Co-Op City

National Labor Relations Board - Board Decisions

Feb 24, 2004

341 N.L.R.B. 255 (N.L.R.B. 2004)

CO-OP CITY 255
Riverbay Corporation, d/b/a Co-Op City and Co-Op
City Police Benevolent Association. Case 2–CA–
32617
February 24, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On June 28, 2002, Administrative Law Judge Michael
A. Marcionese issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed cross-exceptions and a brief in support of
its cross-exceptions and in answer to the exceptions of
the General Counsel. The General Counsel filed an an-
swering 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 decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
The Issue
The principal issue before the Board is whether the
judge correctly found that the Respondent did not violate
Section 8(a)(1) by maintaining a rule that prohibited em-
ployees from participating in the election of the members
of the Respondent’s board of directors. Contrary to our
dissenting colleague, we agree with the judge’s dismissal
of this complaint allegation.
Factual Summary
The facts are fully set forth in the judge’s decision. In
brief, the Union in this case, the Co-op City Police Be-
nevolent Association, represents the armed and unarmed
security officers and lobby guards employed in the Re-
spondent’s department of public safety. There are ap-
proximately 95 to 110 employees in the unit.
The Respondent, a limited profit housing company or-
ganized under the laws of New York State, owns, main-
tains, and operates a middle-income cooperative housing
development in the Bronx, New York, known as Co-op
City. Co-op City consists of 15,372 apartments in 35
high-rise buildings and 8 clusters of 3-story townhouse
buildings, 3 shopping centers, and 8 parking garages on a
330-acre site. The Respondent is owned by shareholders
or “cooperators,” who own and reside in the apartment
units.
The Respondent is governed by a 15-member board of
directors who hire a general manager to run the complex
on a day-to-day basis. At all times material to this case,
the general manager was Marion Scott Real Estate, Inc.
(Marion Scott), with Kenneth Silverman, a Marion Scott
employee, serving as the executive general manager.
State regulations governing entities like the Respon-
dent, the Respondent’s bylaws, and its management con-
tract with Marion Scott establish that the board of direc-
tors has no direct control over unit employees’ terms and
conditions of employment. Rather, Respondent’s board
of directors functions much like the directors of any cor-
poration, i.e., they set corporate policy, look out for the
interests of stockholders, and delegate day-to-day man-
agement of the business to professionals hired for that
purpose. The regulations of the New York State Divi-
sion of Housing and Community Renewal, chapter IV,
section 1725–3.3 specifically codify that State’s public
policy against interference by a co-op’s board “with the
day-to-day management and operation of a project or
with its employees.” Thus, here, Marion Scott had full
responsibility for hiring, discipline, and termination of
employees. The board had also delegated to Marion
Scott full responsibility for negotiating and administering
collective-bargaining agreements with the various labor
organizations representing Respondent’s employees.1 In
addition, Marion Scott had final authority over the set-
tlement of grievances with employees and their unions.
Of the 15 members on the Respondent’s board of di-
rectors, 5 new members are elected each year by the
shareholders/cooperators to serve 3-year terms. Elec-
tions are conducted by secret ballot and only resident
shareholders may vote for and serve as directors. Elec-
tions are held in May and are usually preceded by a 1–2
month campaign.
The Respondent has maintained a rule restricting em-
ployee participation in board of director elections since
early 1999. It reads as follows:

Employees living in Co-op City are encouraged to in-
dividually exercise their rights as residents of the com-
munity during the Board of Directors election. They
shall refrain, however, from engaging in any activity,
such as organizing other employees, that might be con-
strued as an attempt to use their position for the pur-
pose of influencing the outcome of the election. All
employee groups and organizations are prohibited from
participating either directly or indirectly in the electoral
process. They may not raise funds, give donations, en-
courage their members to give donations, issue en-
dorsements, distribute campaign material, or engage in
any other activity that may reasonably be expected to
benefit a particular candidate or group of candidates.
Non-resident employees may not participate in the

1 The board’s role is limited to voting on ratification of the contract
negotiated by Marion Scott.
341 NLRB No. 34
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 256
electoral process in any manner except where otherwise
specified as part of their normal job duties. Candidates
who encourage, accept, or knowingly benefit from such
participation are subject to disqualification by the
Committee.

The Respondent revoked this rule in the spring of 2000
and replaced it with the following rule, which was still in
effect at the time of the hearing:

The election of the Board of Directors is a right of resi-
dents in Co-op City. Employees living in Co-op City
are encouraged to exercise their rights as residents of
the community during the Board of Directors election
within the scope of this policy. All Riverbay employ-
ees are reminded that as employees they have a duty of
loyalty to Riverbay and should not engage in any activ-
ity which raises the appearance of impropriety. Partici-
pation in the electoral process must not interfere with
employees’ work duties. All employees shall refrain
from engaging in any activity which might be con-
strued as an attempt to abuse their positions as employ-
ees for the purpose of influencing the outcome of the
election. Examples of acts that may be deemed an
abuse of employee position include: soliciting dona-
tions for particular candidate(s), distributing campaign
material for or against particular candidate(s), or engag-
ing in any other activity which may reasonably be con-
strued as an abuse of position.
Nonresident employees and employee groups and or-
ganizations are prohibited from participation in the
electoral process.
Candidates who encourage, accept, or knowingly bene-
fit from such prohibited participation are subject to dis-
qualification by the Committee.
This policy does not affect employees’ right to engage
in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection or
their right to refrain from any or all such activities.

