Chinese American Planning Council

National Labor Relations Board - Board Decisions

Apr 28, 1995

317 N.L.R.B. 202 (N.L.R.B. 1995)

202
317 NLRB No. 29
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
resolutions. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance 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 for reversing the findings.
2 In recommending Chen for a full-time position if one became
available, Chen’s supervisor was not necessarily indicating that it
would be available if outside funds were withdrawn.
Chinese American Planning Council, Inc. and Yu
Chun Chiu and Hong Ning Workers Union.
Cases 2–CA–24750 and 2–CA–25494
April 28, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On July 7, 1994, Administrative Law Judge Steven
Davis issued the attached decision. The General Coun-
sel and the Respondent filed exceptions, supporting
briefs, and reply briefs.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent violated the
Act by refusing to increase employee Shao Paio
Chen’s regular hours of paid employment upon the ex-
piration of Chen’s participation in a subsidized em-
ployment program. We do not agree. Rather, we find
that the Respondent violated the Act by imposing more
onerous working conditions upon Chen.
In November 1989, the Respondent hired Chen as a
handyman/porter at an apartment building. Chen
worked 7 hours per day. The Respondent paid for 3
hours of employment. The money for the remaining 4
hours came from the Senior Aide Program, funded by
the United States Department of Labor.
In May 1990, 4 days after Chen, a union supporter,
testified at a Board representation hearing, the Re-
spondent began to criticize Chen’s work. Chen had,
prior to his union activities, received good evaluations.
In addition, the Respondent has admitted that in May
1990, and on several occasions thereafter, its super-
visor and director of Phoenix Food Services threatened
its kitchen staff employees with unspecified reprisals
because of their support for the Union; and that in No-
vember 1990, the same supervisor physically attacked
and assaulted a kitchen staff employee because of his
support for and activities on behalf of the Union. We
agree with the judge that this evidence supports a find-
ing of antiunion animus.
The Senior Aide Program subsidized Chen’s em-
ployment for the Respondent for 2 years. In October
1991, Chen was informed that his 2-year term with the
Senior Aide Program would expire in December 1991,
and he was offered a job by the Respondent as a tele-
phone receptionist, which would have permitted Chen
to maintain his 4 hours of employment in the Senior
Aide Program and to continue in a 7-hour-per-day paid
position. Chen, however, rejected that offer. In Decem-
ber 1991, Chen’s eligibility for the Senior Aide Pro-
gram expired and his subsidized employment ended.
Chen continued to work 3 hours a day, for which the
Respondent paid him.
Chen testified that although his hours were reduced
from 7 to 3 per day, his job duties did not change and
the Respondent required him to complete in 3 hours
the same amount of work he had previously done in
7 hours. Chen also testified that the Respondent has
criticized him because the building was not as clean as
it had previously been.
By requiring Chen to maintain the same level of
performance in 3 hours which he had previously man-
aged in 7 hours, the Respondent is requiring him to do
a job he does not have enough time to perform. The
Respondent’s criticism of him for failing to satisfy the
Respondent’s unreasonable expectations, coupled with
the other evidence of animus, evidences a discrimina-
tory motive. The imposition of more onerous working
conditions in retaliation for union activities violates
Section 8(a)(3). Laminates Unlimited, 292 NLRB 595,
599–600 (1989).
Contrary to our dissenting colleague, we do not
agree that the General Counsel has established that the
Respondent violated the Act by failing to increase
Chen’s paid hours to 7 hours a day. The Respondent’s
past practice has always been to pay a handyman/-por-
ter for 3 hours per day, and to enroll that employee in
the Senior Aide Program for an additional 4 hours a
day. There is no evidence that the Respondent ever
employed and paid a handyman/porter from its own
funds for the total 7 hours per day. Further, the judge
found that participants in the Senior Aide Program
typically work for a fixed 2-year term, after which the
worker is either hired and paid by the host agency or
assigned to another Senior Aide position. The program
is fundamentally a training program. Contrary to our
dissenting colleague’s assertion, there is no evidence
that the Respondent had the authority to renew Chen’s
subsidized employment in the same position or that an
employee can continue in the Senior Aide Program in
the same position after the expiration of the 2-year
term that allows for training.2 Thus, in December
1991, Chen’s paid hours were lawfully decreased be-
203CHINESE AMERICAN PLANNING COUNCIL
3 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
National 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.’’
cause of the expiration of his 2-year term in that posi-
tion under the program.
