Celtic General Contractors, Inc.

National Labor Relations Board - Board Decisions

May 7, 2004

341 N.L.R.B. 862 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 862
Celtic General Contractors, Inc. and Abacus Man-
agement Corp., A Single Employer and District
Council for New York City and Vicinity, United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO. Case 2–CA–32313
May 7, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On April 19, 2002, Administrative Law Judge Eleanor
MacDonald issued the attached decision. The Respon-
dent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Celtic General Contractors,
Inc., New York, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.

Gregory B. Davis, Esq. and Joanne Wong, Esq., for the General
Counsel.
Martin Galvin, Esq., Bronx, New York, for Respondent Celtic.
Gary Rothman, Esq. (O’Dwyer & Bernstein), New York, New
York, for the Charging Party.
Tamir Rosenblum, Esq., New York, New York, for the Mason
Tenders District Council of Greater New York.

1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and brief adequately present the issues and
the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
At sec. III,B of the judge’s decision, we find it unnecessary to rely
on the judge’s finding that the Respondent’s official, Patrick J. Clarke,
made negative comments about the Union and the Respondent’s em-
ployees “under his breath” while testifying.
No exceptions were filed to the judge’s finding that the Respondent
did not violate Sec. 8(a)(3) and (1) of the Act by discharging employee
Abner Feliciano.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) of the Act by offering employee Neville Vega a bonus to work
late on the evening of the election, we do not rely on the judge’s con-
sideration of the Respondent’s antiunion animus in establishing the
violation.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was heard in New York, New York on 15 days between
December 11, 2000 and July 24, 2001. The complaint herein
alleges that Respondent, in violation of Section 8 (a) (1) and (3)
of the Act, informed employees that those who supported the
Union would be discharged, interrogated employees, condi-
tioned employment upon non-membership in the Union, of-
fered employees extra pay to discourage them from voting in
the representation election, informed employees that they were
terminated because they communicated with the Union and
asked the Union to demonstrate at a job site, and discharged its
employees because they supported the Union. Respondent
Celtic denies that it is affiliated with or has common manage-
ment with Abacus and it denies that it has engaged in any viola-
tions of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and, after considering the briefs filed
by the General Counsel and Respondent Celtic General Con-
tractors, Inc., on January 17, 2002, I make the following1
FINDINGS OF FACT
I. JURISDICTION
Respondent Celtic General Contractors, Inc., a domestic cor-
poration with an office and place of business at 2 West 45th
Street, New York, NY, is engaged in the operation of a con-
struction company. Celtic annually receives goods valued in
excess of $50,000 directly from suppliers located outside the
State of New York. Respondent Celtic admits, and I find, that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act. Respondent Abacus Man-
agement Corp. did not appear in the instant proceeding. Based
on the testimony and evidence in the instant record and on my
conclusions discussed in detail below, I find that Respondents
Celtic and Abacus are single employers. Respondent Celtic
admits, and I find, that District Council for NYC and Vicinity,
United Brotherhood of Carpenters and Joiners of America,
AFL–CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Patrick J. Clarke has been in the construction business for
many years. He has brought his children into the family busi-
ness as they became old enough to learn carpentry and other
elements of the construction process. Patrick J. Clarke’s eldest
son, Patrick D. Clarke, and his next oldest son, Barry Clarke,
both were taught to perform laborer’s and carpenter’s tasks in
1 The record is hereby corrected so that at page 95, line 22, the
phrase reads “you are now a foreman”; at page 632, line 16, the phrase
should be “company’s offices”; at page 1017, line 15, the word “tor-
mented” should be replaced by “terminated”; at page 1831, line 19, the
record should show that Counsel for the General Counsel, Gregory
Davis, Esq., was speaking.
341 NLRB No. 116
CELTIC GENERAL CONTRACTORS, INC. 863
the business as they grew up.2 Clarke Junior testified that his
sister Christine Clarke, the next in age after Clarke Junior and
Barry Clarke, helped out in the office as she was growing up.3
At the time of the events material to the instant proceeding, the
Clarke children lived at home. For many years, the bulk of
Clarke Senior’s construction work has been performed for Jo-
seph P. Day Realty Corp. (hereafter JP Day), a company that
owns and operates buildings in New York City.4 From 1976 to
1995, Clarke Senior had ownership and/or management roles in
construction firms named Aleat and Elegant Woodworking.5
Clarke Senior testified that as a result of a claim on Aleat for
unpaid payroll taxes he was constrained to sell his house to
satisfy his obligations to the government. When Aleat ceased
to do business JP Day offered Clarke Senior a job as its con-
struction manager. In the event, the family decided that Clarke
Junior, then a full time college student, would form a construc-
tion company and that Clarke Senior would assist him in the
business. Clarke Junior graduated from college in the year
2000.
Respondent Celtic was incorporated in 1997 with Clarke
Junior as president and sole shareholder. To start his business,
Clarke Junior borrowed money from both his mother and father
and he used his own savings. In addition, Clarke Junior ob-
tained the Aleat tools free of charge.6 Celtic’s offices are lo-
cated in 2 West 45th Street, a building owned by JP Day. Both
Clarkes share the same office in the Celtic headquarters.
From 1998 through mid-May 1999 Celtic employed ap-
proximately two painters, 19 carpenters and laborers and one
truck driver.
The Clarkes identified Janette Flores as the Celtic office
manager. Flores described herself as an independent contractor
supplying bookkeeping services to Celtic since 1998. Flores’
hours are 10 am to 6 pm; she often takes work home. Flores
testified that she works in the Celtic office on such matters as
the accounts payable, deposits, balances, reconciling bank
statements, organizing files, miscellaneous typing, and answer-
ing the telephone if no one else in the office is available.7 Al-
though Flores denied that it was her job to receive calls from
employees in the field, she acknowledged that she does answer
the office telephone when employees call to see if there is work
available for them. Clarke Senior stated that Flores does not
supervise the employees. Flores is responsible for entering data
on the weekly payroll forms which are sent to and processed by
the outside payroll company. She obtains the information from
time cards submitted by the employees. After being shown
many documentary examples, Flores acknowledged that while

2 To avoid confusion, I shall refer to Patrick J. Clarke as “Clarke
Senior” and to Patrick D. Clarke as “Clarke Junior.”
3 A younger son identified as Alan Clarke is not involved in the in-
stant proceeding.
4 Clarke Senior has known the principals and managers of Joseph P.
Day for 27 years.
5 Aleat and Elegant did a lot of work for JP Day.
6 Although carpenters typically own their own tools, certain tools
such as jackhammers and other major pieces of equipment are owned
by the construction contractor.
7 At various times Celtic employed receptionists named Maria and
Shane who answered the telephone.
the employees’ time cards may indicate that they have worked
substantial overtime or even weekend time, the payroll sheets
often do not reflect payment for more than 40 hours work per
week. Flores offered no explanation for this discrepancy.
Clarke Senior described his functions at Celtic as that of an
overall construction manager and general manager.8 Clarke
Senior helps Clarke Junior solicit business on behalf of Celtic.
Clarke Senior helped his son hire employees for Celtic and they
hired many of the men who had worked for Aleat and Elegant.
Clarke Senior spends most of his time out in the field looking
for jobs and customers. Clarke Senior also helps to direct the
work of the employees; he testified that he had no need to keep
a written list of the employees’ daily assignments because he
has this information in his head. Clarke Senior participates in
meetings with customers and their architects and engineers. At
the time material to the instant case, Clarke Senior was in
charge of the woodworking shop. The Clarkes are the only
individuals who have the authority to hire and fire employees
on behalf of Celtic.
Barry Clarke was employed by Celtic as a laborer at the time
the material events of the instant case were taking place al-
though he had been promoted to project manager at the time of
the hearing. The record shows that Barry Clarke was used to
relay instructions to employees and that at least once he told
employees that they were laid off for lack of work. The hearing
officer’s report in Case 2–RC–22084 found that Barry Clarke’s
interests were aligned with management and that he enjoyed
certain privileges by virtue of his familial relationship to Clarke
Senior and Clarke Junior. The hearing officer found that Barry
Clarke was used as a conduit to convey information to the
Celtic employees.
The parties agree that Martin Kernan was a purchasing
agent/manager of Celtic. Kernan did not testify herein but he
was referred to in the testimony of Celtic employees.
The parties agree that Glenn Josey was a purchasing agent of
Celtic. Josey testified that he was a purchasing agent, a con-
struction manager and that he did other miscellaneous work.
Josey worked in the office and he visited construction projects
to check on the progress of the work and to see whether addi-
tional materials were needed.9 Josey testified that it was a part
of his job to caution employees who were late or who were not
working quickly enough and to warn them that they must im-
prove. Josey testified that he assigned work to employees and
that he participated in decisions to discipline and discharge
employees. I find that Josey was a supervisor and agent of
Respondent within the meaning of the Act.
The cabinets and related items installed by Celtic are fabri-
cated in a woodworking shop situated in upper Manhattan.10
The property on which the shop and its parking lot are located
is owned by an enterprise known as PBCA. This entity, named
for the Clarke children, is owned in equal shares by each of the
8 The parties agree that Clarke Senior is the chief supervisor of Re-
spondent Celtic.
9 Josey worked for Celtic from May 1997 through August 1999. He
resigned to resume his studies in architecture at the University of Okla-
homa.
10 The woodworking shop is often referred to in the record as the
Harlem shop.
863
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 864
children. The woodworking shop had apparently been in the
same location for a number of years before the formation of
Respondent Celtic.
Isaac Mejia had worked for Aleat and was employed by
Celtic at the shop. Mejia speaks English and he served as the
usual conduit between the Clarkes and the Spanish speaking
shop employees. The hearing officer’s report found that Mejia
communicated management’s directives and views to the em-
ployees and that he was an agent of Respondent Celtic. Mejia
testified herein that Clarke Senior came to the shop every day.
Occasionally he was accompanied by Clarke Junior. Clarke
Senior told Mejia what the work was and he set up the shop in
the morning. Mejia transmitted Clarke’s instructions to the
employees and helped the employees read the plans. Mejia and
the other shop employees ate lunch together every day in the
shop.
At the time of the instant hearing Mejia had used his savings
to incorporate a company known as Rose Woodworking.11
Rose Woodworking is located in same premises where Celtic
maintained its woodworking shop. Mejia said that the shop
premises are leased from Clarke Senior and that he leases a van
from the Clarkes. In addition, the Celtic vans have the name of
Rose Woodworking printed on the side. Mejia employs some
former Celtic shop employees and he performs carpentry work
for Celtic. Mejia testified that Union organizer Anthony Agrid-
iano invited him to Union meetings in 1999 and explained the
benefits of voting for the Union: Union wages are higher, jobs
are permanent and there are benefits.12 Agridiano asked Mejia
whether he would vote for the Union but Mejia said that he
would not be with Celtic for long because he had plans to start
his own business. Agridiano told Mejia that sooner or later
Clarke Senior would be out of business and he promised to help
Mejia get Union jobs. Mejia testified that he himself had been
worried about Celtic’s business; he saw that work was slow and
he wanted to quit and get another job. After the election of
June 8, 1999 Mejia spoke to Clarke Senior and told him that he
could not control the shop any longer. Mejia asked to lease the
building.
In 1999 many of Celtic’s employees were related by blood or
marriage and they had worked numerous years in enterprises
controlled by Clarke Senior. These employees included:

Jose Manuel Vega
Abner Feliciano cousin of Jose Manuel Vega
Neville Vega cousin of Jose Manuel Vega
Teddy Vega brother of Jose Manuel Vega
Jaffet Ruiz (known as Jamil) cousin of Jose Manuel Vega
Jose Miguel Vega (known as Wilson) cousin of Jose Manuel
Vega
Hector Vega uncle of Jose Manuel Vega
Enrique Cuello married to Jose Manuel Vega’s aunt

The employees’ pay was calculated according to their
weekly hours. However, it is clear that the hours shown on an

11 Flores helped Mejia with the incorporation process.
12 Mejia did not explain the word permanent; apparently, Agridiano
was referring to the protections offered by just cause provisions and
grievance clauses.
individual’s time card often bear an inexact relation to the
hours on the official payroll records. Thus, a time card may
show substantial overtime but the payroll printout shows that
the employee was paid for 40 hours of work that week. This
circumstance has not been explained. Moreover, many of the
time cards seem to have been annotated by Flores long after
they were submitted by the employees and in some cases there
are two time cards for the same period. Some time cards do not
seem to be dated. The system at Celtic requires an employee to
report to his previous day’s work location with his tools and to
telephone the office to say that he is there. At that point, the
employee may be told to set to work or to report to a different
work site or he may be told that there is no work for him that
day if his name is not on the assignment list in the office.13
Each day the employee is supposed to write his hours on a time
card which is turned in to the office on Tuesday when the em-
ployee goes to pick up his paycheck. The time cards are
checked for accuracy by Clarke Junior and Flores. Paychecks
are subject to a time lag which is unspecified in the record.
The Union began organizing the Celtic employees in Febru-
ary 1999. The organizing effort was conducted by Anthony
Agridiano and Anthony Pugliese, organizers with the New
York City District Council of Carpenters. Between March 16
and April 23, 1999 thirteen employees signed a Union petition
authorizing the Union to represent them. By letter of April 22,
1999 the Union demanded recognition as the majority represen-
tative of Celtic’s employees. Having not received a response to
its demand, the Union filed a petition in case 2–RC–22084 on
May 6, 1999. On May 18 Clarke Junior signed a stipulated
election agreement. The election was held on June 8 for a unit
of about 25 employees. The original tally of ballots was not
determinative. A hearing officer’s report on challenged ballots
and recommendations issued on November 24, 1999 and the
Board adopted the recommendations on February 24, 2000.
The Union was certified as the employees’ representative on
March 15, 2000 in the following unit:

