General Fence Supply Co.

National Labor Relations Board - Board Decisions

Jul 25, 1977

230 N.L.R.B. 1153 (N.L.R.B. 1977)

GENERAL FENCE SUPPLY CO.
General Fence Supply Co., Inc. and Dominic Tarenti-
no. Case I-CA-I 11890
July 25, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On March 28, 1977, Administrative Law Judge
Irving M. Herman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.
behalf of the General Counsel and Respondent, I make the
following:
FINDINGS AND CONCLUSIONS
I. RESPONDENT'S BUSINESS
The complaint alleges, the answer admits, and I find that
Respondent is a Rhode Island corporation, maintaining its
principal office and place of business in Providence, where
it is engaged as a construction contractor; that in the
regular course of such business Respondent annually
receives goods directly from outside Rhode Island valued
in excess of $50,000, and performs services valued in excess
of $50,000 in States other than Rhode Island; and that
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
ORDER A. The Facts
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that the Respondent, General Fence
Supply Co., Inc., Providence, Rhode Island, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
IRVING M. HERMAN, Administrative Law Judge: This
case was heard before me on January 27, 1977, at Boston,
Massachusetts. The charge was filed by Dominic Tarenti-
no, an individual, on June 11, 1976, and duly and timely
served on Respondent the same date; an amended charge
was duly filed and served on August 4.' The primary issue
is whether Respondent violated Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended (29 U.S.C.,
§ 151, et seq.), herein called the Act, by refusing to hire
Tarentino because of Tarentino's activity as union steward
in seeking Respondent's adherence to the safety provisions
of its contract with Local 721 of the Laborers' Internation-
al Union of North America, herein called the Union; and
by refusing to hire Arthur Lesperence because of his
association with Tarentino.
Upon the entire record,2 including my observation of the
witnesses, and after due consideration of the briefs filed on
I General Counsel moved February 28, 1977, subsequent to the close of
the hearing, for the admission into evidence of the amended charge which
had inadvertently been omitted from the formal papers and escaped
mention in the complaint. Respondent and its counsel have been duly
230 NLRB No. 178
Respondent was the guardrail subcontractor on a
highwaywidening job on Route 24 in Brockton, Massachu-
setts, which lasted from 1974 to June or July 1976. The
Barletta Company of Roslindale, Massachusetts, the
general contractor, was party to a contract with the Union
which was also binding on Respondent. The contract gave
the Union the first opportunity to refer qualified job
applicants but reserved to employers the power to reject
any applicant as unqualified. The contract also provided
for the appointment of a steward by the Union with the
function of reporting any violations of its terms, including
the health and safety provisions, and required that the
steward "remain on the job until the completion of all the
work covered by the terms of this agreement."
Tarentino, an employee of Barletta, which performed
some of the work itself, was designated steward and
remained on the job until June 11, 1976, when Barletta's
own need for laborers temporarily ended. Throughout this
period his stewardship entailed periodic patrolling of the
approximately 10 miles of highway covered by the job to
ensure compliance with the prescribed working conditions
by both Barletta and its subcontractors who employed
laborers. When he observed violations, he reported them to
the particular foreman in charge in order to get them
corrected. Tarentino testified without contradiction that
Respondent was his "biggest problem" in this connection,
that he "was after them all the time," and he specifically
mentioned talking to George Colletti and another foreman
named Janesik who sometimes failed to make the request-
ed correction, thus necessitating repeated complaints.
About a week to 10 days before his layoff, according to
served with copies of the motion which recites that counsel has no objection
thereto. The motion is accordingly granted and the document is received as
G.C. Exh. 3.
2 Certain errors in the transcript are hereby noted and corrected.
1153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tarentino, he complained to Janesik about the latter's
failure to put up cones and an arrow board so as to divert
traffic from an area where the men were working, and
Janesik said that when Respondent got Tarentino it would
have a "lot of dirty work" for him "down at the yard."
