Marcus Management, Inc , And Roseville Towne Houses Cooperative, Inc

MARCUS MANAGEMENT 251 Marcus Management, Inc , and Roseville Towne Houses Cooperative, Inc and Paul Glenn Forbes Cases 7-CA-26948(l) and 7-CA- 26948(2) January 10, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On July 8, 1988, Administrative Law Judge Walter H Maloney issued the attached decision The General Counsel filed limited exceptions and a supporting brief, and the Respondents answered 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 briefs and has decided to affirm the judge's rulings, findings, and conclusions, but not to adopt the recommended Order 1 ORDER The National Labor Relations Board orders that the Respondents, Marcus Management, Inc, South- field, Michigan, and Roseville Towne Houses Co- operative, Inc, Roseville, Michigan, their officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Issuing new and more onerous work rules or restricting or reducing compensation of employees in reprisal for their union activities (b) Discouraging membership in and activities on behalf of the International Union, United Automo bile, Aerospace and Agricultural Implement Work- ers of America (UAW), or any other labor organi- zation, by discharging employees or otherwise dis- criminating against them in their hire or tenure (c) In any like or related manner interfering with, restraining, or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Rescind and no longer enforce work rules un lawfully implemented on February 17 and March 5, 1987 (b) Offer Paul G Forbes immediate and full rein statement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination found herein, in the manner set forth in the remedy section of the judge's decision (c) Remove from their files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the dis charge will not be used against him in any way (d) Preserve and, on request, make available to the Board or its agents for examination and copy ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (e) Post at Respondent Roseville Towne Houses Cooperative, Inc 's Roseville, Michigan place of business copies of the attached notice marked "Ap- pendix "2 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondents' authorized representa tive, shall be posted by the Respondents immedi ately upon receipt and maintained for 60 consecu tive 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 altered, defaced, or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents have taken to comply 2 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 APPENDIX i Member Johansen notes that Roseville is a joint employer with Marcus Management The General Counsel has excepted only to the judge s failure to order the Respondents to rescind and no longer enforce certain work rules that the judge found were issued in violation of Sec 8(a)(1) We find ment in the General Counsel s exception and shall modify the judge s recom mended Order language accordingly In addition we shall modify the ,judges reinstatement language to conform to that traditionally used by the Board and shall order the Respondents to remove from their files any reference to the Charging Party s unlawful discharge Finally we shall order the Respondents to preserve records necessary for the computation of backpay In light of the extent of our revisions in the recommended Order we shall substitute an entirely new Order and notice 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 292 NLRB No 23 252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT issue new and more onerous work rules or restrict or reduce the compensation of em- ployees in order to take reprisal against them for engaging in union activities WE WILL NOT discharge employees or otherwise discriminate against them in their hire or tenure for the purpose of discouraging membership in the International Union, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW), or any other labor organization WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec tion 7 of the National Labor Relations Act Those rights include the right to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in other concerted activities for their mutual aid and protection WE WILL rescind and no longer enforce work rules unlawfully implemented on February 17 and March 5, 1987 WE WILL offer Paul G Forbes immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights or privileges previously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits that he may have suffered by reason of the discrimination practiced against him, with in- terest WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way ROSEVILLE TOWNE HOUSES COOPER ATIVE, INC MARCUS MANAGEMENT, INC Ellen J Dannin Esq for the General Counsel Harvey I Wax and Michael Kimber Esqs of Detroit Michigan for the Respondents Russell J Thomas Jr Esq of Detroit Michigan for the Charging Party DECISION FINDINGS OF FACT STATEMENT OF THE CASE WALTER H MALONEY Administrative Law Judge This case came on for hearing before me at Detroit Michigan on an unfair labor practice complaint,' issued 1 The principal docket entries in these cases are as follows Charges filed in Cases 7 -CA-26948(l) and (2) by Paul G Forbes an individual against Respondent Marcus Management Inc on May 7 1987 complaint issued against Respondents by the Regional Director for Region 7 on June 29 1987 Respondents answer was filed on September by the Regional Director for Region 7 which alleges that the Respondents Marcus Management, Inc (Marcus Management) and Roseville Towne Houses Cooperative Inc (Roseville),2 violated Section 8(a)(1) and (3) of the Act More particularly the complaint alleges that the Respondents altered the manner in which overtime was computed and changed work rules in order to harass em ployees in reprisal for their union sympathies and activi ties and discriminatorily discharged Charging Party Paul G Forbes The Respondents deny allegations that they committed independent violations of Section 8(a)(1) of the Act and assert that Forbes was fired because he failed and refused to remove snow from the Roseville project on March 14, 1988 The Respondents also deny that they were joint employers of Forbes Based on these contentions the issues were joined 3 I THE UNFAIR LABOR PRACTICES ALLEGED Respondent Roseville is a nonprofit housing coopera tive It operates a housing project consisting of 155 co operative apartment units located in a suburb of Detroit Roseville is controlled by a five member board of direc tors that is periodically elected by the residents of the cooperative who are not strictly speaking, tenants but holders of cooperative shares Because the financing of this development was guaranteed by the U S Depart ment of Housing and Urban Development (HUD), it must be operated under the terms of section 221(d)(3) of the National Housing Act This act sets limits on the income of residents who must vacate the premises and sell their cooperative shares if their incomes rise above stated levels An agreement between Roseville and HUD requires among other things, that Roseville employ an approved management agent to supervise the operation of the facility in accordance with an approved manage ment plan Respondent Marcus Management has been 16 1987 amended complaint was issued by the Regional Director for Region 7 against Respondents on November 13 1987 Respondents answer to amended complaint was filed on November 25 1987 hearing was held in Detroit Michigan on November 23-25 1988 briefs were filed with me by the General Counsel the Charging Party and the Re spondents on May 11 1988 2 The Respondents admit and I find that Respondent Marcus Manage ment is a Michigan corporation which maintains its principal place of business in Southfield Michigan where it is engaged in providing profes sional management services to residential cooperatives including Re spondent Rosedale During the calendar year ending December 31 1986 Respondent Marcus Management in the course and conduct of this bus] ness derived gross revenues in excess of $50 000 and purchased goods and materials valued in excess of $5000 directly from enterprises located in the State of Michigan which in turn purchased the goods and mater[ als directly from points and places located outside the State of Michigan Accordingly Respondent Marcus is an employer engaged in commerce within the meaning of Sec 2(2) (6) and (7) of the Act Respondent Roseville is a nonprofit housing cooperative located in Roseville Michi gan During the same calendar year Respondent Roseville in the course and conduct of its business operations derived gross revenues in excess of $50 000 and purchased goods and materials valued in excess of $5000 directly from enterprises located in the State of Michigan which in turn purchased the goods directly from points and places located outside the State of Michigan Accordingly Respondent Roseville is an employer en gaged in commerce within the meaning of Sec 2(2) (6) and (7) of the Act The International Union United Automobile Aerospace and Agri cultural Implement Workers of America (UAW) is a labor organization within the meaning of Sec 2(5) of the Act 3 Certain errors in the transcript are noted and corrected MARCUS MANAGEMENT 253 employed by Roseville for this purpose since 1977 Marcus Management is a corporation owned by its press dent, Alphonse Marcus It employs Estelle Marcus the wife of Alphonse Marcus and their son Ralph, all of whom are officers as well as employees Marcus Man agement is a specialist in the management of HUD fi nanced cooperatives and manages