Glenwood Management Corp.

GLENWOOD MANAGEMENT CORP Glenwood Management Corp . and Issac Landerer and Fred L. Wallace. Cases 29-CA-12573 and 29-CA-12597 29 January 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On 2 April 1987 Administrative Law Judge James F. Morton issued the attached decision. The Respondent filed exceptions with supporting argu- ment, and the General Counsel filed cross-excep- tions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, i and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Glenwood Management Corp., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 2(b) and re- letter the former 2(b) and subsequent paragraphs. "(b) Reestablish its maintenance department op- erations." 2. Substitute the attached notice for that of the administrative law judge ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard 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 foi reversing the findings In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be comput- ed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts ac- crued prior to I January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 2 The judge found and the Respondent admits that it closed its mainte- nance department after discharging the five employees who comprised it We agree with the judge's finding that the discharges violated Sec 8(a)(1) In his remedy section, the judge found that the Respondent has not demonstrated that a restoration of the status quo ante would endan- ger its continued viability In agreeing that a restoration of the status quo ante is appropriate here, we find that the Respondent has failed to estab- lish that such a remedy would endanger its continued viability or be unduly burdensome Thus, we shall conform the recommended Order to the provisions of the judge's remedy section by requiring the Respondent to reestablish its maintenance department APPENDIX 1151 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge any of our employees because they concertedly seek wage increases. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL reestablish our maintenance depart- ment operations WE WILL offer Charles Lofton, Alvaro Fuentes, Horace James, Gain Brockington, and Issac Lan- derer immediate and full reinstatement to their former jobs, discharging, if necessary, any employ- ees hired to replace them; WE WILL restore their seniority and other rights and privileges previously enjoyed; and WE WILL pay them backpay, with in- terest, they lost because we discriminatorily dis- charged them. WE WILL remove from our files any reference to the discharges of the above-named employees and WE WILL notify them in writing that this has been done and that evidence of our unlawful actions will not be used as a basis for future discipline against them. GLENWOOD MANAGEMENT CORP. David S. Cohen, Esq, for the General Counsel. Stuart Schlesinger, Esq and William D. Fireman, Esq. (Julien and Schlesinger), of New York City, New York, for the Respondent Fred L. Wallace, Esq, of New York City, for the Charging Parties DECISION STATEMENT OF THE CASE JAMES F. MORTON, Adminstrative Law Judge. The consolidated complaint alleges that Glenwood Manage- ment Corp (Glenwood) violated Section 8(a)(1) of the National Labor Relations Act (the Act) by having dis- charged five employees because they engaged in activi- ties protected by Section 7 of the Act In its answer, Glenwood asserts that they were discharged solely for legitimate business purposes.' i Glenwood also contends that the only proper party respondent is New Hyde Service Corp, and that Glenwood is not properly a party to Continued 287 NLRB No. 113 1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The hearing was held in Brooklyn, New York, on 9, 10, and 11 February 1987. Based on the entire record, in- cluding my observations of the demeanor of the wit- nesses, and after reading the briefs submitted by the Gen- eral Counsel and by Respondent , I make the following FINDINGS OF FACT I JURISDICTION The pleadings establish , and I find , that Glenwood is a New York corporation that manages residential apart- ment buildings and that its operations meet the applicable Board standard for the assertion of jurisdiction lI THE ALLEGED UNFAIR LABOR PRACTICE A. Background Glenwood manages about 18 luxury high -rise apart- ment buildings in New York City . In one of those build- ings, Glenwood had space for its maintenance depart- ment which , in early 1985 , consisted of a supervisor and the five employees involved in this case These employ- ees reported to that location for their daily work assign- ments that generally required them to make the larger repairs, e.g , replacing motor bearings , trouble-shooting electrical problems, fixing pumps, and servicing air-con- ditioning units The building superintendents and porters who worked at the apartment buildings managed by Glenwood generally took care of the minor repairs- such as fixing leaky faucets and changing light bulbs. These building superintendents , porters, and other em- ployees who work at the respective apartment buildings managed by Glenwood have been represented for collec- tive-bargaining purposes by a labor organization They usually have received contractual wage increases each April. The five employees involved in the instant case have been unrepresented . About 1982, one of Glen- wood's assistant vice presidents arranged that they would receive wage increases each April , comparable to those given the represented employees . It