Success Village Apartments, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350 NLRB No. 72 908 Success Village Apartments, Inc. and International Union, United Automobile, Aerospace & Agri- cultural Implement Workers of America, Local 376, AFL–CIO. Cases 34–CA–11110, 34–CA– 11164, 34–CA–11165, 34–CA–11183, 34–CA– 11184, 34–CA–11207, and 34–CA–11234 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 Imple- ment Workers of America, Local 376, AFL–CIO (the Union), over its policy of precluding employees repre- sented by the Union from purchasing apartments at its cooperative, and violated Section 8(a)(3) and (1) by re- fusing, for discriminatory reasons, to allow employee Luis Andrade to purchase apartments.1 Because we find that the purchase of apartments at the Respondent’s co- operative is neither a mandatory subject of bargaining nor a term and condition of employment, we dismiss these complaint allegations. We find, however, that the 1 On January 25, 2006, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed limited cross- exceptions and an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and record in light of the exceptions, cross-exceptions, and briefs, and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this decision, and to adopt the judge’s recommended Order as modified and set forth below. We will modify the recommended Order to conform to the single 8(a)(1) violation found, and in accordance with Excel Container, Inc., 325 NLRB 17 (1997), and Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). No exceptions were filed to the judge’s dismissal of allegations that the Respondent unlawfully threatened employees with unspecified reprisals, issued a 30-day suspension to Dennis Brown for discrimina- tory reasons, unilaterally implemented a mandatory on-call overtime policy regarding snow removal assignments, denied sick leave to em- ployees, and implemented a new telephone answering policy. The Respondent has excepted to some of the judge’s credibility find- ings. The Board’s established policy is not to overrule an administra- tive law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stan- dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondent has requested oral argument. The request is denied as the record, exceptions, limited cross-exceptions, and briefs ade- quately present the issues and the positions of the parties. 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 Bridgeport and Stratford, Connecticut. The cooperative is spread out over somewhere between 40 and 64 acres, and was built in 1941 to provide temporary housing for workers during World War II. It was for- merly owned by the Federal Government and managed by the Bridgeport Housing Authority. In the 1950s, the Government sold the complex and the buyers turned it into a cooperative.2 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 Es- tate & Development Corporation, to oversee the daily operations of the complex and to supervise its employ- ees. The Union has represented the Respondent’s produc- tion, maintenance, and clerical employees since 1975. The bargaining unit now consists of about 10 employees, down from approximately 17–20 employees in previous years. On May 31, 2002, the parties’ 1999–2002 bar- gaining agreement expired. Negotiations commenced in mid-May 2002 for a successor agreement. As of the date of the hearing in the present case, the parties had not reached agreement on a successor contract. For many years, bargaining unit employees have pur- chased and lived in apartments in the cooperative com- plex. Some employees currently own and live in apart- ments 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 ex- ceedingly low. In the negotiations for a successor bargaining agree- ment, 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 Re- spondent’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 pur- 2 We take administrative notice of factual findings pertaining to the history of the cooperative in our recent decisions in Success Village Apartments, Inc., 347 NLRB 1065 (2006) (Success Village I), and Success Village Apartments, Inc., 348 NLRB 579 (2006) (Success Village II). SUCCESS VILLAGE APARTMENTS, INC. 909 chase. Thereafter, however, Property Manager Frank Callahan announced that employees could no longer pur- chase apartments at the complex, canceled 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 ad- dress employee residents in only one respect. Under article III, section 9, the bylaws state that persons receiv- ing 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 Union requested that the Respondent rescind the policy and bargain. The Respondent rejected the Union’s re- quest. Analysis Section 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 em- ployment” to encourage or discourage union member- ship. Similarly, Section 8(a)(5) prohibits a refusal to bargain with the employees’ collective-bargaining repre- sentative, 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 employ- ment.” And Section 8(d) requires bargaining with re- spect 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 U.S. 157, 178 (1971) (only issues that settle an aspect of the em- ployment relationship are terms and conditions of em- ployment). The present case pertains to housing, not employment. Even assuming, arguendo that the Respondent discrimi- nated 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 circum- stances, 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 hous- ing 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) (manda- tory subject of bargaining when an employer built dormi- tories and a trailer park at the worksite to secure a work force and similar convenient and cheap accommodations were non-existent); American Smelting & 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 con- venient 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) (manda- tory subject of bargaining when rents were below pre- vailing market rates and housing was convenient to em- ployees 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 hous- ing. Indeed, the cooperative comprises hundreds of apartments, of which only a tiny fraction are occupied by bargaining unit employees. Second, employees histori- cally 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 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 910 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 employ- ees.