E. T. Marshall & Associates

National Labor Relations Board - Board Decisions

May 20, 1991

303 N.L.R.B. 8 (N.L.R.B. 1991)

8
303 NLRB No. 3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
E. T. Marshall & Associates, Inc. and 409
Edgecombe Avenue Tenants Association and
Fred Hudson. Case 2–CA–23725
May 20, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On September 18, 1990, Administrative Law Judge
Raymond P. Green issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Rhonda Gottlieb, Esq. and James G. Paulson Esq., for the
General Counsel.
Kevin J. McGill Esq. (Clifton, Budd & DeMaria), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York, New York, in February and April
1990. The charge was filed on July 11, 1989, and the com-
plaint was issued on August 18, 1989. In substance, the com-
plaint alleges that the housing company and its managing
agent, after the lawful discharge of Fred Hudson, refused to
reinstate him to his former job because he joined or sup-
ported Local 32B-32J, Service Employees International
Union, AFL–CIO and because he engaged in other concerted
activities.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondents admit, and I find, that they are each em-
ployers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
Respondents do not admit however that they are joint em-
ployers.
II. ALLEGED UNFAIR LABOR PRACTICES
409 Edgecombe Ave. is an apartment building in Harlem.
It has a Board of Managers and a tenants association. For
many years it has had a collective-bargaining relationship
with the Union and it executed the Apartment House Agree-
ments in 1982 and 1985 with respect to the service and
maintenance employees. The most recent contract expired in
1988 and no new contract was executed. Although it is not
entirely clear why the Union and the building did not make
a new contract, it appears that the building, because of its
financial condition, was unable to meet the Union’s demands
for a new contract and the Union did not press the matter.
In any event, it seems that as of the time of the events in
this case, the Union was recognized by the company as the
representative of the employees and that apart from arrear-
ages in benefit payments, other aspects of the expired con-
tract were maintained in force and effect.
Fred Hudson who is a tenant of the building, was em-
ployed since 1984 in the job classification of doorman/porter.
His job duties entailed the normal responsibilities of a door-
man and he also was responsible for cleaning the doors and
glass in the lobby. He joined the Union in 1986 and his posi-
tion was encompassed by the union contract.
The record indicates that prior to 1986 the building em-
ployed four doormen including Hudson who worked at dif-
ferent times during the week. However, in or about 1986 and
apparently after the retirement of two of the doormen, the
building engaged a guard service company to furnish guards
to cover the door at those times that the remaining two door-
men were not on duty. While it appears that the Union made
some protest about this contracting out, the fact is that as of
February and March 1989, the building utilized two of its
own employees to man the doors and a guard service to man
the doors at other times. The utilization of a guard service
was instituted because of the buildings location.
In January 1989 the building retained the services of E. T.
Marshall Associates to manage the building. The responsibil-
ities of that company (headed up by Edward T. Marshall),
was to take care of the day to day operations of the building
and entailed the supervision of the building’s employees. His
contract, similar to other management contracts in the indus-
try, stated that he was to assist the building in the hiring and
discharging of employees. Also, Marshall was delegated the
authority to act on behalf of the building in its dealings with
the Union, both in terms of negotiating a contract and in ad-
ministering the terms of any agreement. (In the latter respect,
Marshall in February 1989 appeared on behalf of the build-
ing in an arbitration case involving another employee). It is
noted that Marshall had previously been employed by the
Union as a representative and therefore had considerable ex-
perience in labor relations matters.
On February 16, 1989, Hudson was discharged because he
took down a sign in the lobby after he had been warned not
to do so. His actions were clearly insubordinate to the man-
aging agent’s representative, Beverly Stephens. Immediately
after Hudson’s discharge, E. T. Marshall arranged for the Se-
curity Service to replace Hudson with a guard. However,
when the guard showed up for work on his first two nights
of duty, Hudson told him to leave and he did.