All full-time and regular part-time carpenters, apprentices,
laborers, tapers, tilers, painters, and handymen employed by the
Respondents at and out of the facility located at 2 West 45th
Street, New York, NY 10036, excluding all clerical employees,
drivers and guards, managers and supervisors as defined in the
Act.
After the election the Union conducted demonstrations at
Celtic job sites on occasion using a large inflatable rat and
handing out flyers.14 The demonstrations began on July 15 and
continued in front of locations where Celtic was working at the
time. The inflatable rat first appeared on July 29, 1999 at a
Celtic work site at 16 Court Street in Brooklyn. The next day
the rat appeared outside the Celtic office at 2 West 45th Street
in Manhattan. During the first week in August the Union used
the rat at a Celtic job site located at 108 West 39th Street in
Manhattan and then went back to 16 Court Street. Agridiano
13 There are some instances where an employee may be told to report
to a new location before the actual day he works there.
14 These rats are common sights in New York City. They are in-
flated in the public roadway in front of the target location.
341 NLRB No. 116 864
CELTIC GENERAL CONTRACTORS, INC. 865
testified that the purpose of the demonstrations was to show the
employees that the Union would stand behind them.
Agridiano testified that before the election some employees
had expressed fears that they might lose their jobs in retaliation
for their support of the Union. Agridiano told the employees to
stay strong and to hold on to their jobs. The Union was trying
to organize Celtic, and numerous other construction companies
in New York City, and it wanted the employees to stay with the
company. Agridiano’s objective was not to recruit Celtic
workers into the Union; rather he wanted to organize the com-
pany. Agridiano did not encourage Celtic employees to be
fired or laid off and he did not promise that if they lost their
jobs he would get them into the Union. However, if an em-
ployee were fired or laid off before or after the election Agrid-
iano would assist that person in filing an application for Union
membership. Union members could place their names on an
out-of-work list and wait to be called by employers. Pugliese
testified that Celtic employees knew they might be fired as a
result of the Union’s campaign. Pugliese told them that if they
were fired he would help them seek other employment. Pugli-
ese explained that when he was organizing a shop he did not
want the employees to leave or to be fired. If the employees
were no longer working for the company they might not be able
to vote. In addition, new employees would be hired and the
ongoing campaign would suffer. Pugliese stated that the Un-
ion’s objective was to bring the Union to a company’s employ-
ees.
B. The Status of Abacus
Abacus was incorporated in February 1999 with Christine
Clarke as president and Janette Flores as secretary. Clarke and
Flores were the only two shareholders of Abacus. The corpo-
rate address was Flores’ home address. A checking account for
Abacus was opened on June 1, 1999.15 By June 4, 1999 the
Abacus account contained $5400 all of which had been paid to
it by Celtic. Between July 16 and November 29, 1999 Celtic
paid Abacus a total of $43,000 more for jobs performed in
Brooklyn at JP Day buildings. In two separate payments on
December 3, 1999 and January 14, 2000 Abacus was paid
$70,000 directly by JP Day for work at 9 East 40th Street.
Abacus’ only customers were JP Day and Celtic.
Flores testified that her only familiarity with the construction
industry at that time was her involvement in keeping the Celtic
books. According to Flores Christine had worked for Celtic
answering telephones and visiting job sites with her father. At
the time of Abacus’ incorporation Christine Clarke was 18
years old and a full time student. Christine Clarke did not tes-
tify in the instant proceeding.
Flores testified that Christine Clarke had suggested forming
a construction business that would try to get jobs reserved for
enterprises owned by minorities (presumably by this phrase
Flores meant enterprises owned by women). Flores stated that
both Clarke Senior and Junior helped start Abacus by giving
money to the company. No loan documents were executed for
these transactions. Flores was working 8 hours per day in the

15 In November the bank was instructed to change Abacus’ address
to the Celtic address.
Celtic offices while Abacus was in existence and she conducted
the Abacus business from the Celtic office and from her home.
Abacus records were kept in a file cabinet in the Celtic office.16
Celtic did not bill Abacus for use of the office space. Flores
stated that certain other members of Celtic’s office staff also
performed work for Abacus on occasion. Abacus did not open
accounts with suppliers of construction materials. Instead,
Abacus ordered supplies under the Celtic name and using
Celtic’s credit. There was no written agreement providing for
repayment to Celtic for supplies used by Abacus.
Flores testified that Abacus hired certain of its carpenters and
laborers based on referrals from Clarke Senior. The Abacus
records show that from June through December 1999 Abacus
employed 11 laborers and carpenters. Some of these were
shifted from the Celtic payroll to the Abacus payroll. Abacus
made certain payments to Jose Soto but Flores did not know
what services Soto had performed for Abacus nor did she know
who had hired him. Abacus made a payment of $2000 to Rose
Woodworking Corp. but Flores did not know what that was
for.17
Abacus tax returns were prepared by CPA Lawrence Gins-
berg who was also the tax preparer for Celtic. The Abacus tax
return for 1999 shows that it made payments to subcontractors
in the amount of $10,400 but Flores did not know whether
Abacus had in fact subcontracted any work.18
Flores did not know where Abacus got any tools it needed
and she did not know where these tools were stored. Flores did
not know who supervised the Abacus workers in Brooklyn.
Flores was not involved in solicitation work for Abacus. Flores
did not know whether Abacus filed for building permits for the
work it performed.
Clarke Senior testified that he advised Christine Clarke when
she solicited work for Abacus from JP Day. He stated that he
had hired Jose Soto to perform carpentry for Abacus in a JP
Day building. When the job was not finished on time, Clarke
gave Soto the job as a subcontractor. Although Soto brought in
other workers on the weekend, the work was not done properly
and Celtic employees Neville Vega and Jaffet Ruiz were
brought in to correct the errors. Clarke Senior denied that he
had ever discussed the Union with Soto.
Soto testified that he had been working in a building on 39th
Street when he met a taper named Otto who gave him Clarke
Senior’s number. Soto, who was looking for a new job, ar-
ranged to meet Clark Senior who confirmed that he was hiring
carpenters. When Soto asked whether Celtic was a Union
company, Clarke Senior replied that he was not interested in
Union carpenters. Soto said he was just looking for work and
eventually a supervisor named Martin showed him the job on
the 15th floor of 9 East 40th Street.19 Beginning on May 24,
1999 Soto worked with a carpenter named Noel installing dry-
walls and doors. Clarke Junior came to the job site and in-
16 Flores testified that other Abacus records were located on her lap-
top computer which was stolen from the Abacus offices.
17 Flores also keeps the books and does payroll for Rosewood.
18 It was Flores’ responsibility to give information to Ginsberg for
the preparation of the tax return.
19 I note that Martin Kernan was a Celtic supervisor.
865
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 866
formed Soto of his hourly wages. On the 26th or 27th Glen
Josey told Soto that they had changed the name of the company
and that he was working for Abacus. Soto asked Clarke Junior
about this and Clarke replied that everything would be the same
but that they were changing the name. On June 4 Martin told
Soto that Clarke wanted to subcontract the job to him and that it
had to be finished over the weekend. Soto hired some helpers
and they worked straight through the weekend. When Clarke
Junior came to the job on Monday he expressed dissatisfaction
with the work and the job was completed by Celtic employees.
Soto was sent to work at another Celtic job site at 303 East 57th
Street. The record shows that Soto received two checks from
Abacus and that he was on the Celtic payroll for 23.5 hours for
the week ending June 14. Soto claimed that he was still owed
$2000 for the weekend work.
C. Profitability of Celtic and Abacus
Lawrence Ginsberg, Esq. is an attorney and CPA. Celtic re-
tained Ginsberg as its accountant in April 1999 upon Flores’
recommendation. Ginsberg testified that when he met the
Clarkes they were having problems meeting the payroll. They
told him that the amount of jobs was decreasing and they had
significant payables. Ginsberg advised the Clarkes to borrow
in order to have a certain amount of cash on hand and he told
them to cut expenses. Celtic’s main expense was payroll.
Ginsberg stated that in 1998 Celtic’s gross receipts were
$2,314,654. In 1998 Celtic paid subcontractors $429,427. In
1999 the company’s gross revenues totaled $2.7 million and,
according to Ginsberg, the company was in “better shape.” In
1999 Celtic paid subcontractors a total of $1,253,530, three
times as much as the year before. The 1999 tax return shows
taxable income of $12,286, up from $2151 the year before. In
1998 Clarke Senior drew a salary of $78,000 and Clarke Junior
received $18,576. In 1999 Clarke Senior received a salary of
$78,000 and Clarke Junior drew $40,000. This increase in
Clarke Junior’s compensation accounts for a decline in the
gross profit from $546,437 in 1998 to $539,996 in 1999.
Ginsberg is also the accountant for Abacus. The 1999 tax re-
turn shows that Abacus had gross income of $88,000 and a net
loss of $8,400. Its last income was received in January 2000.
Clarke Senior testified that Ginsberg told him in 1999 that
Celtic had too many people working and not enough work.
Ginsberg told him to cut back. Clarke Senior added that in
early 1999 he lost control because the men wanted to join a
union and the work slowed down. He could not control the
men and Celtic did not get contracts that he had expected to be
awarded by JP Day. He said that Celtic used to do about
$250,000 business with JP Day per year but it dropped to
$50,000 in the year 2000. Clarke Senior testified that Celtic
lost all the JP Day work at its Court Street buildings in Brook-
lyn after having been the contractor for over 20 years.
Clarke Senior recalled that in June 1999 Celtic was perform-
ing work at the following sites: 575 Park Avenue, 488 Madison
Avenue, 9 East 40th Street, 303 East 57th Street, 800 Third
Avenue, 2 West 45th Street in Manhattan and at 16, 44 and 50
Court Street in Brooklyn. Clarke also testified about a project
at 71 West 23rd Street. These jobs were all finished after the
summer of 1999 and some were finished in the year 2000. On
certain projects Celtic used subcontractors. These included 800
Third Avenue where Celtic used its own workers but also used
subcontractors from May 1999 through July 2000. The evi-
dence shows that beginning in July 1999, Celtic made pay-
ments to Moustafis, a painting subcontractor, for work per-
formed at 2 West 45th Street, 800 Third Avenue and 9 East
10th Street. Beginning in June 1999, Celtic used another paint-
ing contractor, Florin, for work performed at 488 Madison
Avenue and 800 Third Avenue. Celtic also used other subcon-
tractors including West End Interiors for work that it otherwise
would have performed with its own workers. Although Clarke
Senior testified that he had “always” used Jerome Contracting
for demolition the records show that in 1998 Celtic made no
payments to Jerome whereas in 1999 Celtic paid Jerome a total
of $166,856. Similarly, Celtic paid Sharp Construction a total
of $127,550 in 1999 for work performed in JP Day buildings.
Celtic had not used Sharp as a subcontractor in 1998.
Clarke Senior testified that the Celtic employees kept the
Union organizing a big secret. One day his son told him that he
had received a letter from the Union. At first Clarke Senior
thought the organizing would not amount to much. Clarke
Senior recalled that the Union put big rats outside the doors and
the men called him a slave driver. The Union put rats outside
every building owned by JP Day and “it was a disgrace.” The
Chairman of JP Day, Barry Jacobson called and asked whether
Celtic were falling apart. During the lengthy time that Clarke
Senior was on the witness stand I heard him making numerous
comments under his breath to the effect that the Union and his
men had stolen work from him and ruined him.
Clarke Junior testified that before the election he was con-
cerned that Celtic’s ability to get work from JP Day might be
jeopardized if the employees voted in favor of Union represen-
tation. He could not afford to pay higher wages and benefits.
Clarke Junior stated that his employees were producing less
work because they were talking to the Union organizers instead
of working. This slow down began in February or March. His
painters did not protect the area in which they were working
and Celtic lost painting jobs it had expected. Clarke said that
he gave out warning letters but these have not been produced.
Clarke Junior testified that Celtic’s profit went down in 1999
because he was using subcontractors. It is more profitable to
use the company’s own workers.
Jacobson testified that he took business away from Celtic be-
cause the work was faulty and took too long and tenants were
upset that they were not given possession of their premises by
the promised date. According to Jacobson he and the JP Day
tenants were upset that the Union had placed the inflatable rat
in front of certain buildings on various occasions and he was
upset when he received a Union flyer in front of 9 East 40th
Street. During the time of the demonstrations the Celtic prob-
lems got worse. Then Celtic’s performance began to improve
but Jacobson watched the company very carefully. Jacobson
testified that the Union demonstrations made no difference in
the JP Day decision not to use Celtic painters.
Raymond Bennett is an interior designer and construction
supervisor for commercial and residential projects. He has
known Clarke Senior since 1982 and he has used Aleat and
Celtic. Bennett testified that in 1999 he was involved in Celtic
341 NLRB No. 116 866
CELTIC GENERAL CONTRACTORS, INC. 867
work sites at 108 West 39th Street, 9 East 40th Street and 2
West 45th Street in Manhattan, and at 16, 44 and 50 Court
Street and 186 Joralemon Street in Brooklyn. Bennett stated
that in late spring and early summer of 1999 he visited Celtic
sites weekly and it appeared to him that nothing had been done
and no progress was being made. He spoke to the Clarkes and
urged them to get their act together, to put enough people on
the job to get the work done and to pay attention that the work
was done right. Bennett said that in some of the Celtic projects
walls were in the wrong place, materials were not on site and
Celtic had not paid attention to the documents. This was a new
type of problem in his dealings with Celtic. Bennett then con-
tracted with Celtic to do construction work on his own office at
108 West 39th Street. The planning for the office began in
May and the work had to be done in August. Because Celtic’s
work in the building for another client was going very slowly
and he saw that Celtic needed more people on the job, Bennett
instructed Celtic to get subcontractors on the job in order to get
it done on time and he suggested that they use a company
called Tradesource.20 Bennett stated that the client’s job at
108 West 39th Street was not getting done because no addi-
tional work was taking place and materials such as sheetrock
and doors were not being delivered. The foreman on this job
was Clarke Junior. As will be shown below, the problems de-
scribed by Bennett took place when Celtic was discharging and
laying off substantial numbers of its unit employees and shift-
ing work to Abacus.
D. Celtic’s Employees
Jose Manuel Vega
Jose Manuel Vega testified that he had begun working for
Aleat in 1991 and had later gone on to work for Celtic.21
Jose Manuel Vega testified that he met Union organizer An-
thony Agridiano at a Celtic work site on West 23rd Street in
March 1999. He attended the first Union meeting at the home
of his uncle Hector Vega. There were more Union meetings
and eventually Jose Manuel Vega signed a Union petition. The
meetings were attended by Hector Vega, Neville Vega, Jaffet
Ruiz, Jose Miguel Vega (Wilson), Flavio Gordillo, Chilon For-
rester, Matthew Andrew, Harry, Edgar Cedeno, Abner Fe-
liciano, Justo Quendeo, Jack Marzilliano, Jose Soto and Angel
Vasquez. Jose Manuel Vega stated that he helped organize for
the Union.
In May 1999 Vega was assigned to a Celtic site at 108 West
39th Street. On May 24 he was working on ceilings and parti-
tions at the 39th Street job and his work was not completed.
Nevertheless, he was reassigned to a job site at 44 Court Street
in Brooklyn. Vega did not normally work in Brooklyn. When
Vega arrived in Brooklyn he saw Hector Vega, Neville Vega
and Jaffet Ruiz finishing up a job. On May 26 Glen Josey
called him on the two-way radio that he carried to communicate
with the Celtic office and told him to give the radio to Barry
Clarke. Later on the 26th Barry Clarke told the four employees

