NOTICE: This opinion is subject to formal revision
before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Success Village Apartments, Inc. and International Union, United
Automobile, Aerospace & Agricultural Implement Workers of
August 20, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman and Kirsanow
In the underlying proceeding, the judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 376, AFL–CIO (the Union), over its policy of precluding employees represented by the Union from purchasing apartments at its cooperative, and violated Section 8(a)(3) and (1) by refusing, for discriminatory reasons, to allow employee Luis Andrade to purchase apartments.[1] Because we find that the purchase of apartments at the Respondent’s cooperative is neither a mandatory subject of bargaining nor a term and condition of employment, we dismiss these complaint allegations. We find, however, that the Respondent violated Section 8(a)(1) by telling employees that it would not allow them to purchase an apartment because of their union affiliation.
Facts
The Respondent is a residential cooperative consisting of
over 900 apartments located in 97 buildings near the town lines of
The cooperative is managed by a nine-member board of directors, which is composed of residents elected by other cooperative residents. The board uses the services of a property management company, WC & F Real Estate & Development Corporation, to oversee the daily operations of the complex and to supervise its employees.
The
For many years, bargaining unit employees have purchased and lived in apartments in the cooperative complex. Some employees currently own and live in apartments at the complex, but the record does not specify how many. In view of the large number of apartments, the proportion of employees to overall residents is exceedingly low.
In the negotiations for a successor bargaining agreement, the Respondent proposed that any employee hired after June 1, 2002, could not buy an apartment in the cooperative and reside there. The Respondent did not implement this proposal at that time. In March 2005, unit employee Luis Andrade applied to purchase a three-bedroom apartment at the complex. Initially, the Respondent’s maintenance manager told Andrade that there would be no problem buying the apartment, and Andrade paid a $450 appraisal fee in connection with the purchase. Thereafter, however, property manager Frank Callahan announced that employees could no longer purchase apartments at the complex, cancelled Andrade’s attempted purchase, and reimbursed Andrade’s appraisal fee. Bargaining unit employee Cecele Johnson spoke with Callahan in connection with the reimbursement. Johnson credibly testified that Callahan told her that the Respondent did not want people who were employed at the complex to live there and that “the people here in the Co-Op don’t want union people living there.” Callahan testified that, even after dropping the bargaining proposal to exclude employees, the Respondent still did not want employees to live there because it presented a conflict of interest. It appears that the Respondent’s current policy as to employee residents does not apply to employees already living at the cooperative.
The Respondent’s residential bylaws specifically address employee residents in only one respect. Under Article III, Section 9, the bylaws state that persons receiving compensation from the cooperative may not serve on the board of directors. It appears that, as with all other residents, resident employees may vote for candidates running for the board of directors and may attend various resident meetings.
After the Respondent declined to permit employee Andrade
to purchase an apartment at the cooperative, the
Analysis
Sections 8(a)(3) and (5) of the Act come into play when
the subject matter at issue pertains to the employment relation, i.e., a term
or condition of employment. Thus,
Section 8(a)(3) prohibits discrimination “in regard to hire or tenure of
employment or any term or condition of employment” to encourage or discourage
union membership. Similarly, Section
8(a)(5) prohibits a refusal to bargain with the employees’
collective-bargaining representative, subject to the provisions of Section
9(a), which requires bargaining “in respect to rates of pay, wages, hours of
employment, or other conditions of employment.”
And Section 8(d) requires bargaining with respect to “wages, hours, and
other terms and conditions of employment” as mandatory subjects. Accordingly, for purposes of establishing a
violation of the Act under these provisions—whether an act of discrimination
that encourages or discourages union membership or a failure to bargain—the
subject matter at issue must constitute a working condition specific to the employment
relation, i.e., a term or condition of employment. See Chemical
Workers v. Pittsburgh Plate Glass Co., 404
The present case pertains to housing, not employment. Even assuming, arguendo that the Respondent discriminated against employees as to housing, the Respondent’s new practice with regard to those seeking to purchase apartments did not impact the employment relationship. Simply put, as to working conditions, nothing changed. The new policy only impacted housing.
To be sure, the Board has found, in narrow circumstances, that employee housing can impact a term or condition of employment when, as a practical matter, it is intimately connected to the employment relation. These are the so-called “company housing” cases. In these cases, the Board has considered factual scenarios in which an employer maintained company rental housing for employees and a union sought to bargain over some aspect of the housing arrangement, generally rent. But the “company housing” cases are distinguishable from the present case because, in those cases, company housing was maintained to assure or promote the continuous availability of employees, typically when alternative housing was not easily available and the convenience and economic benefit of the special accommodations were an important part of the employment relationship. See Granite-Ball Groves, 240 NLRB 1173 (1979) (mandatory subject of bargaining when an employer built dormitories and a trailer park at the worksite to secure a work force and similar convenient and cheap accommodations were non-existent); American Smelting and Refining Co., 167 NLRB 204 (1967), enfd. 406 F.2d 552 (9th Cir. 1969) (mandatory subject of bargaining when rents were below market rates and company housing was more convenient for employees so as to constitute a benefit of employment); Lehigh Portland Cement Co., 101 NLRB 529 (1952), enfd. 205 F.2d 821 (4th Cir. 1953) (mandatory subject of bargaining when rents were below prevailing market rates and housing was convenient to employees as a benefit of employment).