Thereafter, the Respondent continued to employ and
pay Chen for 3 hours out of its own funds as it had
done for the previous 2 years; but as noted above it
imposed predictably unmeetable obligations on him.
Thus, although the General Counsel has established a
violation of the Act—that the Respondent, for unlawful
motives, subjected Chen to more onerous working con-
ditions—the General Counsel has failed to establish
that the Respondent would have placed Chen on its
own payroll for 7 hours per day in the absence of his
union activities.
Further, the General Counsel does not allege, and
the judge did not find, that Chen in fact worked 7
hours a day and received only 3 hours’ pay. Based on
these facts, we believe that the appropriate remedy for
the violation we find is the traditional cease-and-desist
order. Yale New Haven Hospital, 309 NLRB 363, 371–
372 (1992).
ORDER
The National Labor Relations Board orders that the
Respondent, Chinese American Planning Council, Inc.,
New York, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening its employees with unspecified re-
prisals because of their support for the Hong Ning
Workers Union and activities on behalf of the Union.
(b) Physically attacking and assaulting employees
because of their support for the Union and activities on
behalf of the Union.
(c) Imposing more onerous working conditions on
its employees by requiring them to do what was once
a 7-hour job in 3 hours.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its office in New York City, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 2, 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER BROWNING, dissenting in part.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(1) of the Act by its admitted conduct
in threatening employees with unspecified reprisals and
in physically attacking and assaulting employees be-
cause of their support for and activities on behalf of
the Union. I also agree that the Respondent dem-
onstrated animus against its employees’ union activi-
ties by these actions, and that it demonstrated animus
against the union support and activities of its employee
Shao Paio Chen by criticizing his work and giving him
poor evaluations after he testified at a Board represen-
tation hearing. Finally, I agree with my colleagues that
the Respondent subsequently discriminated against
Chen in violation of Section 8(a)(3) of the Act.
Where I part company with my colleagues is in their
characterization of the unlawful discrimination which
the Respondent visited upon Chen. I would adopt the
judge’s conclusion, largely for the reasons he articu-
lated, that the Respondent violated Section 8(a)(3) by
refusing to increase Chen’s hours of paid employment,
and, in agreement with the judge, I would order the
Respondent to make Chen whole for any loss of earn-
ings he suffered as a result of this unfair labor prac-
tice. The Respondent, for several years, had had a
caretaker on the premises at the apartment building
where Chen worked for 7 hours a day. It is true the
Respondent had not always paid this caretaker for the
full 7 hours of work, choosing to enroll in the Senior
Aide Program to obtain payment for part of those
hours. The fact remains, however, that, prior to Chen’s
union activities, the Respondent had always concluded
that it needed a caretaker on the premises for 7 hours
a day. And in fact, even after Chen began working for
only 3 hours a day, the amount of work which the Re-
spondent demanded of him did not change. In my
view, this clearly evidences the fact that the Respond-
ent still desired and needed a caretaker on those prem-
ises for the full 7 hours every day. In addition, Chen’s
supervisor recommended that he be considered for a
full-time position if one became available when she
evaluated Chen in April 1991. But instead of offering
the job to Chen as a full-time position, or renewing his
subsidized employment for the remaining 4 hours
through the Senior Aide Program, which it had the au-
thority to do, it chose to keep him on at only 3 hours
per day. In agreement with my colleagues, I would
conclude that the General Counsel has established a
strong prima facie case that the Respondent made this
choice because of Chen’s union activities and support.
Because the Respondent has proffered no rational rea-
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
son for having made the choice, it has not met its bur-
den of proving that it would have made the choice
even in the absence of Chen’s union activities and sup-
port. Accordingly, I would conclude that the Respond-
ent made the choice not to make Chen a full-time care-
taker for unlawful discriminatory reasons in violation
of Section 8(a)(3).
The question then remains whether we should order
the Respondent to make Chen whole for making this
discriminatory choice in violation of the law. An argu-
ment could be made that if the Respondent had kept
Chen on, it would have done so by renewing his en-
rollment in the Senior Aide Program, and thus would
not have paid him for the extra 4 hours per day in any
event. In my view, however, it would not effectuate
the purposes and policies of the Act to allow the Re-
spondent to escape backpay liability for this reason.