20 In the event, Bennett moved into his office without doors, carpet-
ing and painting.
21 Vega worked for Aleat except for some months in 1992 and 1993
when he left his job.
at the work site that there was only work for two of them and
that they should decide among themselves which of them
would leave the job. Jose Manuel Vega said he would leave the
job because he did not usually work in Brooklyn and Jaffet
Ruiz also agreed to leave because Neville Vega’s wife was
expecting a child. The next day, Jose Manuel Vega telephoned
the office looking for work. He was told that no one was in to
speak to him. Later in the day he telephoned again and reached
Janette Flores who told him that there was no work for him.
That day, Vega applied for unemployment insurance. Vega
testified that he had never been laid off before. He did not
receive any messages that Clarke Junior had called to offer him
work.
Clarke Junior testified that after Vega left the Brooklyn job
on May 26, he did not telephone the office to check if there was
other work for him. Clarke said that he called Vega on the 27th
to assign him to complete some minor punch list work at Flo-
res’ house in Queens. Clarke left a message on Vega’s answer-
ing machine but Vega did not respond. Clarke Junior said that
after Celtic received a notice showing that Vega had applied for
unemployment compensation he concluded that Vega had quit
his job. Clarke Senior testified that Vega was called to finish a
job in Queens after he left the Brooklyn job. Clarke Senior
asked Vega’s brother Freddie to tell Vega to return. Freddie
replied that Vega was going to work at Donaldson construction.
Glen Josey testified that he had called Vega on his cell phone
and that he had asked Abner Feliciano about Vega. Neither
Clarke Senior nor Josey gave dates for their calls to Vega.
About two weeks after his layoff Jose Manuel Vega tele-
phoned Celtic and spoke to Clarke Junior. A tape recording
was made of this telephone call.22 During the call Vega asked
Clarke why he was not getting any more work from Celtic.
Clarke responded that Vega had filed for unemployment on the
24th.23 He went on to say that he felt “betrayed by everyone . .
. that nobody came to us and asked for anything. . . .” Vega
replied that he had filed for unemployment on the 27th and
asked whether the lack of work had anything to do with the
Union. Clarke denied that it did and said “You have the right
to go where you can get the most money. . . you got a Union
card, congratulations. That is if you do. And if you get it and I
hope you get it.” Clarke went on to say that he himself did not
want a Union card but that it was a free country. When Vega
suggested that Clarke speak to his father to see whether he
would give Vega some work Clarke Junior said, “Let me see
where the jobs are coming up now. I don’t know.” Vega then
commented that they had known each other too long to “let this
little thing come between us either.” Clarke replied “It’s not
really a little thing though. . . . I just got pissed off about that
there was Union people at every single job that we have. Five-
seventy-five, everywhere.” Vega repeated his request for work.
Clarke said that most of the jobs were finishing up but he prom-
ised to give Vega a call.
22 The tape was played at the instant hearing after the testimony of
Respondent’s witnesses.
23 Vega had been instructed to fill in his unemployment form from
the first day of the week during which he was laid off.
867
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 868
Jose Manuel Vega testified that he did not believe Clarke
Junior’s assertion that there was no work for him. He had been
working for Clarke Senior since 1991 and he had never been
without work. Vega always worked in one JP Day building or
another; this company has many buildings and they need a lot
of maintenance. Vega testified that after the telephone call to
Clarke Junior he got his Union book and signed the out-of-
work list. Vega was on unemployment for two weeks and he
found work through the Union at the end of June. Eventually
he became a foreman. He now earns about twice as much as he
was paid by Celtic.
Flores testified that Manny Vega had done some work at a
house she owned in Queens.24 According to Flores, Vega in-
formed her that he quit “in person.” When asked what she
meant by this Flores explained that Vega told her that the men
were going to get a lawyer and join the Union. Vega told her
he would earn three times as much as at Celtic and that he
would not work for Celtic any longer. Flores did not specify
when this conversation took place. Vega denied that he told
Flores that he was joining the Union and that he would no
longer work for Celtic.
Jaffet Ruiz
Jaffet Ruiz testified that he had worked for Aleat and then
for Celtic.25 Ruiz attended all the Union meetings and he
signed the Union petition. Ruiz supported the Union because
he wanted higher wages and he needed benefits for his family.
On May 26, 1999 Ruiz was working on sheetrock, taping
and ceilings at the 44 Court Street job site in Brooklyn with
Neville Vega, Jose Manuel Vega and Hector Vega when Barry
Clarke came and said the men had to decide which two of them
would leave. Ruiz testified that his work at the site was not
finished; indeed, Neville Vega testified that Ruiz’ work was
taken over by a man named Otto who was not a Celtic em-
ployee. After he left the Brooklyn job Ruiz called the office
every day but he was told work was slow and he did not work
for a while. Eventually Celtic put him to work at 2 West 45th
Street for two weeks and then at 9 East 40th Street. One morn-
ing at the beginning of July Ruiz called the office and informed
Flores that he could not work because of an earache. Later that
day Ruiz went to the Celtic office to pick up his paycheck.
Ruiz stated that although he was too ill to work he needed
money and had to cash his check that day. Clarke Junior saw
Ruiz in the office and remarked that he thought Ruiz was sick.
Ruiz said that he had an ear infection; Clarke replied that he
was lying and hiding from him like a child. Ruiz asked Clarke
whether he would be paid for the day he was off and Clarke
said yes. Then Clarke Junior said that Ruiz should get the big
money from the Union guys. After this day Ruiz was not given
any more work by Celtic. Ruiz went to the office a second time
to get a paycheck that he was owed and he asked why his name
was not on the list to work. Clarke Junior replied that Ruiz
knew what was going on and told him to get the big money

24 Vega acknowledged that he worked at a private house in Queens
sometime in April 1999.
25 Ruiz testified through an interpreter. Ruiz stated that he cannot
read English but that he understands a little English. Ruiz communi-
cated with the Clarkes in both Spanish and English.
from the Union guys. Ruiz denied that he quit working at
Celtic. A few days after his last day of work at Celtic Ruiz
went to work for Donaldson Construction.26
Clarke Junior testified that Ruiz had quit working for Celtic
in order to take a new job with Donaldson Construction. He
did not deny Ruiz’ testimony about their conversations.
Ruiz recalled taking part in a demonstration in front of 16
Court Street in Brooklyn. Ruiz was giving out Union flyers
and gave one to Clarke Senior. Clarke called Ruiz, “You piece
of shit, you nothing,” and said that he would “receive death
before receiving the Union.” Clarke Senior denied generally
that he had talked to Ruiz about the Union. He acknowledged
that his clients were very upset about the flyers being handed
out in front of the building. Clarke was upset that the Union
was using an inflatable rat balloon in front of 16 Court Street
on the occasion when it handed out flyers.
The flyer handed out in front of Celtic work sites was enti-
tled “Representation is Everything!” Under this heading there
were three cartoons. One showed King George III saying,
“colonists don’t need a declaration to get independence.” The
next cartoon showed the same man as in the King George draw-
ing but this time wearing a string tie and a wide hat saying,
“slaves don’t need a proclamation to get emancipation.” The
third cartoon showed the same man in business attire saying,
“workers don’t need a contract to get better pay, benefits, and
working conditions.” Underneath these pictures was the infor-
mation that Celtic workers were seeking Union representation
and a request to the public to support the workers and to voice
concern to Pat Clarke and Barry Jacobson.
Neville Vega
Neville Vega began work for Aleat and continued with
Celtic. He left Celtic on August 30, 1999 after his cousin Jose
Vega called to tell him of a Union job at a company called
Chemco.27 Neville Vega testified that he stayed at the 44 Court
Street job from which Jaffet Ruiz and Jose Manuel Vega had
been laid off on May 26. A new man named Otto took over
Ruiz’ taping work at that location. Further, Jerome of Jerome
Contracting did work for Celtic at both 16 and 44 Court Street
with one or two of his men. Neville Vega had never before
seen Jerome Contracting on a Celtic job site. In response to
questions posed by Counsel for the Respondent Vega testified
that Celtic usually did its own demolition although for a big job
it might hire an outside company. However, Vega did not de-
scribe the work that Jerome was doing at either 16 or 44 Court
Street as demolition work.
Neville Vega testified that on June 7, 1999, the day before
the NLRB election, he was working at 9 East 40th Street fixing
a ceiling that Jose Soto had done over the weekend.28 Clarke
Junior asked Vega to stay late and offered him $100 if he
would work past 4:30 in the afternoon. Neville Vega had never
before been paid at a higher rate for staying after 4:30. The day
26 The record shows that Ruiz commenced work for Donaldson in
mid July.
27 Neville Vega went from earning $13/hour at Celtic to $32.30/hour
at Chemco.
28 Vega said that he and Edgar Cedeno fixed the badly done ceiling
over the course of a few days.
341 NLRB No. 116 868
CELTIC GENERAL CONTRACTORS, INC. 869
of the election Clarke Senior offered Neville Vega extra money
if he would stay late to finish the job. Vega refused and he
walked down the street to vote in the election. There is no
dispute that the polling place was about 5 minutes away from
the work site.
Clarke Junior testified that the job at 9 East 40th Street was
an Abacus job. The project was not finished on time and the
work was done badly and made the family look bad. On Mon-
day June 7 he inspected the shoddy work and he sent Celtic
employees Neville Vega and Jaffet Ruiz to fix the job. He
offered them a bonus of a few hundred dollars if they would
stay late and finish up. The men refused the bonus and the later
hours. The next day he asked them to work late again and of-
fered a bonus but the men refused. They said they wanted to
vote. It would have been possible for the men to vote and then
to return to the job site. Clarke Junior testified that he had of-
fered bonuses before under emergency conditions but that this
was not common at Celtic.
Edgar Cedeno
Edgar Cedeno worked for the Clarkes since 1996 at Aleat
and at Celtic.29 He attended Union meetings at Hector Vega’s
house and at the Union hall and he signed the Union petition.
Cedeno testified that after the election he was working at a
Celtic job site at 575 Park Avenue when Clarke Senior asked
him if he wanted to make a Union. Cedeno replied that he
wanted the Union because he did not have any benefits. Clarke
Senior replied that he always had work and the Union did not.
He asked Cedeno why he had not spoken to him about benefits
before.
In June or July Cedeno saw a large inflatable rat that the Un-
ion had brought to 16 Court Street.30 The next day at 44 Court
Street, Barry Clarke confronted Cedeno and accused him of
calling the Union in order to have the rat brought to the work
site.31 Cedeno said he had not. Barry Clarke told Cedeno that
he was fired and told him to put his tools down. Barry Clarke
asked why after all his father had done for Cedeno had Cedeno
called the Union. Again Cedeno denied calling in the rat.
Barry Clarke said he did not trust anyone. Then Cedeno told
Barry to call his father because he was the one who had hired
Cedeno. At that point, Barry told Cedeno to continue working.
At about this time Glen Josey arrived at the job site and he
asked Cedeno why he had not finished a job requiring door
hinges in the penthouse of 2 West 45th Street. Josey said the
hinges had been in the kitchen cabinet. Cedeno replied that he
and the owner of the property had looked all over for the hinges
and had not been able to find them. Cedeno was “disgusted”
and he told Barry Clarke that he was through with Celtic.
About 3 weeks later Cedeno got work with a company called
Glen Partitions through the list at the Union hall. Celtic did not
call Cedeno back to work and the Clarkes did not help him find
another job.

