Michael I. Schaffer Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michael I. Schaffer Co., Inc. and Alphonse Arpino. Case 2-CA- 15971 September 19, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On June 27, 1979, Administrative Law Judge Max Rosenberg issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and Respondent filed an answering brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel and Charging Party have excepted to certain credi- bility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the rel- evant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION MAX ROSENBERG, Administrative Law Judge: This pro- ceeding was heard before me in New York, New York, on May 23, 1979, upon a complaint filed by the General Coun- sel of the National Labor Relations Board and an answer interposed thereto to Michael 1. Schaffer Co., Inc., herein called Respondent.' At issue is whether Respondent vio- lated Section 8(a)(1) and (3) of the National Labor Rela- tions Act, as amended, by certain conduct to be detailed hereinafter. Briefs have been received from the General Counsel and Respondent which have been duly considered. I The complaint, which issued on December 8, 1978, is based upon a charge filed on November 1, 1978, and served on November 3. 1978. Upon the entire record made in this proceeding, includ- ing my observation of the demeanor of each witness while testifying, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent, a New York corporation, maintains its prin- cipal office and place of business in the city and State of New York, where it is engaged in the management and operation of office buildings, including the office building here involved located at 19 Rector Street, New York, New York. During the annual period material to this proceeding Respondent derived gross revenues in excess of $1 million of which $50,000 was received from tenants, including Chemical Bank, who in turn meet one of the Board's discre- tionary direct standards for the assertion of jurisdiction. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZArION INVOI.VED The International Union of Operating Engineers, Local 30, AFL CIO, herein called the Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent violated Section 8(a)(l) and (3) of the Act by discharging employee Al- phonse Arpino on September 22, 1978,2 because he invoked and participated in the grievance procedures set forth in a collective-bargaining agreement between Respondent and the Union and because of his membership in and activities on behalf of the Union. Respondent's answer denies the commission of any labor practices banned by the Act. Respondent is engaged in the business of managing real estate and acts as an agent in the operation of the property located at 19 Rector Street in New York City. Donald El- lenberg occupies the post of senior vice president of Re- spondent. In this capacity he is responsible for renting space in that building to tenants and maintaining the prem- ises in a habitable condition. To accomplish this goal Ellen- berg hires engineering personnel who perform the mechani- cal upkeep chores. Alphonse Arpino, the Charging Party herein, filed an ap- plication for employment with Respondent on March 30, 1970, as a maintenance mechanic. In response to a question on the form as to whether the applicant has ever had a compensable accident while employed Arpino answered in the affirmative and indicated that he had suffered a back injury. In this connection it appears that Arpino had fallen and hurt his back while working for another employer in 1967 and was hospitalized for 9 weeks. After a 2-year con- valescence he was pronounced fit for work and, following a stint as a draftsman, found his way to Respondent's em- ployment offices. During his entrance interview of March 30 Arpino mentioned the back injury to Respondent's chief 2 Unless otherwise indicated all dates herein fall in 1978. 245 NLRB No. 6 24 MICHAEL I. SCHAFFER CO. mechanic, and he was instructed to obtain a doctor's note certifying that he was physically capable of performing the required work assignments. On April 1. 1970, Arpino vis- ited Dr. Runsdorf, his personal physician, and received a medical note which recited that "Mr. Arpino has been un- der my care and has made full recovery and may return to work." Upon receipt of this note Respondent put Arpino to work on April 2, 1970, as a maintenance mechanic. In this position he toiled under the direction of the chief mechanic, maintaining such equipment as air conditioning and heat- ing units, hanging venetian blinds, and installing towel racks. On occasion his duties included lifting heavy objects weighing in excess of 100 pounds. Despite performing these lifting chores Arpino's back problems did not again mani- fest themselves. Arpino continued to work for Respondent without inci- dent until November 5, 1973, when he quit his job without notice because of some personal conflict with the chief me- chanic. Thereafter, Ellenberg sought to contact the em- ployee but without success. On November 12. 1973. Arpino appeared at Ellenberg's offices to seek reinstatement. After explaining to Arpino that Respondent did not countenance his actions in quitting work without affording it appropriate notice Ellenberg decided to reemploy the mechanic. Events abided until December 28. 