When Tarentino was about to be laid off, Barletta's
superintendent, Segerson, so advised the Union pursuant
to the contract. He spoke with the Union's business
manager, Palavanchi, and told him that at some time
within the next 3 weeks he might be able to use Tarentino
again for another week. Respondent was the only contrac-
tor continuing to work at this time. In their conversation,
according to Segerson's testimony, which I credit, Palavan-
chi told Segerson that he wanted Tarentino hired by
Respondent in order to keep a steward on the job. Segerson
said he would talk to Respondent about it. He thereafter
called Robert Colletti, Respondent's general superinten-
dent, and informed him of Palavanchi's wish, but Colletti
said he did not want to hire Tarentino because "Tarentino
did not meet his requirements. He felt that he could find
better men to do the job, that he required-laborers to do
his job. He did not particularly want to hire Mr. Tarentino
in that respect." Segerson testified further that he transmit-
ted this message to Palavanchi who evidently asked him to
try again, and that he did so but that Respondent remained
firm against hiring Tarentino while stating that it wanted
two other laborers for the following Monday, June 14,
which information he relayed to Palavanchi.3
Nevertheless, Palavanchi referred Tarentino to Respon-
dent on June 14,4 together with Lesperence who had
worked for Respondent on the same job on two prior
occasions for several months. Respondent refused to hire
them. George Colletti angrily told them to return to the
hiring hall and, if they wanted work, to work for the Union
or to let the Union pay them. 5 At 5 p.m. that day Robert
Colletti telephoned Palavanchi 6 to request two laborers for
the next day. According to Palavanchi, Colletti specified
that he did not want the two men who had been dispatched
there earlier.
Colletti's direct testimony was that the reason that
Tarentino and Lesperence were turned away on Monday,
the 14th, was that no laborers were needed because there
was a shortage of materials causing them to be sent
"piecemeal" and forcing Respondent to "start the job, stop
the job, start the job and stop the job; that the shortage was
not relieved until later that day; and that no call was made
to the Union to send men to work on the 14th.7 As for his
request for laborers for the 15th, he testified that he had
merely asked Palavanchi for two laborers and never told
:' Segerson testified that there was no practice of a general contractor
placing its steward with a subcontractor, and as to the contract provision
about the steward being the last man on the job, his testimony was:
He is always the last man for the company he is working for. That's a
normal thing. I don't know whether it's in the contract or not. It's a
normal practice. The last laborer on the job is the laborer steward. The
last carpenter is the carpenter steward, et cetera.
4 According to Palavanchi, it is "common knowledge" that it is "the
practice of our industry" to place a laid-off steward with any laborer
subcontractor still on thejob.
5 This is a synthesis of the testimony of Tarentino and Lesperence which
I find credible, particularly in the absence of any testimony by George
Colletti.
h Despite references in the testimony to the occurrence of this call at
him that he did not want Tarentino.8 Although his direct
examination made no mention of his conversation with
Segerson, he admitted on cross that he had told Segerson
on the 11th that he did not want Tarentino because he did
not "come up to my standards as a guardrail erector and
that I would rather have two other men," and "I'll take any
two laborers."9 His testimony continued:
Q. Okay, so if Tarentino had shown up on
Tuesday, you would've rejected him, is that right?
A. No, I would've hired him.
Q. You hire somebody that doesn't come up to
your standards?
A. No, I hire-I called up for two people. I didn't
know who he sent and I didn't know who he sent until
two days later.
Q. Would you have hired somebody on Tuesday
who did not come up to your standards?
A. Right.
Q. Would you?
A. No.
Q. Obviously not.
A. No.
Q. So that if Tarentino had shown up on Tuesday
you would have rejected him. Is that right?
A. Right.
Earlier on cross he had testified that he never knew
Tarentino, that his brother had never conveyed to him his
own feelings about Tarentino, and that all he had ever
heard about Tarentino was that he was a steward, which he
learned from Segerson.
Robert Colletti's direct testimony offered no explanation
for his determination that Tarentino failed to meet his
standards. But on cross he stated that he did not "think"
Tarentino had ever worked for a guardrail company,'? and
"Number two, ask the gentleman how old he is and
everybody that works for me, because of the work, are
younger people. I don't think he could have carried his
load." His testimony continued:
Q. And, you didn't want a man of his age-
A. No, I didn't say-
Q. And a man so weak, is that right?
A. I didn't say weak.
Q. Okay, you said he couldn't lift is what you said.
A. I said I thought that he couldn't carry his load.
Q. Well, by the way, there's a very easy way of
finding out about a man's physical capacity, isn't there?
some other time, the time is established by Respondent's telephone records.
Colletti admittedly knew at that time of Tarentino and another laborer
having been turned away that morning although he testified that he had not
yet learned the latter's identity.
T On cross, Colletti added that his brother George had no authority to
hire anyway.
I He testified that after the material arrived Monday afternoon he
informed his foremen that the shipment included 800 plates, and they said,
"well we can use an extra couple of men to get them on. So, that's when I
made the call."
9 Palavanchi did accordingly refer two other men on the 15th.
'0 Guardrail work apparently requires some technical skill not needed by
an ordinary laborer, the contract providing a 25-cent-per-hour differential
for that type of work along with several other classifications.
1154
GENERAL FENCE SUPPLY CO.
A. I have no idea.
Q. You test him. You ask him to lift something.
Isn't that right?
A. Well, I don't have to ask him to lift anything
because then I've got an insurance case if he can't.
Q. You concluded then, although you had never
seen Tarentino, I believe that was your first-
A. I didn't say I never seen him. I said I've seen
him on the job.
Q. You had seen him on the job?
A. Right. Never talked to him.
Q. You never talked to him?
A. Right.
Q. You never saw him work?
A. Nope. Every time I saw him he was riding
around in his car.
Q. Never saw him do anything?
A. Nope.
Q. Is that right?
A. That's right.
Q. And from that you concluded that he didn't
have the physical capacity to lift certain weights?
A. Right.
Q. Even though he's a laborer. He looks healthy
and vigorous. You have a youth principle, you say?
A. Nope, I didn't say that. That's what you said.
Q. I thought you said you hired-
A. I said most of the people that worked for me are
young. That's all I said.
Q. Well, you don't have a principle then of
preferring youth to age?
A. Nope, because I have people that work for me
that are over 60.
Q. So that the reason then that you rejected-
decided that Tarentino was not up to your standards
was some conviction that you had that he couldn't lift
certain loads. Is that right?
A. No, that's what you're saying.
Q. Well, I thought-
A. The only thing I did, sir, I said is I called for two
people, right, which they sent me. You're telling me
about Tarentino. I didn't know anything about Tarenti-
no.
Q. I'm asking you why on the week before you said
that Tarentino didn't come up to your standards?
A. I'd rather not have him, that's correct, sir.
Q. And, I'm asking you in what way he didn't
come up to your standards, and I think you told us
because he couldn't lift a certain weight-
A. No, I didn't say that.
Q. You didn't?
A. I said I didn't think he was capable of doing
heavy work like the younger people that we have
working for us. I didn't think he would carry his load.
* * * *
Q.
A.
Q.
A.
You didn't feel he could carry his load?
That's right.
And, that he hadn't worked on guard rails?
That's correct.
Q. You hadn't the vaguest idea whether he had
worked on guard rails or not, isn't that right?
A. No. As far as I know, being a steward, if he was
a steward, he didn't work on a guard rail company. He
worked for a general contractor because the stewards
all work for the general contractor, and all we do work
for are generals, who do not do guard rail.
Q. Tarentino had worked for 37 years as a laborer.
A. That's-and 22 years ago we didn't have guard
rails, sir.
Q. All right. Within those 22 years, wasn't it quite
possible that he had worked on guard rails?
A. I don't know. Why don't you ask him, sir.
Q. You didn't care, did you? Why didn't you ask
him?
A. Because I didn't want to hire him.
At the conclusion of Colletti's cross-examination came
the following:
JUDGE HERMAN: Mr. Colletti, when you said that
you didn't-you told Segerson that you didn't want
Tarentino-
THE wrnEss: I said I'd rather not have him, sir.
JUDGE HERMAN: Rather not have Tarentino, that
you would rather have two other men. You mean two
men for one?
THE WITNEss: No. I'd rather have two other laborers.
I didn't even know this Mr. Lesperence was with
Tarentino at the time. I didn't know who was with
Tarentino. All I knew was there was two people who
showed up. I didn't even know who else-I said I'd
rather have two other laborers. And, I'd call him when I
needed them which was the following day.
JUDGE HERMAN: So, when you said you wanted two
others, you meant two other than Tarentino and the
man who came with him?
THE wrrNEss: Right.
And, on redirect examination, Colletti testified:
Q. . . . At the time Mr. Segerson spoke to you, did
you have a need for two workers then?
A. No.
Q. So, in other words-
A. It was a week, week and a half before.
Q. So is it correct-is it fair to say that your
response to Mr. Segerson's inquiry was not only that
you'd rather not have Mr. Tarentino but also-but, in
fact, you didn't need anyone. Mr. Tarentino or
anybody.
A. I didn't need anybody, right, anybody at the
time.
B. Concluding Findings
The basic testimony supporting the General Counsel's
case stands largely uncontradicted or admitted. It is that
Tarentino diligently pursued his duties as steward, fre-
quently finding Respondent not in compliance with the
safety requirements of the contract; that Robert Colletti
told Segerson on June II that he did not want to hire
Tarentino but would prefer "any" two other laborers
1155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because Tarentino did not meet Respondent's qualifica-
tions; that Segerson so informed Palavanchi who neverthe-
less referred Tarentino as well as Lesperence to the
worksite on the next working day, June 14; that George
Colletti angrily turned them away, saying the Union could
hire them or pay them; and that on the evening of the 14th
Robert Colletti called Palavanchi to send two men the next
day, and Palavanchi referred two men other than Tarenti-
no and Lesperence.1" While the remaining evidence is in
controversy to some extent, I find it supports the General
Counsel's position. In so doing, I find Robert Colletti not a
generally credible witness. His testimony abounds in self-
contradictions and his manner was evasive, his cross-
examination in particular being accompanied by frequent
fleeting glances in the direction of Respondent's counsel.
Palavanchi testified that when Colletti called him on
June 14 he specified that he did not want the two men who
had been sent there earlier.' 2 Colletti denied this, testifying
that he merely requested two men. Colletti testified further,
however, that he told Segerson that he would rather have
two "other" laborers. And significantly he added, "I didn't
even know this Mr. Lesperence was with Tarentino at the
time. I didn't know who was with Tarentino. All I knew
was there was two people who showed up. I didn't even
know who else-I said I'd rather have two other laborers."
Moreover, he acknowledged that by "two others" he
"meant two other than Tarentino and the man who came
with him." In view of Segerson's corroborative testimony, I
credit Colletti's testimony that he told Segerson he wanted
two other laborers. But at that time he could not possibly
have "kn[own ] there was two people who showed up" and
that he wanted "two other than Tarentino and the man
who came with him" because his conversations with
Segerson antedated Tarentino and Lesperence's referral. I
infer, therefore, that his reference to two other men in his
talk with Segerson contemplated two men other than
Tarentino, and that the only conversation mentioned in the
record to which the Tarentino-Lesperence referral could
have been pertinent was his converation with Palavanchi.
Not only does this undercut Colletti's general credibility
but it is of further significance. Whatever Tarentino's lack
of qualifications, Respondent had no conceivably valid
reason for not wanting to hire Lesperence whose prior
employment history with it must be deemed to have been
entirely satisfactory. Respondent urges, however, that
Robert Colletti, as he testified, did not know that
Lesperence was the man who had come with Tarentino.
II Although Tarentino's testimony of Janesik's threat to give him "a lot
of dirty work" also stands uncontradicted, I am unable to credit it in view of
the surrounding circumstances. It presupposed Janesik's knowledge that
Tarentino would be coming to work for Respondent. In the first place there
is no evidence that anyone, including Tarentino (and much less Janesik),
knew that Barletta's need for laborers would end before Respondent's.
Second. it assumes the validity of Palavanchi's statement of the industry's
practice under the contract provision requiring the steward to be the last
man on the job. I do not find the evidence sufficient to support such a
finding in the face of Segerson's firm contrary testimony which seems
consistent with a fair reading of the contract as a whole. Before an employee
becomes a steward he must first be hired by the employer who is "the sole
judge" of the employee's qualifications with "the right to . . . reject any
applicants." Palavanchi's position, however, would ignore this contractual
power by requiring employer A to accept the judgment of employer B and
indeed in some cases to lay off another laborer in the process to make way
for B's choice.
But this, in my opinion, only emphasized Respondent's
unlawful motive, for it shows, consistent with Colletti's
statement to Segerson that he would take "any" other
laborers, that he would not take anyone who accompanied
Tarentino, whoever he was. Moreover, the offer to take
"any" two others indicates in itself that qualifications for
the work were not the determining factor here, as
Respondent contends.
Quite apart from Respondent's readiness to accept "any"
two others and from its unwillingness to accept a qualified
man if he accompanied Tarentino, the asserted lack of
qualifications in Tarentino does not stand scrutiny. One of
its bases was Colletti's alleged belief that Tarentino had
never worked for a guardrail company. But this belief
rested entirely on the fact that Tarentino was a steward and
that stewards work only for general contractors who do no
guardrail work. Assuming these facts, Colletti had abso-
lutely no knowledge of the length of time Tarentino had
been a steward or of the kind of work Tarentino had done
prior to becoming one. He had been a laborer for 37 years
during at least the last 22 years of which guardrails have
been used.' 3 Yet Colletti did not inquire as to Tarentino's
prior experience, and on being asked why, he simply
replied, "[b]ecause I didn't want to hire him." Patently, the
absence of guardrail experience could not have constituted
a motivating factor in Tarentino's rejection if Colletti's not
wanting to hire him forestalled inquiry into such experi-
ence. Colletti's only other stated reason for scratching
Tarentino was that he did not think Tarentino "would have
carried his load" because "everybody" working for Re-
spondent was "younger." The emptiness of this ground too
was thoroughly exposed on further cross-examination
when Colletti conceded Tarentino's healthy and vigorous
appearance, changed his testimony to say that while
"most" of his employees were "young" some were even
over 60,14 and admitted that his belief that Tarentino
lacked the capacity to lift certain weights stemmed solely
from the fact that in his observation of Tarentino on the
job he had never seen him do anything but ride around in
his car, evidently in the performance of his duties as
steward.'5
Since the reasons given for Respondent's action were
thus plainly false, "the inference [is warranted] that some
other reason was being concealed." N.LR.B. v. Joseph
Antell, Inc., 358 F.2d 880, 883 (C.A. 1, 1966). Moreover, in
light of Respondent's refusal to take even anyone associ-
ated with Tarentino, however competent and experienced,
12 Palavanchi sets this call at "one or two days" after Tarentino and
Lesperence were turned away by George Colletti, but this timing is
obviously erroneous. There was only one conversation involved here
between Palavanchi and Robert Colletti: i.e., the phone call made by
Colletti at 5 p.m., on June 14.
13 Palavanchi testified credibly that Tarentino in fact had guardrail
experience.
14 Clearly older than Tarentino.
LS At one point, as shown above, Colletti even attempted briefly to
disentangle himself from the web he had spun by testifying that he would
have hired Tarentino if the latter had been referred on the 15th. This only
led him into further inconsistency because he added, "I called up for two
people. I didn't know who he sent until two days later." Earlier, however, he
had testified that requests for men are "always" made through his office
"because when we request two men we also request their names and Social
Security numbers so that our payroll department will have a current record
of it."
1156
GENERAL FENCE SUPPLY CO.
and its concomitantly announced willingness to take "any"
other laborer, and given the "recogni[tion] that direct
evidence is seldom attainable when seeking to probe an
employer's mind to determine the motivating cause of his
actions" (N.LR.B. v. Bird Machine Company, 161 F.2d 589,
592 (C.A. 1, 1947), it is "a fair inference," if not compelling,
that what "was being concealed" would be detrimental to
Respondent's position, namely, an antiunion motive,
Tarentino's conscientious performance of his Union
stewardship. Ibid' Antell, supra. See also A. J. Krajewski
Manufacturing Co., Inc. v. N.LR B., 413 F.2d 673, 674-676
(C.A. 1, 1969).
The foregoing, while directly involving the period
commencing June 15, also has a clear impact on the
validity of George Colletti's turning Tarentino and Lesper-
ence away on the 14th. As indicated above, I have found
Robert Colletti a generally incredible witness and George
Colletti was not called to testify. The employees' uncon-
tradicted testimony, which I credit, was that George
Colletti was angry when they appeared for work and told
them in effect that they should work for the Union. There
was no occasion for anger in their mere appearance. If job
applicants are referred by mistake when they are not
sought the employer need only advise the men or the
Union accordingly. It may reasonably be inferred, there-
fore, that the anger reflected some other cause. The only
one suggested by the record was the Union's apparent
refusal to honor Respondent's designation of Tarentino as
persona non grata, as communicated by Robert Colletti to
Segerson on June 11. Since George Colletti said nothing to
Tarentino and Lesperence about the shortage of materials
claimed by his brother and gave them no other explanation
for sending them back to the Union, and since he was one
of the two recipients of Tarentino's frequent complaints of
contract safety violations, and since I have found that
Respondent's distaste for Tarentino was motivated by such
union activity, it follows that his and Lesperence's rejection
by George Colletti was unlawfully discriminatory (cf.
Alamo Express, Inc., Alamo Cartage Company 200 NLRB
178, 184) unless, as Respondent contends, it had never
requested laborers for the 14th. I find it had.
Respondent went to considerable pains here to establish
that it made no direct request to Palavanchi for men for
June 14. General Counsel never contended that any such
direct request had been made. Instead, General Counsel's
position is that Segerson's transmittal to Palavanchi of
Robert Colletti's statement to him that he wanted two men
for that day was the act of an agent of Respondent whose
ostensible authority was further manifested by Colletti's
necessary awareness that Segerson was acting as an
intermediary between him and Palavanchi. t 6 1 find merit to
this position, but even if Segerson were not an agent of
Respondent, I credit Segerson, who was the least interested
'6 According to Palavanchi's uncontradicted testimony. it is not
uncommon in the industry for a general contractor to call the Union to
request the referral of laborers to its subcontractors.
17 His next sentence at this point. "And I'd call him when I needed them
which was the following day." serves only to add confusion to his testimony
because in view of the allegedly "piecemeal" nature of the deliveries he
would have had no way of knowing at the time of his conversation with
Segerson that he would need two laborers rather than one. In fact., according
to his testimony, it was his foremen who set the number at two after he told
them how much of the material had arnved.
of the witnesses, that Colletti did express a need for two
laborers for June 14, and that he conveyed this message to
Palavanchi. Significantly, Colletti did not deny this
testimony of Segerson's on direct examination, and indeed
admitted on cross to having told Segerson that he wanted
two other men, knowing that Segerson was in communica-
tion with Palavanchi.17 Hence Colletti only further under-
mined his overall credibility when, being led on redirect
examination, he responded affirmatively to the question
whether he had told Segerson not only that he would rather
not have Tarentino but that he "didn't need anyone," a
statement which I believe would have shocked Segerson
had he not already been excused from his subpena and left
the courtroom. While the need may not actually have
developed because the anticipated arrival had not yet
occurred, there is no evidence of any attempt to cancel the
information communicated to Palavanchi by Segerson. I
am inclined, moreover, in light of Colletti's dubious
credibility, to doubt his testimony, unsupported by ship-
ping records presumably in his possession, that the
materials were not received until Monday afternoon.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(3) and (1) of
the Act by refusing to hire Dominic Tarentino and Arthur
Lesperence on June 14 and 15, 1976, because of Tarenti-
no's union activity.