9E. T. MARSHALL & ASSOCIATES
1 I received into evidence the original tape recordings of the Board meetings
held on February 28, March 14 and March 20. These recordings were made
during the meetings, generally by Mrs. Hudson, whose duties included operat-
ing a portable tape recorder and making the minutes from the tapes. In review-
ing this record I have relied on the original tapes only and only to the extent
that they were audible to me. In this respect, although the handling of these
tapes and duplicate copies of the tapes before and at the trial left a lot to be
desired, I did set aside one day of hearing so that all parties could listen to
the original tape recordings. The Respondents did not avail themselves of the
opportunity to listen to the original tape recordings.
As noted above, the General Counsel concedes that the
discharge of Hudson on February 16 was for cause of was
not in any way discriminatory under the Act.
On February 28, 1989, the building’s board of managers
conducted their regular monthly meeting. At this meeting,
Mrs. Hudson, who is the Board’s secretary raised the issue
of her husband’s discharge and this generated a considerable
amount of discussion.1 The tape recordings of this meeting,
were audible but involved a great deal of heated cross talk.
The following points emerged from my listening:
1. Everyone thought that Hudson misbehaved and should
be punished in some way.
2. McLean and some others expressed the opinion that
Hudson’s discharge should be reduced to a suspension.
3. Some felt that the discharge should be sustained.
4. Some expressed the opinion that as a matter of prin-
ciple, no tenants should be employed by the building; that
such employment led to conflicts of interest and prevented
management from treating them impartially.
5. Some, particularly Tillman, expressed the opinion that
irrespective of the merits, the Board should not second guess
the managing agent who was hired to take care of such mat-
ters.
6. Stephens, an employee of E. T. Marshall, told the Board
that Marshall was confident that if the Union sought to arbi-
trate Hudson’s discharge, the Union would lose.
7. Tillman, who in his regular job was a shop steward, ex-
pressed the opinion that Hudson did not have a leg to stand
on if his case went to arbitration.
8. At least one person expressed the opinion that there
were problems with all of the maintenance staff and that the
Board should let Hudson’s discharge stand as an example to
the others.
Midway through the meeting, Mrs. Hudson had to leave
and the quality of the tape recording became so poor that the
second tape of this meeting, (G.C. Exh. 3B) was barely un-
derstandable. Nevertheless, the tape reveals that at some
point a vote was taken and by a 5 to 2 margin, the Board
of Managers voted to revoke the discharge of Hudson and
to suspend him instead. (There was, however, no decision as
to how long the suspension was to last.)
The February 28 tape recording also shows that after the
vote and toward the end of the meeting, Stephens brought up
for discussion the building’s relationship with the Union. She
said that the Union was complaining about the fact that its
proposed new contract had not been signed. She also related
that Marshall, in a discussion with the Union, had indicated
that he wanted to do away with the position of
doorman/porter because that was a security position which
did not require union employees. Additionally, the tape re-
veals that Stephens asked the Board if they were interested
in getting rid of some of the union salaries, whereupon a few
of the Board members expressed the opinion that they would
be be better off if there was no union at the building at all.
In early March 1989 Marshall, at an arbitration hearing in-
volving another of the building’s employees, was told by a
union agent that he heard that the Board had overruled Mar-
shall’s decision to discharge Hudson and that the Union
therefore did not have to do anything to get Hudson his job
back.
On March 14, 1989, the Board of Managers had another
meeting which was recorded and memorialized as General
Counsel’s Exhibits 5A and 5B. At this meeting Marshall ob-
jected to the Board’s previous action in overruling his deci-
sion to discharge Hudson without consulting him. He also
objected to the fact that the Board’s action had been leaked
to the Union. Marshall pointed out to the Board that it
should set policy but that the managing agent should run the
day to day operations. Marshall stated that if the Board re-
verses his decisions this undermines his authority to manage
the building and that if the Board does not give him author-
ity to supervise the staff, he would have to review his posi-
tion as managing agent (i.e., a veiled threat to quit).
When one of the Board members asked about the situation
with the Union, Marshall responded that they had operated
for a year and a half without a contract and that the Board
should look at its options. He thereupon listed the options as
either refusing to recognize the Union which would probably
cause a strike, or asking the Union for a contract with special
consideration for the building’s financial situation. Marshall
told the Board that they should decide what they wanted to
do as soon as possible so that the attorney could be advised.