29 Cedeno testified through an interpreter.
30 The record establishes that the rat was first deployed by the Union
on July 29, 1999 and that Cedeno’s last day of work at Celtic was dur-
ing the last week in July.
31 Cedeno identified Barry Clarke as the foreman on that job.
In response to questions posed by Counsel for the Respon-
dent Cedeno denied that he was promised that if he left Celtic
the Union would get him a job paying higher wages. He testi-
fied that there was no discussion of the inflatable rat at Union
meetings. Cedeno stated that he was unaware of any manage-
ment complaints about an employee slowdown at Celtic.
Barry Clarke testified that after he had an argument with Ce-
deno the latter left Celtic. He could not recall the subject of the
argument. Barry Clarke did not deny Cedeno’s version of their
conversation about the Union but he testified generally that he
had been instructed not to talk about the Union with the Celtic
employees.
Glenn Josey recalled that he had assigned Cedeno to com-
plete a minor job at 2 West 45th Street. On June 29, 1999
Josey saw Cedeno working at 16 Court Street and he asked
Cedeno why he had not done the job. Cedeno said the job was
done but Josey told him that the tenant had called and com-
plained that the work was not completed. According to Josey
Cedeno threw down his tools and said he could not take this
and then he quit. Josey did not know whether Cedeno had had
a problem with Barry Clarke earlier that day.
Clarke Senior testified that after he heard from Josey that
Cedeno had quit he called him into the office and pleaded with
him to return saying that Celtic would be in trouble with JP
Day if he were not in the company. According to Clarke Ce-
deno refused to return because he had a higher paying job com-
ing up. Clarke Senior did not say when this conversation took
place.
Jack Marziliano
Jack Marziliano has known Clarke Senior for about ten years
having worked for Aleat and then Celtic doing ceilings, sheet-
rock and framing. Marziliano attended one Union meeting and
he signed the Union petition on March 17, 1999 at the request
of Jose Manuel Vega. At about the time he signed the petition
Marziliano was working at a job site on the 9th floor of 9 East
40th Street. Clarke Senior came to the site and took Marziliano
up to the 15th floor of the building where Celtic had a job com-
ing up. Clarke had a blueprint and he and Marziliano walked
around looking at the space and going over the work to be
done. Later that day Marziliano was eating lunch in the lobby
of the building when Clarke Senior walked over to him and
asked whether Marziliano would vote for Clarke. Marziliano
replied that he would vote “for me, my family”. Clarke Senior
said that the company could not afford to go Union and he did
not think it would happen. After he finished the 9th floor Mar-
ziliano was not assigned to the 15th floor job. He was sent to
the Tourneau job at 488 Madison Avenue and then to a residen-
tial job on Park Avenue.
Marzilliano testified that around the beginning of July 1999
he asked Clarke Junior for a day off to attend a house closing.
When Marziliano returned to the job he called the office and he
was told that his name was not on the job list. He returned to
the job site daily and called the office every morning but
Janette told him that he was not on the list to work. After a few
days he told Janette that he was not coming in every day with
his tools and that they should call if they had work for him.
Marziliano did not tell anyone he no longer wanted to work for
869
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 870
Celtic. After about 3 weeks Marziliano obtained another job
from the Union’s out-of-work list. The record shows that Mar-
ziliano last worked for Celtic on June 24, 1999.
Marziliano said that at the Union meeting he attended the
employees were told that the Union did not want the men to
quit Celtic. The Union told the men to stay on the job. There
were no promises that the Union would help the men find better
jobs than they had with Celtic.
Clarke Senior stated that he and Marziliano were friends who
had discussed Marziliano’s desire to obtain a Union job and
earn a pension in 1997 or 1998. At some point, Marziliano told
Clarke that he had the opportunity to join the Union. After this
conversation Marziliano continued to work for Celtic. Marzili-
ano asked for time off because he was buying a house. He was
granted time off and then he was on the list to work, but Celtic
could not contact him because his telephone number had
changed. Clarke Senior denied telling Marziliano that Celtic
could not afford the Union and that “it would never happen.”
Enrique Cuello
Enrique Cuello testified that he has known Clarke Senior for
about 8 years, having worked for Aleat in the past.32 Cuello, a
laborer, asked his nephew Jose Manuel Vega about a job at
Celtic and he was hired in March 1999 by Glen Josey to do
demolition, cleaning and cement mixing. Cuello worked 40
hours per week. Cuello denied that he was told that his job was
not permanent. Indeed, Cuello was sent from job to job by
Celtic. Cuello heard about the Union from Jose Manuel Vega.
He attended three meetings at the Union hall where he heard
Anthony Pugliese speak about the benefits of the Union. Pugli-
ese did not promise Cuello a job and did not tell him to quit
Celtic. Before the election Cuello saw Clarke Senior at the 488
Madison Avenue job site where he had been working for about
6 weeks. Clarke asked Cuello if he knew that his family organ-
ized the Union. Cuello said he did not know. Clarke re-
sponded that the Union was no good. Cuello testified that he
could understand these statements but that because he did not
speak that much English he did not know what else Clarke
Senior said on that occasion. Cuello also testified that Clarke
did not tell him there would be a problem if it were discovered
that he was not a member of a union.
Cuello testified that a few days after the election he was
working at 488 Madison Avenue with Edgar Cedeno. At about
2 or 3 in the afternoon both Clarke Senior and Junior arrived
and then a supervisor named Martin. Clarke Junior told Cuello
to call the office for work on Monday. Martin mentioned that
there was a job at 575 Park Avenue mixing cement and Cedeno
said that Cuello should be sent there. Martin said, “No.”
Cuello testified that the work at 488 Madison had not been
completed when he left. The following Monday Cuello called
the office and was told that there was no work for him. He
called the office repeatedly and he was given 1½ days work at a
job site on 57th Street. Celtic gave him no further work.
Cuello last worked for Celtic on June 14, 1999. Cuello is not a
member of any union.

32 Cuello testified through an interpreter.
Clarke Junior testified that in May 1999 he received a tele-
phone call from a person named Hegarty from the laborers
union. According to Clarke Junior, Hegarty referred to non-
union laborers on the job at 488 Madison Avenue. Clarke re-
sponded that the work was subcontracted to a union contractor.
But Hegarty said that Celtic could not employ a non-union
laborer and that the job would be picketed if he remained.
Clarke Junior said that he took no action. Then Hegarty called
again and threatened to picket the job. Because there was no
other work for Cuello at Celtic he was laid off. Clarke Senior
testified that although he and Cuello could not converse Cuello
understood enough English to understand his instructions about
work. Clarke testified that his son Clarke Junior informed him
that Hegarty threatened to shut down the job if Cuello contin-
ued to work at the site.
James Hegarty, business agent of Local 79 of the Mason
Tenders District Council, testified that his field reports show
that he visited the work site at 488 Madison Avenue with an-
other business agent on May 21 and 26. Hegarty had received
information that a non-union contractor was employing a non-
union laborer at the job. The first visit produced no informa-
tion. On the second visit an employee told Hegarty that Pat
Clarke was the owner of Celtic and gave him the office tele-
phone number. Hegarty called the Celtic office on May 26 and
spoke to a receptionist. She took a message but no one returned
Hegarty’s call. Hegarty did not call again. Hegarty denied that
he threatened to picket the job site. Hegarty testified that when
he discovers that a contractor is performing laborer’s work with
a non-union worker his practice is to ask the contractor to sign
a trade agreement and to organize the laborers on the site.
Chilon Forrester
Chilon Forrester has been a carpenter for 25 years. He began
to work for Celtic in July 1998. In April 1999 Forrester heard
about the Union. He attended four or five meetings at the Un-
ion hall and he signed the petition and voted in the election.
Forrester stated that from July 1998 to May 21, 1999 he worked
for Celtic almost every day except for a few days when Celtic
was slow. In May 1999 Forrester had been working on the 5th
floor at 44 Court Street for 2 to 4 weeks performing framing
and sheetrock work. Other workers at the site included Hector
Vega, Jose Manuel Vega and Neville Vega. According to For-
rester, Hector Vega was a co-worker and Barry Clarke was the
supervisor. On Friday May 21 Barry Clarke came to the site
and told Forrester that he should call the office Monday morn-
ing and he would be told where to go. On Monday May 24,
Forrester called but Janette told him that she had no message
for him. Forrester called back later that day but Janette still had
no assignment for him. Each time he called Forrester asked for
Clarke Senior but he was told that Clarke was not in the office.
This pattern continued on a daily basis until Forrester stopped
calling in June or July.
Forrester testified that he had worked at 16 Court Street re-
pairing doors at some point before he was laid off. On one
occasion he was instructed by Barry Clarke to work on a door
closer but he did not have the proper materials. Forrester re-
called that the door was old and the screws kept falling out. He
asked Barry Clarke to get him longer screws and bolts but the
341 NLRB No. 116 870
CELTIC GENERAL CONTRACTORS, INC. 871
next day Clarke had not obtained the necessary materials. Later
that day Clarke Senior came and swore at Forrester about the
problem with the door closer. Forrester tried to tell him that he
had not received the proper materials to do the job but Clarke
Senior would not listen to Forrester’s explanation. Clarke Sen-
ior said that the closer fell and could have hit someone. This
incident occurred 2 or 3 months before Forrester was laid off.
In response to questions posed by Counsel for the Respon-
dent Forrester recalled that he went to work for Glen partition
in August 1999 having obtained the job through the Union
hiring hall. Forrester testified that the Union never told him
that if he left Celtic he would get a job earning more money.
Marziliano testified that after working with Forrester he had
told a supervisor at Celtic that Forrester was old and a little
slow but that he knew what he was doing.
Barry Clarke testified that he did not see the door closer fall
although he saw it on the floor. He recalled that the door was a
new solid oak door and the top was ruined because it had been
redrilled in an effort to install the screws for the door closer.
Barry Clarke was with his father when a tenant came up to
them screaming and angry. Barry Clarke acknowledged that he
was responsible for bringing materials to the job site for Forres-
ter. He did not recall that Forrester asked him for additional
materials and he did not recall discussing the door closer with
Forrester. Barry Clarke stated that there were no problems with
door closers on any other doors at 16 Court Street.
Glenn Josey testified that after Hector Vega complained
about Forrester’s work in Brooklyn Forrester was transferred to
work in Manhattan with Jack Marziliano. When Marziliano
said that he was slow and not a good carpenter Josey warned
Forrester and told him that he had one last chance to keep his
job by working in Brooklyn. Josey recalled that after he had
assigned Forrester to install a door closer at 44 Court Street he
received telephone calls from JP Day officials saying that a
door closer had fallen. Josey did not see the door closer and he
did not know if it had actually fallen. Josey told Hector Vega
to fix the door closer and he learned from Vega that it had not
been installed properly. Josey telephoned Forrester about the
door closer and Forrester complained that the screws were the
wrong size and that he had put in a request for the correct
screws. When Josey asked why Forrester had put it up even
without the correct screws Forrester replied that he had been
instructed to install the door closer and that nothing had come
of his request for different screws. Josey testified that Celtic
maintained accounts at local hardware stores where Hector
Vega could have gone to obtain the needed screws. He thought
Forrester should not have installed the door closer knowing he
had the wrong screws. Josey consulted Clarke Senior and they
decided to fire Forrester due to the faulty door closer installa-
tion.33 He denied that this action was related to the Union.
Clarke Senior testified that Forrester had installed a door closer
that fell down and he thought that Forrester had been fired.
Clarke Senior added that he had not liked Forrester’s work
from the beginning because he was slow and Hector Vega had
told Clarke that he had only himself to blame for sending bad
people to the job.