1976. when Arpino again left his job without explanation. Some weeks later Arpino returned to the building and asked Ellenberg for his job back, admitting that he had done a stupid thing by leaving in the manner that he did. Because this was the second occasion on which Arpino had left without prior notification Ellenberg was reluctant to take him back. Moreover, no vacancies existed at the 19 Rector Street building at the time. Nevertheless, Ellenberg relented be- cause Arpino was unemployed and offered him a position as the superintendent of a smaller building at another loca- tion which was then available. Believing that he would be unable to cope with the added responsibilities involved Ar- pino rejected the offer. On July 20, 1977, Arpino once again presented himself at Ellenberg's office in quest of employment. Because a va- cancy existed and the air conditioning season was at its height Ellenberg agreed to rehire Arpino on condition that he deport himself in a proper manner and stay on the job. Shortly thereafter Ellenberg had need for a chief mechanic and offered the post to Arpino. Arpino eschewed the pro- motion, stating that he did not desire to undertake the re- sponsibilities which it entailed. In so doing Arpino in- formed Ellenberg that the former did not intend to cooperate with any new chief, remarking, "He'll learn the building the same way I learned it. Nobody told me any- thing, and I'm not telling anything to any chief mechanic." Meanwhile, on July 7, 1977, the Union filed a petition with the Board's Regional Office seeking an election among all mechanics employed at 19 Rector Street. On August 2. 1977, the parties entered into a consent election agreement, and on August 17 the balloting was conducted. So far as appears, Respondent's four mechanics. Robert O'Neil, Aniello Rego, Bruno Shrotter, as well as Arpino. cast their votes. The tally of ballots revealed that the Union had won the election by a vote of three to one and, in consequence thereof, received a Board certification. Thereafter, the Union and Respondent entered into a collective-bargaining agreement which was effective from September 1,. 1977, to December 31, 1980, and contained provisions for the pro- cessing of employee grievances culminating in arbitration. Continuing the narrative, one of the mechanics. Robert O'Neil, quit his job in December 1977. leaving only Arpino, Aniello Rego, and a handyman named Brown available for maintenance duty. As the summer of 1978 approached Ar- pino became disenchanted with the prospect of overtime work which lay in store as a result of the normal air condi- tioner malfunctions. On June 15 the mechanic encountered Ellenberg in a hallway in the building and launched into a heated discussion with his superior in which he complained about overtime work for the summer period. In an agitated state Arpino profanely informed Ellenberg that the employ- ees were overworked, and that he would absolutely refuse to work overtime except in a dire emergency. Adverting to Respondent's largest tenant whose lease guaranteed over- time air conditioning repair services. Arpino demanded that Ellenberg refuse to provide these amenities, in derogation of the rental agreement. Because of Arpino's excited state Ellenberg decided to defer responding to his tirade until Arpino was more composed. Ellenberg next met with his mechanic on June 30. At the outset of their conversation Ellenberg expressed his dismay over the manner and tone with which the employee had castigated his superior in public. After Arpino offered an apology Ellenberg reminded the former of Respondent's contractual commitment to the tenant. Arpino replied. "That's your problem and you're not going to make our problem my problem." Ellenberg then broached the subject of Arpino's performance of his duties as a fire director in the building. In this connection, as a result of a disastrous fire in an office building in New York City in the early 1970s the city passed an ordinance requiring that landlords of such structures provide trained personnel licensed to serve essentially as fire marshalls to assist in the evacuation of tenants in case of a fire emergency. When he was hired in 1970 Arpino was trained and assigned to this duty. During their meeting on June 30, Ellenberg informed Arpino that Respondent had recently been cited by the fire department for its failure to have a fire director assigned to the building. and the vice president sought to persuade the employee to undertake this task again. Arpino flatly refused the assign- ment. Upon learning that Arpino had refused o ertime work and had declined to accept the fire director's post Ellenberg announced that he had no choice hut to dis- charge the mechanic, and the employee was terminated on that date. Following his separation on June 30 Arpino contacted his union shop steward, Aniello Rego. and a determination was made to process the matter pursuant to the grievance procedures set fborth in the collective-bargaining agreement between the Union and Respondent. Concurrently. Arpino filed a claim for unemployment compensation with the New York State Department of Labor. On September 13 a hearing was held before an arbitrator on Arpino's griev- ance, during which he was represented by union delegate Joe Bialkowski. During a recess in the proceeding the par- ties negotiated a settlement of the grievance, pursuant to 25 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which Respondent agreed to reinstate Arpino on September 20 with the payment of 4 weeks' wages and to acquiesce in an unemployment compensation award which had initially been denied to Arpino. When the meeting broke up Ellen- berg instructed Arpino to report to Richard Rubino, the chief mechanic who had been hired for this position on July 7. On the evening of September 13 Arpino visited his physi- cian to undergo a blood test in contemplation of his im- pending marriage. It is Arpino's testimony that after he took the test he suddenly remembered