He also told the Board that in a pending grievance regarding
the building’s use of the security service, he felt that they
were on solid ground because the Union was not allowed to
represent guards under the National Labor Relations Act.
One of the Board members, returning to the subject of
Hudson, stated that they decided to revoke the discharge be-
cause it was felt that discharge was too harsh a penalty; that
Hudson was a neighbor and that the Board did not feel that
its decision undermined Marshall’s authority. Marshall re-
sponded that this was a business not a political club; that
when the Board reverses his decisions without first consult-
ing him and then leaks it to the Union, it becomes impos-
sible for him to deal with the Union on grievances in a busi-
ness like manner. He stated that in such circumstances the
Union feels that it does not have to do anything because it
has allies on the Board. Marshall stated that he cannot have
a referendum on every personnel action and that if the Board
members want to make these kinds of decisions they should
not hire a managing agent. He recommended that the Board
should honor the original decision to discharge Hudson, but
that he (Marshall) would try to find Hudson another job.
When one of the Board members asked Marshall is there
a possible compromise position, Marshall stated that he had
intended anyway to recommend that the night doorman posi-
tion be changed to a security guard job because that is when
the building was most vulnerable. He stated that the Board’s
action would undermine his position and make him a non-
entity in negotiations with the Union because the Union
could rightly feel that they could bypass him. Marshall said
that they needed law and order; that they cannot have em-
ployees saying that they will not follow orders and cannot
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 E. T. Marshall’s contract with the building provides that Marshall has the
responsibility of managing and supervising the maintenance employees and
that he is to assist in the hiring and firing of such employees.
3 I do not credit Hudson’s assertion that Marshall told him on March 20 that
he could work any hours he wished. Further, I think that the major reason that
Hudson in effect turned down the handyman job was because he wanted to
have the afternoons available to play golf.
be disciplined because they have allies on the Board. Mar-
shall reiterated that he would try to get Hudson another job.
Before leaving, Marshall told the Board that they had to
make a decision as to whether to recognize the Union. When
pressed for his opinion, he said that he would recommend
that they not recognize the Union because they cannot afford
to pay the benefits and the worst the Union could do was
to strike the building. Marshall stated that even though the
building superintendent (Felix Dookie), was a union member
who probably would strike, an argument could be made that
the superintendent was a supervisor and should be out of the
bargaining unit. Marshall also said that in the event of a
strike, they could operate with replacements for the other
maintenance staff.
After Marshall was asked to leave, the Board members
continued to discuss the situation with the tape recorder on.
Again there was a good deal of disagreement with the fol-
lowing points made.
1. There was speculation as to whether Marshall would
really quit if the board did not reverse its decision on Hud-
son.
2. Callender reiterated her position that tenants should not
be employed because of the conflict of interest.
3. There was discussion as to whether the Board’s decision
to revoke Hudson’s discharge was a violation of the contract
between the building and E. T. Marshall.
4. There was discussion as to whether Hudson’s actions
deserved suspension or discharge.
5. There was discussion as to whether the building could
afford union benefits and whether they should cease rec-
ognizing the Union. Some were in favor of getting rid of the
Union.
Toward the end of the March 14 meeting, the February 28
minutes (prepared by Mrs. Hudson), were adopted with
modification. At the conclusion of the meeting, it was de-
cided that there should be a special meeting on March 20,
1989. After much debate, nothing was decided at the March
14 meeting with respect to either Hudson, Marshall or the
Union.
Another meeting was held and taped on March 20, 1989.
At the beginning of the meeting Marshall said that he wanted
to know the Board’s position regarding his authority under
his contract. He told the Board that if they wanted to hire,
fire and supervise employees then that was OK with him but
that he wanted his contract amended so that they would take
responsibility for such actions.2 For the benefit of a Board
member who was not present at the March 14 meeting, Mar-
shall reiterated the history of the situation, indicating that
Hudson had been fired for insubordination; that the Board
had overruled his decision and that he, (Marshall), found out
about the Board’s action from the Union when he was at an
arbitration hearing. Marshall stated that the Board’s action
undermined his authority vis a vis the Union in arbitrations;
that the Board should not take contrary positions when he is
dealing with the Union, and that this was no way to run a
business.