33 Josey testified that he probably consulted Clarke Junior as well.
Hector Vega testified that he had worked with carpenter
Chilon Forrester on 12 to 15 occasions.34 No one told him that
there was a problem with Forrester’s work and Vega was not
instructed to watch Forrester. Hector Vega worked with For-
rester at 44 Court Street in May 1999. Vega thought that For-
rester was a good carpenter and he had no complaints about
him. Vega testified that there was a problem concerning fire-
proof doors at 16 Court Street. Due to a construction feature
relating to the doors the screws that were meant to hold the
door closers on the doors could not be properly installed. The
screws would loosen as soon as they were put in. Before For-
rester came to work at 16 Court Street some doors were in-
stalled and the door closers began to come out of the doors.
The door closers did not actually fall down because the screws
affixing them to the doorframes held tight. Vega knew about
four such incidents. Hector Vega stated that he found out about
the problem with the 16 Court Street doors when people began
working on them. A carpenter who was the foreman tried to
install the door closers at first. Then Barry Clarke came to be
the foreman on the site and a solution was devised to deal with
the problem. The situation was resolved before the election.
Barry Jacobson the chairman of JP Day testified that in
March 1999 there was a problem with a door closer at 16 Court
Street. Jacobson said that the door closer fell on a lawyer at
that location.35 After stating that this occurred in March Jacob-
son changed his testimony to say that it happened in April or
May.
Mario Gordillo
Mario Gordillo worked as a carpenter for Aleat and then
Celtic.36 He constructed cabinets in the shop and he worked in
the field installing cabinets and woodwork. Gordillo attended
two Union meetings and voted in the election. Gordillo re-
called receiving two written warnings from Celtic, one about
lateness and one for taking too long in the installation of ground
molding when he was working alone with no helper. Respon-
dent introduced two warnings to Gordillo; one warning dated
July 12, 1999 charged him with falsifying the hours on his time
card, with coming in late and with unsatisfactory performance
and the other warning dated July 19 also related to falsifying a
time card by erroneously showing that he had worked on July
10. Gordillo denied that he had claimed pay for hours not
worked. In addition, a warning dated June 29, 1999 which had
been submitted to the Regional Office mentioned lateness, slow
work and late submission of time cards.
Gordillo testified that the shop carpenters generally ate lunch
together in the shop. The shop workers spoke only Spanish
except for Isaac Mejia who could speak English and translated
for the Clarkes when necessary. Mejia assigned work to the
men in the shop and he assigned them to install cabinets at the
34 Hector Vega has worked as a carpenter for enterprises connected
with Clarke Senior for over 14 years. At the time of the instant hearing,
Hector Vega was still employed by the Respondent. After the election,
Celtic gave him a $2 raise and some health benefits.
35 Jacobson was apparently engaging in hyperbole. The record is
clear that a door closer did not fall on a person, that no one was injured
and no claims or lawsuits were filed.
36 Gordillo testified through an interpreter.
871
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 872
Celtic work sites. Before the election the employees in the
shop discussed the Union. Mejia told the men that the Union
was good and had good benefits but that Clarke Senior did not
let the Union come into the company. Mejia said that the peo-
ple who voted in favor of the Union could be fired. In response
to questions posed by Counsel for the Respondent Gordillo
testified that there was no agreement among the Celtic workers
to abandon their jobs.37 Although Counsel for Respondent
attempted to show that this testimony conflicts with Gordillo’s
statements in the prior representation case, I do not find that
there is any conflict. I observed that Gordillo often seemed
confused by the questions that were translated for him and it
was clear that in some instances he did not give an accurate
answer until a question had been posed more than once and he
had the opportunity of hearing the question again before an-
swering. Thus, I conclude that it would be improper to parse
his answers in the prior proceeding for seeming inconsistencies.
On the General Counsel’s direct case Gordillo testified that
there was a fire in the shop in August 1999. On a Wednesday
Gordillo went to the shop and Mejia told him that he was laid
off and that he should telephone to find out when to come back
to work. Mejia also said that Gordillo “should have expected
this that the people that were with the Union were going to be
left outside.” Gordillo said he saw a new person working as a
laborer. One week later Gordillo telephoned the office to ask
about coming back to work but Clarke Junior told him there
was no work and told him to call back. On the General Coun-
sel’s rebuttal Gordillo recalled that the Monday after the fire he
went to his work site and waited for cabinets to be delivered so
that he could finish the installation he had been working on.
Then he called Mejia at the shop and he learned that there had
been a fire and that the cabinets would not be delivered. Pursu-
ant to Mejia’s instructions Gordillo went to the shop and saw
Mejia, Orellana, Acevedo and Ogando at work separating the
burnt items from those that could be salvaged. Gordillo helped
with this effort for two or three hours. Acevedo was painting
and there was garbage and water all over the floor. Mejia said
that some things could not be moved because the insurance
adjuster had yet to see the damage. Mejia said there would be
no work until the shop was cleaned. Gordillo denied saying it
was not his job to clean the shop. Gordillo called Mejia the
next day and asked whether there was work. Mejia said there
was no work because of the fire. On Wednesday Gordillo went
to the shop at about 8 a m. Mejia did not ask him to stay and
clean up and Gordillo did not refuse to help clean the shop.
Gordillo’s time cards and the payroll records show that he
worked for Celtic on July 19, July 21–23, July 26, and 27.
Gordillo testified in the representation case that after the fire he
was working outside the shop installing cabinets. Doubtless his
recollection about where he was working and on what days was
better closer to the time of the events.
Gordillo was sure that on the Monday of the fire when he
called the shop someone answered and he spoke to Mejia.
There is evidence that the telephone lines to the shop were
damaged in the fire and the Respondent used this to cast doubt

37 Gordillo is not a member of the Union and he did not obtain his
current job through the Union.
on Gordillo’s testimony. However, Gordillo was not asked
what number he had called nor whether he called a cell phone
number in order to reach Mejia at the shop.
Clarke Junior testified that the fire took place on Sunday,
July 18, 1999 and that the fire inspectors gave him access to the
shop on Monday. That Monday, after Clarke had left the shop,
Mejia called him from the shop to report that Gordillo did not
want to help the men clean up the mess in the shop. Clarke told
Mejia to send Gordillo home and to inform him that if he
wanted to work he would have to call the office and help with
the clean up effort. Clarke Junior testified that Gordillo was
fired because he would not help clean up the shop. Further-
more, according to Clarke, Gordillo was on thin ice because he
had been sent warning letters for tardiness and for working too
slowly on a job site and incurring customer complaints. Mejia
and an employee named Luis Orellano had complained about
Gordillo. After being shown Gordillo’s time cards which es-
tablish that Gordillo worked a number of days after the fire,
Clarke Junior changed his testimony and said that Gordillo was
finishing a job at 9 East 40th Street on those days but then re-
fused to help the other employees clean up the shop on the first
day he was assigned there after the fire. Clarke stated that he
himself worked cleaning the shop on weekends and on other
days and that he never saw Gordillo working there.
Clarke Senior testified that he had become dissatisfied with
Gordillo’s work in 1999. Clarke stated that Gordillo was late to
work and he was slowing down; for instance, a molding job at 9
East 40th Street that should have taken one day instead took
four weeks. Gordillo’s time cards show that he worked at 9
East 40th Street from April 27 to May 3. Clarke testified that
Celtic sent Gordillo several warning letters. Gordillo’s time
cards show that he reported to work at 8 but Clarke Senior
stated that he instructed Flores to write “late” on the time cards.
Indeed, all of Gordillo’s weekly time cards are marked “late” in
the same manner between October 6, 1998 and August 2, 1999.
Respondent has not explained why Flores marked Gordillo late
every week for this lengthy period; it seems that the markings
were made in contemplation of the instant proceeding and were
not contemporaneous with their submission for payroll pur-
poses. Other shop employees whose time cards show that they
reported at 8 were not marked late. Clarke Senior testified that
after the fire in the shop there was not work for everyone. A
few employees were out on vacation so a few of the more
knowledgeable employees were kept on to help put the shop
back together again. Clarke Senior said he had made up his
mind about Gordillo long before the fire. He asked Mejia to
instruct Gordillo to call the office so that he could be fired.
Clarke stated that his decision had nothing to do with Gor-
dillo’s Union activity.
Mejia testified that the Celtic shop employees discussed the
Union during lunch. Gordillo said that he had been to Union
meetings and that the Union was OK. Mejia told the employ-
ees that it was up to them whether to support the Union. He
denied that the Clarkes had spoken to him about the Union.
Mejia testified that after the fire the shop employees spent 5 or
6 weeks cleaning up the mess and rebuilding the shop. How-
ever, Gordillo did not join in the clean up effort. Gordillo said
that he was a carpenter and not a laborer. Everyone was upset
341 NLRB No. 116 872
CELTIC GENERAL CONTRACTORS, INC. 873
and Mejia reported to Clarke Junior what Gordillo had said.
Clarke Junior instructed Mejia to send Gordillo home. Mejia
denied telling Gordillo that he was fired because of the Union.
Mejia recalled that Gordillo was always late to work and that
there had been complaints about him. But if Gordillo had
helped to clean the shop he would still have had a job at Celtic.
Frederico Acevedo testified that he worked in the Celtic
woodworking shop for 3 or 4 years. He now works for Mejia at
the shop. Acevedo heard about the Union from Abner Fe-
liciano and Gordillo who described Union meetings. The shop
workers all expressed their own opinions about the Union.
Gordillo said that he would vote for the Union because he
wanted a permanent job, a pay increase and more benefits.
Acevedo testified that he heard Gordillo say that he did not
want to help clean the shop because it was not his job.
Jose Miguel Ogando testified that he worked in the wood-
working shop.38 He heard about the Union from Edgar and
Jack.39 Gordillo was the only employee in the shop who sup-
ported the Union. Mejia said that the men should vote for what
they believed was best. Ogando was not threatened that he
would be fired if he voted for the Union. The Union told him
that it would help him with education and with a higher wage.
Ogando recalled that after the fire the men spent 5 or 6 weeks
cleaning up the shop.
Luis Benjamin Orellano testified that he had worked in the
Celtic shop for 7 years. Orellano said that the men had dis-
cussed the Union once at lunch but that Mejia was not present.
Gordillo said that he would vote for the Union because it of-
fered more money and education. He said if the employees did
not vote for the Union, they would close the business. Orellano
testified that after the fire the men spent 6 months cleaning up
the woodworking shop. Gordillo said that he was not there to
clean up.
Matthew Andrew and Samuel Perry
Matthew Andrew and Samuel Perry are painters. Both have
known Clarke Senior for about 20 years and have worked for
the various companies he has been associated with. Andrew
testified that he heard about the Union from Cedeno and Jose
Manuel Vega and that he attended a number of union meetings.
Perry heard about the Union from Cedeno and he also attended
a number of meetings. Andrew and Perry worked together on a
job at 575 Park Avenue preparing a private residence for paint-
ing. On Friday, June 11, 1999, the work was 85 to 95 percent
completed when Clarke Junior came to the worksite and told
them not to come to work Monday because concrete would be
poured on the floors. Clarke did not say when the men should
resume work. On Monday, and for days thereafter, Perry called
the Celtic office asking for work but he was not given any more
work. Andrew called the office beginning on Tuesday and for
2 weeks thereafter but Janette Flores told him that things were
slow and there was no work. Andrew stated that Celtic had
never laid him off before. Perry had not been working steadily
for Celtic at the time of the layoff.40 Andrew testified that
Celtic had not complained about his work. Both Andrew and

38 Ogando testified through an interpreter.
39 I assume Ogando means Cedeno and Marziliano.
40 Perry had worked full time for Celtic until March 1999.
Perry joined the painters union after their layoffs and found
steady work through their union. In the spring of 2000 they got
part-time work from Celtic.
Clarke Senior testified that Celtic lost the painting contracts
from JP Day because the work was not done on time, there was
dirt in the elevators and the workmanship was sloppy. This
testimony was given in connection with Clarke’s recollection
that in early 1999 “we just lost control” because the men
wanted to join a union and the work slowed down. Clarke said
that Celtic had previously done most of the painting work in 15
or 16 JP Day buildings but at some point the work was given to
another company. Clarke recalled that when an inflatable rat
appeared outside 9 East 40th Street Jacobson told him that he
would not get any further painting work from JP Day because
Celtic had done sloppy work. Jacobson said he could get paint-
ing work done faster and cheaper by others. Clarke also testi-
fied that currently if he gets JP Day painting work he has to use
a designated contractor such as Moustafa Painting. Since the
organizing campaign Clarke has used union contractors such as
Westend Partitions or Florin Painting for preparation and paint-
ing work at other sites because he wanted to avoid having an
inflatable rat outside the worksite. But, Clarke added, he pre-
fers his own crew because they are good workers and “beat any
other company.” Clarke Senior said that he had known Andrew
for years and “It was one of the saddest days of my life that he
didn’t work for me anymore.” Clarke said that Andrew is a
very hard worker. Clarke Senior kept in touch with Andrew
and Perry and whenever he had painting work he offered it to
them.
Clarke Junior testified that Celtic lost the JP Day painting
work because the painters were not delivering at their usual
level and they were not keeping up with the work. However,
when there was more work available in the year 2000 Celtic
used Andrew and Perry instead of other painters because he and
his father were familiar with them and knew them for a long
time. In fact, Celtic had asked them to return to work full time
but by then Andrew and Perry had other jobs and they were
only available on weekends.
Jacobson testified that there was an instance of very bad
painting by Celtic and he took the JP Day painting work away
from Celtic and gave it to Moustafa. He denied that this had
any connection to the inflatable rat.
Celtic records show that beginning in June 23, 1999, and
continuing into the year 2000 it has hired Moustafis Painting
for work at 2 West 45th Street, 800 Third Avenue, and 10 East
40th Street. Beginning in March 1999 and continuing into the
year 2000 Celtic has hired Florin to perform painting at 488
Madison Avenue, 800 Third Avenue and 350 Fifth Avenue.
Abner Feliciano
The General Counsel contends that Respondent discharged
truck driver Abner Feliciano because he is a close relative of
Hector Vega, Neville Vega, Jose Manuel Vega, and Jaffet Ruiz,
all of whom supported the Union, in order to dampen the unit
873
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 874
employees’ enthusiasm for the Union.41 Respondent asserts
that it discharged Feliciano for chronic tardiness.
Abner Feliciano began work as a laborer for Celtic in 1997.
Laborers were required to report to the work site and phone the
office between 7:45 and 8 a.m. Feliciano’s timecards show that
on October 6, 1998 he was assigned to drive the Celtic truck.
He was then given a $2 per hour increase in wages. Josey testi-
fied that he supervised Feliciano and that he had supported
Feliciano’s promotion to truck driver.
According to Josey, the truck driver was scheduled to arrive
at the parking lot next to the shop at 7:30 a.m. unless a different
arrangement had been specified for a particular morning. Early
in the morning, or possibly at the close of business the night
before, Josey would have faxed the truck schedule to the shop
for transmission to the driver. The truckdriver sometimes
loaded the truck the night before or he might load the truck
with materials and supplies in the morning. Then the driver
would proceed to the worksites listed on the schedule. Because
the truck had to make its way through traffic, the truckdriver
was required to report earlier than the men at the job sites.
Although most of the materials used at Celtic worksites were
delivered to the sites by the various suppliers, the Celtic truck
delivered certain materials that had been purchased in advance
and stored and the truck transported finished cabinets from the
shop to the worksites. In addition the truck was occasionally
assigned to pick up supplies and deliver them to the work sites
and to remove trash from the sites. If the truckdriver was late
the men at the jobsites might not be able to begin work.
Josey testified that Feliciano was often 10 to 15 minutes late
in the morning. At first Josey took no action but in November
1998 Josey, Clarke Senior and Flores spoke to Feliciano about
his chronic tardiness in the Celtic office. Josey stated that Fe-
liciano improved from December to mid February and then his
problems with lateness arose again. At various times Josey
cautioned Feliciano about being prompt and urged him to im-
prove. Josey thought of replacing him with another driver but
he did not act because Feliciano’s wife was pregnant and he
had other problems. The record shows that on December 28,
1998 Celtic issued a written warning to Feliciano stating that he
was habitually late and that he had falsified the hours of work
on his timecard. The warning reminded Feliciano that he was
supposed to report at 7:30 a.m. and expressed the hope that he
would improve his performance in the new year. Flores testi-
fied that she typed this document and put it in Feliciano’s pay
envelope. On April 29, 1999 Celtic gave Feliciano a written
warning about habitual lateness. This document was put into
Feliciano’s pay envelope. Josey testified that Celtic laid off
Feliciano for 1 week in April 1999 because of his tardiness. At
that time Josey spoke to Feliciano and explained the reason for
the suspension. On May 18, 1999, Celtic gave Feliciano a
document entitled “final warning” which said, “I have spoken
to you several times before but you are still consistently late in
coming to work. Your working hours start at 7:30 am and not
after 8:00 am. If you cannot improve your performance let me
know.” Josey stated that he spoke to Feliciano about this warn-

