Gaetano & Associates

National Labor Relations Board - Board Decisions

Apr 25, 2005

344 N.L.R.B. 531 (N.L.R.B. 2005)

GAETANO & ASSOCIATES
344 NLRB No. 65
531
Gaetano & Associates Inc., aka Gaetano, Diplacidi &
Associates Inc. and District Council of New
York City and Vicinity, United Brotherhood of
Carpenters and Joiners of America and Con-
struction and General Laborers Local 79, La-
borers International Union of America, AFL–
CIO and Wendell Henderson. Cases 2–CA–
35437,1 2–CA–35740, 2–CA–35555, 2–CA–35619,
and 2–CA–35747
April 25, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On May 27, 2004, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and Construction and General Laborers
Local 79, Laborers International Union of America,
AFL–CIO, each filed an answering brief. The General
Counsel filed exceptions and a supporting brief.2
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,3 and conclusions as modified below and to adopt
the recommended Order as modified and set forth in full
below.
This proceeding concerns allegations of unfair labor
practices by the Respondent in connection with two rep-
resentation elections held in separate units at the Re-
spondent’s two construction sites in New York City. The
first election was held in a bargaining unit of carpenters
on May 30, 2003,4 and the second was held in a unit of
laborers on June 13. The Carpenters Union5 won the
May 30 election and was certified as the unit’s bargain-
ing representative. We adopt the judge’s finding, for the
reasons set forth in his decision, that the Respondent

1 On Nov. 16, 2004, the Board, by a three-member panel, severed
Case 2–RC–22717 from the instant unfair labor practice cases, and
issued a Decision, Order, and Direction of Second Election in Case 2–
RC–22717.
2 The General Counsel has excepted to the judge’s inadvertent fail-
ure to list Jamie Rucker as co-counsel for the General Counsel. We
correct the omission.
3 The Respondent has excepted to the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
4 Unless otherwise noted, all subsequent dates shall be in 2003.
5 District Council of New York City and Vicinity, United Brother-
hood of Carpenters and Joiners of America.
failed to meet and bargain with the Carpenters Union in
violation of Section 8(a)(5) and (1) of the Act. The La-
borers Union lost the tally in the June 13 election, and
the judge recommended that a rerun election be held be-
cause of objectionable conduct by the Respondent. As
stated supra, on November 16, 2004, the Board adopted
the judge’s recommendation and directed that a second
election be held.
With respect to the unfair labor practice allegations,
the judge made a number of findings that we adopt in the
absence of exceptions.6 The judge made additional find-
ings of unfair labor practices to which the Respondent
has excepted, which we adopt for the reasons set forth in
his decision.7 The judge made several further findings of
unfair labor practices to which the Respondent has ex-
cepted, and which we adopt for the reasons set forth by
the judge, and for the additional reasons discussed below.
Finally, pursuant to the General Counsel’s exceptions,
we find, as set forth below, that the Respondent violated
Section 8(a)(3) and (1) of the Act by subcontracting win-
dow installation work, and Section 8(a)(1) by threatening
Sean Logan, both allegations which the judge failed to
address directly.8
Discussion
1. We adopt the following unfair labor practice find-
ings made by the judge, for the reasons set forth in his
decision, and the additional reasons set forth below.

6 The judge found that the Respondent violated: (1) Sec. 8(a)(5) and
(1) by failing to furnish the Carpenters Union with information that is
relevant and necessary to its role as the exclusive bargaining represen-
tative of unit employees; (2) Sec. 8(a)(1) by threatening Nicholas Blake
with job loss in retaliation for his union activities; and (3) Sec. 8(a)(1)
by giving employees the impression that their union activities are under
surveillance. With respect to (1), the Respondent filed no exceptions.
With respect to (2) and (3), the Respondent did not present any argu-
ment or grounds for disputing the judge’s findings. See Sec.
102.46(b)(2) of the Board’s Rules. (Any exception . . . not specifically
urged shall be deemed to have been waived.).
7 The judge found that the Respondent violated: (1) Sec. 8(a)(3) and
(1) by discharging Paul Valle; (2) Sec. 8(a)(1) by soliciting employees
to sign a petition indicating that they are not members of a union; and
(3) Sec. 8(a)(1) by making an implied promise of benefits if employees
voted against unionization.
8 We find it unnecessary to pass on the following 8(a)(1) complaint
allegations, because any violations found would be cumulative and
would not affect the Order in this proceeding: (1) the Respondent inter-
rogated employees by writing “no union” on their hardhats; (2) the
Respondent threatened to physically remove an employee from the job
site because of his union activities; and (3) the Respondent reprimanded
and interrogated Benedict Plentie and Davidson Plenty.
We note that all charges in this proceeding were properly filed and
served on the date set forth in the consolidated complaint (the com-
plaint).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD532
The Respondent’s Unlawful Mass Layoff of Carpenters9
We agree with the judge’s finding that the Respondent
violated Section 8(a)(3) and (1) of the Act by its mass
layoff of carpenters on April 16. The judge correctly
found, as set forth in his decision, that the General Coun-
sel satisfied his initial burden under Wright Line10 of
establishing that the employees’ support of the Carpen-
ters Union’s organizing campaign was a motivating fac-
tor in the Respondent’s layoff decision. The Respondent
does not dispute the judge’s key finding regarding the
timing of the layoff: it occurred on the very same day
and a mere few hours after the Respondent received a
faxed copy from the NLRB Regional Office of the Car-
penters Union’s petition for a representation election, as
well as a phone call from the Carpenters Union in which
it claimed majority status among the Respondent’s car-
penters. “It is well settled that the timing of an em-
ployer’s action in relation to known union activity can
supply reliable and competent evidence of unlawful mo-
tivation.” Davey Roofing, Inc., 341 NLRB 222, 223
(2004) (unlawful layoffs on same day employer received
prounion petition). An inference of antiunion animus is
proper when—as here—the timing of a management
decision is “stunningly obvious.” NLRB v. American
Geri-Care, 697 F.2d 56, 60 (2d Cir. 1982), cert. denied
461 U.S. 906 (1983).11
Further, we have carefully reviewed the record and
agree with the judge’s conclusion that the Respondent
failed to meet its Wright Line burden of establishing that
it would have made the same mass layoff decision even
absent the protected organizing activity. The Respondent
argues that the carpenters were laid off because they
were qualified only to do rough carpentry work, and the
Respondent had exhausted most of such rough carpentry
work at the time of the layoff. At the hearing, the Re-
spondent’s owner Matthew Gaetano testified that at the
time of the layoff, rough carpentry at the sites was 95
percent complete, and that this percentage would be “re-
flect[ed] in the bank requisitions” and banking documen-
tation. The Respondent has failed to provide such bank-
ing documentation, or any other evidence documenting
or corroborating its assertion that rough carpentry work