approximately 10 such developments in the Detroit metropolitan area Among its many duties under its HUD approved agreement with Roseville are the collection of rents, preparation of fi nancial statements, budgets, and tax forms, enforcement of occupancy agreements, physical maintenance of prem ises, and the day to day direction of maintenance and office employees, who are paid by Marcus Management from an account that it uses for the transaction of all business on behalf of Roseville One of the three Mar cuses visits the premises at least once a week, normally on Wednesday, to check on the operation, and one of them is usually in attendance at monthly and special meetings of the Roseville board of directors Helene Ottinger, who occupies a clerical position as resale clerk is normally present during business hours at the Roseville office The only other employees on the premises during the day are the maintenance employees who, at the time of the events at issue in this case, were Charging Party Paul G Forbes and assistant mainte nance man Frank Arndt Forbes held the title of mainte nance supervisor, though there is no contention in this case that he was a supervisor within the meaning of Sec tion 2(11) of the Act One of the requirements of his job was that he be a resident of the cooperative Arndt lived about 2 miles from the Roseville cooperative and was normally present only during regular working hours al though, under some circumstances, he could be placed on call and required to return to the premises for emer gencies such as snow removal Alphonse Marcus testified without contradiction that Marcus Management hired employees in conjunction with the Roseville board of directors and often made recommendations to the board concerning job applicants He further testified that Marcus Management could not discharge an employee without the approval of the Rose ville Board Routine day to day instructions to mainte nance employees were given by Marcus Management principally by Ralph Marcus, who among the Marcus Management principals visited the premises most fre quently The question of who else was empowered to give instructions to whom is one of the subsidiary prob lems in this case Paul Forbes was interviewed jointly by Alphonse Marcus and the Roseville board at a closed meeting on November 25, 1985 for the position as maintenance su pervisor After some discussion over salary, he was hired at $8 an hour, with the understanding that he would re ceive periodic increments of $1 an hour until his hourly rate reached $10 Part of the compensation also included a unit at the Cooperative, which he was required to occupy Forbes had to sell his house before he moved into the cooperative and was given time to do so While a resident of the cooperative, his utilities other than tele phone bills, were to be paid by Roseville as part of his compensation During the interim before he moved in, he was given a certain allowance in lieu of utilities During negotiations over wages Forbes objected to Roseville s initial offer of $6 an hour He argued that he was an experienced maintenance man and was entitled to more because he could spare Roseville considerable ex pense in hiring outside contractors This factor doubtless influenced the cooperative in making him a higher offer Forbes insists that he was also promised a percentage of the amount of the money he saved the Cooperative by not engaging outside help Both Marcus and the board have no recollection of such an agreement It is not nec essary in this decision to resolve this dispute, but it should be noted that the refusal of the cooperative to give Forbes a Christmas bonus at the end of 1986 reflect ing these cost savings was a source of sharp disappoint ment and dissatisfaction on his part For a number of years Roseville and Marcus Manage ment maintained a personnel job description outlining benefits and procedures for employees The job descrip tion in effect when Forbes was hired was dated 1979 Among other things, it provided full time maintenance employees 2 weeks vacation with pay after 1 year of employment and Blue Cross and Blue Shield health in surance coverage at the expense of the cooperative The description stated that the cooperative will not dock for occasional days off due to sickness or personal business unless they become excessive It also stated that Christ mas bonuses would be given which are dependent upon the services which you provide It provided that there would be annual salary reviews at the beginning of each fiscal year and noted that arrangements must be made to cover emergencies during (stated) holidays Taking days off before or after a holiday without prior written permission will not be considered Working hours were defined as 8 a in to 5 p in Monday through Friday, with an hour off for lunch Work orders were re quired to be handled in a prompt and efficient manner No work orders are to be serviced after normal working hours except in the case of emergencies Good judgment should be used to determine emergencies " As for out side contractors, they should be eliminated as much as possible to save the Cooperative money However contractors must be called if it is a requirement or if a lack of knowl edge would jeopardize or affect safety or health The more knowledge acquired by maintenance will result in higher salaries When outside contractors are called in, maintenance must check for satisfac tory work and approve invoices for payment Maintenance men were also to be on call after normal working hours, weekends, and holidays without extra pay " The description stated [T]ime taken off because of illness or personal buss ness is not deducted from your pay as long as it is not excessive Time taken off and paid for compen sates for nightcalls Personal usage of the Co operative truck, tools or equipment is prohibited 254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unless a request is made in writing as to the nature of usage There was a separate section on snow removal, which provided Snow removal is to be done dunng normal working hours unless a heavy snowfall is experienced Then, the roads should be cleared so that members can get to work Only emergencies would take priority over snow removal Salting should be done only if the walks and drives are slippery and temperature is not lower than fifteen (15) degrees Part time additional help to clean snow may be hired at $3 00 per hour By the spring of 1986, two exceptions to the stated rules had come about It was permissible for Forbes to pick up Arndt in the cooperative pickup truck and bring him to work, especially during inclement weather Regular working hours had become 8 30 a in to 4 30 p in, mean ing that cooperative employees actually received a paid lunch hour Forbes began his duties in late 1985 and moved into the Roseville cooperative in the spring of 1986 His first problem was Arndt, who was reluctant to take orders from the new maintenance supervisor Ralph Marcus wrote Arndt a letter, dated December 15, 1985 , in which he told Arndt that there were new procedures in the maintenance program First , the new maintenance super visor Mr Forbes has complete discretion in setting pn onties of work orders and how certain jobs are complet ed In no way are you to establish what can or cannot be completed or when work will be completed Forbes second problem was not so easily resolved During the spring and early summer months of 1986 he began having difficulties with John Kotowski the presi dent of the Roseville board, and Nancy Wickowski, the board secretary The nub of the problem , also shared by Arndt was that Kotowski and Wickowski began to give them maintenance directives, which had the effect of in terrupting the completion of jobs they were working on in order to respond to the specific complaint for which these board members demanded immediate attention The problem was particularly acute in the case of Wick owski who was not employed and who was usually home in her cooperative unit throughout each working day The regular procedure for obtaining maintenance service was that a cooperative member or a board member would fill out a work order and leave it in the office These orders would then be attended to in the order they were filed Late in June 1986, Marcus Man agement assigned both Forbes and Arndt to a long term project removing and replacing the guttering and down spouts throughout the entire development in order to prepare for a HUD inspection Devoting time to this on going assignment meant that work orders arising out of specific tenant complaints began to pile up Specific verbal directives to Forbes and Arndt from Kotowski and Wickowski often made in response to tenant corn plaints also began to increase Forbes became fed up with having too many bosses Apparently Arndt shared this view although he did not agree with Forbes suggested remedy Forbes contacted Johnny Whitman, a UAW organizer, and obtained au thorization cards and an information packet relating to unionization Forbes signed a card and asked Ottinger and Arndt to sign Ottinger declined and Arndt said he would think about it As a matter of fact, Arndt never did sign a card despite additional requests from Forbes during the fall of 1986 On August 8 , Forbes wrote the following letter to Marcus Management and mailed it to their Southfield office I find it necessary, at this time , to inform you I have decided to ask the Union to represent myself & co workers, if they are interested I was led to believe I was accountable to the Marcus Manage ment Co , and occasionally