appears, how- ever, that they did not have a pension plan or receive other benefits (such as Christmas gratuities given by ten- ants) that the represented employees enjoyed B. The General Counsel's Case-in-Chief The General Counsel called as witnesses Charles Lofton, Alvaro Fuentes, Horace James, Gain Brocking- ton, and Issac Landerer-the five discharged employees. Their accounts substantially corroborated each other and disclosed the following events. All dates hereafter are for 1986 unless specified otherwise All five employees met several times early that year with Dan Biggs, an assistant vice president, and with their immediate supervisor, Richie Wirsing. They told Biggs then that it was about time that they got "a decent this proceeding Stipulations received at the hearing established that Glenwood and other legal entities , including New Hyde Service Corp, are commonly owned and operated Further , the letters which notified the five employees that they were discharged, as discussed elsewhere, were written on Glenwood's stationery and were signed by one of its senior vice presidents I find no merit to Glenwood 's contention that it was improperly named as Respondent increase" and asked that a pension plan be set up for them At the last of those meetings , which was held sometime in March, Biggs informed them that they would not be given "a pension fund ." The employees, with Lofton doing most of the talking, informed Biggs that they were entitled to a larger raise than the repre- sented employees were due to get . Biggs responded that he would get back to them and that he had to consult with Jack Coopersmith, one of Glenwood's two senior vice presidents. In April , Lofton saw Biggs at one of the apartment buildings managed by Glenwood. There, Lofton told Biggs that the men needed a "better raise" (than the rep- resented employees would soon be getting) and that, if they did not get it, they would "turn back [their] checks 1'2 Biggs told him that he would get back to him. The five employees in fact received the same wage in- crease that was given to the represented employees. The raise appeared in the checks given them on I May. Two of the five (Fuentes and James) cashed their checks im- mediately on receiving them on their return to the main- tenance department location. The other three (Lofton, Brockington , and Landerer) agreed that Lofton would return their checks to Coopersmith , in protest of the in- adequate raise, as they viewed it. Fuentes, in support of that protest, later informed his supervisor, Wirsing, that the raise he received should be deducted from his next paycheck Lofton telephoned Biggs on 1 May and informed him that they did not want the raise they received , that they were entitled to a bigger one, and that he was going to bring the checks back the next day. On the following day, Friday, 2 May, Lofton drove to Senior Vice Presi- dent Coopersmith's office. He gave the three checks to Coopersmith who commented that the men were not sat- isfied with the raise . Lofton confirmed that statement and asked to have the raise removed and new checks issued . Coopersmith said that that would be done. Later that day, adjusted checks were given to Lofton, Brock- ington, and Landerer. On Monday, 5 May, another of Glenwood' s assistant vice presidents, Harold Heisner, gave each of the five maintenance department employees identically worded letters that informed them that, as of 4 p m. that day, they were discharged and that there was no further re- quirement of their services . Heisner then said he was going to tell them why Glenwood fired them . He stated that they were fired because they had insulted Leonard Litwin-the president and principal stockholder of Glen- wood-by turning back their checks and that they were all fired at once to teach all of them a lesson. James, who had cashed his paycheck on 1 May as had Fuentes, had not asked that the increase he received be deducted from his next paycheck , as Fuentes had done. James was rehired later on 5 May as a building superintendent.Lofton, Fuentes, Brockington , and Lan- derer were not rehired. 2 Lofton testified that, while he was "pretty sure " that he used the lan- guage quoted , he may have told Biggs that he would turn back his check In view of what actually transpired on 2 May , as recounted elsewhere, there is no practical difference in the overall import GLENWOOD MANAGEMENT CORP 1153 About 8 May, Landerer called Coopersmith and asked why he had been fired. Coopersmith told him that he had "insulted Mr. Litwin." Coopersmith also told Lan- derer then that he, Landerer, was stupid for having fol- lowed Lofton. As discussed below, Glenwood called Coopersmith as its only witness to rebut the evidence proffered by the General Counsel. In effect, none of the foregoing recital was materially controverted 3 I credit the testimony of- fered by General Counsel's witnesses and find that the General Counsel has made out a clear prima facie show- ing that the five maintenance employees were discharged on 5 May because they had concertedly protested, on 1 and 2 May, the size of the wage increase given them on 1 May The General Counsel has thus sustained the burden outlined in Wright Line, 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir. 1981) The burden thus shift- ed to Glenwood to establish that it would have dis- charged them nonetheless for economic reasons C Coopersmith's Account In support of its contention that the discharges of these five employees were based on valid economic