that he had read a local newspaper article in July about Richard Rubino, whom Respondent had hired after Arpino's discharge on June 30. This journalistic item reported that Rubino had been arrested at the building in connection with the theft of $2,000,000 in negotiable securities from a Wall Street firm. According to Arpino, he had "this whole thing on my mind and I asked Dr. Runsdorf (his personal physician) to give me a note in regard to my back. That I had read this article about Mr. Rubino and I was apprehensive about going back there." Despite the fact that Arpino had never met Rubino he testimonially added, "I only asked the doctor for a note because I was nervous, I thought I'd be, you know, bothered at work, you know, just pushed. So I thought I could reason with Mr. Rubino." When pressed on the mat- ter Arpino finally confessed that his reason for seeking the note was not because of any fear of Rubino due to his criminal background but because, "At a meeting with the [Union] lawyer and then later at the arbitration, both [the Union's and Respondent's] lawyers had told me that you can't turn down anything your employer tells you, you have to do everything they say, the only choice you have is to make a grievance after the fact of whatever would happen to you." Arpino then revealed that having once been dis- charged for shirking his duties, "you don't want it [to hap- pen] again." Although Arpino further confessed that his back had completely healed since his accident in 1967 and that he was physically capable of performing all of the duties which he had previously undertaken for Respondent, he neverthe- less persuaded Dr. Runsdorf to draft a medical note con- cerning his back which was totally unsupported by any di- agnostic examination given by that physician. This note, dated September 13, recited: To whom it may concern: Alphonse Arpino has had a permanent injury to his Lumbo Sacral Joint and is not be [sic] permitted to do any heavy lifting. On September 15 Arpino visited the Rector Street build- ing to introduce himself to Chief Mechanic Rubino and find out what his work assignments would be. When he arrived Arpino noticed that a considerable amount of air conditioning equipment lay dismantled, and he learned from Rubino that Respondent had planned to perform the maintenance work with its own crew on overtime rather than to utilize independent contractors. Arpino made no comment upon receiving this intelligence and left the build- ing. Arpino further testified that on September 20 he reported for work in accordance with the arbitral agreement. Upon arriving Rubino asked the employee to obtain their morn- ing coffee. When he returned Arpino handed Rubino the doctor's certificate. Rubino, who had no reason to know of any back problems which Arpino might have experienced. asked what the document was, and Arpino identified it. Rubino then inquired, "Does this mean you want light work?" and Arpino replied, "No, I just wanted you to know I had a problem and I rather not have it happen again. If I ask for a hand, I need a hand and I'm not trying to hurt your operation." According to Arpino the chief mechanic simply said "okay" and dispatched him to a job. Rubino testified that when Arpino reported for duty on September 20 the latter placed a doctor's note on the chief mechanic's desk. Rubino read the document and noticed that it recited that Arpino had a permanent injury to his back. When Rubino inquired into what the doctor had meant by his notation that the employee was not to engage in any heavy work Arpino pointed to a piece of pump which weighed about 35 pounds and stated that he was not supposed to lift any material of that weight. Rubino then asked how long Arpino's physical deferment from heavy duty was expected to last, and Arpino responded that it could continue for I day or indefinitely. Rubino was trou- bled by this response because in the regular course of their duties the maintenance mechanics were routinely called upon to lift objects weighing 35 pounds, and Rubino was concerned that he could not efficiently maintain the build- ing without the availability of able-bodied mechanics. Be- cause he was unwilling to assume the responsibility for hav- ing caused an injury to Arpino's back Rubino decided temporarily to assign the mechanic to the light task of in- stalling towel racks in the bathrooms for that day. Although Arpino had insisted that the medical note was for Rubino's "eyes only," the chief mechanic felt impelled to report this intelligence to Vice President Ellenberg due to the potential for liability which might befall Respondent. Rubino proceeded to Ellenberg's office, turned over the note to his superior, and repeated the contents of his earlier conversation with Arpino. After doing so Rubino com- plained that unless he had a crew composed entirely of able-bodied men he would be unable to handle the mainte- nance work in a satisfactory manner. Ellenberg testified without contradiction and I find that since Arpino's hire on April 2, 1970, until September 20 the employee had never informed him that Arpino was unable to perform any heavy lifting work. Accordingly, upon read- ing the doctor's certificate Ellenberg concurred in Rubino's assignment of light duty for Arpino because of the possible liability involved. Ellenberg thereupon telephoned union delegate Bialkowski and read the contents of the note to him. Bialkowski expressed shock over this development and apologized for having put Ellenberg through the trouble of the recent arbitration proceeding on Arpino's behalf. Bial- kowski assured Ellenberg that the Union would have no objection to any personnel action