would receive a special request from a few of the Board of Directors Be cause of a personality conflict , a few of the Board members have made my job all but impossible I cannot schedule work or handle many of the more serious jobs or implement any of the many preven tive maintenance programs needed at the Roseville Townhouses Under the present working conditions there never can be a sense of accomplishment No department or person can have 6 bosses each going in their own direction, not being knowledgeable as to the many aspects of running an efficient mainte nance dept A person can go on forever repairing things, not ever getting to cause or making neces sary corrections to prevent future problems I feel if given a chance I could be an asset to the complex In a much smaller way I know how Lee Iacocca felt in regards to Henry Ford They don t like me' which means at this time job security is nil It may not be apparent but I have an investment of time and life style change in regards to selling my house to conform with living in the complex If I had the slightest notion what was in store for me I would have run the other way In an effort to try and protect myself and end up with one boss, the union seems to be the only way to go Sincerely Paul Forbes I credit Forbes testimony that, a few days later, Al phonse Marcus phoned Forbes told him that he did not think a union was necessary, and said that he would take his complaints to the board of directors Marcus urged Forbes not to say anything to the board because they would get mad adding that he could handle the board and would get back to Forbes About this same period of time, Forbes had a similar conversation with Jack Kuzmanovski, a member of the board who at one time had been the maintenance super visor at Roseville Prior to this conversation Ottinger who was in frequent contact with Wickowski each day had informed Wickowski that Forbes had joined the Union and Wickowski had informed other board mem bers Kuzmanovski told Forbes that he had a real prob lem because the board members were furious about this decision to join a union Kuzmanovski reported Wick MARCUS MANAGEMENT 255 owski s reaction to this news was fire the son of a bitch, while board member Norm Kucharski said that Forbes would join the Union over my dead body Ko towski s reported reaction was that the board could not fire Forbes because he 11 sue us 4 Kotowski reportedly felt that the Board had to wait 6 months before it could take any action against Forbes On August 13, Alphonse and Estelle Marcus met with Forbes and Arndt at the community room at Roseville to discuss Forbes complaint Estelle Marcus asked Forbes if he had received a note from Wickowski asking him to do a job Forbes replied that he had a whole stack of such notes Alphonse Marcus told the three employees that they should ignore orders that emanated from indi vidual board members and that they should take instruc tions from him He went so far as to say that they should avoid talking with board members if possible Forbes complained that Wickowski had told him that he either had to follow her orders or be fired Arndt also voiced a complaint that board members and the cooperative's rest dents as well would stop him and make requests for maintenance services without filing a work order in the office Forbes also suggested the desirability of having a daily work log so that he could have a better idea of just what Arndt was doing Arndt had an attendance prob lem and, at the hearing, Forbes claimed that he also had a drinking problem, so he needed some method of keep ing tabs on what his assistant was doing each day I dis credit A Marcus testimony that the two employees agreed on this occasion to extend their daily quitting time from 4 30 to 5 p in On August 14 1986, Alphonse Marcus wrote the fol lowing letter to all five board members On August 13 1986, we received a letter from Paul Forbes your maintenance supervisor, com 4 Two key credibility determinations in this case involve the above re cited conversation between Kuzmanovski and Forbes which took place just before a significant board meeting of August 21 1986 and a subse quent conversation that took place a week or two after that meeting I credit Forbes versions of both of these conversations and discredit Kuz manovski s evasive testimony on point As a former maintenance man Kuzmanovski evidenced at one time a certain sympathy with Forbes predicament in having too many bosses and he expressed this sympathy to Forbes However after Forbes was discharged in March 1987 and in stituted a multimillion dollar civil action against the board and all of its individual members for wrongful discharge Kuzmanovski changed his entire attitude toward this case In particular during the investigation of the charges in this case his willingness to cooperate changed between the time he was first contacted by a Board agent and after he consulted with his attorney Kuztnanovski remained a board member even after he moved out of the complex staying on until his term of office expired Because of the distance from his new home to Roseville he could not be contacted to sign off on the directive effectuating Forbes discharge Kuzmanovski supplied Forbes with a key piece of damaging evidence to the Respondents case but his story that he just happened to have it with him at a bar at Christmastime and gave it to Forbes while having a hole day drink in order to make Forbes feel good is preposterous The more probable version of that subsidiary event is the version supplied by Forbes namely that in the fall of 1986 Kuzmanovski told Forbes he had something that would help him if he ever needed it and then gave it to Forbes after the latter was discharged Kuzmanovski s demeanor was bad his answers were evasive and he displayed an attitude of fencing with questioners His bias was unusually pronounced because he is not only a defendant in a civil action involving Roseville and Marcus Man agement but as an independent contractor he now derives part of his livelihood from business referrals provided by Marcus Management plaining that he had too many bosses telling him what to do Also he indicated that he would be joining a Union so that Board Members would stop interfering with his maintenance duties On the same day since Mrs Marcus and I were coming out to the Co op, we had a meeting with Paul Forbes and Frank Arndt The major com plaints from both of these employees are that Board members continually pull them off of jobs to jobs that they feel are more important They have also complained about the Board Member s verbal ap proach and threats of being fired Since we are having a Board meeting on August 21, 1986, to discuss this matter and the reduced Real Estate Taxes, I strongly feel that this employee problem will be resolved to everyone's satisfaction Attached is a copy of the letter which I have sent to Paul and Frank with daily work log form which will be filled in each day by them to show where they spend their time If the priority work schedule contained therein is in conflict with the Board s priorities please advise me On August 14, Alphonse Marcus sent a memo to Forbes and Arndt, which read as follows In response to your letter dated August 8, 1986 received by our office on August 13, 1986, and our meeting on August 13, 1986, you are instructed to complete the following The top priority for maintenance at this time is to complete the replacement and repair of gutters and downspouts, tuck pointing and repair of front porches and correcting the electrical short by digging up the electrical line if necessary so that the building exterior lights will function properly As you are aware, REAL emergencies and vacant units take precedence over the above Normal work orders are to be done on a limited basis until the priority maintenance is completed, or they can be caught up on rainy days Another item is the repairing and painting of the wooden fence This should be worked on later this fall You and Frank are not to deviate from the schedule unless instructed to do so by this office In reference to the complaints received from both of you they will be brought forth before the Board of Directors In reference to the employees joining a union this is your perrogative [sic] However we feel that these matters can be resolved to the benefit of ev eryone concerned Also attached is the daily work log form which you requested The form in question was merely a list of the 5 workdays of the week with lines drawn below them and the re quest that employees explain briefly what they worked on each day and how long they worked on it There is no indication in the record that any of these forms were 256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ever filled out or that any information of the kind and character requested was reported until March 1987 When John Kotowski arrived at the August 21 meet ing he gave Alphonse Marcus and each board member a 2 1/2 page handwritten outline entitled If They Want a Union He had prepared this document in advance of the meeting and had caused it to be duplicated It read 1) To go over job description and change it bring it up to date We as a board should have the right to say when people can go their vaction [sic] 2) Put in time clock 3) Hours to go back to 9 00 to 5 30, 8 1/2 hour day 4) They will get paid for 8 hrs a day and 1/2 hr paid lunch Lunch will be from 12 00 to 12 30 5) Drop hourly wages, cut them down to mini mum wage if possible 6) Change vaction [sic] time and go by how long the employee has work here [sic] Sample 1-3 