Framan Mechanical Inc.

National Labor Relations Board - Board Decisions

Oct 29, 2004

343 N.L.R.B. 408 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 53
408
Framan Mechanical Inc. and Plumbers and Pipefit-
ters Local Union No. 9, UA. Cases 22–CA–23845
and 22–CA–24031
October 29, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On June 21, 2001, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
I. INTRODUCTION
This case concerns allegations that the Respondent
committed a number of unfair labor practices in the wake
of a union organizing effort by some of its plumb-
ing/pipefitting employees in early 2000.
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) of the Act by: interrogating em-
ployees about their union activities; creating the impres-
sion that its employees’ union activities were under sur-
veillance; and threatening employees with job loss if they
selected a union to represent them.
The judge also found that the Respondent violated
Section 8(a)(3) and (1) by: laying off employees Brian
Yutko and Kenyatte Wingo;2 demoting employee Edgar
Harris from journeyman to apprentice, reducing his pay,
issuing him two written warnings, and laying him off;
and issuing a written warning to employee Thomas
Lanza and laying him off. For the reasons described

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The complaint alleges that Yutko and Wingo were “laid off”; how-
ever, the judge found that they were “discharged.” Nonetheless, in
parts of his decision, the judge states that Yutko and Wingo were “laid
off.” In its exceptions, the Respondent contends that it intended to “lay
off”—rather than “discharge”—Yutko and Wingo. The Respondent’s
stated intention is confirmed by the fact that it subsequently offered to
recall Yutko from layoff status. Since the complaint alleged that the
Respondent unlawfully laid off Yutko and Wingo, and since the facts
are not inconsistent with this allegation, we find that the issue here is
whether the Respondent unlawfully laid off Yutko and Wingo.
below, we disagree with these findings and we reverse
them accordingly.3
II. BACKGROUND
A. The Respondent’s Business
The Respondent is a contractor based in Freehold,
New Jersey, that provides plumbing, pipefitting, HVAC,
ductwork, and sprinkler services.4 Frank Manginelli is
the Respondent’s president and owner.
The Respondent frequently bids on public construction
projects in the State of New Jersey. The contracts per-
taining to these projects are governed by the New Jersey
Prevailing Wage Act,5 which requires contractors—even
those that are not unionized—to pay wages at the union
contract rate.
In early 2000,6 the time period at issue, the Respon-
dent’s plumbing/pipefitting work force consisted of,
among others, Foreman Frank Calello;7 journeyman
plumber/pipefitters Pete Felenczak, Vinnie Leto, Thomas
Lanza, and Brian Yutko; and plumber-apprentices Edgar
Harris, Eric Christ, and Kenyatte Wingo. Yutko and
Wingo were the two least senior of these employees.
The judge found that these individuals were included in a
“core group” of employees that the Respondent made
every effort to keep employed; in this regard, the Re-
spondent frequently moved employees in the “core”
group from project to project as the need arose.8
During the relevant time period, the Respondent was
working on three projects of particular relevance to the
events of this case: (1) an HVAC contract for the biology
building at the College of New Jersey (CNJ);9 (2) a
plumbing contract for the science building at CNJ; and
(3) a sprinkler contract for the Newark Armory. These
were “lump sum” contracts, under which the Respondent
agreed to complete the contracted-for work by a certain

3 There are no exceptions to the judge’s findings that the Respondent
did not interrogate employees and threaten them with job loss, in viola-
tion of Sec. 8(a)(1), by soliciting questions from employees at an em-
ployee meeting on February 15, 2000, and by telling employees that, if
a collective-bargaining agreement were in place, the Respondent might
not be able to employ them on jobs in other parts of the state. Further,
there are no exceptions to the judge’s finding that the Respondent made
valid offers of reinstatement to Yutko, Harris, and Lanza in June of
2000.
4 Even though the Respondent employs other types of employees,
such as sheetmetal workers, the only employees involved in this case
are plumbing/pipefitting employees.
5 See, e.g., N.J. Stat. Ann. § 34:11–56.25 et. seq.
6 All dates herein are in 2000, unless otherwise noted.
7 The Respondent has conceded that Calello is a supervisor under
Sec. 2(11) of the Act.
8 The judge apparently based this finding on Manginelli’s testimony
(see Tr. 1248–1250).
9 This project required the Respondent to use plumbers/pipefitters, as
well as sheetmetal workers.
FRAMAN MECHANICAL, INC. 409
period of time and for a certain price. The CNJ contracts
in particular contained liquidated damages provisions,
under which the Respondent would incur a specified
amount of liability for each day the project went over
schedule.
The contracts allowed the Respondent some flexibility
so that, if it was unable to meet a deadline through no
fault of its own, it could request more money from CNJ
and/or could sue the party that was originally at fault for
the delay if a subsequent dispute arose. Further, the CNJ
contracts allowed the Respondent broad discretion in
making decisions regarding the methods, means, and
manpower it would employ in performing the contracted-
for work.
The Respondent began HVAC work on the CNJ biol-
ogy building in August 1998, and it completed this work
in August 2000. In the fall of 1998, the Respondent also
began work on the CNJ science building project. This
project consisted of eight “phases” that involved several
connected buildings within the science building complex.
Phase 1 of the project, which began in October 1998,
involved the chemistry, physics, and mathematics build-
ings; phase 1 was scheduled to be completed by June 15,
2000. Phase 2, which involved the demolition of old
plumbing and fixtures and the installation of new piping
and fixtures in the former nursing building, which was
originally scheduled to begin September 1, 1999, actu-
ally began in November 1999. The entire project was
scheduled for completion by August 15, 2001.10
B. Delays in the Science Building Project and
the Respondent’s Requests for Relief
By the summer of 1999, there were substantial delays
in the science building project that were primarily caused
by the general contractor. As a result, the project fell
approximately 4 months behind schedule. In order to
avoid liability for liquidated damages, the Respondent’s
president and owner, Manginelli, sent a letter on Sep-
tember 13, 1999, to Cambridge Construction Manage-
ment, the construction management company for the
project, requesting a “change order” that would permit
the Respondent to add “four mechanics for a period of 17
weeks once the job starts moving at a good pace” (em-

10 The proposed beginning and completion dates for the eight phases
are set out in Cambridge Construction Management’s “Phasing
Scheme” of Aug. 25, 1998 (GC Exh. 11c):
Phase 1: 10/11/98–6/15/00 Phase 5: 6/15/00–8/15/00
Phase 2: 9/1/99–6/15/00 Phase 6: 7/15/00–11/15/00
Phase 3: 6/15/00–11/15/00 Phase 7: 8/15/00–6/1/01
Phase 4: 6/15/00–3/15/01 Phase 8: 8/15/00–8/15/01
phasis added) (R. Exh. 18). The next day, Cambridge
denied this request and asked the Respondent to provide
more detailed information to substantiate its claim that it
needed additional manpower (R. Exh. 19). In response,
Manginelli retained William Loew, a private claims con-
sultant, to assist the Respondent in obtaining an exten-
sion of time or a change order allowing for additional
compensation.
Although not mentioned by the judge, Loew testified
without contradiction that Manginelli contacted him in
October 1999, and that Manginelli wanted to protect his
interest on the project both by obtaining additional time
to complete his work and thus avoid liquidated damages,
and by obtaining additional compensation for the delays
which he was experiencing and which he thought he
would continue to experience on the project. Loew fur-
ther testified that he recommended to Manginelli that he
write a letter to Cambridge requesting an extension of
time because the CJS contract documents required that a
request for an extension of time be given on a timely
basis. He also recommended that Manginelli warn that if
the extension of time were not given, it would “create
what we know . . . as a ‘constructive acceleration’ at the
end of the project.”11 (Tr. 929.)
Manginelli sent this second letter to Cambridge on De-
cember 10, 1999, requesting, as Loew recommended, an
extension of time based on the fact that the science build-
ing project was now 6 months behind schedule. The
letter stated, in relevant part: “[I]f our request for an ex-
tension of time is not granted, we will be required to ac-
celerate our work. This in turn will cause us to suffer
labor inefficiency in the form of disruption, crowding
and acceleration (increased crew size, overtime, multiple
shifts and loss of morale)” (GC Exh. 24). On December
29, 1999, Cambridge, through its Project Executive Brian
Murray, again denied the Respondent’s request for an
extension (GC Exh. 25).
Nonetheless, Manginelli persisted in seeking an exten-
sion or a change order. In early February, he requested
that Loew analyze and report on the status of the science
building project. Loew requested that Bob Cary, a lead
schedule engineer, visit the science building project and
issue a report. Cary visited the science building on Feb-
ruary 9 and submitted his notes to Loew on February 10

11 Loew explained that a “constructive acceleration” occurs when
“[t]here’s no order to accelerate, but the owner by its wrongful refusal
to give an extension of time in fact creates an acceleration situation
constructively.” (Tr. 981.) As Loew explained, constructive accelera-
tions cost contractors money because “once you have a building, you
have a finite amount of space. Once you start putting in the plumbers
[sic], the finish trades in a confined space; and you’re rushed to get
done at the end of the project, you get congestion and you lack . . .
efficiency on the project, which cost the contractor money.” (Tr. 934.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD410
(GC Exh. 26). Based on his analysis, Cary concluded
that phase 1 was 4.5 to 5 months behind the target date of
June 15, 2000. Loew further testified that he made a
“quick verbal report” to Manginelli between February 9
and February 14 (Tr. 971) and that he sent Manginelli a
letter on February 14 that reported the results of Cary’s
findings (GC Exh. 27). Loew concluded that the project
was 4-1/2 months behind, and that, if the Respondent did
not get the relief it requested, it stood to lose approxi-
mately $150,000 in contractual liquidated damages. (Tr.
959.) However, Cambridge never approved an extension
or change order.
By February, the science building project was seri-
ously delayed, and sprinkler work, which was scheduled
to start in the nursing building at that time, could not
begin.
C. The Union Organizing Effort
Around December 1999, employee Yutko telephoned
the Union and was referred to organizer Thomas Tighe,
who, in turn, spoke with Yutko about the possibility of
union representation at the Respondent. Tighe then con-
tacted a number of other employees, including Harris,
Lanza, and Leto, either by telephone or in person.
Yutko, Wingo, Harris, and Lanza, among others, signed
authorization cards. Leto, however, refused to sign a
card. The record reflects that, by February, the Respon-
dent was at least generally aware that some of its em-
ployees had spoken with the Union.
On February 11, Manginelli had individual discussions
with some employees, including Harris and Lanza, about
the union organizing effort. During these discussions,
Manginelli revealed that he was aware that employees
had been talking to the Union and that he was specifi-
cally aware that Harris had done so.12 Manginelli also
questioned Harris and Lanza about their discussions with
the Union and made statements indicating that employ-
ees might lose their jobs if a union came in, and that
Manginelli could no longer trust Harris and Lanza be-
cause they had spoken with the Union. As set out above,
we agree with the judge’s findings that the Respondent’s
conduct violated Section 8(a)(1).
We will now discuss in turn the 8(a)(3) violations
found by the judge and explain our reasons for reversing
his findings of these violations.

12 During Manginelli’s discussion with Lanza, Lanza informed
Manginelli that Lanza too had spoken with the Union.
III. THE 8(a)(3) ALLEGATIONS
A. The Layoffs of Yutko and Wingo
1. Facts
In early February, the three plumbing/pipefitting em-
ployees working at the science building project were
Yutko, Wingo, and Felenczak. Felenczak was the lead
journeyman plumber/pipefitter on the project. On Febru-
ary 10, the Respondent laid off Yutko and Wingo, who,
as noted above, were its two least senior plumb-
ing/pipefitting employees for the asserted reason that
delays in the science building project where they were
working had resulted in a shortage of work. The next
day, the Respondent transferred plumber-apprentice
Christ from its project at the Newark Armory to the sci-
ence building project. Thus, during the week following
these layoffs, the Respondent employed Christ and
Felenczak at the science building project.
Soon after Yutko and Wingo were discharged, the Re-
spondent employed Manginelli’s brother-in-law, Mike
Durkot, to work at its project at the Newark Armory.
Lanza, whose testimony the judge generally credited,
testified that he worked at the Newark Armory from Feb-
ruary 7 until March 13, when he was assigned to the bi-
ology building. (Tr. 834–835.) Lanza further testified
that Durkot, who was a computer programmer, not a
plumber, came to work with him at the Newark Armory
in the middle of February (Tr. 829) and worked with him
for about 6 weeks, until Lanza’s assignment to the biol-
ogy building. (Tr. 832.) Lanza testified that Durkot was
a “general helper” who helped Lanza “remove ceiling
tile, drill holes, install hangers, helped cut pipe and in-
stall pipe.” (Tr. 832.)
In early March, the Respondent subcontracted the
sprinkler work at the Armory to Preferred Sprinkler, a
subcontractor it routinely used for this type of work. It
then transferred Lanza, who had been assigned to do
sprinkler work there, to its biology building project.
2. Findings
Applying the analysis set forth in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), the judge found that
the Respondent violated Section 8(a)(3) and (1) by dis-
charging Yutko and Wingo on February 10. We dis-
agree.
In Wright Line, supra, the Board established the ana-
lytical framework for determining whether an employer
has discriminated against an employee in violation of
Section 8(a)(3). Under that framework, in which unlaw-
ful intent is an essential element, the General Counsel
must first, by a preponderance of the evidence, make a
showing “sufficient to support the inference that pro-
FRAMAN MECHANICAL, INC. 411
tected conduct was a ‘motivating factor’ in the em-
ployer’s decision.”13 251 NLRB at 1089. Only if the
General Counsel makes such a showing, is the burden on
the employer “to demonstrate [by a preponderance of the
evidence] that the same action would have been taken
even in the absence of the protected conduct.” Id. The
ultimate burden remains, however, with the General
Counsel. Id. at 1088 fn. 11.
Here, the judge found that the General Counsel met his
initial burden of proving that Yutko’s and Wingo’s union
activities were a motivating factor in the Respondent’s
decision to lay them off. The Respondent contends that
it would have laid them off even in the absence of their
union activities. In this regard, the Respondent asserts
that there was a substantial reduction in work on the sci-
ence building project due to delays on that project, and
that, therefore, there was not enough work to warrant
Yutko’s and Wingo’s continued employment. The Re-
spondent further claims that, because it could not obtain
an extension or change order, it stood to lose over
$150,000 in liquidated damages as a result of the delays,
and it had to cut labor costs because these were the only
costs within its control. Thus, the Respondent maintains
that, because it only had enough work for two
plumber/pipefitters, it laid off Yutko and Wingo because
they were the two least senior employees, and instead
employed on the project two more senior employees—
Felenczak, who had already been working there as the
lead plumber/pipefitter, and Christ, an apprentice whom
it transferred from the Newark Armory.
The judge found, however, that the Respondent did not
establish a persuasive economic justification for the lay-
offs of Yutko and Wingo. In reaching this conclusion,
the judge focused on the first two phases of the science
building project and framed the issue as whether Re-
spondent was forced to lay off Yutko and Wingo because
of a lack of work. Although the judge acknowledged
that the science building project had suffered serious
delays, he found that there was nonetheless sufficient
work for Yutko and Wingo on that project. In so finding,
the judge—presumably based on the Respondent’s re-

13 To satisfy his initial burden of showing discriminatory motivation,
the General Counsel must show that the employee engaged in union
activity, that the employer knew of the union activity, and that the
employer exhibited antiunion animus. Member Schaumber notes that
the Board and the circuit courts of appeal have variously described the
evidentiary elements of the General Counsel’s initial burden of proof
under Wright Line, sometimes adding as a fourth element the necessity
for there to be a causal nexus between the antiunion animus and the
adverse employment action. See, e.g., American Gardens Management
Co., 338 NLRB 644, 645 (2002). As stated in Shearer’s Foods, 340
NLRB 1093, 1094 fn. 4 (2003), Member Schaumber agrees with this
addition to the formulation.
quest for more manpower and an extension of time on
the project—theorized that the delays would result in the
need for more, rather than fewer, employees. He also
relied on the credited testimony of Cambridge Project
Executive Murray and CNJ field superintendent Rogers
that there was enough work for three or four employees
on the project.14
Additionally, the judge found that the Respondent’s
shifting around of employees following the layoffs of
Yutko and Wingo demonstrated that the Respondent had,
in fact, enough work somewhere for Yutko and Wingo.
At the outset, the judge pointed out that the fact that
Christ was not even transferred to the science building
project until after the discharges undercut the Respon-
dent’s argument that it only had enough work for two
plumbing/pipefitting employees—Christ and Felenczak.
In addition, the judge noted that the Respondent hired
Manginelli’s brother-in-law, Durkot, to “replace” Christ
after he was transferred. In light of the Respondent’s
hiring of Durkot, the judge implicitly reasoned that the
fact that the Respondent—which the judge found had a
policy of trying to keep its “core” group of employees
employed—had work at the Newark Armory that war-
ranted this hiring further undermined its argument that it
had no work for Yutko and Wingo. Finally, the judge
appears to have found that the Respondent deliberately
took work from its employees by subcontracting the
sprinkler work at the Armory.
Relying on this analysis, the judge implicitly con-
cluded that there was not, in fact, a shortage of work that
warranted the layoffs of Yutko and Wingo, and that the
Respondent used this as a pretext for laying them off
because they had engaged in union activity. We find that
the record neither supports the judge’s analysis nor justi-
fies his conclusion.
Although the judge questioned the economic efficacy
of the Respondent’s decision to lay off Yutko and Wingo
and found it wanting, we emphasize at the outset that
“the crucial factor is not whether the business reason
cited by [the employer was] good or bad, but whether [it

14 It appears that William Rogers, CNJ’s field superintendent for the
project, disagreed with the Respondent’s decision to lay off Yutko and
Wingo and use the two-man team of Christ and Felenczak, because
Yutko and Wingo had been working on gas piping in the chemistry
section of the science building, and this work had not yet been com-
pleted. At the hearing, Rogers testified that he was also generally con-
cerned about the Respondent’s staffing of this project because there
was work to be done in the chemistry, physics, and nursing sections of
the science building, but the same individuals were jumping to and
from the three locations, and nothing was being completed. Rogers
testified that there was sufficient work for three or four plumbers at the
science building. Murray, the project executive for Cambridge, also
testified that there was enough work for three or four plumbers on that
project.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD412
was] honestly invoked and [was], in fact, the cause of the
change.” Ryder Distribution Resources, 311 NLRB 814,
816 (1993), quoting NLRB v. Savoy Laundry, 327 F.2d
370, 371 (2d. Cir. 1964), enfg. in part 137 NLRB 306
(1962). Further, in making this determination, it is well
settled that the Board should not substitute its own busi-
ness judgment for that of the employer in evaluating
whether an employer’s conduct is unlawful. Id. For the
following reasons, we find that the Respondent relied on
valid, nondiscriminatory business considerations in lay-
ing off Yutko and Wingo.
Assuming arguendo that the General Counsel met his
initial burden of proving that the layoffs were unlawfully
motivated,15 we find that the Respondent has shown that
it would have laid off Yutko and Wingo even in the ab-
sence of their union activities. In reaching this conclu-
sion, we do not limit our inquiry, as the judge did, to
phases 1 and 2 alone and in isolation. Rather, we con-
sider the issue of whether the Respondent’s decision to
lay off Yutko and Wingo was justified by a demonstrated
need to reduce labor costs caused by the delay in the sci-
ence building project considered as a whole.
The Respondent has presented overwhelming evidence
that the science building project where Yutko and Wingo
were working was fraught with serious delays. As the
Respondent has demonstrated, it stood to incur losses in
the six figures as a result of its inability to obtain any
relief from the economic effects of these delays. Faced
with such losses, the Respondent was forced to cut costs
from the project. Since labor costs were the only costs it
could possibly cut in these circumstances, it decided to
lay off Yutko and Wingo, who were, as noted above, the
two least senior of its plumbing/pipefitting employees.
Significantly, the Respondent did not hire any new
plumbing/pipefitting employees after these layoffs.
Rather, in June, apparently when work picked up, the
Respondent recalled Yutko to work. The fact that Yutko
declined the offer does not alter the fact that, as the judge
found, the offer was valid.
Contrary to the judge, we believe that the Respondent
had no choice but to reduce its work force at the science
building project so that it could recoup–or at least mini-

15 As noted above at fn. 13, as part of its initial burden, the General
Counsel must show that the employee was engaged in union activity
and that the employer knew of that union activity. In the present case,
as explained above, the Respondent was generally aware of union ac-
tivity in early February, but the record does not indicate that it had
direct knowledge that Yutko and Wingo were engaged in union activity
when it laid them off. At sec. II(c), par. 8 of his decision, the judge
implicitly found that the Respondent knew of Yutko’s and Wingo’s
union activities when it laid them off. We will assume, arguendo, that
the judge’s inference of direct knowledge is not erroneous. Cf. Music
Express East, Inc., 340 NLRB 1063 (2003).
mize—its potential losses. It is common knowledge that,
in the construction industry, work fluctuates and that
unexpected events may occur that require an employer
such as the Respondent to adjust its work force accord-
ingly so that the project is completed in a timely, cost
efficient manner. In recognition of this, the Respon-
dent’s contract with CNJ for the science building project
gave it control over the methods, means, and manpower
it chose to utilize in performing work on the project. On
this record, we find that the Respondent has established
that Yutko and Wingo were laid off for legitimate eco-
nomic reasons.16
The difficult economic circumstances surrounding the
science building project, and the Respondent’s need to
respond to them by cutting its work force, were not al-
tered by the fact that some union organizational activity
had taken place around the same time. In similar cir-
cumstances, the Board has recognized an employer’s
right to exercise its business judgment in times of finan-
cial difficulty, even in the context of union organiza-
tional activity. In Gem Urethane Corp., 284 NLRB 1349
(1987), for example, the Board found that the layoff of
23 employees during a union organization effort did not
violate the Act because it was undisputed that the em-
ployer was experiencing financial difficulty that necessi-
tated the discharges. In reaching this finding, the Board
declined to substitute its judgment for that of the em-
ployer, and stated that the issue of “[w]hether procedures
other than a layoff might have been more or equally ef-
fective in remedying the Respondent’s economic loss is
not a matter the Board is empowered to decide.” Id. at
1350.
Our dissenting colleague maintains that the judge was
warranted in finding that the Respondent’s explanation
for laying off Yutko and Wingo was “pretextual.” In so
finding, he essentially relies on the following: (1) the
Respondent’s “predictions” that the delays in the science
building project would result in the need for more em-
ployees; (2) the testimony of Cambridge Project Execu-
tive Murray and CNJ Field Superintendent Rogers to the
effect that there was sufficient work at the project for
three or four plumbing/pipefitting employees; and (3) the
Respondent’s hiring of Manginelli’s brother-in-law,
Durkot, to perform work at the Newark Armory after

16 In so finding, we emphasize that the Respondent’s consistent tes-
timony was that there was a slowdown in work and that the Respondent
corroborated this testimony with documentary evidence. Thus, the
facts here are readily distinguishable from those in Davey Roofing, Inc.,
341 NLRB 222, 223 (2004), where, in adopting the judge’s finding that
the respondent violated Sec. 8(a)(3) by laying off three employees, we
emphasized that the respondent’s witness “gave inconsistent and uncor-
roborated testimony regarding the slowdown of available work,” and
that the testimony was unsupported by any documentary evidence.
FRAMAN MECHANICAL, INC. 413
Christ was transferred to the science building project.
These contentions have no merit.
Our dissenting colleague refers, first, to the “predic-
tions” made by the Respondent prior to the layoffs of
Yutko and Wingo—as purportedly evidenced by its re-
quests for additional manpower and an extension of
time—that the delays in the science building project
would result in its needing more, rather than fewer, em-
ployees. We disagree with our dissenting colleague’s
contention that these predictions are inconsistent with the
Respondent’s subsequent need to cut its work force at
that project. These were merely the Respondent’s pre-
dictions; they do not constitute evidence that there was,
in fact, enough work.
Significantly, as Loew’s uncontradicted testimony, set
out above, makes clear, these predictions were made
solely to support the Respondent’s requests for additional
manpower and an extension of time to complete the pro-
ject as a whole. The requests were not limited, as the
judge apparently found, to phases 1 and 2 alone. Further,
there is no evidence that they formed any basis for the
Respondent’s decisions regarding the actual staffing of
the science building project. Indeed, the Respondent’s
September 13, 1999 letter speaks of the need for mechan-
ics “once the job starts moving at a good pace.” Obvi-
ously, the job was not “moving at a good pace” in Febru-
ary. Accordingly, contrary to our dissenting colleague’s
assertion, it cannot be said that the September 13, 1999
letter evidenced that the Respondent needed more
plumbers in February. Further, as Loew’s testimony also
made clear, the December 10, 1999 letter’s reference to
the need for “acceleration” of work with consequent need
for “increased crew size” had as its timeframe the end of
the project as a whole—scheduled for summer 2001—
not phases 1 and 2. Simply put, there is no reason, as an
evidentiary matter, to limit the application of the Re-
spondent’s September 13 and December 10, 1999 letters
to phases 1 and 2, and the judge erred by doing so. By
relying on the judge’s flawed analysis to adopt his result,
our dissenting colleague only compounds the error.
Our dissenting colleague further contends that the tes-
timony of Murray and Rogers demonstrates that there
was work on the science building project for three or four
employees. Relying on this testimony, our dissenting
colleague has substituted the judgment of these individu-
als—who were, at most, peripherally involved with the
Respondent’s work on the project—for the Respondent’s
knowledge of its own business operations and staffing
needs. Our dissenting colleague asserts that the above
testimony was implicitly credited over President and
Owner Manginelli’s testimony that there was only
enough work for two employees. However, the fact is
that Murray and Rogers merely gave their opinion that
there was work for three or four employees; Manginelli
gave a contrary, albeit more informed, opinion. As we
see it, all of these witnesses are credible insofar as they
each gave an honest opinion as to the staffing require-
ments of the science building project.17 What matters,
though, is that the Respondent, as the manager of its
business operations and employees, is the party that is
most knowledgeable about its manpower needs—and its
potential liability—at the science building project, con-
sidered as a whole, as well as its manpower needs at
other projects, and it is the Respondent that gets to “call
the shots” at the end of the day. The contract for the sci-
ence building project recognizes as much, as it gives the
Respondent flexibility in determining its staffing needs.
We also note that, because there is no evidence that the
Respondent subsequently hired new plumbing/pipefitting
employees, Manginelli’s opinion turned out to be well-
founded. Finally, that the Respondent did not need to
keep Yutko and Wingo on the science building project to
maintain a successful pace of work is demonstrated by
the fact that the Respondent was never written up or oth-
erwise issued a warning for delaying the progress of the
project.
Finally, our dissenting colleague asserts that, even if
there was not enough work on the science building pro-
ject for Yutko and Wingo, the evidence in the record
shows that the Respondent had work available for them
elsewhere—as primarily evidenced by the fact that the
Respondent hired Durkot to work at the Newark Armory,
where Christ had been working prior to his transfer to the
science building project.18 Our dissenting colleague pos-
tulates that the Respondent, in the interest of keeping its
“core group” of employees employed, could have al-
lowed Yutko and Wingo to work at the Armory instead

17 In this regard, we note that at the hearing, the judge observed to
Loew, who was testifying, that the opinions offered by Murray and
Rogers were different from Manginelli’s. Loew responded: “Well,
because they were writing the checks, okay. They get paid on a time
and material basis. Mr. Manginelli works on a lump sum basis. Their
motivation is totally different.” (Tr. 966–967.)
18 Our dissenting colleague also points out, as the judge did, that
Christ, one of the two employees for whom it had work at the Science
building project, was not even transferred to the project until after
Yutko and Wingo were laid off. We do not find this fact to be signifi-
cant. As discussed above, the Respondent has a great deal of discretion
in making decisions regarding the staffing of its own projects. Thus,
given its determination that there was only work for two employees on
the science building project, it was well within its rights to transfer
Christ, who was more senior than Yutko and Wingo, over to that pro-
ject to work with Felenczak, and to lay off Yutko and Wingo. Having
found that these layoffs were based on nondiscriminatory economic
considerations, it is not for us to examine the Respondent’s business
reasons underlying its decision to transfer Christ at the expense of two
less senior employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD414
of hiring Manginelli’s brother-in-law. This is pure
speculation.19
Our dissenting colleague erroneously assumes that, af-
ter Christ was transferred, the Respondent hired Durkot
to perform work at the Newark Armory project that
Yutko and Wingo could have performed had they been
transferred to that project rather than laid off. In fact, as
explained above, Durkot, who was not a plumber,
worked as a “general helper” to Lanza for about 6 weeks.
We find nothing unlawful in the Respondent’s choosing
to have, in effect, a laborer perform this work rather than
a journeyman and/or an apprentice plumber. Nonethe-
less, even if Durkot was performing work that Yutko and
Wingo could have performed, we believe that, in these
circumstances, it is not within the Board’s discretion to
decide how the Respondent should have staffed this pro-
ject.20
In sum, in light of all of the evidence detailed above,
we find that the Respondent has shown that it would
have laid off Yutko and Wingo even in the absence of
their union activities. The fact that the Respondent made
a valid offer of recall to Yutko in June only underscores
our finding that the layoffs were made for legitimate
business reasons.21 We therefore reverse the judge’s
finding that the layoffs violated Section 8(a)(3) and (1),
and we dismiss these allegations.22