Mrs. Hudson stated that a discharge decision should not
have been taken without prior clearance by the Board, and
there was discussion again about the relationship between the
managing agent and the Board with respect to such deci-
sions. In this respect, one Board member stated that it was
not proper for the Board to be involved in hiring and dis-
charge decisions which should be left to the managing agent.
On the other hand, another member stated that the managing
agent’s contract only said that he was to assist the Board in
such matters.
Hudson who attended the meeting, explained his position
and recounted, from his perspective, the events leading up to
his discharge. He admitted that he was wrong, but asserted
that the punishment did not fit the crime.
At one point, Marshall said that the Union was the proper
authority to represent Hudson and that Hudson should not go
to the Board to reverse the managing agent’s decision.
Marshall told the Board that under his license he was re-
sponsible for the actions of employees. He stated that if he
cannot supervise employees with the authority to discharge,
then he wanted the Board to hold him harmless. At the con-
clusion of the meeting, Marshall said that he would talk pri-
vately to Hudson about his situation, but that he cannot toler-
ate the Union telling him what he (Marshall), must do.
The evidence indicates that after the conclusion of the
meeting, (or at least the taped portion of it), Marshall took
Hudson aside and offered him a job as a handyman. (This
would be a higher paying job than a doorman/porter.) How-
ever, on March 25, 1989, Hudson told Ronald Jackson, the
on site manager that he would accept the job only if the
hours were from 9 p.m. to 7 a.m. Because such hours are
totally inappropriate for the job of a handyman, Hudson re-
mained unemployed.3
With respect to the March 20 meeting, I note that there
was no discussion about contract negotiations with the Union
and there was no mention of withdrawing union recognition.
I also note that no vote was taken regarding Hudson’s dis-
charge or suspension. Although not entirely clear, it may be
that the implicit consensus was that Marshall would offer
Hudson another job as the means of sidestepping the fun-
damental issue which revolved around the relationship of E.
T. Marshall to the building and their respective authority re-
garding the supervision of employees.
In September 1989, after negotiations failed to produce a
new contract, the Union went on strike. (As the General
Counsel has not alleged that the Respondents bargained in
bad faith or unlawfully withdrew recognition, I shall assume
that the Union was continuously recognized and that the bar-
gaining was in good faith.)
On September 25, 1989, Marshall wrote to Hudson as fol-
lows:
We have been instructed by the 409 Edgecombe
Housing Corp. to unconditionally offer your
Doorman/Porter position back. Please contact Mr. Ron-
ald Jackson at 491-5920, in order to arrange your return
to employment.
Please respond to this offer on or before Oct. 9,
1989.
11E. T. MARSHALL & ASSOCIATES
4 Whereas the complaint literally alleges that Hudson was not reinstated be-
cause of his union membership or support, this is not supported by any evi-
dence.
If you have any questions regarding this uncondi-
tional offer of reinstatement please contact the under-
signed.
On October 4 Hudson replied:
This letter is in response to your letter of September 26,
1989. I will accept your unconditional offer to reinstate
me to my job as Doorman/Porter; however, I’m with-
holding my services due to the current strike. I will re-
turn to work as soon as the strike is over.
On January 30, 1990, Hudson unconditionally offered to
return to work and he was rehired in early February 1990.
III. DISCUSSION
The evidence establishes and the General Counsel con-
cedes that the original discharge of Hudson was a lawful re-
sponse to what clearly was his insubordinate refusal to fol-
low the orders of his superiors. She argues however, that
both the building’s Board of Managers and the Managing
Agent violated the Act when, after the Board of Managers
displayed a degree of generosity in revoking Hudson’s dis-
charge, they and E. T. Marshall failed to reinstate Hudson
for antiunion reasons.4 As set forth in her brief, the General
Counsel asserts:
[B]eginning on February 28, 1989, the Association
voted to convert Hudson’s discharge to a suspension.