yrs-1 week 3-5 yrs-1 1/2 weeks 5-10 yrs-2 weeks 10-15 yrs-2 1/2 weeks 15-20 yrs-3 weeks 20 and over-4 weeks 7) Cut Frank and Helena down to 3 days a week Mon, Wed, Fr This way we can drop BC & BS benefits because they won t have enough hours to qualify working 24 hrs a week They would have to work at least 30 hrs to qualify 8) At the present time the three (3) employees are working only 7 hrs a day the other 1 hr is taken for lunch This would stop under our new job description 9) To have the full time maintenance man pay his own gas light and half of his rent We would pay for the phone and the other half of the rent on the unit 10) All holiday bonus to stop 11) Get all three employees work records and go over them and see how much time they have miss [sic] 12) Have Mr Rein check on all this and see if we as a Board can legally do this 5 13) To cut the full time maintenance man medical benefits down too, because it would not be fair to cut the other two employees medical benefits down and not his too 14) If full time maintenance man wants a day off or a weekend off he should find somebody to take his place and pay him out of his own pocket The co op should not be held responsible for finding and paying another man to take his place That is his re sponsibility 15) If the Union get in they will want the co op to start paying overtime anything over 8 hrs or 40 hrs 5 Rein is the attorney who formerly represented Roseville 16) Half days, 2 hrs in the morning and 2 hrs in the afternoon (sample) 9-10 work 10-12 off 1200 to 12 30 lunch, 12 30 to 3 30 work, 3 30 to 5 30 off On reading Kotowski s outline Alphonse Marcus told him You cant do anything like this, John You can t take away anything he already has As far as this record reflects, there was no further discussion of this memo or of the organizing campaign at the August 21 meeting The board did discuss the complaint that Forbes had previously voiced to the Marcuses and which he had detailed in his August 8 letter, namely, that he had too many bosses Board members agreed that they would request maintenance service only through the placing of work orders in the box designated for them at the Roseville office They also agreed to send out a flyer to the residents of the cooperative instructing them to request maintenance work by filling out work orders rather than by making personal requests of main tenance men when they met them on the premises Such a flyer was distributed throughout the development on August 26 Shortly after the flyer was distributed to the coopera tive s residents, Forbes had occasion to speak again with Kuzmanovski just outside the Roseville community building Kuzmanovski told Forbes that the board really wanted to get rid of him but felt that they had to wait 6 months in order to do so He warned Forbes that he had better watch himself because the board was looking for any legal way it could find to fire him He told Forbes that if he was ever fired Kuzmanovski had a paper that he would give Forbes but he refused to say at that time what the paper was I discredit Kuzmanovski s testimony that he gave Forbes a copy of Kotowski s August 21 outline of what to do in case employees wanted a union while having a drink with him at a bar during the Christ mas season He gave it to Forbes a day or two after Forbes was discharged in March 1987 as Forbes testa fled At a closed board meeting on September 11 the board discussed a new proposed job description for the two maintenance men It was ultimately adopted and present ed to Forbes and Arndt sometime in September Among the changes from existing practices was that the work day was extended from 4 30 to 5 p in It repeated the provision in the 1979 job description that the Coopers tive will not dock you for occasional days off due to sickness or personal business unless they become excel sive It spelled out in greater detail what the mainte nance supervisor should do when he wished to leave the complex during holidays and weekends namely that emergencies during these periods of time should be cov ered by the second man and if he was not available by a maintenance man at one of the other nearby coop eratives Employees were required by the new regulation to mail in timesheets on Friday of each week Moreover, there was no provision in the new job description for any health insurance coverage Paid vacations were changed from 2 weeks vacation after 1 year of employ ment to 1 week after 1 year of employment and 2 weeks after 2 years of employment with a pro rating of half a day per month for a partial year if a vacation was taken MARCUS MANAGEMENT between May 1 and November 1 The former provision on snow removal was repeated namely that snow re moval should be handled during normal working hours unless a heavy snowfall was experienced in which in stance roads should be cleared first so that members of the Cooperative could get to work When Alphonse Marcus gave the new job description to Forbes, the latter asked him why there was a change in hours, that had the effect of cutting back on the amount of paid lunchtime I credit Forbes testimony that A Marcus told him that he had to give the board some thing to get them off Forbes back He told Marcus that, at the board meeting three members-Kotowski Ku charski and Mrs Wickowski-all wanted to fire Forbes and that he had told them to put their directive in writ ing, whereupon Kotowski backed off saying that Forbes would sue them if he were fired Forbes felt that he had one ally on the board Karen Craib Secondino, for whom he had campaigned actively as a board member She once told Forbes that his name was continually being brought up by board members with respect to complaints or reported shortcomings Forbes asked her to get something in writing but she re plied that she thought that it was all just idle talk Forbes was given a $100 Christmas bonus, as were the other two employees He was also given a 50 cent per hour raise, effective in January He was disappointed by the bonus and claimed that he was entitled to a percentage of what he had saved the cooperative by not hiring outside contractors and expressed his dissatisfaction with the bonus check Both the cooperative and Marcus Management dis agreed At its February 1987 meeting the Board adopted an other revised job description, but it was not transmitted to Arndt and Forbes until early in March It read The following items are to be added to the present employee Maintenance Job Description This shall serve as new Cooperative policy in re placement of the old policy 1 During any snow fall of 2 inches or more the main streets of the Co op must be plowed The re mainder of plowing and clearing of snow shall be completed during the next business day When a 2 inch or greater snow fall is experienced on a Friday or Saturday night directions for snow removal shall be given by the President of the Board All snow removal must be completed by Maintenance De partment only 2 The Co op truck during non business hours must be parked at the Resale Office on New Eng land Street The Co op truck must be used for Co op business only At no time is the Co op truck to be used for personal business or driving employees to and from the Co op 3 When leaving the Co op grounds after business hours and on weekends maintenance persons must keep the Board informed who is handling emergen cy calls and the person(s) phone number 257 4 All emergency calls will be paid at time and one half from the time the maintenance person leaves his unit to the time the maintenance person leaves the member s unit The work order must be a true emergency and be signed by the member 5 Five sick days will be given on an annual basis Sick days may not be used as vacation days 6 A weekly maintenance report is to be made and left in the Resale Office each Friday This report is to list the work orders completed by each maintenance person, the number of hours spent on rehab units the number of outstanding work orders all work orders completed by contractors, and the amount that was charged Early in February, Forbes complained to Ralph Marcus about the manner in which compensatory or banked time computations were being made In the past, if Forbes or Arndt worked more than a 40 hour week the overtime could be banked and taken as leave during the normal workweek Forbes told R Marcus that he thought that the time worked on Saturday should be considered overtime and not compensated for simply as straight time According to Forbes if he were given banked time for Saturday work it should be at the rate of 1 1/2 hours off for each hour of Saturday work He told R Marcus that he had some pamphlets from a gov ernment agency that required compensatory time to be handled in this manner R Marcus replied If you want anything changed, you change it On February 17, R Marcus sent Forbes the following letter We are writing you regarding our conversation of February 11, 1987 concerning the banked/ sicktime program and your request to discontinue this program The Board of Directors has reviewed this program and has determined that the banked/ sicktime program will be discontinued as of Febru ary 17, 1987 Therefore, beginning February 18 1987, any overtime work orders must state the exact number of minutes which it took you to respond to the emergency request Your time should be calculated from the time you actually leave your unit to the actual time you leave the member s unit All over time work orders must have the member s signature to qualify as a true emergency to be paid as an overtime work order Further it has been decided to reconcile