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 Section 8(a)(3) and (5). The judge found that the Respondent violated Section 8(a)(3) and (5) because the ability to purchase an apart- ment 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 eco- nomic benefit of buying a Success Village apartment, that is enjoyed by every member of the general public who purchases a residence there. As to the convenience of living within walking distance of work, that is poten- tially enjoyed by everyone who lives at Success Village and works nearby. But even assuming there are none such, that convenience to Respondent’s employees still does not bring the actions at issue here within the scope of Sections 8(a)(3) and (5) because the convenience is not an aspect of the employees’ employment relationship with the Respondent. See NLRB v. Bemis Bros. Bag Co., 206 F.2d 33 (5th Cir. 1953) (housing not a form of com- 3 We note that the restriction on employees serving on the coopera- tive’s board of directors is a product of the cooperative’s housing by- laws and does not derive from the employment relation. Art. III, Sec. (9) of the bylaws states that “persons serving the corporation . . . and receiving compensation . . . shall not be eligible to serve as Directors.” Accordingly, the treatment of employees in this fashion is not an employment past practice, but rather is solely an incident of their status as residents. 4 Our dissenting colleague relies on Union Business Agent Michael Langston’s testimony that the Union historically considered the eco- nomic and commuting advantages of employees living at the coopera- tives when formulating bargaining demands. Nothing in Langston’s testimony indicates, however, that the parties mutually considered the status of residential employees to be an economic matter or that the parties acknowledged that housing was a fringe benefit of any kind. This is not surprising considering that employees were treated identi- cally to the general public. We recognize that the Respondent brought up the subject of employee housing during the 2002 negotiations, but that did not establish a past practice, and the matter evidently was dropped. pensation where there was adequate housing in the com- munity, only one-third of the employees resided in the company-owned houses, and the rental charged was not in any degree less than rentals charged for comparable housing in the vicinity). 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 capac- ity as an employer to employees in their capacity as em- ployees. In Southland Paper Mills, Inc., 161 NLRB 1077 (1966), in contrast, the hunting privileges that the em- ployer provided at its forest preserve were specifically and publicly acknowledged as an employee fringe bene- fit: the benefit accrued to employees in their capacity as employees. See also, e.g., Owens-Corning Fiberglass, 282 NLRB 609 (1987) (employee purchase program ac- cruing to employees on the basis of their employment status). In the present case, housing privileges were af- forded to employees the same as they were afforded to members of the general public, and derived from the Re- spondent’s status as a supplier of housing, not as an em- ployer 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 contem- plate resignation based on any matter pertaining to work- ing 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 avail- able 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 em- ployment. 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 avail- ability of employees. Of course, all other things being SUCCESS VILLAGE APARTMENTS, INC. 911 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 bar- gaining 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 opportu- nity to purchase an apartment was a condition of em- ployment because an employee would have to resign from employment in order to make the purchase. How- ever, this is a misuse of the word “condition.” The dis- sent uses the term as a synonym for “prerequisite.” The term, as used in Section 8(d), refers to the status that pre- vails at the workplace. In sum, we find that the Respondent’s new housing policy did not concern a term or condition of employ- ment, or a form of remuneration as wages or fringe bene- fits, for purposes of Section 8(a)(3) and (5). Accord- ingly, we dismiss the complaint allegations in these re- spects. Finally, we find merit to the General Counsel’s limited cross-exception that Property Manager Callahan’s state- ment 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 im- pact on terms and conditions of employment flowing from the new housing policy within the meaning of Sec- tion 8(a)(3) and (5), Callahan’s statement referencing the denial of Andrade’s housing application because of un- ion status would tend to interfere with employees’ exer- cise 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 employ- ment, 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 vio- lated Section 8(a)(1)).5 ORDER The National Labor Relations Board orders that the Respondent, Success Village Apartments, Inc., Bridge- 5 Apart from attacking Callahan’s statement to employee Johnson, the complaint does not allege that the Respondent’s new housing policy independently violated Sec. 8(a)(1), nor does the General Counsel otherwise contend that in his cross-exceptions. Accordingly, we do not consider the question of whether the housing policy may have inde- pendently violated Sec. 8(a)(1). port, Connecticut, its officers, agents, successors, and assigns, shall 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, re- straining, 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 Bridgeport, Connecticut, copies of the at- tached notice marked “Appendix.”6 Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since March 10, 2005. (b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. MEMBER LIEBMAN, dissenting in part. Permitting employees to buy apartments at the Re- spondent’s co-operative 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 co-operative effectively were re- quired to resign. Despite these circumstances, the major- ity finds that the Respondent’s policy change had nothing to do with employees’ terms and conditions of employ- 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 912 ment, and thus did not violate the Act in any respect. I dissent.1 I. The Respondent is a residential cooperative in the Bridgeport, Connecticut area. The Union has repre- sented the production, maintenance, and clerical employ- ees at the cooperative since 1975. Residences at the co- operative are highly desirable to unit employees because they enable the employees to avoid the time and expense of commuting between home and work. There are other benefits as well. For example, residential unit employees working as plumbers and carpenters are able to work emergency overtime because of their close proximity. The cost of living at the co-operative is also 30–40 per- cent less than other comparable housing in Bridgeport. Union Business Agent Michael Langston testified that many employees have lived at the co-operative over the years, and that the Union always took the benefits of living there into account when formulating wage de- mands. The policy of permitting employees to live at the co- operative 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 Corpo- ration (WC&F) in August 2001. Within a few months of the retention of WC&F, relations between the Union and the Respondent became rancorous, and the Respondent embarked on a series of unfair labor practices detailed in our recent decisions.2 During negotiations with the Union over a new collec- tive-bargaining agreement, the Respondent submitted a proposal providing that employees could no longer pur- chase apartments at the complex. The Union rejected the proposal, and the Respondent withdrew it. Although the Respondent did not unilaterally implement the proposal immediately, it did eventually. In March 2005, em- ployee Luis Andrade applied to purchase a three- 1 I agree with my colleagues that the Respondent violated Sec. 8(a)(1) by virtue of Property Manager Callahan’s statement to em- ployee Johnson that the Respondent did not want union-represented employees residing at the cooperative. 