Success Village Apartments

National Labor Relations Board - Administrative Judge OpinionsJan 25, 2006

34-CA-011110 (N.L.R.B. Jan. 25, 2006)

JD(NY)–04-06 Bridgeport, CT UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES NEW YORK BRANCH OFFICE SUCCESS VILLAGE APARTMENTS, INC. and CASE NOS. 34-CA-11110 INTERNATIONAL UNION, UNITED 34-CA-11164 AUTOMIBLE, AEROSPACE & 34-CA-11165 AGRICULTURAL IMPLEMENT WORKERS 34-CA-11183 OF AMERICA, LOCAL 376, AFL-CIO 34-CA-11184 34-CA-11207 34-CA-11234 Darryl Hale, Esq., Counsel for the General Counsel Marc L. Zaken, Esq., Counsel for the Respondent DECISION Statement of the Case Raymond P. Green, Administrative Law Judge. I heard this case in Hartford, Connecticut on October, 17, 18, 19 and 25, 2005. The charge and amended charges in 34-CA- 11110 were filed on March 9, March 23 and July 7, 2005. The charge in 34-CA-11164 was filed on April 26, 2005. The charge and amended charge in 34-CA-11165 was filed on April 26 and August 5, 2005. The charge in 34-CA-11183 was filed on May 16, 2005. The charge in 34-CA- 11184 was filed on May 16, 2005. The charge in 34-CA-11207 was filed on June 9, 2005. The charge in 34-CA-11234 was filed on July 26, 2005. The charge in 34-CA-11165 was withdrawn during the hearing and certain allegations regarding a suspension of David Leone were also withdrawn. A Consolidated Complaint was issued on August 11, 2005 and as amended, alleged: 1. That on or about March 1, 2005, the Respondent refused to allow Luis Andrade to purchase an apartment at its facility because of his union affiliation. 2. That on or about March 10, 2005, the Respondent by Francis Callahan, its Property Manager, told employees that it would not allow them to purchase an apartment because of their union affiliation. 3. That on or about April 8, 2005, the Respondent by Phil Segnari, its Maintenance Manger, threatened employees with unspecified reprisals because of their union affiliation. 4. That on or about April 15, 2005, the Respondent, for discriminatory reasons, issued a 30 day suspension to Dennis Brown. JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 2 5. That the Respondent violated Section 8(a)(1) & (5) of the Act by making the following unilateral changes without prior notice and without affording the Union an opportunity to bargain. (a) On December 3, 2005, the Respondent implemented a mandatory on-call overtime policy regarding snow removal assignments. (b) Since on March 1, 2005, the Respondent has prohibited employees from purchasing apartments at its facility. (c) Since on March 4, 2005, the Respondent has denied sick leave to employees. (d) On April 16, 26, 2005, the Respondent implemented a new telephone answering policy. Based on the entire record, including my observations of the demeanor of the witnesses and after considering the arguments of counsel, I hereby make the following Findings and Conclusions I. Jurisdiction The parties agree and I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. Alleged Unfair Labor Practices A. Background The Respondent is a residential cooperative consisting of 923 apartments in Connecticut. It has a nine member Board of Directors who are also residents. In the summer of 2001, the Board retained a new management company. As described in a previous decision by Administrative Law Judge Steven Davis, this new company was retained because one of the Board’s concerns, “was its belief that the employees were not working hard and were inefficient, and attempts to correct that situation in the past were met with vigorous Union opposition, including the filing of grievances.” Regarding the Union’s attitude toward the Union, Judge Davis summarized the evidence presented to him and concluded: There was a dislike of the Union because of its aggressive stance regarding grievances. If the Respondent sought to oppose a grievance it had to incur legal fees and increased costs. The Board believed that it was powerless to oppose the Union, and therefore resented it and its members. In retaining Callahan and Zaken, the Respondent sought to “oust” the Union, and if it could not do so, it would attempt to change its relationship with the Union. Callahan testified repeatedly that he was hired upon a promise to change the relationship between the Respondent and the Union and to change the operation in order to make it more efficient. He sought to make these changes immediately upon his hire, and, as testified repeatedly by Callahan, affect the employees directly. The Union, since about 1975, has represented certain employees of the Employer in a JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 3 unit defined as: All production, maintenance and clerical employees, including plumbers, electricians, boiler tenders, firemen, general maintenance, file clerks and bookkeepers, regularly employed by the Respondent, but excluding foremen, managerial employees, confidential secretaries, and guards and supervisors as defined in the Act. The most recent collective bargaining agreement ran from June 1, 1999 through May 31, 2002. Negotiations for a new contract commenced on or about May 15, 2002 when the parties exchanged contract proposals. The other meetings were held on May 23, July 15, July 22 and August 12, 2002. The Employer declared an impasse on the last date and the Union thereafter wrote a letter to the Respondent expressing its position that there was no impasse and asking for face-to-face negotiations. As of the dates of this hearing, the parties have not met and have not agreed to a new contract. As of the time of the events described here, Frank Callahan was the Property Manager and Phillip Segnari was the Maintenance Manager. Dennis Brown was the Union’s shop chairman. (At the time of the hearing, Brown had been out on disability leave for some time). On June 30, 2004, Judge Davis issued a Decision in a group of cases involving the same parties. (Case Nos. 34-CA-9889 et al.) That set of cases dealt with a group of allegations involving conduct occurring from October 2001 through October 2003, with most taking place in 2002. 1 Although recommending that some of the allegations be dismissed, The ALJ found that the Respondent violated the Act in the following respects: 1. That the Respondent illegally failed to bargain in good faith by refusing to bargain in face-to-face meetings with the Union. 2. That the Respondent made various unilateral changes 2 without affording the Union an opportunity to bargain, despite its assertion that the parties had reached an impasse. 3 Continued 1 Five separate Complaints in those cases were issued on February 28, April 30, June 10, September 4 and September 24, 2003. Those were eventually consolidated for a hearing. 2 The illegal changes involved; (a) eliminating employees’ right to make long distance phone calls to union officials; (b) eliminating employees’ rights to use the copier and facsimile machine for potential grievance documents; (c) imposition of discipline for failure to use time cards correctly; and (d) implementation of an assigned locker and lock policy. Judge Davis concluded however, that the Respondent had not violated the Act with respect to an allegation that the Respondent had unilaterally reduced the paid time of employee union officials who were engaged in representation functions. 