9 The judge inaccurately described this complaint allegation at num-
ber 2 of the “Statement of the Case” section of his decision. The com-
plaint alleges that the employees were laid off because of their union
activity, not because of their attendance at a Board hearing.
10 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
11 Member Schaumber finds that the General Counsel has estab-
lished the Respondent’s antiunion animus through the numerous viola-
tions of Sec. 8(a)(1) found by the judge and adopted here. Thus, al-
though the timing of the layoffs is significant, Member Schaumber
finds it unnecessary to infer animus from the timing of the layoffs.
was nearly complete. Finally, in its brief to the Board,
the Respondent does not dispute, and indeed cites with
approval, the testimony of carpenter Tony Auguste that
at the time of the mass layoff approximately 20 percent
of the rough carpentry work remained. Thus, even ac-
cepting the Respondent’s characterization of the nature
of “rough carpentry” and its assertion that the laid-off
carpenters were qualified only for that work, the Re-
spondent has failed to prove its affirmative defense that
so little rough carpentry work remained on the project
that it would have laid the carpenters off even in the ab-
sence of their protected activity. Compare, e.g., Ameri-
can Coal Co., 337 NLRB 1044 (2002) (mass layoff
found lawful under Wright Line based on employer’s
production of employee evaluations, disciplinary and
attendance records).12
The Respondent Unlawfully Discharged Benedict
Plentie and Davidson Plenty
We agree with the judge’s finding, as set forth in his
decision, that the Respondent violated Section 8(a)(3)
and (1) of the Act by discharging employees Benedict
Plentie and Davidson Plenty. The judge credited testi-
mony that Benedict and Davidson were told by Supervi-
sor Sammy Superville that they had been fired for wear-
ing prounion t-shirts, and discredited the Respondent’s
defense that they were terminated for poor work per-
formance. In addition, the record fully supports the
judge’s finding that it was the Respondent’s practice to
shift workers among its various project sites. Further, we
agree with the judge that the Respondent failed to meet
its burden of showing that it would have laid off Bene-
dict and Davidson in any event because it ran out of
money to operate the project at which they worked. The
record fully supports the judge’s finding that carpentry
work continued at the main site; that Benedict and
Davidson were qualified to do that work; and that the
Respondent continued to hire new carpenters at the main
site.13

12 The Respondent’s additional contention that it made the layoff de-
cision because it was “running low on cash” cannot be reconciled with
its hire of two new carpenters on the very day of the layoff. The Re-
spondent cites no exigent need for the two new carpenters that would
reconcile the contradiction between laying off employees because of a
shortage of operating cash and taking on new employees.
13 We additionally agree with the judge, for the reasons set forth in
his decision, that the Respondent violated Sec. 8(a)(3) and (1) of the
Act by discharging Wendell Henderson. The judge correctly found that
the Respondent failed to produce evidence that Henderson engaged in
sexual harassment. In addition, we find that the Respondent failed to
produce credible evidence that it actually received any allegations of
sexual harassment against Henderson. Supervisor Superville did not
testify as to such harassment, even though he filled out a warning form
regarding the alleged harassment. Nor did he testify as to his receipt of
any complaints. Henderson’s supervisor, who allegedly received the
GAETANO & ASSOCIATES 533
The Respondent’s Unlawful Unilateral Subcontracting of
Sheetrocking and Related Work
We agree with the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) of the Act by unilaterally
subcontracting sheetrocking and related work without
first notifying the Carpenters Union and affording it an
opportunity to bargain about the subcontracting. The
judge properly rejected the Respondent’s argument that
the subcontracting was a management decision regarding
which bargaining was not mandated. It is settled under
Fibreboard Paper Products v. NLRB14 and Torrington
Industries15 that subcontracting is a mandatory subject of
bargaining if it involves nothing more than the substitu-
tion of one group of workers for another to perform the
same work and does not constitute a change in the scope,
nature, and direction of the enterprise. See Sociedad Es-
panola de Auxilio de Puerto Rico, 342 NLRB 458
(2004).16 We find that the subcontracting at issue here
involves carpentry work previously performed by unit
employees and that the substitution of the subcontrac-
tor’s employees for those of the Respondent did not alter
the Respondent’s enterprise. Thus, the Respondent has
failed to demonstrate that its unilateral decision was
privileged under Section 8(a)(5).17
2. We make the following unfair labor practice find-
ings concerning the issues below that the judge did not
directly address.

complaints, also failed to testify. In addition, Henderson’s alleged
victims did not testify. The only direct evidence that any complaints
were made is Matthew Gaetano’s testimony. It would appear that the
judge discredited his testimony. In any event, given the state of the
record, the Respondent has not met its burden of showing that it fired
Henderson because of employee complaints.
In his decision, the judge inadvertently referred to the discharge of
Henderson as a violation of Sec. 8(a)(5). We have corrected the Order
and notice.
14 379 U.S. 203 (1964).
15 307 NLRB 809 (1992).
16 Chairman Battista notes that the issue of subcontracting may turn,
inter alia, on whether the subcontracting was based on labor costs or
other factors that are particularly amenable to the bargaining process.
In the instant case, the Respondent (who is the repository of evidence
concerning the reason for its own subcontracting) has not proffered any
particular reason for the subcontracting. Rather, the Respondent simply
makes the broad generalization that company management “retained
the right to make economic and management decisions regarding the
running of its business.” In these circumstances, Chairman Battista
joins his colleagues in finding that the subcontracting was unlawful.
17 The complaint additionally alleges that the Respondent violated
Sec. 8(a)(3) and (1) of the Act by its subcontracting of sheetrocking and
related work. We find it unnecessary to pass on that allegation because
the finding of such an additional violation would not materially affect
the remedy in this proceeding.
The Respondent’s Unlawful Subcontracting of Window
Installation Work
The General Counsel has excepted to the judge’s fail-
ure to address the complaint allegation that the Respon-
dent violated Section 8(a)(3) and (1) of the Act by sub-
contracting window installation work. We find merit in
the General Counsel’s exception.
The record shows that the Respondent formerly used
subcontractors to perform all its construction work. In
1998, however, the Respondent decided to perform as
much construction work with its own employees as pos-
sible, citing efficiency of operations and problems with
subcontractors. In May, shortly after the Carpenters Un-
ion organizing drive began, however, the Respondent
departed from this policy and subcontracted the installa-
tion of windows at the main project site.
The record fully supports a finding that the General
Counsel satisfied his initial burden under Wright Line,
supra, of establishing that the employees’ union activity
was a motivating factor in the Respondent’s decision to
subcontract the installation of windows rather than assign
such work to its employees. It is undisputed that the Re-
spondent knew of the Carpenters Union’s campaign,
which had begun in early April. The organizing cam-
paign was openly conducted outside the Respondent’s
main project site as well as at a nearby delicatessen that
was the employees’ main lunchtime gathering spot. Fur-
ther, the Respondent’s animus against its employees’
union activities is amply demonstrated by the Respon-
dent’s numerous unfair labor practices in response to the
union organizing campaign. The burden thus shifts to
the Respondent to establish its affirmative defense that it
would have subcontracted the window installation even
if the employees had not engaged in protected activity.
See, e.g., Star Trek: The Experience, 334 NLRB 246,
246–247 (2001). We find that the Respondent has failed
to carry this burden.
The Respondent argues that it made arrangements for
the window installation subcontract “months before” the
union organizing campaign. The Board has held that an
employer establishes a successful Wright Line defense to
an allegation of unlawfully motivated subcontracting by
showing that its subcontracting decision was made prior
to the onset of the employees’ organizing activity. See
St. Vincent Medical Center, 338 NLRB 888 fn. 4 (2003).
The Respondent, however, has failed to produce the con-
tract, or any other documentary or corroborating evi-
dence of this claim. Indeed, the Respondent’s arguments
are directly contradicted by the testimony of owner Mat-
thew Gaetano that he contracted for the windows at “the
end of April, beginning of May [2003]”—after the onset
of the organizing campaign and the unlawful mass lay-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD534
offs on April 16. We have considered Gaetano’s subse-
quent testimony that the Respondent contracted for the
window installation at an earlier date, and only after the
Respondent’s own employees failed to install the win-
dows properly. However, the contradictory nature of
Gaetano’s testimony and the Respondent’s shifting ac-
counts of the subcontracting decision severely undermine
Gaetano’s credibility and the Respondent’s arguments.18
In these circumstances, we cannot find that the Respon-
dent has met its Wright Line burden of establishing that it
would have made the decision to subcontract window
installation work even absent the protected organizing
activity. We accordingly find that the Respondent sub-
contracted window installation work in violation of Sec-
tion 8(a)(3) and (1) of the Act.
The Respondent Unlawfully Threatened Sean Logan
The judge found that as employee Sean Logan was en-
tering the delicatessen, where, as noted, much of the un-
ion solicitation took place, Supervisor Sammy Superville
cautioned Logan to “be careful talking to him,” referring
to Union Agent Anthony Williamson. In addition, a fel-
low employee stated to Logan that “he could lose his job
for talking to Williamson.” The judge observed that the
latter statement was not unlawful because it came from a
fellow employee, but the judge failed to address Supervi-
sor Superville’s statement to Logan to “be careful” talk-
ing to the union agent. The General Counsel has ex-
cepted, arguing that this statement constitutes an unlaw-
ful warning about engaging in union activity and a threat
of unspecified reprisal. We find merit in the General
Counsel’s exception. The Board has held that such “be
careful” warnings convey the threatening message that
union activities would place an employee in jeopardy.
See, e.g., St. Francis Medical Center, 340 NLRB 1370,
1383–1384 (2003) (“be careful” statement by supervisor
in context of union activity held unlawful); Jordan
Marsh Stores Corp., 317 NLRB 460, 462 (1995) (super-
visor’s statements such as “watch out” are unlawful im-
plied threats). We accordingly find that the Respondent
violated Section 8(a)(1) of the Act by threatening Sean
Logan.
3. Finally, the Respondent argues in its exceptions that
a reinstatement and backpay remedy is a “practical im-
possibility” because it has completed the construction
projects involved in this proceeding. The Respondent
further argues that a reinstatement remedy is also inap-
propriate as to four of the carpenters it laid off on April