your overtime for all payrolls paid within this fiscal year regarding your banked overtime hours and your sick or absent hours It should be noted that the one hour minimum remained in place when completing this reconciliation (Even if you actually spent 10 or 15 minutes arranging for complete service for an emergency the next day the one hour minimum is being translated into one hour and one half) A sum mary is as follows Hours of overtime reported through February 17, 1987 = 26 5 hours Conversion to time and one half = 39 75 hours 258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Minus Absent hours thru February 17 1987 = 42 5 hours Total time to be docked as of February 17, 1987 = 2 75 hours Finally there will be five (5) sick days allowed throughout each fiscal year Prorating these hours from February 18, 1987 through December 31, 1987, you have 35 absent hours remaining On February 26 Forbes entered a hospital with acute bronchitis and did not return to work until March 9 During this same time he received two additional letters from R Marcus A letter dated February 25 stated We are writing you regarding several items con cerning maintenance 1 The Board wishes for you to immediately re place the east end community building door with a steel door This request is repeated from an earlier request 2 As discussed, please repair the outstanding work orders in Mr and Mrs Suchara s unit They should have been completed six months ago 3 Install the railings on the entrance of the Com munity Building, this request was also made some time ago Finally, the normal business hours are from 8 30 a in to 5 00 p in When you come in early to handle snow removal or an emergency you are not to assume you may leave a proportionate time early A second letter dated March 5 read At a recent meeting of the Board of Directors a discussion was held regarding your continued ab Bence from work The Board has requested that you submit a doctors letter explaining your illness and when you might expect to return to work Also please provide a full release statement from your doctor before you do return We hope that your ill ness is not severe and wish you a speedy return The Board would appreciate this information within next three days When you do return to work there are a few items which continue to be outstanding 1 Renail the gutter on the one bedroom unit ap proximately third from the south end of the Co op 2 At the January 13, 1987 board meeting, we dis cussed that Mrs Gesser s tubwall needs to be re paired or replaced 3 We must have the physical inventory of all tools and equipment On Friday evening March 13, it began to snow The snowfall continued throughout the night Early Saturday morning Kotowski left the cooperative to go to work and remained at the Ford Motor Co plant, where he was employed, throughout the day Forbes testified that he expected to hear from Kotowski concerning Saturday snow removal but Kotowski did not contact him About 1 40 p in Forbes received a phone call at his cooperative unit from Wickowski She asked him why he had not been out cleaning away the snow Forbes replied that he had not been notified to do so by Kotowski Her reply was that he should have had enough common sense to know that he should have been removing the snow with out receiving any special instruction She expressed the opinion that the streets did not need plowing, but told Forbes that he had to clean the sidewalks in the develop ment There was a well recognized division of labor in volved in snow removal at the cooperatives Arndt who did not possess a driver s license operated a hand guided snowblower that was housed in the maintenance build ing He used it to clean the internal sidewalks and path ways within the project Forbes drove the Roseville pickup truck, to which a snowplow was attached and used it to clear away the streets and parking lots When Wickowski told him to clean the sidewalks, Forbes re plied that he had never operated the snowblower but that he would go to the maintenance building and give it a try He also phoned Arndt to ask him to come to work but Arndt was not at home 6 I credit Forbes testimony that he went to the mainte nance building and found the snowblower chained to the building The key to the lock was missing and there was no key in the ignition switch of the snowblower, so he was unable to gain access to the machine 7 He reported this state of affairs to Wickowski and told her that he was unable to reach Arndt at his home She said that someone would have to be hired to shovel the snow Forbes told her that Ottinger normally hired the coop erative s members to do this kind of emergency work and that she would know whom to contact Wickowski said that it would not be possible to contact Ottinger be cause she was at a baby shower Wickowski was eventu ally able to find a neighbor who was willing to shovel snow but she had to promise him $5 an hour, not the minimum wage rate spelled out in the 1979 and 1986 maintenance job descriptions Kotowski testified that he spoke with Wickowski about the snow removal problem when he arrived home that afternoon from the plant I discredit his testimony Wickowski left the cooperative about 4 p in to attend her grandsons birthday party and testified that she did not speak to any of the other board members concerning snow removal until Sunday morning 8 6 It turned out that Arndt had left home with his brother about 9 a in on Saturday and had gone to a nearby bar Later in the day they left the bar and went to Arndt s brothers house several miles away r Testimony at the hearing revealed that the ignition key was in Arndt s pocket I discredit Wickowski s testimony that she told Forbes to cut the chain that secured the snowblower to the building Had he been able to free the machine it would have served no purpose because Forbes had no way to start the ignition a There was a sequestration order in effect in this case Forbes testified at length throughout the first day of the hearing Before the hearing began on the morning of the second day most of the Respondents wit nesses gathered with their attorney in the basement cafeteria of the Fed eral Building in Detroit and had coffee together There is no doubt in my mind from the evidence adduced at the hearing that they were discussing their testimony in this case as well as the small talk they admitted engag mg in on this occasion I find the testimony of several witnesses unbeliev able when they stated that although they were sitting immediately next to each other at the cafeteria table they were unable to hear what their neighbor was saying to company counsel This kind of joint preparation Continued MARCUS MANAGEMENT On Sunday, March 15 Wickowski phoned both Ko towski and Kucharski told them that Forbes had failed to clear the snow at the cooperative the previous day and suggested that he be fired They agreed She pre pared a resolution/directive, a form used by the board to give orders that are concurred in by at least three of the five members, and obtained the signatures of Kucharski and Kotowski on Monday, March 16 Because Kuzman ovski was not living at Roseville any longer, she was unable to obtain his signature, although she spoke with him by phone and he agreed verbally with the position of the other board members She was able to obtain the signature of board member Craib on March 18 The resolution/directive read The failure to clear snow Saturday March 14, 1987, from co op grounds The Board of Directors in structs Marcus Management to immediately terms nate Paul Forbes employment Advice him [sic] to vacate co op unit 25937 Salem within thirty days On Tuesday March 17, Wickowski phoned R Marcus, talked to him about the snow removal problem and told him that the board wanted Marcus Management to discharge Forbes R Marcus agreed to do so, but in sisted on having a directive in writing authorizing this action Wickowski said it would be in his mailbox when he came to Roseville for his regular Wednesday visit On the strength of this information, R Marcus prepared the following letter to Forbes, dated March 17 By evidence of the recent letters to you you have failed to execute the directives and require ments of your employment In an effort to keep the directives of the Roseville Board of Directors on record these items were put into writing and mailed to you This past week end, approximately five inches of snow fell in the City of Roseville, yet you did not plow the streets of the Cooperative or any of the walks, even after a member of the Board of Direc tors asked you to do so Your failure to act created a possible liability for the Cooperative You are well aware that any snow over two (2) inches calls for plowing of at least the main streets In light of your inaction and recent warnings to complete your work as directed the Board of Di rectors has terminated your employment effective immediately Please turn in your keys and any and all Cooperative property tools etc to Mrs Ottin ger at the Resale Office Also turn in all petty cash and petty cash receipts In conjunction with your termination you will have until April 17 1987 to move from the Cooper ative Housing Unit which you are presently resid of witnesses violates both the spirit and the letter of a sequestration order because it undermines the very purpose of the order namely that wit nesses should present to the Board their own individual and unprompted versions of the events in question The fact that this violation occurred casts a pall over the testimony of all the individuals who were involved in this coffee