Chinese American Planning Council

National Labor Relations Board - Board Decisions

Apr 30, 1992

307 N.L.R.B. 410 (N.L.R.B. 1992)

410
307 NLRB No. 61
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel and the Charging Party filed a motion to
reopen the record to admit into evidence the transcript of the hearing
in Case 2–RC–20520. The Respondent’s response consents to the
motion and notes that the representation proceeding includes the
September 23, 1988 supplemental hearing. The motion is granted.
The Respondent has requested oral argument. The request is de-
nied as the record, the exceptions, and the briefs adequately present
the issues and the positions of the parties.
2 Members Devaney and Oviatt agree with the judge that the Re-
spondent’s failure to contest the Board’s jurisdiction on the basis of
Res-Care, Inc., 280 NLRB 670 (1986), in two previous cases pre-
cludes it from raising that issue here. The standard set out in Res-
Care is an exercise of the Board’s discretionary authority, and a
question concerning it must be raised in a timely manner. See Train-
ing School at Vineland, 301 NLRB 217 (1991). Accordingly, juris-
diction is properly asserted here.
Chairman Stephens, relying on his concurring and dissenting opin-
ion in Res-Care, continues to regard it to be a question of statutory,
not discretionary, jurisdiction whether the control of a Sec. 2(2) ex-
empt entity over an employer’s labor relations is sufficient to make
the Act inapplicable to the employment relationship. Because matters
going to the Board’s statutory jurisdiction under the Act may be
raised at any time, Chairman Stephens does not agree that the Re-
spondent was precluded from litigating the jurisdictional issue here.
Chairman Stephens adopts instead the judge’s alternative finding that
the Respondent offered no evidence to warrant a finding that the
Board lacks jurisdiction over the Respondent.
3 The judge inadvertently referred to May 4 in the penultimate
pararagraph of sec. III,B of his decision. The correct date is May
24.
4 Member Oviatt would leave to the compliance stage of this pro-
ceeding the effect, if any, of the New York City Board of Estimate’s
1989 decision to include limits on training cycles in the contracts
with the Respondent and other Supportive Work Program contrac-
tors.
Chinese American Planning Council, Inc. and CPC
Independent Workers Union. Cases 2–CA–
23016, 2–CA–23277, and 2–CA–23597
April 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 30, 1991, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed a brief in support of the judge’s
decision. The General Counsel and the Charging Party
filed briefs in response to the Respondent’s exceptions,
and the Respondent filed a reply brief.1
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,2 findings,3 and con-
clusions and to adopt the recommended Order.4
Citing Postal Service Marina Center, 271 NLRB
397 (1984), the Respondent contends that Section
10(b) bars the complaint insofar as it alleges that the
Respondent discriminatorily discharged certain of its
employees. Specifically, the Respondent claims that
the 10(b) period commenced on January 4, 1988, when
the Respondent notified 17 trainees that they would
graduate on December 30, 1988. Because the Union
did not file the charge until January 18, 1989, the Re-
spondent argues that the Board must find that Section
10(b) bars any claim of discriminatory discharge as to
these 17 employees. We disagree.
In Postal Service Marina Center, supra, the Board
held that henceforth it would focus on the date of un-
equivocal notice of an allegedly unlawful act, rather
than on the date the act’s consequences become effec-
tive, in deciding whether the period for filing a charge
under Section 10(b) has expired. ‘‘Where a final ad-
verse employment decision is made and communicated
to an employee,’’ the Board stated, he ‘‘must [file an
unfair labor practice charge] within 6 months of that
time rather than wait until the consequences of the act
become most painful.’’ 271 NLRB at 400. However,
as the Board emphasized in a subsequent decision,
‘‘Postal Service Marina Center . . . was limited to un-
conditional and unequivocal decisions or actions.’’
Stage Employees IATSE Local 659 (Paramount Pic-
tures), 276 NLRB 881, 882 (1985). Further, the burden
of showing such clear and unequivocal notice is on the
party raising the affirmative defense of Section 10(b).
Service Employees Local 3036 (Linden Maintenance),
280 NLRB 995, 996 (1986). In the instant case, the
Respondent has failed to satisfy its burden.
Assuming the Respondent represented on January 4,
1988, that the 17 employees’ tenure would end on De-
cember 30, 1988, the Respondent’s subsequent conduct
undercut the representations. For example, in a May
24, 1988 memorandum to employees, the Respondent
conveyed a graduation schedule with a series of grad-
uation dates beyond December 30, 1988. Further, the
memorandum characterized the graduation schedule as
a proposal to be presented to ‘‘upper management
around the end of June’’ and stated that it was subject
to further discussion with the employees.
We find that, at best, the Respondent’s messages
about a December 30, 1988 graduation were equivocal.
Therefore, we reject the Respondent’s contention that
Section 10(b) bars the discriminatory discharge com-
plaint allegation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Chinese American Plan-
ning Council, Inc., New York, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Burt Pearlstone, Esq., for the General Counsel.
411CHINESE AMERICAN PLANNING COUNCIL
1 The Respondent’s motion to reopen the record, General Coun-
sel’s statement of opposition thereto and my ruling thereon are
added to the record as ALJ Exh. 1.
2 See fn. 1 of the Decision and Direction of Election issued in
Case 2–RC–20520
Lawrence A. Marcus, Esq. and Nicholas J. Pappas, Esq.
(Skadden, Arps, Meagher & Flom), of New York City,
New York, for the Respondent.
Amy Gladstein, Esq. (Gladstein, Reif & Meginniss), of New
York City, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint in these cases, which were consolidated for hearing, al-
leges that Chinese American Planning Council, Inc. (the Re-
spondent) has engaged in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act). The Respondent’s amended
answer denies the commission of any unfair labor practices
and contends also that the Board should not exercise its juris-
diction in these cases.
The hearing was held in New York City on various days
from mid-November 1990 to its close on April 18, 1991.
Upon the entire record,1 including my observation of the de-
meanor of the witnesses and after due consideration of the
briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
At the hearing the Respondent raised the contention that
the Board should decline to exercise its jurisdiction on the
ground that the city of New York effectively controls the
labor relations policies of the employees involved.
General Counsel and the Charging Party, CPC Independent
Workers Union (the Union) contended that the Respondent is
now precluded from adducing any evidence in support of that
assertion as Respondent had failed to raise it in two previous
Board cases. They moved for an order precluding the Re-
spondent from adducing evidence to support its assertion. I
declined to issue an order from the bench. However, upon
consideration of the cases discussed below and in view of the
earlier proceedings before the Board involving the Respond-
ent, I find that Respondent’s assertion lacks merit. As much
as of evidence relating to that assertion, however, bears on
other issues, I shall not strike that evidence.
In 1987, the Respondent, then known as Chinatown Plan-
ning Council, Inc.2 discharged an individual whom the Gen-
eral Counsel alleged in the complaint in Case 2–CA–22244
to be an employee discharged in violation of Section 8(a)(1)
of the Act. The Respondent defended that case on the ground
that that individual was a student, and not an employee with-
in the meaning of the Act. The Respondent did not contend
then that the Board should decline to exercise jurisdiction
based on the Respondent’s relationship to the city of New
York. The Board found that the Respondent had violated
Section 8(a)(1) of the Act as alleged. See Chinatown Plan-
ning Council, 290 NLRB 1091 (1988). Also in the represen-
tation case referred to above at footnote 2, the Board asserted
jurisdiction over the Respondent, again rejecting its conten-
tion that the individuals, whom the Union sought to rep-
resent, were students and not employees under the Act. Nor
did the Respondent assert in that case that the Board should
decline to exercise its jurisdiction by reason of the Respond-
ent’s contractual relationship with the City of New York.
Recent decisions by the Board have reaffirmed that an em-
ployer who fails to raise a question as to the Board’s discre-
tion in exercising its jurisdiction, is thereafter precluded from
doing so. See Training School at Vineland, 301 NLRB 217
(1991); Ryder Student Transportation, 297 NLRB 371
(1989); Princeton Health Care Center, 294 NLRB 640
(1989).
It is therefore appropriate for the Board to assert jurisdic-
tion in this case.
In the event that the Board may wish to consider the juris-
dictional issue raised by the Respondent, I make the fol-
lowing alternative finding. Parenthetically, I note that counsel
for the city of New York appeared at the hearing in connec-
tion with matters relating to subpoenas duces tecum served
on city officials. In the related discussion, the city made it
clear that it did not consider the employees in any way to
be city employees. The facts pertinent to the alternative find-
ing are now set out.
Respondent was incorporated in 1965 as Chinatown Plan-
ning Council, Inc., a nonprofit corporation; it was established
to help Asian immigrants adjust to life in the United States.
In 1988, it had a $10 million budget in operating 46 pro-
grams to serve approximately 6000 clients. Among the 46
programs it operated, 6 were focused on training young Chi-
nese immigrants for work. Its other programs included serv-
ice functions, such as a job placement center, two senior citi-
zens centers, and a house attendants program. Of the 46 pro-
grams it operates, only one is involved in this case. That pro-
gram was termed, by the Respondent, its In Rem apartment
program, and is known by the acronym, the IRAR program.
The IRAR program was funded, as discussed below, in con-
junction with a program administered by the city of New
York, with moneys granted by the Department of Housing
and Urban Development of the Federal Government.
New York City had taken title to a number of abandoned
apartment buildings via In Rem tax foreclosure proceedings.
It devised a supportive work program (SWP) as a means of
rehabilitating those buildings and also as a means of pro-
viding on-the-job training for groups of unemployed, un-
skilled individuals. The New York City Department of Hous-
ing Preservation and Development (HPD) was given the re-
sponsibility for implementing SWP.
HPD requested community organizations to submit their
proposals if they wanted to participate in the SWP. The Re-
spondent submitted its first proposal in 1986. Its proposal
was quite voluminous. It stated that the Respondent planned
on having 40 participants who would be assigned to work on
the abandoned buildings and also to be given classroom
training in English. On any given day, 30 would be working
and the other 10 were to receive training. HPD would reim-
burse the Respondent for the work done by the 30 partici-
pants who were working on city buildings. The HPD pro-
posal had set out detailed schedules for payment, e.g.,—in-
stallation of a shower head was to be paid at 7 cents of a
$90 person-day. The initial proposal submitted by the Re-
spondent sought a funding based on its having 30 workers
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a day for 246 days a year—a total of 7380 person-days—
at $90. Respondent would use that money to pay the 40 par-
ticipants, its supervisory staff, and its administrative staff,
and other costs related to operating its IRAR program.
HPD approved the Respondent’s proposal and processed it
through administrative channels, as discussed in further detail
elsewhere herein, before issuing a contract to the Respondent
for the balance of 1986 and for the calendar year 1987. The
contract set forth general provisions, including the posting of
fidelity bonds by the Respondent and the payment schedules
to be followed by HPD as work was done. HPD reserved the
right to change the number of workers supplied by the Re-
spondent’s IRAR program, depending on the amount of work
HPD wanted done at the worksites it specified.
The contract further obligated the Respondent to conduct
life skills classes ‘‘to teach trainees how to dress, behave and
respond in job interviews, to budget their salaries and to ob-
tain the general skills necessary to function in society.’’ Each
crew would work a 7-hour day, Monday through Friday. The
Respondent was obligated to provide the basic tools and
equipment used by the employees. The Respondent was fur-
ther required to furnish HPD with monthly reports as to the
work performed and also training reports which were to con-
tain information regarding the placement of employees into
permanent employment.
Exhibit C of the contract set out productivity standards
which were used in evaluating the validity of Respondent’s
vouchers seeking payment for work done. For example, the
sheetrocking of a complete wall in a room was to be reim-
bursed at the rate of 1.25 person days.
In determining whether assertion of jurisdiction over an
employer providing services for or to an exempt entity is ap-
propriate, the Board focuses on the extent of control retained
by the employer over essential terms and conditions of em-
ployment as well as the degree of control exercised by the
exempt employer over the employer’s labor relations. See
H. W. Harmon & Sons, 297 NLRB 562 (1990). In essence,
the Board will assert jurisdiction if the employer has the final
say on the entire package of employee compensation, i.e.
—wages, fringe benefits. See Res-Care, Inc., 280 NLRB
670, 674 (1986).
The Respondent has the burden of showing that it is not
free to set the wages, fringe benefits, and other terms and
conditions of employment for its employees in the IRAR
program. See Firefighters, 292 NLRB 1025 (1989). The Re-
spondent has offered no evidence to warrant a finding that
HPD controlled the wage levels and fringe benefits of these
employees. I thus find that the Respondent is an employer
as defined in Section 2(2), (6), and (7) of the Act and that
it would be appropriate for the Board to assert jurisdiction
as to the Respondent’s IRAR program. See Koba Associates,
289 NLRB 390 (1988), and cases discussed therein.
II. LABOR ORGANIZATION
As the Board has already determined in Case 2–RC–
20520, the Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Contentions
The complaint alleges that the Respondent, in order to dis-
courage its employees from supporting the Union, denied
wage increases promised to its IRAR employees, threatened
to close its IRAR operations and engaged in other independ-
ently coercive conduct, discharged 31 employees, temporarily
closed down its IRAR program, and reopened it with new
employees whom it unilaterally scheduled to work only for
6 months and at lower wage rates. The complaint further al-
leges that the Respondent failed to bargain collectively with
the Union. Based on the foregoing allegations, General
Counsel contends that Respondent has violated Section
8(a)(1), (3), and (5) of the Act.
The Respondent denies that it unlawfully coerced any of
the IRAR participants and it asserts that its actions, at all
times, were motivated solely by its efforts to provide young
immigrants from China with training in basic building and
construction industry skills and in English-language usage so
that they may find work with construction companies. Re-
specting the refusal-to-bargain allegation, the Respondent
contends, as it had contended in Case 2–RC–20520, that the
IRAR participants are not employees as defined in the Act.
It also asserts that the changes it made in its IRAR program
were not matters over which it was obliged to bargain collec-
tively. Concerning the alleged unlawful discharges of the
IRAR employees and the alleged unlawful failure to recall
them in 1989 the Respondent asserts that they were grad-
uated when their training program ended and that they were
not eligible for recall as new trainees in 1989.
B. Background
On June 20, 1986, the Department of Housing Preserva-
tion and Development (HPD) of the city of New York pub-
lished a 22-page request for proposals (RFP) to solicit re-
sponses from nonprofit organizations to take part in the sup-
portive work program (SWP) described in the RFP. As dis-
cussed above, SWP was designed as a way for the city to
have abandoned apartment buildings rehabilitated by dis-
advantaged youths.
In response to HPD’S request of June 20, 1986, the Re-
spondent submitted a detailed proposal. That proposal con-
tained no indication that employees whom it would hire to
participate in the program would be graduated at the end of
any prescribed time but it simply noted that the participants
would be trained throughout the year. That proposal was ap-
proved, the Respondent entered into a contract with HPD,
and the Respondent began operating its IRAR program. The
contract was extended from August 31, 1987, to the end of
that year. In early 1987, as discussed next, events arose
which led up to a prior Board case involving the Respondent.
On February 18, 1987, the Respondent had discharged
Young Shi Lee from its IRAR program. On May 13, 1987,
he filed the unfair labor practice charge in Case 2–CA–
22244, alleging that he had been discharged in violation of
Section 8(a)(1) of the Act because he had, with coworkers,
protested working conditions. On June 26, 1987, a complaint
was issued in that case. The answer thereto filed by the Re-
413CHINESE AMERICAN PLANNING COUNCIL
3 The Respondent contends that Sec. 10(b) of the Act bars issuance
of a complaint to allege the discriminatory discharge 12 months later
of employees who were graduated pursuant to the handbook provi-
sions and where the related unfair labor practice charge was filed in
January 1989. That contention is rejected. It begs the issue as Gen-
eral Counsel and the Union argue, as discussed infra, that there was
no valid graduation and that the Respondent seized upon that word
in an effort to conceal its discriminatory motive in discharging the
IRAR employees.
spondent raised various affirmative defenses. One defense it
offered was that Lee was not an employee protected by the
Act as he was only a student or trainee.
On September 8, 1987, the Respondent submitted its pro-
posal to continue operating its IRAR program, for the cal-
endar year 1988. The Respondent sought from HPD
$1,187,500 to fund the program in 1988, an amount based
in part on a $95-per-person day for 10 teams of 5 workers
each. Its proposal related that the average hourly rate for the
participants will be $6.50, that the starting rate of $4 per
hour will increase to $5 after 2 weeks and that there will be
periodic increases commensurate with monthly evaluations
with a ‘‘possible maximum of $10.00 per hour.’’
The proposal for a 1988 contract also contained the fol-
lowing paragraphs.
Training will last for a period of one year from the
date of acceptance into the program. At the end of a
successful one year training period, Trainees will re-
ceive a Graduation Certificate of Achievement and one
letter of recommendation from program staff explaining
the program and detailing any special capabilities of the
Trainee. If any Trainee is dismissed from the program
for breaking program rules, he will not receive a grad-
uation certificate or recommendation letters.
At the end of the training cycle, Trainees will be en-
couraged to find a non-subsidized, training—related
job. The success of the In-Rem Apartment Repair
Training Program will be determined in large part by
the ability of the Trainees to find jobs at the completion
of their training. In this way, it is hoped that they will
become self-supporting and integrated members of the
community.
The first proposal filed by the Respondent, the one it filed
in 1986, had referred to the IRAR employees as ‘‘partici-
pants’’ and ‘‘workers’’ as well as ‘‘trainees’’; the proposal
it submitted in September 1987 referred to them, for the
most part, as ‘‘students’’ and ‘‘trainees.’’ Further the 1986
proposal had contained a sentence to the effect that the Re-
spondent ‘‘acknowledges that these participants will be em-
ployees of [the Respondent] and as such will be covered by
insurance that meets the minimum federal labor standards.’’
The proposal submitted in September 1987 contained the
same sentence, except that the words ‘‘will be employees of
[the Respondent] and as such’’ were omitted and, in their
place, there is a blank space.
The reference in the September 1987 proposal to the
issuance of a graduation certificate and a letter of rec-
ommendation, and the deletion from the 1986 proposal of the
phrase acknowledging that the IRAR participants are em-
ployees of the Respondent—both are in line with the argu-
ment, being advanced by the Respondent in 1987 in the
Young Shi Lee case, that Lee was a student, and not an em-
ployee protected by the Act.
The hearing in the Young Shi Lee case, Case 2–CA–
22244, was held on September 30 and October 1, 1987, be-
fore Administrative Law Judge Steven Davis. As noted fur-
ther below, his decision issued in the spring of 1988.
On October 19, 1987, the Respondent hired Diana Pang as
the director of its IRAR program. She replaced the individual
who had held that position since the inception of the IRAR
program.
Pang met with the IRAR employees on January 4, 1988.
She gave each an employee handbook and reviewed its con-
tents with them. The handbook noted, in part, that the max-
imum pay rate was $8 per hour. There was no reference
made to the $10-per-hour maximum set out in Respondent’s
1987 proposal. The handbook also noted that, ‘‘[a]t the end
of a successful 1-year training period, trainees will receive
a graduation certificate of achievement and one letter of rec-
ommendation from program staff explaining the program and
detailing any special capabilities of the Trainee.’’3 Further,
the handbook observed that a participant’s wage rate will be
reviewed every 3 months and wages may or may not be
raised periodically.
On April 7, 1988, Administrative Law Judge Davis issued
his decision in Case 2–CA–22244 finding that the Respond-
ent had unlawfully discharged Young Shi Lee in early 1987.
Soon after that decision was issued, Lee met with various
groups in the Chinese community in New York City to dis-
cuss his intention to return to work for the Respondent and
his interest in forming a union among the IRAR employees.
The local Chinese press reported Lee’s views. The Respond-
ent’s executive director, John Wang, was aware of these
press reports and, indeed, he himself presented to the press
the Respondent’s views as to Lee’s case.
The Respondent filed exceptions to Judge Davis’ decision.
It did, however, reinstate Lee in May 1988. Later that month,
on May 24 Program Director Pang distributed a memo-
randum to the IRAR employees which stated that, because
long time participants in the IRAR program were not leaving
the program for outside employment, the Respondent has
found it impossible to raise the wages for new hires. Her
memorandum further noted that it was impossible for the Re-
spondent to give raises to the newly hired employees, as to
do so would violate the contract the Respondent had with
HPD. Her memorandum then went on to state that she was
proposing that those individuals who joined the IRAR pro-
gram before January 1, 1987, would have a graduation date
at the end of their second anniversary year; that those who
joined after January 1, 1987, but before October 19, 1987,
would graduate at the end of 1-1/2 years of training; and for
those hired after January 1, 1988, their graduation would be
at the end of their first anniversary year. She closed the
memorandum by stating that she would be meeting ‘‘with
upper management’’ at the end of June and by assuring the
IRAR employees that any ideas they had would be carefully
considered.
It may be that the May 4 memorandum Pang distributed
to the IRAR employees was construed by those of them who
were newly hired as an attempt to blame Lee and other sen-
ior employees for their not getting wage increases. If so, it
had little effect. The IRAR employees not only failed to re-
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Young Shi Lee testified, during his cross-examination, as to a
threat that the IRAR program would be closed down once the Union
is established. Neither the brief by General Counsel nor that of the
Union urge that his testimony is supportive of par. 7. It is thus un-
necessary to speculate thereon.
spond to her invitation to submit their ideas to her, but they
also began to discuss forming a union.
Young Shi Lee and a coworker, Li Kei Man, after obtain-
ing advice from friends in the Chinese community, prepared
authorization cards with the Union’s name on them and ob-
tained signatures thereon from employees in the IRAR pro-
gram. On June 5, 1988, they, together with an interpreter,
went to the Board’s Regional Office where they filed, on be-
half of the Union, the petition in Case 2–RC–20520. The
hearing on the petition was held on June 28, 1988.
C. The Alleged Discriminatory Denial of Wage
Increases and the Alleged Unlawful Threat by Program
Director Pang in the Summer of 1988 that the IRAR
Program Would Cease to Operate
An IRAR employee, Li Kei Man, testified that he had re-
ceived increases at approximately 3-month intervals (on Oc-
tober 17, 1987; on January 22, 1988, and on April 25, 1988)
and that, in late July 1988, he asked Program Director Pang,
just before she left for vacation, about his next raise. He tes-
tified that she told him that he was not an employee and that
he was a student who should not be forming a union. He re-
lated also that Pang further stated that, as there was a matter
pending before ‘‘the Labor Board for the establishing of the
union,’’ everything had to wait until the election.
Pang testified that she could not recall having any such
meeting with Man.
Another IRAR employee, Kong Ktwan Wu, testified that
he went to Pang’s office in June 1988 and told Pang that he
was due for a raise as he had been working for the Respond-
ent for 3 months. He testified further that she told him that
she could not give him a raise until employees, who had
started before he did, leave. She also said, according to Wu,
that now that ‘‘You have organized the [U]nion,’’ wages are
frozen and that he should ask the Union for a raise.
Pang testified that, around the end of June 1988, Wu came
to her office in the evening and angrily demanded a wage
increase. She related that she explained to him that she was
experiencing a budget crisis and that his attitude, especially
in class learning, was not good. She testified that she also
told him that Respondent ‘‘had already hit the ceiling of the
average $6.50 and that she would not be able to give any-
body a raise until someone leaves the program so ‘‘there is
[an] amount available.’’
I credit the vivid accounts given by Man and Wu. Further,
it seems unlikely that a new employee, Wu, would angrily
demand a wage increase, as Pang’s account would have it.
In an effort to buttress her account, the Respondent placed
in evidence various forms which contained evaluations of
Wu’s performances. The last evaluation of Wu that Pang had
been given prior to their discussion in June 1988 was dated
June 1 and was for the month of May. In that evaluation,
his rating numbers were above average; there is nothing in
it to support Pang’s testimony as to Wu’s attitude in class
learning. The next evaluation as to Wu was not given her
until August, long after the discussion she and Wu had in
June.
Based on the credibility resolutions above and in view of
the Respondent’s stated policy of granting periodic wage in-
creases, I find that General Counsel has made out a prima
facie showing that the Respondent has failed to grant peri-
odic wage increases to its IRAR employees since June 1988
in order to discourage them from supporting the Union.
Under Board precedent, the burden shifted to the Respondent
to demonstrate that, absent the union activities, the wage in-
creases would still have been withheld. See Wright Line, 251
NLRB 1083 (1980).
Respondent contends that, in any event, the wage increases
would have been withheld as the average wage rates then ex-
ceeded what it contends is the allowable average wage rate
of $6.50 under its contract with HPD. In support thereof, it
noted the reference to the $6.50 average rate as set out in
its proposal, which had been incorporated by reference in the
HPD contract. It placed in evidence a summary of the aver-
age rates for the months—June to December 1988. That
states that the average for June was $6.48; for July, $6.56;
for August $6.52; and for the ensuing months increasingly
higher rates until the rate reached $6.60 per hour in Decem-
ber. It is noted that the proposal the Respondent submitted
to HPD in 1986 contained no statement as to an average
hourly rate.
Despite the budgetary restraints cited by Pang and the
statements in Pang’s May 24 memorandum that newly hired
employees could not be given raises and notwithstanding that
the average rate exceeded $6.50, Pang did give wage in-
creases to some IRAR employees later in 1988, about the
time of the election in Case 2–RC–2050.
I am not persuaded that, absent the Union, the Respondent
still would not have given wage increases to its IRAR em-
ployees. First of all, it later did grant such raises although
the average exceeded $6.50. Secondly, there is no basis for
me to hold that it would have been a violation of the HPD
contract by the Respondent, as Pang had asserted, for raises
to be given when the average exceeded $6.50. One could
point to another provision and the Respondent’s proposals to
HPD, that it would periodically review wages, and to the
practice of granting periodic increases, for possibly a better
argument that the withholding the periodic increases would
constitute a contract violation. It is of course unnecessary to
decide which provision might be controlling, if either can be
said to be binding. It is enough to note that Respondent has
the burden here to prove that it would not have granted the
increases and it offers little to carry that burden. I note too
that, in its initial proposal, it has calculated a possible $10-
per hour rate as the maximum but, after the advent of Young
Shi Lee’s case, this figure was reduced without explanation
to $8.
As the General Counsel has established a prima facie case
and, as that showing has not been rebutted, I find that the
Respondent has, since June 1988, withheld periodic wage in-
creases for its IRAR employees in order to discourage sup-
port for the Union.
Paragraph 7 of the complaint, as amended at the hearing,
alleges that Pang threatened, in late July or early August
1988, to close its IRAR program in order to discourage sup-
port for the Union among the IRAR employees. No evidence
was offered by the General Counsel thereon and I shall
therefore dismiss that allegation.4
415CHINESE AMERICAN PLANNING COUNCIL
D. Refusal to Bargain
The Union was certified on November 15, 1988, in Case
2–RC–20520 as the exclusive collective-bargaining represent-
ative of the IRAR employees. The Respondent thereafter re-
jected the Union’s demand for bargaining, maintaining as it
had in the hearing in the representation case and also during
the course of the Young Shi Lee case that the IRAR employ-
ees were students, not employees under the Act.
Respondent, by rejecting the certified Union’s bargaining
request, on grounds previously litigated, has refused to bar-
gain collectively within the meaning of Section 8(d) of the
Act. The Respondent has repeatedly contended that it was
under no duty to bargain as to the employment tenure of the
‘‘trainees,’’ as to the ‘‘stipend’’ paid them or as to the terms
and conditions of their overall training program as set out in
Respondent’s contract with HPD. That assertion is but an-
other way of stating its basic contention, which the Board
has rejected—that the IRAR employees are students.
E. Alleged Coercive Conduct in Late 1988
1. Alleged threat on November 23, 1988, to close down
The complaint alleges that, on November 23, 1988, the
Respondent’s deputy executive director, John Wang, threat-
ened IRAR employees with the closedown of the IRAR pro-
gram, in order to discourage them from supporting the
Union.
Li Kei Man testified that, on November 23, 1988, he and
five other IRAR employees spoke to John Wang in the sit-
ting room next to his office. He related that, when Wang was
asked ‘‘about the closing at the end of the year,’’ Wang an-
swered that the Respondent was in the processing of negoti-
ating a renewal contract with HPD.
Young Shi Lee testified that he attended that meeting and
that, when he asked Wang about a newspaper report that the
Respondent would close down because of the Union, Wang
replied ‘‘that’s only reported in the newspaper.’’ Lee testified
that he understood Wang’s response to mean that the Re-
spondent did not plan to close down.
The testimony given by Li Kei Man and Young Shi Lee
relevant to this allegation is insufficient to sustain it.
F. Alleged Threat to IRAR Employees by Charles Wang
that the Respondent Would Close its IRAR Program
because of the Union; the Alleged Statement by Wang
to those Employees that it was Futile for Them to
Support the Union; and Alleged Unlawful
Promise of Benefit
The complaint alleges that on December 9, 1988, the Re-
spondent, by Charles Wang engaged in the coercive conduct
set out above.
General Counsel presented witnesses who testified as to a
meeting the IRAR employees had on December 9, 1988,
with Charles Wang and other officials of the Respondent.
The Respondent, in turn, presented testimony to rebut those
accounts.
During the cross-examination of Charles Wang, the Gen-
eral Counsel produced a tape recording of that meeting
which had been made surreptitiously by an IRAR employee.
The discussion was in Mandarin. Pursuant to arrangements at
the hearing, a 38-page English translation of that recording
was prepared and received in evidence.
The discussion on December 9 as disclosed by the tran-
script of the recording and viewed in overall context is sum-
marized as follows. The IRAR employees raised three points
with Charles Wang—recognition of the Union, the wage
freeze, and whether the IRAR program would continue in
1989.
Wang addressed the last issue first. He stated, in essence,
that the Respondent may enter into a contract with HPD for
1989 but that depends in part ‘‘on what decision the court
will make.’’ (In overall context, he was referring to the
Board’s petition before the U.S. Court of Appeals, Second
Circuit, to enforce its order in the Young Shi Lee case. Oral
argument was then scheduled to take place in that case on
February 17, 1989 and the argument would, of course, focus
on whether Lee, as an IRAR participant, was an employee
under the Act as found by the Board, or a student as Re-
spondent contended.)
Wang went on to note that the Respondent will have to
wait for the ruling of the court in deciding whether it would
recognize the Union as bargaining agent.
One employee protested that ‘‘everybody will be gone’’
by the time the court rules. Wang endeavored, in general lan-
guage, to allay their concern. There was discussion back and
forth as to the Respondent’s goals, its operations, and wheth-
er the Respondent had treated the IRAR employees fairly or
whether they had been ‘‘cheated.’’ In the course of the dis-
cussion, Wang observed that the Respondent did not freeze
salaries but simply ran out of money. He indicated that the
Respondent would grant raises as soon as it has moneys
available to do so. He was informed that six employees had
gotten ‘‘secret’’ raises. Wang stated that raises could be
given only if some employees left the program. He observed
that HPD was not satisfied with some work and refused to
pay for it.
Wang then went on to state that the Respondent ‘‘is open’’
and that its accounts are audited but that ‘‘the key to the cur-
rent issue is because we have different opinions, so we can-
not let you check the account,’’ unless there is agreement.
When asked what he meant by an agreement, Wang replied,
in effect, that the Respondent operates ‘‘a training course.’’
He further stated that ‘‘if everyone can think the same way,
then the business can continue. If everyone cannot think
along the same line, it will be very difficult to go on. We
hope that, come February when a court decision is made, we
can again sit down and discuss.’’
Again, a protest was made that, by February 1989, every-
one will be gone. Wang stated that the Respondent will com-
ply with the law and that he hoped each of the IRAR em-
ployees will ‘‘think again carefully, sincerely and calmly be-
cause . . . jeopardizing [the Respondent’s] interest will not
do [them] any good either.’’
Later on during the meeting, Wang indicated that if the
Respondent’s ‘‘training program won’t be jeopardized,’’ the
IRAR employees will be invited back. The discussion fol-
lowing that comment had to do with whether management or
the workers were incompetent and whether the problem was
one of communication.
Wang informed the IRAR employees then that they have
different views from those of the Respondent, that ‘‘the key
to the entire problem’’ is that the Respondent considers the
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 He had been discharged for poor performance. His candid testi-
mony thereon indicated that he was not testifying adversely to Re-
spondent out of pique.
IRAR participants as trainees and not workers, that ‘‘if [they]
say [they] are not going to form a union, then we can discuss
about other things . . . [but no] matter, we will have to dis-
cuss it after February.’’
Incidentally, the transcript of the December 9 meeting, to
a great extent, corroborates the testimony that had been given
by General Counsel’s witnesses as to that meeting and does
not corroborate the accounts of the Respondent’s witnesses
as to that meeting.
The clear impact of Charles Wang’s statements to the
IRAR employees at the December 9 meeting was that the
Respondent had no intention of renewing its contract with
HPD by the end of 1988 and that they would be discharged
then because they had persisted in viewing themselves as
employees who had the right to join the Union. He also im-
plied, quite obviously, that if they were to agree with him
that they were trainees, and not employees, the Respondent
could discuss with them ‘‘other things,’’ one of which was
expressly brought to his attention, the wage freeze.
I find that the Respondent thereby had impliedly warned
the IRAR employees that their continued insistence on as-
serting their rights as employees under the Act, including
supporting the Union, would result in their discharges at the
end of the year and that it also impliedly indicated to them
that, by surrendering those rights, the Respondent was will-
ing to adjust their concerns, including the wage freeze.
Charles Wang’s statements, in overall context, establish too
that the Respondent informed the IRAR employees that they
would have a long wait, well after they were discharged, be-
fore the Respondent would even consider honoring the
Union’s request for recognition. In so many words then, he
told the IRAR employees that it was indeed futile for them
to continue to support the Union. I thus find merit to these
allegations of the complaint.
G. Alleged Unlawful Promise in January 1989 to Re-
employ the Discharged IRAR Employees
The complaint alleges that, in mid-January 1989, the Re-
spondent, by Charles Wang, promised benefits to the IRAR
employees if they abandoned their support for the Union.
As discussed separately below, all the IRAR employees
were terminated at the end of 1988. A former supervisor5 of
the Respondent, Wu Yao, testified credibly that, as a member
of the Chinese community, he sympathized with the dis-
charged employees and took it upon himself to try to per-
suade Charles Wang to reemploy them. He and a discharged
IRAR employee approached Charles Wang in mid-January
1989. He told Wang that those employees should not have
been let go, as the Chinese New Year was approaching.
Wang replied that, as long as they do not insist on having
a union or that they are workers, not students, they can re-
turn to work at anytime. Otherwise, Wang said, nothing can
be done. Wu asked Wang what would happen if the court
of appeals rules that the IRAR participants are workers,
Wang answered that the program would be terminated but,
if the court ruled that they were trainees, the Respondent
could have the ‘‘old group’’ back.
Based on the credited testimony, I find that Respondent,
in mid-January 1989 coercedly promised IRAR employees
their jobs back if they abandoned their support for the Union.
H. The Alleged Unlawful Discharges
The complaint alleges that the Respondent discriminatorily
closed down its IRAR program on December 31, 1988, for
several months, discharging all its IRAR employees and
failed to recall them when the program resumed in May
1989. The Respondent contends that the IRAR participants
were graduated at the end of the 1988 contract year, that the
program which started in May 1989 is a wholly new training
program and that it would not have hired the graduates of
the IRAR program as they were ineligible for participation
in it. To put these respective contentions in proper perspec-
tive, a brief review of the supportive work program is re-
quired.
Respondent and two other nonprofit groups participated in
that program; VERA which provided HPD with work crews
comprised of parolees and WILDCAT which provided crews
comprised of former substance abusers. The proposals filed
by the Respondent, Vera and Wildcat with HPD to take part
in that program were chosen over other proposals. They
signed standard form contracts which HPD then submitted
for approval, first to the city’s board of estimate, then to the
mayor’s office for approval, and lastly to the comptroller’s
office where they were registered so that payments could be
disbursed in accordance with the respective contracts.
As discussed above, the Respondent modified its proposal
in September 1987 in deleting its acknowledgement that
IRAR participants are its employees and in other ways. No
explanation for those changes exists other than that they were
made to offset the possible adverse effect of General Coun-
sel’s contentions, then being presented in the Young Shi Lee
case, that IRAR participants were employees, not students.
The Respondent’s proposal for 1988 was incorporated into
the HPD standard contract without incident; as noted earlier,
it provided inter alia that the training program would con-
tinue throughout 1988.
In September 1988 the Respondent submitted its proposal
to participate in the supportive work program in 1989. That
proposal contemplated that Respondent would operate two 6-
month training cycles and included other modifications from
its earlier proposals. While HPD was processing the Sep-
tember 1988 proposal, the Board issued its decision in the
Young Shi Lee case, discussed above, and the Union unani-
mously won the representation election among the IRAR em-
ployees, discussed above.
In early December 1988, the Respondent retained an attor-
ney, Jenny Lind, who approached HPD officials in a deter-
mined effort to effect various changes in contract language
which HPD officials resisted. One HPD official, Claire
Moise, testified that the Respondent had sought these
changes as the Respondent ‘‘felt that [they] would clarify
what the program was all about and would therefore help to
clarify the Union issue.’’ HPD’s legal counsel testified that
the standard contract incorporated by reference the proposal
submitted by the Respondent and that the proposed changes
in the training program were matters that, in any event, were
always under the Respondent’s control. It thus appears that
the determined efforts by Lind to have the standard contract
revised to specifically include the changes urged by the Re-
417CHINESE AMERICAN PLANNING COUNCIL
spondent were unnecessary, insofar as the efficacy of the
contract was concerned. That these same efforts served to
delay the signing and approval of the 1989 contract until
well into 1989 was also obvious. In connection with those
efforts, I note the finding above that the Respondent had
made clear, on December 9, 1988, that it would wait into
1989 for a ruling of the U.S. court of appeals in the Young
Shi Lee case before it would decide whether it would con-
tinue its IRAR program.
Relevant to the matter of Respondent’s motivation are the
commitment forms prepared by the Respondent in June 1988
and signed by many of the IRAR employees. Those forms
committed the IRAR employees to remain in the IRAR pro-
gram until completion of a full year’s training. Some of the
employees who signed these forms were let go at the end of
1988 although they had started working for the Respondent
in the spring of 1988.
On December 30, 1988, Respondent’s IRAR employees
reported to its office. There, Yong Chen, Respondent’s pro-
gram counselor, informed them that that was their last day
of work and that they ‘‘have already graduated.’’ Protests
were voiced. One employee asked Chen how is it that they
got no diplomas. Chen then wrote, in Chinese, a statement,
translated as follows:
Due to [the] expiration and course completion of the
training class, December 30, 1988 is the last training
date.
Best wishes for a Happy New Year.
Respondent’s executive director, Charles Wang, then en-
tered the room. Three of General Counsel’s witnesses—Li
Kei Man, Konh Htyan Wu, and Young Shi Lee—testified
that, in the ensuing discussions, Wang said that Respondent
had to close down because it does not have a contract for
1989 and that they should have known that that would be the
result of their having formed the Union. General Counsel’s
fourth employee witness testified to another discussion he
had with Wang; he further testified that he observed Wang
talking with other employees but did not hear their conversa-
tion.
Wang testified that Chen asked him to the meeting as the
trainees, who had come to pick up their final checks, were
creating a disturbance. He testified that he then went to the
meeting and told the employees that they had signed on with
the understanding that there was a beginning and an end to
the IRAR program and that they should be fully aware of the
fact that they would graduate. Wang then answered in the
negative to a series of questions put to him by the Respond-
ent’s counsel, including whether he made any promises if the
employees were to ‘‘drop the Union,’’ and whether he had
said then that they should known what the result would be
from the time they organized the Union.
I credit the candid accounts of General Counsel’s wit-
nesses over Wang’s summary denials.
Graduation certificates were later mailed to all these IRAR
employees. These employees have not been recalled to work
for Respondent since then.
On January 12, 1989, the board of estimate approved HPD
contracts for the year 1989 with the Respondent, with Vera,
and with Wildcat. The latter two organizations continued
without interruption to operate under the supportive work
program whereas the Respondent, as discussed above, was
still seeking language revisions in the contract itself.
After having signed the 1989 HPD contract, the Respond-
ent hired, in May 1989, new employees for its work crews.
It did not recall any of the IRAR employees who were dis-
charged at the end of 1988. The newly hired workers, ac-
cording to the proposal that the Respondent had submitted,
were scheduled to work only for a 6-month term and were
to be paid at $5 per hour.
Under the principle set out in Wright Line, supra, the Gen-
eral Counsel has the burden of establishing, prima facie, that
a motive in Respondent’s decision to end the IRAR program
on December 30, 1988, and not to recall the discharged em-
ployees in May 1989, was to discourage its employees from
asserting their rights under Section 7 of the Act, including
their right to support and to be represented by the Union.
The General Counsel has met that burden. The evidence be-
fore me demonstrates that, long before the advent of the
Union, the Respondent was hostile to the efforts of its IRAR
employ to exercise their rights as employees under the Act,
and that the Respondent thereafter repeatedly made clear to
those employees that their continued employment depended
on their surrendering those rights and abandoning the Union.
Simultaneously, it engaged in efforts to delay the operative
dates for a renewal contract by insisting on changes in HPD
contract language that were superfluous. The first part of the
graduation scenerio itself was almost comedic in form;
Wang’s comments later, according to the credited testimony,
removed all doubts as to the Respondent’s motivation.
The evidence also establishes, prima facie, that the Re-
spondent did not recall the discharged IRAR employees,
when operations resumed in May 1989, because they still in-
sisted they were employees under the Act and that they still
supported the Union.
In view of the above findings, the burden then shifted to
the Respondent to prove that it would have discharged these
employees and that it would not have recalled these employ-
ees, absent their union activities. To that end, the Respondent
contends that it had to discharge these employees as the HPD
contract terminated on December 31, 1988, that it could not
continue to operate the program until it was funded again in
May 1989 and also that it could not recall them as the 1989
contract effectively precluded the Respondent from doing so.
The Respondent, however, cannot rely on the contract lan-
guage that it itself brought about by its persistence in seeking
those very changes and where it sought those changes as part
of its campaign to delay the renewal of the IRAR program
until at least after the Young Shi Lee case was heard by the
U.S. court of appeals. Cf. Champ Corp., 291 NLRB 803, 866
(1988), where the Board adopted, inter alia, the holding by
Judge Wieder that the employer there could not use, as a de-
fense, a situation which it itself had created. Further, the
other two HPD contractors, Vera and Wildcat, continued to
operate in January 1989, notwithstanding that the board of
estimate did not approve their bids until January 12, 1989;
the testimony of HPD officials made it clear that the Re-
spondent too could have continued to operate but for its in-
sistence on changes that it could have made on its own in
its own proposal.
I find that General Counsel’s prima facie case has not
been rebutted and therefore, I further find that the Respond-
ent discharged the IRAR employees on December 30, 1988,
418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 While the parties stipulated that these were the names of the
IRAR employees as of December 30, 1988, the Respondent later
stated that recheck of its payroll records showed that Sui Bin Huang
and Jian Ning Jiang had left its employ by then. If the compliance
stage determines that they were not employees then, their names are
to be deleted. Another employee, Young Shi Lee, has since died. His
estate is entitled to backpay. See Lauderdale Lakes General Hos-
pital, 239 NLRB 895 (1978).
because they insisted on exercising their rights under Section
7 of the Act as employees, including giving support to their
Union.
As to the Respondent’s assertion that the 1989 HPD con-
tract precluded it from enrolling the trainees who had grad-
uated, the Respondent relies on its own construction of con-
tract terms. That construction appears to be directly at vari-
ance with the fact that, in previous years, IRAR employees
continued to participate in the program on an indefinite basis.
Were Respondent allowed to defend its failure to recall the
IRAR employees on the ground that they did not meet train-
ee requirements it itself set would enable the Respondent to
evade its obligations under the Act itself, especially where
the changes it implemented were, as discussed below, also
unlawful. In any event, there is no persuasive evidence that
the Respondent, absent the protected activities engaged in by
the IRAR employees, would not have recalled them to work
upon resumption of the program in May 1989.
I therefore find that the Respondent discharged the fol-
lowing named employees on December 30, 1988, and failed
to recall them to its employ when the IRAR program was,
in effect, resumed in May 1989—because they had continued
to assert their Section 7 rights as employees, including join-
ing and supporting the Union.6
Kam Shing Chan Hao Hui Li
Kam Tai Chan Kei Man Li
Ping Wing Chan Wai Tai Li
Jing Yi Chen Bing Zhao Lo
Bak Lok Chu Sheng Hua Lu
Kok Kun Chu Cheuk Ming Ng
Israel Gonzalez Kin Chung Ng
Kwok Wo Ha Ten Jen Shen
Thieng Pao Hou Hau Wing Sin
Sui Bin Huang V. Din Sintroung
Jieng Ning Jiang Wing Sing Tse
Moon Shuen Kwong Wai Man Wan
Kam Taie Kwok Kon Atyan Henry Wu
Young Shi Lee—dead Ming Zhang
I. Alleged Discriminatory and Unilateral Changes in
May 89 of Wage Rates and Tenure of Unit Employees
The proposal submitted by the Respondent for the 1989
contract provided that it would pay the participants $5 per
hour and, in effect, that their term of employment will end
6 months after they began work. As noted above, the evi-
dence proferred by the General Counsel, including that de-
veloped via the testimony of a HPD official that the changes
proposed by the Respondent from its prior HPD contract
were addressed to the union problem it faced, established
prima facie that the union activities of the IRAR employees
were a definite factor in the decision of the Respondent to
make those changes. The Respondent offered no evidence to
prove that it would, absent those union activities, still have
effected those changes. Rather, the Respondent offered only
an assertion that it was motivated only by its attempt to cre-
ate an incentive for trainees to move on to employment else-
where. To restate a contention is not to prove it.
I find that General Counsel’s prima facie showing has not
been rebutted and that therefore the Respondent effected
these changes in order to discourage its IRAR employees
from supporting the Union.
As a corollary, and noting that the Union is the certified
exclusive collective-bargaining agent of the IRAR employ-
ees, I further find that the Respondent, by its unilateral im-
plementation of those changes, has failed to bargain collec-
tively with the Union.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
withing the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by having:
(a) Warned its employees that it would terminate its IRAR
program and discharge them unless they abandoned their
support of the Union;
(b) Informed its IRAR employees in effect that it was fu-
tile for them to continue to support the Union;
(c) Impliedly promised its IRAR employees that they
would receive periodic wage increases if they abandoned
their support of the Union;
(d) Informed its IRAR employees that they would be re-
turned to its employ if they abandoned the Union;
(e) Engaged in the conduct described below in paragraphs
4 and 5.
4. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act by having:
(a) Discontinued granting IRAR employees periodic wage
increases to discourage them from asserting their rights under
Section 7 of the Act, including supporting the Union;
(b) Discharged all its IRAR employees on December 30,
1988, because they supported the Union;
(c) Reduced the wage rates and employment tenure of
IRAR employees in order to discourage support of the
Union.
5. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) of the Act by having:
(a) Refused to honor the Union’s request to bargain collec-
tively with it as the exclusive representative in the unit of
employees for which it was certified in Case 2–RC–20520;
(b) Unilaterally and without bargaining collectively with
the Union changed the wage rates and employment tenure of
employees in the unit represented by the Union, as referred
to above.
6. The Respondent did not engage in the other unfair labor
practices alleged in the complaint.
THE REMEDY
The Respondent did not have a contract with HPD after
1989. Nonetheless, the matter is not moot insofar as issuance
of a remedial order, including one as to the Respondent’s re-
fusal to bargain collectively, is concerned. See Redway Car-
419CHINESE AMERICAN PLANNING COUNCIL
7 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.
8 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.’’
riers, 301 NLRB 1113 (1991), and cases cited therein at
footnote 1.
Further, as requested by the General Counsel, the Re-
spondent shall be required to mail signed copies of the notice
to employees, in English and Mandarin to all IRAR employ-
ees who were discharged on December 30, 1988.
The Respondent shall further make whole all IRAR em-
ployees for losses incurred by them by reason of the Re-
spondent’s discontinuance of its general practice of granting
them periodic wage increases, with interest thereon from the
dates of the respective wage increments, to be determined via
compliance proceedings if necessary; interest to be computed
as prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). The Respondent will also be ordered to make
whole for losses incurred as a result of their unlawful dis-
charges on December 30, 1988, from then and until Decem-
ber 31, 1989, when the IRAR program was permanently
closed, less net interim earnings, and in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), and with inter-
est, as prescribed in New Horizons for the Retarded, supra.
The General Counsel has sought an order requiring the Re-
spondent to bargain as to the effects of the December 31,
1989 closedown. There is no reason to specify each and
every aspect of the bargaining duty.
On these findings of fact, conclusions of law and the en-
tire record, I issue the following recommended7
ORDER
The Respondent, Chinese American Planning Council,
Inc., New York, New York, its officers, agents, successors,
and assigns shall
1. Cease and desist from
(a) Warning its employees that it would discharge them
unless they abandoned their support of C.P.C. Independent
Workers Union.
(b) Informing employees in effect that it was futile for
them to continue to support the above-named Union.
(c) Impliedly promising employees that they would receive
periodic wage increases if they abandoned their support of
the above-named Union.
(d) Informing employees that they would be returned to its
employ ifthey abandoned the above-named Union.
(e) Discontinuing granting employees periodic wage in-
creases to discourage them from asserting their rights under
Section 7 of the Act, including supporting the above-named
Union.
(f) Discharging employees because they supported the
above-named Union.
(g) Reducing the wage rates and employment tenure of
employees in order to discourage support of the above-
named Union.
(h) Refusing to honor the above-named Union’s request to
bargain collectively with it or the exclusive representative in
the unit of employees for which it was certified in Case 2–
RC–20520.
(i) Unilaterally and without bargaining collectively with
the Union changing the wage rates and employment tenure
of employees in the unit represented by the above-named
Union, as referred to above.
(j) In any like or related manner interfering with, restrain-
ing, or coercing its employees in their exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reimburse its IRAR employees for losses incurred by
them by reason of the Respondent’s failure to grant them
periodic wage increases and for losses they incurred by rea-
son of their having been discharged unlawfully, with interest
computed as provided for in the remedy section above.
(b) On request bargain collectively with the above-named
Union as the exclusive representative of the unit employees
for which it was certified in Case 2–RC–20520.
(c) 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.
(d) Mail copies of the attached notice marked ‘‘Appen-
dix’’ to all IRAR employees discharged on December 30,
1988 as provided for in the remedy section above.8 Copies
of such notices to be provided to the Respondent by the Re-
gional Director for Region 2, after being signed by the Re-
spondent’s authorized representative, shall be mailed by the
Respondent immediately upon receipt thereof.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FUTHER RECOMMENDED that allegations of the com-
plaint, to which merit has not been found, are dismissed.
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 this notice and abide by its provisions.
WE WILL NOT warn our employees that we will discharge
them unless they abandone their support of the C.P.C. Inde-
pendent Workers Union.
WE WILL NOT inform our employees in effect that it is fu-
tile for them to continue to support the above-named Union.
WE WILL NOT impliedly promise our employees that they
will receive periodic wage increases if they abandoned their
support of the above-named Union.
WE WILL NOT inform our employees that they will be re-
turned to our employ if they abandoned the above-named
Union.
420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discontinue granting periodic wage in-
creases to our employees to discourage them from asserting
their rights under Section 7 of the Act, including supporting
the above-named Union.
WE WILL NOT discharge employees because they support
the above-named Union.
WE WILL NOT reduce the wage rates and employment ten-
ure of employees in order to discourage support of the
above-named Union.
WE WILL NOT refuse to honor the above-named Union’s
request to bargain collectively as the exclusive representative
in the unit of employees for which it was certified in Case
2–RC–20520.
WE WILL NOT, unilaterally and without bargaining collec-
tively with the Union, change the wage rates and employ-
ment tenure of employees in the unit represented by the
above-named Union, as referred to above.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
under Section 7 of the Act.
WE WILL make whole, with interest, losses incurred by our
IRAR employees for our failure to grant periodic wage in-
creases because they support the above-named Union.
WE WILL make whole, with interest, the employees named
below for losses they suffered as a result of our having dis-
charged them on December 20, 1988, because they supported
the Union.
WE WILL, on request, bargain in good faith with the
above-named Union as the exclusive representative of our
IRAR employees.
WE WILL make whole, with interest, losses incurred by our
IRAR employees for our failure to grant periodic wage in-
creases because they support the above-named Union.
WE WILL make whole, with interest, the employees named
below for losses they suffered as a result of our having dis-
charged them on December 20, 1988, because they support
the Union.
Kam Shing Chan Hao Hui Li
Kam Tai Chan Kei Man Li
Ping Wing Chan Wai Tai Li
Jing Yi Chen Bing Zhao Lo
Bak Lok Chu Sheng Hua Lu
Kok Kun Chu Cheuk Ming Ng
Israel Gonzalez Kin Chung Ng
Kwok Wo Ha Ten Jen Shen
Thieng Pao Hou Hau Wing Sin
Sui Bin Huang V. Din Sintroung
Jieng Ning Jiang Wing Sing Tse
Moon Shuen Kwong Wai Man Wan
Kam Taie Kwok Kon Atyan Henry Wu
Young Shi Lee—dead Ming Zhang
WE WILL, on request, bargain in good faith with the
above-named Union as the exclusive representative of our
IRAR employees.
CHINESE AMERICAN PLANNING COUNCIL, INC.