Having chosen not to renew Chen’s participation in the
Senior Aide Program, the only logical alternative the
Respondent had in order to maintain its consistent past
practice of having a caretaker on the premises for 7
hours a day would have been to put Chen on its pay-
roll as a full-time caretaker. Because I would conclude
that the Respondent violated the Act by failing to do
so, and because I would resolve any doubts against the
wrongdoer, I would order the Respondent to make him
whole for the losses he suffered as a result.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten our employees with unspec-
ified reprisals because of their support for the Hong
Ning Workers Union and activities on behalf of the
Union.
WE WILL NOT physically attack or assault our em-
ployees because of their support for the Union and ac-
tivities on behalf of the Union.
WE WILL NOT impose more onerous working condi-
tions on our employees by requiring them to do what
was once a 7-hour job in 3 hours.
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 Section 7 of the Act.
CHINESE AMERICAN PLANNING COUN-
CIL, INC.
Terry A. Morgan, Esq., for the General Counsel.
Henry C. Woicik, Esq., of New York, New York, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed on November 8, 1990, in Case 2–CA–24570 by
Yu Chun Chiu, an individual, and a charge filed on Decem-
ber 23, 1991, in Case 2–CA–25494 by the Hong Ning Work-
ers Union (Union), a complaint was issued against Chinese
American Planning Council, Inc. (Respondent) on May 27,
1993. The Respondent filed an answer, and on December 7
and 8, 1993, a hearing was held before me in New York
City.
On the evidence presented in this proceeding, and my ob-
servation of the demeanor of the witnesses, and after consid-
eration of the briefs filed by General Counsel and Respond-
ent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a not-for-profit corporation with an office and
place of business in New York City, has been engaged in
providing housing and other services to the Chinese-Amer-
ican community in New York City. Annually, Respondent
derives gross revenues in excess of $500,000, and purchases
materials, goods, and supplies valued in excess of $50,000,
directly from suppliers located outside New York State. Re-
spondent admits, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
Respondent also admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Admitted Complaint Allegations
In late 1989, the Union commenced organizational cam-
paigns seeking to represent, in separate units, Respondent’s
kitchen staff employees, and its maintenance employees.
The complaint alleges, and Respondent admits, that begin-
ning in about May 1990, and on several occasions in the
summer of 1990, Respondent, through Albert Lau, its super-
visor and director of Phoenix Food Services, threatened its
kitchen staff employees with unspecified reprisals because of
their support for the Union and activities on its behalf.
The complaint also alleges, and Respondent also admits,
that on about November 5, 1990, Respondent, through Lau,
physically attacked and assaulted a kitchen staff employee
because of his support for the Union and activities on its be-
half.
On February 8, 1991, the Union was certified by the
Board as the collective-bargaining representative of Respond-
ent’s full-time and regular part-time kitchen staff employees,
and on September 3, 1991, the Union was certified as the
collective-bargaining representative of Respondent’s full-time
and regular part-time maintenance employees.
B. The Disputed Complaint Allegation
The complaint alleges, and Respondent admits, that in
about late October 1991, and thereafter, Respondent failed
205CHINESE AMERICAN PLANNING COUNCIL
and refused to increase employee Shao Paio Chen’s regular
hours of paid employment for Respondent, even though
Chen’s working hours were reduced because of his removal
from his position in the Senior Aide Program, effective De-
cember 15, 1991.
Although Respondent admits this allegation, it denies that
it refused to increase Chen’s hours of paid work because he
engaged in activities on behalf of and in support of the
Union, as alleged in the complaint.
III. THE FACTS
The United States Department of Labor has a subcontract
with the National Council of Senior Citizens (NCSC) to pro-
vide training and employment for older Americans. Respond-
ent is a local sponsor of the NCSC. Respondent conducts
programs for senior citizens in the Chinese-American com-
munity which include the Mature Workers Program, and the
Senior Aides Program.
The Mature Workers Program trains older people in job
skills. The Senior Aides Program help finds work at host
agencies for senior citizens. Participants work for the agency
for a 2-year period. At the end of their term, the worker is
either hired by the host agency, as a regular employee, or
given another senior aide position in order to obtain more ex-
perience. The work performed is designed to train the em-
ployee to adapt to the American workplace. The host agency
does not pay for the work performed by the senior aide. Pay-
ment for the work of the senior aide is made by NCSC
through the Department of Labor with Government funds.