klatch Notwithstanding the opportunity it presented the board members were still unable to agree on the entire sequence of events that led to Forbes discharge 259 ing in Your final paycheck for the week of March 16 1987 will be mailed immediately upon the re ceipt of your time sheet When R Marcus arrived at the cooperative on Wednesday he checked his mailbox and found the prom ised directive from the board so he gave Forbes the above recited discharge letter In addition to filing the charges in this case, Forbes and his wife also filed an extensive civil damage suits against the Respondents, the individual members of the board, and A and R Marcus, personally The suit seeks both compensatory and punitive damages for wrongful discharge under Michigan common law relating to em ployment at will and various state civil rights statutes The suit is currently pending in the Macomb County Circuit Court II ANALYSIS AND CONCLUSIONS A The Joint Employer Relationship of Marcus Management and Roseville The General Counsel contends that Marcus Manage ment and Roseville were joint employers of Paul G Forbes The tests applied to determine joint employer and single employer status are somewhat different since a higher degree of common functioning by two enterprises is involved in a single employer situation The General Counsel makes no contention that the Respondents in this case are a single integrated enterprise Indeed Marcus Management has a life of its own quite apart from Roseville in the other co ops that it manages However, her contention is that they are bound together closely enough with respect to Roseville that each is re sponsible for the acts of the other as they relate to Rose ville employees The contention is well taken The Sixth Circuit pointed out in Carrier Corp v NLRB, 768 F 2d 778 at 781 (1985), that the proper legal standard to determine if a joint employer relationship exists is [W]here two or more employers exert significant control over the same employees-where from the evidence it can be shown that they share or co determine those matters governing essential terms and conditions of employment-they constitute joint employers within the meaning of the NLRA, NLRB v Browning Ferris Industries of Pennsylvania Inc 691 F 2d 1117 1124 (3d Cir 1982) Whether a company exercises such control as to be considered a joint employer is a factual issue to be determined by the Board Boire v Greyhound Corp 376 U S 473 481 (1964) All parties admit in this case that Roseville was Forbes employer The only issue is whether Marcus Manage ment also stands in those shoes 9 There is no limiting ad damnum clause in this suit setting a maximum recovery for the plaintiffs The complaint simply seeks damages in each of several counts for amounts in excess of $10 000 260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Marcus Management was and is an integral part of the operation at the Roseville cooperative Roseville can dis charge Marcus Management only for cause and if it does so, it must, under the terms of its mortgage incur ance agreement with HUD replace Marcus Management with another management company that fulfills the same responsibilities Marcus Management prepares the Rose ville budget collects the rents pays the bills and super vises both maintenance and other employees It hires em ployees in conjunction with the Roseville board In Forbes case, Alphonse Marcus and the Roseville board jointly interviewed him for the position from which he was ultimately discharged Marcus Management provides supervision of the maintenance operation When Forbes and Arndt had a grievance, Marcus Management at tempted to adjust the grievance When the Roseville board had problems with Forbes it was R Marcus who wrote to Forbes to direct his attention to specific mainte nance problems they felt needed his immediate attention When the Roseville board decided to fire Forbes, it was Marcus Management that carried out the directive It is quite clear from these facts that Marcus Management sig nificantly controls the employment of maintenance per sonnel and, as such, is a joint employer with Roseville Sands Motel 280 NLRB 132 (1986) Moderate Income Management Co, 256 NLRB 1193 (1981), Union Carbide Building Co 269 NLRB 144 (1984) B Antiunion Animus on the Part of the Respondents Both the disputed and undisputed testimony in this record reflects that a high degree of antiunion animus greeted Forbes decision in August 1986 to join the UAW Alphonse Marcus tried to put the onus on the board He told Forbes that they would get mad if they saw his letter announcing an intention to join the Union As for himself he told Forbes both orally and in writing that he did not think that a union was necessary He vol unteered to work out the grievance that both Forbes and Arndt had concerning too many bosses by taking up the matter directly with board members Wickowski stated two or three times in her testimony that Board President Kotowski was upset at the news that Forbes had joined a union Kuzmanovski testified that Wickows ki s reaction to the news that Forbes was organizing was fire the son of a bitch Kucharski s reaction was that Forbes would join a union over my dead body Ko towski although upset was concerned that Forbes would sue Roseville Alphonse Marcus told Forbes sometime in September that certain adjustments had to be made in his compensation to get the board off Forbes back He also told Forbes that three members of the board wanted to fire Forbes, but they had backed off when A Marcus told them to put it in writing The paper drawn up by Kotowski, himself a UAW member and presented to the board at its August 21 meeting entitled If They Want a Union," was a draconi an response to an organizing threat His later character ization of this document as bargaining proposals bor ders on the absurd Alphonse Marcus did not regard it as such at the meeting He flatly told Kotowski that Ko towski simply could not do what he was proposing to do There was no one in the picture at that moment with whom to bargain-and indeed the UAW never filed a petition or made a bargaining demand-so the attempt to downplay this document by calling it bargaining pro posals has no substance when viewed in light of the cir cumstances in which it was presented Moreover certain suggestions made in Kotowski s document simply do not relate to bargainable matters For instance, he proposed that the board inspect the work records of all three em ployees to determine how much time they missed He also suggested that the board consult legal counsel to see if they could get away with what he was proposing Such items can hardly be termed bargaining demands Kotowski s document outlined a program for harassment of employees and particularly the Charging Party in response to Forbes announced decision to seek union representation What remains to be determined is wheth er a series of adverse actions taken by the Respondents against Forbes in the ensuing 7 months were an ample mentation of Kotowski s game plan or whether they were prompted by other considerations C The September Revision of the Maintenance Department Job Description One of the items on Kotowski s list of bargaining proposals was a cut in vacation pay to 1 week for em ployees with 1-3 years service At that time employees with more than a year s service enjoyed 2 weeks off with pay This change, effectuated in the September 1986 re vised job description was undertaken supposedly be cause of the board s concern with having sufficient help available during winter months for snow removal The board s mid August concern with winter snow removal was far greater than the concern it demonstrated until 1 40 p in on March 14 when 5 1/2 inches had been laying on the ground for nearly 12 hours This change affected only Forbes who received a week s vacation immediately but never collected any more for 1986 be cause of his discharge in mid March of the following year The facial difference in vacation benefits coupled with the timing of this change the Respondents demon strated animus and Alphonse Marcus explanation that he had to do something to get the board off Forbes back, makes it abundantly clear that this reduction in these benefits was taken in reprisal for Forbes union ac tivities The fact that Forbes signature appears on the re vised job description in no way indicates that he consent ed to the change The board simply reduced a benefit that he had previously enjoyed and presented both him and Arndt with a fait accompli While it did so at a point in time that was beyond the reach of Section 8(a)(1) of the Act the Respondents action at this time demon strates not only continuing animus, but the first step in a pattern of conduct designed to carry out Kotowski s August 21 reprisal document The same should be said about health insurance There is no provision in the revised job description relating to health insurance although the previous job description outlined Blue Cross and Blue Shield coverage for main tenance employees This revision is also in accordance with Kotowski s stated plan Alphonse Marcus testified that the omission was an error but no revisions have MARCUS MANAGEMENT been published in the nearly 2 years that have elapsed since September 1986 to correct the error Forbes testa fled that in fact he received coverage when he was hos pitalized in late February 1987 but this fact in no way detracts from the fact that the Respondents published benefit coverage no longer includes health insurance, when once it did 10 In September 1986, the Respondents also extended the workday