International Union of Operating Engineers, Local 14-14B (SKANSKA)

1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358 NLRB No. 115 International Union of Operating Engineers, Local 14-14B (Skanska USA) and Biagio Nicchia. Case 02–CB–063648 August 31, 2012 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HAYES AND BLOCK On March 20, 2012, Administrative Law Judge Steven Davis issued the attached decision. The Respondent Un- ion filed exceptions and a supporting brief, the Acting General Counsel filed an answering brief, and the Union filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.1 The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified and set forth in full below.3 1 Member Griffin has recused himself and took no part in the con- sideration of this case. 2 The Union has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. Having adopted the judge’s finding that the Union violated Sec. 8(b)(1)(A) derivatively of its 8(b)(2) violation, we find it unnecessary to pass on the judge’s finding of a separate 8(b)(1)(A) duty-of-fair- representation breach, as such a finding would not materially affect the remedy. In adopting the judge’s finding that the Union violated Sec. 8(b)(2) by causing the discharge of Charging Party Biagio Nicchia, we empha- size that we do not seek to prevent or discourage unions from taking lawful steps to eliminate corruption within their ranks. However, as the Union continued to refer Nicchia for several years after his criminal conviction and caused his discharge only after he was expelled from membership in the Union, we agree with the judge that the Union caused Nicchia’s discharge because of that expulsion and not because of his criminal activity. 3 We shall modify the judge’s recommended Order to provide for the posting of the notice in accord with J. Picini Flooring, 356 NLRB 11 (2010), and to conform to the Board’s standard remedial language. We shall also substitute a new notice. The remedy section of the judge’s decision is amended to delete the subsequent history of Kentucky River Medical Center, 356 NLRB 6 (2010). For the reasons stated in his dissenting opinion in J. Picini Flooring, Member Hayes would not require electronic distribution of the notice. We agree with the judge that ordering the Union to reinstate Nicchia is an appropriate remedy here, where the evidence shows that the Em- ployer, Skanska USA, has delegated to the Union full control over hiring and termination. Member Block would amend the remedy to require the Union to request that the Employer reinstate Nicchia, as the Union is not the employer and it did not operate an exclusive hiring hall. ORDER The Respondent, International Union of Operating En- gineers, Local 14-14B, Whitestone, New York, its offic- ers, agents, and representatives, shall 1. Cease and desist from (a) Attempting to cause and causing Employer Skanska USA or any other employer to discharge Biagio Nicchia or any other employee from his or her employ- ment because he or she was not a member of the Union. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Biagio Nicchia full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Biagio Nicchia whole for any loss of earn- ings and other benefits suffered as a result of the discrim- ination against him, in the manner set forth in the remedy section of the judge’s decision as amended in this deci- sion. (c) Within 14 days from the date of this Order, remove from its files, and ask the Employer to remove from the Employer’s files, any reference to the unlawful replace- ment of Biagio Nicchia, and within 3 days thereafter no- tify Nicchia in writing that this has been done and that his discharge will not be used against him in any way. (d) Within 14 days from the date of this Order, notify the Employer that it has no objection to the employment of Biagio Nicchia, and furnish Nicchia with a copy of such notification. (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its union office in Whitestone, New York, copies of the attached notice marked “Appendix.”4 Copies of the no- tice, on forms provided by the Regional Director for Re- 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” OPERATING ENGINEERS LOCAL 14-14B (SKANSKA USA) 1037 gion 2, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees and members are customarily posted. In addition to the physical posting of paper notices, notices shall be dis- tributed electronically, such as by email, posting on an intranet or an internet site, or other electronic means, if the Respondent customarily communicates with employ- ees and members by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Within 14 days after service by the Region, deliver to the Regional Director for Region 2 signed copies of the notice in sufficient number for posting by the Em- ployer at its Whitestone, New York facility, if it wishes, in all places where notices to employees are customarily posted. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT attempt to cause and cause the Employ- er, Skanska USA, or any other employer to discharge Biagio Nicchia or any other employee from his or her employment because he or she is not a member of the Union. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights set forth above. WE WILL, within 14 days from the date of the Board’s Order, offer Biagio Nicchia full reinstatement to his for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL, within 14 days from the date of the Board’s Order, notify the Employer, Skanska USA, that we have no objection to the employment of Biagio Nicchia, and WE WILL furnish Nicchia with a copy of such notifica- tion. WE WILL make Biagio Nicchia whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files, and ask the Employer to remove from the Employer’s files, any reference to the unlawful replacement of Biagio Nicchia, and WE WILL, within 3 days thereafter, notify him in writing that we have done so and that we will not use the discharge against him in any way. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 14-14B Rhonda Gottlieb and Alejandro Ortiz, Esqs., for the General Counsel. James M. Steinberg, Esq., of Tarrytown, New York, for the Respondent. Seth Ptasiewicz, Esq., of White Plains, New York, for the Charging Party. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. Based on a charge filed by Biagio Nicchia, an individual, on August 30, 2011, a complaint was issued on November 15, 2011, against the International Union of Operating Engineers, Local 14-14B (the Respondent or the Union). The complaint alleges essentially that the Respondent at- tempted to cause and caused Employer Skanska USA to dis- charge Nicchia from employment, and that the Respondent did so because Nicchia was not a member of the Union and for reasons other than the failure to tender uniformly required initi- ation fees and periodic dues. The complaint alleges that the Respondent has violated Section 8(b)(2) of the National Labor Relations Act (the Act) by attempting to cause and causing an employer to discriminate against its employees in violation of Section 8(a)(3) of the Act, and has also restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(b)(1)(A) of the Act. The Respondent’s answer denied the material allegations of the complaint, and on January 30, 2012, a hearing was held before me in New York, New York. Upon the evidence pre- sented in this proceeding, and my observation of the demeanor of the witnesses and after consideration of the briefs filed by the Acting General Counsel and the Respondent, I make the following DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1038 FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION STATUS The Employer, a New York corporation, having an office and place of business at 16-16 Whitestone Expressway, Whitestone, New York, has been engaged in construction, commercial development, and civil infrastructure, planning, design, and construction. Annually, the Employer, in conduct- ing its business operations, has provided from its New York office services valued in excess of $50,000 directly to entities which are located outside New York State. The Respondent admits, and I find that the Employer has at all material times been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent also ad- mits that it has been a labor organization within the meaning of Section 2(5) of the Act. II. THE FACTS The Employer, as a member of the General Contractors As- sociation of New York, and the Union are parties to a collec- tive-bargaining agreement. The agreement does not contain an exclusive hiring hall arrangement. Biagio Nicchia worked for the Employer, on and off, for about 15 years, and was a member of the Union throughout his employment. He was referred by the Union through its hiring hall whereby he appeared at the hall in the morning, signed a list, and waited for the union delegate to refer him to a job. At the jobsite, he met with a “contact, usually another member of the Union,” who gave him paperwork to complete. When Nic- chia was referred in this manner, he never met with an employ- er representative prior to beginning work. In 2004, Nicchia entered a plea of guilty to a charge of labor racketeering, specifically to conspiracy to extort the Union by placing the Union “in fear of economic harm in order to ensure individuals were given preferential jobs.” Nicchia was incar- cerated for about 15 months. After his release from prison in April 2005, he continued to be referred to work for the Em- ployer and other employers through the Union’s hiring hall for jobs covered by its contract. On July 25, 2008, a Consent Decree was entered into by the U.S. Attorney for the Eastern District of New York and the Union to “eradicate corruption and any organized crime influ- ence within the Union while preserving the Local’s strength and autonomy as the bargaining agent and representative of its membership.” As relevant here, the Decree provides for the appointment of an ethical practices attorney to investigate cor- ruption and bring disciplinary proceedings against union mem- bers who have engaged in corruption concerning the Union. The Decree also provides for the appointment of a hearing of- ficer to conduct disciplinary proceedings against union mem- bers and to remove from union membership any member who the hearing officer has determined engaged in corruption con- cerning the Union. In July 2010, Nicchia was referred for work to the Employer by Christopher Confrey, the Union’s business representative and recording/correspondence secretary. At the jobsite, Nicchia was given paperwork by a member of the Union. He was as- signed to work for the Employer operating locomotive trans- porting personnel in and out of the tunnel on a project involved with the construction of the Second Avenue Manhattan subway line. Nicchia stated that he did not meet with any employer representative before beginning work for