19 In any case, the Respondent’s supposed goal of keeping its “core”
group of employees employed is overstated with respect to Wingo, who
had been employed by the Respondent for less than 2 months at the
time of his discharge. Our dissenting colleague maintains that, even
though Wingo had been employed for such a short time, he was never-
theless a permanent employee of the Respondent. This fact, however,
does not make Wingo a core employee.
20 Given that there is nothing in the Act that prohibits an employer
from engaging in nepotism, we disagree with our dissenting colleague
that the Respondent’s favoring of Manginelli’s brother-in-law over one
of its permanent employees constitutes evidence that the Respondent
violated the Act. Airborne Express, 338 NLRB 597, 606 (2002)
(“Nepotism, one of the older human social behaviors, does not consti-
tute evidence that the employer is engaging in illegal discrimination.”).
21 Our dissenting colleague contends that the recall of Yutko “does
not erase the violations that were committed.” However, since we have
already—and independently—found that the Respondent’s layoffs of
Yutko and Wingo were not unlawful, there are no violations to “erase.”
Rather, the fact that the Respondent recalled Yutko only confirms what
we have already found, that the layoffs of Yutko and Wingo were not
unlawfully motivated.
22 Further, in finding that the layoffs of Yutko and Wingo were not
unlawful, we find—and our dissenting colleague agrees—that the judge
erred in relying on the Respondent’s subcontracting of sprinkler work
to Preferred Sprinkler at the Newark Armory as a basis for reaching his
contrary finding. There is no allegation in the complaint, and there was
no evidence presented, that the Respondent subcontracted work in order
to reduce the work of its own employees. There is, however, evidence
that, even before the onset of organizational activity, it was common
practice for the Respondent to sometimes subcontract its sprinkler work
to Preferred.
B. The Demotion of Harris
1. Facts
As noted above, in January, Manginelli designated
Harris, who was a third-year apprentice, as a journeyman
plumber/pipefitter and gave him a corresponding pay
raise. Manginelli testified without contradiction that he
decided to elevate Harris to journeyman after he had
hired Wingo as an apprentice in order to maintain a 2-to-
1 or 3-to-1 ratio of journeyman plumber/pipefitters to
apprentices.
On January 12, after the Respondent had already ele-
vated Harris to journeyman for its own purposes,
Manginelli wrote a letter to Robert Colangelo, the ap-
prenticeship coordinator for the Monmouth County
School District, formally requesting permission to ele-
vate Harris to journeyman status. In a letter dated Febru-
ary 15, Colangelo denied this request on the grounds that
Harris had not yet completed the requisite hours of re-
lated training courses, as mandated by the applicable
regulations. Colangelo stated that, pursuant to these
regulations, an individual must complete 4 years of con-
tinuous employment consisting of 8000 hours and 576
hours of related training courses in order to be eligible
for journeyman status.23 When the Respondent elevated
Harris, he had only taken 444 hours of the required train-
ing courses.
On February 24, after receiving the letter from Colan-
gelo, Manginelli informed Harris that he could not be
elevated to journeyman status, and that he would be re-
turned to apprentice status the following week.
Manginelli further informed Harris that, consistent with
this demotion, his pay would revert to the apprentice
rate.
2. Findings
The judge concluded that the Respondent violated Sec-
tion 8(a)(3) and (1) by demoting Harris from journeyman
to apprentice and by reducing his pay to the apprentice
rate. The Respondent asserts that it had no choice but to
demote Harris and to reduce his pay because he did not
meet the qualifications for elevation to journeyman status
under the applicable regulations.
The judge found that the Respondent’s asserted de-
fense failed because, even though Harris did not qualify
for journeyman status under the applicable regulations,
“this [did] not mean that [the Respondent] could not call
Harris whatever [it] wanted” or that it could not continue

23 In his letter to the Respondent, Colangelo stated that an individual
at the U.S. Department of Labor, Bureau of Apprenticeship and Train-
ing, was his source for the Federal requirements for journeyman status.
Neither the General Counsel nor the Respondent has challenged Colan-
gelo’s interpretation of these regulations.
FRAMAN MECHANICAL, INC. 415
to pay him at the journeyman rate.24 The judge further
reasoned that Harris’ demotion was unlawful because it
was related to Wingo’s lay off, which, as explained
above, he also found to be unlawful. Thus, the judge
found that the Respondent, in the interests of maintaining
the desired journeyman-to-apprentice ratio, would not
have been able to demote Harris back to apprentice status
had Wingo not been unlawfully laid off.25 For these rea-
sons, the judge implicitly found that the Respondent, in
demoting Harris, did not rely on Harris’ lack of qualifica-
tion for journeyman status, but rather used this as a pre-
text for punishing him for engaging in union activity.
The record does not support the judge’s finding.
Assuming arguendo that the General Counsel has met
his initial burden of showing that Harris’ demotion and
reduction in pay were unlawfully motivated, we find,
contrary to the judge, that the Respondent has demon-
strated that it would have taken these actions even in the
absence of Harris’ union activities. At the outset, given
our finding that Wingo’s layoff was lawful, we find that
that layoff did not form an unlawful basis for Harris’
demotion. Given this, we find that the Respondent has
sufficiently demonstrated that it would have demoted
Harris and reduced his pay even in the absence of his
union activity because it has shown that Harris was not
even qualified to work as a journeyman under the appli-
cable regulations in the first place.
For although the Respondent had, for its own pur-
poses, elevated Harris to journeyman status in January—
before it had formally requested permission to do so—it
is undisputed that, under the applicable Federal regula-
tions, he was not qualified for journeyman status at that
time because he had not completed the requisite number
of hours of employment and training. As noted above,
on February 12, about a month after the Respondent re-
quested to elevate Harris, the Respondent was informed
of this deficiency by Colangelo, the apprenticeship coor-
dinator for the Monmouth County School District. The
Respondent, in turn, informed Harris that, as a result of
the deficiency, it would have to demote him back to ap-
prentice and return his pay to the apprentice rate. We are
persuaded that, under the circumstances, the Respondent
had no alternative but to correct its mistake of prema-
turely elevating Harris by subsequently demoting him
and reducing his pay.

24 See JD sec. 2(e).
25 In his affidavit to the Board, which is quoted, in relevant part, by
the judge, Manginelli stated, “When Edgar Harris was moved back to
an apprentice the ratio was not affected because Kenyatte [Wingo] was
laid off by that time. Had Kenyatte [Wingo] not been laid off, then I
could not have moved Edgar back to apprentice.”
Our dissenting colleague seems to suggest that Harris’
union activity somehow shielded him from this correc-
tive action and that, in the context of this union activity,
the only way the Respondent could have responded was
to keep Harris on as an unofficial journeyman—or, at
least, continue to pay him at that rate—just as it had prior
to and during the pendency of its formal request to ele-
vate him.
We disagree with our dissenting colleague’s conten-
tion that the Respondent could have kept Harris on as a
journeyman for its own purposes. We would not require
the Respondent to take an action that would potentially
run afoul of the regulations governing the classification
of journeyman plumber/pipefitters. Employers that work
in the construction industry, such as the Respondent, may
be legally bound to comply with a number of state and
Federal regulations that govern their particular trades; it
may sometimes be necessary for employers to make ad-
verse employment decisions based upon those regula-
tions. We cannot find, as our dissenting colleague ap-
parently would, that the Act prevents an employer from
relying upon such regulations as a basis for making valid,
nondiscriminatory employment decisions simply because
those decisions may adversely affect employees who
have engaged in union activity. In this regard, it is well
established that the Act does not provide employees with
immunity from otherwise legitimate employment deci-
sions simply because of their status as union supporters.
See, e.g., Asarco, Inc. v. NLRB, 86 F.3d 1401, 1410 (5th
Cir. 1996); Kellwood Co., 299 NLRB 1026, 1039 (1990),
enfd. mem. 948 F.2d 1297 (11th Cir. 1991); and Swift
Textiles, Inc., 242 NLRB 691, 696 (1979).
Consistent with these principles, we do not believe that
Harris, who was not even qualified to be elevated to
journeyman status, was rendered immune from the de-
motion and the concomitant reduction in pay by virtue of
the fact that he had engaged in union activity. To the
contrary, we believe that these actions were wholly in
line with the Respondent’s undisputed obligation under
the aforementioned regulations to hold out as journey-
man plumber/pipefitters only those individuals who had
completed the necessary requirements for such a posi-
tion, regardless of their union sympathies.
For all of these reasons, we find that the Respondent
has demonstrated that it would have demoted Harris and
reduced his pay even in the absence of his union activi-
ties. Accordingly, we reverse the judge’s finding that the
Respondent’s actions in this regard violated Section
8(a)(3) and (1), and we dismiss these allegations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD416
C. The Written Warnings to Harris and Lanza
1. Facts
The record indicates that, prior to March, Manginelli
never issued a written warning to any of his employees.
However, in March and April, he issued two such warn-
ings to Harris and one to Lanza.
Harris received his first written warning on March 17.
The warning stated that his “performance and productiv-
ity [had] steadily been declining” since February 1. Spe-
cifically, the warning recounted an incident that took
place on March 13, when Calello and Leto returned to
the CNJ biology building where Harris was working to
find him sitting on a bucket “and not working.” The
judge credited Harris’ testimony that this was not the
case, that he had finished all of his assigned work that
day, and that, while waiting to ask what further tasks he
should complete, he sat on the bucket and lowered gar-
bage to the floor.
Harris received his second written warning on April
25. This warning stated that his “performance and pro-
ductivity [were continuing] to deteriorate and it ap-
pear[ed] that [he] was intentionally slowing down work
on the job.” The warning referred to an incident on April
5, when Harris purportedly installed VAV boxes in the
biology building incorrectly. The warning stated that
this work had to be redone and that this had cost the Re-
spondent time and money. Although the judge credited
Harris’ denial that this incident occurred, Harris admitted
on cross-examination that he installed the boxes incor-
rectly and that they had to be redone.
That same day, the Respondent also issued a written
warning to Lanza, who was working at the biology build-
ing with Harris. This warning alleged that Lanza’s pro-
ductivity was declining and that he was slowing down
his work. The judge credited Lanza’s denial of these
allegations.
2. Findings
The judge found that the Respondent violated Section
8(a)(3) and (1) by issuing written warnings to Harris and
Lanza for the asserted reason that they were slowing
down work and performing work improperly.
The Respondent contends that it legally issued the
warnings to Harris and Lanza. With respect to Harris,
the Respondent argues that it had the right to issue the
first warning on March 17 because Harris’ performance
and productivity had been declining, and because he was
found sitting on a bucket and not working. The Respon-
dent also argues that it properly issued the second warn-
ing to Harris on April 25 because he was continuing to
slow down work and because he had installed some
VAV boxes incorrectly, which had cost the Respondent
time and money. In support of this contention, the Re-
spondent points to Harris’ admission on cross-
examination that he had, in fact, installed the VAV boxes
incorrectly. With respect to the warning issued to Lanza
on April 25, the Respondent contends that it was justified
in issuing the warning because Lanza was slowing down
work and his performance and productivity had been
declining. For the above reasons, the Respondent asserts
that it would have issued the warnings to Harris and
Lanza notwithstanding their union activities.
The judge found that the Respondent’s asserted de-
fense for issuing the warnings failed because Harris and
Lanza credibly denied that they had slowed down work
or performed work improperly. Thus, the judge con-
cluded that the Respondent “manufactured” the warnings
in order to “make a record” justifying the ensuing layoffs
of Harris and Lanza because they had engaged in union
activity.
Assuming arguendo that the General Counsel has met
his initial burden of showing that the warnings issued to
Harris and Lanza were unlawfully motivated, we find
that the Respondent has established that it would have
issued the warnings notwithstanding their union activi-
ties. See Wright Line, supra. In so finding, we recognize
that the Respondent, in its capacity as a contractor on the
biology building project where Harris and Lanza were
working, had a vested interest in ensuring that work on
that project was done correctly and done in a timely
manner so that the Respondent would not lose time and
money. To this end, it is entirely conceivable that it
might be forced to discipline employees for slow or sub-
standard work. In our view, this is exactly what it did
here.
As noted above, Harris and Lanza denied that they had
slowed down work or performed work improperly, and
the judge credited these denials. Harris, however, admit-
ted on cross-examination that he had installed the VAV
boxes incorrectly, as alleged in his second written warn-
ing. Nevertheless, even accepting the judge’s credibility
resolutions as correct, the Respondent, in the interest of
maintaining a productive jobsite, was privileged in issu-
ing the warnings to Harris and Lanza based on its rea-
sonable belief that they were slowing down work and/or
otherwise acting improperly, even if they were not. See
Goldtex, Inc., 309 NLRB 158 fn. 3 (1991) (Wright Line
defense established by employer’s reasonable belief that
employee forged magazine subscriptions), enfd. mem. 16
F.3d 409 (4th Cir. 1994). Disciplinary situations such as
this often involve conflicting accounts, and the employer
must rely on its own judgment to separate fact from fic-
tion and formulate an appropriate response to the situa-
tion. In these circumstances, the employer, which has
FRAMAN MECHANICAL, INC. 417
firsthand knowledge of the situation at hand and its con-
tractual obligations, is in the best position to make these
decisions, as long they are based on nondiscriminatory
factors. For this reason, it is well established that the
“Board does not substitute its own business judgment for
that of the employer in evaluating whether conduct was
unlawfully motivated.” Ryder Distribution Resources,
supra, 311 NLRB at 816. See also Texas Instruments v.
NLRB, 599 F.2d 1067, 1073 (1st Cir. 1979) (the issue is
“not to determine how the Board would have behaved
under similar circumstances but to determine what in fact
motivated the employer”).
We are not persuaded by our dissenting colleague’s re-
liance on the Respondent’s failure to issue written warn-
ings in the past. Significantly, there is no evidence in the
record of any specific occasions on which the Respon-
dent has declined to issue a written warning to another
employee whom the Respondent found had slowed down
work or had performed work improperly. Since there are
no similarly situated employees against whom to com-
pare Harris and Lanza, we cannot find, as our dissenting
colleague does, that the Respondent treated Harris and
Lanza disparately from other similarly situated employ-
ees.
Further, we do not believe that the Respondent was
somehow barred from issuing valid, nondiscriminatory
written warnings to its employees just because it had not
done so in the past. And, for the reasons set out above in
our discussion of the layoffs of Yutko and Wingo, we
find that the Respondent did not lose this right simply
because the employees to whom it issued the warnings
had engaged in union activity.
For all of these reasons, we find that the Respondent
has shown that it would have issued the written warnings
to Harris and Lanza notwithstanding their union activi-
ties. We therefore reverse the judge’s findings that the
warnings were unlawful, and we dismiss these allega-
tions.
Finally, having found that the warnings to Harris and
Lanza were not unlawful, we reverse the judge’s finding
that the Respondent issued the warnings in order to
“make a record” against these employees that would jus-
tify their ensuing layoffs. It is this issue that we next
address.
D. The Layoffs of Harris and Lanza
1. Facts
On May 5, a few weeks after issuing the written warn-
ings, the Respondent laid off Harris and Lanza assertedly
because of a lack of plumbing work—and more of a need
for sheetmetal work—at the biology building project.
The Respondent continued to employ Leto, a more senior
plumber/pipefitter, on the biology building project. On
various weekends during the spring, the Respondent
brought in crews of workers to work on the biology
building. These individuals were not listed on its certi-
fied payroll as having worked during this time.26 The
Respondent did not hire any new plumbing/pipefitting
employees to work on the biology building project after
it laid off Harris and Lanza. Finally, as noted by the
judge, during the last week of March, the Respondent
used Mike Valente, a retired plumber, and Mike Durkot,
who, as noted above, was Manginelli’s brother-in-law
and was not a plumber, at the Newark Armory. Valente
apparently moved pipe and installed sprinkler piping and
Durkot delivered materials to the Armory and helped
Valente lift pipe.
2. Findings
The judge found that the Respondent violated Section
8(a)(3) and (1) by laying off Harris and Lanza on May 5,
ostensibly due to a lack of plumbing work at the biology
building.
The Respondent contends that it was forced to lay off
Harris and Lanza because the biology building project
primarily involved sheetmetal work, which Harris and
Lanza were not qualified to do, and there was very little
plumbing work on that project at the time. For this rea-
son, the Respondent asserts that it decided to keep only
one plumber/pipefitter on the project, Leto, who had
more seniority than Harris and Lanza. The Respondent
argues that, under these circumstances, it would have laid
off Harris and Lanza even in the absence of their union
activities.
The judge found no merit in the Respondent’s prof-
fered defense, as he found evidence that, on various
weekends, the Respondent brought in crews of workers
to work on the biology building project.27 In discounting
the Respondent’s defense, the judge also relied on the
fact that, in March, the Respondent had subcontracted
sprinkler work at the Newark Armory that had previously
been assigned to Lanza, as well as the fact that, in Febru-
ary and March, the Respondent hired “off the books”
three other individuals to perform work at the Armory.28
For these reasons, the judge implicitly found that there