The judge implicitly found, and for the purposes of
this decision we can agree, that there is no material dis-
tinction between these rules.2 Both rules differentiate
between employees who are residents and those who are
not. Employees who are residents have the right to par-
ticipate individually in the election process. Employees
who are not residents, on the other hand, have no such

2 Arguably, the 1999 and 2000 rules differ in that the former explic-
itly distinguishes between individual and group participation in co-op
board elections while the latter does not. Because the parties have not
litigated this case on that basis, we assume, arguendo, that the second
rule, like the first, is aimed at concerted activity.
right. In sum, the rules, on their face, only prohibit em-
ployees from using their positions as employees to affect
the outcome of the election of a member of the Respon-
dent’s board of directors.
Nevertheless, the General Counsel contends that the
Respondent violated Section 8(a)(1) of the Act merely by
maintaining these rules. In an attempt to show some
nexus between the election of a member of the Respon-
dent’s board of directors and the Section 7 rights of em-
ployees, the General Counsel adduced evidence at the
hearing concerning the following two matters.
1. The lobby attendant program
Iris Baez was one of the candidates in the 1999 board
of directors election. As part of her candidacy, Baez
championed a proposal to create a new position of lobby
attendant. The judge found that a lobby attendant posi-
tion arguably would impact the employees represented
by the Union because the money budgeted to pay the
wages and benefits of the new employees could reduce
funds available to compensate existing employees. In
addition, duties assigned to the lobby attendants could
reduce the role of the existing security force.
Baez won the election and was thereafter selected by
the other directors to serve as the Respondent’s presi-
dent. In 2001, the lobby attendant program that Baez
advocated was implemented.3
2. The discharge of Joseph Pizzano
The judge found that Baez “played a significant role”
in the Respondent’s decision to terminate Joseph Piz-
zano, a public safety officer and resident shareholder.
Pizzano was a member of the Union and in 1999 served
as its president. Pizzano and the Union opposed Baez’
candidacy for the board of directors because of her sup-
port for the lobby attendant position.
In his capacity only as a resident shareholder, Pizzano
produced and distributed a two-page flyer entitled, “An
Unsolicited Opinion from Alcott Place.”4 The flyer was
critical of the candidacy of Baez and her position on sev-
eral issues, including the lobby attendant program. Piz-
zano placed his name and address on the flyer, but made
no mention of his employment or union status.
After her election, Baez initiated a complaint against
Pizzano based on his preparation of the flyer. Pizzano
was ultimately discharged in November 1999, under the
first of the rules quoted above. Although the unfair labor
practice charge originally alleged that Pizzano was ter-
minated in violation of Section 8(a)(1) and (3), the Union
withdrew that aspect of the charge, and the complaint
3 In March 2001, the lobby attendants were added to the unit repre-
sented by the Union.
4 Alcott place was the name of the building in which Pizzano lived.

CO-OP CITY 257
contains no such allegation. Therefore, as the judge cor-
rectly recognized, the legality of Pizzano’s discharge is
not before us.
ANALYSIS AND CONCLUSION
1. The judge’s decision
The judge found that the Respondent’s rules, on their
face, did not prohibit the employees from expressing
their views on issues affecting their terms and conditions
of employment. Instead, he found that the rule prohib-
ited employees from engaging in activities designed to
affect the outcome of the board of directors’ election,
which was a legitimate prohibition because employees
do not have a Section 7 right to designate individuals
who set corporate policy. The judge stated that there is a
distinction between protesting an employer’s policies or
business decisions and seeking a role in making those
decisions. The Respondent could lawfully prohibit the
latter, and it was precisely the latter that Pizzano was
trying to do.
Thus, the judge found that Pizzano was not engaged
in protected concerted activity when he prepared and
distributed his leaflet. Although the leaflet did address
some of the concerns of the Union and the employees
regarding the lobby attendant proposal, it also criticized
the incumbent directors, Baez, and her slate of candidates
for decisions that had little or no impact on employees.
Further, the judge continued, Pizzano framed his leaflet
as an “unsolicited opinion” of a resident who was con-
cerned about the directors’ stewardship of the coopera-
tive’s assets. The judge found such concerns outside the
scope of Section 7. The judge further found that anyone
reading the leaflet could not reasonably conclude that
Pizzano was speaking out as an employee, noting that
Pizzano was careful not to mention his status as an em-
ployee. The judge concluded, therefore, that the applica-
tion of the rule to Pizzano did not establish that the rule
could reasonably be interpreted by employees as limiting
or prohibiting them from engaging in Section 7 activity.
We agree.
Although the judge recognized that Baez retaliated
against Pizzano for preparing and distributing his flyer,
he found that the “single instance of a lone director exer-
cising undue influence over the Respondent’s managers”
was insufficient to establish that the rule, on its face,
would reasonably tend to chill employees in the exercise
of Section 7 rights. The judge reiterated that Pizzano
was not engaged in protected concerted activity when he
communicated by way of his leaflet with fellow share-
holders regarding the election, an activity that the rule
permitted. Therefore, the judge continued, the rule, on
its face, permitted Pizzano’s participation in the election
as a resident and because Pizzano scrupulously avoided
any mention of his employee or union status, he did not
in fact violate the rule. In sum, the judge found that the
General Counsel did not meet his burden of proving that
the Respondent’s rule prohibiting the participation of
employees in the election of the Respondent’s board of
directors would reasonably tend to chill employees in the
exercise of their Section 7 rights. We agree.
2. Applicable principles
In general, “employee efforts to affect the ultimate di-
rection and managerial policies of the business are be-
yond the scope” of Section 7. Lutheran Social Service of
Minnesota, 250 NLRB 35, 41 (1980). Thus, “an em-
ployee . . . has no protected right to engage in activities
designed solely for the purpose of influencing or produc-
ing changes in the management hierarchy.” Retail
Clerks Local 770, 208 NLRB 356, 357 (1974). In a nar-
row category of cases, however, an employee protest
over the selection of a supervisor or other management
official may be held to be protected by the Act if, and
only if, the “facts establish that the identity and capabil-
ity of the supervisor involved has a direct impact on the
employees’ own job interests and on their performance
of the work they are hired to do.” Dobbs Houses, 135
NLRB 885, 888 (1962), enf. denied 325 F.2d 531 (5th
Cir. 1962).5
3. Application of principles
As stated above, the issue before us is whether the Re-
spondent violated Section 8(a)(1) by maintaining a rule
that prohibited employees from participating in the elec-
tion of the members of the Respondent’s board of direc-
tors. Contrary to our dissenting colleague, and in agree-
ment with the judge, we conclude that the mere mainte-
nance of this rule would not “reasonably tend to chill
employees in the exercise of their Section 7 rights.” La-
fayette Park, supra.
As discussed above, employee action seeking to influ-
ence the identity of the managerial hierarchy is normally
unprotected under the Act. Because employees generally
do not have a Section 7 right to participate in the election
of a company’s board of directors, the Respondent’s

5 The judge stated that such an employee protest must also employ
reasonable means in order to be protected by the Act. We do not agree.
As we recently stated in Accel, Inc., 339 NLRB No. 134, slip op. at 1
(2003), “[T]he Board has not imposed a ‘reasonable means’ require-
ment on employees’ concerted activity.” See, e.g., Trompler, Inc., 335
NLRB 478, 480 fn. 26 (2001) (citing NLRB v. Washington Aluminum
Co., 370 U.S. 9, 16 (1962), for the proposition that “the reasonableness
of workers’ decisions to engage in concerted activity is irrelevant to the
determination of whether a labor dispute exists or not”), enfd. 338 F.3d
747 (7th Cir. 2003).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 258
rules on their face do not reach or “chill” protected activ-
ity.
Furthermore, the evidence the General Counsel ad-
duced at the hearing does not establish that the Respon-
dent’s directors had a “direct impact” on the employees’
terms and conditions of employment. Dobbs House,
Inc., supra. First, with respect to Baez’ role in the intro-
duction of the lobby attendant position, the judge found
only that the hiring of such a new category of employees
arguably would have some ultimate impact on the unit
employees. This is far short of the required showing. At
most, the effect was indirect and speculative, i.e., if Baez
were elected, the Board would adopt the lobby attendant
program, and if lobby attendants were hired, there might
(or might not) be less funds available for existing em-
ployees. Obviously, all kinds of management decisions
made by a company’s board of directors could eventually
have some conceivable effect on rank-and-file employ-
ees. Under the case law, however, the impact must be
“direct,” not speculative, eventual, or trickle down. E.g.,
NLRB v. Oakes Machine Corp., 897 F.2d 84, 89–90 (2d
Cir. 1990) (conduct of high-level supervisor “directly
related to employee working conditions” where, inter
alia, he gave employees job assignments that prevented
them from qualifying for pay increases). Here, the re-
cord simply does not establish a direct link or nexus be-
tween the implementation of the lobby attendant program
and the unit employees’ working conditions.6 Indeed,
there is no evidence of any change in unit employees’
wages, benefits, or terms and conditions of employment
as a result of the eventual implementation of the lobby
attendant program. Further, even if the Baez proposal, if
implemented, would have a direct impact on terms and
conditions of employment, Pizzano did not have a Sec-
tion 7 right to seek her defeat as a candidate for board of
directors. Employees do not have a protected right to
seek changes in the composition of the top-level hierar-
chy that will run the company, even if one person is per-
ceived as less favorable to employee concerns than an-
other. In this regard, there is a distinction between the
top hierarchy and lower levels of supervision. As stated
in Lutheran Social Services of Minnesota, 250 NLRB 35,
41 (1980):

[T]here appears to be a tacit assumption that employee
efforts to affect the ultimate direction and managerial
policies of the business are beyond the scope of [the
mutual aid and protection] clause. This distinction
seems to be implicit in the line of cases which holds
that protests against the appointment or termination of

6 The dissent’s claim that such a link exists is just that, a naked
claim, unsupported by record evidence.
“low-level” supervisors may be protected when directly
related to employees’ conditions of employment [cita-
tions omitted] while similar activity with regard to “top
management” of the employer is not safeguarded. [Ci-
tations omitted.]