the Employer at that time. Confrey testified similarly that when an employee is referred by the Union to work, the worker is met at the job by a union member master mechanic if one is employed on the job, or if not, by another member of the Union who provides the paper- work for the employee to complete. Confrey stated that the referrals he makes are accepted by the Employer. On April 29, 2011, the ethical practices attorney filed a dis- ciplinary proceeding against Nicchia based on the criminal conduct to which he pled guilty in 2004. On August 1, 2011, after considering the evidence, the hear- ing officer, based on the conduct Nicchia pled guilty to in 2004, found that Nicchia engaged in corruption within the meaning of the Consent Decree. The remedy sought was Nicchia’s perma- nent expulsion from membership in the Union.1 On the same day, August 1, Union Attorney James Steinberg sent an email to the Union’s business manager, office manager, and Confrey advising: Mr. Nichia has been permanently expelled from the union by decision of the hearing officer. Business Agents, if Mr. Nicchia is working in your jurisdic- tion . . . you are to contact him immediately and advise him that: (1) you have been advised by the hearing officer that he has been permanently expelled effective immediately from Local 14-14B and (2) accordingly you will be replacing him on the job starting tomorrow. Union official Confrey stated that when he received the e- mail from Steinberg, he called Nicchia and told him that he had been expelled from the Union and that he would have to replace him on the work project. Confrey and Nicchia had a good rela- tionship at that time, and Confrey conveyed to Nicchia that he regretted informing Nicchia of his replacement. According to Confrey, Nicchia replied that he “understood” and did not ob- ject to being replaced. Nicchia testified that he told Confrey that he would pursue whatever options were available. At that time, Nicchia had been a dues-paying member of the Union. Confrey replaced Nicchia by calling Master Mechanic John Hassler, and advising him that, at a proceeding before a hearing officer, Nicchia had been found guilty of corruption and had been expelled from the Union, and that “due to his expulsion I was advised by counsel to replace him immediately.” Later that day, Confrey reviewed the Union’s referral list and told Hassler that Nicchia’s replacement would be Matt Palladi- no. Confrey signed the referral slip listing Palladino as the new hire as of August 2, and Palladino began work that day. Confrey testified that he never told anyone at the Employer that Nicchia had been expelled from the Union, and never in- 1 In June 2011, Nicchia attempted to resign from the Union. In his decision, the hearing officer rejected Nicchia’s attempted resignation on the ground that it did not encompass the full relief sought by the ethical practices attorney—Nicchia’s permanent expulsion from the Union. OPERATING ENGINEERS LOCAL 14-14B (SKANSKA USA) 1039 structed anyone from the Employer to terminate Nicchia be- cause of his expulsion. Nor did he inform the Employer that Nicchia was being replaced on the project. Confrey also stated that no one from the Employer asked him why Nicchia was replaced, and he did not expect to hear from the Employer re- garding the replacement because the “day to day operations are left to the internal working of the local and the Union, and as long as the apparatus and machinery are up and running they don’t inquire as to who was doing what.” Analysis and Discussion I. THE ALLEGED VIOLATION OF SECTION 8(B)(2) OF THE ACT Section 8(b)(2) of the Act makes it an unfair labor practice for a union to: cause or attempt to cause an employer to discriminate against an employee in violation of Section (a)(3) of the Act or to dis- criminate against an employee with respect to whom mem- bership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of ac- quiring or retaining membership. Nicchia’s membership in the Union was terminated by the hearing officer who found that Nicchia had engaged in corrup- tion concerning the Union in violation of the Consent Decree. Thereafter, immediately upon receiving the hearing officer’s decision expelling Nicchia from the Union, Union Attorney Steinberg instructed union official Confrey that inasmuch as Nicchia had been expelled from the Union they should advise him that he would be replaced on his job. Confrey relayed that reason for Nicchia’s replacement to Nicchia and to Master Me- chanic Hassler. I reject the Respondent’s argument that the hearing officer’s decision was the intervening event which necessarily caused Nicchia’s replacement at work. The hearing officer’s decision did not refer to Nicchia’s employment, and mandated only that he be expelled from the Union. Rather, the Respondent clearly communicated to its officials that Nicchia must be replaced on his job because his union membership was terminated. Accord- ingly, the “actual motivation” for Nicchia’s loss of his job was that he was expelled from union membership. Graphic Com- munications Workers Local 1-M (Bang Printing), 337 NLRB 662, 674 (2002). The Supreme Court held in Radio Officers’ Union v. NLRB, 347 U.S. 17, 40 (1954), that “the policy of the Act is to insulate employees’ jobs from their organizational rights. . . . 