2 See Success Village Apartments, Inc., 347 NLRB 1065 (2006) (Success Village I) (Respondent violated Sec. 8(a)(1) and (5) by refus- ing to meet and bargain over a successor contract, by unilaterally im- plementing contract proposals, and by unilaterally changing various other terms and conditions of employment, and violated Sec. 8(a)(1) and (3) by issuing warnings to, harassing, laying off, and suspending employees); Success Village Apartments, Inc., 348 NLRB 579 (2006) (Success Village II) (Respondent violated Sec. 8(a)(1) and (5) by uni- laterally changing existing terms and conditions of employment, vio- lated Sec. 8(a)(1) and (3) by imposing more onerous working condi- tions on, suspending, and discharging an employee, and violated Sec. 8(a)(1), (3), and (4) by ridiculing and suspending employees, and by denying an employee the use of company equipment). bedroom apartment at the cooperative. The Respondent initially accepted Andrade’s deposit, but then informed him that union-represented employees could no longer live there. Property Manager Frank Callahan told an- other employee, Cecele Johnson, that “the people here in the Co-op don’t want union people living there.” The Respondent returned Andrade’s deposit. Thereafter, the Union requested that the Respondent rescind the decision to prohibit employees from purchasing apartments at the cooperative, and requested bargaining over the new pol- icy. The Respondent refused to bargain or to return to its former practice. The judge found that the ability of the employees to buy an apartment at the co-operative 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 vio- lated Section 8(a)(1) and (5). The judge also found that the Respondent’s prohibition against union-represented employees residing at the co-operative constituted re- taliation 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 co-operative, without bargaining with the Union and because of the employees’ union represen- tation. The majority finds no violation of Section 8(a)(3) or (5), however, because in its view the employees’ abil- ity to purchase an apartment at the co-operative does not involve a term or condition of employment, nor does it constitute a mandatory subject of bargaining.3 That view is mistaken. The employees’ ability to purchase apartments at the co-operative 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 com- muting convenience and the enhanced ability to work overtime, derived from being able to purchase apart- ments at the co-operative, are of significant benefit to the employees. Nor can it be disputed that they are of bene- 3 Sec. 8(a)(3) prohibits discrimination “in regard to hire or tenure of employment or any term or condition of employment.” Sec. 8(a)(5) requires bargaining over matters, as set forth in Sec. 8(d) that involve “wages, hours, and other terms and conditions of employment.” 4 See Inland Steel Co., 77 NLRB 1 (1948) (“terms and conditions of employment” under the Act include “emoluments of value . . . which may accrue to employees out of their employment relationship”), re- view denied 170 F.2d 247, 251 (7th Cir. 1948), cert. denied 336 U.S. 960 (1949). SUCCESS VILLAGE APARTMENTS, INC. 913 fit 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 mar- ket 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 em- ployment relationship because it is the housing’s prox- imity to the workplace that effectively creates the benefit. It is certainly as directly related to the employment rela- tionship 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 them- selves considered the opportunity to purchase apartments at the co-operative an established term and condition of employment. Union Business Agent Langston testified that the Union took the benefit to the employees of this opportunity into consideration when formulating wage demands during collective-bargaining negotiations. Surely, the fact that the Respondent offered a proposal during the parties’ collective-bargaining negotiations that sought to change the policy also demonstrates that the parties viewed the policy as an established term and con- dition of employment that was properly a subject of col- lective bargaining between the parties. 5 See, e.g., United Parcel Service, 336 NLRB 1134 (2001) (close- ness of employee parking to workplace a mandatory subject of bargain- ing); Yellow Cab Co., 229 NLRB 1329 (1977) (drivers’ use of their cabs to commute home a mandatory subject of bargaining), enfd. in pertinent part 603 F.2d 862 (D.C. Cir. 1978); Eagle Material Handling of NJ, 224 NLRB 1529 (1976) (use of company trucks to commute from home to work a mandatory subject of bargaining), enfd. 558 F.2d 160 (3d Cir. 1977). 6 See, e.g., Southland Paper Mills, 161 NLRB 1077 (1966) (em- ployer practice of granting off-duty hunting privileges to employees on property owned by the employer); Master Slack, 230 NLRB 1054 (1977) (layaway purchase program at the employer’s outlet store), enfd. 618 F.2d 6 (6th Cir. 1980); Hedison Mfg. Co., 249 NLRB 791 (1980) (playing of radios and use of pay telephone), enfd. 643 F.2d 32 (1st Cir. 1981); Getty Refining & Marketing Co., 279 NLRB 924 (1986) (recrea- tional fund supporting social events and group recreational activities); Owens-Corning Fiberglass, 282 NLRB 609 (1987) (employee dis- counts on products manufactured by the employer); Superior Forward- ing Co., 282 NLRB 806, (1987) (discounted fuel prices for personal use); Amperage Electric, 301 NLRB 5 (1991) (personal use of com- pany vehicles), enfd. 956 F.2d 269 (6th Cir. 1992); Union Child Day Care Center, Inc., 304 NLRB 517 (1991) (employee use of company vehicle to obtain lunch); Optica Lee Borinquen, Inc., 307 NLRB 705 (1992) (discounts on personal eyewear), enfd. 991 F.2d 786 (1st Cir. 1993); Beverly Enterprises, 310 NLRB 222 (1993) (free coffee), enfd. in relevant part sub nom. Torrington Extend-A-Care Employees Assn. v. NLRB, 17 F.3d 580 (2d Cir. 1994); Doerfer Engineering, 315 NLRB 1137 (1994) (use of company tools for personal projects), enf. denied 79 F.3d 101 (8th Cir. 1996); Verizon of New York, Inc., 339 NLRB 30 (2003) (employee participation in blood drive), enfd. 360 F.3d 206 (D.C. Cir. 2004). Even assuming arguendo that the opportunity to pur- chase apartments at the co-operative was not otherwise a term or condition of employment, the Respondent made it such by effectively conditioning the employees’ pur- chase of an apartment on their resignation from employ- ment with the Respondent. The Respondent’s unilateral change of its policy to prohibit union-represented em- ployees 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 Union, the Respondent’s action violated Section 8(a)(1) and (5) of the Act. Furthermore, because the Re- spondent’s prohibition against union-represented em- ployees residing at the cooperative indisputably consti- tuted retaliation based on the employees’ union represen- tation, the Respondent’s change in policy also violated Section 8(a)(1) and (3). I dissent from the majority’s dismissal of these complaint allegations. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit 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. 7 The majority says that Sec. 8(d) pertains to status prevailing at the workplace. But, the status prevailing at this workplace, until the Re- spondent’s unilateral change, was that union-represented employees were permitted to purchase apartments at the complex. The Respon- dent unilaterally altered that practice for discriminatory reasons linked to employees’ union representation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 914 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 Hartford, Connecticut, on October, 17, 18, 19, and 25, 2005. The charge and amended charges in case 34–CA–11110 were filed on March 9, and 23, and July 7, 2005. The charge in case 34–CA–11164 was filed on April 26, 2005. The charge and amended charge in case 34–CA–11165 was filed on April 26 and August 5, 2005. The charge in case 34–CA–11183 was filed on May 16, 2005. The charge in case 34–CA–11184 was filed on May 16, 2005. The charge in case 34–CA–11207 was filed on June 9, 2005. The charge in case 34–CA–11234 was filed on July 26, 2005. The charge in case 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 dis- criminatory reasons, issued a 30-day suspension to Dennis Brown. 5. That the Respondent violated Section 8(a)(1) and (5) of the Act by making the following unilateral changes without prior notice and without affording the Union an opportunity to bargain. (a) On December 3, 2005, the Respondent implemented a mandatory on-call overtime policy regarding snow removal assignments. (b) Since on March 1, 2005, the Respondent has prohibited employees from purchasing apartments at its facility. (c) Since on March 4, 2005, the Respondent has denied sick leave to employees. (d) On April 16, 26, 2005, the Respondent implemented a new telephone answering policy. Based on the entire record, including my observations of the demeanor of the witnesses and after considering the arguments of counsel, I make the following FINDINGS AND CONCLUSIONS I. JURISDICTION The parties agree and I find that the Respondent is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent is a residential co-operative consisting of 923 apartments in Connecticut. It has a nine-member board of directors who are also residents. In the summer of 2001, the board retained a new management company. As described in a previous decision by Administrative Law Judge Steven Davis, this new company was retained because one of the board’s concerns, “was its belief that the employees were not working hard and were inefficient, and attempts to correct that situation in the past were met with vigorous Union opposition, including the filing of grievances.” Regarding the Union’s attitude to- ward the Union, Judge Davis summarized the evidence pre- sented to him and concluded: There was a dislike of the Union because of its aggressive stance regarding grievances. If the Respondent sought to op- pose a grievance it had to incur legal fees and increased costs. The Board believed that it was powerless to oppose the Un- ion, and therefore resented it and its members. In retaining Callahan and Zaken, the Respondent sought to “oust” the Un- ion, and if it could not do so, it would attempt to change its re- lationship with the Union. Callahan testified repeatedly that he was hired upon a promise to change the relationship be- tween the Respondent and the Union and to change the opera- tion in order to make it more efficient. He sought to make these changes immediately upon his hire, and, as testified re- peatedly by Callahan, affect the employees directly. The Union, since about 1975, has represented certain em- ployees of the Employer in a unit defined as: All production, maintenance and clerical employees, includ- ing plumbers, electricians, boiler tenders, firemen, general maintenance, file clerks and bookkeepers, regularly employed by the Respondent, but excluding foremen, managerial em- ployees, 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 par- ties exchanged contract proposals. The other meetings were held on May 23, July 15, and 22, and August 12, 2002. The Employer declared an impasse on the last date and the Union thereafter wrote a letter to the Respondent expressing its posi- tion that there was no impasse and asking for face-to-face nego- tiations. 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 mainte- SUCCESS VILLAGE APARTMENTS, INC. 915 nance manager. Dennis Brown was the Union’s shop chair- man. (At the time of the hearing, Brown had been out on dis- ability leave for some time.) On June 30, 2004, Judge Davis issued a decision in a group of cases involving the same parties. (Cases 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 2002.1 Although recommending that some of the allegations be dismissed, The judge found that the Respon- dent violated the Act in the following respects: 1. That the Respondent illegally failed to bargain in good faith by refusing to bargain in face-to-face meetings with the Union. 2. That the Respondent made various unilateral changes2 without affording the Union an opportunity to bargain, despite its assertion that the parties had reached an impasse.3 3. That the Respondent violated Section 8(a)(1) and (5) by in some cases unilaterally subcontracting out unit work. (In other instances, the judge concluded that work which had been subcontracted out was either not work traditionally done by bargaining unit employees or was subcontracted out in emer- gency circumstances.) 4. That the Respondent violated Section 8(a)(1) and (3) of the Act by in some cases, laying off, suspending, issuing warn- ings, harassing, or imposing more onerous working conditions on employees because of their union activities.4 1 Five separate complaints in those cases were issued on February 28, April 30, June 10, September 4, and 24, 2003. Those were eventu- ally consolidated for a hearing. 2 The illegal changes involved (a) eliminating employees’ right to make long-distance phone calls to union officials; (b) eliminating em- ployees’ rights to use the copier and facsimile machine for potential grievance documents; (c) imposition of discipline for failure to use time-cards correctly; and (d) implementation of an assigned locker and lock policy. Judge Davis concluded however, that the Respondent had not violated the Act with respect to an allegation that the Respondent had unilaterally reduced the paid time of employee union officials who were engaged in representation functions. 