Chen completed the handyman training course given by
the Mature Workers Program. In November 1989, he became
employed by Respondent, a host agency, as a handyman/-
porter at 384 Grand Street, New York City, a building which
was operated by the 384 Grand Street Housing Development
Fund Company. This was his first job in the United States.
Chen was employed for 7 hours per day, 3 hours of which
were paid for by the 384 Grand Street Housing Development
Fund Company, and 4 hours were paid by the Senior Aide
Program, funded by the Department of Labor. He received
two separate checks. When he was hired, he was told that
Respondent could not, itself, afford a full-time employee.
When Chen was hired, he was told that this was a 7-hour-
per-day job. From November 1989 through December 1991,
Chen worked 7 hours per day, 35 hours per week at the
building, which consists of 26 residential apartments and 3
retail stores. His duties included cleaning the interior and ex-
terior of the building and repair and maintenance work in the
apartments and stores.
In about late 1989, the Union began organizing Respond-
ent’s employees. On January 24, 1990, Chen signed an au-
thorization card for the Union.
Chen stated that in early February 1990, Echo Wong, Re-
spondent’s building manager for 384 Grand Street, asked him
what he thought of the Union. Chen told her that he believed
that the Union would benefit the employees and that he had
joined it.
Thereafter, on February 16, 1990, at the end of his 3-
month probationary period, Chen received a positive, written
evaluation from Wong, which described him as being very
reliable and hard working. She recommended that he be on
probation for a further 3 months, during which time he re-
ceive training at a superintendent training course.
On April 2, Chen received another evaluation from Wong,
in which she stated that following the training course, his
work performance and quality have ‘‘highly improved.’’ She
described him again as hard working, and stated that he ‘‘has
a very good knowledge on building maintenance, but he
needs more hands-on experience to strengthen his skills.’’
She recommended that he be considered for a full-time build-
ing maintenance position, if one became available, and noted
that in the future, if the budget permits, he should receive
a salary increase.
On May 10, Chen testified at a Board representation hear-
ing. Supervisor Tammy To, who is Wong’s supervisor, was
present at the hearing.
On May 14, Chen received a memo from Wong, in which
she criticized him for failing to report to the building man-
ager at least once per day regarding the progress of repair
work, and any difficulties which may arise. Chen first testi-
fied that he was required to make the report in English,
which is not his native language. He later, however, stated
that he was occasionally required to complete the reports in
Chinese, and there was ‘‘no strict rule’’ as to whether he had
to complete the reports in English. Chen stated that prior to
May 14, he was not required to make a daily report, and in
fact none of Respondent’s handymen are required to com-
plete such a report. Chen further stated that he was able to
write only certain phrases in Chinese. Wong rejected his Chi-
nese reports, saying that she was unable to read his Chinese.
She then asked him to write the reports in English.
On July 6, Chen received another memo from Wong, in
which she noted that he had taken over 2 months to make
certain repairs, thereby disregarding a ‘‘service priority list.’’
In early August, Chen received four memos in 3 days, and
one other 4 days later. The memos noted that Respondent re-
ceived a violation for garbage in the hallway, and that he
should have removed it or told the tenant who left it to do
so; Chen failed to keep the elevator’s lock in a position so
that entry to the basement cannot be made by outsiders, and
that she saw him sleeping in the basement on August 8;
Chen failed to check the work of outside contractors such as
exterminators and fire extinguisher servicemen; Chen left a
large plumbing part in the lobby, ignoring instructions that
it should be taken to another building owned by Respondent.
The last of the above memos was written on August 13.
Chen sent a letter to Wong on August 13, protesting the
‘‘mental pressure’’ he was subjected to, including the re-
quirement that he write his reports in English, and the fact
that his workload has increased.
On August 14, the Union wrote to Respondent’s official
Lau, protesting the ‘‘continuing illegal harassment faced by
workers at . . . 384 Grand Street.’’ The Union demanded
that the ‘‘intimidation’’ and retaliation against the employees
for their union activities stop.
