New York Chinatown Senior Citizens Coalition Center, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York Chinatown Senior Citizens Coalition Cen- ter, Inc. and April C. Sung. Case 2-CA-14555 December 6, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALF On August 1, 1978, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs. 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. While we do not adopt all of the commentary in the Administrative Law Judge's Decision, we agree with his conclusion that Respondent lawfully discharged Moy. Chung, and Lau since the thrust and purpose of their activities was to effect a change in the top management of their Employer. See Retail Clerks Union, Local 770 Retail Clerks International Association, 208 NLRB 356 (1974). DECISION STATEMENT OF THE CASE THOMAS A Ricci, Administrative Law Judge: A hearing in this proceeding was held on April 27 and 28, 1977, and on March 6, 1978, on complaint of the General Counsel against New York Chinatown Senior Citizens Coalition Center, Inc., here called the Respondent or the Employer. The complaint issued on March 2, 1977, upon a charge filed on October 15, 1976, by April C. Sung, here called the Charging Party. The issue presented is whether, as charged by Ms. Sung, the Respondent discharged William Chung, Peter Moy and Linda Lau in violation of Section 8(a)(1) of the statute. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FACTS New York Chinatown Senior Citizens Coalition Center, Inc., is a nonprofit corporation existing under the laws of the State of New York. It maintains a place of business in New York City where it is engaged in providing hot lunches, recreational activities and educational facilities and other social services for senior citizens. During the past year, a representative period, it operated on a budget of about $130,000 which it received from the New York City Department of Social Services. Of this amount 75 percent consisted of funds furnished by the United States Govern- ment through its Department of Health, Education, and Welfare. The remainder came from the city and State of New York in equal amounts. I find that this ce lter is engaged in commerce within the meaning of the Act. Child and Family Service of Springfield, Inc., 220 NLRB 37 (1975). II. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction This case presents a classic story of personality clashes unfortunately not uncommon in human experience. The stresses of life, the unending variances in individual con- ceptions of social responsibility, the ego of man-and of women-brought the actors of this play into inevitable conflict. The end result was, as it had to be, permanent separation of irreconcilable personalities. The state setting was a very large room in the basement of a church on Duane Street, on the edge of New York City's Chinatown. Here are carried on the activities of the New York City Chinatown Senior Citizens Coalition Cen- ter, a Government-funded social service project. Every day hundreds of elderly persons-all Chinese-gather here to spend the time of day safely, happily, in a beneficial and constructive environment. They receive free lunches and an afternoon snack, expert advice on the usual problems of the aged-such as Medicare benefits, social security rights, information about nursing and convalescent homes when necessary, and even periodic medical assistance. Every so often groups of these so-called senior citizens go for a pic- nic into the park. Of all the people who gather here very, very few speak any English. They are distinctly ethnic in both language and cultural tradition. The Center is run at the top by a board of governors consisting of businessmen and other important members of the Chinese community. They do not personally come near the place. They appoint an executive director, whose office is at the Center and who is in charge of everything all day long. He hires-and fires--at least three full-time employ- ees: A social worker, a bookkeeper, and a cook. There are a few part-timers, such as assistant cooks, dishwashers, etc., but whether these are also paid employees is not clear on the record. Much help, however, is given by volunteers; these are themselves senior citizens who spend their time at the Center anyway. They help serve the meals, assist in the kitchen, distribute fruits. atid generally help with the old people one way or another. After all, they are there be- 614 N.Y. CHINATOWN SENIOR CITIZENS COALITION cause they have nothing else to do, and how better pass the time of day than by helping others in a nice way? During the month of July 1976, the position of director was vacant, the last incumbent having left. Linda Lau, for 2 years the social worker, was acting director and occupied the director's office. William Chung, the bookkeeper, who worked in another office, had three times during the prior 2 years applied for the director's job but been rejected by the board of governors, his last attempt failing only the previous month. The board appointed a new director-Mr. Peter Lee-on July 16. Word