18 See, e.g., Zengel Bros., 298 NLRB 203, 206 (1990) (an em-
ployer’s failure to offer a consistent account of its actions warrants an
inference that the real reason for its conduct is not among those as-
serted).
16, because it subsequently recalled those carpenters.19
These issues are appropriately left to the compliance
stage of these proceedings.
ORDER20
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Gaetano & Associates Inc., aka Gaetano,
Diplacidi & Associates Inc., New York, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Soliciting employees to sign a petition indicating
they are not members of a union or otherwise interrogat-
ing employees about their membership in or activities on
behalf of a labor organization.
(b) Threatening employees with job loss in retaliation
for their union activities or otherwise threatening em-
ployees because of their union activities.
(c) Promising benefits to employees if they vote
against unionization.
(d) Giving employees the impression that their union
activities are under surveillance.
(e) Laying off or discharging employees because of
their union activities or in retaliation for the efforts of the
Unions to organize them.
(f) Failing and refusing to meet and bargain with the
District Council of New York City and Vicinity, United
Brotherhood of Carpenters and Joiners of America (Car-
penters Union), as the exclusive bargaining representa-
tive of its employees in the bargaining unit set forth be-
low.
(g) Refusing to bargain with the Carpenters Union as
the exclusive bargaining representative of its employees
in the bargaining unit set forth below by unilaterally sub-
contracting bargaining unit work without first notifying
the Carpenters Union and affording it an opportunity to
bargain about such subcontracting.
(h) Subcontracting window installation or other bar-
gaining unit work of employees represented by the Car-
penters Union because its employees engaged in union
activities.
(i) Failing to furnish the Carpenters Union with infor-
mation that is relevant and necessary to its role as the
exclusive bargaining representative of unit employees.
(j) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

19 The four are Drabio Dollin, Hainson George, Marvin Gullen, and
Michael Sargeant.
20 We have modified the judge’s recommended Order to conform to
the violations found, and to correct certain inadvertent errors. We have
substituted a new notice to comport with these modifications.
GAETANO & ASSOCIATES 535
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) To the extent that it has not already done so, within
14 days from the date of this Order, offer Tony Auguste,
Nicholas Blake, Drabio Dollin, Hainson George, Marcus
Williams, Lavistor Joseph, Marvin Gullen, Vitals
Mathorin, John Nash, Anderson Pilgrim, Shondell
Richardson, Michael Sargeant, Ali Sillah, Davidson
Plenty, Benedict Plentie, Paul Valle, and Wendell Hen-
derson full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Tony Auguste, Nicholas Blake, Drabio
Dollin, Hainson George, Marcus Williams, Lavistor Jo-
seph, Marvin Gullen, Vitals Mathorin, John Nash,
Anderson Pilgrim, Shondell Richardson, Michael
Sargeant, Ali Sillah, Davidson Plenty, Benedict Plentie,
Paul Valle, and Wendell Henderson whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, with interest, in the manner
set forth in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to its unlawful layoff of Tony
Auguste, Nicholas Blake, Drabio Dollin, Hainson
George, Marcus Williams, Lavistor Joseph, Marvin
Gullen, Vitals Mathorin, John Nash, Anderson Pilgrim,
Shondell Richardson, Michael Sargeant, and Ali Sillah,
and its unlawful discharge of Davidson Plenty, Benedict
Plentie, Paul Valle, and Wendell Henderson, and within
3 days thereafter notify them in writing that this has been
done and that the unlawful layoff or discharge will not be
used against them in any way.
(d) Make the bargaining unit employees represented by
the Carpenters Union whole for any loss of earnings and
other benefits suffered as a result of its unilateral subcon-
tracting of sheetrocking and related work, with interest,
in the manner set forth in the remedy section of the
judge’s decision.
(e) Make the bargaining unit employees represented by
the Carpenters Union whole for any loss of earnings and
other benefits suffered as a result of its unlawful subcon-
tracting of window installation work, with interest, in the
manner set forth in the remedy section of the judge’s
decision.
(f) On request, bargain with the District Council of
New York City and Vicinity, United Brotherhood of
Carpenters and Joiners of America, as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All regular full-time carpenters, including lead carpen-
ters, employed by the Employer out of its 2098 Freder-
ick Douglas Boulevard, New York, New York office at
various construction sites in the New York City Metro-
politan area, excluding all other employees, office
clerical employees, and guards, professional employ-
ees, foremen and supervisors as defined in the Act.
(g) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees represented by the Carpenters Union, notify and,
on request, bargain with the Carpenters Union as the ex-
clusive collective-bargaining representative of employees
in the above-described unit.
(h) Upon request, bargain with the Carpenters Union
about the subcontracting of sheetrocking and related
work.
(i) Furnish the Carpenters Union the name, date of
hire, job title, and current rate of pay of each employee in
the bargaining unit represented by the Carpenters Union,
as requested by letter dated June 30, 2003.
(j) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(k) Within 14 days after service by the Region, post at
its facilities in New York, New York, copies of the at-
tached notice marked “Appendix.”21 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 2, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that the notices are not al-
tered, defaced, or covered by any other material. In addi-
tion, because the evidence shows that the Respondent’s
employees do not often go to the Respondent’s home
facility, but rather are dispersed at various locations in
New York City, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since April 16, 2003.