3 In addition to finding no impasse, the judge concluded that the Re- spondent could not rely on an impasse where the bargaining had been impeded by the fact that it had imposed a nonmandatory condition on the bargaining (i.e., the refusal of the Union to agree to its condition that bargaining take place through an intermediary, with the Respon- dent and the Union in separate rooms). The judge rejected the Respon- dent’s defense that the zipper clause in the expired contract constituted a waiver. He concluded; (a) that the management-rights and zipper clauses, although precluding bargaining during midterm for any new subjects, did not permit the Respondent to unilaterally change existing terms and conditions of employment without bargaining; and (b) that since the contract had expired, so had the management-right’s clause. 4 The employees to whom discrimination was found were Dennis Brown, Lloyd Reid, and DeSousa. (The largest portion involved Brown.) Allegations involving an employee named Teja were dis- missed as was an allegation that Reid was assigned to more onerous work. In addition, some allegations involving Brown were also dis- missed. For example, Judge Davis found that the Respondent acted lawfully when it issued a warning to Brown for talking to residents for extended periods of time. He also found that Brown was properly suspended when he failed to follow an order to return to work. Thus, although Judge Davis, on balance, concluded that Brown was more 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 dis- cipline. 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 checkoff, 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 Sec- tion 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 Re- spondent, unilaterally changed its policy and practices regard- ing 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 Re- spondent has, consistent with the terms of its collective- bargaining agreement, insisted on its right to require that main- tenance 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 re- minded 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 con- sider 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 em- ployee called back for such emergency work shall be guaran- teed 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- sinned against than sinning, he did not conclude that Brown was an exemplary employee. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 916 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 signup 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 signup sheet should not be construed as meaning that notwithstanding the explicit terms of the contract, the Respondent had, in prac- tice, 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 Respon- dent 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 earli- est possible time. Frank Callahan testified that from the time his firm was con- tracted to manage the property, he has, when snow was imma- nent, had the practice of telephoning the maintenance employ- ees at 4 a.m. with instructions that they arrive at 5 a.m. He testified that this overtime was mandatory. This was, in fact, confirmed by Reid, the Union’s shop steward. On January 28, 2004, the Respondent issued a memorandum stating that each employee was obligated to work overtime according to the needs of the Co-op per article 5, section 7. (It then goes on to assign all employees, including Dennis Brown, to specific snow removal job assignments.) I note here that this memorandum was issued to the employees outside the 10(b) statute of limitations period. That is, it was issued more than 6 months prior to the filing of the charge in this case.5 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 man- datory. 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. 5 The Respondent argues that if the General Counsel’s theory is that it made a unilateral change that involved requiring overtime mandatory for snow removal then this would be barred by the statute of limita- tions. A substantially similar memorandum with specific assign- ments for each employee, including Brown, was issued on Feb- ruary 7, 2005. General Counsel’s 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 re- moval. 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 be- fore 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 a.m. General Counsel’s 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’s Exhibit 20 is a memo dated February 28, 2005, which is essentially the same text as General Counsel’s Exhibits 18 and 19 but refers to Tuesday (March 1), for an an- ticipated 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 is- sued within the 10(b) period do not represent any material change in the Company’s past practice regarding snow re- moval. 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) and (5) of the Act, and to the extent that employee re- ceived 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. SUCCESS VILLAGE APARTMENTS, INC. 917 2. Sick leave The General Counsel contends that the Respondent unilater- ally 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 man- agement 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 Febru- ary 21 and 25, 2005. On Friday, February 18, the employees were told by Segnari that a snow storm was expected for Sunday evening and that if it occurred they would all be required to report to work early on Monday, February 21. The credible evidence is that Brown said that he would be away in Vermont as he considered Mon- day to be a holiday.6 Segnari replied that Monday would be a mandatory workday. Brown did not show up for work on Monday (it did snow), and did not call in. He returned to work on Tuesday and was asked by management why he was not present the day before. Brown said that he had gone to Vermont. Callahan and Seg- nari, for reasons that I don’t consider particularly relevant, did not believe him. Leone also did not report to work on February 21, 2005, and claimed that he was sick. On February 23, 2005, the Company issued another memo- randum directing that the employees call in on February 24 and 25, at 4 a.m. for a possible snow storm. On Thursday, Febru- ary 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 a.m. and Segnari responded that he had to be in by 5 a.m. 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 occa- sions (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 never- theless 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 timecard 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 no- tice to Leone which read: 6 Even if Brown is correct that February 21, should be considered a contractual holiday, that does not mean that the Employer could not, in emergency situations, require its employees to work on a holiday. All it means is that it would have to pay an additional premium. 