of this got about, and Lee first appeared at the Center to assume his duties on August 2. There was born that day, and there continued to flare thereafter with one incident following another, a pervasive discord between Lee and the three full-timers--Lau, Chung, and Peter Moy, the cook, that ended with this pro- ceeding. On September 7 Lee fired all three of them. After a whole month and 8 days a charge was filed on their behalf with the National Labor Relations Board contend- ing that the things they did after Lee arrived, and which caused them to lose their jobs, were "protected" by the Taft-Hartley Act. B. Some Facts Lee, as a witness, started by saying that when he arrived on August 2, Lau came to work 2 hours late, at I a.m. Lau denied this. I do not know what time she came to work but judging from other evidence of her independent spirit on the job, it may well be she did as she thought best even as to work starting time. But what happened next is not in question. Lee asked her to move out of the office; as Lau testified, "he wanted to take my office." It will be remem- bered Lau had been acting director for a month by this time. She refused to move out-as simply as that. Again in her own words: "I just cursed with him." She had never before seen the man. From this Lee went to Chung, the bookkeeper. He too refused to budge: "I told him [Lee] this is a public place and the accounts in the Center have to be placed in a safe room." Now Lee asks Chung for the key, and Chung says he does not have one. Later he finds it and produces it. Lee then asks for the keys to the cabinets; again Chung says they are in the hands of the board of governors. Lee never did get them until 2 weeks later. Throughout the month of August there continued a pro- gressively more and more aggravated bickering between these employees and Lee. Many of the areas in which the employees disagreed with the director involved how best they might discharge their duties, including what hours they should spend inside the Center. Lee testified they took too long for lunch, arrived too late, came and went as they saw fit despite his repeated instructions that they were not to take time away from work during scheduled hours. Chung and Lau did not really contradict this testimony. As to what they thought they had a right to do in connection with their duties, there is little conflict in the testimony. Although the witnesses all too often mixed their factual statements with mutual exchanges of criticism and fault finding, some facts do appear clearly. One of the things Lee announced at early staff meetings was that anyone wishing to take a vacation must first give him 2 weeks advance notice. On August 19 Chung handed him a memo asking for a week off starting the 20th. The director told him not to do that, but Chung ignored him and left anyway. There is a billiard table in the middle of the general area where the old people play to pass time. Chung testified Lee gave orders that the full-time staff members were not to spend their time, other than perhaps during their scheduled lunch hour, playing billiards, at- tending the physical fitness classes, or going out to the park picnicking with the old people. The staff members dis- agreed; they considered this the wrong way of running the Center. What more clearly reveals both what talk took place during August and what the employees in question found fault with in Lee, is a letter the three of them wrote to the board of governors on August 26 strongly urging that Lee be thrown out of the place. Among other things, they said: (I) ". . . he intended to drive Linda Lau out from her office"; (2) "the employees cannot participate in any activities in the Center"; (3) ". . . he tried to move the accountant out too"; and (4) ". .. he opened a Sun-Chi- Chuan class since August 12 and he was the teacher him- self . ." Things came to a head on August 30. Moy, the cook, had been on vacation in Hong Kong from the beginning of August and returned home by August 21. Lee learned of this and telephoned him to come to work. Moy refused to obey. He did come in on August 30. During that morning he left his work in the kitchen and came out to the middle of the large room to "quarrel"-his own word-with one of the elder citizens, a man named Mr. Eng. This was in the presence of over 100 of the Center's citizens. Moy had learned of an article that had appeared in the local Chinese newspaper saying he had stolen something from the Cen- ter. He accused Eng of having told this to some reporter. Soon voices were raised; Lau and Chung came out of their rooms and the situation quickly became tense. Lee, now "scared," as he said, came running out and seized the loud- speaker microphone to urge calm on everybody. He called out that everybody should sit down, and told Lau, Chung, and Moy to return to their offices or place of work. In the presence of all these people, each of the three refused to leave. The details of loud voices--threats or no threats, exchange of invitations "to fight," and hands raised or not-are not in