21 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD536
(l) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain 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 solicit you to sign a petition indicating
you are not a member of a union or otherwise interrogate
you about your membership in or activities on behalf of a
labor organization.
WE WILL NOT threaten you with job loss in retaliation
for your union activities or otherwise threaten you be-
cause of your union activities.
WE WILL NOT promise you benefits if you vote against
unionization.
WE WILL NOT give you the impression that your union
activities are under surveillance.
WE WILL NOT lay off or discharge you because of your
union activities or in retaliation for the efforts of the Un-
ions to organize you.
WE WILL NOT fail and refuse to meet and bargain with
the District Council of New York City and Vicinity,
United Brotherhood of Carpenters and Joiners of Amer-
ica (Carpenters Union) as the exclusive bargaining repre-
sentative of our employees in the bargaining unit set
forth below.
WE WILL NOT refuse to bargain with the Carpenters
Union as the exclusive bargaining representative of our
employees, in the bargaining unit set forth below, by
unilaterally subcontracting bargaining unit work without
first notifying the Carpenters Union and affording it an
opportunity to bargain about such subcontracting.
WE WILL NOT subcontract window installation or other
bargaining unit work of our employees represented by
the Carpenters Union because our employees engaged in
union activities.
WE WILL NOT fail to furnish the Carpenters Union with
information that is relevant and necessary to its role as
the exclusive bargaining representative of unit employ-
ees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, to the extent that we have not already done
so, within 14 days from the date of the Board’s Order,
offer Tony Auguste, Nicholas Blake, Drabio Dollin,
Hainson George, Marcus Williams, Lavistor Joseph,
Marvin Gullen, Vitals Mathorin, John Nash, Anderson
Pilgrim, Shondell Richardson, Michael Sargeant, Ali
Sillah, Davidson Plenty, Benedict Plentie, Paul Valle,
and Wendell Henderson full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make Tony Auguste, Nicholas Blake, Drabio
Dollin, Hainson George, Marcus Williams, Lavistor Jo-
seph, Marvin Gullen, Vitals Mathorin, John Nash,
Anderson Pilgrim, Shondell Richardson, Michael
Sargeant, Ali Sillah, Davidson Plenty, Benedict Plentie,
Paul Valle, and Wendell Henderson whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to our unlawful lay-
off of Tony Auguste, Nicholas Blake, Drabio Dollin,
Hainson George, Marcus Williams, Lavistor Joseph,
Marvin Gullen, Vitals Mathorin, John Nash, Anderson
Pilgrim, Shondell Richardson, Michael Sargeant, and Ali
Sillah, and our unlawful discharge of Davidson Plenty,
Benedict Plentie, Paul Valle, and Wendell Henderson,
and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that the
unlawful layoff or discharge will not be used against
them in any way.
WE WILL make the bargaining unit employees repre-
sented by the Carpenters Union whole for any loss of
earnings and other benefits suffered as a result of our
unilateral subcontracting of sheetrocking and related
work, with interest.
WE WILL make the bargaining unit employees repre-
sented by the Carpenters Union whole for any loss of
earnings and other benefits suffered as a result of our
GAETANO & ASSOCIATES 537
unlawful subcontracting of window installation work,
with interest.
WE WILL, on request, bargain with the District Council
of New York City and Vicinity, United Brotherhood of
Carpenters and Joiners of America, as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All regular full-time carpenters, including lead carpen-
ters, employed by the Employer out of its 2098 Freder-
ick Douglas Boulevard, New York, New York office
at various construction sites in the New York City Met-
ropolitan area, excluding all other employees, office
clerical employees, and guards, professional employ-
ees, foremen and supervisors as defined in the Act.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees represented by the Carpenters Union,
notify and, on request, bargain with the Carpenters Union
as the exclusive collective-bargaining representative of
employees in the above-described unit.
WE WILL, upon request, bargain with the Carpenters
Union about the subcontracting of sheetrocking and re-
lated work.
WE WILL furnish the Carpenters Union the name, date
of hire, job title, and current rate of pay of all employees
in the bargaining unit represented by the Carpenters Un-
ion, as requested by letter dated June 30, 2003.
GAETANO & ASSOCIATES INC., AKA GAETANO,
DIPLACIDI & ASSOCIATES INC.
Margit Reiner Esq., for the General Counsel.
Kevin J. Nash Esq., for the Respondent.
Haluk Savci Esq., for the Mason Tenders District Council.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in New York City on February 26 and 27 and March 1 and
5, 2004.
On May 5, 2003, Laborers Local 79 filed a petition for an
election in Case 2–RC–22717. Pursuant to a Stipulated Elec-
tion Agreement approved on May 22, 2003, an election was
conducted in the following unit:
Included: All regular full-time laborers, including mason ten-
ders, employed by the Employer out of its 2098 Fredrick
Douglass Blvd. office and at various construction sites in the
New York City Metropolitan area.
Excluded: All other employees, office clerical employees,
foremen, guards, professional employees and supervisors as
defined in the Act.
The tally of ballots showed that of about 56 eligible voters,
there were 5 cast for the Petitioner and 23 against.
On June 19, 2003, the Laborers’ Union filed timely Objec-
tions to the Election. These alleged:
Objection 1: That the Employer failed to post copies of
the Notice of Election at least 72 hours before the election.
Objection 2: That the Employer engaged in surveil-
lance of employees’ union activities, interrogated employ-
ees and required employees to sign statements attesting to
any past union membership or affiliation.
Objection 3: That the Employer used a guard as an
observer at the election.
Objection 4: That the Employer reduced the pay of
union supporters.1
Objection 5: That the Employer threatened employees
with discipline if they supported the Union.
Objection 6: That certain supervisors actively cam-
paigned against the Union on the day of the election and
within yards of the polling area.
On October 10, 2003, the Acting Regional Director con-
cluded that the Laborers’ objections raised substantial and ma-
terial factual issues that would best be resolved by a hearing.
He therefore ordered that the objections be consolidated with
the unfair labor practice complaint described below.
The charge, amended charge and second amended charge in
Case 2–CA–35437 were filed by the Carpenters Union on April
17, May 27, and July 16 2003. The charge in Case 2–CA–
35583 was filed by Greenidge on June 19, 2003. The charge
and amended charge in Case 2–CA–35555 were filed by the
Laborers Union on June 4 and August 28, 2003. The charge in
Case 2–CA–35619 was filed by the Laborers on July 7, 2003.
The charge in Case 2–CA–35740 was filed by the Carpenters
on August 28, 2003. And the charge in Case 2–CA–35747 was
filed by Wendell Henderson September 5, 2003.
At the opening of the hearing, the General Counsel withdrew
the allegations of the complaint relating to Greenidge and with-
drew the charge filed by him in Case 2–CA–35583.
As amended, the consolidated complaint that was issued on
October 31, 2003, alleged
1. That on June 9, 2003, the Carpenters’ Union was certified
as the exclusive collective-bargaining agent for the Respon-
dent’s employees in a unit of
All regular full-time carpenters, including lead carpenters,
employed by the Employer out of its 2098 Fredrick Douglass
Blvd. office and at various construction sites in the New York
City Metropolitan area, excluding all other employees, office