On October 10, 1990, Wong sent another memo to Chen
demanding that certain personal articles, including a tele-
vision and disc player, be removed from the basement.
Respondent admitted that in November 1990, its official,
Lau physically attacked and assaulted a kitchen employee be-
cause of his support for the Union and activity on its behalf.
Chen testified that prior to his testimony at the representa-
tion hearing in May, he had never been given a written
memo from Wong. Wong testified that no one at Respond-
ent’s other building at 50 Norfolk Street is required to make
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
daily written reports because they are doing their jobs and
are reporting properly. She stated that Chen failed to report
orally each day, so that written reports were required.
As set forth above, 1 year later, in September 1991, the
Union was certified as the collective-bargaining representa-
tive of the maintenance employees. Chen was a member of
that unit, and served as its secretary in collective-bargaining
negotiations with Respondent.
During the bargaining, Respondent’s representatives in-
formed Chen that Respondent could not afford to hire a full-
time permanent maintenance employee, and that his work
could be completed in a 5-hour workday, and thus only a
part-time employee was needed in his position.
In October 1991, Chen was informed that his 2-year term
as a senior aide would expire in December. He was offered
a job by Respondent as a telephone receptionist which would
have preserved his hours of employment in the Senior Aide
Program, but he rejected the offer.
In December 1991, Chen’s senior aide position was termi-
nated, and accordingly he no longer worked the 4 hours per
day which was paid for by the Senior Aide Program. How-
ever, he retained, and continued to be employed at, and paid
for, his 3-hour-per-day job as a handyman/porter at 384
Grand Street.
Chen’s job duties remained the same. Respondent has not
hired anyone to assist him, and he remains the sole
handyman/porter at 384 Grand Street. No senior aide has
been hired to work at the building as a replacement for
Chen’s senior aide position which expired. This, notwith-
standing that last year, Respondent requested funding for 100
senior aide positions, and received 92 or 93, and this year,
it requested 100 positions.
Mannam Ma, the director of the Senior Aide and Mature
Workers Program, testified that senior aides are no longer
being trained in building maintenance because of the down-
turn in the real estate industry. Currently, they are trained in
home care.
Chen testified that, notwithstanding the fewer hours he
works at the building, he still has the same amount of work
to perform, and that he strives to complete 7 hours’ work in
3. He stated that he does not have enough time to complete
all his assignments, and the building is not as clean as it was
before, adding that he was criticized in February 1993 by
Wong for not keeping the building clean.
He performs his work at the same pace as before the re-
duction in hours, and copes with the reduced hours by reduc-
ing and postponing the work ‘‘step by step.’’
Prior to Chen’s hire on November 1, 1989, two porter/-
handymen were successively employed at the building. Man
Leung, who worked from June 1 to October 2, 1989, for 7
hours per day, was employed on the same basis as Chen: his
work was partly funded by the Senior Aide Program; and
Cho-Tong Chu, who worked from October 2 to 31, 1989.
The record is unclear as to whether Chu was a participant
in the Senior Aide Program. It should be noted that prior to
Man Leung’s employment in June 1989, for about 3 months
the superintendent of 50 Norfolk Street performed repairs
and maintenance at 384 Grand Street, and at the same time
a Mr. Liang did the handyman/porter work at 384 Grand
Street. There was no evidence as to how many hours Liang
worked at the building. In addition there was 1 month where
no one was employed as a porter/handyman.
Respondent’s Evidence
Respondent first argues that no animus has been dem-
onstrated since following Chen’s admission to Supervisor
Wong that he joined the Union and believed that the employ-
ees would benefit therefrom, he nevertheless received a very
positive evaluation only 1 or 2 weeks later, and another ex-
cellent evaluation 1-1/2 months after that, in April 1990. Re-
spondent further argues that the absence of animus is shown
in its offer to Chen of another senior aide position when his
expired.
Respondent argues that the substance of the complaint was
addressed, and dismissed, by the Regional Director. On June
16, 1993, the Regional Director dismissed that part of the in-
stant charge which alleged that Respondent removed Chen
from his senior aide position because of his union activities.
In dismissing that part of the charge, the director found that
Chen’s participation in the senior aide program was lawfully
limited to 2 years.