8(b)(2) [was] designed to allow employees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood.” The Board has stated that “whenever a labor organization ‘causes the discharge of an employee, there is a rebuttable pre- sumption that [the labor organization] acted unlawfully because by such conduct [it] demonstrates its power to affect the em- ployees’ livelihood in so dramatic a way as to encourage union membership among the employees.’” Acklin Stamping Co., 351 NLRB 1263, 1263 (2007), citing Graphic Communications Workers Local 1-M (Bang Printing), 337 NRB at 673. However, as the Board further explained in Graphic Com- munications, supra at 673, a union may lawfully cause an em- ployee’s discharge “in instances where the facts show that the union action was necessary to the effective performance of its function of representing its constituency.” Accordingly, the Union may rebut the presumption of ille- gality in the discharge of Nicchia by showing that its action was “necessary to the effective performance of its function of repre- senting its constituency.” See also Operating Engineers Local 18, 204 NLRB 681, 681 (1973). Therefore, a determination must be made as to whether the Union’s reason for causing the discharge of Nicchia was suffi- cient to rebut the presumption that the discharge violated the Act. In seeking to rebut the presumption, the Union relies heav- ily on Philadelphia Typographical Union 2 (Triangle Publica- tions), 189 NLRB 829 (1971). In that case, the union’s sole reason for requesting an em- ployer to discharge employee Kelley was because of his em- bezzlement of union funds. The Board, in finding no violation by the union in requesting the discharge, found that Kelley’s conduct was “sufficiently offensive to foreclose any reasonable inference that respondent in causing his impaired employment status was guilty of action falling within the class of conduct that inherently encourage membership.” 189 NLRB at 830. However, Philadelphia Typographical is easily distinguisha- ble from the instant case. In that case, the Board found that the union’s expulsion of Kelley from membership played no role in its request that he be discharged. In addition, after finding Kel- ley guilty of embezzlement of union funds, the union requested his discharge, and again requested that he be discharged after he was expelled from union membership. Here, in contrast, the sole reason for the Union’s replacement of Nicchia was his expulsion from the Union and not his con- viction or the hearing officer’s decision expelling him from membership. Thus, despite the fact that Nicchia pled guilty in 2004 to acts constituting corruption involving the Union, the Union continued to refer him to jobs, even after he was incar- cerated. Indeed, he was referred to work with the Employer and with other employers on a regular basis for 7 years, from 2004 to August 2011, following his conviction. During that period of time, the Union did not take any action to replace him at work. Rather, he was replaced at work only when he was expelled from the Union. It is therefore quite clear that Nicchia’s criminal conviction 7 years earlier, which the Union was aware of for all that time, played no part in the Union’s decision to replace him at work until August 2011. Rather, the sole reason for Nicchia’s re- placement at work was his expulsion from the Union. Attorney Steinberg’s email to the Union’s officials makes this crystal clear. He notified them that Nicchia was expelled from the Union by the hearing officer and they should immediately ad- vise him that “accordingly you will be replacing him on the job starting tomorrow.” In arguing that the “intervening event” in the replacement of Nicchia grew out of the hearing officer’s decision to perma- nently expel him from the Union, the Respondent asserts that, in replacing Nicchia, it adhered to the spirit of the Consent Decree which sought to ensure that the Union remained free of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1040 corruption and that its membership adhered to the highest standards of integrity. The Respondent argues that it replaced Nicchia because it sought to “rid itself of corruption and main- tain jobsite integrity for its membership.” Those may be laudable goals and certainly Philadelphia Ty- pographical supports such a reason for causing the discharge of a union member. However, that was not the true reason that Nicchia was replaced. As set forth above, the true motivation for Nicchia’s discharge was that he had just been expelled from the Union. The Respondent makes several other arguments. First, it as- serts that it did not violate Section 8(b)(2) of the Act which requires that the Union cause or attempt to cause an employer to discriminate against an employee in violation of Section 8(a)(3) of the Act, because the Union did not cause the Em- ployer to replace Nicchia. Here, it is clear that the Respondent delegated its authority to hire and replace employees to the Union which is a typical arrangement in hiring hall situations. Grason Electric Co., 296 NLRB 872, 887 (1989); See Miranda Fuel Co., 140 NLRB 181, 188 (1962). Nicchia never met a representative of the Employer when he reported for work pur- suant to a referral from the Union, and the Union used its own members at the jobsite to process newly hired workers who it had referred. Further, as testified by Confrey, the Employer left the hiring and replacement decisions to the Union as long as the jobsite was operating properly. Accordingly, the Union stepped into the shoes of the Em- ployer in deciding to