41 As set forth above, the driver position was excluded from the bar-
gaining unit by stipulation.
ing and asked if Feliciano understood it. Eventually, Josey
believed that Feliciano was incorrigible and he and the Clarkes
decided to fire him. Feliciano’s time cards show that after the
May 18 written warning he was late two of the five remaining
days before his discharge.
Josey testified that Feliciano was late 70 times between Sep-
tember 1998 and his termination on May 25, 1999. This testi-
mony was no doubt the result of Respondent’s confusion at the
time of the instant trial concerning the actual date in October
when Feliciano began driving the truck.42 Feliciano’s time
cards show that some mornings he arrived very early at 6 or 7
am. According to Josey, on these occasions management had
asked Feliciano to come in very early for a special purpose.
Following a specially early day, Josey would permit Feliciano
to come at 8 a.m. the next day if the schedule permitted. How-
ever, it is impossible to tell from Feliciano’s timecards on what
days he came in late because he was told to do so by a manager.
Feliciano’s timecards bear the notation “late” at many points.
These marks were made by Flores apparently in preparation for
the instant case. Her testimony was flawed in that she claimed
that Feliciano was due to report at 7:30 a.m. from the day he
was hired. Of course, Respondent makes no claim that Fe-
liciano was due at that hour before he was made a truckdriver.
Isaac Mejia, management’s conduit to the employees at the
woodworking shop at the time of the events material to the
instant case, testified that he arrived at the shop at 7:30 every
morning. Mejia stated that as a truckdriver Feliciano was sup-
posed to report to the shop at 7:30. Clarke Junior testified that
Celtic fired Feliciano because he was late all the time and that
the discharge had no relation to any union activity. He and
Josey told Feliciano repeatedly that he had to report at 7:30 am
and they warned and pleaded with him and gave him warning
letters. Clarke Junior said that Feliciano did not vote in the
election and that he had no idea Feliciano was involved with
the Union. Clarke Senior testified that he goes to the shop
every morning and that he was aware that Feliciano was often
late. He often warned Feliciano about his tardiness.
Feliciano testified that he began driving the Celtic truck in
the summer of 1998.43 Feliciano maintained that when he be-
came a truckdriver his hours did not change; he was still re-
quired to report to work at 8 a.m. Feliciano stated that after he
was told about the Union organizing campaign by his cousin
Jose Manuel Vega he attended two or three union meetings and
signed the union petition. Feliciano denied repeatedly that he
had been told to report at 7:30 a.m. and he denied receiving any
oral or written warnings before the final warning of May 18
which he found included in his pay envelope. Although this
warning referred to prior warnings, Feliciano conceded that did
not ask anyone about those. Feliciano did not offer any expla-
nation for the fact that for large stretches of time his timecards
show that he reported at 7:30 a.m.
42 Apparently his pay was not docked when he came in late.
43 Feliciano seemingly did not recall that he did not become a truck-
driver until October 6.
341 NLRB No. 116 874
CELTIC GENERAL CONTRACTORS, INC. 875
III. DISCUSSION AND CONCLUSIONS
A. Status of Abacus
The Board considers four criteria to determine whether two
separate entities are a single employer. These are interrelation
of operations, common management, centralized control of
labor relations and common ownership. Radio & Television
Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255,
256 (1965). No single factor is controlling although centralized
control of labor relations is particularly important. Single em-
ployer status depends on all the circumstances of the case and is
characterized by absence of an arm’s length relationship.
NLRB v. Al Bryant, Inc., 711 F.2d 551 (3d Cir. 1983).
The record in the instant case shows that all of the funds re-
quired to start Abacus were contributed by Celtic without the
execution of any loan documents. Celtic gave Abacus free use
of office space and of the labor of Celtic office personnel.
Celtic gave Abacus free use of any tools it required. Abacus
did not open accounts with suppliers; instead it ordered supplies
under the Celtic name without any requirement that it reim-
burse Celtic. Clarke Senior, the senior construction manager of
Celtic, hired Soto and recommended other employees of Aba-
cus, Clarke Senior, Clarke Junior, Glen Josey and Martin Ker-
nan, all Celtic supervisors, supervised the employees of Abacus
and directed the construction work of Abacus. Soto, originally
hired to work for Celtic, was informed a few days later that he
worked for Abacus because the company had changed its name.
When Clarke Junior was dissatisfied with the work Soto had
done for Abacus he had Celtic employees finish the job and
Soto was transferred to another Celtic worksite. Other employ-
ees were transferred from the Celtic to the Abacus payroll. The
source of the good will required to obtain work from JP Day at
9 East 40th Street was the presence of Clarke Junior the owner
of Celtic and Clarke Senior the manager of Celtic. Abacus took
over the Celtic jobs in the Brooklyn JP Day buildings as a sub-
contractor to Celtic. I conclude that there is no arm’s length
relationship between Celtic and Abacus and that Clarke Senior
and Junior control all aspects of labor relations at Abacus, that
Celtic management and supervisors control the operations of
Abacus and that the operations of the two companies are at the
least interrelated and most likely entirely integrated. I find that
Abacus and Celtic are a single employer.
B. Credibility of Witnesses and Antiunion Animus
In assessing the credibility of witnesses it is always helpful
to have documentary evidence as a guide. Here the documen-
tary evidence does not support much of the testimony of Re-
spondent’s witnesses. Clarke Senior and Clarke Junior claimed
that Celtic lost business because the employees conducted a
slowdown and customers complained of sloppy work. How-
ever, the documents show that Celtic shifted its business to
Abacus and engaged subcontractors. Numerous details testified
to by the Clarkes are contradicted by Respondent’s own re-
cords. The Clarkes’ actions taken soon after they learned of the
organizing campaign and the fact that the Union had substantial
support among the employees showed that they did not want to
deal with the Union. The demand for bargaining was received
on April 22 and Clarke Junior signed the stipulated election
agreement on May 18, 1999. Within 2 weeks Celtic began
transferring funds to Abacus, Abacus began hiring employees
and Abacus began performing work that had once been done by
Celtic. Thus, although the Clarkes claimed that Celtic lost
work from JP Day the record shows that the work was per-
formed by Abacus. Further, the record shows that Celtic con-
tinued to perform substantial work for JP Day but that it used
other subcontractors instead of its own employees. Even
though the Respondent acknowledged that it was more eco-
nomical to perform work with its own employees, Celtic shed
its employees and used subcontractors whose price for the work
necessarily included a subcontractor’s profit. In effect, Celtic
became a general contractor and performed all of its jobs
through subcontractors, including Abacus.
Both Clarke Junior and Clarke Senior attributed a decline in
business and in profits to the Union and to Celtic employees
who desired union representation. However, the tax returns
show that Celtic did more business in 1999 than in 1998 and
according to accountant Ginsberg the company was “in better
shape” in 1999. Further, the tax returns show that in 1999
Celtic increased by threefold its reliance on subcontractors, a
factor which reduced its profits. Nevertheless, Clarke Junior
more than doubled his salary in 1999. Further, Abacus re-
ceived $70,000 in payments directly from JP Day; this amount
was for work which otherwise would have been done by Celtic
employees and paid directly to Celtic.
The testimony of Jacobson about work that Celtic performed
badly or lost was unspecific as to timing and vague as to the
actual cause of the problem. Indeed, Jacobson gave Abacus
work to perform just when, according to Respondent’s theory,
Celtic was falling out of favor with JP Day. But the record
shows that Abacus and Celtic were run by the same family and
so the Clarke’s and Jacobson’s testimony on this point is non-
sensical. My impression of Jacobson was that he was ex-
tremely indignant that the Union had engaged in demonstra-
tions in front of JP Day buildings and that he was hostile to
organizing activity. Jacobson testified that union demonstra-
tions were “childish and obnoxious.” I formed the impression
that Jacobson shaded his testimony to blame the Union for
Celtic’s troubles. I shall not rely on Jacobson’s testimony.
The testimony of Raymond Bennett is quite specific and, in-
deed, it proves too much. Bennett stated that in late spring and
early summer he told the Clarkes to get their act together, to put
more people on the job and to pay attention because it appeared
that Celtic was not reading the documents and walls were being
put in the wrong place. This statement implies that Celtic did
not have enough workers on the job and that supervisors were
not telling the employees where to put up the walls. Bennett
also said materials were not being delivered as required. This
problem results from the failure of the front office to place
orders and coordinate the work and not from any problem with
carpenters or laborers. Thus, Bennett’s testimony is about a
failure of management and supervision and does not show that
Celtic’s employees were deliberately causing the company to
underperform.
Further, the hostility of Clarke Senior and Clarke Junior to
the organizing efforts of their employees is amply demonstrated
by unrefuted evidence. Clarke Junior, the president of Respon-
875
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 876
dent, told Jose Manuel Vega that he felt “betrayed” by “every-
one” . . . that nobody came to him and asked for anything. This
was a clear reference to the Union organizing which was
prompted by the employees’ desire for higher wages and bene-
fits. After Vega replied that he hoped the Union would not
affect his longstanding relationship with the Clarkes, Clarke
Junior responded that it was not a little thing and that he was
“pissed off” that there were union supporters at the construction
sites. When Ruiz asked Clarke Junior why he was not getting
any more work, Clarke Junior responded that Ruiz should get
the big money from the union guys. Clarke Senior testified that
the Union’s demonstrations were a “disgrace.” While he was
testifying, I heard Clarke Senior comment repeatedly under his
breath that the Union and his men had stolen work from him
and ruined him. Barry Clarke, a young man living at home
with his father and older brother at the time of the events mate-
rial to this case, accused Cedeno of being responsible for the
Union’s demonstration in front of one of the worksites, re-
proached him for ingratitude after all Clarke Senior had done
for him and then told Cedeno he was fired. When Clarke Sen-
ior asked Cedeno why he wanted a Union and learned that Ce-
deno wanted benefits, Clarke Senior said that he always had
work while the Union did not and he added that Cedeno should
have spoken to him before the election.
Further, as will be seen from my discussion below, I find that
the record abounds with other examples of the Respondent’s
hostility to its employees’ organizing efforts. Before the elec-
tion Clarke Senior asked Cuello whether he knew that his fam-
ily organized the Union and he told Cuello that the Union was
no good. When Ruiz handed him a union flyer Clarke Senior
called Ruiz “a piece of shit” and said he would rather die than
have the Union. Clarke Senior told Marziliano that the com-
pany could not afford to go Union and that he did not think it
would happen.
Other witnesses called on behalf of Respondent did not in-
spire confidence with respect to their credibility. Flores, pur-
portedly the half-owner and bookkeeper of Abacus, testified in
effect that she knew next to nothing about the company. Fur-
ther, she testified to certain facts about employees’ timecards
which were disproved by other evidence. Flores testified that
Jose Manuel Vega had told her he quit “in person.” But when
questioned about this incident Flores could only say that Vega
had told her the men were going to get a lawyer and join the
Union. She added that Vega would no longer work for Celtic.
Vega denied that he ever told Flores that he was quitting nor
that he was joining the Union. Indeed, it is highly unlikely that
an employee would communicate confidential information of
this nature to an office employee. From these examples and
others in the record, I conclude that Flores was an uncoopera-
tive witness and that she shaded her testimony to favor the Re-
spondent.
Many of the discrepancies between oral testimony and
documentary evidence are set forth in the General Counsel’s
brief. The General Counsel’s brief also discusses instances
where Respondent’s witnesses engaged in inconsistencies,
shifting stories and the like. Although these abound in the re-
cord I have decided not to discuss them all in order to avoid too
lengthy and detailed a decision.
C. Interference with Employee Rights
I credit Soto that during his job interview when he asked
whether Celtic was a union shop, Clarke Senior replied that he
was not interested in union carpenters. I do not credit Clarke’s
denial that he discussed the Union with Soto. Clarke’s hostility
to the Union is well established. The General Counsel con-
tends that Clarke Senior’s words conditioned the employment
of Soto upon nonmembership in any labor organization. I
agree. Clarke Senior and Soto were discussing Soto’s desire to
work for Celtic as a carpenter. When Clarke Senior said he was
not interested in union carpenters he was in effect telling Soto
that he would not get a job if he belonged to the Union. I find
that Respondent violated Section 8(a)(1) of the Act.
There is no factual dispute that Respondent offered Neville
Vega $100 on June 7 and June 8 to work late on an overdue
Abacus job at 9 East 40th Street. Clarke Junior testified that
such an occurrence was “not common” and the record contains
no actual prior example of employees being offered a bonus to
work late. In fact, as set forth above, the Celtic employees
often worked overtime, apparently without compensation for
aught that appears on the payroll records. Furthermore, the
record is replete with testimony from the Clarkes that various
jobs were running late and that customers were complaining of
a work slowdown and of unfinished projects. Nevertheless, in
none of these other cases did Celtic offer its employees a bonus
to stay late in order to complete the work. The General Coun-
sel contends that the extra pay offered to Neville Vega was
intended to discourage him from voting in the election held on
the afternoon of June 8. Respondent points out that the election
was held 5 minutes away from the jobsite and that employees
easily could have voted and returned to work. As the General
Counsel concedes, this is a close question. However, in view
of the well-established antiunion animus of Respondent and the
lack of precedent for offering bonuses I find that Respondent
offered Neville Vega a bonus in order to discourage him from
voting in the election. Neville Vega’s family had spearheaded
the organizational effort and management could assume that he
supported the Union. By making him an unprecedented offer,
the company reasonably conveyed the message that it would
grant him a special benefit if he kept working and skipped the
election. Respondent thus violated Section 8(a)(1) of the Act.
The Respondent did not refute Edgar Cedeno’s testimony
that a few days after the election Clarke Senior asked him
whether he wanted the Union and, upon Cedeno’s affirmative
answer, remarked that he always had work but the Union did
not. Clarke Senior was the general manager of Celtic and in
questioning Cedeno he did not assure him that he need not an-
swer Clarke’s questions. The questioning took place against a
background of employer hostility and discrimination. Cedeno
did not initiate this conversation and he had not openly declared
his support for the Union. Clarke Senior’s comment that he,
unlike the Union, always had work reasonably conveyed the
message that union supporters might not always get work from
the Respondent. The questioning was therefore coercive and
Respondent violated Section 8(a)(1) of the Act. Rossmore
House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. 760 F.2d
1006 (9th Cir 1985); Bourne v. NLRB, 332 F.2d 47 (2d Cir.
1964).
341 NLRB No. 116 876
CELTIC GENERAL CONTRACTORS, INC. 877
I credit Cedeno that after the Union demonstrated at 16
Court Street following the election Barry Clarke accused him of
calling the Union to the demonstration and asked how Cedeno
could do this after all that Clarke Senior had done for Cedeno.
Barry Clarke said that Cedeno was fired and told him to put his
tools down. Although Barry Clarke acknowledged that he had
an argument with Cedeno before the former left Celtic, he
could not recall what the argument was about. He did not deny
Cedeno’s testimony about the contents of the discussion. I find
Barry Clarke’s general testimony that he was instructed not to
discuss the Union with Celtic employees unconvincing in the
face of Cedeno’s specific and detailed recollection.
The hearing officer’s report found that Barry Clarke was
used as a conduit between management and the employees.
The evidence in the instant case shows that this is true: it was
Barry Clarke who told the four carpenters in Brooklyn that only
two of them could stay and work and that two of them had to
go home. As the brother of Respondent’s president and the son
of its principal manager who was used as a conduit to the em-
ployees Barry Clarke spoke with considerable authority and
was the agent of Respondent. I find that Barry Clarke told
Cedeno that he was discharged because he caused the Union to
demonstrate in front of a Celtic jobsite and I find that Respon-
dent violated Section 8(a)(1) of the Act.
D. Lay Off and Discharge of Employees
Jose Manuel Vega
There is no dispute about the contents of the taped telephone
call between Jose Manuel Vega and Clarke Junior which is
excerpted in the instant decision. In that conversation Clarke
Junior clearly expressed his hostility to the organizational ef-
forts of the Celtic employees and his sense that the employees
had betrayed him. During this call, Vega asked for work and
Clarke said he didn’t have any. Significantly, I note that al-
though subject of this conversation was Vega’s request for
more work Clarke did not once state that he himself had called
Vega to offer him work at Flores’ house in Queens but had
been unable to reach him. That effort to reach Vega, purport-
edly made 2 weeks ago, would surely have been fresh in
Clarke’s mind when Vega called to ask for work. If Celtic
managers had really tried to give Vega work at Flores’ apart-
ment but had not been successful in reaching him then Clarke
Junior could not have failed to mention Respondent’s purported
inability to reach Vega in order to give him work. I credit Vega
that the day after he left the Brooklyn job he twice called the
office and asked for work and he was told there was no more
work for him. I note that Clarke Senior’s testimony that he
asked Vega’s brother to give him a message only to be told that
Vega was going to work for Donaldson construction places that
conversation well after the week when Vega was laid off. Vega
testified that he actually collected unemployment insurance for
2 weeks after his layoff and that he found a new job at the end
of June. I do not credit Clarke Junior that Vega did not tele-
phone the office looking for work. I do not credit Flores that
Vega told her that he quit “in person.” Finally, I note that right
before the election Clarke Senior asked Cuello whether he
knew that his family had organized the Union. The evidence
shows that of the family members Jose Manuel Vega was the
most active in support of the Union. I find that Respondent laid
off Jose Manuel Vega on May 26 because he and his family
supported the Union and in order to rid itself of unit employees
in violation of Section 8(a)(3) and (1) of the Act.
Jaffet Ruiz
I credit Jaffet Ruiz that in July 1999 Clarke Junior told him
to get the big money from the union guys and that thereafter he
did not receive any more work from Celtic. I credit Ruiz that
on a second occasion when Ruiz asked Clarke Junior why his
name was not on the list to work, the latter replied that Ruiz
knew what was going on and that he should get the big money
from the union guys. Clarke Junior testified that Ruiz quit but
he failed to deny Ruiz’ version of their conversation. I do not
find that Ruiz quit. I find that the Respondent laid off Jaffet
Ruiz because he supported the Union. There can be no more
firm proof of the Respondent’s motive than Clarke Junior’s
repeated taunts that Ruiz should get the big money from the
union guys. The record shows, and I find, that after it laid off
Ruiz the Respondent gave his work to Otto, a non Celtic em-
ployee. At the same time, the record discussed above shows
that Celtic subcontracted work to Abacus and other companies.
I credit Ruiz that during a union demonstration Clarke Senior
called him a piece of shit and said he would rather die than
accept the Union. Although Ruiz does not speak much English,
he testified that he was able to understand the Clarkes while on
the job. The phrases he attributed to Clarke Senior would be
commonplace on a construction site. I do not credit Clarke
Senior’s testimony that he never talked to Ruiz about the Un-
ion. Clarke’s demeanor on the witness stand and his testimony
convinced me that he felt great hostility toward the Union and
Clarke Senior’s testimony was often inconsistent and contrary
to the documentary evidence. The layoff of Ruiz after July 6,
1999 because he and his family supported the Union violated
Section 8(a)(3) and (1) of the Act.
Marziliano
I find that Jack Marziliano was an impressive and reliable
witness and I credit Marzilinano’s testimony that Clarke Senior
asked him how he would vote in the election and then said that
Celtic could not afford to go Union and that he did not think it
would happen. I do not credit Clarke Senior’s denial that this
conversation took place. The questioning was carried out by
the Respondent’s general manager, the employee did not initi-
ate the conversation and there was no evidence that Marziliano
had openly announced his sentiments in the 1999 union cam-
paign. Thus I find that Respondent violated Section 8(a)(1) of
the Act by interrogating an employee about his vote in an up-
coming Board election. Pleasant Manor Living Center, 324
NLRB 368 (1997).
Marziliano did not deny that he had once told Clarke Senior
that he wished to work in a job that offered a Union pension
and benefits. This desire is entirely consistent with Marzili-
ano’s support of the Union and does not prove Respondent’s
contention that Marziliano quit for a better paying job. Indeed,
Clarke Senior testified that Marziliano continued to work for
Celtic after the conversation in which Marziliano discussed the
benefits of a job covered by the Union. I credit Marziliano that
he asked for one day off to attend a house closing and that
877
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 878
thereafter he reported to the jobsite for several days but when
he called in he was told his name was not on the list. As dis-
cussed above, Soto and other Abacus employees did the work
on the 15th floor of 9 East 40th Street that Clarke Senior had
told Marziliano about. I do not credit Clarke Senior that Re-
spondent could not contact Marziliano for work because it did
not have his current telephone number. The evidence shows
that employees normally call in for work every morning from
their current job site. If Marziliano was on the list to work as
claimed by Clarke Senior then whoever answered the phone in
the office would have told him so. I note that Marziliano’s
layoff took place soon after the election at a time when Celtic
was ridding itself of members of the bargaining unit and trans-
ferring work to Abacus. Thus I find that Respondent laid off
Marziliano after June 24 because he supported the Union in
violation of Section 8(a)(3) and (1) of the Act.
Cuello
I credit Enrique Cuello that before the election Clarke Senior
asked him whether he knew that his family had organized the
Union and then told him that the Union was no good. Although
Cuello does not speak that much English he was able to testify
about simple conversations at the workplace. Further, Clarke
Senior testified that Cuello could understand his instructions on
the job. Clarke Senior’s question to Cuello shows that Celtic
management was aware that the Vega family was organizing
the Union and Clarke’s statement that the Union was no good is
another example of Celtic’s antiunion animus. The General
Counsel requests that I find that Clarke Senior’s statement gave
the impression of surveillance of employees’ union activity and
was therefore an unfair labor practice. However, this statement
was not alleged as a violation in the Complaint and it was not
fully litigated. Because I have found many other violations of
Section 8(a)(1) another such finding would not change the na-
ture of the remedy. Therefore, I decline to find a violation
based on unalleged conduct. I credit Cuello that when he was
taken off the job at 488 Madison Avenue his coworker Edgar
Cedeno suggested to supervisor Martin [Kernan] that Cuello
should be sent to mix cement at 575 Park Avenue but that Ker-
nan refused. This testimony was unrefuted other than by
Clarke Junior who testified generally that there was no other
work for Cuello. However, the evidence discussed above
shows that Celtic had various active worksites at about the time
of the election and there is no explanation for the failure to send
Cuello to the 575 Park Avenue job. I do not credit Clarke Jun-
ior that Hegarty told him the job would be picketed if Cuello
remained on the jobsite. Although Respondent urges that
Clarke would not have known of Hegarty unless he had spoken
to him personally, Hegarty testified that he had telephoned the
Celtic office and left a message including his name and num-
ber. I find that Respondent seized upon Hegarty’s call as a
convenient excuse to rid itself of Cuello. Cuello’s layoff took
place right after the election at a time when Celtic was laying
off members of the bargaining unit who supported the Union
and while it was shifting money and jobs to Abacus. I find that
the Respondent violated Section 8(a)(3) and (1) of the Act by
laying off Cuello after June 14, 1999 because he and his family
supported the Union.
Forrester
I credit Hector Vega that he was unaware of any problems
with Chilon Forrester’s work, that he had not complained about
Forrester’s work and that he was not instructed to watch Forres-
ter. Hector Vega is a long time employee of the Clarkes and he
was still employed by Celtic at the time of the hearing. There-
fore, Hector Vega had no incentive to shade the truth in a man-
ner inimical to the Respondent’s interests. I credit Hector Vega
that there was a problem with the door closers which arose
from the doors themselves, that this problem antedated Forres-
ter’s effort to install the door closer and that no door closers
actually fell down. I credit Forrester that he brought the door
closer problem to the attention of Barry Clarke and that Clarke
did not get him the screws he needed to do the job properly. I
credit Forrester that this incident occurred 2 or 3 months before
Forrester was discharged in late May 1999. The testimony
offered by Respondent with regard to Forrester is revealing in
its inconsistency. Barry Clarke either could not recall or did
not know that there had been a general problem with respect to
door closers and he did not recall that Forrester asked him for
better screws with which to install the door closers. Josey did
recall that Forrester explained that his request for proper screws
had been ignored but Josey blamed Forrester for doing the job
he had been ordered to do. In a non-sequitur, Josey complained
that Hector Vega could have obtained the necessary screws.
Josey did not explain why it was Forrester’s fault that Vega had
not gone to the hardware store. Clarke Senior offered the tes-
timony, contradicted by Hector Vega and Marziliano, that they
had complained about Forrester’s work. Finally, Respondent
offered the preposterous testimony of Jacobson that the door
closer actually fell on a Court Street lawyer. Based on the
timing of Forrester’s layoff on May 24, the conflicting testi-
mony given by the Respondent’s witnesses and the fact that
Respondent shortly began shifting work to Abacus, I find that
the Respondent in fact discharged Chilon Forrester because he
supported the Union and as part of a pattern to rid itself of bar-
gaining unit employees. The Respondent thus violated Section
8(a)(3) and (1) of the Act.
Gordillo
I credit the testimony of Mejia, Gordillo, Acevedo and
Ogando that the woodworking shop employees discussed the
Union when they ate lunch together. It is clear from the testi-
mony of these witnesses that Gordillo was the only shop em-
ployee who attended Union meetings and who spoke openly of
supporting the Union for higher wages and benefits. I find that
Mejia, the conduit between the Clarkes and the men in the
shop, knew that Gordillo supported the Union. Clarke Senior
was in charge of the woodworking shop and he was at the shop
every day. Clarke Senior testified that he made the decision to
discharge Gordillo after the fire. Clarke Senior said there was
not enough work for everyone and he kept only the most
knowledgeable shop employees. Clarke Senior said he chose to
fire Gordillo for tardiness and slow work. As an example
Clarke said that the molding job at 9 East 40th Street took Gor-
dillo 4 weeks to complete; however, Gordillo’s time cards show
that he was at that location from April 27 to May 3, a span of
only 1 week. Moreover, Gordillo’s time cards show that he
341 NLRB No. 116 878
CELTIC GENERAL CONTRACTORS, INC. 879
reported at 8 a.m. but was marked late, purportedly on Clarke’s
instructions, even though other employees whose cards bear the
same 8 a.m. reporting time were not marked late.44 Clarke
Senior did not explain this discrepancy. The written warnings
issued soon after the election refer to falsely claiming time
worked. Gordillo denied that he falsified his time cards. In-
deed, it is hard to see how he could have done so since he was
required to call the office every morning when he got to the
worksite. In any event, Clarke Senior did not say that he de-
cided to fire Gordillo because he falsified his timecards. I find
it most significant that Clarke Senior did not testify that he
decided to fire Gordillo because he refused to clean up the
shop.45 All the other witnesses called by the Respondent testi-
fied that Gordillo was fired for refusing to help after the fire,
among these Clarke Junior, Mejia and Gordillo’s coworkers.
Mejia swore that Gordillo would still have a job if only he had
helped clean the shop. The testimony about Gordillo’s refusal
to clean up the shop was a well-orchestrated effort to justify
Gordillo’s discharge but it was all inconsistent with the testi-
mony of Clarke Senior, the manager who said he made the
decision. In summary, the Respondent offered exaggerated,
unsubstantiated, inconsistent and shifting reasons for the dis-
charge of Gordillo, the only Union adherent in the woodwork-
ing shop. I find that Gordillo was discharged after July 27,
1999 because he supported the Union. Respondent thus vio-
lated Section 8(a)(3) and (1) of the Act.
As discussed above, Mejia was the conduit between Clarke
Senior and Clarke Junior and the Spanish speaking shop em-
ployees, transmitting the managers’ directives and instructions.
Mejia told the employees where to work and what to work on.
Mejia possessed apparent authority to speak on behalf of man-
agement and was an agent of Celtic. Debber Electric, 313
NLRB 1094, 1096 (1994). I credit Gordillo that Mejia told the
shop employees that Clarke Senior would not let the Union
come into the company and that employees who voted for the
Union could be fired. These statements threatening that select-
ing a Union would be futile and that employees would be dis-
charged for choosing the Union violated Section 8 (a) (1) of the
Act.
Andrew and Perry
Respondent’s witnesses testified that there was a slowdown
in and a decrease in the quality of painting performed by Mat-
thew Andrew and Samuel Perry. Clarke Senior recalled slow
work and sloppy conditions and Clarke Junior spoke of a re-
duced level of production. Clarke Senior attributed the slow
down to the fact that “the men wanted to join a union.” Both
Clarkes attributed a purported loss of painting work to the mis-
deeds of their employees and cited this as a reason for laying
off Andrew and Perry and giving the work to subcontractors.46