1 There is no charge and no allegation in the complaints alleging that
the Employer reduced the pay of union supporters. Although testimony
to this effect was given by Sean Logan, I don’t think that objections,
which essentially raise an allegation that otherwise would be a violation
of Sec. 8(a)(3) of the Act, can be successful if there is no corresponding
unfair labor practice allegation. Times Square Stores Corp., 79 NLRB
361 (1948. See also Texas Meat Packers, 130 NLRB 279 (1961); Coo-
per Supply Co., 120 NLRB 1023 (1958); and Capitol Records, 118
NLRB 598 (1957.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD538
clerical employees, and guards, professional employees,
foremen and supervisors as defined in the Act.
2. That on April 16, 2003, the Respondent laid off the fol-
lowing employees because they assisted and supported the
Carpenters’ Union at a hearing before the Board in Case 2–RC–
22710 and attended the hearing for the purpose of providing
testimony.2
Tony Auguste Nicholas Blake
Drabio Dollin Hainson George
Marcus Williams Lavistor Joseph
Marvin Gullen Vitals Mathorin
John Nash Anderson Pilgrim
Stonde Richardson Michael Sargeant
Ali Sillah
3. That on or about April 21, 2003, the Respondent by Mat-
thew Gaetano, an owner, required employees to sign a docu-
ment denying that they were union members and threatened
employees with unspecified reprisals if they refused to do so.
4. That on or about May 5, 2003, the Respondent by Mat-
thew Gaetano, threatened employees with discharge if they
continued to support a union and implied that a strike was in-
evitable if they selected a union.
5. That on May 13 and 15, 2003, the Respondent by Joseph
Superville, a supervisor, told employees that they would not be
recalled because they joined or assisted the Carpenters’ Union
and because they assisted that Union in Case 2–RC–22710.
6. That in the last week of May 2003, the Respondent by
Matthew Gaetano, threatened employees with discipline and
discharge if they selected a union.
7. That on May 29, 2003, the Respondent by Joseph Super-
ville, told employees that they had to choose between support-
ing the Union and continuing to work for the Respondent.
8. That in May 2003, the Respondent, for discriminatory
reasons, subcontracted window installation and other work, all
which had previously been done by employees in the Carpen-
ters’ unit.
9. That on June 10, 2003, the Respondent, for discriminatory
reasons, unilaterally and without notice to the Carpenters’ Un-
ion, subcontracted sheet rock and other work to T. Walker Con-
struction Inc.
10. That on June 12, 2003, the Respondent, by Joseph Su-
perville, threatened employees with unspecified reprisals if they
voted for the Laborers’ Union and created the impression of
surveillance.
11. That on June 13, 2003, the Respondent by Joel Little, a
foreman and supervisor, coerced employees by writing anti-
union messages on their garments and hardhats.
12. That on July 2, 2003, the Respondent by Stephen
Gaetano, an owner, reprimanded employees for supporting a
union and interrogated employees about their union activities.
13. That on July 2, 2003, the Respondent by Joseph Super-
ville, interrogated employees about their activities for the La-
borers’ Union.