3 In addition to finding no impasse, the ALJ concluded that the Respondent could not rely on an impasse where the bargaining had been impeded by the fact that it had imposed a non- mandatory condition on the bargaining. (i.e. the refusal of the Union to agree to its condition that bargaining take place through an intermediary, with the Respondent and the Union in separate rooms). The ALJ rejected the Respondent’s defense that the zipper clause in the expired contract constituted a waiver. He concluded; (a) that the management rights and zipper clauses, although precluding bargaining during mid-term for any new subjects, did not permit the Respondent to unilaterally change existing terms and conditions of employment without JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 4 _________________________ 3. That the Respondent violated Section 8(a)(1) & (5) by in some cases unilaterally subcontracting out unit work. (In other instances, the ALJ concluded that work which had been subcontracted out was either not work traditionally done by bargaining unit employees or was subcontracted out in emergency circumstances). 4. That the Respondent violated Section 8(a)(1) & (3) of the Act by in some cases, laying off, suspending, issuing warnings, harassing or imposing more onerous working conditions on employees because of their union activities. 4 5. That the Respondent violated Section 8(a)(1) of the Act by denying the request of an employee for union representation when he had reason to believe that he would be subject to discipline. Assuming that Judge Davis’ Opinion regarding the absence of an impasse is upheld, the relationship between the Union, the employees and the Employer at the time of this hearing would be that the operative terms and conditions of employment would be the terms and conditions, (except for union security, dues check-off and arbitration provisions), that existed at the time that the impasse was declared. That is, the unilaterally imposed terms that the Employer implemented after its last offer would not be operative as that would have violated Section 8(a)(5) of the Act. Therefore when we talk about unilateral changes in the present case, we must measure any alleged change from the terms and conditions that existed under the old contract and prior to the Employer’s declaration of impasse. B. The Alleged Violations 1. Snow Removal The General Counsel contends that in January 2004, the Respondent, unilaterally changed its policy and practices regarding snow removal. Consequently, the General Counsel asserts that the Respondent violated the Act by issuing disciplines issued to Brown and Leone on March 4, 2005, in part, because they failed to call in at 4:00 a.m. for snow removal duty in relation to snow conditions that were expected for February 21 and 23, 2005. The Respondent contends that since at least 2001, the Respondent has, consistent with the terms of its collective bargaining agreement, insisted on its right to require that maintenance employees work mandatory overtime when a snow storm is expected and to show up early in the morning in order to have snow cleared before the residents leave for work. As to the various memoranda that were issued during the relevant period of time, the Respondent argues that these merely reminded employees of existing policies and of their obligation to report to work, on a mandatory basis, when snow removal was anticipated. It argues that to the extent bargaining and; (b) that since the contract had expired, so had the management right’s clause. 4 The employees to whom discrimination was found were Dennis Brown, Lloyd Reid and DeSousa. (The largest portion involved Brown). Allegations involving an employee named Teja were dismissed as was an allegation that Reid was assigned to more onerous work. In addition, some allegations involving Brown were also dismissed. For example Judge Davis found that the Respondent acted lawfully when it issued a warning to Brown for talking to residents for extended periods of time. He also found that Brown was properly suspended when he failed to follow an order to return to work. Thus, although Judge Davis, on balance, concluded that Brown was more sinned against than sinning, he did not conclude that Brown was an exemplary employee. JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 5 that anyone might consider that a change occurred when a memorandum stated that the employees were to call in at 4 a.m., instead of management calling them at 4 in the morning, this should be considered as merely administrative and trivial. The last extant collective bargaining agreement has several provisions relating to overtime. Article 5. Section 5(d) reads: All time worked on one of the holidays enumerated in Article 6, Section 1, shall be paid for at double time the employee’s regular hourly rate, in addition to the holiday pay. Article 5 Section 6 reads: Employees shall have an obligation to respond to a reasonable number of call- backs to perform emergency work. Any employee called back for such emergency work shall be guaranteed a minimum of at least 1 hours’ pay at the rate of time and one-half his regular hourly rate for all hours worked. The Co-op shall post a call back list on a bulletin board… and all employees who wish to be called back for emergency work must sign up and indicate their name and telephone number. Notwithstanding a practice of utilizing a sign up sheet for voluntary overtime, used for plumbing or other repairs, the Respondent contends that this was never used during its tenure for snow removal. The Respondent argues that using a sign up sheet should not be construed as meaning that notwithstanding the explicit terms of the contract, the Respondent had, in practice, viewed overtime, for any reason, as being voluntary. I am inclined to agree that when a snow storm is immanent, this situation properly should be construed as an emergency. With people trying to leave for work, and with the prospect of ice and snow on sidewalks and streets, it is hard for me to imagine that any reasonable housing managers would not view such a situation as requiring immediate action. (Consider the opportunities for liability). I therefore agree with the Respondent that the immanent prospect of a snow storm constitutes an emergency situation as defined by the contract and therefore it is the type of situation that permits the employer to require its employees to report to work, on a mandatory basis, at the earliest possible time. Frank Callahan testified that from the time his firm was contracted to manage the property, he has, when snow was immanent, had the practice of telephoning the maintenance employees at 4 a.m. with instructions that they arrive at 5 a.m. He testified that this overtime was mandatory. This was, in fact, confirmed by Reid, the Union’s shop steward. On January 28, 2004, the Respondent issued a memorandum stating that each employee was obligated to work overtime according to the needs of the Co-op per Article 5, Section 7. (It then goes on to assign all employees, including Dennis Brown, to specific snow removal job assignments). I note here that this memorandum was issued to the employees outside the 10(b) statute of limitations period. That is, it was issued more than six months prior