themselves important. What is clear is that three or four times Lee told the staff members, particularly Moy, to get out of there and that they disregarded him. Moy's explanation: "He [Lee] asked me to go back to the kitchen and work. And I said . . . I got to clarify this for my honor and for my work because this is going to affect my spirit of work and I got to clarify this today." Asked, at the hearing, why she refused to go back to her office, Lau explained: "Anybody can answer the telephone. If it rings anybody can answer." With Lee continuing his efforts to disperse and quiet the crowd, another old man dropped in a faint. An ambulance was called and he was taken to the hospital. Finally, things quieted down. The man Moy had accusingly confronted died 3 days later. Justice demands that one thing be made clear at this point: there is no evidence here at all that the man's unfortunate death was in any way related to the incident that occurred that morning. 615 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At noon that same day three volunteers-these are the people who assisted at lunch in the distribution of utensils and such things-told Lee that Moy, in charge of the lunch operation, had "fired" them. Moy denied having fired any- body. Given Moy's then agitated state of mind, it is possi- ble the volunteers could have been mistaken. The impor- tant thing is that they did say this to Lee. After lunch, at about I o'clock, Lee saw Lau and Chung distributing or- anges to the mass of people in the middle of the room. He told them to stop it and to go back to their own offices and do their assigned work. They refused, and continued to do what they thought was proper instead. That it was not part of their work to do this is admitted, although Lau told Lee, while ignoring his instructions, "1 like to do this." By this time, Lee, faced with what he could only view as persistent insubordination by the staff, tried to contact the board of governors about how to solve his administrative problem. He got no help. Early in the afternoon he asked all three of the employees to come to a staff meeting in his office at 3 o'clock to discuss "the problem that happened this morning." And again each one of them deliberately refused to attend. Their explanations, long after the event: LAU: A. ... I had to finish all the reports... I told Mr. Lee ... if it's very important perhaps I can stay a few minutes . . . He didn't say being at the meeting is important or not important or what. So, I assumed okay, you know, it's not very important and I went back to my work. CHUNG: A. She [Lau] told me at about 3:30 in the afternoon there would be a staff meeting. Q. Did you go to the staff meeting? A. No. MoY: Q. ... did Mr. Lee inform you that there would be a staff meeting that day at 3:00? A. Yes... Q. What did he say to you about the meeting? A. Nothing, just a meeting.. . I told him that if I were free that I would come. Q. Did you go to the meeting? A. No. The next day-August 31-the three employees wrote up a document entitled "Letter of the Public-Strong Pro- test Against Sun-Ho Lee's performance." They gave it to a citizen member of the Center who had copies made, and these were distributed on the sidewalks in the general Chi- natown area. Lee learned about this leaflet, signed by Lau, Chung, and Moy on the same day. On September 7 he discharged all three of them. C. The Law; As Distinguished From What Really Happened In the sense that this is a legal proceeding, the two main participants are counsel for the General Counsel, Mr. Bi- blowitz, and the lawyer for the Center, or the Respondent, Mr. Moore. Each, of course, views the case in a totally different light. Speaking through the formal complaint, the General Counsel says that what these three employees did during the month of August (I) was concerted-i.e., they did it together, and (2) involved their working conditions. He must say this, because the Center is charged with hav- ing violated Section 8(a)(1) of the Act, which uses exactly those words. It is then argued that Lee fired the three be- cause whatever they did they did "together," and because what they wanted was to better their working conditions. If in fact Lee was motivated by resentment against such "to- getherness" and the urgent insistence on bettering employ- ee working conditions, he violated the law when he dis- charged them. The Respondent says this is not what happened. Moore said, towards the close of the hearing, that Lee got rid of them only because of their "miscon- duct," or "insubordination," and not for any other reason. Like all lawyers Biblowitz and Moore want me to look at only part of the picture, that selected portion which serves to support their respective views. This is what is called an out-of-context appraisal of the total evidence. They each take too narrow a look and I think they are therefore both mistaken. The three staff members are also a real party to the case, and the dispute-all Labor Board cases arise from some kind of a dispute-was between them and Lee. The true question to be