4. Respondent did not violate the Act by threatening
Tarentino with a poor work assignment.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
In order to remedy the unfair labor practices found
herein, my recommended Order will require Respondent to
cease and desist therefrom and, in view of the nature of the
violations, which go to the heart of the Act, from
interfering with, restraining, or coercing employees or
applicants for employment in any other manner. In order
to effectuate the policies of the Act, my recommended
Order will also require Respondent to hire Dominic
Tarentino and Arthur Lesperence for such jobs as they
may be qualified to perform whenever referred by the
Union in accordance with any applicable contract 18 and to
make them whole for any loss of pay they suffered as a
result of Respondent's discrimination against them by
payment to each of them of a sum of money equal to that
1' The usual remedy for a discnminatory failure to hire, an offer of
immediate employment (e.g., Associated Truck Lines, Inc., 188 NLRB 313.
317 (1971)). is not provided here only because, absent a request therefor in
General Counsel's prayer for relief contained in his brief, the work involved
is assumed to be intermittent in nature and subject to the contractual
referral system, However. the remedy comntemplates, of course, that insofar
as future employment is concerned, Respondent may not rely on any
discretion contractually lodged in it in respect to qualifications passed on in
this proceeding.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which he would have earned from June 14, 1976, to the
date he would have remained on Respondent's payroll, and
been in due course referred and employed thereafter, but
for such discrimination, less net earnings during said
period, to be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also
recommend the usual posting of notices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, and pursuant to Section
10(c) of the Act, I hereby recommend the following:
ORDER 19
The Respondent, General Fence Supply Co., Inc.,
Providence, Rhode Island, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Laborers' International
Union of North America, Local No. 721 (herein called the
Union), or any other labor organization, by discriminating
in regard to hire or tenure of employment or any term or
condition of employment.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Hire Dominic Tarentino and Arthur Lesperence for
such jobs as they may be qualified to perform whenever
referred by the Union in accordance with any applicable
contract, as provided in the section of this Decision entitled
"Remedy," and make them whole for any loss of pay
suffered by reason of the discrimination against them, in
the manner there provided.
(b) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for examina-
tion and copying, all payroll records, social security
records, timecards, personnel records and reports, as well
as all other records necessary to analyze and compute the
amount of backpay due hereunder.
(c) Post at its Providence office and at all other locations
where notices to employees are customarily posted copies
of the attached notice marked "Appendix." 20 Copies of
said notice, on forms provided by the Regional Director for
Region I, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 days thereafter, in conspicuous places,
including all places at such locations where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Sign and mail sufficient copies of said Appendix to
the aforementioned Regional Director for forwarding to
Dominic Tarentino, Arthur Lesperence, and all persons
employed by Respondent at the Route 24 jobsite on June
14 and 15, 1976; and for forwarding to the Union for
posting by it for the information of all persons using the job
referral facilities maintained by the Union.
(e) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
19 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
2 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT deny employment to, or otherwise
discriminate against, any employee because of his
union activity.
WE WILL NOT interfere with, or restrain or coerce any
employee in any other way because of his exercise of
his rights under the National Labor Relations Act.
WE WILL make whole Dominic Tarentino and
Arthur Lesperence for any pay they lost as a result of
our refusal to hire them on June 14 and June 15, 1976.
WE WILL hire Dominic Tarentino and Arthur
Lesperence for any jobs they may be qualified to
perform whenever they are referred by the Union in
accordance with any applicable contract.
GENERAL FENCE SUPPLY
Co., INC.
1158