to the filing of the charge in this case. 5 5 The Respondent argues that if the General Counsel’s theory is that it made a unilateral change that involved requiring overtime mandatory for snow removal then this would be barred by the statute of limitations. JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 6 That the Respondent treated snow removal as requiring mandatory overtime is also shown by warnings issued to Brown and Antonio Taja on February 9, 2004 for not reporting to work on two snowstorms on December 6 and 13, 2003. (Also outside the 10(b) period). In December 2004, the Respondent issued yet another memorandum stating that overtime for snow removal was mandatory. Each employee is obligated to work overtime, according to the needs of the Co- op, per Article 5, Section 7…. In the event of snow overnight, we expect to notify each employee by telephone at 4:00 a.m. and we then expect each employee to report for duty by 5:00 a.m. If there is any reason why any employee cannot report for duty when notified, please discuss this situation with me personally within the next 7 days. A substantially similar memorandum with specific assignments for each employee, including Brown, was issued on February 7, 2005. General Counsel Exhibit 18 is a memo dated February 18, 2005 (Friday), in relation to an expected snow storm. Please call the answering service on Monday at 4:00 A.M. to see of you will be needed here at 5:00 A.M. for snow removal. Please be certain to report at 5:00 AM so that the roads will be clear for members going to work. Please sign below indicating you’ve received this notice. The testimony was that this particular notice was posted before the end of day on Friday because the weather forecast was for snow. Phil Segnari testified that the reason he asked the employees to call into the answering service was because some of the employees complained that they had children asleep and did not want them to be disturbed by a call from the company. He testified that no one ever called in and he continued to call the employees before 5:00 a.m. General Counsel 19 is memo dated February 23, 2005, (Wednesday). This reads: Please call the answering service on Thursday and Friday at 4:00 A.M. to see if you will be needed here at 5:00 A.M. for snow removal. Please be certain to report at 5:00 A.M. so that the roads will be clear for members going to work. Please sign below indicating you’ve received this notice. The exhibit was signed by David Leone and three others. General Counsel Exhibit 20 is a memo dated February 28, 2005 which is essentially the same text as GC 18 and 19 but refers to Tuesday (March 1), for an anticipated snow storm. General Counsel Exhibit 21 is a memo dated March 23, 2005. This exhibit reads as follows: Call Ans Serv @ 4 a.m. tomorrow 3-24 to get instructions for snow removal. If yes report @ 5 a.m. The credible evidence convinces me that the memoranda issued within the 10(b) period do not represent any material change in the Company’s past practice regarding snow removal. It is clear to me that snow removal has always, and quite rightly, been treated as an emergency JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 7 situation, which within the definition of Article 5, would give the employer the right to assign mandatory overtime. The credible evidence also convinces me that since at least the beginning of 2004, (outside the 10(b) period), the Employer has had the practice, whenever a snow storm was forecast, of calling employees early in the morning to have them report to work by around 5 a.m. To the extent that the Respondent “changed” this and issued memoranda in late 2004 and 2005 to have the employees call into the answering service by 4 a.m., this change is not in my opinion material. I therefore, conclude that in this respect the Respondent has not violated Section 8(a)(1) & (5) of the Act, and to the extent that employee received warnings because they failed to call in or show up in a timely manner for snow removal duty, I recommend that the Complaint be dismissed. 2. Sick Leave The General Counsel contends that the Respondent unilaterally changed its existing practice and policy relating to sick leave. In this regard, the General Counsel points to the March 4, 2005 warnings issued to Brown and Leone wherein management refused to accept their assertions that they did not come to work because of illness and refused to pay them sick leave for the days missed. The facts leading up to this alleged change are essentially the same as those leading up to the snow removal issue in that these two employees did not report for snow removal on February 21 and 25, 2005. On Friday, February 18, the employees were told by Segnari that a snow storm was expected for Sunday evening and that if it occurred they would all be required to report to work early on Monday, February 21. The credible evidence is that Brown said that he would be away in Vermont as he considered Monday to be a holiday.6 Segnari replied that Monday would be a mandatory work day. Brown did not show up for work on Monday (it did snow), and did not call in. He returned to work on Tuesday and was asked by management why he was not present the day before. Brown said that he had gone to Vermont. Callahan and Segnari, for reasons that I don’t consider particularly relevant, did not believe him. Leone also did not report to work on February 21, 2005 and claimed that he was sick. On February 23, 2005, the Company issued another memorandum directing that the employees call in on February 24 and 25 at 4:00 a.m. for a possible snow storm. On Thursday, February 24, Segnari told the employees that on Friday morning, (February 25), they had to call in and be ready to work for snow removal by 5:00 a.m. Brown told Segnari that he would have a problem coming in by 5 and Segnari responded that he had to be in by 5 or he would be in big trouble. On Friday, February 25, 2005, Brown called the answering service at 5:00 a.m. and left a message claiming that he was sick and would not be in for work. In this regard, I conclude 6 Even if Brown is correct that February 21 should be considered a contractual holiday, that does not mean that the Employer could not, in emergency situations, require its employees to work on a holiday. All it means is that it would have to pay an additional premium. JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 8 that Brown was not, in fact, sick and that on this and other occasions, (for example on April 8), he made claims of illness in order to avoid job duties that he didn’t want to do. On February 25, 2005, Leone also called in at around 4:00 a.m. and reported that he too was sick. Leone asserted that he nevertheless reported to work at around 6:30 a.m. as he was feeling better. Nevertheless, there is no other evidence that Leone actually did go to work on that day and his time card was not punched at all. Subsequently, Callahan and Segnari met with Leone and questioned him about his alleged illness on February 21 and 25. After some discussion, they told Leone that they did not believe him. I don’t believe him either. On March 4, 2005, the Respondent issued a suspension notice to Leone which read: As you are aware, a memo was distributed … on February 18, advising them to call in at 4:00 