However, this action was never implemented because
the Association and E. T. Marshall engaged in discus-
sions with the intent to eliminate the Union as the em-
ployees bargaining representative and/or rid the facility
of union personnel.
Counsel for the General Counsel further contends
that as a result of these discussions, the Association re-
solved to uphold the February 16, 1989 discharge of
Hudson by E. T. marshall, as opposed to merely sus-
pending him. Thus, the decision to discharge Hudson
was motivated by antiunion considerations and is un-
lawful.
It is my opinion that after February 28, 1989, the Board
of Managers literally did not decide anything. While there
was a great deal of discussion at the board meetings on
March 14 and 20, the fact is that no votes were taken and
no real decision was ever reached by the board. Rather, the
tape recordings show a high degree of disagreement among
the board’s members as to what to do with Hudson. If any
action at all was undertaken it was an implicit decision to
shove the problem under the rug by having Marshall take
Hudson aside and offer him another job.
Moreover, I do not think that this record supports the
proposition that the Respondents’ actions, (or inaction), was
motivated by a desire to get rid of the Union or the union-
ized personnel.
E. T. Marshall was hired by the building to manage its day
to day operations and to supervise its maintenance employ-
ees. Included in Marshall’s duties was the responsibility to
act as the building’s agent in its contract and grievance deal-
ings with the Union. When Marshall was retained, the build-
ing had no contract with the Union and the last contract had
expired more than a year ago. Although there was some talk
at the board meetings to the effect that the building was not
recognizing the Union, this simply meant that the building
had no extant contract with the Union. In fact, the Union
continued to enjoy recognitional status both before and after
the events of this case.
The fundamental problem in this case was that the board,
having contracted with Marshall to manage the building, nev-
ertheless reversed his decision to discharge Hudson without
first consulting him. What’s worse, that decision was leaked
to the Union and Marshall discovered that the Union knew
of the board’s action when he was at an arbitration hearing
to represent the building in some other case. When the union
agent indicated that he did not have to do anything regarding
Hudson’s discharge because the board had already revoked
the decision, Marshall understandably became upset as he re-
alized that the Board’s action, if allowed to stand, would un-
dercut his ability not only to deal with the Union in contract
and grievance matters, but also would undermine his author-
ity to supervise the employees. The issue from Marshall’s
point of view was whether his authority to act as the manag-
ing agent was being undermined by the board which had
hired him to perform the functions of a managing agent.
Thus, Marshall rightfully perceived that his ability to super-
vise the employees and his ability to negotiate with the
Union would be seriously compromised if employees or
union agents could simply bypass him and go directly to the
board. To me this represents a legitimate business concern
and does not indicate any antiunion animus.
In my opinion the evidence indicates that the primary and
overwhelming concern of Marshall and the board was not the
Union as such. On the contrary, the focus of the discussions
was the nature and scope of the authority delegated by the
board to E. T. Marshall and the extent to which the board’s
decision of February 28 undermined Marshall’s authority.
The evidence also shows that the board’s members were
deeply divided over this issue and it appears that the issue
was never finally decided. While there was some talk by
some of the board members and by Marshall about whether
or not the building should withdraw recognition from the
Union, I do not feel that the Board intended to use Hudson’s
reinstatement as a means or lever to gain an unfair advantage
over the Union in any upcoming negotiations.
In conclusion I do not think that the evidence supports the
General Counsel’s theory. On the contrary, the evidence indi-
cates that Hudson was discharged for cause; that the subse-
quent discussion regarding his discharge focused not on the
Union but rather on the relationship and division of authority
between the building and the managing agent; and that when
no resolution could be reached, Marshall offered and Hudson
rejected a job as a handyman. As I conclude that the board
and Marshall did not take or fail to take any actions moti-
vated by antiunion considerations, I shall recommend that the
complaint be dismissed in its entirety.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. l02.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. l02.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The complaint is dismissed.