Gaetano & Associates, 531 (2005)

Docket Number:02-CA-35437
 
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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 Construction and General Laborers Local 79, Laborers 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 Raymond P. Green issued the attached decision. The Respondent 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 judgeÂ’s rulings, findings,[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 representation elections held in separate units at the Respondent’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 Union[5] won the May 30 election and was certified as the unit’s bargaining representative.  We adopt the judge’s finding, for the reasons set forth in his decision, that the Respondent failed to meet and bargain with the Carpenters Union in violation of Section 8(a)(5) and (1) of the Act.  The Laborers Union lost the tally in the June 13 election, and the judge recommended that a rerun election be held because 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 findings 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 excepted, 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 window 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 findings made by the judge, for the reasons set forth in his decision, and the additional reasons set forth below. 

The RespondentÂ’s Unlawful Mass Layoff of Carpenters[9]

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 Counsel satisfied his initial burden under Wright Line[10] of establishing that the employees’ support of the Carpenters Union’s organizing campaign was a motivating factor 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 Carpenters 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 carpenters.  “It is well settled that the timing of an employer’s action in relation to known union activity can supply reliable and competent evidence of unlawful motivation.”  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 Respondent’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 “reflect[ed] in the bank requisitions” and banking documentation.  The Respondent has failed to provide such banking documentation, or any other evidence documenting or corroborating its assertion that rough carpentry work 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 accepting 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 Respondent 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 absence of their protected activity.  Compare, e.g., American 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 testimony that Benedict and Davidson were told by Supervisor Sammy Superville that they had been fired for wearing prounion t-shirts, and discredited the Respondent’s defense that they were terminated for poor work performance.  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 Benedict 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]  

The RespondentÂ’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. NLRB[14] and Torrington Industries[15] that subcontracting is a mandatory subject of bargaining if it involves nothing more than the substitution 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 Espanola 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 subcontractor’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 findings concerning the issues below that the judge did not directly address.

The RespondentÂ’s Unlawful Subcontracting of Window Installation Work

The General Counsel has excepted to the judge’s failure to address the complaint allegation that the Respondent violated Section 8(a)(3) and (1) of the Act by subcontracting 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 possible, citing efficiency of operations and problems with subcontractors. In May, shortly after the Carpenters Union organizing drive began, however, the Respondent departed from this policy and subcontracted the installation 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 employeesÂ’ union...

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