A.M. on February 21, for possible assignment of snow removal at 5:00 A.M if there was a snow storm as was expected. At about 3:30 A.M. on February 21, you called in sick. On February 25, we posted a sign that all maintenance employees were to call in at 4:00 A.M. on February 24 and February 25 for possible assignment of snow removal at 5:00 A.M. on those days. On February 25, you called in sick at around 6:39 A.M. and did not report for work. We do not accept your excuses for failing to report to work for snow removal on February 21, 25. You are required to report to work for a reasonable amount of overtime, and to report to work in emergencies, such as for snow removal. Since this is your first disciplinary suspension you will be suspended for one day on March 10, 2005…. On March 4, 2005, the Respondent issued a one week suspension notice to Brown which read: As you are aware, a memo was distributed to all maintenance employees on February 18, advising them to call in at 4:00 a.m. on February 21 for possible assignment of snow removal at 5:00 a.m. if there was a snow storm as was expected. You did not call in on February 21 as instructed. About 5:30 a.m. on February 21, I called you at home to come in for snow removal. Your girlfriend advised me that you had driven to Vermont for the weekend and were not available. On February 23, we posted a sign that all maintenance employees were to call in at 4:00 a.m. on February 24 and February 25 for possible assignment of snow removal at 5:00 a.m. on those days. On February 25, you called out at around 5:03 a.m. and did not report for work. We do not accept your excuses for failing to report to work for snow removal on February 21 and 25. You are required to report to work for a reasonable amount of overtime, and to report to work in emergencies, such as snow removal. You have not worked a reasonable amount of overtime, nor have you reported to work for overtime in two years. Accordingly, you will be suspended. Since your last disciplinary suspension in October 2003 was for 1 day (as upheld by ruling of JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 9 the NLRB; you will be suspended for 1 week from March 7, 2005 to March 11, 2005. You are to report for work on March 14, 2005. Further incidents will subject you to further discipline. You will not be paid a sick day for February 25, 2005. The last extant union contract had provisions providing for holidays, vacations and sick leave. By definition, since the sick leave provisions of the contract were separate from the vacation provisions, it is reasonable to conclude that they were intended to cover differing situations and were not intended to be interchangeable. In short, the normal intention of sick leave is to allow employees to take days off, with pay, when they are sick. If the parties intended that employees could simply use their sick leave in lieu of vacation leave, there would be no reason to write separate contractual provisions. And although it is not uncommon for an employer to trust employees’ assertions that they are sick when they claim to be so, this does not mean that it is unreasonable, improper or contrary to past practice when an employer refuses to pay an employee for sick leave when there is good reason to believe that an employee’s assertion is a sham. In the present case, the Employer had good reasons to believe that the sick leave claims of Brown and Leone were not true and that they used these assertions to avoid snow removal duties that were assigned to them and to all of the other employees. I do not accept the argument that the Employer was obligated, as a matter of past practice, to accept the false assertions by Brown and Leone and I do not conclude that the Employer’s disciplinary actions on March 4, 2005, amounted to a unilateral change of a term or condition of employment. To this extent, I therefore recommend that these allegations of the Complaint be dismissed. 3. Telephones The General Counsel alleges that in April 2005, the Respondent made a unilateral change in its telephone answering policy without offering to bargain with the Union. The General Counsel is relying on a memorandum issued to the office employees basically advising them that they were not to let the phone ring more than four times and that if they receive a second call while talking to the first caller or talking to someone at the cash window, they were to excuse themselves from the first caller, answer the new call within four rings, ask the second caller to hold, and then return to the second caller after finishing the first call. In support of this allegation, the General Counsel called Ceil Johnson to testify about the memorandum and the changed policy. She testified however, that the memorandum essentially constituted the current practice of the people in the office and that they didn’t need to have the policy in writing because “we know what our job was and we did it.” As to her practice before and after the memorandum, Johnson testified that she has not changed the way she answered the telephones. In short, I conclude that the General Counsel, in this instance, has failed to show that there was any material change in telephone policy and I conclude that this allegation of the Complaint should be dismissed. 4. The April Suspension of Dennis Brown General Counsel Exhibit 23 is 30 day suspension that was issued to Brown on April 14, 2005. It reads: JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 10 You were told by Phil Segnari to bring two transmissions to George’s Junk Yard. Instead, in direct violation of Mr. Segnari’s order, you told Mr. Segnari that you brought the transmissions to the dump. You advised Mr. Segnari that you hid the transmissions while dumping them. As you know, the dump is not the proper place for the transmissions and they should not have been brought to the dump. On April 12, 2005, you were observed talking to a resident for approximately 35 minutes during your work time. You have been previously issued warnings for talking to residents while on work time. With respect to this suspension, which the General Counsel alleges was motivated by Brown’s union activity, Brown conceded that the second part of the document was correct. That is, he conceded that he did talk to a resident for about 35 minutes, and as previously noted, he had received a previous warning for talking to residents during his work time. However, Brown does contest the accuracy of the first paragraph of the suspension notice. But in this regard, Brown’s version is not that much different from the Employer’s. And even by his own account, Brown’s actions could be construed either as deliberately insubordinate or recklessly negligent. On April 11, 2005, Brown was directed to remove two discarded automobile transmissions. Normally, bulk trash would be taken to the Bridgeport transfer station, but some time previous, Leone was told by the person at the transfer station that they would not accept transmissions because they contained oil. Leone told Segnari about this and on this occasion, Segnari told Brown to take the transmissions to George’s junk yard instead of to the transfer station. Before removal, Leone also told Brown that the transmissions would not be accepted at the transfer station. (The City of