of the two maintenance men from 4 30 to 5 p in This was an indirect way of reducing their paid lunchbreak from 1 hour to one half hour, a downward revision also envisioned in Kotowski s memorandum Like the reduction in stated health insurance benefits, a prosecution by the General Counsel of this revision, taken as it was in order to harass Forbes for joining the Union, is barred by Section 10(b) of the Act, but this limitation does not prevent a finding that the action was motivated by animus and that it was one more piece in a mosaic that was being constructed, bit by bit, in response to a perceived threat of unionization D Further Reductions in Benefits and Compensation By letter dated February 17, the Respondents discon tinued the practice of granting Forbes so called banked or compensatory time in exchange for overtime worked Both the 1979 and 1986 job descriptions provided that the cooperative would not dock employees for occasion al days off, either for sick leave or personal leave, so long as these absences did not become excessive In con junction with this practice, another practice had grown up whereby maintenance men were given time off during a workday in lieu of cash payments for work performed outside normal working hours Earlier in the month Forbes told R Marcus that he thought that compensato ry time off should be computed at the rate of time and a half because the law required overtime to be paid at that rate Instead of either granting or ignoring this request the board revised the entire practice, eliminating com pensatory time entirely and granting each employee 5 days a year sick leave The flexible allowance of sick and personal leave was also discontinued at least for Forbes Forbes testified that he was astonished when he received notification of this change It is incredible as the Re spondents have contended that he either requested the February 17 change or consented to it At no time did Forbes object to the banked time arrangement His ob jection was that he felt he was not being compensated at a time and a half rate when overtime hours were banked There is no basis for the assertion that the February 17 revisions were regulated or consented to by Forbes As with other job description revisions these were unilater ally imposed The fact that this change was made retro active to January 1 and resulted in docking his pay was simply a way of rubbing it in Although job descriptions forbade the use of company vehicles for personal errands, Forbes had been instructed io In States such as Michigan which have developed a very expansive employment at will case law that often predicates the existence of such a contract of employment on provisions in personnel handbooks and pub lashed statements of benefits a difference such as the one outlined above could be of critical importance 261 by Marcus Management to pick up Arndt during inclem ent weather to make sure that Arndt, who had a bad ab senteeism record, was available for snow removal and other jobs This practice had been followed for some time At the February meeting, this practice was specifi cally discontinued by the board The only reason given at the hearing for this change in practice was that the board wanted company employees to be working on the premises during working hours rather than picking up people and bringing them to work However the former practice involved picking up Arndt before working hours so the board s rationale for its action as well as the timing of the action, leaves this change in working conditions essentially unexplained The computation for overtime payments for emergen cy calls performed after normal working hours was also revised by the board This revision also amounted to a reduction in compensation Formerly a maintenance man (and it was usually Forbes, the resident maintenance man) was given at least an hour of banked time for any call that was answered after regular duty hours, regard less of its duration, unless the call exceeded 1 hour in which instance the actual time worked was banked Under the revised procedure, payment was to be made in cash, not in time off, at the rate of time and a half, but only for actual time spent going to and from Forbes dwelling unit and the site of the emergency call This change was personally disadvantageous to Forbes and there is no merit in any contention that he consented to it or asked for it For a long time Forbes engaged in the practice, at least during periods of inclement weather, of parking the cooperative truck outside the maintenance building that was located near his apartment This made it easy for him to have access to the vehicle both in routine and emergency situations such as snow removal The board directive dated February 1987 instructed him to park the truck only at the resale office on New England Street, a couple of blocks away from his dwelling unit This change caused Forbes some inconvenience because in snowy weather he would have to walk through the snow for a block or two to get to the truck he used for snowplowing This instruction was simply petty harass ment Both reasons advanced at the hearing for this in struction were trivial and unconvincing and the timing for imposing this inconvenience on Forbes was suspi cious Respondents claim that Forbes had become disen chanted with his job as a result of not receiving the bonus he thought he was entitled to and that he was slackening off in his work so he had to be disciplined and restrained as a result of a sudden decline in perform ance As evidence of Forbes soured disposition and its impact on his work habits Respondents point to two let tern sent to Forbes by R Marcus dated February 25 and March 5, respectively telling Forbes to get cracking on certain repair work that he had not performed One of these letters was sent to Forbes while he was under a physicians care for bronchitis and was totally incapaci tated Some of these items were matters that Forbes had either been working on or could not be completed be 262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cause of weather or because of problems with the fire code compliance This background taken together with the accusatorial and argumentative tone of the letters, in dicates Marcus Management was using this correspond ence as a means of building a case against Forbes, not of getting work done that badly needed to be done These letters were specifically referred to by R Marcus in his discharge letter of March 16 The letters do not reflect a hostile attitude on the part of Forbes but a hostile atti tude toward Forbes on the Respondents part The fact that they were written within days of the 6 month anni versary of the board s August 21 meeting, when an irate board president presented to his colleagues a battle plan for combatting unionism among employees of the coop erative, serves to explain the timing of these measures far more than the several excuses proffered by the Respond ents I conclude that by imposing new work rules on maintenance employees and by reducing their pay and benefits in the February 17 and March 5 letters in order to take reprisal against Forbes for seeking union assist ance, the Respondents violated Section 8(a)(1) of the Act E The Discharge of Paul G Forbes on March 17 1987 Respondents are correct in saying that in order to find a violation of Section 8(a)(3) of the Act, a discharge must be tied to the union activities of the alleged discri minatee and specifically prompted by those activities It is not enough that a discharge may have arisen out of a bizarre set of circumstances, or that it occurred under circumstances that might be unfair in terms of some gen eral notions of equity or propriety, or even that Forbes would be placed in the impossible position of violating company rules if he performed the acts he was dis charged for failing to perform 11 The General Counsel must show by a preponderance of the evidence that all of these circumstances brought about a discharge that was, in fact, prompted by union considerations In making this argument Respondents point out that union activity on the part of Forbes had ceased sometime in the fall of 1986 because he was unable to engender any enthusiasm for his cause from either Arndt or Ottinger and that the Respondents never heard from the UAW as a result of Forbes organizing efforts It is the Respond ents contention that the union campaign was dead that it had paid no attention to this effort in the first place and that Forbes was discharged because he failed to remove snow, something that any maintenance man should have known was a high priority item and that he had been repeatedly told was a matter of great concern both to the Roseville cooperative and to its members Kotowski to the contrary notwithstanding, there is no specified time lag between union activity and discharge that serves to immunize an employer from responsibility under the Act A discriminatory discharge can take 4 11 As noted elsewhere in this decision the Charging Party has filed suit against these Respondents and their principals and is seeking damages in a civil court under the common law and the statutes of Michigan It is not my intention in this decision to resolve any question of fact or law that may be at issue in that litigation months12 after overt union activity is discovered or even 17 months 13 thereafter The weakest part of the General Counsels case is the fact that a considerable amount of time passed between union activity on Forbes part and the discharge that took place on March 17, 1987 How ever there is such a thing as latent