26 Harris testified that, prior to his layoff, he, Lanza, and some other
employees worked at the biology building on weekends. Leto, when
asked on cross-examination whether he had occasionally worked at the
biology building on weekends, stated that he wished to invoke his
“Fifth Amendment” rights; the judge inferred from this response that
Leto had done so.
27 As discussed above, these workers were not listed on the Respon-
dent’s official payroll as having worked on these occasions.
28 Presumably, the judge is referring to Valente and Durkot, but it is
not clear from the judge’s decision or the record who the third person
is.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD418
was not, in fact, a lack of plumbing work at the biology
building project, but that the Respondent nonetheless
used this as a pretext for retaliating against Harris and
Lanza for their union activities. The record does not
support the judge’s finding.
Assuming arguendo that the General Counsel has met
his initial burden of showing that the layoffs of Harris
and Lanza were unlawfully motivated, we find that the
Respondent has demonstrated that it would have laid
them off even in the absence of their union activities.
The Respondent presented evidence that the biology
building project where Harris and Lanza were working at
the time of their layoffs involved primarily sheetmetal
work and only a limited amount of plumbing work.
Since there is no indication that Harris and Lanza were
capable of performing sheetmetal work, we cannot con-
clude that the Respondent acted unlawfully by laying
them off when the plumbing work had, for the most part,
run out on that project. The fact that the Respondent did
not hire any new plumbing/pipefitting employees to
work on the project after Harris and Lanza were laid off
further evidences that there was little plumbing work to
be done at the project. And, as with Yutko, we find that
the fact that the Respondent made offers of recall to Har-
ris and Lanza in June, which the judge found to be valid,
further supports the finding that the layoffs were necessi-
tated by business considerations. Since we find that the
staffing changes made by the Respondent on the project
were based on valid, nondiscriminatory business consid-
erations, we will not question or second-guess its deci-
sion to make them. See, e.g., Ryder Distribution Re-
sources, supra at 816.
Our dissenting colleague maintains that the judge was
warranted in finding that the Respondent’s explanation
for laying off Harris and Lanza was pretextual. He as-
sumes that there must have been sufficient plumbing
work for Harris and Lanza at the biology building be-
cause the Respondent sporadically brought in workers to
work on this project during various spring weekends.
Contrary to our dissenting colleague’s assumption, the
fact that the Respondent may have continued to employ
other employees on the biology building project after
Harris and Lanza were laid off does not necessarily mean
that the employees it kept on the project were performing
plumbing work that Harris and Lanza would have per-
formed had they not been laid off. In fact, the record
reflects that the only individual who was performing
plumbing work after the layoffs was Leto. With the ex-
ception of Leto, there is no evidence that any other em-
ployees, including those that were supposedly brought in
to work on weekends, were performing plumbing work
at the biology building.
Our dissenting colleague further contends that, even if
the Respondent was, in fact, unable to employ Harris and
Lanza on the biology building project, it could have
made an effort to keep them employed by transferring
them to another of the Respondent’s projects, as had
been its practice in the past. Again, this is sheer specula-
tion regarding how the Respondent should have acted
under these circumstances. Even assuming that the Re-
spondent had an established practice of transferring em-
ployees from project to project in order to keep them
employed, we do not believe that it is appropriate for the
Board to substitute its judgment for that of the Respon-
dent by holding it to our standard of how we would have
staffed the various projects had we been the employer.29
As explained above, this would constitute an improper
substitution of our judgment for that of the Respondent.
See, e.g., Ryder Distribution Resources, supra at 816.
In sum, we find that the Respondent has demonstrated
that it would have laid off Harris and Lanza even in the
absence of their union activities. The fact that the Re-
spondent offered to recall Harris and Lanza in June, little
more than a month after their layoffs, only underscores
our finding that the layoffs were necessitated by legiti-
mate business considerations.30 Hence, we reverse the
judge’s finding that these layoffs violated Section 8(a)(3)
and (1), and we dismiss these allegations.
ORDER
The National Labor Relations Board orders that the
Respondent, Framan Mechanical Inc., Freehold, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion sympathies or activities.
(b) Giving employees the impression that their union
activities are under surveillance.
(c) Threatening employees with job loss if they select a
union to represent them.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

29 Further, contrary to the judge, we do not find that the Respon-
dent’s use of Durkot and Valente at the Newark Armory in March bears
any legal significance to the May layoffs of Harris and Lanza; nor do
we consider the Respondent’s subcontracting of sprinkler work at the
Armory in March to be relevant to these layoffs.
30 Since, as explained above at fn. 21, we have already, and inde-
pendently, found that the layoffs were not unlawful, the fact that the
Respondent recalled Harris and Lanza only confirms our finding that
their layoffs were not unlawfully motivated.
FRAMAN MECHANICAL, INC. 419
(a) Within 14 days after service by the Region, post at
its facility in Freehold, New Jersey, copies of the at-
tached notice marked “Appendix.”31 Copies of the notice,
on forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 11,
2000.
(b) 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 with this Order.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
MEMBER WALSH, dissenting in part.
I join the majority in adopting the judge’s findings that
the Respondent violated Section 8(a)(1) of the Act by:
interrogating employees about their union activities; cre-
ating the impression that its employees’ union activities
were under surveillance; and threatening employees with
job loss if they selected a union to represent them.
However, I disagree with the majority’s reversal of the
judge’s findings that the Respondent violated Section
8(a)(3) and (1) by: discharging employees Brian Yutko
and Kenyatte Wingo; demoting employee Edgar Harris
from apprentice to journeyman, reducing his pay, issuing
him two written warnings, and laying him off; and issu-
ing a written warning to employee Thomas Lanza and
laying him off.
Discussion
The majority accurately recites the relevant facts in
this case. The majority assumes that the General Coun-
sel has met his initial burden of proving that the above-
mentioned employment actions were unlawfully moti-

31 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.”
vated. However, the majority concludes that the Re-
spondent has demonstrated that it would have taken these
actions even in the absence of the union activities of the
employees involved.
To begin with, the majority, in reversing the judge’s
findings, emphasizes that the Board should not substitute
its business judgment for that of the Respondent when it
comes to decisions regarding the staffing of its projects
and the personnel decisions that entails. In doing so, the
majority correctly states that, as long these decisions
were made based on “valid, nondiscriminatory” factors,
the Board will not interfere with the Respondent’s right
to make them.
However, the majority misapplied the “business judg-
ment” principle to the facts of this case. That principle
does not, as the majority suggests, give employers unfet-
tered discretion to take any employment action they
want. Nor does it call upon the Board to turn a blind eye
to employment actions that may potentially violate the
Act. See NLRB v. Murray Ohio Mfg. Co., 326 F.2d 509,
517 (6th Cir. 1964) (even if there is a “good cause for
discharge, if the exercise of this right is tainted with a
discriminatory motive under Section 8(a)(3) of the Act, a
violation may be found”). This is especially true where,
as here, the employment actions at issue are taken against
a backdrop of serious unfair labor practices, such as
unlawful interrogations, creation of impression of sur-
veillance, and threats of job loss that reveal the em-
ployer’s unlawful motivation. The majority finds that
the Respondent has violated Section 8(a)(1) in these re-
spects. And, as noted above, the majority even assumes
that the General Counsel has met his initial burden of
showing that the employment actions at issue were
unlawfully motivated. Yet, defying logic, the majority
then proceeds to view these employment actions as if
they occurred in a vacuum. As discussed below, given
the backdrop of unfair labor practices in which these
actions occurred, and the fact that the evidence in the
record contradicts the Respondent’s stated reasons for
taking these actions, the majority errs in finding that the
actions were lawful; thus, the judge’s findings that they
violated Section 8(a)(3) and (1) should be adopted.
1. First, contrary to the majority, the judge correctly
concluded that the Respondent violated Section 8(a)(3)
and (1) by discharging Brian Yutko and Kenyatte
Wingo.1 The Respondent asserts that it discharged

1 The majority discusses the issue of whether the Respondent in-
tended to “discharge” or “lay off” Yutko and Wingo. The majority’s
discussion of the Respondent’s intent, however, misses the point. The
primary issue before the Board is whether the employment actions the
Respondent took against Yutko and Wingo were unlawful under Sec.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD420
Yutko and Wingo because there was a substantial reduc-
tion in work as a result of the delays in the science build-
ing project. However, as the judge found, the Respon-
dent’s proffered reason for the discharges was pretextual.
There is no question that the science building project
where Yutko and Wingo were working was seriously
delayed and that this had caused the Respondent to suffer
some significant economic losses; but the inquiry does
not end there, as the majority seems to suggest. An em-
ployer cannot simply present a legitimate reason for its
action—it must persuade by a preponderance of the evi-
dence that it would have taken the same action even in
the absence of union activity. See, e.g., Power Equip-
ment Co., 330 NLRB 70, 74 (1999); Kellwood Co., 299
NLRB 1026, 1028 (1990). Moreover, where “the evi-
dence establishes that the reasons given by an employer
for its actions are pretextual—that is, either false or not
in fact relied upon—the Respondent fails by definition to
show that it would have taken the same action for these
reasons, absent the protected conduct.” Golden State
Foods Corp., 340 NLRB 382 (2003), citing Limestone
Apparel, 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th
Cir. 1982). See also Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966) (stating that, if
a trier of fact finds that an employer’s stated motive for
an employment action is false, he can infer that there is
another motive and that that motive is an unlawful one
that the employer desires to conceal). Here, the Respon-
dent has failed to make the required showing.
Significantly, prior to the advent of the union organiz-
ing effort, the Respondent predicted that the delays on
the science building project would result in it needing
more, rather than fewer, employees on the project. Spe-
cifically, in September 1999, the Respondent’s president
and owner, Frank Manginelli, requested a change order
from Cambridge, the construction management company
for the project, to add four additional men to the project.
When this request was denied, Manginelli sent a letter to
Cambridge on December 10, 1999, requesting an exten-
sion of time. In that letter, Manginelli anticipated that, if
the extension was not granted, the Respondent would
have to accelerate its work, and this would cause it to
suffer “labor inefficiency in the form of disruption,
crowding and acceleration (increased crew size, over-
time, multiple shifts, and loss of morale).” (Emphasis
added.) The Respondent’s predictions that it would need
more men on the project—as evidenced by these requests
for relief—are entirely inconsistent with its subsequent
claim, after the union organizing effort had begun, that

8(a)(3), not whether the Respondent intended those actions to constitute
a “layoff” or a “discharge.”
there was not enough work for Yutko and Wingo on the
project, and that it would have to reduce its work force to
two plumber/pipefitters—Felenczak and Christ.2
In addition, certain credited evidence in the record fur-
ther undermines the Respondent’s claim that it needed to
reduce its work force at the science building project at
the time that Yutko and Wingo were discharged. In this
vein, College of New Jersey Field Superintendent Wil-
liam Rogers and Cambridge Project Executive Brian
Murray, who were closely involved in the project, both
testified that there was sufficient work for three or four
plumber/pipefitters at that time; the judge implicitly
credited this testimony. The majority offers no reason
for disturbing the judge’s credibility findings with re-
spect to these individuals. Nonetheless, without any per-
suasive explanation, the majority casts these findings
aside and instead relies upon the implicitly discredited
testimony of Manginelli that there was only enough work
on the project for two plumber/pipefitters.3 The majority

2 The majority points out that the Respondent’s September letter to
Cambridge speaks of the need for more men on the science building
project “once the job starts moving at a good pace”; and, they assert
that the project was “obviously not moving at a good pace in Febru-
ary.” For this reason, the majority contends that the Respondent’s
September letter requesting more manpower on that project at that time
does not evidence that it needed more men in February. The majority,
in making this contention, erroneously views the September letter in
isolation, without regard to the Respondent’s subsequent letter to Cam-
bridge, which was written on December, 3 months after the September
letter and only 2 months before Yutko and Wingo were discharged. As
discussed above, this letter, like the September letter, evidences the
Respondent’s need for more—rather that fewer—men on the science
building project at that time. Thus, contrary to the majority, the Re-
spondent was obviously of the opinion that the project was “moving at
a good pace” in the time period leading up to the discharges.
The majority further maintains that “changed economic circum-
stances” occurred between the time of the Respondent’s prediction that
it would need to increase its work force and the discharges of Yutko
and Wingo—namely, the denial of the Respondent’s requests for relief
and mounting economic losses. In so arguing, the majority fails to
recognize that the Respondent specifically anticipated these “changed
economic circumstances.” In its request for an extension of time, for
example, the Respondent stated that, if its “request for an extension of
time [was] not granted,” the Respondent “would suffer labor ineffi-
ciency in the form of disruption, crowding and acceleration (increased
crew size, overtime, multiple shifts, and loss of morale.” (Emphasis
added.) In other words, the Respondent predicted that it would need
additional manpower for the project if the requested relief was not
granted, which is precisely what happened. Thus, the majority’s sug-
gestion that the circumstances surrounding the project changed so dras-
tically and unexpectedly that they warranted the reduction, as opposed
to the expansion, of the Respondent’s work force is entirely without
merit.
3 The majority contends that Murray, Rogers, and Manginelli were
all credible because they each gave honest opinions regarding how
much work was available at the science building project. Thus, the
majority argues that Manginelli’s testimony on this issue was not “dis-
credited” simply because it differed from the credited testimony of
Murray and Rogers. Contrary to this argument, there is no question
FRAMAN MECHANICAL, INC. 421
errs in relying upon this discredited testimony as a basis
for finding that there was insufficient work for Yutko
and Wingo on the science building project.4
Moreover, the Respondent’s postdischarge hiring of
Manginelli’s brothers-in-law—Mike Valente and Mike
Durkot—to work at the Respondent’s Newark Armory
project—after Christ was transferred from the Armory to
the science building project—also undercuts the Respon-
dent’s contention that it had no work for Yutko and
Wingo. At the outset, it is significant that Christ, one of
the two employees for whom the Respondent maintains
that it had work at the science building project, was not
even transferred to the project until the day after Yutko
and Wingo were discharged. In these circumstances, it is
difficult to imagine why the Respondent, upon realizing
that it only had work for two employees of the three em-
ployees it had on the project—i.e., Felenczak, Yutko, and
Wingo—would discharge Yutko and Wingo, who had
been working on the project and were familiar with it,
only to transfer Christ, who was not familiar with the
project, there from the Newark Armory. This is espe-
cially true given that Christ’s transfer to the science
building project apparently left a significant amount of
unfinished work at the Armory, which the Respondent
obviously felt the need to fill, as evidenced by its subse-
quent hiring of Valente and Durkot.5
In any event, even if there was no work for Yutko and
Wingo at the science building project—or, as the major-
ity maintains, the Respondent wanted to replace them
with Christ because he was more senior—the fact re-
mains that there was still sufficient work for two em-
ployees at the Newark Armory. However, rather than
transferring Yutko and Wingo to perform this work, con-