which Respondent deemed appropriate in order to protect itself against possi- ble legal liability and advised that the union agent would visit the building that morning and speak to Arpino about the matter. Later on the morning of September 20 Bialkowski visited the building. Calling Arpino aside, the union representative heatedly inquired whether the employee had obtained the 26 MICHAEL 1. SCHAFFER CO. doctor's certificate in order to qualify for a medical disabil- ity or whether Arpino had intended to perform only light duties by his own choice. When Arpino replied that he "was just afraid of the situation" Bialkowski instructed him to contact Ellenberg to resolve the situation because the Union could be of no assistance in light of the circumstance that the matter involved a "medical case." Shortly thereafter, Ellenberg summoned Arpino to his of- fice. When he arrived Ellenberg informed the mechanic that unless he could procure a certificate from his physician giv- ing him a clean bill of health Ellenberg would be compelled to discharge him. Arpino replied that he could not dictate the terms of a medical opinion to his doctor and left the office. After Arpino departed Ellenberg telephoned his at- torney, read the physician's note to counsel, and sought her advice. Counsel replied that in her opinion Respondent would be legally liable to Arpino in the event he reinjured his back and concluded that Ellenberg had no alternative but to terminate the employee. Upon receiving this advice Ellenberg decided to heed counsel's suggestion, and he pro- ceeded to draft a letter addressed to Arpino which informed the latter of his termination. Meanwhile, on the evening of September 20, Arpino called Dr. Runsdorf's office and explained his predicament to the doctor. Runsdorf directed his patient to consult with another physician the following day and have his back x- rayed. On the morning of September 21 Arpino repaired to the radiologist where x-rays were taken. That evening Ar- pino returned to Runsdorf's office, where he was given a second medical note by his doctor. This document recited: To whom it may concern: Al Arpino's X-rays taken today reveal no change from previous X-rays and he is capable of normal occupa- tional work and lifting of the type that he had been performing since the past injury. He has been working continuously without any symp- tons referrable [sic] to this past injury. On the morning of September 22 Arpino reported for work and was greeted by Rubino. Before the mechanic had an opportunity to dress for work and hand over the second medical note to Rubino the latter informed him that he had been discharged. Rubino thereupon proceeded to Ellen- berg's office and returned with a letter signed by the vice president and dated September 22. This letter. which Rubi- no handed to Arpino, read: Due to your inability to fulfill your duties as mechanic as described in your note from Dr. H. Norman Runs- dorf dated September 13, 1978, prohibiting you from doing any heavy lifting, we regret to inform you that your employment at 19 Rector Street is herewith ter- minated, effectively immediately. Upon receipt of the letter Arpino contacted the Union in order to press a grievance over his latest discharge, but he was informed that the matter was not grievable because it involved a medical problem. The General Counsel maintains that Respondent selected Arpino for discharge on September 22 in order to punish him for having filed a grievance against Respondent pursu- ant to the contract between Respondent and the Union over his termination on June 30 and thereby violated Sec- tion 8(a)( ) and (3) of the Act. On the record before me, I am far from convinced that the General Counsel had ade- quately shouldered his burden of proof of this violation. When he was first hired on April 2. 1970. Arpino sup- ported his employment application with a doctor's note cer- tifying that a previous back injur had been successfully mended and that he was fit to perform all the duties inci- dential to his job as a maintenance mechanic. Thereafter, Arpino twice left his job without prior notification, and on each occasion Respondent went out of its way to reinstate him and even to offer him an opportunity for advancement. In June Arpino profanely informed Vice President Ellen- berg that he would not perform any overtime duty that summer and even demanded that Respondent abandon its legal obligation to perform overtime maintenance work for a tenant. In addition, Arpino flatly refused to serve as a fire marshall, a post which he had previously held, despite the urgency of Respondent's need for these services in view of its recent citation by city fire officials for its failure to desig- nate a trained employee to undertake this chore. In conse- quence of Arpino's deliberate failure to perform the duties required of him Respondent removed him from its employ- ment rolls on June 30. Through utilization of the contrac- tual grievance procedures his union agents brought his ter- mination before an arbitrator. Rather than contest the issue Respondent voluntarily agreed to settle the matter and rein- state Arpino, even acquiescing in the reversal of a favorable unemployment compensation award so that Arpino could be recompensed for lost wages following his initial dis- charge on June 30. Despite the fact that Arpino was warned at the arbitration settlement conference on September 13 by both union and Respondent's counsel that he would be ex- pected, upon reinstatement, to perform all the job assign- ments required of maintenance mechanics, I am convinced and find that when he visited his physician on September 13 to obtain a