Bridgeport which allows, under permit, for enterprises like Success Village to dump some of their bulk waste, excludes “hazardous waste” which includes crankcase oils). Nevertheless, instead of taking the transmissions to George’s junk yard, Brown took the transmissions to the transfer station where he dumped them. On or about April 13, 2005, Segnari asked about the transmissions and he credibly testified that Brown said that he had snuck them into the transfer station. Although acknowledging that he was told by Segnari and Leone that the transfer station would not accept the transmissions, Brown testified that he thought that he had the option of taking them to George’s junk yard or to the transfer station. Brown testified, that in his opinion, he had not being given an order, but merely a suggestion. The General Counsel points out that in the prior unfair labor practice cases, the Respondent was found to have illegally taken certain adverse actions against Brown because of his union activity. The Respondent points out that even if that is true, the ALJ in the prior cases also found that certain other disciplinary actions taken against Brown were warranted and were not illegally motivated. That there have been previous findings of anti-union animus and in particular of illegal actions against Brown, does help the General Counsel’s overall case. Given the past proven illegal conduct of the Employer, the General Counsel is entitled to a presumption that the Respondent’ past animus carries over to the events alleged as violations in the present case. Having said that this does not mean that the General Counsel is entitled to anything more than a presumption. The Respondent is entitled to show that the present events were not motivated JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 11 by union consideration. In the present case, I am convinced that the 30 day suspension issued to Brown was warranted and not motivated by any union considerations. Brown admits that portion of the suspension letter where he was charged with talking to a resident for an extended period of time during work hours. Further, this was not the first time he had received a legitimate and non- discriminatory warning about that subject. Second, Brown admits that he was told not only by his supervisor but by his co-worker, that the transfer station would not accept the transmissions. In essence Brown testified that he chose to ignore the instruction to bring them to George’s junk yard because he felt that he had the choice of where to bring them. 5. Real Estate For many years, many of the bargaining unit employees have purchased and lived in apartments at Success Village. At the time of the hearing in this case, some of the employees lived there and some did not. Some like Brown lived elsewhere, albeit owning an apartment within the Co-op which was utilized by his son. The number of employees living at Success Village is relatively small compared to the entire population. By the terms of the Bylaws, although cooperators are members of the corporation, employees are precluded from membership on the Board of Directors. There was no evidence, one way or the other, to show that employees have ever been given any price discount compared to members of the general population. Nor is there any evidence to show whether employees are given some kind of preference in terms of any waiting list for apartments or for the types of apartments that are available. Although there was some testimony from Union agent Michael Langston that the apartments were somewhat cheaper than nearby apartments in the City of Bridgeport, this testimony was not fleshed out in any detail. There was no evidence to show whether apartments within the Co-op were less or more desirable than similar apartments outside the Co-op. (For example, by virtue of comparative school districts). It may fairly be said, however, that having some of the maintenance employees within walking distance of their jobs would be beneficial to the employees, management and the people who live in the Co-op. During the last set of negotiations that ended on September 30, 2002, the Company made a proposal that would have prohibited employees from buying apartments. The Union rejected that proposal. When the Company declared an impasse, it specifically wrote that it did not intend to implement proposal 40, which was its proposal prohibiting employees from buying apartments. Luis Andrade was employed as a groundsman since June 5, 2003. In March 2005, he applied to purchase a three bedroom apartment at the Co-op. When Segnari told him that there would be no problem in getting an apartment, Andrade made a $450.00 payment for an appraisal fee. Nevertheless, when Segnari told Callahan about Andrade’s intention, Callahan said that the Board no longer wanted employees living at the Co-op. Callahan therefore told Segnari to arrange to have Andrade’s $450.00 returned to him. Ceil Johnson testified that on or about March 10, 2005, she spoke to Callahan who told her to make out a check to Andrade for $450.00. She testified that when she asked what it was about, he told her that the Board did not want people who were employed by the Co-op to live JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 12 there. She testified that she replied that this was strange because when the Co-op was founded, it was mostly union people. (She is also a resident at the Co-op). After some prompting, Johnson testified that Callahan told her that “the people here in the Co-op don’t want union people living here.” In this regard, I thought that Johnson was a credible witness whose candid testimony helped both sides on different points. Callahan testified that after dropping proposal 40, the Board of Directors still felt that employees of the Co-op should not live in the Co-op because it presented a conflict of interest. But it is evident that if this was a policy that was thought about or discussed by management, it was never announced or implemented as a policy until Andrade was notified that he could not purchase an apartment. (In March 2005). There is no evidence to suggest that the Respondent offered to bargain about this change of policy. The Union, by letter dated April 14, 2005, protested the Respondent’s refusal to allow Andrade to purchase an apartment. It requested that the Respondent rescind this decision and that it bargain about it. On May 5, 2005, the Respondent rejected the Union’s April 14 request. The Respondent asserts that the reason it made this change was to avoid a conflict of interest inherent in employees who purchase apartments also being voting members of the cooperative. I don’t buy this argument since they would be a small percentage of the voting members and would not, in any event, be allowed to be on the Board of Directors. For many years, the Respondent had no difficulty in letting its employees purchase apartments. It seems that it only recognized this conflict of interest when bargaining got tough and the Respondent wanted to obtain substantial concessions from the Union. It seems to me that whether this set of events is alleged as an 8(a)(3) or an 8(a)(5) violation makes no substantial difference. If, as contended by the General Counsel, the purchasing of real estate by employees from their