that the judge implicitly credited Murray’s and Rogers’ testimony that
there was enough work on the project for three or four employees. In
fact, the judge based his ultimate conclusion that the Respondent’s lack
of work defense was pretextual, in part, on these credibility findings.
Hence, it logically follows that Manginelli’s testimony that there was
only enough work for two employees on the project—which was, at
best, self-serving—was implicitly discredited. That being the case, the
issue of whether or not Manginelli’s opinion was given honestly is
irrelevant.
4 In finding that the Respondent had legitimate economic reasons for
“laying off” Yutko and Wingo, the majority emphasizes the Respon-
dent’s “consistent” and “corroborated” testimony that there was a slow-
down in work on the science building project. The majority’s emphasis
on the Respondent’s self-serving—and implicitly discredited—
testimony to this effect wholly ignores the credited testimony of Rogers
and Murray that there was no such slowdown. Thus, contrary to the
majority, it can hardly be said that the Respondent’s testimony is con-
sistent with, and corroborated by, the evidence in the record as a whole.
5 The judge, however, erred in finding that one or both of these indi-
viduals per se “replaced” Christ at the Newark Armory. But, as dis-
cussed infra, their hiring was nonetheless significant because they
performed work that Yutko and Wingo could have performed had they
not been discharged.
sistent with its stated practice of transferring employees
from project to project to keep them employed, the Re-
spondent instead decided to discharge them and hire
Durkot and Valente “off the books” to perform the
work.6 The majority argues that there is no evidence that
the work performed by Durkot and Valente—namely,
moving and lifting pipe—was plumbing work that Yutko
and Wingo could have performed had they not been dis-
charged. However, Yutko and Wingo, who were both
trained in the highly skilled trade of plumbing and pipe-
fitting, could have performed these simple tasks just as
well as Valente and Durkot. Further, even if the work at
the Armory was not actual plumbing/pipefitting work,
and was perhaps beneath their skill level, Yutko and
Wingo, if given a choice, would likely have preferred
performing this work over being discharged.
Thus, aside from the Respondent’s groundless defense
regarding a lack of work at the biology building project,
its summary discharge of Yutko and Wingo without first
attempting to transfer them to a project where there was
work—especially when viewed in the context of the nu-
merous 8(a)(1) violations the Respondent committed the
following day7—further demonstrates that the Respon-
dent’s proffered reason for discharging Yutko and Wingo
was pretextual. Further, in light of these circumstances,
the fact that the Respondent made a valid offer of recall
to Yutko 4 months after Yutko and Wingo were dis-
charged—and well after the organizing drive had died
down—does not, as the majority contends, serve to dem-
onstrate that the Respondent discharged Yutko and
Wingo for “legitimate business reasons.” As the judge

6 The judge found that the Respondent had a policy of trying to keep
its “core” group of employees employed by moving them from project
to project according to the fluctuation of work. The majority maintains
that Wingo, who had only been working for the Respondent for less
than 2 months at the time of his discharge, could not be characterized as
a member of the “core” group that the Respondent had an interest in
keeping employed. However, despite the fact that Wingo was a new
employee, he was still a permanent employee of the Respondent, while
Durkot and Valente were not.
The majority contends that, because the Act does not prohibit nepo-
tism, the Respondent’s hiring of Valente and Durkot to work on the
Armory project after it had “laid off” Yutko and Wingo due to a lack of
work did not constitute evidence that the Respondent violated the Act.
The issue, however, is not whether nepotism is unlawful, or even
whether it is evidence of unlawful conduct. The issue is whether, given
the evidence of the Respondent’s unlawful motivation, the Respondent
has proven that it would have laid Yutko and Wingo off in the absence
of those unlawful considerations. The fact that the Respondent hired
Manginelli’s family members after “laying off” Yutko and Wingo is
persuasive evidence tending to show that the Respondent has not met
this burden of proof.
7 On February 11, the day after Yutko and Wingo were discharged,
the Respondent unlawfully interrogated employees about their union
activities, created the impression that its employees’ union activities
were under surveillance, and made threats of job loss.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD422
recognized, the valid offer of recall tolls the Respon-
dent’s backpay liability to Yutko; it does not erase the
violations that were committed. Accordingly, the
judge’s finding that the discharges violated Section
8(a)(3) and (1) should be adopted.8
2. Second, contrary to the majority, the judge cor-
rectly found that the Respondent violated Section 8(a)(3)
and (1) by demoting Edgar Harris from journeyman to
apprentice and by reducing his pay to the apprentice rate.
The Respondent contends that it “had no choice” but to
demote Harris and reduce his pay because it had been
advised by Robert Colangelo, the Monmouth County
apprenticeship coordinator, that, pursuant to the applica-
ble Federal regulations, Harris had not met the necessary
employment and training requirements to be elevated to
journeyman status. However, as the judge found, the
Respondent’s stated reason for demoting Harris and re-
ducing his pay was pretextual.
Although it appears that Harris was not qualified for
journeyman status under the applicable regulations, as
cited by Colangelo, this was not the real reason for the
demotion. As discussed below, the Respondent did not
appear to be concerned with Harris’ lack of qualification
under these regulations until after it learned that he had
engaged in union activity.
In this regard, before Manginelli had even contacted
Colangelo with a formal request to elevate Harris to
journeyman and before he knew that Harris had engaged
in union activity, he had already “unofficially” made
Harris a journeyman and had given him a corresponding
pay raise. It is reasonable to infer that, at the time this
was done, Manginelli—who had been working in the
plumbing industry for a number of years—was well
aware of the fact that Harris fell short of meeting the
necessary requirements for journeyman status. However,
despite these shortcomings, and the fact that Manginelli
had not yet sought approval for doing so from Colangelo,
Manginelli was nonetheless willing to elevate Harris to
journeyman and to hold Harris out as a journeyman
while he was working on its projects.
Thus, it appears that the Respondent was indifferent to
the regulations governing the classification of journey-
man plumber/pipefitters in January, when it decided to
elevate Harris from apprentice to journeyman. However,
in February, after the Respondent had learned of Harris’
union activity, it readily seized upon the regulations as a

8 Although the judge’s conclusion that the discharges violated Sec.
8(a)(3) and (1) should be adopted, his reliance on the Respondent’s
subcontracting of sprinkler work at the Newark Armory was in error.
As the majority points out, there is no allegation in the complaint, and
there was no evidence presented, that the Respondent subcontracted
work in order to reduce the work of its own employees.
reason for demoting him back to apprentice and reducing
his pay. In the context of the Respondent’s demonstrated
antiunion animus—as evidenced by the 8(a)(1) violations
discussed above—it may reasonably be inferred that the
Respondent’s prior indifference to these regulations
would have continued had the Respondent not learned
that Harris had engaged in union activity. And, had that
been the case, the Respondent would likely have kept
him on as a journeyman and/or continued to pay him at
the journeyman rate for its own purposes even after its
formal request to do so had been denied, just as it had
prior to and during the pendency of this request. Given
these circumstances, it is logical to conclude that the in-
tervening factor in the Respondent’s decision to change
its course and comply with the regulations was its new-
found knowledge of Harris’ union activity.9
For this reason, the Respondent’s proffered defense for
demoting Harris and reducing his pay was a pretext de-
signed to conceal its true reason for taking these actions.
Accordingly, the judge’s finding that it violated Section
8(a)(3) and (1) in these respects should be adopted.
3. Third, contrary to the majority, the judge correctly
found that the Respondent violated Section 8(a)(3) and
(1) by issuing two written warnings to Harris and one to
Thomas Lanza. The Respondent asserts that it issued the
warnings to Harris because his performance and produc-
tivity had been declining and because he had incorrectly
installed some VAV boxes. Further, the Respondent
contends that it properly issued the warning to Lanza
because his performance and productivity had also been
declining. But, as the judge found, the Respondent’s
stated reasons for issuing the warnings were pretextual.
Significantly, prior to the advent of the union organiz-
ing effort, the Respondent had never issued a written
warning to any of its employees. However, after learn-
ing of this effort, it precipitously decided to issue written
warnings for the first time to Harris and Lanza, who were
two known participants.
Moreover, the judge specifically credited Harris’ and
Lanza’s categorical denial of the allegations the Respon-
dent made against them in the written warnings. The
majority does not reverse those credibility findings.
Rather, they find that, even accepting the judge’s credi-
bility findings as correct, the Respondent lawfully issued
the warnings based on its “reasonable belief” that Harris

9 The majority places undue emphasis on the Respondent’s compli-
ance with the regulations governing the classification of journeyman
plumber/pipefitters. The issue before the Board is whether the Respon-
dent’s act of demoting Harris and reducing his pay was unlawful under
Sec. 8(a)(3) and (1) of the Act, not whether Harris technically satisfied
the requirements for journeyman status.
FRAMAN MECHANICAL, INC. 423
and Lanza had engaged in misconduct.10 The majority
errs.
In order to successfully defend against an 8(a)(3) alle-
gation on the basis of a “reasonable belief” that the em-
ployee engaged in misconduct, a respondent must show
that its belief was held in good faith and was free from
discriminatory considerations. See Doctors’ Hospital of
Staten Island, Inc., 325 NLRB 730 fn. 3 (1998). The
Respondent obviously did not make that showing here
where the decision to discipline the two employees con-
stituted an abrupt departure from the Respondent’s own
practice prior to the union campaign.
In sum, contrary to the majority’s finding, the Respon-
dent’s stated reasons for issuing the written warnings to
Harris and Lanza were pretextual. Therefore, the judge’s
finding that the Respondent violated Section 8(a)(3) and
(1) by issuing the warnings should be adopted.
4. Finally, contrary to the majority, the judge correctly
found that the Respondent violated Section 8(a)(3) and
(1) by laying off Harris and Lanza. The Respondent as-
serts that it laid these individuals off because there was a
lack of plumbing work at the biology building project
where they were working, and because the majority of
the work on the project was sheet metal work, which
Harris and Lanza were not qualified to perform. As the
judge properly found, however, this proffered rationale
was pretextual.
Despite the Respondent’s claim that there was virtually
no plumbing work at the biology building project, the
evidence in the record indicates that the Respondent had
brought in crews of workers to work on the project on
weekends. The majority asserts that there is no evidence
that any of these workers were performing plumbing
work, as opposed to sheet metal work. To the contrary, it
appears that one such worker was Leto, a
plumber/pipefitter, whom the Respondent continued to
employ on the project after the layoffs. In addition, Har-
ris testified that, prior to their layoffs, he and Lanza had
also worked on the project on weekends. This evidence
indicates that the biology building project had more
plumbing work than could typically be performed during
regular working hours, and this, in turn, undermines the
Respondent’s contention that there was so little plumbing
work at the project that it was forced to lay off Harris and
Lanza.