44 The record establishes that at some jobsites where Gordillo was
assigned to perform installations he could not enter the building until
8:30 a.m. Therefore, his reporting time would not have been 8 a.m.
45 Gordillo himself denied that he refused any management request
to help clean the shop.
46 Clarke Senior also blamed the union demonstrations which began
in mid-July for the June 11 layoffs of Perry and Andrew.
However, most curiously, Clarke Senior said that he pre-
ferred his own crew because they are good workers; he said that
Andrew is a very hard worker and he said that whenever he had
painting work he offered it to Andrew and Perry. Clarke Junior
confirmed that he had asked Andrew and Perry to return to
work full time for Celtic because he and his father were famil-
iar with them. The record shows that starting in the spring of
2000 Celtic gave them part-time work. It is not possible to
reconcile the claims of slow and shoddy workmanship with the
tributes to the work habits of Andrew and Perry. Either these
are two inconsiderate and bad workers or they are excellent
painters whom Celtic was eager to rehire. I believe that Clarke
Senior was sincere when he praised Andrew and Perry. Thus, I
believe that the reason Celtic laid them off just days after the
election was because they supported the Union. The record
establishes that, contrary to the claims of the Clarkes, Celtic did
not lose painting work. Rather, as set forth above, Celtic began
using other companies as subcontractors to perform the paint-
ing work previously done by Andrew and Perry. I find that
Respondent violated Section 8(a)(3) and (1) of the Act by lay-
ing off Andrew and Perry on June 11, 1999.
Feliciano
It is easier to make credibility determinations when it is clear
that one witness lied and the opposing witnesses were truthful
and accurate. Unfortunately, this seldom happens. With re-
spect to Feliciano, the record is full of inaccuracies and eva-
sions from both the Respondent’s and the General Counsel’s
witnesses. Although Feliciano’s discharge presents a very
close question, I have made the difficult credibility determina-
tions based not only on my reading of the record but also on my
actual impressions during the hearing.
The three warning notices addressed to Feliciano which were
produced by Respondent do not seem to have been manufac-
tured for the instant hearing. Feliciano acknowledged receiving
the last of the notices which on its face refers to prior warnings.
Feliciano acknowledged that he did not question anyone about
the reference to prior warnings. I believe that all of the notices
were actually given to Feliciano in his pay envelopes. The first
of these notices was dated in December 1998, well before the
union organizing campaign. It refers to Feliciano’s starting
time as 7:30 a.m. I do not credit Feliciano’s statements that he
did not receive all three written warnings.
I note that Josey, Flores and Feliciano himself did not recall
exactly when he became a truckdriver. Thus, it is hard to fault
Respondent’s witnesses for a failure of recollection shared by
the alleged discriminatee himself. But Flores’ testimony that
Feliciano had been required to report at 7:30 a.m. from the first
day of his employment as a laborer did not help Respondent’s
cause. This is not the only instance where Flores testified with
a willful disregard for the actual truth in an effort to aid Re-
spondent’s case. On the other hand, I find that Josey is a credi-
ble witness with respect to Feliciano. Josey was Feliciano’s
immediate supervisor and he was very certain that once Fe-
liciano became a truckdriver he was required to report to the
shop at 7:30 a.m. This testimony was supported by that of
Mejia and both Clarkes and borne out by the fact that Feliciano
did in fact report at 7:30 on many occasions. Although I have
879
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 880
not credited the Respondent’s witnesses in many other areas,
with respect to Feliciano they offered convincing testimony to
show why the driver was required to report earlier than the
other employees. Josey’s testimony about the many times he
warned and counseled Feliciano orally was especially convinc-
ing. I do not credit Feliciano that when he became a truck-
driver his hours did not change. My impression when he testi-
fied to this effect was that he was not truthful. Moreover,
Josey’s testimony that Feliciano was suspended for a week in
April in an effort to correct his tardiness was not contradicted
by Feliciano. In summary, I find that from October 6, 1998,
Feliciano was required to report regularly at 7:30 a.m. to the
shop unless instructed otherwise. I find that Feliciano was
frequently late and that he was warned orally and in writing. I
find that Respondent discharged Feliciano because he would
not correct his habitual tardiness.
Had I found that a motivating factor in Respondent’s dis-
charge of Feliciano was due to his or his family’s support of the
Union, I would also find that Respondent would have dis-
charged Feliciano because of his incorrigible lateness even in
the absence of union activity. Respondent’s efforts to correct
Feliciano’s tardiness began before the Union organizing cam-
paign and Feliciano’s inability to report at 7:30 am was abun-
dantly clear. Wright Line, 251 NLRB 1083,1089 (1980), enfd.
on other grounds, 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989.
CONCLUSIONS OF LAW
1. Respondents Celtic General Contractors, Inc. and Abacus
Management Corp. constitute a single employer.
2. By informing employees that it would not hire them if
they were members of the Union the Respondent violated Sec-
tion 8(a)(1) of the Act.
3. By offering employees a bonus to work late on the eve-
ning of the election the Respondent violated Section 8(a)(1) of
the Act.
4. By questioning employees about their support for the Un-
ion and how they would vote in the election the Respondent
violated Section 8(a)(1) of the Act.
5. By informing employees that selecting the Union to rep-
resent them would be futile and that they would be discharged
for choosing the Union the Respondent violated Section 8(a)(1)
of the Act.
6. By informing employees that they were discharged be-
cause they had communicated with the Union and caused the
Union to stage a demonstration the Respondent violated Sec-
tion 8(a)(1) of the Act.
7. By laying off Jose Manuel Vega, Jaffet Ruiz, Jack Mar-
ziliano, Enrique Cuello, Matthew Andrew and Samuel Perry
because they supported the Union the Respondent violated
Section 8(a)(3) and (1) of the Act.
8. By discharging Chilon Forrester and Mario Gordillo be-
cause they supported the Union the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
9. The General Counsel has not shown that the Respondent
engaged in any other violations 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 laid off and dis-
charged employees, it must offer them reinstatement and make
them whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of lay off or discharge to
date of proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended47
ORDER
The Respondent, Celtic General Contractors, and Abacus
Management Corp., a single employer, New York, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Informing employees that it will not hire them if they are
members of the District Council for New York City and Vicin-
ity, United Brotherhood of Carpenters and Joiners of America,
AFL–CIO, or any other union.
(b) Offering employees a bonus to work late on the day of an
election.
(c) Questioning employees about their support for a union or
how they will vote in an election.
(d) Informing employees that selecting a union would be fu-
tile and that they will be discharged for selecting a union to
represent them.
(e) Informing employees that they are discharged because
they communicated with the Carpenters Union, or any other
union, and caused the Union to stage a demonstration.
(f) Laying off and discharging employees because they sup-
port the Carpenters Union or any other union.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Jose
Manuel Vega, Jaffet Ruiz, Jack Marziliano, Enrique Cuello,
Matthew Andrew, Samuel Perry, Chilon Forrester, and Mario
Gordillo 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 Jose Manuel Vega, Jaffet Ruiz, Jack Marziliano,
Enrique Cuello, Matthew Andrew, Samuel Perry, Chilon For-
rester and Mario Gordillo whole for any loss of earnings and

