Franchi Bros. Construction Corp.

FRANCHI BROS. CONSTRUCTION CORP. Franchi Bros. Construction Corp. and Local 535, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 1-CA-11383 and 1- CA-1 1529 September 20, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On May 3, 1977, Administrative Law Judge Julius Cohn issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting memorandum, the Charging Party filed exceptions, a brief in support thereof, and a brief in partial support of the Decision, and the General Counsel resubmitted its brief to the Administrative Law Judge. 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, find- ings,' and conclusions 2 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 the Respondent, Franchi Bros. Construction Corp., Newton, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the complaint in Case I-CA-11383, insofar as it alleges violations of Section 8(a)( ) and (5) of the Act, be, and it hereby is dismissed. I 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 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In adopting the attached Decision, we find it unnecessary to pass on the Administrative Law Judge's arguendo findings that even if Respondent were bound to the AGC contract or were required to bargain with Local 535. there would be no violation of Sec. 8(aX5) of the Act by its decision to subcontract certain work. 232 NLRB No. 26 DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge: This case was heard at Boston, Massachusetts, on October 6 and 7, 1976. Upon a charge filed in Case I-CA-11383 by Local 535, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, on January 27, 1976, and served the same date, the Regional Director for Region 1 issued a complaint on March 11, 1976. Thereafter the Union filed an additional charge in Case I-CA- 11529 on March 15 which was served on March 16, 1976. The Regional Director then issued an order consolidating cases and an amended complaint on May 6. The amended complaint alleges that Franchi Bros. Construction Corp., herein called Respondent, discharged two of its employees because of their membership and activities on behalf of the Union, and further violated Section 8(a)(5) of the Act by refusing to bargain with the Union since December 18. 1975. Subsequently, on June 4, 1976, the Union filed an amended charge in Case I-CA- 1383 upon which the Regional Director issued a second amended complaint dated August 10 alleging additionally that Respondent violated Section 8(aX5) of the Act by subcontracting unit work since March 1, 1976, without notifying or bargaining with the Union. Respondent filed an answer denying the commission of unfair labor practices. Issues Whether Respondent terminated two employees because of their membership and activities on behalf of the Union rather than for their poor work performance. Whether Respondent is bound to a collective-bargaining agreement between various Locals and District Councils of the United Brotherhood of Carpenters including the Union and the Associated General Contractor of Massachusetts, Inc., herein called AGC. Whether, in the event that Respondent is bound to the AGC agreement, it has refused to recognize and bargain with the Union as the collective-bargaining representative of its employees. Whether Respondent is obliged, in any event, to bargain with the Union as the majority representative of its employees. Whether, if Respondent is bound to the AGC agreement or otherwise must recognize and bargain with the Union, it unlawfully subcontracted unit work without notice to the Union. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. All parties have submitted briefs which have been carefully considered. On the entire record in the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent, a Massachusetts corporation, has its princi- pal office and place of business in Newton, Massachusetts, 179 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and has been continuously engaged as a general building contractor. Respondent purchased at all times material herein large quantities of building materials which it caused to be transported from States of the United States to the Commonwealth of Massachusetts, and has provided construction services having an annual value in excess of $50,000 to companies who are engaged in interstate commerce. The complaint alleges, Respondent admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. ]HE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. [11. THE UNFAIR LABOR PRACTICES ALLEGED A. The Facts The Union herein which has jurisdiction over the Norwood, Massachusetts, area, is one of a group of Carpenters Locals and Carpenters District Councils who have been parties to collective-bargaining agreements with the AGC and other employer contractor associations, the most recent agreement having been effective June 16, 1974, until June 15, 1976. Respondent has been engaged in the general construction business throughout the Massachu- setts and New England area, and in 1974 it was erecting a Federal building in Fitchburg, Massachusetts. Before June of that year Respondent had been observing union conditions at the Fitchburg jobsite including payment of union scale wages and contributions to the union pension and welfare funds as provided in the then existing