10 Although the majority apparently accepts the judge’s credibility
findings as correct, they point to Harris’ statement on cross-
examination that he had installed the VAV boxes incorrectly. Even if
this were true, however, Harris testified that he—as well as many other
employees—had made the mistake in the past (because it is apparently
an easy mistake to make), and no one had ever received a written warn-
ing for doing so.
In any event, even if there was no work for Harris and
Lanza at the biology building project, the Respondent
could have employed them on another of the Respon-
dent’s projects, consistent with its stated practice of
transferring its employees from one project to another in
order to keep them employed. Instead, the Respondent
decided to lay off Harris and Lanza rather than follow its
own past practice.
Given these circumstances, the Respondent’s stated
reason for laying off Harris and Lanza was false, and the
Respondent has, in turn, failed to demonstrate that it
would have laid off these individuals even in the absence
of their union activities. Moreover, in view of the evi-
dence discussed above, and in the context of the Respon-
dent’s numerous 8(a)(1) violations, the fact that the Re-
spondent subsequently decided to make offers of recall to
Harris and Lanza does not detract from this finding.
Again, the recall offers bear on the issue of appropriate
remedy, not on the question of whether the layoffs were
unlawful. Accordingly, the judge’s finding that the lay-
offs violated Section 8(a)(3) and (1) should be adopted.
APPENDIX
NOTICE TO EMPLOYEES
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 vio-
lated 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 with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively interrogate you about your un-
ion support or activities.
WE WILL NOT give you the impression that your union
activities are under surveillance.
WE WILL NOT threaten you with job loss if you select a
union to represent you.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
FRAMAN MECHANICAL INC.
Patrick E. Daley, Esq. and Mellisa J. Ralph, Esq., for the Gen-
eral Counsel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD424
Eric C. Stuart, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Newark, New Jersey, on January 23–25, and Feb-
ruary 7–9, 2001. The charge and amended charges in Case 22–
CA–23845 were filed on February 25, and April 7 and 12,
2000. The charge in Case 22–CA–24031 was filed on June 1,
2000. A complaint was issued in Case 22–CA–23845 on May
26, 2000, and an order consolidating cases and amended com-
pliant was issued on September 28, 2000. In pertinent part, the
amended complaint alleged as follows:
1. That on or about February 10 and 11, 2000, the Respon-
dent, by Frank Manginelli, the Respondent’s owner, interro-
gated employees about their union activities, created the im-
pression that the Respondent was surveilling employee union
activities, and threatened employees with layoffs.
2. That on or about February 10, 2000, the Respondent, for
discriminatory reasons, laid off Brian Yutko and Kenyatte
Wingo.
3. That on or about February 14, 2000, the Respondent by
its supervisor, Frank Calello, interrogated employees about
their union activities.
4. That on or about February 15 and 17, at meetings held at
the Company’s office, the Respondent by Manginelli engaged
in unlawful interrogation, and created the impression of surveil-
lance.
5. That on or about February 24, 2000, the Respondent de-
moted Edgar Harris from journeyman to apprentice and re-
duced his pay.
6. That on March 17, 2000, the Respondent, for discrimina-
tory reasons issued a written warning to Edgar Harris.
7. That on April 25, 2000, the Respondent, for discrimina-
tory reasons issued written warnings to Edgar Harris and Tho-
mas Lanza.
8. That on or about May 5, 2000, for discriminatory reasons,
the Respondent laid off Edgar Harris and Thomas Lanza.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the company is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE OPERATIVE FACTS
A. The Company’s Business
The Company is a contractor located in Freehold, New Jer-
sey, and is engaged in the building and constructions trades
industry. It mostly bids for public projects and as such, virtu-
ally all of its work is covered by prevailing wage statutes. In
this sense, it theoretically holds no particular labor cost advan-
tage against union contractors inasmuch as the prevailing wage
regulations normally requires a nonunion contractor to pay the
same wages and equivalent benefits as union contractors.
The Respondent holds itself out as a contractor providing
pipefitting, HVAC and sprinkler services. For the most part,
however, it performs plumbing, pipefitting, and duct work, the
latter for heating, air-conditioning, and ventilation systems.
Most of the work done by the Respondent is carried out in New
Jersey, although it will bid for and has done work in New York.
Duct work is carried out by sheetmetal workers and they
constitute a somewhat separate group of skilled employees
from the plumber/pipefitters. The separate group of sheetmetal
workers are not involved in this case at all.
From time to time, the Company bids for sprinkler work, ei-
ther separately or as part of a plumbing contract. In this con-
nection, it may perform all or part of such work with its own
pipefitting/plumbing employees or it may subcontract a portion
of such work to a specialty company that installs sprinkler sys-
tems. (It usually uses a person named Steve Jankowitz who
installs sprinklers and is the owner of a company called Pre-
ferred Sprinkler.) There was competing testimony about the
ability of pipefitters to install sprinklers, with some of the
Company’s plumber/pipefitters, such as Thomas Lanza, testify-
ing that they are capable of and have installed sprinklers. On
the other hand, Frank Manginelli, the Company’s owner, who
is himself certified to install sprinklers, testified that although
the installation of mains and branches to the sprinkler heads can
be readily done by his plumber/pipefitters, the last mile, so to
speak, from the branch to the sprinkler head is more easily and
efficiently accomplished by people who have more experience
with and expertise with sprinklers. The issue, according to
Manginelli, has to do with codes and the correct spacing of
sprinkler heads in the ceiling so that the flow of water entirely
covers the area designated.
The Company employees a core group of people which it
tries hard to keep employed as much as possible even if that
means that it will put them in the shop when no other work is
available in the field. Frank Manginelli testified that he tries to
keep his core group employed at all times because an advantage
in being a nonunion shop is that he can move his people from
job to job all over the State of New Jersey, without having to
hire a new group of people at each new location depending on
which local union covers a particular territory. He testified that
his men work for him for 8, 9, or 10 years and this allows him
to trust the people he employs and that they, in turn, trust him.
(The issue of trust is, in my opinion, significant and will come
up later in some of the conversations between employees and
Manginelli.)
The core group of plumber/pipefitters consists of about 9 or
10 individuals, including Calello, who is the foreman. While
people have come and gone for various reasons, and although
the Company may need to supplement this core group by tem-
porarily hiring other people when there is an overflow of work,
the core group of plumbers/pipefitters in February 2000, ex-
cluding Frank Calello, its field foreman, consisted of the fol-
lowing people.
Name Classification Date of Hire
FRAMAN MECHANICAL, INC. 425
Peter Felenczak Pipefitter/plumber 7/5/93
Vinnie Leto Pipefitter/plumber 7/5/93
Carl Cochran Pipefitter/plumber 10/12/94
Brian Yutko Pipefitter/plumber 7/5/98
Thomas Lanza Pipefitter/plumber 3/23/98
Edgar Harris Plumber-apprentice 110/31/96
Eric Christ Pipefitter-apprentice 4/20/98
Kenyatte Wingo Plumber-apprentice 12/27/99
Domingo Hernandez Helper-apprentice 212/23/99
As of February 1, 2000, the Company was working on a
number of projects. The three major ones were (1) a plumbing
contract for a science complex of buildings of the College of
New Jersey; (2) an HVAC contract for the biology building of
the same college (which entailed the use of some plumber/
pipefitters in addition to sheetmetal workers); and (3) a sprin-
kler contract for the Newark Armory. Lesser contracts in-
volved a plumbing contract for Wall Township and a sprinkler
job at Montclair State College. By this time, a job at Galloway
Township had been substantially completed and there was a
small amount of work to install a sprinkler system for a private
residence.
The contracts involved with these various jobs, were lump
sum contracts and not contracts based on time and materials.
That is, under the contracts, Manginelli committed completion
of the work by a particular time and at a particular price,
thereby incurring the risk of loss, if he failed to meet the con-
tract’s specifications. The contracts for the College of New
Jersey also contain liquidated damage provisions pursuant to
which the Company would incur a specified amount of liability
for each day over schedule. Notwithstanding the provisions of
these contracts there is, however, a degree of flexibility built
into the contracts, so that Framan, if it can’t meet the deadline
through no fault of its own, or if it incurs costs as a result of the
owner making a change in the scope of the work, can ask for
more money and can sue if there is an ensuing dispute.
By the same token, the two contracts with the College of
New Jersey (science and biology buildings), pretty much al-
lowed Framan to determine (within some limits), the methods,
means, and manpower that he was to use to fulfill the contracts.
(There is a distinction between work that is on the critical path,
and which must be done by a certain time, and work that is not
on the critical path where the contractor has more flexibility or
discretion in meeting time targets.)

1 Harris was in his third year in a plumber apprenticeship program.
In January 2000, the Company gave Harris a raise so that his wages
were equal to those of a journeyman. Subsequently, it retracted that
raise and that is an issue in the present case.
2 Domingo Hernandez was primarily employed to make deliveries to
and from the shop to the various jobsites. By January 2000, he had
asked to be put in the plumbing apprenticeship program and he was.
However, he left on March 24, 2000, and Manginelli testified that
Hernandez essentially quit because he didn’t want to attend the school
required to be part of the apprenticeship program. Thus, although
Hernandez seems to have been a regular employee at the time of these
events, his contact and relationship with the plumber/pipefitters was
somewhat tenuous.
Work on the biology building began in August 1998, and
Framan’s contract was for the HVAC work. Framan also con-
tracted out certain welding work to another company well be-
fore any union activity was involved. Work was completed on
the biology building in the summer of 2000, and Framan left
that jobsite in August 2000.
The contract for the science building was executed on Octo-
ber 21, 1998. This project involved a number of separate but
connected buildings and the job was broken down into phases.
Each phase represented a different location on the project and
although the phases (phases 1 through 8), were to be done se-
quentially, there was a degree of overlap between the phases in
terms of time. Phase 1 involved the chemistry, physics, and
mathematics buildings and work on phase 1 began in October
1998. It was supposed to be completed by June 15, 2000.
Work on phase 2 began in November 1999, and Framan’s
work, at that point in time, was the demolition and removal of
old plumbing, sinks, toilets, etc., from what used to be the nurs-
ing building.
By the summer of 1999, it was apparent to everyone that
there were serious delays in the job mostly caused by the gen-
eral contractor. On September 13, 1999, Manginelli sent a
letter to the construction manager of the science project stating:
Framan Mechanical does not agree with the latest Job Pro-
gress Schedule and will not sign off on it. The reason being
the job is four months behind schedule and the completion
date on the latest schedule is that which was on the original
Job Progress Schedule. In order for Framan Mechanical to
agree to such a schedule we will submit the attached Change
Order. The Change Order will cover the addition of four me-
chanics for a period of 17 weeks once the job starts moving at
a good pace. The addition of four mechanics will give Fra-
man the ability to expedite its work and meet the proposed
completion date. [Calls for additional cost of $167,176.22.]
Cambridge quickly responded and denied Framan’s request
for a change order. That letter stated:
Your Change Order as proposed is not accepted. Please pro-
vide detailed information to substantiate your claim of addi-
tional manpower required to complete this project on time.
It should be noted that although Manginelli attributed the
two layoffs on February 10, 2000 (Yutko and Wingo), to the
delays in the science building project, it could be argued, as
shown by his letter of September 13, 1999, that the delays
caused by the general contractor would result in him needing
more, not less employees, in order to make up for the delay.
On December 10, 1999, Manginelli sent another letter to
Cambridge, this time asking for an extension of time under his
contract and claiming that there was a 6-month delay on the
science project. The purpose of this letter was to make a record
that the delay was not Framan’s fault so as to defeat any future
claim by the owner for liquidated damages for untimely com-
pletion. Cambridge responded that the claim of a 6-month
delay was not substantiated.
By February 2000, sprinkler work was scheduled to begin in
the nursing building. But because of design/engineering issues
that were not caused by Framan, it became apparent that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD426
sprinkler could not commence. The evidence is that Framan
had planned to subcontract out the sprinkler work involved at
this location.
There is no question but that by February 2000, and earlier,
the science project was a mess and was at least 4 months be-
hind schedule. (In actuality, the sprinkler problem at the nurs-
ing building was not resolved until 2001, and no sprinkler work
was done there for over a year.) The question is, however,
whether that mess meant that Framan was forced to reduce its
overall work force, especially considering the fact that the evi-
dence shows that Manginelli has, in the past, made every effort
to keep his core group employed at all times.
As of February 1, 2000, the Company employed the follow-
ing people as pipefitters, plumbers, and plumber apprentices.3
Frank Calello. Hired in March 1999 as field foreman. He is
listed on the certified payrolls for the science and biology
buildings for a few hours per week.4 I do not know if Calello
ever did any physical labor at any of these sites although he
does appear on various of the certified payrolls as a plumber or
pipefitter. The Company concedes that he is a supervisor
within the meaning of the Act and it appears that he and Frank
Manginelli are in charge of all the Company’s projects.
Vinnie Leto. Pipefitter assigned to the biology building.
Hired in 1993.
Carl Cochran. Plumber assigned to a job at Wall Township.
He had previously worked at the Galloway job in December
1999. Cochran was hired in October 1994.
Pete Felenczak. Plumber assigned as the lead plumber at the
science project. Hired in July 1993.
Brian Yutko. Plumber assigned to the science building since
October 1999. Hired in July 1998. Terminated on February
10, 2000, while working at the science building.
Kenyatte Wingo. First year apprentice assigned to the sci-
ence building. Hired in late December 1999, and initially as-
signed to the biology building for a short time. Terminated
with Yutko on February 10, 2000, while employed at the sci-
ence building.
Thomas Lanza. Plumber assigned, with a helper, to do the
sprinkler system at the Newark Armory. During January and
February 2000, he also was assigned for short periods to the
science building and to Wall Township. Lanza was hired on
March 23, 1998. In March 2000, Lanza was transferred to
work at the biology building and the sprinkler work was taken
over by Steve Jankowitz the owner of Preferred. Lanza had
previously worked for the Company and was rehired in 1998.
Lanza was let go in May 2000, while working at the biology
building.

3 I am not counting a man named Nicola Rapisardi who is listed on
the certified payrolls of the science and biology buildings as a laborer.
He was hired in May 1995, and never became an apprentice of any
trade.
4 For state projects, and because of the prevailing wage law, the con-
tractors are required to submit certified payrolls. These are not submit-
ted in order to determine the amount of reimbursement, but to show
compliance with the law. A certified payroll is supposed to list all of
the contractor’s employees on the jobsite, their respective job classi-
fications, their rates of pay, their hours of work, and their compensa-
tion.
Edgar Harris. He was in his third year as an apprentice
plumber who had been hired in October 1996. As of February
2000, Harris had been given a raise to the journeyman’s rate
and designated by Manginelli as a journeyman. This was done,
in part, because Harris was assigned to finish up work by him-
self at the Galloway job which required that the work be done
by a journeyman.5 Harris was transferred to work at the biol-
ogy building on February 21, 2000. He was terminated on May
5, 2000, while working at the biology building.
Eric Christ. Apprentice plumber assigned to the Newark
Armory to help Tom Lanza. In early February 2000, he also
was assigned to do work at the biology building. On February
11, 2000, Christ was permanently assigned to the science build-
ing. It is noted that the credible testimony of Lanza is that after
Christ was transferred to the science building, a man named
Mike Durkot, who is Manginelli’s brother-in-law, was assigned
to work as his helper at the Newark Armory for at least 5 or 6
weeks. Christ was hired in April 1998.
Domingo Hernandez. At this time he was listed as a first
year plumber’s apprentice and was assigned to help Carl Coch-
ran at Wall Township. However, he didn’t play much of a role
in this case as he essentially quit in March 2000. He was hired
as a driver on December 23, 1999. (Hired at about the same
time as Wingo.)
B. The Union’s Organizing Campaign
The Union, through an individual named Tom Tighe, began
its attempt to organize the plumbing/pipefitting employees of
the Respondent in or about December 1999. This came about
when an employee of the Company, Brian Yutko, contacted
Local 9 and was connected to Tom Tighe. Subsequently, Tighe
contacted most of the employees either over the phone or face-
to-face in meetings held in late December 1999. Other em-
ployees who signed union authorization cards were Cochran,
Wingo, and Harris. Felenczak was not approached to sign and
Leto who was approached, ultimately refused.
There is no question but that the Company had knowledge of
the organizing activity no later than January 12, 2000. Tighe
initially telephoned the Company in January and managed to
arrange a meeting later in the month with Manginelli’s brother
and accountant, John Manginelli. Tighe also visited jobsites to
talk to some of the workers.
On February 8, 2000, Tighe visited the shop and left word
with the secretary because Frank Manginelli was out of the
office.
Immediately following Tighe’s February 8 visit to the Com-
pany’s office, a series of actions were taken by the Company as
follows.
On February 10, 2000, two of the employees at the science
building project were laid off, allegedly for lack of work.
These were Brian Yutko, a journeyman, and Kenyatte Wingo,
an apprentice.
On or about February 14, 2000, Frank Manginelli asked a
number of his employees, what Thomas Tighe had spoken to