Wong testified that when Chen’s senior aide position ex-
pired, Respondent did not hire another senior aide to assist
Chen because she was told by Supervisor To that there were
not enough senior aides available, and that if one was hired,
she would have to supervise the senior aide. According to
Wong, she was too busy at that time to supervise a senior
aide.
Respondent further asserts that when Chen’s senior aide
position expired, it did not increase his hours because it
could not afford to do so, and additional hours were unneces-
sary because it determined that the work could be performed
in the 3 hours per day he was paid by Respondent for his
work.
In addition, Respondent asserts that Chen has not per-
formed competently, and supports that conclusion with five
work orders from October 1990 to November 1993, bearing
notations that he was unable to clear clogged drains, find a
leak, and fix a short circuit in a circuit breaker. In these in-
stances, Wong either had the porter/handyman at 50 Norfolk
Street make the repair or hired an outside contractor. In one
instance, the repair required welding a pipe using a blow-
torch.
Positions of the Parties
General Counsel argues that Respondent discriminatorily
refused to increase Chen’s work hours following the expira-
tion of his participation in the Senior Aide Program. General
Counsel’s argument is that Chen’s hours were not increased
because of his union activities. This action imposed more on-
erous working conditions on him, according to General
Counsel, since he was required to perform the same amount
of work in 3 hours that he had previously performed in 7
hours.
General Counsel points to the facts that (a) for over 2
years, a porter/handyman was employed for 7 hours per day
to perform the duties at the building, (b) Chen had excellent
job evaluations until his testimony at the Board representa-
tion hearing, and (c) Respondent has refused to hire another
senior aide to assist Chen, although it could have done so.
Respondent argues that General Counsel’s case is simply
a reargument of that part of the charge which had been dis-
missed by the Regional Director. It was found that the reduc-
207CHINESE AMERICAN PLANNING COUNCIL
tion in Chen’s hours, by the expiration of his participation
in the Senior Aide Program, was not unlawful.
Respondent thus argues that since a reduction in Chen’s
hours was not unlawful, a refusal to increase his hours can-
not be unlawful.
Analysis and Discussion
General Counsel’s prima facie case
Chen’s interest in the Union was well known to Respond-
ent. He admitted to his supervisor that he joined the Union,
and that he believed that employees would benefit therefrom.
Despite the two excellent evaluations he received within the
next 2 months, a change was apparent in Respondent’s atti-
tude upon his testifying at a Board proceeding on May 10,
1990.
Only 4 days later, he began receiving memos criticizing
his work and his failure to report each day, and requiring
that he make daily written reports in English, not required
to be made by any other employee, and in a language other
than his native language.
This criticism of Chen’s work began only 1 month after
Supervisor Wong wrote that he had a ‘‘very good knowl-
edge’’ of building maintenance.
These criticisms of Chen, which began in May, and con-
tinued through the summer of 1990, occurred contempora-
neously with Respondent’s admitted threats of unspecified
reprisals to its kitchen staff employees because of their sup-
port for and activities on behalf of the Union.
Although those threats were made to employees in a sepa-
rate unit in a different building, I find that there is a connec-
tion between that animus and animus directed toward Chen.
Thus, the Union’s organizational campaign began in late
1989 and was directed at both units at the same time. Chen
testified at a Board proceeding, and he told Supervisor Wong
that he joined the Union and believed that it would benefit
the workers. It is apparent that Respondent possessed animus
toward the Union and toward employees who supported it.
I would have found that Respondent’s change in attitude
toward Chen’s work performance, its criticisms of him, and
the requirement that he write reports in English constituted
violations of the Act. Those actions, however, were not al-
leged, apparently because they would have been time barred
by Section 10(b) of the Act. Nevertheless, I may use such
incidents as background to support a finding of union ani-
mus, and I do here. Gencorp, 294 NLRB 717 fn. 1 (1989).
The fact that the Regional Director determined that Chen’s
hours were lawfully decreased by the expiration of his term
as a senior aide does not answer the question presented here.
The question posed by the complaint is whether Chen’s
hours should have been increased upon the termination of his
participation in the Senior Aide Program. Specifically,
whether his hours should have been increased from the 3
hours within which Chen was supposed to complete the work
which had taken him 7 hours previously.