2 In her brief, the General Counsel withdrew from this list of alleged
discriminates, the name Don Joseph.
14. That on July 2, 2003, the Respondent, for discriminatory
reasons discharged Davidson Plenty and Benedict Plentie.
15. That on July 3, 2003, the Respondent, for discriminatory
reasons discharged Paul Valle.
16. That on August 27, 2003, the Respondent, for discrimi-
natory reasons discharged Wendell Henderson.
17. That since August 27, 2003, the Respondent has refused
to bargain with the Carpenters’ Union.
The Respondent asserts that between April 18 and May 3,
2003, it laid off seven employees for business reasons; namely
that the individuals were “rough” carpenters whose work had
been completed at the project. The Respondent further asserts
that it subcontracted the window installation work as it nor-
mally does because of the specialized nature of this work and
that it had made this decision more than a year prior to the start
of the project. The Respondent asserts that Davidson Plenty
and Benedict Plentie were discharged for cause and that it was
aware that they were union members when it hired them. Fi-
nally, the Respondent asserts that Paul Valle was terminated
after being warned about poor work performance and that
Wendell Henderson was discharged for misconduct.
Based on the evidence as a whole, including my observation
of the demeanor of the witnesses and after consideration of the
Briefs filed, I make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
In both Stipulated Election Agreements executed by the Re-
spondent through its legal counsel, it agreed that it purchased
goods and supplies valued in excess of $50,000 for its New
York jobsites from firms located within the State of New York,
and that such goods originated directly from suppliers located
outside the State of New York. Accordingly, as the Employer
at the time of the events in these cases, was engaged in inter-
state commerce and met the Board’s indirect inflow standards, I
conclude that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
Siemons Mailing Service, 122 NLRB 81 (1959); Food & Com-
mercial Workers Local 120 (Weber Meats), 275 NLRB 1376
fn. 1 (1985); Combined Century Theatres, 120 NLRB 1379
(1959); George Schuwirth, 146 NLRB 459 (1964); Better Elec-
tric Co., 129 NLRB 1012 (1961).
At the hearing, the Respondent also conceded and I conclude
that the two Unions are labor organizations within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
At the hearing the Respondent stipulated that Stephen
Gaetano and Mathew Gaetano (the owners), Patrick Lewis,
William McGuigan, and Joseph (Sammy) Superville were su-
pervisors and/or agents within the meaning of Section 2(11) or
(13) of the Act. In this respect, the Employer asserts that Wil-
liam McGuigan was the job supervisor until his discharge in or
about mid-April 2003 and that Superville, who until that time
was a carpenter, took over that position. The Employer denies,
however, that Joel Little or Donovan Lewis were supervisors
and asserts that they were merely masons.
GAETANO & ASSOCIATES 539
The Company is the owner and developer of properties in
New York City. Before 1998, it utilized contractors within the
various building and construction trades to complete projects.
But in or around 1998, it decided to become its own General
Contractor and to perform as much of the construction work as
was possible. It decided to do this because its management
believed that this would be a more efficient way of doing con-
struction and would avoid legal and other problems with sub-
contractors. Whether this was a good or poor decision remains
to be seen. It is not, however, within my purview.
The primary construction site involved in this case involves
the renovation of three attached apartment buildings located in
Manhattan between 113 and 114th Street on Frederick Douglas
Blvd. This involves gutting existing structures while retaining
the outside walls and rebuilding them completely. Ultimately,
the intent is to sell the apartments as condominiums. The vast
majority of the labor that was assigned, was allocated to this
project, which began in or about November 2002. For purposes
of this decision I shall refer to it as site 1.
As part of the deal by which the Respondent purchased the
properties, it also agreed to rebuild a two family brownstone
located a short distance away, which after completion, would
be turned over, at no cost, to the original owners of the proper-
ties. During the months of April, May, and June 2003, this site
was manned by a much smaller crew. For purposes of this
Decision I shall refer to this as site 2.
As noted above, work at site 1 began in November 2002.
The first part of the work essentially involved demolition. And
to this end, the Company hired a group of people who basically
reduced the inside of the buildings to a shell. This work, apart
from muscle power, did not involve much skill, and was mostly
accomplished by January or February 2003 at which time the
Respondent began hiring carpenters, masons and laborers.
Insofar as the carpentry work, the initial stages after demolition,
involved putting in beams, studs and the framing for the floors
and walls of the buildings. This, I believe, involves creating the
internal framework for the structures within which the floors,
walls, windows, and ceilings would be placed. During this
stage of the work, the evidence shows that there were about 25
carpenters employed under the direction of Patrick Lewis, Wil-
liam McGuigan, and later Joseph (Sammy) Superville.
The Company asserts that this initial stage of carpentry is
considered to be “rough” carpentry and that many of the em-
ployees who were hired to do this initial phase were hired only
as temporary workers whose jobs would end at the completion
of this phase of work. It therefore asserts that when this
“rough” carpentry work was completed as of April 16, 2003, a
fair number of these employees were no longer needed and that
the next stage of carpentry work required people with higher
skills to do “finish” carpentry. Virtually all of the General
Counsel witnesses who were employed as carpenters and who
had prior experience in this field, testified that the next stage of
carpentry work would also be considered as “rough” carpentry
and that they were perfectly competent to do such work. We
will come back to this.
Hopefully for purposes of organizational clarity, I am going
to divide this decision into two major sections; one dealing with
the Carpenters’ unit and the other with the Laborers’ unit.
However, it should be noted that both groups of people worked
side by side at the Company’s jobsites and that many of the
events overlapped in time. Thus, events and actions described
in the carpenter’s section, necessarily impacted on the laborers
and vice versa.
B. The Carpenters
1. The 8(a)(1) and (3) allegations Cases 2–CA–35437
and 2–CA–35437
Representatives of the Carpenters’ Union began organizing
efforts at the primary site in early April 2003. Organizer,
Bryan Schuler, talked to people outside the site on the sidewalk
or at a delicatessen located across the street where employees
and supervisors normally went to get food or drinks at their
breaks. At some point shortly thereafter, he invited representa-
tives of the Laborers’ Union to accompany him to the jobsite to
sign up masons and laborers. As this union activity was carried
out in the open and as Sammy Superville was among the people
solicited by the Carpenters’ representative, it is likely that the
Company was aware of the union organizing activity even be-
fore a petition for an election was filed by either union.
Byron Schuler called the Company on April 16, 2003, and
speaking to William Gaetano, represented that his union repre-
sented the carpenters. This was followed up by a letter dated
April 16 advising that the Union claimed to represent a major-
ity of the carpenters employed by the Company.
Also on April 16, 2003, the Carpenters’ Union filed a peti-
tion for an election. The NLRB’s Regional Office immediately
faxed a copy of this petition along with a notice that a represen-
tation hearing would take place on April 25, 2003. The trans-
mission was started at 12:41 p.m. and completed on April 16,
2003, at 12:46 p.m.
At the end of the working day on April 16, 2003, the Re-
spondent, at a meeting at site 1, read a list to the carpenters.
They were told that if their names were called, they would con-
tinue to work, but if their names were not called, they were
being laid off. Reviewing the testimony of witnesses and pay-
roll records, the evidence shows that the people who were laid
off on this date were Tony Auguste, Nicholas Blake, Dabio
Dottin, Hainson George, Lavister Joseph, Marvin Julien, Vitalis
Mathurin, John Nash, Anderson Pilgrim, Michael Sargeant, Ali
Sillah, and Marcus Williams. Of this group, Dabio Dottin,
Hainson George, Marvin Julien, and Michael Sargeant were
later recalled to work in May or June 2003.
On April 16, 2003, the Respondent hired Roger Superville
and Leonard Alexander to work as carpenters at site 1. A week
later, it hired McKenneth Fleming to work as a carpenter at site
1. And soon thereafter, the Respondent hired three more car-
penters to work at site 1. (Donnell Vialet, Trevor Haynes, and
Stephen Samuel). In addition, the evidence shows that after the
April 16 layoff, the Company entered into subcontracts with a
company called STD to install windows and another company,
T. Walker, to install sheetrock. Except for the window case-
ments, the evidence convinces me that the installation of the
windows was, with appropriate supervision, within the capabil-
ity of the “rough” carpenters who had been laid off. Similarly,
with respect to the sheet rock work, the evidence convinces me
that except for taping, the installation of sheet rock was, with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD540
appropriate supervision, work that could and would have been
done by the “rough” carpenters.
In short, given (1) the timing of the layoffs, (immediately af-
ter the union demanded recognition and after receipt of the
election petition); (2) the fact that the Company hired more
carpenters, (either directly or through subcontractors), to re-
place those laid off, and (3) the inaccurate assertion that the
existing carpenters could not do most of the remaining work, its
is my opinion that the evidence establishes that the lay-
offs/discharges of April 16 were motivated by antiunion con-
siderations. Moreover, I do not think that the Company has
established that it would have laid off or discharged these peo-
ple, notwithstanding the activity of the Union to organize them.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F. 2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
As noted above, the Company executed a Stipulated Election
Agreement on April 30, 2003, and the election in the carpenter
unit was scheduled for May 30, 2003.
There was testimony regarding a meeting held by Mathew
Gaetano with employees before the election. Sean Logan, a
mason, testified that after explaining why Superville was re-
placing McGuigan, Gaetano said something to the effect that he
couldn’t keep people who were affiliated with a union. In a
similar vein, Paul Valle, a bricklayer, testified that Mathew told
employees that if they voted for the union he couldn’t use them,
but if they voted no, they would have a job. Both stated that
Gaetano had something for the employees to sign.
According to Mathew Gaetano, after receiving the phone call
from Union Agent Schuler on April 16, 2003, he called his
general attorney and prepared a form that was left for employ-
ees to sign if they so chose. This document, which is Respon-
dent’s Exhibit 2, is in the form of a petition that was signed by
many of the employees after being asked to do so by Patrick
Lewis. The heading states: “By signing this petition you are
acknowledging that you are an employee of Gaetano and Asso-
ciates, Inc. and are not a member of the Union.”
Where an employer solicits employees to sign a document
such as the one described above, this constitutes coercive inter-
rogation because if tends to force employees to declare whether
or not they are sympathetic to a union. Beverly California
Corp., 326 NLRB 232, 233–234 (1998) enf. denied on other
grounds 277 F.3d 817 (7th Cir. 2000). See also Kurz-Kasch
Inc., 239 NLRB 1044 (1978), where the Board held that an
employer’s request that employees wear a “vote no” button
constituted coercive interrogation. Accordingly, I conclude that
in this respect, the Respondent violated Section 8(a)(1) of the
Act.
Employee Sean Logan testified that in mid-May 2003, as he
was entering the deli, Superville and another employee passed
by whereupon Superville said, “[B]e careful talking to him.”
(Referring to union agent Anthony Williamson.) According to
Logan, the other employee told him that he could lose his job
for talking to Williamson. Since this statement was made by an
employee and not by anyone from management, I conclude that
this did not violate the Act.
Employee Blake testified that on May 29, 2003, he went to
the jobsite and asked Superville for his job back. He testified
that Superville said that he couldn’t do anything until they saw
how the election went and that he couldn’t get his job back
because he went against the boss. I conclude that this consti-
tuted a threat within the meaning of Section 8(a)(1) of the Act.3
On July 2, 2003, the Respondent discharged Benedict Plentie
and his brother, Davidson Plenty.4
At one time, Benedict Plentie was the owner of his own firm
called B.P. Construction, which was a small enterprise engaged
in carpentry work. He is a carpenter who is qualified to do
“finish” work. He also was a journeyman-member of the Car-
penters’ Union and this was known to Gaetano when, in the
previous 5 years, he contracted carpentry work with B.P.
In February or March 2003, the Company hired the two
brothers as direct employees to work as carpenters at the
brownstone project. (Site 2.) They were left there to work
without supervision and were responsible for doing all of the
carpentry work for that location. At times they were assisted
by one or two laborers. The fact that Mathew Gaetano hired
them with the knowledge that at least Benedict was a union
member is not particularly significant. Since he took a job
which was nonunion, Gaetano could reasonably have surmised
that Plentie’s attachment to the Carpenter’s union was not par-
ticularly strong.
In any event, on July 2, 2003 (shortly after the Union made a
demand to bargain), Steven Gaetano visited site 2 and saw
Benedict and Davidson wearing union T-shirts. When Benedict
responded that he had gotten the shirt from the union agent,
Gaetano asked if he knew the problems they were having with
the Union. When he saw that Davidson was wearing a union T-
shirt, Gaetano angrily said, “[Y]ou probably orchestrated the
whole thing.” (Steven Gaetano did not testify and therefore,
the testimony regarding his conversations with the two brothers
was uncontradicted.)
The two brothers credibly testified that on the same day, they
received a visit from Superville who told them that Mathew
Gaetano was closing the jobsite down because he was having a
problem with the bank. Davidson testified that after he and his
brother picked up their tools, Superville told him that it was not
right that they were fired for wearing T-shirts after they had
worked for Mathew Gaetano for such a long period of time.
The brothers were never asked to return to work and were
never transferred to the other jobsite where the evidence shows
that the Company continued to either hire new carpenters or
hire subcontractors to do the installation of windows and sheet-
rock. Thus, even if there was some problem with financing,
and even if it was not possible for the Company to continue to
carry on work at site 2, there is no question but that carpentry
work continued on site 1 and that Benedict and Davidson were
qualified to do the carpentry work at that location. I also note
that it was not uncommon for the Company to shift workers
from site to site as needed. I also reject the Company’s asser-
tion that these two people were lax in their work performance
or that they failed to do the work assigned to them. (Respon-