employer is a term and condition of employment, then the Respondent by unilaterally changing that term, would violate Section 8(a)(5), irrespective of its motivation.7 By the same token, if the Respondent is correct in its assertion that the purchase of real estate is not a term and condition of employment, its actions, even if motivated by anti-union considerations, would neither violate Section 8(a)(5), (because it would not relate to a mandatory subject of bargaining), nor Section 8(a)(3) which, by its terms, prohibits discrimination in regard to the “hire or tenure of employment or any term or condition of employment” to encourage or discourage membership in any labor organization. Assuming that the Board upholds Judge Davis’ decision that there was no valid impasse and that the Respondent unlawfully implemented its last offer, then the terms and conditions of employment in effect at the time of the unilateral change would be those in existence before the last offer was implemented. Further, the evidence shows that even if that conclusion is not upheld, the Respondent specifically notified the Union that in implementing its final offer, it was withdrawing the proposal that would have barred employees from buying apartments in the Co- op. In either scenario, the existing conditions just before the change were that employees were allowed to buy apartments. Therefore, the only legal question is whether that change affected a term and condition of employment. 7 Section 8(d) of the Act states in pertinent part; “For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment….” (Emphasis added). JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 13 Cases dealing with this subject matter are not all that numerous and most of the ones cited by both parties are at least 45 years old. Moreover, none have a set of facts exactly similar to those in the present case. In Abbott Worsted Mills, Inc., 36 NLRB 545, 555 (1941), enf’d. 127 F.2d 438 (1st Cir. 1942), the Board held that the leasing of company owned housing to its employees constituted a condition of employment within the meaning of the Act. In that case, an employee who was unlawfully discharged was also evicted from his company owned house. The Board stated that the lease of such houses, which were restricted to regular employees and were offered at “nominal” rents, constituted “a privilege amounting in effect to a part of their wages and constitutes a term and condition of their employment.” At footnote 1 in Weyerhaeuser Timber Company, 87 NLRB 672 (1949), the Board cited Abbott Worsted Mills favorably in support of its view that terms and conditions of employment should not be construed narrowly.8 One of the cases cited by the General Counsel is Lehigh Portland Cement Company, 101 NLRB 529 (1952), enf'd. 205 F2.d 821, 823, (4th Cir. 1953). In that case, the Company owned 65 dwelling units located within a mile of the plant and which were occupied, with the exception of 5 families, by employees of the company. (Of the five non-employees, three had previously been employed by the predecessor company). The evidence was that the rentals had not been raised for 14 years and there was evidence suggesting that housing within the vicinity of the plant may have been difficult to get in that the other employees, (constituting a majority), owned or leased their own homes anywhere from 2 to 35 miles away from the plant. (Of these, the largest number had houses within 2 to 6 miles of the plant). Judge Soper, speaking for the Circuit Court which enforced the Board’s Order, stated inter alia; The position of the employer is that the amount of rent which it charges for its houses does not relate to ‘rates of pay, wages, hours of employment, or other conditions of employment’, and hence it is not a matter as to which it is required to bargain with the union under § 9 of the statute. It points out that the statute does not purport to interfere with an employer's freedom of contract and hence it is at liberty to deal with its property as it sees fit, unless in so doing it does something which affects the conditions of employment under which its employees work; and it contends that these conditions are not affected in this case because the company's houses are not a necessary part of the business and employees are not required to occupy company houses in order to hold their places at the plant. Hence it is said that the present case is not covered by our decision in NLRB v. Hart Cotton Mills, Inc., 190 F.2d 964, where we said that if company houses are a necessary part of an employer's enterprise or are rented to its employees at such a rate as to constitute a substantial part of their pay, they are a proper subject of collective bargaining. In that case, however, we did not lay down the general proposition that company houses are never the proper subject of collective bargaining unless they are a necessary part of the enterprise or their occupancy affects the workers' pay. It is sufficient to bring them within the field of collective bargaining if their ownership and management materially affects the conditions of employment. We agree with the Board that such is the case at the company's plant at Fordwick. That no increase in rent was made between 1937 and 1951 indicates that the rents have 8 Weyerhaeuser held that company provided meals were terms and conditions of employment and therefore were subject to bargaining. JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 14 been below the prevailing rate; and this circumstance coupled with the convenience of living nearer to the place of work than the great majority of the employees has given the occupants of the company's houses substantial advantages which undoubtedly affected their conditions of employment. Obviously the company's ownership and control contribute to this result. The extent of its influence has of course been curtailed by the reduction in the number of company houses from 150 to 65 during the period of the company's ownership. Nevertheless it is still substantial; and it bears directly on the crucial question in the case, since the retention by the company of a sufficient number of dwellings to house 25 per cent of the employees near the plant in an area where houses are hard to get gives the company a means of affecting the living conditions of a large part of its working force through the power of granting or withholding the privilege and of fixing of terms upon which it may be exercised. Under the circumstances of this case the matter is of sufficient importance as to require its submission to the process of collective bargaining. The order of the Board will be enforced. Another case cited by the General Counsel is Florida Citrus Canners Cooperative, 124 NLRB 1182 (1959), enf’d. denied on other grounds, 288 F.2d 630 (5th Cir. 1961, rev’d 369 U.S. 812 (1961). In that case, the Trial Examiner concluded that because the rates paid for rental housing were so low, they were the equivalent of wages. The Board, although stating that rents were not wages, held that the eviction of striking employees from company owned housing constituted discrimination relating to their terms and conditions of employment. It opined that “housing… was a valuable incident of the employer-employee relationship,” because