collective-bargaining agreement with the AGC. Just prior to June 19, 1974, Carl Johnson, business agent of Carpenters' Local 48, which had jurisdiction over the Fitchburg area, came to the site and explained to the superintendent, Lincoln Walker, that the Carpenter Union District Councils were involved in negotiations with the AGC and it appeared there would be a strike. Johnson said that Respondent would have to sign a memorandum of understanding providing that it will abide by whatever agreement is reached between AGC and his union in order to avoid a strike at the Fitchburg jobsite. Walker relayed this information to his superior and, on June 19, Anthony Franchi, one of the principals of Respondent, met at the site with Johnson and they executed a memorandum of understanding. This agreement provided for the increases in wage rates and the contribution to an apprenticeship and training fund, both of which to be effective June 16, 1974. It further provided that Respondent will abide by the terms of an agreement entered into between the AGC and "the Union" effective upon the date of said agreement. It finally stipulated that in the event AGC and "the Union" do not enter into a new agreement, the memorandum will expire on June 15, 1975. The memorandum was executed by Anthony Franchi for the "Employer" and the "Union" is designated as Carpenters' Local Union No. 48 and i Dodge Reports is a construction industry publication which contains, among other things. listings of proposed construction sites. The particular report Moseley read also noted that Franchi intended to subcontract. signed by Johnson as business agent. A strike ensued during which Respondent was able to continue working and eventually the strike was settled on June 24. The new collective-bargaining agreement between the AGC and the Carpenter Locals and District Councils was effective retroactively from June 16, 1974, and was different in format from that of prior agreements between those parties. In former years upon agreement having been reached, separate contracts were then drawn and executed by the AGC and other employers' associations on the one hand with each individual carpenter local on the other hand. Thus the former AGC agreement, dated June 15, 1973, the terms of which Respondent was following at Fitchburg, was signed solely by Carpenters' Local Union No. 48. The 1974 AGC agreement however consisted of only one document signed on one page by all the Carpenter Locals and District Councils. Respondent did not execute this agreement but did abide by its terms as it had undertaken in the memorandum of understanding with Local 48, the only document it signed. Respondent completed its job at Fitchburg approximately at the end of 1974. At the end of 1975 Respondent commenced work on a residential apartment construction site in Norwood. Before this, having read about the planned project in the Dodge Reports,' Thomas Moseley, the business agent of Local 535, the Union Charging Party herein, called Dominick Franchi, also a principal of Respondent in August and advised him that his local had jurisdiction for the carpenters in Norwood and it desired to place men on jobs. Franchi told him that the job he contemplated was for residential apartments for which he could not afford the regular carpenters' rate. Moseley informed him that there was a clause in the contract under which the Union could make special agreements for certain work in order to be competitive. Moseley said that he could furnish carpenters for work on this site under a house rate. Franchi then replied that he would get back to him when he needed help. On December 8, Franchi called Moseley and asked that he send two carpenters to begin work the following morning on footings and foundations for the apartment project. He told Moseley that he wanted two experienced men who had worked with Simon forms. These are a special type of form in use in the industry for approximate- ly 10 years, and utilized in the building of forms for the pouring of concrete. There was a discussion between Moseley and Franchi concerning the rates these men would be paid. Moseley stated that the carpenter would be paid at a residential rate of $7.50 and advised Franchi that he would be able to save money by taking one journeyman and an apprentice whose rate was agreed to be $4.50 per hour plus fringes. The Union then referred for work on December 9, Louis Pisano, a carpenter of many years' experience, and Gary Moore, an apprentice. The following day, December 10, Harold Bridges came to work as a carpenter and, on December 11, Henry Standing also reported to work. Both of these employees had been referred, at Franchi's request, from the Massachusetts State Unemployment Service. Frank Amendola, a carpenter 180 FRANCHI BROS. CONSTRUCTION CORP. foreman and superintendent for Respondent on other jobs and a union member for many years, supervised these employees from December 10, when he first came to the Norwood jobsite. In addition to Pisano and Moore, Standing also was a member of the Union. Standing and Bridges both were paid at the rate of S$5 per hour. On December 17, the four carpenters met with Moseley at his office and signed work assessment cards which authorized Respondent to deduct 10 cents per hour from their wages each week as a working assessment due to the local union under whose jurisdiction they are employed. At the same time Moseley explained to Standing and Bridges that they were receiving wages below that set in the agreement. On December 18, Pisano, who had been designated shop steward by Moseley, approached Amendola and gave him an assessment card to sign. According to Pisano, he observed Amendola showing the card to Franchi who threw up his hands. A few minutes later Amendola returned the card to Pisano and told him he did not want to sign it. Amendola said he did not recall discussing or showing the card to Franchi or anybody else. He said that he understood, when he was hired for the job, that it was to be nonunion. Therefore he gave it back to Pisano telling him this was a nonunion job. I credit Pisano's testimony that Amendola showed the card to Franchi. Despite Amendola's contention that he knew the job to be nonunion, he also must have been aware that Respondent contributed to the State Carpenters pension welfare fund on his behalf at all the jobs for which he was employed by Respondent, including the Norwood site. During the preceding day, December 17, Pisano noticed a young man hitting nails and inquired of the engineer at the jobsite whether this man was a carpenter, to which the engineer replied that he was. Pisano then asked whether he held a union book and the engineer told him he did not need one. The following morning Amendola came to Pisano and informed him that he had been talking about Franchi's son with the engineer, and Franchi had been put out about this matter. Amendola testified that while he did not recall making this statement to Pisano, he was on the job during the incident involving Franchi's son, but he had only heard about it from Anderson, the engineer, and had not himself been involved. Anderson testified on behalf of Respondent but did not refer to the incident. Again I credit Pisano's version as Amendola was very vague and evasive as to this matter and Anderson, who was available, was not asked to deny it. On December 18, Moseley went to thejobsite and spoke to Dominick Franchi concerning the wage rate being paid to Standing and Bridges. He pointed out that the agreement provided for the payment of the housing rate of $7.50 plus health, welfare, and pension benefits, but the two carpenters were receiving only $5 without any fringe payments. Franchi responded that there was no agreement between him and the Union. During the course of this conversation Franchi also indicated to Moseley that in any case, he intended to lay off two men because of the weather. In addition at one point Franchi requested that Moseley refer some contractors to him to give prices on framing of the apartment building. Moseley stated that he did not deem this to be an unusual request from a contractor. With respect to the prospective layoff, he assumed that Franchi had been referring to Standing and Bridges. The following day, December 19, Amendola gave Pisano and Moore their checks and told them that they were being let go because Respondent was kind of caught up with the job at that point. There was no other explanation. According to Respondent, Pisano and Moore were dis- charged because of their poor work performance. Franchi stated that he had occasion to observe their work and they made mistakes, they argued with one another, their production was poor, and they were not experienced at using Simon forms as he had been led to believe. Franchi said that they worked on footings for several days and seemed to be confused as to the lines. He then told the foreman to put them on Simons forms, work which is more complicated than footings, but Moseley had told him that the men he was sending were experienced with the erection of Simon forms. Franchi stated that Pisano and Moore were also confused in working with Simon forms because it appeared that they did not have sufficient experience. Franchi did not warn Pisano or Moore or criticize their work but told Amendola to take care of it. Amendola testified that Pisano and Moore first worked on footings and then were assigned to the Simon forms. He observed that they were taking too long in putting up these forms because they did not know enough about it. He said he discussed this with Franchi who called Moseley and was told that he would get the right men who knew about putting up Simon forms. Amendola said as a result of this he and Franchi decided to let them go on December 19. Although Amendola testified that Pisano and Moore were laid off because they were too slow and were not putting the Simon forms together properly, he did not indicate to them that they would be laid off for these reasons. He just told them that they were caught up with the work. When the two of them were laid off, Bridges and Standing were put to work on the Simon forms. With regard to Amendola's testimony I find that he was evasive and, at times, contradictory and accordingly do not credit him. For example, at one point Amendola said he did not know whether Standing and Bridges had experience with Simon forms but they had told him they had worked with them. He also said he was not aware that Pisano had more experience with Simon forms than Standing or Bridges. He then admitted he may have put Pisano and Bridges to work together on