3 A recording of this alleged conversation that was made by Blake
and was offered into evidence. However, as the recording was largely
inaudible, I am not relying on it.
4 They spell their last names differently.
GAETANO & ASSOCIATES 541
dent admits that it never issued any warnings to them.) In this
respect, I credit the testimony of the two carpenters.
Accordingly, I conclude that the Respondent violated Sec-
tion 8(a)(1) and (3) by discharging the Plentie (Plenty), broth-
ers.
2. The refusal to bargain
2–CA–35740
Notwithstanding the layoffs and the other conduct described
above, the Carpenters’ Union won the election that was held on
May 30, 2003. The Union was certified on June 9, 2003.
On June 30, 2003, Ed McWilliams wrote to the Respondent
requesting that negotiations begin on July 10. This letter also
requested the names, dates of hire, job titles, and current rates
of pay for the bargaining unit employees. When the Union re-
ceived no response, McWilliams sent out another letter on July
23, asking for a meeting on August 5. He repeated his request
for the information.
The parties met on August 5 and after tendering a copy of
the standard agreement, the Company’s lawyer essentially said
he would have to review it. The parties agreed to a meeting on
August 27 and the Respondent promised to tender the requested
information by August 12, 2003.
The Respondent did not proffer the requested information
and did not show up for, or call to reschedule the August 27
meeting. As a result, McWilliams sent another letter dated
September 2 asking to bargain. This was followed up by a
letter dated September 22 asking that a meeting be scheduled.
No response was received.
Having been certified by the Board on June 9, 2003, the Re-
spondent was obligated, under Section 8(d) of the Act, to meet
at reasonable times and places and to bargain in good faith with
the Carpenters’ union during the certification year. It clearly
did not do so, and except for one short meeting in August 2003,
the Respondent essentially ignored the Union’s repeated re-
quests for negotiations. Any statement during this hearing that
the Respondent is now willing to bargain, is too late and insuf-
ficient to mitigate against a finding that the Respondent failed
to engage in bargaining in a timely and responsive manner.
Moreover, I reject any assertion that the Union either bar-
gained in bad faith or that a valid impasse was reached. In this
regard, the Respondent claimed that at the only meeting held on
August 5, 2003, the Union’s representatives took a “take it or
leave it” stance when presenting a contract proposal. This con-
tention, in my opinion, is absurd. I credit the Union’s represen-
tative who testified that the contract tendered was a proposal
and that he invited the Respondent to review it and make coun-
terproposals of its own. The Respondent did not do so and
instead simply refused to respond to the Union’s requests for
further negotiations. In this respect, I conclude that the Respon-
dent violated Section 8(a)(1) and (5) of the Act.
By the same token, the evidence shows that the Respondent
failed to respond to the Union’s request for information con-
cerning the employees’ names, dates of hire, job titles, and
current rates of pay. All of this information is presumptively
relevant to collective bargaining and the Respondent’s refusal
to furnish this information constitutes a violation of Section
8(a)(1) and (5) of the Act. NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1956); NLRB v. Boston Herald-Traveler Corp., 209
NLRB F.2d 134 (1st Cir. 1954); Gloversville Embossing, 314
NLRB 1258 (1994). Toms Ford, Inc., 253 NLRB 888, 895
(1990); Georgetown Holiday Inn, 235 NLRB 485, 486 (1978).
The evidence shows that the Respondent, on or about June
10, entered into a subcontract with T. Walker to perform insula-
tion, sheetrock, spackle, and taping work at site 1. All of these
functions are those that are normally performed by carpenters.
(Taping is a function that everyone agrees is “finished” carpen-
try.)
Inasmuch as the Carpenters’ Union had just been certified,
and as the Respondent has not shown that the decision to sub-
contract this work was not one based on “core entrepreneurial
concerns,” the Respondent was therefore obligated to first no-
tify and offer to bargain with the Union before making any
unilateral changes in the terms and conditions of employment
for the employees covered by the certification. Since subcon-
tracting affected the tenure or job opportunities of unit employ-
ees, particularly those who had been laid off and could have
been recalled, it is my opinion that this decision to unilaterally
subcontract bargaining unit work was a violation of Section
8(a)(1) and (5) of the Act. Fiberboard Corp. v. NLRB, 379
U.S. 203 (1964); Overnite Transporation Co., 330 NLRB 1275
(2000).
The General Counsel also alleges that this subcontracting
decision separately violated Section 8(a)(3) of the Act. Inas-
much as I have previously concluded that certain carpenters
were discriminatorily laid off or discharged, and as I have re-
lied, at least to some extent on this subcontracting, as under-
mining any contention that there was insufficient work for the
laid-off carpenters, any separate finding that the subcontracting,
by itself, violated 8(a)(3), would be superfluous.
C. The Laborers
1. The election
2–RC–22717
Laborers Local 79 started organizing employees sometime
later than the Carpenters’ Union. As noted above, Local 79
filed its petition for an election on May 5, 2003. Pursuant to
the petition and a Stipulated Election Agreement approved on
May 22, 2003, an election was held on June 13, 2003. The
Union lost.
On June 19, 2003, Local 79 filed timely objections to the
Election. The allegations thereof are listed at the beginning of
this decision.
The uncontested evidence showed that the Employer failed
to post the required election notice to employees. Pursuant to
Section 103.20 of the Board’s Rules and Regulations, the notice
must be (1) posted for 3 full working days in advance of the
election; (2) a party responsible for misposting is estopped from
objecting to the nonposting; (3) an employer is conclusively
deemed to have received the notices unless it notifies the Re-
gional Office at least 5 full working days before the election of
its nonreceipt; and (4) failure to post the notices as required is
ground for a new election when objections are filed. Sugar
Food, 298 NLRB 628 (1990) for a discussion of the rule and
the policy with respect to defaced notices. The Board has held
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD542
that the rule is strictly enforced. Smith's Food & Drug, 295
NLRB 983 (1989).5
Inasmuch as I have concluded that Objection 1 has merit, it
is unnecessary for me to make findings or conclusions with
respect to the other objections, as this is enough to overturn the
election. Accordingly, I recommend that the election in Case
2–RC–22717 be set aside and that this portion of the case be
remanded to the Regional Director in order to conduct a new
election.
2. Alleged 8(a)(1) and (3) violations
2–CA–35555, 2–CA–35619,
2–CA–35619, and 2–CA–35747
The evidence shows that after the Carpenters’ Union won
their election, Mathew Gaetano held a meeting with the em-
ployees eligible to vote in the Laborers’ election. Mathew
Gaetano asserts that he merely told employees that after spend-
ing thousands of dollars in the prior election, the employees
should do whatever they wanted. However, the credible evi-
dence convinces me Gaetano also told employees that the car-
penters had betrayed him by voting for that union and that al-
though he could not give raises now, if the laborers voted
against the Union, “things would look different” or that “there
would be a possibility to make changes.” This, in my opinion,
is an implied promise of benefit designed to induce the em-
ployees to vote against unionization. Therefore, I conclude that
in this respect, the Employer violated Section 8(a)(1) of the
Act. Superior Emerald Park Landfill, LLC, 340 NLRB 449,
459–460 (2003).
Employee Logan testified that on June 12, 2003, (the day be-
fore the election), Sammy Superville told him that if he voted
no, “I’ll know.” Wendell Henderson testified that on that same
day, Foreman Donovan told him that if he didn’t stop talking
about the union, he (Donovan) would have Henderson removed
from the job even if he had to use force. In addition, employees
Logan and Valle testified that shortly before the Laborer’s elec-
tion, the Mason Foreman Joe Little wrote on the men’s hard-
hats, “No Union.”
Since I credit the testimony of the employees describing the
above events, I conclude that the Respondent thereby violated
Section 8(a)(1) of the Act. In the case of Superville, I conclude
that his remarks to Logan on June 12 conveyed the impression
of surveillance. Feldkamp Enterprises, 323 NLRB 1193, 1198
(1997); Sarah Neuman Nursing Home, 270 NLRB 663 fn 4
(1984). In the case of Donovan, I conclude that his remarks to
Henderson, constitute threats of reprisal. And in the case of
Little’s notation on the men’s hard hats, I conclude that this
was the equivalent of illegal interrogation. Fieldcrest Cannon,