hostility which bides its time and lies in wait, seeking the appropriate occasion to work its will This is what the Board is confronted with in this case In presenting his battle plan on August 21, Kotowski was afraid that Forbes might sue if he were immediately discharged Both Marcus and Kuz manovski told Forbes that the board wanted to fire him immediately but they declined to do so for this reason In fact, Kuzmanovski told Forbes that the only thing that prevented his discharge from taking place immedi ately was fear of a lawsuit Accordingly, the board de cided to wait 6 months to do what it would have pre ferred to do immediately This is just what happened The picture painted by the Respondents in this case is that snow removal has always held high priority because the cooperative has a number of elderly residents who are in danger of slipping if walks and pathways are not cleaned promptly after a snowfall This risk makes the Respondents potentially liable for serious damage claims everytime it snows so it is imperative that snow be re moved immediately after it hits the ground This is not what printed job descriptions have said as far back as 1979 Then, as now, priority in snow removal was not assigned paths and walkways, but to parking lots so that residents could use their cars to go to work The 1979 description said that snow removal is not to be done during normal working hours unless a heavy snowfall is experienced Then the roads should be cleared so that members can get to work The 1986 description, given to the maintenance department following the August 21 board meeting, repeated this language almost in haec verba The February 1987 job description amendment carried forward the same policy but was more explicit During any snow fall of 2 inches or more the main streets of the Co op must be plowed The remainder of plowing and clearing of snow shall be completed during the next business day When a 2 inch or greater snow fall is experienced on a Friday or Sat urday night directions for snow removal shall be given by the President of the Board All snow re moval must be completed by the Maintenance De partment only 14 The standard long term written policy of the cooperative has been to leave the clearing of walks and pathways to the following business day or to regular working hours unless there is an unusually heavy snow The reason for this policy is quite evident and Kuzmanovski admitted 12 Datagraphic Inc 259 NLRB 1285 (1982) is J P Stevens & Co 167 NLRB 258 (1967) 14 The last sentence in the amendment is new The 1979 and 1986 job descriptions provided Part time additional help to clean snow may be hired at minimum wage Any person hired for part time help must be at least eighteen (18) years of age They are to be paid out of Petty Cash and they must sign for the money which they receive MARCUS MANAGEMENT the basis for it, namely, to save the cooperative the over time labor cost that would apse if maintenance employ ees worked around the clock to clean the premises when it snowed In March 1987 Forbes hourly rate was $10 50 an hour, which works out to an overtime rate of $15 75 an hour In its February job description amendments, the Respondents eliminated banked time, so any overtime paid to Forbes for snow removal on Saturday, March 14, would mean a cash outlay of $15 75 an hour, not com pensatory time off This is expensive snow removal for an employer on a tight budget, and it is far more than the minimum wage or the $5 an hour for which Rose ville could hire temporary help It is also much more money than Roseville would have to lay out if it simply waited until Monday, hoped for warmer weather, and let the maintenance crew remove the balance of the snow during their normal tour of duty Cost saving is the obvi ous rationale for the very explicit provision in the Febru ary 1987 job description amendment relied on by Forbes, which states that when a 2 inch or greater snowfall is ex perienced on a Friday or Saturday night directions for snow removal shall be given by the President of the Board " The president of the board gave no such direc tive on March 14 to Forbes Instead, he simply got in his car, drove out of the parking lot, and went to work, thereby saving the cooperative $15 75 an hour in snow removal cost from Forbes and about $9 an hour in the case of Arndt Had Forbes gone ahead with snowplow ing on that Saturday morning without Kotowski's explic it instruction, he would have been guilty of running up a large bill for unauthorized overtime, for which infraction he could have been either disciplined or at least not paid The General Counsel argues quite correctly that Forbes was, in fact, discharged for failing to be insubordinate and for complying with the categorical and unambiguous language of a directive that he had received only 10 days before The only answer the Respondents make to this allegation is that Forbes should have had enough common sense to remove the snow without being told If there was any want of common sense involved in this sit uation it is in the formulation of the February regula tion not in Forbes compliance with its terms There is no support in the record for the contention that Forbes disobeyed a direct order to remove snow on March 14 Wickowski asserted that she had the right to give Forbes specific orders concerning maintenance mat ters if the orders were reasonable and she was the judge of what was reasonable The whole arrangement engi neered by Alphonse Marcus in August 1986 was de signed to preclude just such interference with mainte nance operations The explicit language in the February 1987 job description amendment placed weekend snow removal instruction power squarely in the president of the board not the secretary, and on the occasion in ques tion the president declined to exercise his power Leav ing aside the question of Wickowski's attempted power play, the fact remains that she gave Forbes an instruction that could not be carried out because the individual who normally performed snow removal on the paths and walkways of the cooperative was out drinking, had the keys to the snowblower in his pocket, and could not be reached For Arndt s dereliction Forbes was blamed 263 Failure to remove snow was merely the cover story which the Respondents used to get rid of Forbes They had decided to take this action back in August 1986, long before the first snow fell, but decided to wait in order to shore up their legal position What transpired after this decision was taken as merely an unfolding of a game plan that was hit upon at that time The NLRB may not inquire into the reasonableness of an employer's decision to terminate an employee However, where, as here, there was company knowledge and strong animus, the arbitrariness and irrationality of the employer's action is some evidence that its asserted reason was not its real reason I find and conclude that this was the case at Roseville By discharging Paul G Forbes because of his sympathy for and activities on behalf of the UAW, the Respondents, and each of them, violated Section 8(a)(1) and (3) of the Act On these findings of fact and on the entire record con sidered as a whole, I make the following CONCLUSIONS OF LAW 1 Respondents Marcus Management, Inc and Rose ville Towne Houses Cooperative, Inc, and each of them, are now and at all times material herein have been em ployers engaged in commerce within the meaning of Section 2(2) of the Act They are joint employers 2 The International Union, United Automobile, Aero space and Agricultural Implement Workers of America (UAW) is a labor organization within the meaning of Section 2(5) of the Act 3 By discharging Paul G Forbes because of his activi ties on behalf of the Union, the Respondents and each of them, violated Section 8(a)(3) of the Act 4 By the acts and conduct set forth above in Conclu sion of Law 3 and by issuing new and more onerous work rules and restricting and reducing compensation of employees because of their activities on behalf of the Union, the Respondents violated Section 8(a)(1) of the Act 5 The acts have a close intimate and substantial effect on the free flow of commerce within the meaning of Section 2(2), (6), and (7) of the Act REMEDY Having found that the Respondents have committed certain unfair labor practices, I will recommend that they be required to cease and desist therefrom and to take other actions designed to effectuate the purposes and policies of the Act I will recommend to the Board that the Respondents, and each of them, be required to offer to Paul G Forbes reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other benefits he may have enjoyed, and that he be made whole for any loss of pay or benefits that he may have suffered by reason of the discrimination found in this case in accordance with the formula set forth in the Woolworth case 15 with interest computed at the 15 F W Woolworth Co 90 NLRB 289 (1950) 264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD short term Federal rate used to compute interest on un derpayments and overpayments of Federal income taxes under the Tax Reform Act of 1986 New Horizons for the Retarded 283 NLRB 1173 (1987) This make whole remedy should include relocation costs incurred by Forbes and any costs incidental to buying or selling a house that he may have incurred or that he might incur as a result of compliance with this Order I will also rec ommend that the Respondents be required to post the usual notice advising its employees of their rights and of the results in this case [Recommended Order omitted from publication]