forms because Bridges had never worked on them before. He later said he did not recall telling Pisano to show Bridges how to do it while just prior to that he testified he may have put Pisano to work with Bridges. Franchi, himself, testified that he believed Pisano and Moore were not qualified and was aware of that within 3 days, yet he continued their employment for 10 days. This was despite the fact that it is not uncommon to let unqualified people go immediately on construction sites and replace them with other employees. He was also aware that the Union had a large pool of unemployed carpenters. Soon after Pisano and Moore were laid off there was a snowstorm which shut down the jobsite for about a week. Respondent did not hire any more carpenters but retained 181 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Standing and Bridges who worked for the following month on a part-time basis due to the weather. At the end of January, Standing was let go and Bridges remained with Amendola completing the balance of the carpentry work themselves. On February 24, 1976, Respondent subcon- tracted to Lavoie Construction Co. Inc., the framing work for the jobsite. Then on May 10, Respondent subcontract- ed the drywall work to J. H. G. Drywall Corp., and later on July 22, subcontracted the furnishing and installation of kitchen cabinets to N. J. McDonald and Sons Inc. None of these subcontractors had contracts with any carpenter local union though the work performed by these subcon- tractors was within the work jurisdiction of the carpenters. B. Analysis and Discussion 1. The memorandum of understanding The General Counsel and the Charging Party contend that by executing the memorandum of understanding dated June 19, 1974, Respondent is bound to the collective- bargaining agreement ultimately signed by the AGC and the various Carpenter District Councils and Local Unions effective June 16, 1974. It is urged that, by signing the memorandum, Respondent agreed to abide by the terms of said agreement with AGC. Actually there is no issue as to Respondent's obligation to abide by the substantive terms of the new AGC agreement which indeed it did at Fitchburg. The real issue involved herein is concerned not with terms of that agreement but with the parties to the agreement. The question is whether Respondent agreed in the memorandum to be bound to every signatory of the AGC agreement or whether it merely agreed only with Local 48 to be bound to it and abide by the terms of said agreement. The plain language of the memorandum of understanding refers to an agreement to be entered between AGC and "the Union." The "Union" that signed the memorandum is Carpenters Local No. 48. There is no mention of any other Local Union or District Council of the Carpenters. It is clear the memorandum was executed solely by and between Respondent and Local 48 and there is no evidence that any other local was intended to be a party or was to be incorporated by reference. The parties to the AGC agreement, so called, were the AGC and other named employer associations, and the various named Carpenter District Councils and Local Unions. Neither Respondent nor other independent contractors were parties to that agreement. The purport and meaning of the memorandum was undoubtedly an agreement by Respon- dent with Local 48 whereby it agreed with that Local Union to abide by the terms of the AGC agreement upon execution, and I so find. It is noted that the only specific provision of the memorandum as to conditions of employment related to a wage increase and contribution to the union welfare funds, which the parties agreed would be effective immediately. It 2 Sheet Metal Workers' International Association, Local Union No. 270 (General Sheet Metal Co.), 144 NLRB 773 (1963), relied on by the General Counsel is inapposite. In that case an employer who signed an interim agreement agreeing to be bound by a collective-bargaining agreement to be negotiated and executed between an association and a union, refused to execute the contract because it contained a provision for an industry fund which he could not accept. The employer had previously agreed to be bound is clear that Respondent was undertaking to be bound by the substantive terms of the AGC agreement with Local 48 and not to any collective-bargaining relationships with a host of other Local Unions. It is also noted that the first paragraph of the memorandum reaffirms the relationship with Local 48 existing at the time which was that Respondent agreed to abide by the terms of the prior AGC agreement with the Union dated June 16, 1973. That agreement and all previous agreements with AGC had been executed individually by Local 48 as did the other Local Unions. The 1974 AGC agreement for the first time provided for a single document with one signature page to whi'ch all Local Unions appended their signatures. Respon- dent could not have foreseen such a development nor indeed did Local 48 as the unions were opposed to that practice. Local 48 was merely interested in obtaining Respondent's agreement to abide by Local 48's agreement with AGC. There is nothing to indicate that Respondent had agreed to become party to an agreement with all the other Carpenter Locals. I find, however, without resort to the argument of the changed format