answered-and the case will stand or fall upon this answer-is: What was the nature of the dis- pute between the entrenched employees who were running the Center according to their own sense of values, and the newly arrived boss who had his own ideas as to how the social objectives of the Center could best be achieved? The whole story is just one single mixup, but the case can best be understood if one thing be taken at a time. The General Counsel did not file a brief, and thereby avoided answering questions that might shed light upon the truth. In their first written criticism of Lee-sent to the board of governors on August 26-the three employees complained of his "conceit and pride," his "pickiness and hypocrisy," the fact that "he felt that some of them are not well trained." The document also belittles Lee for having taken the liberty of teaching a course 2 days a week. A more revealing phrase reads: "In the olden federalistic age, we still have the saying that wrong commands should not be obeyed." Unless the executive director's particular ideas as to the correct method for achieving desirable community goals, ideas which these employees equated with objectionable personality idiosyncrasies, are to be called a condition of their own employment as that phrase has always been viewed under Board law, I cannot see how the quoted phrasings of their dispute relate to the complaint here at all. The statement concedes that the director did not threaten the employees' status. Apparently the Chinese lo- cal newspaper had carried, long before he came on the scene, some rumor about Lee intending to take action det- rimental to the staff. On August 3-still according to the August 26 document-the staff members called his atten- tion to those old newspaper stories and he denied them, even called them "ridiculous." A fair reading of the totality of this listing of complaints therefore is that the three em- ployees thought Lee was not good enough to hold the job, and that they were of this view essentially because he was 616 N.Y. CHINATOWN SENIOR CITIZENS COALITION not running the Center in such a way as would best achieve the social objective for which public funds were being spent. They honestly thought the Center should be run en- tirely differently. This operation cannot be called a "business" in the ordi- nary sense; certainly the end product of all the employees effort is different from the usual. But employees these three persons were; they had fixed hours of work, a certain rate of pay, necessary supervision, and an object to accomplish. One asks: If they had been cabinetmakers and the product of the "business" were furniture, could they question their employer's decision to produce Louis XIV consoles and insist that he make Swedish Modern instead? Were they members of a hospital staff working to make people well, would Section 8(a)(1) of the statute "protect" their "con- certed" action aimed at giving the patients two, instead of one, daily enema as prescribed by the physician director? Of course fashioning this furniture or that, applying one medication or another, touches upon working conditions. And it is equally true Lau, Chung, and Moy all three had ideas in common about how the citizen center could best benefit the senior citizens of Chinatown. But to focus sole- ly upon the fact they were three and not one, and the fact that whatever was in dispute had something to do with their work, is to exalt form over substance. It is not the adjective that governs, but the noun. When he said, as the record does show, there might be certain job rotations because some employees were not well trained, was Lee speaking about wages being too high, fringe benefits too generous-the real terms and conditions of employment-or was he saying that anyone who thinks he should play bingo and go to the park on picnics during working hours misconceives the proper way of running a social center such as this? There is a difference, and a very significant one, between a concern with conditions of em- ployment--or matters that traditionally belong in collec- tive-bargaining agreements-and personal disagreement with an individual employer that has nothing to do with wages, work assignments, and things like that. Chung, the bookkeeper, who had also signed the detailed listing of gripes against the director on August 26, was asked why did he take part in its preparation. He answered: "Because Mr. Peter Lee became the Executive Director of the Cen- ter. What he did and what he said affected my spirit of working very much." This was the man who had three times tried to get the job and was turned down. That his spirit would be depressed is understandable. I am sure he felt he could do a better job of running the Center. But it does not follow from this that his purpose, or his 'concert- ed activity," was to improve his working conditions as a bookkeeper. The distinction between what these staff members were doing and what could conceivably be called their "working conditions," is even more clearly seen if one keeps in mind that the dispute