replace Nicchia and it is liable for its ac- tion in doing so. The Employer was not involved in that action because the Union chose not to involve it, simply because the decision was made by the Union. The Union did not have to cause the Employer to replace Nicchia because it took such action itself. Indeed, as the Supreme Court stated: [T]he Act aims at every practice, act, source or institution which in fact is used to encourage and discourage union membership by discrimination in regard to hire or tenure, term or condition of employment. Local 357, Teamsters v. N.L.R.B., 365 U.S. 675, 676 (1961). The Respondent further argues that, according to Confrey’s testimony, since Nicchia acquiesced in the Union’s decision to replace him, he waived any right that he may have had to re- main on the job. However, according to Nicchia, he told Con- frey that he would pursue whatever options were available. It is not necessary to resolve this issue. Even assuming that I credit Confrey’s testimony, there was little Nicchia could have done at the time to have the Union reverse its decision to re- place him. Confrey told him that he had been expelled from the Union and he was being replaced. The fact that Nicchia may have said that he “understood” and may have even stated that he did not object to being replaced, does not mean that he waived any legal right to contest his being replaced. Nicchia thus could not have expected to request reinstatement from the Union which had just replaced him on the job and it is clear that any further complaint would have been fruitless. Miami Valley Carpenters District Council, 129 NLRB 517, 523 (1960). II. THE ALLEGED VIOLATION OF SECTION 8(B)(1)(A) OF THE ACT The complaint also alleges that the Respondent, by its ac- tions in causing the Employer to replace Nicchia violated Sec- tion 8(b)(1)(A) of the Act. That section states, as relevant here- in, that it shall be an unfair labor practice for a union to restrain or coerce employees in the exercise of the rights guaranteed in section 7 of the Act. The Board routinely finds a derivative violation of Section 8)(b)(1)(A) where an 8(b)(2) violation has been proven. The reason is that the union’s causation of an employee’s discharge necessarily constitutes restraint and coercion of the worker’s exercise of his Section 7 rights. Town & Country Supermarkets, 340 NLRB 1410, 1411 (2004); Postal Workers, 350 NLRB 219, 222 (2007). The General Counsel’s brief alleges that the Respondent in- dependently violated its duty of fair representation toward Nic- chia by causing his replacement. I agree. The discharge of Nic- chia because he was not a member of the Union was an inde- pendent violation of Section 8(b)(1)(A) in that the Respondent has violated its duty of fair representation toward him. Letter Carriers Branch 3126 (Postal Service), 330 NLRB 587, 587 (2000). By causing the discharge of Nicchia because of his non- membership in the Union, the Respondent encouraged mem- bership therein by demonstrating that maintenance of a job is conditioned on continued membership in the Union. CONCLUSIONS OF LAW 1. The Respondent, International Union of Operating Engi- neers, Local 14-14B, is a labor organization within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Employer, Skanska USA, is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 3. By attempting to cause and causing the Employer to dis- charge Biagio Nicchia from his employment because he was not a member of the Union and for reasons other than the fail- ure to tender uniformly required initiation fees and periodic dues, and by causing the Employer to discriminate against its employees in violation of Section 8(a)(3) of the Act in violation of Section 8(b)(2) of the Act, the Respondent violated Section 8(b)(2) and (1)(A) of the Act. 4. By causing the discharge of an employee because he was not a member of the Union, the Respondent has violated its duty of fair representation in violation of Section 8(b)(1)(A) of the Act. THE REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Inasmuch as I have found that the Respondent has been del- egated by the Employer the responsibility for the hire and re- placement of employees, I find that the Respondent must offer to reinstate Biagio Nicchia. The Respondent, having discriminatorily discharged an em- ployee, must offer him reinstatement and make him whole for OPERATING ENGINEERS LOCAL 14-14B (SKANSKA USA) 1041 any loss of earnings and other benefits. Backpay shall be com- puted in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010), enf. de- nied on other grounds sub. nom. Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011). The Respondent, in its brief, argues that Nicchia’s backpay should be limited to three weeks inasmuch as the locomotive work that Nicchia was performing was discontinued about three weeks after his replacement. Nevertheless, there was testimony that the Second Avenue Subway construction job was ongoing and that the Respondent continues to refer workers to that pro- ject for work with the Employer to which Nicchia could possi- bly be referred. I will leave this issue to the compliance part of this proceeding. The Respondent shall also be required to remove from its files any and all references to the replacement of Biagio Nic- chia and to notify him in writing that this has been done and that such adverse actions will not be used against him in any way. [Recommended Order omitted from publication.]