5 According to Frank Manginelli, contracts with New Jersey require
that there be two or three journeyman to each apprentice assigned to
work on a jobsite.
FRAMAN MECHANICAL, INC. 427
them about. This was accompanied by statements to some
employees to the effect that if they chose to talk to a union
representative they no longer could be trusted and they could
lose their jobs.
On or about February 15, 2000, Manginelli had his brother
John address a meeting of the plumber/pipefitters to address
some of the things that Tighe had said about the Company.
On or about February 24, 2000, the Respondent, which had,
before any of these events, given Edgar Harris a raise to jour-
neyman rates, reduced his pay back to the rate of an apprentice.
C. The February 10 Terminations of Yutko and Wingo
The Respondent asserts that Brian Yutko, a journeyman and
Kenyatte Wingo, a first-year apprentice, were laid off because
of lack of work at the science building to which they were as-
signed. They were told that they were laid off on February 10,
2000, which is 2 days after Tighe visited the office and, accord-
ing to Manginelli, 1 day after he overheard Vinnie Leto, Pete
Felenzcak, and maybe Eric Christ talking about the Union ask-
ing them to sign something. As noted above, Yutko was the
person who initially contacted the Union and was, with perhaps
Cochran, the employee most involved in talking to other em-
ployees about the Union.
In his affidavit, Manginelli stated that the science project
was delayed and that because work had not begun on phase 2,
he didn’t have enough work to give to the crew that was then
assigned to this job. Manginelli stated that around the first
week of February 2000, he thinks that he and Calello realized
that there was only enough work at the science building for two
people (Felenczak and Christ). He stated that there was no
place that he could have placed Yutko and Kenyatte as there
was not enough work at any of his other jobs for additional
people.
There are several problems with Manginelli’s account. For
one thing, work on phase 2 had already started in November
1999, and consisted of the demolition of the old plumbing and
plumbing fixtures in the old nursing building. Although it is
true that the installation of the sprinklers for the nursing build-
ing was indefinitely delayed, that work was supposed to be
done by a subcontractor and not by Framan’s own employees.
While it is true that work on the science project was substan-
tially delayed, this does not necessarily mean that there was less
work at this time for Framan to do at this site. On the contrary,
the project manager, Brian Murray, and the owner’s representa-
tive, William Rogers, both testified that as of February 2000
and thereafter, there was sufficient work at the science building
to occupy three to four plumbers and plumber apprentices.
Indeed, Rogers testified that he complained to Manginelli and
to Pete Felenczak about what he considered to be Framan’s
undermanning of the project. Manginelli responded that he did
not agree.
Although Manginelli asserts that there was only enough
work for Felenczak and Christ, those being two of the four
people then assigned to the science buildings, the evidence
shows that at the time of the layoffs, Christ was actually as-
signed to work with Lanza at the Newark Armory and was not
assigned to work at the science building until February 11,
2000. (The certified payroll records for the science building
shows that Christ appears for the first time at this site during
the week ending February 11, 2000, and that he was paid for 7
hours.) As noted above, Christ’s place at the Newark Armory
was taken by Durkot who is Manginelli’s brother-in-law, and
who, according to Lanza, had no plumbing experience. Durkot
clearly was not one of the Company’s core employees.
The Respondent contends that it laid off Yutko and Wingo
for lack of work. Nevertheless, the written notice given to
Yutko dated February 11, 2000, did not mention that work was
slow or that they would be recalled when work picked up. For
a company which, for its own interest, needs to retain a core
group of employees which it moves from one job to another,
the failure to reassure a laid off employee that he would be
recalled is strange indeed. (Instead, the February 11 memoran-
dum was an attempt to get Yutko to waive any and all claims he
may have arising out of his employment with the Respondent.)
I have no problem with the assertion that the Respondent
had, under its contracts with the College of New Jersey, the
discretion to man projects in its own way. But that only means
that the Respondent had a certain amount of discretion to do
what it wanted (within limits), and therefore the question re-
mains as to whether it utilized its discretion regarding job man-
ning to maximize its profits or to retaliate against employees
who decided to join a union.
In my opinion, the General Counsel has presented sufficient
evidence to establish that the layoffs of Yutko and Wingo were
motivated by union considerations. The Company was aware
of union activity as early as January 2000, and Yutko was one
of the employees most active in supporting the Union. (Wingo
had signed a union card but otherwise was not active.) The
layoffs of these two people occurred almost immediately after
Union Agent Tom Tighe visited the office on February 8, 2000,
and the timing of the layoffs is evidence of antiunion motiva-
tion. Additionally, in the following section, I have concluded
that both Manginelli and Calello interrogated employees about
the Union on February 11 and 14, 2000, and that Manginelli
explicitly stated to Lanza that by talking to the Union behind
his back, he no longer could trust Lanza, Harris, and Cochran.
Lanza also testified that Manginelli told him, in the context of
discussing the Union, that he had stopped bidding for jobs be-
cause in order to clean house to eliminate bad employees.
Pursuant to Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
when the General Counsel makes out a prima facie case of
discrimination, the burden shifts to the Respondent to demon-
strate that it would have taken the same action irrespective of
the employees’ union or protected concerted activity. I do not
think that the Respondent has met its burden.
As shown above, the asserted reason for laying off Yutko
and Wingo was that there was not enough work to be done at
the science building because of the project’s delays. While
there clearly was a delay, the evidence as a whole indicates that
this did not result in a net diminution of available work for
Framan at this site in February 2000. On the contrary, there
was credible testimony that there was an amount of available
work which would enable Framan to use three to four men on
the jobsite. Moreover, the owner’s agent complained to Fra-
man about undermining the job.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD428
Additionally, despite the propensity of the Company (for its
own self-interest), to make every effort to retain its core work
force, the evidence shows that the Respondent hired Mike Durkot
to be a helper to Lanza at the Newark Armory site to replace Eric
Christ who was moved, on February 11, 2000, to work at the
science building immediately after the layoffs of Yutko and
Wingo. Moreover, the evidence shows that the Respondent exe-
cuted a subcontract with Preferred on March 1, 2000, which re-
sulted in those people taking over the sprinkler work at the New-
ark Armory and Lanza, who originally had been assigned to do
the sprinklers, being moved to the biology building.6
D. The Alleged 8(a)(1) Statements
The evidence indicates that in late January or early February
2000, Vinnie Leto told Frank Manginelli that Union Agent Tighe
had talked to some of the employees about becoming members of
Local 9 and had told them inter alia, that (1) the Company was
being sued or investigated by the New Jersey Department of
Labor regarding prevailing wage claims; (2) that the Company
would not be able to get the necessary bonding allowing it to bid
on public projects; and (3) that the Company might go out of
business and that its employees might lose their jobs. According
to Leto, he approached Manginelli about these matters.
Carl Cochran credibly testified that on February 11, 2000,
while working at Wall Township, Frank Manginelli came by at
the end of the day and asked if he had spoken to the Union.
Cochran testified that he denied this at first but that Manginelli
said that he knew that Cochran had spoken to the Union and that
after 6 years of employment, he had a right to know what the
union agent said about Manginelli and the Company. Cochran
testified that he told Manginelli what Tighe had said and at
Manginelli’s urging, wrote out a note concerning his conversa-
tion with Tighe.7 Cochran also testified that he told Manginelli
that he had some difficulty with Calello and was concerned that
he might be fired. He states that Manginelli said that he was the
one who made discharge decisions and not Calello and that no
one was going to be fired unless and until Manginelli said so.
Cochran also credibly testified that about a week later, Calello
asked him who the first person was who went to the Union.
Cochran testified that he said that he was not going to give any
names.
Edgar Harris, who I find to be a credible witness, testified that
on February 11, 2000, Frank Manginelli came out to the Gallo-
way jobsite and said, “I know your phone has been ringing all
night.” Harris testified that he said this was not the case where-
upon Manginelli said, “I heard that you [sic] been talking to the
Union guy.” According to Harris, Manginelli said that he had

6 I also note that when Domingo Hernandez quit on or about March
24, 2000, the Company at that time, did not offer to recall Wingo. As
noted above, Hernandez and Wingo were first-year apprentices.
7 The original handwritten note states: “I was told that Framan Me-
chanical had problems with paying their employees the pay rate on jobs
and if one more person went to the board of labor, Framan Mechanical
would lose their bonding and would not be able to bid anymore work,
and if Framan went union it would help them get more work. Then we
talked about the benefit of being union like medical, hospitalization and
retirement. I was also told Framan had a limited amount of work left
and after that Framan might go out of business.”
heard that employees had signed some papers and that the union
guy was talking about putting Framan out of business. Harris
states that he told Manginelli that he didn’t sign anything but that
he had spoken to a union agent who said that he could help Fra-
man with his problems with the Department of Labor. Like
Cochran, Manginelli urged Harris to write out a statement and he
did.8 Harris also testified that during this conversation
Manginelli said, in effect, that if he went union, he would lay
everyone off after 30 days.
I also conclude that Thomas Lanza was a credible witness.
Lanza testified that in February 2000, he was called to the office
by Manginelli who said that he heard that the employees had
been speaking to a union representative. (Although Lanza was
not sure of the date, this probably occurred on February 11.)
According to Lanza, Manginelli asked him to write down what
was said. Although reluctant at first, Lanza (like Cochran, Harris
and Leto), wrote down a statement.9 Lanza also credibly testified
that he then told Manginelli that he spoke to the union representa-
tive only to hear what he had to say and that Manginelli said that
Lanza could do whatever he wanted, but that he was very hurt
that Lanza went behind his back and spoke to the Union. Lanza
testified that Manginelli said that he should have come to him in
regards to the Company having problems and that he couldn’t
trust Lanza anymore. Lanza, in an effort to ingratiate himself,
said that he would tell Manginelli whatever Tighe said to him in
the future and that Manginelli said that he could no longer trust
him, Edgar Harris, and Carl Cochran because they all went be-
hind his back and listened to what the union agent had to say.
According to Lanza, at the end of the conversation, Manginelli
told him that he has not been bidding jobs lately because every
few years he goes through a cleaning house period where he gets
rid of bad employees.
On February 15, 2000, the Company called a meeting of the
plumbing employees where John Manginelli stated among other
things that the Company was in good financial shape, that they
had bonding, and that pending prevailing wage rate issues were
trivial and would be resolved. The employees were told that they
could ask any questions and Frank Manginelli said that the Com-
pany, as a nonunion shop, was able to work anywhere in New
Jersey and take its own employees to any location without having
to hire local plumbers who were members of the local union
where the job was being done. In the latter regard, Frank
Manginelli testified without contradiction that as a former union
plumber he understood that if he had a collective-bargaining

8 The statement that Harris wrote out is: “He called me at home ask
me to consider joining the Union. He also mentioned some things
about the company’s future as far as work and labor board. [Referring
to Department of Labor]. As far as signing I haven’t. He also ex-
pressed the need to sit down with the boss to work out some arrange-
ment with the labor board. He said he could help.”
9 Lanza’s statement reads: “I spoke to Tom in regard to joining Lo-
cal. He said Framan Mechanical is having problems on various jobs
where he possibly might not get bonding and is being sued. Also prob-
lems with wages. He never spoke bad personally about Framan, just
that the Company may be falling apart and that he can help all employ-
ees singly [sic] or as a company with Frank and that all parties will then
be happy. He said he spoke to Frank and that he hopes this meeting
will resolve the above issues.”
FRAMAN MECHANICAL, INC. 429
agreement with the plumbers, he would be required to hire local
plumbers when working in the jurisdiction of a local plumber’s
union.
In relation to the above, I conclude that when Manginelli ques-
tioned employees about what Union Agent Tighe said to them, he
engaged in unlawful interrogation. Manginelli probably asked
about these conversations primarily in order to confirm that
Tighe was making pejorative statements about his Company.
Under Board law, not all interrogations are automatically con-
sidered to be coercive. Rossmore House, 269 NLRB 1176
(1984). See also Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964).
If Manginelli has questioned his employees as to what Tighe had
said about his company and this was all that he said, one could
possibly come to the conclusion that such questioning was not
unlawful if it was solely designed to determine whether untruth-
ful or potentially libelous statements were being published by a
union representative to the Company’s employees. But that is
not the situation here. Based on Lanza’s credited testimony,
Manginelli also stated that he could no longer trust employees
who went behind his back and who talked to the union represen-
tative. He also told Lanza that he had not been bidding for more
work as a way of getting rid of “bad” employees. Additionally,
based on Harris’ testimony, I conclude that Manginelli essentially
threatened that he would terminate his employees if he was com-
pelled to sign a union contract.
Similarly, I conclude that the Respondent violated Section
8(a)(1) by giving the impression that the employees’ union activi-
ties were under surveillance. This is shown by statements to
Harris and Cochran on February 11, to the effect that Manginelli
was aware that they had been talking to a union representative.
Peter Vitalie Co., 310 NLRB 865, 874 (1993); Sarah Neuman
Nursing Home, 270 NLRB 663, 680 (1984); and South Shore
Hospital, 229 NLRB 363 (1997).10
On the other hand, the fact that the Employer solicited ques-
tions at the meeting held on February 15, 2000, does not, in my
opinion, rise to the level of unlawful interrogation. Nor, do I
conclude that the Employer illegally threatened employees with
job loss by stating what is apparently a truthful opinion to the
effect that if it signed a contract with the Plumbers’ union, it
might have to hire other employees when it performed work in
the jurisdictions of other local Plumbers’ unions. This statement
was made based on Manginelli’s past experience as a union con-
tractor and was not contradicted by anyone from the General
Counsel’s side.
E. The Demotion of Harris
When Kenyatte Wingo was hired as a first-year apprentice,
Manginelli decided to designate Harris, who at the time, was a