con- sideraitons, Glenwood offered the testimony of one of its two senior vice presidents, Jack Coopersmith. He related that he had, for many years, been dissatisfied with the work done by the maintenance department employees and decided, in March, to discharge them. Coopersmith's testimony regarding how he prepared the discharge let- ters initially indicated that he dictated them; later in his testimony, he related that he had written out a longhand draft. He recounted that the letters were typed a week before they were delivered. He explained that they were postdated 5 May in order to keep the matter a secret from everyone except Glenwood's president He testi- fied, however, that he gave the letters to Assistant Vice President Biggs on 2 May to review. Coopersmtth ac- knowledged that he had done no cost anaylsis for the maintenance department operations and guessed that Glenwood's controller knew those costs. Glenwood has the burden of establishing by a prepon- derance of the evidence that these employees would have been discharged for legitimate reasons even absent their protected activities. See Bill Scott Oldsmobile, 282 NLRB 1075 (1987) I find Coopersmith's testimony most unconvincing and unpersuasive to that end His account is inherently implausible, uncorroborated by any other testimony, unsupported by any documentary material, in- consistent with the fact that these employees had just been given wage increases and improbable in view of the absence of any evidence that they had been criticized about their work performance Glenwood has not dem- onstrated that it would have discharged the five mainte- nance department employees regardless of their concert- ed wage protest. I thus conclude that the General Coun- sel has established by a preponderance of the credible evidence that Lofton, Fuentes, Brockington, James, and Landerer were discharged on 5 May in violation of Sec- tion 8(a)(1) of the Act because they had concertedly, on 1 and 2 May, protested the size of the wage increase given them on 1 May CONCLUSIONS OF LAW 1. Glenwood is an employer engaged in commerce as defined in Section 2(2), (6), and (7) of the Act. 2. Glenwood has committed an unfair labor practice in violation of Section 8(a)(1) of the Act by discharging, on 5 May 1985, employees Charles Lofton, Alvaro Fuentes, Horace James, Gain Brockington, and Issac Landerer. 3. The unfair labor practice found above affects com- merce within the meaning of Section 2(6) and (7) of the Act REMEDY It having been found that Glenwood has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative actions necessary to effectuate the policies of Act. Glen- wood has characterized the discharge of those five em- ployees as the closing of its maintenance department al- though it appears that, as of the date of the hearing, it still employs a maintenance department supervisor at the same location where these five employees had reported for work In any event, Glenwood has not demonstrated that a restoration of the status quo ante would endanger its continued viability and I shall therefore recommend, consistent with Board precedent, that Glenwood re- employ these five employees at that location. See Service Merchandise Co., 278 NLRB 185 (1986). In accordance with Board policy, it is recommended that Glenwood be ordered to offer these employees im- mediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges enjoyed, dismissing, if nec- essary, any employees hired on or since the date of their discharges to fill the positions and to make them whole for any loss of earnings they may have suffered by reason of the Respondent's unlawful conduct, by pay- ment to them of sums of money equal to the amounts they would have earned from the date of their unlawful discharges to the date of an offer of reinstatement, less net earnings during such period, with interest to be com- puted on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See also Isis Plumbing Co, 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 a Coopersmith was asked, during his direct examination, if he ever told any of their five employees that they were discharged because they in- sulted Litwin Coopersmith answered, "No " I place little evidentiary weight on his answer as it was conclusory and adduced by a patently leading question ' If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, Glenwood Manufacturing Corp., New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging any of its employees because they con- certedly seek wage increases. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Charles Lofton, Alvaro Fuentes, Horace James, Gain Brockington, and Issac Landerer immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, discharging, if necessary, any employees hired to replace them, and make them whole for any loss of pay they may have suf- fered by reason of the Respondent's unlawful discharge of them in accordance with the recommendations set forth in the remedy section of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Remove from the files of Respondent any reference to the discharges of these five employees Charles Lofton, Alvaro Fuentes, Horace James, Gain Brockington, and Issac Landerer and notify them in writing that this has been done and that evidence of those unlawful dis- charges will not be used as basis for future discipline against them. (d) Post at its maintenance dempartment shop, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to cofnply s 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "