Fairlane Town Center

National Labor Relations Board - Board Decisions

Apr 30, 1996

321 N.L.R.B. 105 (N.L.R.B. 1996)

105
321 NLRB No. 22
FAIRLANE TOWN CENTER
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
The Respondent’s exceptions assert that the judge’s decision evi-
dences bias and prejudice. On our full consideration of the entire
record in this proceeding, we find no evidence that the judge pre-
judged the case, made prejudicial rulings, or demonstrated bias
against the Respondent in her analysis and discussion of the evi-
dence.
In adopting the judge’s attribution of knowledge of Nalepa’s union
sympathies to Security Chief Scott, we do not rely on her comments
pertaining to Scott’s investigatory competence.
2 We shall modify the Order by inserting the expunction language
that the judge has included in the notice but has inadvertently omit-
ted from the recommended Order.
1 At the proceeding, the General Counsel moved to amend the
complaint to add the following alleged violations of Sec. 8(a)(1):
10(a) On or about 6/8/94, the Er [Employer], by its agent
Dave Tucker, interrogated ees [employees] about their union ac-
tivities.
(b) On or about 6/8/94, the Er [Employer] by its agent Dave
Tucker, impliedly threatened ees [employees] with loss of jobs
because of their union activities.
I denied the motion, on the grounds that a few days before the
instant trial, the General Counsel advised counsel for the Respondent
that he had no present intention of amending the complaint. How-
ever, I pointed out that evidence bearing on the allegation could be
introduced as proof of antiunion animus.
2 Exhibits introduced into evidence by the General Counsel and the
Respondent will be cited as GCX and RX respectively, followed by
the relevant document number. Language quoted from the transcript
will be referred to as Tr. followed by the appropriate page number.
NSBD d/b/a Fairlane Town Center and Scott A.
Nalepa. Case 7–CA–36687
April 30, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND FOX
On January 23, 1996, Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board orders that the
Respondent, NSBD d/b/a Fairlane Town Center, Dear-
born, Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
Insert the following as paragraph 2(b) of the Order,
relettering the remaining paragraphs accordingly.
‘‘(b) Remove from its files all reference to the un-
lawful refusal to grant Scott Nalepa’s request to trans-
fer to part-time employment as a security guard, and
notify him that this action has been taken and will not
be used against him in the future.’’
Gary Saltzgiver, Esq., for the General Counsel.
James B. Perry and Michael R. Blum, Esqs. (Abbott, Nichol-
son Quilter, Esshaki & Youngblood), of Detroit, Michigan,
for the Respondent.
DECISION
I. STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. Upon a charge
filed in the above-captioned case on December 20, 1994, by
Scott A. Nalepa (Nalepa) against NSBD d/b/a Fairlane Town
Center (Fairlane or Respondent), a complaint issued on Feb-
ruary 16, 1995, alleging that Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act (the Act)
by denying Nalepa’s request to work part-time and terminat-
ing him because of his union activity.1 The Respondent filed
a timely answer denying the allegation.
This matter came to trial before me on June 1–2, 1995,
in Detroit, Michigan, with all parties having an opportunity
to examine and cross-examine witnesses, introduce documen-
tary evidence, and argue orally.2 Upon the evidence pre-
sented in this proceeding, my observation of the witnesses’
demeanor, and consideration of the parties’ posttrial briefs, I
reach the following
II. FINDINGS OF FACT
A. Jurisdiction
Respondent, a Michigan corporation, with an office and
place of business in Dearborn, Michigan, has been engaged
in the management and operation of a shopping center. Ac-
cordingly, the Respondent alleges and I find that Fairlane is
an employer within the meaning of Section 2(2), (5), and (6)
of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
B. Alleged Unfair Labor Practices
1. Introduction
The Fairlane Shopping Center, one of the largest enclosed
malls in Michigan, employed a security force of approxi-
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Unless otherwise noted, all events took place in 1994.
4 This incident formed the basis of the General Counsel’s motion
to amend the complaint at the outset of the hearing.
mately 24 to 28 officers, 7 of whom were parttime, and 1
who was on call, at the time of the events giving rise to this
proceeding. Charging Party Scott Nalepa (Nalepa) joined Re-
spondent’s security staff on a part-time basis, informing
some of Respondent’s staff that he also worked as a private
investigator. In 1991, he became a full-time security guard
while continuing to work as a private investigator. He re-
mained in this status until June 28, 1994, when he either was
discharged, as the General Counsel claims, or resigned, as
the Respondent alleges.3
2. Nalepa initiates a union organizing drive
In late February or early March, Nalepa contacted Robert
Wines, a business agent of the Police Officers Association of
Michigan (POAM), to request guidance in organizing a union
of security guards at Fairlane. Wines gave him authorization
cards which Nalepa distributed to his fellow employees dur-
ing his nonworking time. By April, Nalepa had gathered
enough signed cards to establish the requisite showing of in-
terest. Thereafter, on May 16, a petition for election was
filed with the Michigan Employment Relations Commission.
3. Evidence bearing on Respondent’s knowledge
Nalepa testified that he attempted to keep a low profile
while engaging in organizational activities. In fact, he was
not as cautious as he thought, for occasionally, he spoke
about his efforts on behalf of the Union in a quite unguarded
manner. For example, sometime in April, Nalepa told a su-
pervisor, Lieutenant Tom Favazza, that he was considering
organizing a union. Favazza replied noncommittally, that
Nalepa ‘‘should do what you have to do.’’ (Tr. 25.)
In May, Nalepa told another supervisor, Sergeant Pat
Vallely, that he had been dealing directly with the Union.
Vallely confirmed that Nalepa had been less than restrained
in discussing the Union, and had spoken openly about
POAM in the presence of other supervisors. I found Vallely
to be a trustworthy witness, whose candor was remarkable
considering that he was a supervisor and that Scott was re-
sponsible for his promotion to this post.
Nalepa again drew attention to his involvement in union
activities during a June farewell party for Respondent’s de-
parting marketing director, Linda MacIntosh. At the party’s
conclusion, with guests gathered around her, including Oper-
ations Manager Aj Jemison, Fenley, and Facilities Manager
Will Tamminga, MacIntosh opened gifts and read greeting
cards aloud. Among the cards was one containing the follow-
ing inscription: ‘‘this card is from Scott Nalepa and all the
security officers at Fairlane’’ signed, ‘‘The Fairlane Security
Officers Association.’’ (Tr. 27–28.)
Contrary to Nalepa’s assumption that he was discrete, his
efforts were not unnoticed. In fact, former Sergeant Vallely
asserted that the identity of the person who was most in-
volved in the union drive was a matter of ‘‘common knowl-
edge.’’ (Tr. 208.) Thus, denials by Security Director Harold
Scott, General Manager Michael Fenley, and Vice President
of Employee Relations Robert Cleary, that they knew Nalepa
was spearheading the union organizing campaign are surpris-
ing and, in fact, incredible. Surely, Scott’s professional train-
ing equipped him with the investigatory skills needed to pin-
point responsibility for undesirable conduct.
4. Evidence bearing on antiunion animus
Nalepa testified that on or about June 8 Assistant Security
Director Dave Tucker, while seated at a picnic table outside
the security guards’ office with another supervisor, Lieuten-
ant Andrayko, asked whether he was the one starting all the
‘‘union shlt’’; that if he was, Respondent would fire every-
one and hire contract security. (Tr. 31.) Nalepa stated that he
told Tucker if that happened the guards would file charges
and regain their jobs with full backpay.
Brian Headen, a former security guard, corroborated
Nalepa’s account of this exchange asserting that he had ap-
peared on the scene in time to hear Tucker question Nalepa
and warn him that if the Union prevailed the security guards
would lose their jobs and be replaced. Headen added that
Nalepa also said something about his role in bringing the
Union in to represent the guards. Respondent attacked
Headen’s credibility by establishing that he had been termi-
nated for misconduct and was a friend with the Charging
Party.
Tucker admitted that he occasionally sat at a picnic table
outside the facility with Lieutenant Andrayko. He further ac-
knowledged knowing that Nalepa was prounion, but did not
know the nature of the activities in which Nalepa was en-
gaged. Moreover, he denied making the hostile statement
both Nalepa and Headen attributed to him.
Nalepa’s and Headen’s testimony regarding this matter
leaves much to be desired. Most damaging is the omission
of any reference to Tucker’s alleged remark in the affidavit
which Nalepa gave to a Board agent in early January 1995.
Apparently, Nalepa did not bring this incident to the General
Counsel’s attention until shortly before the instant hearing. In
attempting to explain this oversight, Nalepa stated that he did
mention this exchange to the Board agent who waved it off
as if he thought the incident was unimportant.
I find it highly unlikely that a Board agent would fail to
recognize the significance of such an exchange. It is equally
unlikely that Nalepa would sign an affidavit which concluded
with the statement that the Respondent had made no other
remarks pertaining to the Union if the Tucker incident oc-
curred as he alleged. Headen did little to enhance Nalepa’s
credibility—he conceded that he and the Charging Party had
‘‘a pretty good rapport,’’ and that Respondent had compelled
him to resign after discovering he had engaged in mis-
conduct. In light of these circumstances, I conclude that
Nalepa concocted this story, and related it to the General
Counsel’s benefit shortly before the instant trial in order to
enhance his case.4
5. Nalepa’s termination
a. The General Counsel’s case
On June 20, Nalepa informed the security director, Harold
Scott, that he had been offered a desirable full-time position
with the State of Michigan, and asked to transfer to a part-
time assignment with Fairlane. According to Nalepa, Scott
told him he saw no problem with this. However, he asked
107FAIRLANE TOWN CENTER
5 Respondent contends that Cleary offered Nalepa a full-time posi-
tion during a telephone conversation in late September, while Nalepa
maintains that the offer came during a meeting with Cleary on Octo-
ber 7, the day of the election.
6 Enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).
7 Id. at 1089; Teamsters Local 357 v. NLRB, 365 U.S. 667, 675
(1961) (‘‘[i]t is the ‘true purpose’ or ‘real motive’ in hiring or firing
that constitutes the test’’).
8 Wright Line, supra at 1089; see F & E Erection Co., 292 NLRB
587, 592 (1989) (finding that the General Counsel proved its prima
facie case including existence of protected activity).
9 See Goldtex, Inc. v. NLRB, 14 F.3d 1008, 1011 (4th Cir. 1994)
(quoting Mack’s Supermarkets, Inc., 288 NLRB 1082, 1101 (1988))
(‘‘company knowledge of union activities is the ‘threshold ques-
tion’. . . because it is a ‘fundamental prerequisite’ in establishing a
discriminatory motivation’’); Active Transportation, 296 NLRB 431,
432 (1989) (discussing key elements of prima facie case), enfd. 924
F.2d 1057 (6th Cir. 1991).
10 See NLRB v. DBM, Inc., 987 F.2d 540, 543 (8th Cir. 1991) (en-
forcing Board order because proof of union animus was sufficiently
established).
Nalepa to put his request into writing because he would have
to discuss the matter with his superiors, Fenley and Jemison.
Later that day, Nalepa submitted a memo seeking part-
time employment as of July 4. When Nalepa repeated his re-
quest several days later, Scott purportedly assured him there
would be no problem and that he probably would work Fri-
days through Sundays.
Nalepa further stated that when the next assignment sched-
ule dated June 26 was posted he noted that his assignments
ceased on July 3. On learning that Security Director Scott
was responsible for the scheduling, he made an appointment
to discuss the matter with him on June 28.
On the appointed day, Nalepa met with both Scott and
Fenley, with the latter doing all the talking. Fenley advised
Nalepa that he had considered the situation with other mem-
bers of management who were concerned that, if contract ne-
gotiations with the Union were required, they might impact
part-time work. Accordingly, they concluded that it would be
in the Respondent’s best interests to refrain from changing
any employees’ status, other than filling the vacancy which
would be created by his departure.
Fenley concluded the meeting by telling Nalepa that his
acceptance of a new full-time position would be regarded as
a resignation which would take effect immediately. He then
offered him a paycheck which included accrued vacation and
severance pay. However, Nalepa insisted he was not resign-
ing and refused to accept the check.
Several months later, Cleary contacted Nalepa to arrange
a meeting. When they met on October 7, Cleary tried to as-
sure Nalepa that his union activity had nothing to do with
the denial of part-time employment and offered him a full-
time position. Nalepa rejected the offer, but testified that
Cleary also promised that he would fight for his return to a
part-time job. Cleary denied making such a pledge.5
b. Respondent’s version
Scott denied assuring Nalepa that he had no problem with
his transferring to part-time work. Instead, he alleged telling
Nalepa that the transfer might pose a scheduling problem and
promised to give him an answer subsequently. Scott further
explained at trial that he was opposed to retaining an em-
ployee on a part-time basis who was leaving for a full-time
position elsewhere, because the individual’s primary commit-
ment would be to the full-time post. This, he claimed, would
lead to scheduling problems and a greater incidence of over-
time which drew higher hourly wage rates.
Scott related that after receiving Nalepa’s written request,
he told General Manager Fenley that he was opposed to
granting part-time status to Nalepa. Fenley agreed with him,
but suggested that in light of the Union’s May 16 election
petition, they should seek legal advice from Cleary, a lawyer
and Respondent’s vice president for employee relations. A
few days later, the three men spoke with by telephone.
Cleary endorsed Scott’s view that part-time employees with
full-time positions elsewhere harbored divided loyalties, but
left the final decision in the security chief’s hands.
In describing his final interview with the Charging Party,
Fenley stated that he first confirmed that Nalepa had accept-
ed a full-time position with the State’s Department of Public
Health, and then asked him if he could work full time at
Fairlane. When Nalepa replied that he could not manage two
full-time jobs, Fenley told him that because Respondent was
seeking commitment from its employees his request for part-
time employment could not be honored and his acceptance
of employment elsewhere would be regarded as a resigna-
tion.
At no point in his account, did Fenley state that he had
referred to the Union during the meeting with Nalepa. Scott,
on the other hand, confirmed Nalepa’s testimony that Fenley
did allude to the effect that union negotiations might have on
scheduling part-time employees.
III. DISCUSSION AND CONCLUDING FINDINGS
Principles Governing the General
Counsel’s Burden of Proof
In Wright Line, 251 NLRB 1083, 1089 (1980),6 the Board
announced a causation test for alleged 8(a)(3) violations.
Under this test, the General Counsel bears the initial burden
of making a prima facie showing sufficient to support the in-
ference that protected activity was a ‘‘motivating factor’’ in
the employer’s decision.7 To establish a prima facie case, the
Government must adduce proof of the following elements:
that the employee engaged in protected activity,8 that the em-
ployer knew of this activity,9 and acted adversely to the em-
ployee out of antiunion animus.10 In other words, proof of
these elements must support the inference that the employ-
ee’s protected conduct was a motivating factor in the em-
ployer’s decision to adversely alter his or her terms of em-
ployment. On applying these standards to the evidence in this
case, I conclude that the General Counsel has met his bur-
den.
Nalepa clearly was engaged in union activity; indeed, he
was the sole activist on Respondent’s staff. He alone was re-
sponsible for initially contacting the Union and taking the
steps which led ultimately to the conduct of an election.
Based on Sergeant Vallely’s convincing testimony that
Nalepa’s union activism was a matter of common knowl-
edge, I have not the slightest doubt that Respondent’s offi-
cials knew that Nalepa was responsible for the union orga-
nizing campaign.
108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Respondent’s vice president, Cleary, also denied knowing of
Nalepa’s dominant role in the union campaign. Because he did not
have the same frequent contact with the members of the security
force as did Scott and Fenley, I cannot conclude with conviction that
he, too, knew of Nalepa’s union activity. However, I find it curious
that an executive with responsibility for employee relations in a sub-
stantial enterprise would fail to determine the identity of the key
union organizer. It also is interesting to note that Nalepa’s assertion
that Cleary greeted him on October 7 with a wry comment about
the union election was not contradicted.
12 I also found that Nalepa fabricated a portion of his testimony.
However, in finding that he was subject to discrimination, I did not
rely on the parts of his testimony which were in dispute.
13 None of Respondent’s witnesses ever explained the precise na-
ture of the scheduling difficulties which allegedly were caused by
part-time guards.
Moreover, Nalepa gave himself away as a union proponent
on several occasions in the presence of supervisors. Tucker
acknowledged knowing only that Nalepa was ‘‘pro-union.’’
Given that admission, it is impossible to believe that he did
not know what actions Nalepa took to warrant the prounion
label.
Because knowledge of Nalepa’s union leanings was wide-
spread, I find Scott’s and Fenley’s claims that they were un-
aware of his activities on POAM’s behalf incredible.11 Scott,
the chief of the security force, was professionally trained to
uncover the identity of persons responsible for various mis-
deeds at the shopping center. If he was oblivious to the pres-
ence of a union proponent on his staff, one wonders how in-
cisive he was in performing his other investigatory duties.
The stout denials by these officials that they knew of
Nalepa’s union activity, which are contrary to the credited
evidence, raises serious doubts as to their credibility on other
matters as well.12
Respondent’s decision to invoke a new, unwritten, and un-
announced policy and apply it for the first time to the sole
union protagonist soon after an election petition was filed
cannot be attributed to sheer coincidence. The summary man-
ner in which Nalepa was removed from the scene also gives
rise to doubts as to the legitimacy of his discharge. Nalepa
had asked to be transferred to part-time status as of July 4.
Yet, without explanation, Respondent abruptly ended his em-
ployment on June 28, when Fenley handed him a paycheck
with his accrued vacation and severance pay already factored
into it. Respondent gave no reason for this haste in removing
Nalepa from the scene, suggesting that the real reason was
one which management preferred to conceal.
Based on the foregoing factors, I found that the General
Counsel had established a prima facie case that Nalepa was
terminated for unlawful reasons. Accordingly, under Wright
Line, supra, the burden shifted to Respondent to prove that
its reasons for rejecting Nalepa’s request for part-time em-
ployment were legitimate; that it would have acted in the
identical manner even in the absence of the Charging Party’s
union activity. To this end, Respondent’s claimed that they
insisted on Nalepa’s resignation on finding that scheduling
difficulties arose when employees converted to part-time em-
ployment in order to accept full-time positions elsewhere.13
For a number of reasons discussed below, I find Respond-
ent’s alleged business justification unconvincing.
Respondent’s chief of security, Scott, took the lead in
making the case for his employer. He claimed that he never
had approved of the practice of permitting an employee to
convert to part-time status on accepting a full-time position
with another employer, because this meant that the employ-
ee’s primary loyalties would no longer be with Fairlane. He
further claimed that such a shift in loyalties led to scheduling
difficulties, and excessive overtime which was costly to the
Employer. However, at the time that Scott first was hired as
security chief in November 1993, he was well aware that Re-
spondent maintained a retinue of part-time employees for
years. Yet, he chose to do nothing about this situation in
word or deed, either prior to or following Nalepa’s termi-
nation. If part-time workers with full-time positions else-
where posed a problem for the efficiency of Respondent’s
operations, as it claimed, then one wonders why Scott took
no other steps to discourage the continued employment of
part-time workers who presumably worked full time for other
employers. The Company did not announce a change of pol-
icy in this area either orally or in writing. Except for Nalepa,
none of the other part-time employees already on the staff
was dismissed or given notice that Respondent had any prob-
lem with their part-time status.
Although Scott testified without dispute that he rejected
three apparently well-qualified candidates for part-time posi-
tions because they held full-time jobs elsewhere, he retained
all previously hired part-timers who were employed full time
by other employers. Moreover, since Nalepa’s discharge,
Scott has hired six new part-time guards, some as recently
as 2 weeks before the instant proceeding. Scott asserted that
none of the newly hired part-time employees held other full-
time positions. However, there is no guarantee that persons
working on a part-time basis who hold no other job, will not
harbor other loyalties or cause scheduling difficulties. Indeed,
Sergeant Vallely testified that Respondent ‘‘always’’ had
scheduling problems, in part because of the nature of police
work which invariably involves fortuitous circumstances such
as court appearances. I understood the Sergeant to mean that
both full-time and part-time employees were responsible for
scheduling problems and that such problems were not re-
solved following Nalepa’s departure. Additionally, Scott ac-
knowledged that Respondent maintains a rotation list of part-
time and full-time employees; if an officer is occasionally
unavailable, the next person on the list is called. Respondent
made no attempt to claim that the rotation lists were no
longer in use.
Further, Vallely pointed out that Scott made great efforts
to trim the amount of overtime hours worked. However, only
full-time security guards were entitled to overtime pay; part-
time employees were paid straight-time wages. Consequently,
to reduce overtime, Respondent’s economic advantage to
maintain a cadre of part-time guards. Therefore, if Scott was
intent on reducing overtime hours, he would have to rely on
part-time employees. It is ironic that part-time guards were
most needed on evening and weekend shifts, the very times
that Nalepa was available.
The situation of one of Respondent’s security guards, Scott
Kulinski, reflects Respondent’s lack of concern with part-
time employees who held full-time positions elsewhere.
Kulinski was recruited for a position with Respondent in De-
cember 1993, and worked 14 to 30 hours a week. At the
same time, he maintained a stressful, full-time sales position
at a uniform supply store where, typically, he put in a 43-
hour week. Contrary to Respondent’s alleged notion of effi-
cient employment practices, Kulinski remained on Fairlane’s
109FAIRLANE TOWN CENTER
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
15 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.’’
payroll as a part-time guard at the time of the instant pro-
ceeding.
Another security guard, Todd Seipenko, transferred from
full to part-time status in September 1993 to accept a posi-
tion with a community police force. Finding it too demand-
ing to continue working both jobs, Seipenko voluntarily quit
his job with Respondent in August 1994. Respondent’s man-
agers knew about the demands on Seipenko’s time. They
also were aware that he had rejected some of the part-time
work opportunities offered to him. He hardly fit Scott’s need
for employees who were ‘‘flexible and were committed to
Fairlane Town Center.’’ (Tr. 256.) Nevertheless, Respondent
made no effort to alter his employment.
Nalepa had never posed an attendance problem for Re-
spondent. He was experienced, lived near the Shopping Cen-
ter, and was available on the very occasions when Scott said
that Respondent most needed part-timers. In light of all of
the above circumstances, I conclude that Respondent simply
took advantage of the opportunity that Nalepa presented. Not
until management was presented with this opportunity to rid
itself of the sole union organizer on the security guard staff
did Respondent create the defense presented in this case and
suddenly raise its alleged concerns about loyalty and sched-
uling conflicts. Based on all the foregoing considerations, I
conclude that Respondent has failed to establish that it would
have terminated Nalepa were it not for his critical role in the
Union’s organizing campaign. Had he not engaged in that ac-
tivity, it is more likely than not that he still would be work-
ing as a part-time security guard for Fairlane.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7), and the
Union is a labor organization within the meaning of Section
2(5) of the Act.
2. By refusing to honor Scott Nalepa’s request to convert
him from full-time to part-time employment, and treating his
refusal to continue working full time as a voluntary quit, Re-
spondent violated Section 8(a)(1) and (3) of the Act.
3. The above unfair labor practices affect commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(1) and
(3) of the Act by refusing to retain Scott Nalepa as a part-
time security guard, I shall recommend that the Company
cease and desist from engaging in discriminatory practices
and take appropriate action designed to effectuate the pur-
poses of the Act.
Specifically, I shall recommend that Respondent be re-
quired to offer immediate employment to Nalepa as a part-
time security guard and make him whole for any earnings
lost by reason of the discriminatory action taken against him.
Backpay due under the terms of this Order shall be com-
puted on a quarterly basis as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), and shall be reduced by net in-
terim earnings with interest computed as detailed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, NSBD d/b/a Fairlane Town Center, Dear-
born, Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to grant employees’ requests for part-time
employment, and discharging them because they have en-
gaged in union activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Scott Nalepa full and immediate reinstatement to
the part-time position for which he applied and would have
been employed but for Respondent’s unlawful discrimination
against him, without prejudice to any seniority or other rights
and privileges he would have acquired, and make him whole,
with interest, where appropriate, for any loss of earnings
and/or benefits suffered as a result of that discrimination, in
accordance with the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, 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.
(c) Post at its office and at all worksites copies of the at-
tached notice marked ‘‘Appendix.’’15 Copies of the notice,
on forms provided by the Regional Director for Region 7,
after being signed by Respondent’s authorized representative,
shall be posted by the Respondent 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
Respondent to ensure that the notice is not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing within 21 days
from the date of this Order what steps Respondent has taken
to comply.
110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
our employees for supporting or engaging in activities on be-
half of the Police Officers Association of Michigan or any
other labor organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Scott Nalepa immediate and full employ-
ment to a part-time position for which he is qualified, or its
substantial equivalent, in which he would have been em-
ployed were it not for Respondent unlawfully discriminating
against him, without prejudice to any seniority or other rights
and privileges he would have acquired, and WE WILL make
him whole, with interest as appropriate, for any loss of earn-
ings and benefits he may have suffered as a result of our dis-
criminatory treatment.
WE WILL remove from our files, delete, and remove all
reference to our unlawful refusal to grant Scott Nalepa’s re-
quest to transfer to part-time employment as a security guard,
and shall notify him that this action has been taken and will
not be used against him in the future.
NSBD D/B/A FAIRLANE TOWN CENTER