of the 1974 AGC agreement, that the language of the memorandum of understanding plainly indicates that Respondent was contracting only with Carpenter's Local 48 and that the AGC agreement of 1974 does not create a collective- bargaining relationship between the Union herein and Respondent at the Norwood site in 1974. I shall therefore dismiss so much of the amended complaint as alleges that Respondent violated Section 8(aX5) of the Act by refusing to be bound by the collective-bargaining agreement between the AGC and the Union.2 2. The alleged violation of Section 8(aX3) of the Act The complaint alleges that Respondent discharged Pisano and Moore on December 19 because of their activities on behalf of the Union. Both of these employees had been referred to the job by the Union. At the outset Pisano had made it clear that he had been appointed steward by Moseley. Moore for his part complained to Amendola about the stockpiling of forms a distance away from where they were working and stated that at other jobs laborers would bring the stock to the carpenters to which Amendola replied that this is not a union job. Pisano was active in distributing the working assessment deduction authorization cards to all the employees and even to Amendola, the foreman. On December 17 there was the incident concerning Pisano's questioning the presence of a young man who turned out to be Franchi's son working as a carpenter without a membership book. In addition, Pisano was involved in the question of Bridges and Standing receiving $5 an hour, less than the union wage rate. This culminated in the visit to the jobsite on December 18 by Moseley demanding that they not only be to that specific agreement and refused to execute it because it disliked one of its terms. That is distinguishable from the instant case where the parties to the agreement were expanded and an attempt is being made to bind Respondent to additional unions. It is noted that Respondent herein abided by its agreement with Local 48 with regard to all th, substantive provisions of the AGC agreement at the jobsite in Fitchburg. 182 FRANCHI BROS. CONSTRUCTION CORP. given the agreed-upon wage but also that Respondent honor the collective-bargaining agreement with the AGC. This event was followed by the discharge of Pisano and Moore on the following day, December 19. In the face of this activity and sequence, I am not persuaded by Respondent's defense that Pisano and Moore were termi- nated because of their poor job performance. Respondent's witnesses testified to a litany of faulty work by Pisano and Moore including their confusion, fighting with one another, inexperience with Simon forms, and their slow production. Despite all of these faults, it does not appear that any of Respondent's supervisors including Franchi, Amendola, or the engineer Anderson, criticized their work performance or even warned them that they would be let go unless their work improved. Franchi himself stated he could tell within 3 days that Pisano did not have the requisite experience with Simon forms and yet, although the erection of such forms were the primary work in progress at the time, he let Pisano and Moore continue until a number of days later, despite the fact that many carpenters were available at the Union for work. Interestingly enough, when they were terminated he retained Standing and Bridges, both of whom were referred by the State Employment Service rather than the Union at a lesser wage rate, and Bridges himself testified that he had no experience with Simon forms. I find on the basis of all the credited evidence that Respondent discharged Pisano and Moore because of their activities on behalf of the Union rather than because of their poor work performance as alleged.3 3. The alleged refusal to bargain and unlawful subcontracting Although the General Counsel and the Union relied primarily upon the memorandum of understanding with Local 48 to bind Respondent to the AGC contract with the Union herein, they sought in the alternative to impose a bargaining obligation on Respondent arising from the fact that three of the four employees prior to December 19 were members of the Union. However, there is no evidence that Moseley on behalf of the Union sought recognition and bargaining with Respondent on that basis or requested to do so. It is clear that Moseley did not request bargaining at all, but rather was attempting to enforce the AGC agreement because of his belief that Respondent was bound to it through its execution of the memorandum of understanding with Local 48. While it has been held that a formal demand for bargaining is not necessary to support a bargaining order against an employer who has engaged in unfair labor practices, 4 as in the instant case where Respondent has unlawfully discharged two employees, I believe a different situation obtains in the circumstances of this case which involves a construction site rather than a plant. A bargaining relationship does not automatically result from a building contractor calling a local union hall for referrals 1 The fact that I have found that Respondent was not bound to the AGC agreement by virtue of having executed the memorandum of understanding with Local 48, does not militate against this result. It is clear that Pisano and Moore were acting on behalf