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 em- ployees were to call in at 4:00 A.M. on February 24 and Feb- ruary 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 re- port to work for a reasonable amount of overtime, and to re- port to work in emergencies, such as for snow removal. Since this is your first disciplinary suspension you will be sus- pended for one day on March 10, 2005. . . . On March 4, 2005, the Respondent issued a 1-week suspen- sion 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 re- moval. Your girlfriend advised me that you had driven to Vermont for the weekend and were not available. On February 23, we posted a sign that all maintenance em- ployees were to call in at 4:00 a.m. on February 24 and Feb- ruary 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 suspen- sion 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’ asser- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 918 tions that they are sick when they claim to be so, this does not mean that it is unreasonable, improper, or contrary to past prac- tice 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 be- lieve 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 em- ployees. I do not accept the argument that the Employer was obligated, as a matter of past practice, to accept the false asser- tions by Brown and Leone and I do not conclude that the Em- ployer’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 Respon- dent made a unilateral change in its telephone answering policy without offering to bargain with the Union. The General Counsel is relying on a memorandum issued to the office em- ployees basically advising them that they were not to let the phone ring more than four times and that if they receive a sec- ond call while talking to the first caller or talking to someone at the cash window, they were to excuse themselves from the first caller, answer the new call within four rings, ask the second caller to hold, and then return to the second caller after finish- ing the first call. In support of this allegation, the General Counsel called Ceil Johnson to testify about the memorandum and the changed policy. She testified however, that the memorandum essen- tially 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 in- stance, has failed to show that there was any material change in telephone policy and I conclude that this allegation of the com- plaint should be dismissed. 4. The April suspension of Dennis Brown General Counsel’s 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. Seg- nari’s order, you told Mr. Segnari that you brought the trans- missions 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 con- ceded that the second part of the document was correct. That is, he conceded that he did talk to a resident for about 35 min- utes, and as previously noted, he had received a previous warn- ing for talking to residents during his worktime. However, Brown does contest the accuracy of the first para- graph of the suspension notice. But in this regard, Brown’s version is not that much different from the Employer’s. And even by his own account, Brown’s actions could be construed either as deliberately insubordinate or recklessly negligent. On April 11, 2005, Brown was directed to remove two dis- carded automobile transmissions. Normally, bulk trash would be taken to the Bridgeport transfer station, but some time previ- ous, Leone was told by the person at the transfer station that they would not accept transmissions because they contained oil. Leone told Segnari about this and on this occasion, Segnari told Brown to take the transmissions to George’s junk yard instead of to the transfer station. Before removal, Leone also told Brown that the transmissions would not be accepted at the transfer station. (The city of Bridgeport which allows, under permit, for enterprises like Success Village to dump some of their bulk waste, excludes “hazardous waste” which includes crankcase oils.) Nevertheless, instead of taking the transmissions to George’s junk yard, Brown took the transmissions to the transfer station where he dumped them. On or about April 13, 2005, Segnari asked about the transmissions and he credibly testified that Brown said that he had snuck them into the transfer station. Although acknowledging that he was told by Segnari and Leone that the transfer station would not accept the transmis- sions, 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 been 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 judge 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’s 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 suspen- sion issued to Brown was warranted and not motivated by any union considerations. Brown admits that portion of the suspen- sion 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 nondis- SUCCESS VILLAGE APARTMENTS, INC. 919 criminatory 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 transmis- sions. In essence, Brown testified that he chose to ignore the instruction to bring them to George’s junk yard because he felt that he had the choice of where to bring them. 5. Real estate For many years, many of the bargaining unit employees have purchased and lived in apartments at Success Village. At the time of the hearing in this case, some of the employees lived there and some did not. Some like Brown lived elsewhere, albeit owning an apartment within the co-op which was utilized by his son. The number of employees living at Success Village is rela- tively small compared to the entire population. By the terms of the bylaws, although co-operators are members of the corpora- tion, employees are precluded from membership on the board of directors. There was no evidence, one way or the other, to show that employees have ever been given any price discount compared to members of the general population. Nor is there any evi- dence to show whether employees are given some kind of pref- erence in terms of any waiting list for apartments or for the types of apartments that are available. Although there was some testimony from Union Agent Michael Langston that the apartments were somewhat cheaper than nearby apartments in the city of Bridgeport, this testimony was not fleshed out in any detail. There was no evidence to show whether apartments within the co-op were less or more desirable than similar apartments outside the co-op. (For example, by virtue of com- parative school districts.) It may fairly be said, however, that having some of the maintenance employees within walking distance of their jobs would be beneficial to the employees, management, and the people who live in the co-op. During the last set of negotiations that ended on September 30, 2002, the Company made a proposal that would have pro- hibited employees from buying apartments. The Union re- jected that proposal. When the Company declared an impasse, it specifically wrote that it did not intend to implement proposal 40, which was its proposal prohibiting employees from buying apartments. Luis Andrade was employed as a groundsman since June 5, 2003. In March 2005, he applied to purchase a three-bedroom apartment at the co-op. When Segnari told him that