47 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
341 NLRB No. 116 880
CELTIC GENERAL CONTRACTORS, INC. 881
other benefits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful layoffs and discharges,
and within 3 days thereafter notify the employees in writing
that this has been done and that the layoffs and discharges will
not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents all payroll records, social security payment re-
cords, timecards, personnel records 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.
(e) Within 14 days after service by the Region, post at its fa-
cility in New York, New York, copies of the attached notice, in
English and in Spanish, marked “Appendix.”48 Copies of the
notice, on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized represen-
tative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since May 21,
1999.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
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 any union
Choose representatives to bargain with us on your be-
half

48 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.”
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT discharge, lay off or otherwise discriminate
against any of you for supporting District Council for New
York City and Vicinity, United Brotherhood of Carpenters and
Joiners of America, AFL–CIO, or any other union.
WE WILL NOT coercively question you about your union sup-
port or activities.
WE WILL NOT inform you that union members will not be
hired.
WE WILL NOT offer you bonuses to work late on the day of an
election.
WE WILL NOT inform you that selecting the Union would be
futile and WE WILL NOT inform you that you will be discharged
for selecting the Union to represent you.
WE WILL NOT inform you that you are discharged for calling
the Union and asking the Union to demonstrate at a jobsite.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Jose Manuel Vega, Jaffet Ruiz, Jack Marziliano, Enrique
Cuello, Matthew Andrew, Samuel Perry, Chilon Forrester and
Mario Gordillo 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 privi-
leges previously enjoyed.
WE WILL make Jose Manuel Vega, Jaffet Ruiz, Mack Marzil-
iano, Enrique Cuello, Matthew Andrew, Samuel Perry, Chilon
Forrester and Mario Gordillo whole for any loss of earnings
and other benefits resulting from their layoff or discharge, less
any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful layoffs and
discharges of the employees named above, and WE WILL, within
3 days thereafter, notify each of them in writing that this has
been done and that the layoffs and discharges will not be used
against them in any way.
CELTIC GENERAL CONTRACTORS, INC.

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