here was virtually a public one. Some of the witnesses said that between 100 and 200 elderly citizens have lunch in the Center every day, and others spoke of the total number who come to pass the time as about 1,000. This is a considerable segment of Chinatown. This also explains why the employees involved appealed to the "pub- lic" to join their cause, and why their written complaint was distributed on the sidewalks away from the premises. Labor disputes relating to working conditions in a factory, or in any place of employment, normally are publicized right there, even if outside the door. It was enough to look at the mass of people in attendance at the hearing-easily over 100, filling the room and overflowing into the crowd- ed corridor-to appreciate that this was a public furor far removed from what could be called, under applicable law, Lau's, Chung's, or Moy's interest in the details of their personal jobs. In their "Letter to the Public" distributed on August 31, the staff members publicized their assertion that Lee had "not been doing anything profitable to the public since he arrived." and that unless he were removed "the principles of serving the public would be disturbed." It is one thing to appeal to the public not to patronize a recalcitrant employer, to urge that they make their pur- chases elsewhere instead of here. But it is something else again to bring about a division of sentiment among the very participants of a social welfare program that exists for their own benefit. Such public discord worked exactly in the opposite direction from the purpose for which the Cen- ter exists. To the extent that it was within his power, Lee had no choice but to put a stop to it, lest the public funds be totally wasted.' This significant point is interestingly emphasized by a letter sent to me after the hearing with reference-I think!-to post-hearing attempts at amicable settlement of the whole case. The outside of the mailing envelope identifies the addressers as "Most of the Senior Citizens, Senior Citizen Coalition Center." This was an honest and revealing statement by one group that the dis- pute involved affects and has divided the whole commu- nity.2 I conclude, on the record in its entirety, that the three staff members were not dismissed because of activities re- lated to their own working conditions, but rather to resolve a broad community problem that divided the public, the hundreds of senior citizens who frequent the coalition cen- ter, and its paid employees-supervisor and rank-and-file. I shall therefore recommend dismissal of the complaint. But like the General Counsel, the Respondent too mis- conceives the nature of the employees' protest. To label their intentions "misconduct" is to see only the surface of things, and to ignore the real meaning. The word miscon- duct suggests disrespect, offense, or behavior that is just not nice. Lau, Chung, and Moy do not deserve such dispar- agement. When Lau and Chung insisted upon completing the distribution of fruit to the elderly people they were thinking of the necessity of substituting for the absence of the volunteers and not of disobeying the director. When all three of the staff members stayed close to the entire group of people during the heat of the fracas on August 30, even ignoring Lee's idea that it would be better if they returned to their private places, it was really because they believed they could by their presence be a more calming influence. I"The relation between superiors and inferiors Is like that between the wind and Ihe grass. The grass must bend vhepr the wind blows across it "The ( oinfucian Analects." bk XII. 19 I havse marked this envelope as A 1.J Fxh I and added it to the record As its contents 'ere written entirel in ('hinese. without Iranslatin, they hase not been considered in reaching a decision here. 617 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And this is equally true, as the record in its entirety clearly shows, of their total course of conduct-always aimed at a more successful fulfillment of the Center's ultimate objec- tive. In a superficial sense it looked like insubordination to Lee, and I suppose he could reasonably call it that. I think everyone was well intentioned at the time of the events. Thereafter they spoke hastily and acted without sufficient thought. Lau, Chung, and Moy are not to be faulted for having filed the charge in this proceeding. Cer- tainly the General Counsel went on to issue the complaint in the light of what on the surface seemed a triable case. Understandably offended by the charge of having acted illegally, Lee reacted by calling it misconduct. I am sure he realizes now the employees did not mean to offend him personally. And again, if I may quote the old philosopher: "Things that are done, it is needless to speak about . . . Things that are past, it is needless to blame." "The Confu- cian Analects," book 111, 21, ii. ORDER 3 It is hereby recommended that the complaint be, and it hereby is, dismissed. 1 In the event noi 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 618