of the Union as was Moseley in attempting to enforce the agreement even though he may not have been entitled to do so. and agreeing to pay the area wage scale including fringe benefits. Nor do payments to various union benefit funds on behalf of certain employees who request it create the same results. It is quite common for contractors coming into a locale to utilize the construction trades hiring halls as an employment agency, something different than a collec- tive-bargaining agreement which is consensual. Indeed Moseley was quite happy to respond to Franchi's call for two carpenters, in view of the employment situation in the industry, and it was Moseley who urged Franchi to utilize the hall even before the job commenced. Assuming a bargaining order under N.LR.B. v. Gissel Packing Co. Inc., el al., 395 U.S. 575 (1969), were otherwise warranted, there are no union authorization cards here for the purpose of representation, only authorizations for the employer to make deductions for working assessments to be paid to the Union. These are again not uncommon in the construction trades and do not constitute authorization for representation. I find in all the circumstances that the Union is not entitled to a bargaining order as majority representative of Respondent's carpenter employees at the Norwood site.5 There remains the issue of the alleged unlawful subcon- tracting. As I have found that no duty to bargain has arisen either through the memorandum or by virtue of the Union's alleged majority status and unfair labor practices of Respondent, it follows that Respondent was not obliged to refrain from subcontracting. Moreover, this result would obtain even if the principal contention of the General Counsel and the Union with regard to the memorandum were followed. Assuming that Respondent is bound to the AGC contract, I would find that its subcontracting was not violative of the Act. The AGC contract clearly provides that a contractor may subcontract work if it subcontracts to a union contractor. The right to subcontract is thus established, subject only to the limitation that it be given to a union subcontractor. When the contractor does otherwise and subcontracts to a nonunion subcontractor, then he has engaged in a contract violation subject to the arbitration procedures of the agreement or any other remedy the Union may have. The Board has long held that it would not enforce contract violations particularly as in this situation where the parties have a remedy as provided in contractual procedures. Accordingly, I would find no violation of Section 8(aX5) based on subcontracting even if Respondent were a party to the AGC agreement. Assuming the validity of General Counsel's alternate contention that Respondent was required to bargain with the Union even if not bound to the AGC agreement, I would not find it engaged in unauthorized subcontracting. The Union was always aware of Respondent's intention to subcontract as it was informed through the request for bids in the Dodge Reports as well as Franchi's request to Moseley, as admitted by the latter, that he submit names of subcontractors to him. In spite of this, the Union did not request bargaining. This sheds additional light on the motivation of the Union which was to rely on its belief that 4 See Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977). 5 Such order would appear to be futile in any case since, as the General Counsel notes in his brief, the project was in all probability completed by the time of the hearing. 183 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent was bound to the AGC agreement. For all of the above reasons, the allegations of the complaint as to subcontracting are dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes, burdening and obstructing commerce, and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent discharged Louis Pisano and Gary Moore in violation of Section 8(a)(1) and (3) of the Act. While it appears that Respondent may have completed its work on the Norwood apartment project, that fact is not clear from the record. I shall, therefore, recommend the following order for affirmative action in the alternative. In the event that the project has not yet been completed, I shall recommend that Respondent offer Louis Pisano and Gary Moore immediate and full reinstatement to their former position or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights, and make them whole for any loss of pay they may have suffered as a result of this discrimination against them by payment to them of a sum of money equal to that which they would have earned as wages from the date of their discharge to the date of their offer of reinstatement, less their net earnings during such period, in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), together with interest on such sum, such interest to be computed in accordance with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In this connection, I note that as I have found that Respondent did not unlawfully subcontract carpentry work, the discriminatees would not have been entitled in any event, to the work performed by employees of the subcontractors. In the event the project has been completed, I recom- mend that Respondent need not be required to offer reinstatement to Louis Pisano and Gary Moore, but shall instead send a letter to each stating that, notwithstanding their discharges, they will be considered eligible for employment in the future at any of Respondent's projects if they should choose to apply for employment at any of them. Respondent is not required to offer them employ- 6 Imerbhoro Contractors, Inc., 157 NLtRB 1295, 1302 (1966); Bechtel Corporation. 