Thus, the activities of Pizzano, aimed at defeating can-
didate Baez for board of directors, were not protected,
and the Rule as applied to him was not unlawful.7
Second, with respect to the termination of Pizzano, we
agree with the judge that the evidence strongly suggests
that Baez played a significant role. However, the judge
also correctly recognized that “this single instance of a
lone director exercising undue influence over the Re-
spondent’s managers is not enough to establish that the
rule, on its face [emphasis added], would reasonably tend
to chill employees in the exercise of Section 7 rights.”
(Emphasis in original.)
It is axiomatic that Board findings must be based on
evidence in the record considered as a whole. Thus, the
Board must fairly consider and weigh all the record evi-
dence. Here, the overwhelming record evidence demon-
strates that the Respondent’s board of directors plays no
role in the day-to-day operations of the organization. As
discussed above, state regulations, the Respondent’s by-
laws, and its management contract with Marion Scott all
establish that it is the actions of Marion Scott, not the
Respondent, that directly affect unit employees’ wages,
hours, or terms and conditions of employment. It is
Marion Scott that is responsible for hiring and firing,
setting employment policies, and negotiating and admin-
istering numerous collective-bargaining agreements.
Concededly, the Pizzano termination shows that a direc-
tor can, under exceptional circumstances, influence the
7 NLRB v. Oakes Machine Corp., 897 F.2d 84 (2d Cir. 1990), cited
by our dissenting colleague, is distinguishable. The question there was
whether an employee’s letter complaining of the company president’s
use of employees to work on his personal projects (e.g., repairing the
president’s own airplane) was protected, concerted activity. Recogniz-
ing the rule that “employees customarily have no interest in the identity
of high level management,” the court found a narrow exception based
on “the exceptional facts of this case” in which the company president
did have a direct contact with employees, and his activities paralleled
those of a low level supervisor at least to the extent that he made some
job assignments—those in which he removed employees from pro-
jects which were potentially profitable and reassigned them to unprof-
itablepersonal projects. Where, as here, a high level supervisor di-
rectly affects working conditions by tying salary increases to company
profitability and then preventing employees from working on profit-
able company projects, he is vulnerable to concerted employee action
that seeks to improve working conditions.
None of these “exceptional facts” is present here. In addition, the em-
ployee action here was aimed at preventing a person from holding a
managerial position, not at how a manager would exercise managerial
authority in regard to working conditions.

CO-OP CITY 259
decision, by Marion Scott, to discharge a unit employee.
But the evidence concerning this matter, limited as it is
to a single discharge influenced by a “lone director,” is
simply insufficient to outweigh all the other record evi-
dence supporting the conclusion that the Respondent’s
directors do not have a direct impact on the employees’
terms and conditions of employment.
Finally, the Respondent has not by other actions led
employees reasonably to believe that the rules prohibit
Section 7 activity. Thus, there is no evidence that the
Respondent promulgated the rules in response to union
or protected concerted activity. In addition, the Respon-
dent has not enforced the rule against employees for en-
gaging in Section 7 activity. In this connection, we spe-
cifically adopt the judge’s finding that Pizzano was not
engaged in protected activity when he prepared and dis-
tributed his leaflet.
4. Response to dissent
The dissent’s argument that the Respondent’s rule is
overbroad and would tend to chill the exercise of Section
7 rights is largely premised on the dissent’s assertion that
the Respondent’s directors have a direct impact on em-
ployee terms and conditions of employment. For the
reasons set forth above, the dissent’s premise lacks evi-
dentiary support.
The dissent also argues that the Respondent’s rule fails
to clearly define the area of permissible conduct. Again,
we must disagree. The 1999 and 2000 versions of the
rule are limited in scope and impact to employee partici-
pation in the Respondent’s election process, a matter
outside the scope of Section 7. For a limited time period,
employees are directed not to engage in any activity ex-
pected to benefit a particular candidate or group of can-
didates. Employees would not reasonably construe the
rule as prohibiting them from otherwise addressing mat-
ters affecting their wages, hours, or working conditions.
Although not necessary to our holding, we note that the
2000 version expressly affirms “employees’ right to en-
gage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection or
their right to refrain from any or all such activities.” We
find no ambiguity in either version, and we conclude that
employees would not reasonably read the rule as prohib-
iting Section 7 activity.
Finally, the dissent argues that employees would rea-
sonably interpret the rule as prohibiting Section 7 con-
duct because the Respondent applied the rule to Piz-
zano’s distribution of his leaflet. This argument is
flawed as well because, as stated above, Pizzano was not
engaged in protected activity when he prepared and dis-
tributed the leaflet, inasmuch as the leaflet was unques-
tionably directed at effecting a change in the composition
of the Respondent’s board of directors. Further, employ-
ees would not reasonably perceive the leaflet as Section 7
activity because it was clear from the face of the leaflet
that Pizzano was speaking in his capacity as a share-
holder/resident (or cooperator), not in his capacity as an
employee. In this regard, the dissent misses the point in
arguing that Pizzano would have identified himself as an
employee but for the Respondent’s instructions that he
not do so. Even if Pizzano had identified himself as an
employee, his leaflet would still not be protected because
it was specifically directed at preventing the election of a
director. The failure of the leaflet to refer to Pizzano’s
employee status is highly significant for an entirely dif-
ferent reason: As the judge recognized, an “objective
reader would see the leaflet for what it was, the opinions
of a cooperator on a matter of concern to cooperators.”
Under these circumstances, that same “objective reader”
would not reasonably conclude from the application of
the rule to leafleting activity by a cooperator concerning
a board of directors election that the rule applied as well
to Section 7 activity by an employee.8
5. Conclusion
For all the above reasons, we conclude that the Re-
spondent’s rule prohibiting employee participation in
board of director elections, as it existed in 1999 and as
modified in 2000, does not unlawfully interfere with,
restrain, or coerce employees in the exercise of any rights
protected by Section 7 of the Act.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

MEMBER WALSH, dissenting.
The Respondent violated Section 8(a)(1) of the Act by
maintaining an overbroad rule prohibiting employees
from participating in any way in the election of the Re-
spondent’s board of directors. The rule is clearly di-
rected at protected activity, and subsequent events make
it crystal clear that employees would interpret it as such
and would be chilled from engaging in such activity.
Accordingly, I must dissent from the majority’s dismissal
of this complaint allegation.

8 The dissent also emphasizes the unfairness of the Respondent’s de-
cision to terminate Pizzano for conduct that the judge found did not
breach its rule. As the judge stated in fn. 8 of his decision, however, it
is possible that the Respondent’s termination of Pizzano’s employment
violated his rights as a shareholder/resident, or violated New York State
law. In any event, such issues are beyond the scope of this proceeding.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 260
Discussion
Despite my disagreement with the result my colleagues
reach, I agree with several aspects of their opinion. First,
I agree that there is no material distinction between the
two versions of the Respondent’s rule. Both the 1999
and the 2000 versions broadly prohibit nonresident em-
ployees from participating in the election process in any
way, shape, or form. As discussed below, the breadth of
the prohibition was reinforced in instructions employees
received from their supervisors not to participate in the
1999 election and not to express any opinions regarding
the candidates or the issues.
Second, as the majority opinion recognizes, the rele-
vant legal principles are set forth in Lafayette Park Hotel,
326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir.
1999):

In determining whether the mere maintenance of rules
such as those at issue here violates Section 8(a)(1), the
appropriate inquiry is whether the rules would reasona-
bly tend to chill employees in the exercise of their Sec-
tion 7 rights. Where the rules are likely to have a chill-
ing effect on Section 7 rights, the Board may conclude
that their maintenance is an unfair labor practice, even
absent evidence of enforcement. [Footnote and cita-
tions omitted.]

Finally, I agree with my colleagues that, in applying
the Lafayette Park test, the Board considers whether em-
ployees would reasonably interpret a particular rule as
prohibiting Section 7 conduct. The Board also considers
whether there was any evidence that the employer had
engaged in conduct that would lead employees reasona-
bly to believe that the rule, in fact, prohibited Section 7
activity, such as enforcing the rule against employees
who engaged in protected activity. Id. at 825–828.
Here, as discussed below, the General Counsel ad-
duced evidence showing that employees reasonably in-
terpreted the Respondent’s rule as prohibiting Section 7
activity. In addition, the General Counsel adduced evi-
dence that the Respondent, in fact, enforced the rule
against an employee engaged in protected concerted ac-
tivity. Therefore, under the Lafayette Park framework, a
finding is warranted that the Respondent violated Section
8(a)(1) by maintaining the rule.
1. The lobby attendant program
Joseph Pizzano, a resident shareholder since 1984, had
been employed by Respondent as a public safety officer
since 1982 until his termination in November 1999. Piz-
zano served as the Union’s president in 1999.
Also in 1999, Iris Baez announced her candidacy for
the board of directors and championed as the centerpiece
of her campaign a proposal to create a lobby attendant
position. Pizzano and his fellow unit employees feared
that the implementation of the proposal would adversely
affect the public safety department because the money to
pay lobby attendants would have to come from the de-
partment’s budget. The union leadership and unit em-
ployees were concerned that the diversion of limited
funds to pay for the new employees would undermine the
role of public safety officers and could lead to downsiz-
ing. The controversy over the lobby attendant program
and Baez’ views on the matter were well documented in
Respondent’s official publication, The Co-op City Times.
Pizzano and the other public safety department em-
ployees regularly received verbal instructions from their
supervisors not to participate in the 1999 board of direc-
tors election and not to express any opinions regarding
the candidates or issues. In addition, on March 18, 1999,
then-General Manager Amit Sikdar sent a signed memo
to all staff reminding employees of the prohibition on
employees’ use of their positions to influence the out-
come of the election. The memo included a reprint of the
1999 rule. At a March 16, 1999 meeting of the Union’s
executive board, the Union decided that it could do noth-
ing to express its concerns about the election and the
lobby attendant program because of the Respondent’s
rule.
It is well established that an employee protest over the
selection of a manager is protected if the identity or ac-
tions of the manager in question has a “direct impact” on
the employees’ terms and conditions of employment.1
Here, the employees’ and the Union’s concern that the
lobby attendant program that Baez advocated would have
such an impact is supported by the judge’s own findings:

Such a program involved the hiring of a new category
of employees whose unit placement could affect exist-
ing employees. Money budgeted to pay the wages and
benefits of the new employees could reduce funds
available to compensate existing employees. Duties
assigned to the lobby attendants could reduce the role
of the existing unit employees and might even call into
question the necessity of maintaining the same size se-
curity force as previously existed. Under these circum-

1 Midland Hilton & Towers, 324 NLRB 1141, 1141 (1997); Cater-
pillar, Inc., 321 NLRB 1178, 1179 (1996).
The fact that the manager may occupy a high level position does not
“insulate him from the concerted action taken.” NLRB v. Oakes Ma-
chine Corp., 897 F.2d 84, 90 (2d Cir. 1990). “Although employees
customarily have no interest in the identity of high level management,
that is because those supervisors generally have no direct effect on
conditions of employment . . . . Where, as here, a high level supervi-
sor directly affects working conditions . . . he is vulnerable to con-
certed employee action that seeks to improve working conditions.” Id.

CO-OP CITY 261
stances, employees would generally have a right under
Section 7 to express their views regarding this issue.
[Emphasis added.]

The Respondent’s employees did not lose that Section
7 right to express their views on the lobby attendant pro-
gram simply because the issue surfaced in the context of
an election for the Respondent’s board of directors. On
the contrary, if a candidate chooses to make the center-
piece of her campaign a proposal vitally affecting the job
interests of rank-and-file employees, then the Respon-
dent cannot prohibit the affected employees from exer-
cising their statutory right to oppose that proposal and
the candidate supporting it.2 In other words, as the Gen-
eral Counsel correctly recognizes in his brief, “the im-
plementation of the lobby attendant program and Re-
spondent’s 1999 board of directors’ election were inex-
tricably linked together.”
The judge concluded that “the Respondent’s election
rule, on its face, does not prohibit the employees from
expressing their views [on the lobby attendant program]
in an appropriate manner,” but only prohibited “employ-
ees engaging in activities designed to effect the outcome
of the election of the Respondent’s directors.” The ma-
jority adopts the judge’s narrow construction of the rule.
There is a major flaw in this approach. The rule does
not define or even signal to employees what “an appro-
priate manner” for expressing their views might be.
Thus, the Respondent’s rule here is overly broad because
it “fail[s] to define the area of permissible conduct in a
manner clear to employees and thus cause[s] employees
to refrain from engaging in protected activity.” Lafayette
Park, supra, 326 NLRB at 828 (quoting American Cast
Iron Pipe Co. v. NLRB, 600 F.2d 132, 137 (8th Cir.
1979)).
Because the record shows that the Respondent’s rule is
overbroad and reasonably caused employees to refrain
from exercising their Section 7 right to oppose the lobby
attendant program and Baez’ candidacy, a finding of a
violation is warranted under the Lafayette Park test.
2. The discharge of Joseph Pizzano
In order to comply with the Respondent’s rule, and af-
ter discussing the matter with the Union, Pizzano decided
to produce and distribute a flyer opposing Baez’ candi-
dacy solely in his capacity as a resident without reference
to his employment or union affiliation. Before doing so,
Pizzano met with Michael Munns, an attorney in the Re-

2 Contrary to the majority’s contention, there was nothing specula-
tive or remote about the threat the lobby attendant program posed to the
public safety officers represented by the Union. Employees need not
wait until layoffs occur before engaging in concerted activities for their
mutual aid and protection.
spondent’s General Counsel’s office, to discuss his plans.
Munns told Pizzano that there was nothing the Respon-
dent could do to stop him from distributing the flyer as
long as he complied with the rule and made no reference
to his employee or union status.
After his meeting with Munns, Pizzano prepared a
two-page flyer entitled, “An Unsolicited Opinion From
Alcott Place.”3 The flyer was critical of Baez on several
issues, including the lobby attendant program. Pizzano
placed his name and address on the flyer, but made no
mention of his employment or union status. Before dis-
tributing the flyer, Pizzano met again with Munns to clar-
ify the proper manner of distribution. Following Munns’
instructions, Pizzano distributed about 2000 flyers in late
April 1999.
On or about May 1, 1999, Baez distributed her own
flyer in response to Pizzano’s. In her flyer, Baez identi-
fied Pizzano as being an employee of the public safety
department and president of the Union. Baez chastised
Pizzano for being “dishonest” by not disclosing his com-
plete identity.
Despite Pizzano’s opposition, Baez was elected to the
board and then was selected by her fellow directors to be
the Respondent’s president. Approximately 6 months
later, Pizzano was terminated under the Respondent’s
rule for his conduct in producing and distributing the
flyer. As the majority frankly acknowledges, the judge
found that “Baez played a significant role in the Respon-
dent’s decision to terminate Pizzano” and that the retalia-
tory nature of the discharge was “transparent.” The
lobby attendant program that Baez advocated was ap-
proved in 2000 and implemented in 2001.
Although, as the majority emphasizes, the legality of
Pizzano’s discharge is not before us, the evidence that
the General Counsel introduced on this matter is highly
significant. As the judge (and my colleagues) correctly
recognize, under the Lafayette Park test, “the evidence
regarding Pizzano’s termination [is] relevant to [the]
determination whether employees could reasonably be-
lieve that the rule prohibited Section 7 activity.” The
judge (and my colleagues) go astray, however, in con-
cluding (1) that Pizzano was not, in fact, engaged in pro-
tected concerted activity when he prepared and distrib-
uted the leaflet, and (2) that, therefore, employees could
not reasonably believe that the rule reaches such activity.
Pizzano’s preparation and distribution of the leaflet
represented concerted activity because it was undertaken
after consultation with other union members. Pizzano’s
leaflet was protected as it addressed Baez’ support for the
3 Alcott Place was the building where Pizzano lived.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 262
lobby attendant program and the negative impact such a
program would have on unit employees.
The judge found, and my colleagues agree, that be-
cause Pizzano’s leaflet went beyond the lobby attendant
program and addressed other concerns that had no impact
on employees, he was not engaged in protected activity
either when he prepared the leaflet or when he distributed
it. I disagree. All of Pizzano’s comments were made
within the course of a labor dispute, which is defined in
Section 2(9) of the Act as “any controversy concerning
terms, tenure or conditions of employment.” Thus, Piz-
zano’s remarks in his leaflet on topics other than the
lobby attendant program were still protected under Sec-
tion 7 of the Act because they were made within the con-
text of a continuing labor dispute, i.e., the Union’s oppo-
sition to the lobby attendant program. See, e.g., Emarco,
Inc., 284 NLRB 832, 834 (1987) (employees’ remarks to
general contractor that employer subcontractor never
paid its bills, was “no damn good,” and could not finish
the job held protected because they were related to the
ongoing labor dispute).
The fact that Pizzano omitted his employee status in
order to comply with the Respondent’s rule hardly serves
as a basis for stripping Pizzano of the protections of the
Act. On the contrary, Pizzano is to be commended for
being, in the words of the judge, “scrupulous” in his ef-
forts to comply with the Respondent’s rule. The Re-
spondent is in no position to contend that Pizzano’s flyer
lacked statutory protection on this ground when it was
the Respondent itself that instructed Pizzano not to refer
to his position as an employee or union officer.
In sum, the overbreadth of the Respondent’s rule is
confirmed by its own actions of enforcing it against an
employee engaged in protected activity. Surely, when
Pizzano’s fellow workers witnessed the fate that befell
him, they would tend to refrain from engaging in any
protected activities of their own.
CONCLUSION
For all the above reasons, the Respondent has violated
Section 8(a)(1) of the Act, as alleged, by maintaining an
overbroad rule that reasonably tends to interfere with,
restrain, and coerce employees in the exercise of their
Section 7 rights.

Vonda L. Marshall, Esq., for the General Counsel.
Richard D. Landau, Esq. and Michael B. Hekle, Esq. (Jackson,
Lewis, Schnitzler, & Krupman), for the Respondent.
Anthony Lumia, Esq. (Davis & Hersh), for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in New York, New York, on May 1, 2002. Co-
op City Police Benevolent Association (the Union) filed the
charge on November 29, 1999, and amended it on May 18,
2000. The complaint issued November 29, 2001, alleging that
the Respondent, Riverbay Corporation d/b/a Co-op City, vio-
lated Section 8(a)(1) of the Act by maintaining a rule that re-
stricted employees from participating in the election of mem-
bers of the Respondent’s board of directors. On December 14,
2001, the Respondent filed an answer to the complaint in which
it admitted maintaining the disputed rule but denied that the
rule violated the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a limited profit housing company organ-
ized under the laws of New York State that owns, maintains,
and operates the middle income cooperative housing develop-
ment located in the Bronx, New York, known as Co-op City.
The Respondent annually derives gross revenues in excess of
$500,000 and purchases and receives at its Bronx, New York
facility materials and supplies valued in excess of $5000 di-
rectly from points located outside the State of New York. The
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Co-op City consists of 15,372 apartment units in 35 high-rise
buildings and eight clusters of three-story townhouse buildings,
three shopping centers, and eight parking garages on a 330-acre
site. The Respondent is owned by shareholders, or “coopera-
tors”, who own and reside in the apartment units. It is governed
by a 15-member board of directors who hire a general manager
to manage the complex on a day-to-day basis. At all times ma-
terial to this case, the general manager was Marion Scott Real
Estate, Inc. (Marion Scott). Kenneth Silverman has been the
Respondent’s executive general manager since October 1,
1999, and serves essentially as the Respondent’s chief opera-
tions officer. He is also an employee of Marion Scott.
The Respondent employs close to 1,000 employees, ap-
proximately 85 percent of whom are represented by one of
eight unions. Each union is party to a collective-bargaining
agreement with the Respondent setting forth the wages, hours,
and terms and conditions of employment of the employees in
the respective bargaining unit it represents. Marion Scott nego-
tiates these agreements on behalf of the Respondent and is re-
sponsible for administering the contracts on a daily basis. The
Union in this case represents the armed and unarmed security