This case presents very different circumstances than the “company housing” cases. First, the Respondent offers housing to the general public, not company housing. Indeed, the cooperative comprises hundreds of apartments, of which only a tiny fraction are occupied by bargaining unit employees. Second, employees historically have paid market rates for these apartments, just like the general public, and, in the long history of the cooperative, there is no evidence that employees have ever been afforded an advantage of any kind compared to the general public.[3] Third, there is no evidence that the subject of employees residing at the cooperative has ever been contained in any collective-bargaining agreement between the parties, nor is there any evidence that the parties have meaningfully bargained over housing, such as by engaging in mutual trade-offs on other subjects while bargaining over housing arrangements for employees.[4] Fourth, employees’ actual job duties are unchanged under the present housing policy.
Accordingly, under the circumstances here, we find that housing and employment are wholly separate aspects of the cooperative’s mission, and that the housing policy currently in effect does not impact employees’ terms and conditions of employment, which is a prerequisite to finding a violation under Sections 8(a)(3) and (5).
The judge found that the Respondent violated Sections
8(a)(3) and (5) because the ability to purchase an apartment at the cooperative
was “a real economic benefit” to employees, and conferred the convenience of
living within walking distance of their employment. These personal economic advantages and
conveniences may well exist, but they do not make the ability to purchase a
co-op apartment an employment term. As
to the economic benefit of buying a
Our dissenting colleague contends that the identified benefits were an “emolument of value” connected to terms and conditions of employment. The cases relied on by our colleague however, are distinguishable. Here, there is no evidence that the “benefit” of living at the cooperative evolved out of the employment relationship as a form of remuneration, that is, as a fringe benefit or form of wages provided by the Respondent in its capacity as an employer to employees in their capacity as employees. In Southland Paper Mills, Inc., 161 NLRB 1077 (1966), in contrast, the hunting privileges that the employer provided at its forest preserve were specifically and publicly acknowledged as an employee fringe benefit: the benefit accrued to employees in their capacity as employees. See also, e.g., Owens-Corning Fiberglass, 282 NLRB 609 (1987) (employee purchase program accruing to employees on the basis of their employment status). In the present case, housing privileges were afforded to employees the same as they were afforded to members of the general public, and derived from the Respondent’s status as a supplier of housing, not as an employer of employees.
We also reject the dissent’s contention that the new housing policy affected employees’ job tenure in the case of employee Andrade. As an initial matter, Andrade did not resign and his employment continued without any change in his working conditions. There is no evidence that the Respondent put Andrade, or any unit employee, in a position where he would be compelled to contemplate resignation based on any matter pertaining to working conditions. The policy did not apply to employees already living at the cooperative. In these circumstances, we discern no direct connection between the housing policy and a term and condition of employment.
Our colleague asserts that the housing was made available to the employees “at below-market cost.” However, this only reflects testimony that “comparable” housing in the area costs more. As noted above, the employees were paying exactly the same as the general public for the housing involved in this case. That is, the employees were not receiving any cost benefit by virtue of their employment.
Our colleague also says that it was convenient for the employees to live close to where they work. However, as noted, this case is unlike those where the employer furnishes housing in order to assure the continuous availability of employees. Of course, all other things being equal, many employees will choose to live close to their work place, but this does not mean that an employer must bargain about that transportational convenience.
Our colleague notes that the Respondent made a bargaining proposal about employees’ being able to live in the co-op. However, the fact that a proposal is made (or even agreed to) does not convert the proposal into a mandatory subject of bargaining. See Pittsburgh Plate Glass, supra at 178 and 181.
Finally, our colleague argues that the lack of opportunity to purchase an apartment was a condition of employment because an employee would have to resign from employment in order to make the purchase. However, this is a misuse of the word “condition.” The dissent uses the term as a synonym for “prerequisite.” The term, as used in Section 8(d), refers to the status that prevails at the workplace.
In sum, we find that the Respondent’s new housing policy did not concern a term or condition of employment, or a form of remuneration as wages or fringe benefits, for purposes of Sections 8(a)(3) and (5). Accordingly, we dismiss the complaint allegations in these respects.
Finally, we find merit to the General Counsel’s limited cross-exception that Property Manager Callahan’s statement to employee Johnson, to the effect that the board of directors did not want union-represented employees to live at the cooperative, interfered with the exercise of Section 7 rights. Although we find no change to or impact on terms and conditions of employment flowing from the new housing policy within the meaning of Sections 8(a)(3) and (5), Callahan’s statement referencing the denial of Andrade’s housing application because of union status would tend to interfere with employees’ exercise of their right to engage in union and other Section 7 activities, in violation of Section 8(a)(1). An employer may, of course, interfere unlawfully with the exercise of Section 7 rights in violation of Section 8(a) (1) without necessarily impacting terms and conditions of employment, as we find here. See generally 7-Eleven Food Store, 257 NLRB 108, 115 (1981) (threat of bodily harm to employee’s wife because of his union activities violated Section 8(a)(1)).[5]
ORDER
The National Labor Relations Board orders that the
Respondent, Success Village Apartments, Inc.,
1. Cease and desist from
(a) Informing employees that it does not want union-represented employees to live at the cooperative.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in
(b) 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,
Robert J. Battista, Chairman
Peter
N. Kirsanow,
Member
(seal) National
Labor Relations Board
Member Liebman, dissenting in part.