141 NLRB 844, 845 (1963). ? In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Lahbor Relations Board, the findings. ment at other projects but only to consider them for employment on a nondiscriminatory basis.6 In addition, Respondent shall include in the letters to Louis Pisano and Gary Moore copies of the notices which would otherwise have been posted if the project had not been concluded. Respondent shall also mail copies of the notice to all of its employees employed by it at the Norwood residential apartment jobsite on December 19, 1975. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging employees Louis Pisano and Gary Moore, Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has not established that Respondent has violated Section 8(a)(5) of the Act with respect to the allegations of the complaint in Case I-CA- 11383. Upon the foregoing findings of fact and conclusions of law, and upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 7 The Respondent, Franchi Bros. Construction Corp., Newton, Massachusetts, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discouraging membership in, or activities on behalf of Local 535, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, by discharging employees or otherwise discriminating against them in any manner with regard to their hire and tenure of employment or any term or condition of employment because of their union activities. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights are affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the purposes and policies of the Act: (a) In the event that Respondent's operations at the Norwood apartment residential project are still in progress, offer to Louis Pisano and Gary Moore immediate and full reinstatement to their former positions, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights previously enjoyed, and make each of them whole for any loss of pay conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 184 FRANCHI BROS. CONSTRUCTION CORP. due to the violation against them in accordance with the manner set forth in the section of this Decision entitled "The Remedy." (b) In the event that Respondent's operations at the Norwood residential apartment project have been com- pleted, make whole Louis Pisano and Gary Moore for any loss of pay they may have suffered by reason of their discharges and assure them of their future eligibility for employment by Respondent in the manner and to the extent set forth in the section entitled "The Remedy." (c) 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 to analyze the amount of backpay due under the terms of this Order. (d) In the event that Respondent's operations at the Norwood residential apartment project are still in progress, post at said project, copies of the attached notice marked "Appendix."8 Copies of said notice to be furnished by the Regional Director for Region I, after being duly signed by the Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and remain posted as long as operations on the Norwood project are in progress, but for a period of no longer than 60 days from the date of posting, in conspicuous places, including all places where notice to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) In the event Respondent's operations at the Norwood project have been completed, mail copies of the aforesaid notice to the employees specified in the section entitled "The Remedy." (f) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 8 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a Judgment of a United States Court of Appeals Enforcing an Order of the National Labor Relations Board." IT IS FURTHER ORDERED that the complaint in Case I- CA-I 1383, insofar as it alleges violations of Section 8(a)(1) and (5) of the Act, be, and it hereby is, dismissed in its entirety. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to give evidence, an Administrative Law Judge of the National Labor Relations Board has found that we, Franchi Bros. Construction Corp., has violated the National Labor Relations Act and we have been ordered to post this notice. WE WILL NOT discharge any employee for engaging in union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce, our employees in the exercise of rights guaranteed them under Section 7 of the Act. WE WILL offer Louis Pisano and Gary Moore immediate and full reinstatement to their former or substantially equivalent position, without prejudice to their seniority or other rights and privileges previously enjoyed, if we have not completed our operations at the Norwood residential apartment project. WE WILL in the event that the Norwood residential apartment project has been completed, assure Louis Pisano and Gary Moore that they are eligible for future employment by us. WE WILL make Louis Pisano and Gary Moore whole for any loss of pay they may have suffered by reason of the discrimination against them. FRANctu BROS. CONSTRUCMON CORP 185