Altemose Construction Co.

National Labor Relations Board - Board Decisions

Apr 18, 1974

210 N.L.R.B. 138 (N.L.R.B. 1974)

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.