Permitting employees to buy apartments at the Respondent’s cooperative was clearly a valuable benefit to them: it made commuting convenient, it made it easier to work overtime, and it made housing available at below-market cost. After the Respondent unilaterally changed its policy—following an unsuccessful attempt to bargain a change with the Union—employees who wished to buy an apartment at the cooperative effectively were required to resign. Despite these circumstances, the majority finds that the Respondent’s policy change had nothing to do with employees’ terms and conditions of employment, and thus did not violate the Act in any respect. I dissent.1
I.
The Respondent is a residential cooperative in the
The policy of permitting employees to live at the cooperative
was an established past practice for many years prior to the Respondent’s
hiring of a new management company, WC&F Real Estate and Development Corporation
(WC&F) in August 2001. Within a few
months of the retention of WC&F, relations between the
During negotiations with the
The judge found that the ability of the employees to buy an apartment at the cooperative was a real economic benefit to the employees. Applying Board precedent, the judge also found that it constituted a mandatory subject of bargaining. The judge further held that by unilaterally implementing the change in policy the Respondent violated Section 8(a)(1) and (5). The judge also found that the Respondent’s prohibition against union-represented employees residing at the cooperative constituted retaliation based on the employees’ union representation, and therefore violated Section 8(a)(1) and (3).
II.
There is no question that the Respondent unilaterally
implemented the prohibition on employees purchasing apartments at the cooperative,
without bargaining with the
The employees’ ability to purchase apartments at the cooperative directly impacted several emoluments of value, supplementary to actual wage rates, that accrued to the employees based on their employment relationship with the Respondent.4 It cannot be disputed that commuting convenience and the enhanced ability to work overtime, derived from being able to purchase apartments at the cooperative, are of significant benefit to the employees. Nor can it be disputed that they are of benefit to the employees precisely because of the employees’ employment relationship with the Respondent and the location of their work for the Respondent.5
The ability to purchase apartments that are below market cost in comparison to other comparable housing in the area near the workplace is also of significant benefit to the employees, and it is directly related to the employment relationship because it is the housing’s proximity to the workplace that effectively creates the benefit. It is certainly as directly related to the employment relationship as those personal employee benefits that the Board has found to constitute terms and conditions of employment.6
The parties’ conduct also shows that the parties themselves
considered the opportunity to purchase apartments at the cooperative an established
term and condition of employment. Union
business agent Langston testified that the
Even assuming arguendo that the opportunity to purchase apartments at the cooperative was not otherwise a term or condition of employment, the Respondent made it such by effectively conditioning the employees’ purchase of an apartment on their resignation from employment with the Respondent. The Respondent’s unilateral change of its policy to prohibit union-represented employees from purchasing apartments directly linked the policy to the employees’ job tenure. What could be more directly related to terms and conditions of employment than job tenure?7
III.
It is inescapable that the Respondent’s policy change
vitally impacted the employees’ terms and conditions of employment. Because the
Respondent concededly changed its
established policy without bargaining with the
Dated,
Wilma
B. Liebman, Member
National Labor Relations Board
APPENDIX
Notice to Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not tell you that we do not want union-represented employees to live at the cooperative.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of any of the rights set forth above.
Success
Village Apartments, Inc.
Darryl Hale, Esq., for the General Counsel
Marc L. Zaken, Esq., for the Respondent
DECISION
Statement of the Case
Raymond P. Green,
Administrative Law Judge. I heard this
case in
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.
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
(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
ii. alleged
unfair labor practices
A. Background
The Respondent is a residential cooperative consisting of
923 apartments in
There was a dislike of the
The
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
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
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 2003, with most taking place in 2002.2 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
2. That the
Respondent made various unilateral changes3
without affording the
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.5
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 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 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
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 6 months prior to the filing of the charge in this case.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 Exhibit 19 is a 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 General Counsel 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 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
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
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 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 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 a.m. and left a message claiming that he was sick and would not be in for work. In this regard, I conclude 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 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 1 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
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 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
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 a 30-day suspension that was issued to Brown on April 14, 2005. It reads:
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 worktime.
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 Employers. 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
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 antiunion 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 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 nondiscriminatory 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
The number of employees living at
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
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
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 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 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. 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 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
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
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.[8] 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 antiunion 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
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), enfd.. 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 Co., 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.[9]
One of the cases cited by the General Counsel is Lehigh Portland Cement Co., 101 NLRB 529 (1952), enfd.. 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 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), enfd.. 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), enfd.. 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 NLRB v. Bemis Bros. 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 bargaining. This reasoning also underlies the decisions in Island Steel Co. v. NLRB, 170 F.2d 247 (7th Cir.) and W.W. Cross & Co. v. NLRB, 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.