these were rented only to employees or to families of employees, that the occupants lived nearer work than other employees and that they paid a “nominal” rental fee. Finally, the General Counsel cited American Smelting and Refining Co., 167 NLRB 204 (1967), enf’d. 406 F.2d 552, (9th Cir. 1969). In that case, the Board held that company housing was a mandatory subject of bargaining because; (a) the rental rates were, in its opinion, below market rates; and (b) the houses were more convenient to employees who worked at the facility. The Circuit Court, affirmed the Board’s conclusion and stated that it would evaluate these types of issues on the case by case approach explicated in the Lehigh Portland and Cement case. The Court noted that the nearest available private housing was 25 miles away, that there was a sizeable waiting list and that rents hadn’t been raised for 12 years. The Respondent places its bets on N.L.R.B v. Bemis Brothers Bag Co., 206 F.2d 33 (5th Cir. 1953). In that case, the Court denied enforcement of a Board Order that required the Respondent to bargain about the rental rates of company owned housing. This housing, by the terms of the standard lease, was available only to company employees and only during the term of their employment. The Court noted that the record did not show if rentals for company housing were higher or lower than comparable housing in the vicinity and it also noted that there were private accommodations readily available within the community. Judge Russell, writing for the Court stated inter alia: ‘Wages’ may be a direct or indirect compensation or emolument for the work performed. If it is shown that rentals are so low that they are in fact a partial compensation such rentals would properly fall within the statutory requirement. In such case, as said in N.L.R.B. v. Hart Cotton Mills, 190 F.2d 964, 972 (4th Cir.), in many mills such houses are a necessary part of the enterprise and where they are maintained by the employer and ‘rented at such rates to the employees as to represent a substantial part of their remuneration’ they become a subject of JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 15 bargaining. This reasoning also underlies the decisions in Island Steel Co. v. N.L.R.B., 170 F.2d 247 (7th Cir.) and W.W. Cross & Co. v. N.L.R.B. 174 F.2d 875 (1st Cir. 1949) cited by counsel for the Board in support of its position here. It is true, of course, that living standards and conditions may well be said to have a direct connection with a person's well being and efficiency, but this does not establish that an employee's living expenses or means of residence are conditions of employment. Indeed, if so, it would seem to result that no matter where, or how, the employee lived such items, or means of securing them, would be conditions of employment and they would apply as well to the two-thirds of the respondent's employees who do not occupy company-owned houses as to the one-third who do. It is, of course, true that there are situations where the employee may not have freedom of choice in securing living accommodations. This may result either from express requirement of the employer or where other housing is unavailable and which requires occupancy of company housing if there is to be any employment. Where this situation exists, the terms and conditions of occupancy or tenancy can well be said to be a condition of employment. However, before such occupancy and its consequences becomes a condition of employment there must be some necessity, either imposed by the employer or by the force of circumstances, which requires the employee to subject himself to the condition of occupancy of company housing. In this case the evidence that other adequate housing is available in the community is not contradicted. There is no evidence that the rentals charged by the respondent are in any degree less than those charged for comparable housing in the vicinity. In these circumstances the fact that the employer confines the rental of its houses to employees does not alone make the conditions of tenancy a condition of employment, nor, where there is no compulsion, either by express requirement or resulting in fact from circumstances which in reason require the employee to live in a company house, the conditions of tenancy of such houses which a minority of the employees may, but are not required to, occupy is not a condition of employment within the contemplation or purpose of the statute. The element of necessity is of course not material as to features of the employer-employee relationship which inhere in the actual employment, the carrying on of the business. These concern and relate to the business, the employment, directly, and not incidentally, as does the company housing now for consideration under the facts of this case. One concerns a business operation. The other pertains to living conditions during off-hours when the employee is free to pursue his personal life as he may prefer. The brief for the Board recites the genesis and status of the mill village as a necessary adjunct of the mill enterprise. We can recall instances where the village is an essential part of the business operation. We have in mind others where the company-owned houses have been disposed of and subsequently tenanted by non-employees without any interruption or detriment to the business enterprise. We think each case must be determined upon its particular facts. On this record, which fails to show that rentals are so low as to be partial remuneration for services and, therefore, in effect, wages, or, for any reason save individual choice why one-third of the employees occupy company housing, we are unable to hold that the terms and conditions of such occupancy are comprehended within the statute's designation of ‘wages’ or ‘other conditions of JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 16 employment.’ Although the cited cases offer analogies, the facts in the present case do not, in my opinion, clearly fit into any of the factual scenarios described above. Success Village is not company housing. On the contrary, it is a large housing cooperative marketed to and lived in for the most part by people who are not employees of the Respondent. Although many of the Company’s employees have lived in these apartments, they constitute a miniscule percentage of the total population. Nor it there any evidence that the employees of the Respondent have either enjoyed any discount in terms of price or any preference in terms of which apartments they may want to purchase. On the other hand, the fact that so large a percentage of the Company’s work force has, in the past, decided to buy apartments is indicative of their relative desirability. If not price, then perhaps convenience or the opportunity to own one’s household. And as noted above, there is a value to the employer, the employees and the other residents in having maintenance staff readily available on the premises to deal with problems as soon as possible. It seems to me that the phrase “term and condition of employment” should encompass any significant economic benefit or determinant to an employee arising in the context of the employment relationship. N.L.R.B v. Borg-Warner Corp., Wooster Division, 356 U.S. 342, (1958). For example, if