5 In Madison Industries, 311 NLRB 865 (1993), the Board did not
set aside an election where an amended notice was posted for a portion
of the time. The Board found that the change (eligibility) did not affect
the notice to employees that is the purpose of the Rule. In another case,
an election was not set aside in an election involving two unions where
the circumstances could “invite collusion” by any employer who might
favor one of the competing unions. The employer”s failure to post the
Notice in such circumstances would provide an unsuccessful favored
union with a basis to set aside the election. Maple View Manor, Inc.,
319 NLRB 85 (1995).
318 NLRB 470 (1995), enfd. in relevant part 97 F.3d 65 (4th
Cir. 1996).
Paul Valle, who was employed as a laborer and who acted as
the Union’s observer in the Laborers’ election, was discharged
on July 3, 2003, shortly after the firing of the Plenty brothers.
He credibly testified that Superville stated that he was being let
go because “he was down with the union.”
The Respondent claims that Valle worked slowly and had a
record of poor work performance. This was credibly denied by
Valle. In this regard, the Respondent could produce no written
warnings relating to Valle and the Company’s policy manual
contains a progressive disciplinary system.
Based on all of the other violations, thereby showing that the
Company had a predisposition to retaliate against employees
for their union activities, it is my conclusion that the General
Counsel has met her burden under Wright Line, supra, and that
the Respondent has failed to meet its burden. Therefore, I con-
clude that by discharging Valle, the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act.
With respect to Wendell Henderson, he was accused on Au-
gust 25 of sexual harassment and was given a written warning
to that effect that he refused to sign. He was thereafter dis-
charged on August 26, 2003.
There is evidence that Henderson got mad and yelled at
Summerville when the accusation was made. But Henderson
credibly denied that that he engaged in the alleged sexual har-
assment or that cursed at Summerville.
The Company also asserts that on August 27, 2003 (after his
discharge), Henderson made a threat to kill Mathew Gaetano if
he didn’t get his paycheck.
I credit Henderson’s denials of the accusations made against
him and I note that the Employer did not produce any evidence
that he actually engaged in the alleged harassment.
For the same reasons given in Valle’s case, I conclude that
the Respondent, by discharging Henderson, violated Section
8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. By soliciting employees to sign a petition indicating they
were not members of a union and by requiring them to wear
vote no signs on their hardhats, the Respondent has illegally
interrogated employees about their union activities in violation
of Section 8(a)(1) of the Act.
2. By threatening employees with job loss, the Respondent
has threatened employees in retaliation for their union activities
and has violated Section 8(a)(1) of the Act.
3. By promising benefits to employees if they voted against
unionization, the Respondent has violated Section 8(a)(1) of the
Act.
4. By giving employees the impression of surveillance, the
Respondent has violated Section 8(a)(1) of the Act.
5. By threatening to physically remove employees from the
jobsite because of their union activities, the Respondent has
violated Section 8(a)(1) of the Act.
6. By laying off or discharging employees because of their
union activities or in retaliation for the efforts of the Unions to
organize them, the Respondent has violated Section 8(a)(1) and
(3) of the Act.
GAETANO & ASSOCIATES 543
7. By failing and refusing to meet and bargain collectively
with District Council of New York City and Vicinity, United
Brotherhood of Carpenters and Joiners of America, the Re-
spondent has violated Section 8(a)(1) and (5) of the Act.
8. By failing to furnish relevant information to the Union
such as the names, job titles, dates of hire, and rates of pay, the
Respondent has violated Section 8(a)(1) and (5) of the Act.
9. By unilaterally subcontracting carpentry work without
first notifying or bargaining with the Carpenters’ Union, the
Respondent has violated Section 8(a)(1) and (5) of the Act.
10. By failing to post the election notices in Case 2–RC–
22717, the Respondent has interfered with the conduct of the
election and it should therefore be set aside so that a new elec-
tion can be conducted.
11. The aforesaid acts of the Respondent affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged Tony
Auguste, Nicholas Blake, Drabio Dollin, Hainson George,
Marcus Williams, Lavistor Joseph, Marvin Gullen, Vitals
Mathorin, John Nash, Anderson Pilgrim, Stonde Richardson,
Michael Sargeant, Ali Sillah, Davidson Plenty, Benedict Plen-
tie, Paul Valle, and Wendell Henderson, it must offer them
reinstatement and make them whole for any loss of earnings
and other benefits, computed on a quarterly basis from the date
of their discharge to the date of their 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). See also Florida Steel Corp., 231 NLRB 651 (1977).6
In addition to ordering the Respondent to bargain with the
Carpenters’ union and to furnish it with relevant information
upon request, I also shall recommend that the certification year
be extended so that the bargaining unit employees will be ac-
corded the services of their collective-bargaining representative
for the full period provided by law. I therefore recommend that
the initial period of certification as beginning on the date the
Respondent commences to bargain in good faith with the Un-
ion. See Mar-Jac Poultry Co., Inc., 136 NLRB 785 (1962).
[Recommended Order omitted from publication.]

6 Backpay for Dabio Dottin, Hainson George, Marvin Julien, and
Michael Sargeant would terminate on the dates that they were recalled
to employment. These individuals were recalled in May or June 2003.