there would be no problem in getting an apartment, Andrade made a $450 payment for an appraisal fee. Nevertheless, when Segnari told Callahan about Andrade’s intention, Callahan said that the board no longer wanted em- ployees 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 em- ployed 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 liv- ing 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 dis- cussed by management, it was never announced or imple- mented as a policy until Andrade was notified that he could not purchase an apartment. (In March 2005.) There is no evidence to suggest that the Respondent offered to bargain about this change of policy. The Union, by letter dated April 14, 2005, protested the Re- spondent’s refusal to allow Andrade to purchase an apartment. It requested that the Respondent rescind this decision and that it bargain about it. On May 5, 2005, the Respondent rejected the Union’s April 14 request. The Respondent asserts that the reason it made this change was to avoid a conflict of interest inherent in employees who purchase apartments also being voting members of the co- operative. 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 con- flict of interest when bargaining got tough and the Respondent wanted to obtain substantial concessions from the Union. It seems to me that whether this set of events is alleged as an 8(a)(3) or (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 motiva- tion.7 By the same token, if the Respondent is correct in its as- sertion that the purchase of real estate is not a term and condi- tion 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 member- ship in any labor organization. Assuming that the Board upholds Judge Davis’ decision that there was no valid impasse and that the Respondent unlawfully implemented its last offer, then the terms and conditions of employment in effect at the time of the unilateral change would be those in existence before the last offer was implemented. Further, the evidence shows that even if that conclusion is not upheld, the Respondent specifically notified the Union that in 7 Sec. 8(d) of the Act states in pertinent part; “For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment. . . .” (Emphasis added.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 920 implementing its final offer, it was withdrawing the proposal that would have barred employees from buying apartments in the co-op. In either scenario, the existing conditions just before the change were that employees were allowed to buy apart- ments. Therefore, the only legal question is whether that change affected a term and condition of employment. Cases dealing with this subject matter are not all that numer- ous 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 leas- ing 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 con- stitutes 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.8 One of the cases cited by the General Counsel is Lehigh Portland Cement Co., 101 NLRB 529 (1952), enfd. 205 F.2d 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 nonemployees, three had previ- ously been employed by the predecessor company.) The evi- dence 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 em- ployees (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 en- forced 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 employ- ment”, 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 em- ployer’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 some- thing which affects the conditions of employment under which its employees work; and it contends that these condi- tions 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 8 Weyerhaeuser held that company provided meals were terms and conditions of employment and therefore were subject to bargaining. 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 propo- sition 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 bargain- ing 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 cir- cumstance 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 ad- vantages which undoubtedly affected their conditions of em- ployment. 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 com- pany houses from 150 to 65 during the period of the com- pany’s ownership. Nevertheless it is still substantial; and it bears directly on the crucial question in the case, since the re- tention by the company of a sufficient number of dwellings to house 25 percent 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 privi- lege 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 col- lective 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, revd. 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 relat- ing 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 and (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 & 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. SUCCESS VILLAGE APARTMENTS, INC. 921 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 em- ployment. The court noted that the record did not show if rent- als 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 emolu- ment 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.), http://web2.westlaw.com/find/default.wl?rs=WLW5. 12&serialnum=1951118626&tf=-1&db=350&tc=- 1&fn=_top&referenceposition=972&mt=Westlaw& vr=2.0&sv=Split&referencepositiontype=S&rp=%2f find%2fdefault.wl&findtype=Y 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 remu- neration” they become a subject of bargaining. This reason- ing 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 oc- cupy company-owned houses as to the one-third who do. It is, of course, true that there are situations where the em- ployee may not have freedom of choice in securing living ac- commodations. This may result either from express require- ment of the employer or where other housing is unavailable and which requires occupancy of company housing if there is to be any employment. Where this situation exists, the terms and conditions of occupancy or tenancy can well be said to be a condition of employment. However, before such occupancy and its consequences becomes a condition of employment there must be some necessity, either imposed by the employer or by the force of circumstances, which requires the employee to subject himself to the condition of occupancy of company housing. In this case the evidence that other adequate housing is avail- able in the community is not contradicted. There is no evi- dence that the rentals charged by the respondent are in any degree less than those charged for comparable housing in the vicinity. In these circumstances the fact that the employer confines the rental of its houses to employees does not alone make the conditions of tenancy a condition of employment, nor, where there is no compulsion, either by express require- ment or resulting in fact from circumstances which in reason require the employee to live in a company house, the condi- tions of tenancy of such houses which a minority of the em- ployees may, but are not required to, occupy is not