an employee is required to buy his own work clothes in order to do construction or mining work, then that would be an economic detriment and would, in my opinion be a term or condition of his work. By the same token, if an employee receives a free lunch at work or more time for lunch, these are economic emoluments because the free lunch allows him to spend his own money on something else and any extra paid time for lunch results in the same amount of pay for less work time. The amounts may or not be trivial to one or both sides, but the benefit would be real to the employee.9 Obviously if the apartments here were provided to employees at a discount to market value, then they would clearly generate an economic benefit to the buyer. Even if he did not live in one, he could sell it at a profit and “earn” additional money as a consequence of being employed by the Respondent. This, however, is not the case here. One difference between the facts in the present case and the facts in the cases cited by both parties is that the properties involved there were rentals and the properties here are co- ops. In the described rental situations, the property stayed within the ownership of the respective Respondents. In the present case, the properties were offered for sale and this gave employees an opportunity to own rather than rent their households. While value in real estate is dependent on many factors, I think it is fair to say that over an extended period of time, the value of housing has increased at least as much as the rate of inflation. Granted, value has increased more in some locations than in others. And there is nothing that says that property can’t depreciate in value. But overall, the value of property has tended to go up and thereby has conferred an economic benefit to the owner. By contrast, rents on housing have also gone up over time and in that case, the economic consequence to the tenant has been just the opposite. Any increase in value to the owner, (by way of increased rents), would be to the 9 For example, if a restaurant allowed its employees to take him whatever food is left over at the end of the day, the cost to the employer would be trivial but the economic benefit over time to the employee could be substantial. JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 17 economic detriment of the renter.10 In my opinion, the ability to buy an apartment at the Co-op would, in all probability confer, over time, a real economic benefit to any employee who chose to purchase one. (There is no evidence to suggest the cooperators cannot sell their apartments at market prices or are required to resell their apartments, upon leaving, only to the Co-op at a pre-determined fixed price). This is in addition to the convenience benefit of living within walking distance of one’s work. It therefore is my opinion that the past practice of allowing employees to purchase apartments relates to a “term and condition of employment” and therefore could not be unilaterally changed without bargaining with the Union. Based on the above, it is my opinion that by unilaterally prohibiting employees of the Respondent from purchasing apartments in the Co-op, the Respondent violated Section 8(a)(1) & (5) of the Act. Also, given the background of this case, I conclude that the sudden opinion that allowing employees to purchase apartments would be a “conflict of interest” would not have been reached if these employees were not represented by a union that management wanted to play hardball with. In short, the evidence convinces me that the Employer decided to put this prohibition into place in retaliation against the employees because of their union membership and representation. I therefore conclude that the implementation of this policy in relation to Andrade’s attempt to purchase an apartment violated Section 8(a)(1) & (3) of the Act. Finally, I conclude that the aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) & (7) of the Act. Remedy Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended:11 ORDER The Respondent, Success Village Apartments Inc., its officers, agents, successor, and assigns, shall 1. Cease and Desist from (a) Refusing to allow its employees to purchase apartments with the cooperative 10 I also note that the Federal government gives homeowners a substantial subsidy in the form of income tax deductions for local property taxes and mortgage interest payments. 11 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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. JD(NY)–04-06 5 0 15 20 25 30 35 40 45 50 18 1 because they joined or assisted the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Local 373, AFL-CIO. (b) Refusing to bargain with the aforesaid union by making unilateral changes in the existing terms and condition of employment without first offering to and bargaining with the Union. (c) In any like or related manner, interfering with, restraining or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind our policy of precluding employees represented by the Union from purchasing apartments within the cooperative and specifically process the application for purchase by Luis Andrade. (b) Upon request offer to bargain with the Union about the subject of apartment purchases. (c) Within 14 days after service by the Region, post at those facilities in Bridgeport, Connecticut, copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent’s authorized representative, 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 customarily posted. Reasonable steps shall be taken by the Respondent 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, or sold the business or the facilities involved herein, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondents at any time since May 5, 2005. (d) 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. Dated, Washington, D.C., January 25, 2006. _______________ Raymond P. Green Administrative Law Judge 12 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.” JD(NY)–04-06 5 10 15 20 25 30 35 40 45 50 19 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 the National Labor Relations Act and has ordered us to post and abide by this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities WE WILL NOT refuse to allow our employees to purchase apartments because they are members of or assist the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Local 373, AFL-CIO. WE WILL NOT refuse to bargain with the Union by making unilateral changes in our employees’ existing terms and condition of employment without first offering to and bargaining with the Union. WE WILL NOT in any like or related manner, interfere with, restrain or coerce employees in the exercise of their Section 7 rights. WE WILL rescind our policy of precluding employees represented by the Union from purchasing apartments within the cooperative and specifically process the purchase application of Luis Andrade. WE WILL upon request, offer to bargain with the Union about the subject of apartment purchases by bargaining unit employees. SUCCESS VILLAGE APARTMENTS INC. (Employer) Dated By (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. 1 Commercial Plaza, Hartford Ct 06103-3599. 860-240-3522, Hours: 9 a.m. to 5:30 p.m. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 860-240-3528.