- struction's activities, although Energy might also perform work for independent contractors; the fact that wage increases for plumbers are subject to the approval of Roger Altemose and that plumbers are included in Altemose Construction's group insurance plan; and finally, the fact that Leon Altemose has inherent centralized control over the labor relations policy of Altemose Construction and Energy.45 All these factors, in my opinion, combine to demonstrate the single or joint employer relationship which exists between Altemose Construction and Energy within the meaning of the Act 46 Accordingly, I find both Respondents are liable for the unfair labor practices found herein. In sum, I find that the discharge of Zaleski and Young constitutes discrimination in employment to discourage union membership in violation of Section 8(a)(3) of the Act. I further find, contrary to the Respondents' conten- tion, that Zaleski and Young were engaged in concerted activities designed to improve their terms and conditions of employment, which Section 7 of the Act protects. It follows that their discharge for engaging in protected concerted activities independently violated Section 8(a)(1) of the Act. Even were it assumed that Zaleski's and Young's purported poor performance or other deficiencies entered into the Respondents' decision to terminate them, I find that their protected union and concerted activities were a substantial cause of their discharge and that the same statutory provisions were violated.47 III. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondents be ordered to cease and desist from engaging in the unfair labor practices found and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondents unlawfully discharged employees Zaleski and Young because of their protected union and concerted activities. To remedy these violations, it is recommended that the Respondents offer Zaleski and Young immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment 44 Although there is testimony that Zaleski and Young were originally hired as Altemose Construction employees, it is not particularly significant to determine whether this was a fact. Concededly, they were at least on Energy's payroll from September 1972 until their discharge 45 In their answer to the complaint herein, Altemose Construction and Energy admitted that they have "common supervision and administer a common labor policy at said Project " 4e Clearly, the cases relied on by the Respondents to support a contrary conclusion are factually distinguishable . Moreover, the determination of the Pennsylvania Bureau of Employment Security respecting Energy's status as an employer of Zaleski and Young neither included a finding that Altemose Construction was not a co-employer nor, if it did, would such a finding be binding on the Board. Independent Stave Company, Inc v N LR B., 352 F.2d 553, 561-562 (C A. 8, 1965), cert denied 384 U.S 962(1966), and cases to each of them of a sum of money equal to that which each one normally would have earned from February 28, 1973, the date of their discharge, to the date of the offer of reinstatement, less his net earnings during the said period. Backpay shall be computed with interest on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. To facilitate the computation, as well as to clarify the named employees' right to reinstatement, the Respondents shall make available to the Board, upon request, payroll and other records necessary and appropriate for such purposes. The posting of notices is also recommended. In view of the nature of the discrimination for union membership and activity which "goes to the very heart of the Act," 48 there exists the danger of the commission by the Respondents of other unfair labor practices proscribed by the Act. Accordingly, I recommend that the Respon- dents be ordered to cease and desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act 49 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondents constitute joint employers or a single employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discriminating in regard to the hire and tenure of employment of John J. Zaleski and Norman Young to discourage membership in, and activities on behalf of, a union, the Respondents engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By the foregoing conduct and by discharging Zaleski and Young for engaging in protected concerted activities for mutual aid and protection with respect to wages, hours, or other terms and conditions of employment, the Respondents engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommend- ed: ORDER50 The Respondents, Altemose Construction Company and cited therein. Lastly I find, as previously indicated, no evidentiary basis for the Respondents' contention that the naming of Altemose Construction as a Respondent constitutes a fraud upon the Board or was the result of improper influence. 47 See, for example, J. P Stevens & Co., Inc v. N.LR.B., 380 F.2d 292, 300 (C A. 2, 1967), cert denied 389 U.S. 1005(1967); N LR B v. Jamestown Sterling Corp, 211 F.2d 725, 726 (C.A 2). 48 N LR.B v. Entwistle Mfg Co., 120 F.2d 532, 536 (C.A. 4). 49 N LR B v. Express Publishing Company, 312 U.S 426, 433. so 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 (Continued) 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Energy Contracting Co., Center Square, Pennsylvania, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in any labor organization by discharging employees or in any other manner discrimi- nating against them in regard to their hire or tenure of employment or any term or condition of employment. (b) Discharging or otherwise disciplining employees for engaging in protected concerted activities for mutual aid or protection with respect to wages, hours, or other terms and conditions of employment. (c) In any other manner interfering with , restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own- choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer John J. Zaleski and Norman Young , immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of their unlawful discharge, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in analyzing the amount of backpay due and the right to reinstatement and employment under the terms of this recommended Order. (c) Post at their offices in Center Square , Pennsylvania, and at the Valley Forge Plaza construction site, in King of Prussia, Pennsylvania, the attached notice marked "Ap- pendix."S1 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondents' authorized representatives, shall be posted by the Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 4, in writing, within 20 days from the receipt of this Order , what steps the Respondents have taken to comply herewith. its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 51 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all of those activities. WE WILL NOT discharge or lay off any employee or otherwise discriminate against him because of his membership in, or activities on behalf of, a labor organization. WE WILL NOT discharge or otherwise discipline employees for engaging in protected concerted activi- ties for mutual aid or protection with respect to wages, hours, or other terms and conditions of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre. sentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(aX3) of the Act. WE WILL offer John J. Zaleski and Norman Young immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniori- ty or other rights and privileges, and make them whole for any loss of earnings suffered by reason of their unlawful discharge. All our employees are free to become or remain, or refrain from becoming or remaining, members of a labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(aX3) of the Act. ALTEMOSE CONSTRUCTION COMPANY (Employer) Dated By Dated By (Representative) (Title) ENERGY CONTRACTING CO. (Employer) (Representative) (Title) ALTEMOSE CONSTRUCTION CO. 149 This is an official notice and must not be defaced by Any questions concerning this notice or compliance with anyone. its provisions may be directed to the Board's Office, Suite This notice must remain posted for 60 consecutive days 4400, William J. Green, Jr., Federal Building, 600 Arch from the date of posting and must not be altered , defaced, Street, Philadelphia, Pennsylvania 19106, Telephone or covered by any other material. 215-597-7601.