In deciding whether Chen’s work hours should have been
increased to 7 upon the loss of his senior aide position, it
is critical to examine the history of the building maintenance
staff’s work hours in order to determine whether Respond-
ent’s practice was to employ a handyman/porter for 7 hours
per day. I find it most significant that prior to Chen’s hire,
Man Leung, employed for 4 months in the same position,
worked 7 hours. Chen worked for 2 years at 7 hours per day.
In addition, Chen gave uncontradicted testimony that upon
his hire he was told by Supervisor Wong that his was a 7-
hour job. Further, Chen’s April evaluation recommended that
he would be a ‘‘potential candidate’’ for a full-time building
maintenance position should one become available, and that
he should receive a salary raise if the budget permitted.
It is therefore clear that Respondent’s failure to increase
Chen’s hours to 7 per day was at variance with its prior
practice of employing a handyman/porter to work 7 hours per
day. Nemacolin Country Club, 291 NLRB 456, 461 (1988).
I accordingly find that General Counsel has established a
prima facie showing that the union activities of Chen were
motivating factors in Respondent’s refusal to increase his
work hours. Wright Line, 251 NLRB 1083 (1980).
Having found a prima facie for unlawful motivation in the
refusal to increase Chen’s work hours, the burden shifts to
Respondent to prove that it would have taken the same ac-
tion even in the absence of his union activities. Wright Line,
supra.
Respondent asserts several reasons for its refusal to in-
crease Chen’s work hours. First it asserts that it could not
afford to do so. No financial evidence was given at hearing
as to this defense, and it therefore has not been proven. Ad-
vertiser’s Mfg. Co., 280 NLRB 1185, 1197 (1986).
Respondent further asserts that it was not necessary to in-
crease Chen’s hours since he could have finished his work
in 3 hours. However, Chen and the handyman/porter em-
ployed before him were employed for 7 hours, and according
to Chen’s credited testimony, Respondent said the job could
be done in 5 hours per day.
Respondent further argues that it did not hire an additional
senior aide to assist Chen because none were available. This
does not ring true especially since nearly 100 senior aides
were funded last year, and it requested 100 positions this
year. In this connection, it was asserted that even if a senior
aide was assigned to the building, Supervisor Wong did not
have the time to train him. There was no evidence of a
change in her responsibilities which would have prevented
her from training a new handyman/porter.
Finally, Respondent asserts that Chen did not properly per-
form his job. It is strange that in April 1990, after only 4
months of employment, he received an excellent performance
evaluation with a recommendation that he be considered for
a full-time position and a pay raise, since he had ‘‘a very
good knowledge’’ of building maintenance, but thereafter,
his skills were not considered passable.
It should also be noted that inasmuch as Leung worked 7
hours, and thereafter Chen worked 7 hours for 2 years, there
has been no showing that any conditions in the building
changed which would have required a reduction in Chen’s
hours of work. There can be no showing here that business
declined. The apartments remained occupied, and there con-
tinued to be 7 hours’ work to be performed. In fact, he was
criticized in February 1993 for not keeping the building
clean.
The fact that Chen was offered a clerical job elsewhere
does not help Respondent. By leaving his position at 384
Grand Street, Chen would be removing himself from his po-
sition as secretary for the Union in its bargaining with Re-
spondent.
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For the above reasons, I find and conclude that Respond-
ent has not met its burden of proving that it would have not
increased Chen’s hours in the absence of his union activities.
Wright Line, supra.
CONCLUSIONS OF LAW
1. Chinese American Planning Council, Inc. is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Hong Ning Workers Union is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. By threatening its kitchen staff employees with unspec-
ified reprisals because of their support for the Union and ac-
tivities on behalf of the Union, Respondent violated Section
8(a)(1) of the Act.
4. By physically attacking and assaulting a kitchen staff
employee because of his support for the Union and activities
on behalf of the Union, Respondent violated Section 8(a)(1)
of the Act.
5. By failing and refusing, from December 15, 1991, upon
the expiration of his participation in the Senior Aide Pro-
gram, to increase the regular hours of paid employment of
Shao Paio Chen, to 35 hours per week, Respondent violated
Section 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
I shall recommend that Respondent make whole Shao Paio
Chen for any losses of earnings he may have suffered as a
result of Respondent’s having unlawfully failed and refused
to increase his working hours to 35 hours per week, from
December 15, 1991, when his participation in the Senior
Aide Program ceased, to be computed in the manner estab-
lished by the Board in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]