a condition of employment within the contemplation or purpose of the statute. The element of necessity is of course not material as to features of the employer-employee relationship which in- here in the actual employment, the carrying on of the busi- ness. These concern and relate to the business, the employ- ment, directly, and not incidentally, as does the company housing now for consideration under the facts of this case. One concerns a business operation. The other pertains to liv- ing conditions during off-hours when the employee is free to pursue his personal life as he may prefer. The brief for the Board recites the genesis and status of the mill village as a necessary adjunct of the mill enterprise. We can recall instances where the village is an essential part of the business operation. We have in mind others where the com- pany-owned houses have been disposed of and subsequently tenanted by non-employees without any interruption or detri- ment to the business enterprise. We think each case must be determined upon its particular facts. On this record, which fails to show that rentals are so low as to be partial remunera- tion for services and, therefore, in effect, wages, or, for any reason save individual choice why one-third of the employees occupy company housing, we are unable to hold that the terms and conditions of such occupancy are comprehended within the statute’s designation of “wages” or “other condi- tions of employment.” Although the cited cases offer analogies, the facts in the pre- sent case do not, in my opinion, clearly fit into any of the fac- tual scenarios described above. Success Village is not com- pany housing. On the contrary, it is a large housing cooperative marketed to and lived in for the most part by people who are not employees of the Respondent. Although many of the Com- pany’s employees have lived in these apartments, they consti- tute a miniscule percentage of the total population. Nor is there any evidence that the employees of the Respon- dent have either enjoyed any discount in terms of price or any preference in terms of which apartments they may want to pur- chase. On the other hand, the fact that so large a percentage of the Company’s workforce has, in the past, decided to buy apart- ments is indicative of their relative desirability. If not price, then perhaps convenience or the opportunity to own one’s household. And as noted above, there is a value to the em- ployer, the employees and the other residents in having mainte- nance staff readily available on the premises to deal with prob- lems as soon as possible. It seems to me that the phrase “term and condition of em- ployment” should encompass any significant economic benefit or determinant to an employee arising in the context of the employment relationship. NLRB v. Borg-Warner Corp., 356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 922 U.S. 342 (1958). For example, if an employee is required to buy his own work clothes in order to do construction or mining work, then that would be an economic detriment and would, in my opinion be a term or condition of his work. By the same token, if an employee receives a free lunch at work or more time for lunch, these are economic emoluments because the free lunch allows him to spend his own money on something else and any extra paid time for lunch results in the same amount of pay for less worktime. The amounts may or not be trivial to one or both sides, but the benefit would be real to the employee.9 Obviously if the apartments here were provided to employ- ees at a discount to market value, then they would clearly gen- erate an economic benefit to the buyer. Even if he did not live in one, he could sell it at a profit and “earn” additional money as a consequence of being employed by the Respondent. This, however, is not the case here. One difference between the facts in the present case and the facts in the cases cited by both parties is that the properties involved there were rentals and the properties here are co-ops. In the described rental situations, the property stayed within the ownership of the respective respondents. In the present case, the properties were offered for sale and this gave employees an opportunity to own rather than rent their households. While value in real estate is dependent on many factors, I think it is fair to say that over an extended period of time, the value of housing has increased at least as much as the rate of inflation. Granted, value has increased more in some locations than in others. And there is nothing that says that property can’t de- preciate in value. But overall, the value of property has tended to go up and thereby has conferred an economic benefit to the owner. By contrast, rents on housing have also gone up over time and in that case, the economic consequence to the tenant has been just the opposite. Any increase in value to the owner 9 For example, if a restaurant allowed its employees to take home whatever food is left over at the end of the day, the cost to the employer would be trivial but the economic benefit over time to the employee could be substantial. (by way of increased rents), would be to the economic detri- ment of the renter.7 In my opinion, the ability to buy an apartment at the co-op would, in all probability confer, over time, a real economic benefit to any employee who chose to purchase one. (There is no evidence to suggest the co-operators cannot sell their apart- ments at market prices or are required to resell their apartments, upon leaving, only to the co-op at a predetermined fixed price.) This is in addition to the convenience benefit of living within walking distance of one’s work. It therefore is my opinion that the past practice of allowing employees to purchase apartments relates to a “term and condition of employment” and therefore could not be unilaterally changed without bargaining with the Union. Based on the above, it is my opinion that by unilaterally pro- hibiting employees of the Respondent from purchasing apart- ments in the co-op, the Respondent violated Section 8(a)(1) and (5) of the Act. Also, given the background of this case, I conclude that the sudden opinion that allows employees to purchase apartments would be a “conflict of interest” would not have been reached if these employees were not represented by a union that manage- ment wanted to play hardball with. In short, the evidence con- vinces me that the Employer decided to put this prohibition into place in retaliation against the employees because of their union membership and representation. I therefore conclude that the implementation of this policy in relation to Andrade’s attempt to purchase an apartment violated Section 8(a)(1) and (3) of the Act. Finally, I conclude that the aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. [Recommended Order omitted from publication.] 7 I also note that the Federal government gives homeowners a sub- stantial subsidy in the form of income tax deductions for local property taxes and mortgage interest payments.