premarital blood test Arpino embarked upon a deliberate scheme to cheat his Employer out of a normal day's work. I am persuaded and find that when he re- quested a medical note from Dr. Runsdorf he did so not because of his fear of Chief Mechanic Rubino's criminal record but solely because he sought to dupe his supervisor into affording him the most desirable work assignments. I find that when Ellenberg learned that Arpino's doctor had certified that the employee's serious back condition still per- sisted he sought out legal advice and was counselled to dis- charge the employee in order to avoid any legal entangle- ments arising out a future reinjury. In short, I am convinced and conclude that but for the proffer of the misleading medical note of September 13 Arpino would have remained in Respondent's employ. I therefore conclude that Arpino was terminated on September 22 not because he had filed a contractual grievance against Respondent but solely be- cause he claimed a physical incapacity which did not in truth and fact exist in order to mislead his Employer and obtain the award of less than his full workload. By doing so I conclude that Respondent did not violate Section 8(a(1I) and (3) of the Act.' Wat erurun (Comrnunia An.tenna. 1ln * N 1_ R B, 587 F 2d 2d (ir 1978) 27 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In an apparent attempt to lay the predicate for his con- tention that another reason for Arpino's discharge on Sep- tember 22 was due to his membership in and activities on behalf of the Union the General Counsel drew from Arpino testimony regarding events which occurred some 15 months prior to that termination. Arpino testimonially reported that in June 1977 he had occasion to be in Ellenberg's office when the vice president suddenly asked Arpino what he thought "about O'Neal and Rego [Respondent's currently employed mechanics] bringing in the union." Arpino re- plied, "I didn't think of it at all." Ellenberg further inquired whether Arpino "thought a union was necessary," and the latter answered, "I didn't see any need for a union." Ellen- berg then stated that "he'd get those two bastards. Espe- cially Rego," although Arpino confessed that Ellenberg did not state why he intended do so. Arpino then related a conversation that he had had with Respondent's elevator mechanic, an employee named Bruno Shrotter, shortly after Arpino was rehired by Respondent on July 20, 1977. In this dialogue Shrotter simply remarked that he was opposed to the Union. Finally, Aniello Rego, who became the Union's shop steward, testified that in June or July 1977 he engaged in a conversation with Larry Tuchie, Respondent's assistant building administrator. In the course of their colloquy Tuchie asked whether Rego had joined the Union. When the employee answered in the affirmative the supervisor re- marked that he would convey this information to Vice Pres- ident Ellenberg. A few weeks later Ellenberg inquired into the reasons for Rego's enlistment in the Union's ranks. Af- ter Rego spelled out his quest for security and fringe bene- fits Ellenberg stated, "if that's what I wanted he wouldn't opposed it." Despite the fact that Rego was a known union adherent and had become the union shop steward after the Union won the election on August 17 he was not thereafter discharged by Respondent, but instead he quit his job in December. In a transparent attempt to paint discriminatory overtones regarding his abandonment of employment. Rego initially claimed that he had left his job because "I was getting harassed" by the chief mechanic. In light of the record evidence that Rubino was a card carrying member of a sister local of the Union I am persuaded that Rego must have had reference to Rubino's insistence upon the performance of overtime work from his mechanics rather than Rego's union activities. I am fortified in this; conclu- sion by Rego's added testimony that he had quit his posi- tion because, "I wanted to find another job." Finally, Rego recounted that following Arbino's discharge on September 22 he observed Robino laugh and heard him comment "one down. one to go." However, Rego stated that Rubino did not explain what he meant by his statement. In light of the foregoing I am at a loss to understand how the General Counsel can seriously contend that Arpino's discharge on September 22 was motivated by his engage- ment in activities on behalf of the Union. If Arpino's testi- monv is to be believed at all in this area, his only discussion concerning the Union with Ellenburg occurred in June 1977, when he was not even an employee of Respondent and approximately 15 months prior to the discharge which gives rise to this proceeding. Moreover, none of Ellenberg's expressed enmity to unionization was targeted at Arpino. Furthermore. on the record before me there is not a single shred of evidence pointing to any union activities engaged in by Arpino other than having voted in the Board election on August 17. In sum, I am convinced and conclude that the General Counsel has failed to establish by a preponder- ance of the evidence on the record as a whole that Respon- dent singled out Arpino for discharge on September 22 be- cause of his activities on behalf of the Union. I shall therefore dismiss the allegation in the complaint which ac- cuses Respondent of having violated Section 8(a)(1) and (3) of the Act by discharging Arpino on that date because of his union involvement. Having found that Respondent has not engaged in any of the violations of the statute as alleged in the complaint, I shall therefore dismiss the complaint in its entirety. ORDER 4 It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. 28