10 In Peter Vitalie Co., supra, the ALJ stated that “to tell employees
which ones were the ring leaders for the Union when the employees in
question had not openly demonstrated their support for the Union
leaves the impression among the employees that their union activities
are being surveilled.” However, in South Shore Hospital, supra, the
Board rejected the ALJ’s conclusion that the respondent had unlawfully
created the impression of surveillance based on a statement to the effect
that there was talk of having a union all over the hospital. The Board
noted that the statement indicated, at most the company was merely
aware of the interest in unionization by some of the employees.
third-year apprentice as a journeyman and pay him the journey-
man rate. In his affidavit, Manginelli stated:
When I decided to make Edgar Harris a plumber I did so
because I hired Kenyatte as an apprentice and you can have
only so many apprentices. There is a ratio of apprentices to
plumbers that you are allowed to have. I think the ratio is 2
plumbers to 1 apprentice or 3 plumbers to 1 apprentice. So
based on the hiring of Kenyatte who was an apprentice, I
needed another plumber. So we decided to move Edgar
Harris up to a plumber. When Edgar Harris was moved
back to an apprentice the ratio was not affected because
Kenyatte was laid off by that time. Had Kenyatte not been
laid off then I could not have moved Edgar back to an ap-
prentice. [Emphasis added.]
It should be noted that insofar as the State of New Jersey is
concerned, Harris could not have been designated by Manginelli
as a certified journeyman plumber. But this does not mean that
Manginelli could not call Harris whatever he wanted. More im-
portantly, this did not mean that Manginelli could not increase
Harris’ pay to the journeyman’s rate that was applicable under
the State’s prevailing wage law.
Since I have already concluded that the layoff of Wingo on
February 10, 2000, was illegally motivated by antiunion consid-
erations, the reduction in Harris’ pay back to that of an apprentice
was equally unlawful as the reduction was made only because
Kenyatte had been laid off. Accordingly, I conclude that the
reduction which occurred on February 24, 2000, violated Section
8(a)(1) and (3) of the Act.
F. Warnings Issued to Harris and Lanza
Frank Manginelli seems to be a straight talker when it comes
to his employees. Employees agree that “when he doesn’t like
what your are doing, he will say so in no uncertain terms.” How-
ever, prior to the advent of the union organizing campaign, he
never issued a written warning to any of his employees. And I
have little doubt that Manginelli decided soon after he became
aware of the union activity that he would need to generate a writ-
ten record before discharging anyone.
On March 17, 2000, Edgar Harris, who at this time was work-
ing at the biology building, received a warning from Manginelli
which stated:
Your performance and productivity has steadily been
declining from on or about 2/1/00.
While Frank Calello and Vincent Leto went to the trailer
on Monday 3/13 at on or about 1:30 to review blue prints
you were left alone to complete certain specific tasks as-
signed to you. When Vincent Leto and Frank Calello re-
turned, they found you sitting down on a bucket and not
working. Furthermore, the work that needed to be done was
not yet completed.
Framan . . . does do [sic] pay prevailing wages and
benefits to you so that you can be sitting down on the job
during working hours. Please be advised that any such acts
of slow down or non performance of work will not be toler-
ated and this company will take any other disciplinary ac-
tion up to and including suspension and termination of your
employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD430
On April 25, 2000, Manginelli issued warnings to Harris and
Lanza. The warning to Harris stated:
Your performance and productivity continue to deteriorate
and it appears that you are intentionally slowing down work
on the job, what normally should take 1/2 of a days work is
now taking 3/4 to a full day of work to be completed. This
is totally unacceptable. As I verbally explained to you per-
sonally on the job site recently, your slowing down on the
job is creating delays for this project which has negative
consequences both for Framan . . . as well as the project
owner. This project’s contract is subject to liquidated dam-
ages for delays. As you are aware, this is the second warn-
ing that I am issuing to you regarding your performance at
this project.
In addition to the above, your work quality seems to
have deteriorated recently. Specifically, during the week of
April 5, 2000 you were assigned to complete the plumbing
installation and connection of a VAV Box(s) and other re-
lated tasks on the second floor of the project site. The first
time you completed the task properly, however the second
time you competed the installation incorrectly. This is not
acceptable. This will cost Framan time and money to re-do
the work, which should have been done correctly initially.
The warning to Lanza made a similar assertion that his produc-
tivity had declined and that he was taking too long to do the work
assigned to him. Unlike the warnings to Harris, no specific inci-
dents were described.
Harris unequivocally denied the assertions contained in the
warnings to him. In relation to the first warning, he testified that
he had finished virtually all of the work assigned to him and
while waiting to ask a question, he was sitting on a bucket while
lowering garbage to the floor below. Indeed, his version of this
event is essentially confirmed by Vincent Leto and Calello was
not called as a witness by the Respondent. As to the second
warning, Harris denied that he had slowed down his work or that
he had installed the VAV boxes incorrectly. His testimony in
these respects, was not contradicted as Manginelli had no per-
sonal knowledge of the events referred to in the warnings and
Calello was not called to testify about them. As I found Harris to
be a credible witness, I shall also credit his version of the events
relating to these warnings.
Lanza also credibly denied that he slowed down his work or
otherwise did anything wrong while on the job.
Based on the above, it is my opinion, that the warnings were
manufactured by Manginelli for the purpose of making a record
so that he could “justify” the termination of these employees. As
noted above, Manginelli had described Lanza and Harris as no
longer being trustworthy because they had gone behind his back
to talk to the union agent. Accordingly, I find that these warnings
constituted violations of Section 8(a)(1) and (3) of the Act.
G. The Layoffs of Harris and Lanza
On May 5, 2000, the Respondent laid off Harris and Lanza, os-
tensibly because of a lack of work. At this time, both were work-
ing at the biology building which was completed in about August
2000.
Notwithstanding this claim by the Respondent, the evidence
shows that it hired a subcontractor in March 2000 to perform
work at the Newark Armory that had previously been assigned to
Lanza. Additionally, the evidence shows that the Company
hired, off the books, at least three other people to do work at the
Newark Armory at various times during at least the months of
February and March 2000.11 At the biology building, there was
evidence that on various weekends during the spring of 2000, the
Respondent brought in a crew of workers who were not listed as
having worked on weekends on the certified payroll.
Lanza credibly testified that Manginelli told him in February
2000, that he had ceased making bids so that he could eliminate
his “bad” employees. I do not know with certainty if Manginelli
did, in fact, cease making legitimate bids for a period of time
after he found out that the Union was attempting to organize his
employees. But this credited testimony certainly tends to under-
mine the entire defense which postulates that the Company had to
lay off various employees because it didn’t have sufficient work
to keep them employed.12
Having concluded that Manginelli had expressed antiunion
animus, that the Respondent has illegally terminated the em-
ployment of Yutko and Wingo and had given illegally motivated
warnings to Harris and Lanza, I also conclude that the layoffs of
Harris and Lanza on May 5, 2000, were violative of Section
8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Framan Mechanical Inc., violated Section
8(a)(1) and (3) of the Act by discharging its employees Brian
Yutko, Kenyatte Wingo, Edgar Harris, and Thomas Lanza be-
cause of their membership in or support for Plumbers and Pipefit-
ters, Local Union No. 9, UA.
2. The Respondent violated Section 8(a)(1) and (3) of the Act
by issuing warnings to Edgar Harris on March 17 and April 25,
2000, and to Thomas Lanza on April 25, 2000, because of their
membership in or support for the Union.
3. The Respondent violated Section 8(a)(1) and (3) of the Act
by demoting Edgar Harris on February 24, 2000, and reducing
his pay rate because of his membership or support for the Union.
4. The Respondent violated Section 8(a)(1) of the Act by in-
terrogating employees about their union sympathies or support.
5. The Respondent violated Section 8(a)(1) of the Act by giv-
ing the impression that the employees’ union activities were be-
ing kept under surveillance.
6. The Respondent violated Section 8(a)(1) of the Act by
threatening employees with the loss of their jobs if they selected
the Union to represent them.
7. The unfair labor practice found herein affects commerce
within the meaning of Section 2(2), (6), and (7) of the Act.

11 In his affidavit Manginelli states that when he returned from Spain
on March 31, 2000, Frank Calello told him that during the week of
March 23–30, he had used Mike Valente to move pipe and install
sprinkler piping at the Newark Armory. The affidavit also states that
Mike Durkot was also at the Armory job delivering pipe and helping
Valente lift pipe.
12 Cochran, the other employee whom Manginelli described as being
untrustworthy, resigned in July 2000, and there is no allegation that this
was a constructive discharge in violation of the Act.
FRAMAN MECHANICAL, INC. 431
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 effectuate
the policies of the Act.
The Respondent contends that it made valid offers of rein-
statement to three of the four employees and therefore it should
not be required to reoffer them reinstatement as part of this Or-
der. It also argues that any backpay owed should be cut off as of
the date of the reinstatement offers. No reinstatement offer was
ever made to Kenyatte Wingo and therefore these arguments do
not apply to him.
Lanza testified that on June 13, 2000, he received a phone call
from Calello who said that he got Lanza’s job back. According
to Lanza, he responded that he didn’t want to work for Framan
and couldn’t understand why Calello was calling him back.
Lanza testified that Calello said that he was calling him back and
again asked if he wanted the job. After some give and take,
where Lanza said, in effect, that he was upset about being ac-
cused of slowing down the job and engaging in other misconduct,
Lanza reiterated that he did not want to go back to work for Fra-
man.
By letter dated June 12, 2000, sent to Lanza by next day Fed-
eral Express, Manginelli wrote as follows:
RE: NOTICE TO RETURN TO WORK from Layoff status.
Dear Tom:
Confirming Frank [Calello’s] telephone conversation
with you on this date, please be advised that you are hereby
requested to return to work at Framan Mechanical Inc. ef-
fective tomorrow.
As instructed by Frank Calello, please report to the Bi-
ology Building jobsite.
Edgar Harris testified that on June 16, 2000, he received a
phone call from Frank Calello who said that he could return to
the biology building at 8 a.m. in 2 days. Harris testified that at
this time he was working at a union job and responded: “You
really expect me to come back to be harassed and written up and
lied on?” According to Harris, he told Calello that he would
speak to the union business agent about the offer and get back to
him. Harris states that he then spoke to Tighe and decided not to
return to work at Framan.
By letter dated June 16, 2000, sent next day delivery, Harris
received an offer of reinstatement which read as follows:
Confirming Frank Calello’s telephone conversation with
you on this date, please be advised that you are hereby re-
quested to return to work at Framan Mechanical Inc., effec-
tive Monday June 19, 2000
Following up on the letter dated June 16, Manginelli sent an-
other letter to Harris dated June 22, 2000. This read:
On Friday, June 16, 2000 you were contacted by tele-
phone by Foreman/Supervisor Frank Calello. During that
conversation, Mr. Calello advised you to return to work on
Monday June 19, 2000 from your layoff. Your verbal re-
sponse to Mr. Calello was that you were not interested in re-
turning to work at Framan Mechanical, Inc.
On Friday, June 16, 2000, I personally mailed you a let-
ter by overnight Federal Express and regular US mail reiter-
ating my request that you return to work and requesting that
you report to the Biology Building project effective Money,
[sic] June 19, 2000.
As of today, you have failed to return as requested. By
failing to return to work, your actions dictate that you have
voluntarily resigned your position with Framan Mechanical
Inc. I hereby accept your resignation effective immediately.
Finally, with respect to Harris, the Company sent him another
letter dated September 22, 2000, in which it reoffered him rein-
statement. This letter read:
The purpose of this letter is to offer you immediate, uncon-
ditional reinstatement to your employment at Framan Me-
chanical Inc. Please contact me as soon as possible if you
want to return to your position with us.
The evidence shows that the Company, by letter dated June 21,
2000, made an offer to Brian Yutko which read as follows:
RE: NOTICE TO RETURN TO WORK from Layoff status.
Dear Brian:
Please be advised that you are hereby requested to return
to work at Framan Mechanical Inc., effective Friday June
23, 2000.
Please report to the Biology Building job site, at the
College of New Jersey in Trenton.
Yutko acknowledges receiving the letter and testified that he
called the office and spoke to Donna who is a secretary in the
office. Yutko states that he told her that he was not interested in
coming back to work for Framan.
By letter dated June 23, 2000, Manginelli sent a letter to Yutko
confirming that he had not shown up for work by this date. The
letter read:
On Wednesday, June 21, 2000 I personally mailed you a
letter by overnight Federal Express and regular US mail re-
questing that you return to work and requesting that you re-
port to the Biology Building project effective Friday, June
23, 2000.
This morning you did not report to work as I requested
but you contacted Donna at our office asking her to tell me
that you are in receipt of my recall letter and that you are not
interested in coming back to work from your layoff . . .
since you have been working somewhere else and that in ef-
fect you have voluntarily resigned your position . . . . I
hereby accept your resignation effective immediately.
Thank you for taking time and calling back to notify us
of your resignation.
The General Counsel argues that the Respondent’s June 2000
reinstatement offers were invalid because they did not give the
employees sufficient time to evaluate the offers. He also argues
that the subsequent offers in September should not toll backpay
inasmuch as they did not sufficiently set forth the positions being
offered or the time to respond.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD432
The General Counsel relies on such cases as Murray Products,
Inc., 228 NLRB 268 (1977), enfd. 584 F.2d 934, 940 (9th Cir.
1978); and Brenel Electric, 271 NLRB 1557 (1984). In Murray
Products, supra, the Board stated that striking employees had a
fundamental right to have a reasonable time to consider whether
or not they wished to return to work. In Brenel Electric, supra,
the Board held that reinstatement offers made to illegally dis-
charged employees did not allow them sufficient time to respond.
In Brenel, the Board also held that some of the offers were also
invalid because they were, in fact, offers of temporary employ-
ment.
The Respondent relies on Esterline Electronics Corp., 290
NLRB 834 (1988), where the Board modified its position as
taken in Penco Enterprises, Inc., 216 NLRB 734 (1975); Murray
Products, supra; Brenal Electric, supra, and Fredeman’s Cal-
casieu Locks Shipyard, 208 NLRB 839 (1974). The Board
stated:
We have reconsidered the question regarding a dis-
criminatee’s duty to respond to an offer of reinstatement be-
cause several Courts that have reviewed the Board’s current
rule have rejected it. The reasons for rejecting the Board’s
current rule were best stated by the Tenth Circuit in NLRB v.
Betts Baking Co., 428 F.2d 156, 158 (1970):
Both employer and employee are bound by the re-
quirement of good faith dealings with each other. And
it does not place an undue burden on the employee to
require him to inform his employer of his intentions
concerning reinstatement within a reasonable time after
notice.
Thus, the court in Betts reasoned that an offer of rein-
statement is not rendered invalid simply because it affords
the discriminatee what may be regarded as an unreasonably
short period of time in which to consider it. We agree.
When a discriminatee receives a letter that uncondition-
ally offers reinstatement and that also states a report—back
date, we will not find the offer invalid simply because the
specified reporting date appears unreasonably short. The of-
fer will be treated as invalid, however, if the letter on its
face makes it clear that reinstatement is dependent on the
employee’s returning on the specified date or if the letter
otherwise suggests that the offer will lapse if a decision on
reinstatement is not made by that date. If the letter does not
expressly condition the offer on compliance with the report-
back date, the discriminatee cannot know, until he or she
calls the employer, whether that date is inflexible and
whether a reasonable time for making a decision on the of-
fer will be granted. Similarly, until the discriminatee re-
plies, the employer cannot know when the discriminatee
would be able to return.
. . . .
A discriminatee who receives an otherwise valid offer
. . . cannot rely on the mere inclusion of an unreasonably
short report—back date in the letter to justify a failure to
make some response to the employer, if only to ask for more
time to consider the offer. A failure to make such a response
within a reasonable time after the offer has been made will
toll the running of backpay.13
The evidence shows that the June reinstatement offers to
Lanza, Yutko, and Harris were not conditioned on their accep-
tance or return by a specified date. Nor does the evidence indi-
cate that the discriminatees were particularly conflicted or am-
biguous about their refusal to return to work at Framan. They
didn’t ask for more time to consider the offers because they had
already made up their minds not to return.
In light of Esterline, supra, I conclude that the June offers were
valid and that they toll backpay as of the time received. Thus, in
the case of Lanza, his backpay is tolled as of June 13, 2000. In
the case of Harris, his backpay is tolled as of June 17, 2000. And
in the case of Yutko, his backpay is tolled as of June 22, 2000. I
also conclude that as the reinstatement offers were valid, the
Respondent is not legally required to make any further reinstate-
ment offer as part of the remedy to these three individuals. Bat-
Jac Contracting, Inc., 320 NLRB 891, 894 (1996).
As to Harris, I have also concluded that he was demoted and
his pay rate reduced on February 24, 2000, for discriminatory
reasons. Therefore, I shall recommend that he be made whole
from February 24, 2000, by paying him the difference in his pay
rate immediately before that date and the wage rate he received
after that date. Further, until his backpay was tolled, his backpay
should be calculated on the basis of his pay rate immediately
prior to his demotion on February 24, 2000.
With respect to Kenyatte Wingo, it is recommended that the
Respondent offer him reinstatement and make him whole for any
loss of earnings and other benefits, computed on a quarterly basis
from date of his suspension to date of his reinstatement or a valid
reinstatement offer, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987). Moreover, as the evidence shows that it is the Em-
ployer’s practice of moving employees from one job to another, I
conclude that Wingo’s backpay should not terminate at the com-
pletion of the job to which he was assigned at the time of his
termination. See Dean General Contractors, 285 NLRB 573
(1987), where the Board overruled Brown & Lambrecht Earth
Movers, 267 NLRB 186 fn. 3 (1983), to the extent that it held
that there existed a precompliance presumption against rein-
statement in the construction industry.
In all instances where the remedy requires that employees be
made whole, the amount, less any interim earnings, as prescribed
above, shall include interest as computed in accordance with New
Horizons for the Retarded, supra.
[Recommended Order omitted from publication.]

13 I note that in Esterline Electric, 271 NLRB at 1561 fn. 4, the
Board stated, in substance, that an offer demanding that an employee
accept and return to work on the same day that he receives it would
presumptively be invalid, except in unusual circumstances.