CO-OP CITY 263
officers and the lobby attendants employed in the department of
public safety.1 There were approximately 95–110 employees in
the unit in calendar years 1999–2000. The department of public
safety is headed by the chief of security. The unit employees
are further supervised by lieutenants and sergeants who are
excluded from the unit.
As noted above, the Respondent is governed by a 15-
member board of directors. The directors in turn elect officers,
including a president. One-third of the board is elected each
year by the shareholders/cooperators to serve 3-year terms.
Elections are conducted by secret ballot. Only resident share-
holders may vote for and serve as directors. The election is held
in May and is preceded by a campaign usually lasting 1 to 2
months.
There is no dispute that the Respondent has maintained a
rule regarding employee participation in board of director elec-
tions at least since early 1999. The rule that existed prior to the
Spring of 2000 was as follows:

Employees living in Co-op City are encouraged to individu-
ally exercise their rights as residents of the community during
the Board of Directors election. They shall refrain, however,
from engaging in any activity, such as organizing other em-
ployees, that might be construed as an attempt to use their po-
sition for the purpose of influencing the outcome of the elec-
tion. All employee groups and organizations are prohibited
from participating either directly or indirectly in the electoral
process. They may not raise funds, give donations, encourage
their members to give donations, issue endorsements, distrib-
ute campaign material, or engage in any other activity that
may reasonably be expected to benefit a particular candidate
or group of candidates. Non-resident employees may not par-
ticipate in the electoral process in any manner except where
otherwise specified as part of their normal job duties. Candi-
dates who encourage, accept, or knowingly benefit from such
participation are subject to disqualification by the Committee.

It is also undisputed that the Respondent revoked this rule in
the spring of 2000 and promulgated the following rule, which
was still in effect at the time of the hearing:

The election of the Board of Directors is a right of residents in
Co-op City. Employees living in Co-op City are encouraged
to exercise their rights as residents of the community during
the Board of Directors election within the scope of this policy.
All Riverbay employees are reminded that as employees they
have a duty of loyalty to Riverbay and should not engage in
any activity which raises the appearance of impropriety. Par-
ticipation in the electoral process must not interfere with em-
ployees’ work duties. All employees shall refrain from engag-
ing in any activity which might be construed as an attempt to
abuse their positions as employees for the purpose of influ-
encing the outcome of the election. Examples of acts that may
be deemed to be an abuse of employee position include: solic-
iting donations for particular candidate(s), distributing cam-
paign material for or against particular candidate(s), or engag-
ing in other activity which may be reasonably construed as an
abuse of position.

1 The lobby attendants were added to the unit in March 2001.

Nonresident employees and employee groups and organiza-
tions are prohibited from participation in the electoral process.

Candidates who encourage, accept, or knowingly benefit from
such prohibited participation are subject to disqualification by
the Committee.

This policy does not effect employees’ right to engage in
other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection or their right to re-
frain from any or all such activities.

Joseph Pizzano, a resident shareholder and former employee
of the Respondent, testified regarding his participation in the
1999 board of directors election process and the application of
the above rule to him. Pizzano, a resident since 1984, was em-
ployed by the Respondent as a public safety officer from March
1982 until November 6, 1999. He was a member of the Union
and served as its president in 1999. Iris Baez, who is now the
president of the Respondent’s board of directors, was one of the
candidates in the 1999 election. Pizzano testified that he was
concerned about her candidacy because Baez had championed
the proposal to create the lobby attendant position.2 According
to Pizzano, he and other unit employees were concerned that
implementation of this proposal would adversely affect the
public safety department because the money to pay the lobby
attendants would have to come out of the department’s budget.
The union leadership and unit employees feared that the diver-
sion of limited funds to pay for a cadre of new employees
would undermine the role of public safety officers and could
lead to downsizing. The controversy over the lobby attendant
program and Baez’ views on the matter were well documented
in the Co-op City Times, the Respondent’s official publication.3
Pizzano testified that he and other public safety department
employees regularly received verbal instructions from their
supervisors not to participate in the election and not to express
any opinions regarding the candidates or the issues in the 1999
election. In addition, a March 18, 1999 memo to all staff signed
by then-General Manager Amit Sikdar reminded employees of
the prohibition on employees’ use of their position to influence
the outcome of the election and reprinted the above-quoted
version of the rule that existed at that time. Pizzano testified
further that, at a March 16, 1999 meeting of the Union’s execu-
tive board, the Union decided that it could not do anything to
express its views on the election or the lobby attendant issue
because of these rules. According to Pizzano, he decided that
he would speak out as an individual cooperator by producing
and distributing a flyer opposing Baez’ candidacy.4 Before
doing so, Pizzano met with Michael Munns, an attorney in the
Respondent’s General Counsel’s office, to discuss his plans.
2 Lobby attendants are assigned stationary posts in the lobbies of the
Respondent’s high-rise buildings to monitor security and access to the
buildings. The public safety officers were assigned primarily to moving
posts, patrolling the entire sight.
3 Alberta Robinson, a public safety officer and former member of the
Union’s executive board corroborated Pizzano’s testimony regarding
the Union’s concerns about the lobby attendant program.
4 Robinson also corroborated Pizzano regarding these internal union
discussions.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 264
Pizzano testified that Munns told him there was nothing the
Respondent could do to stop him as long as Pizzano complied
with the rules by not making any reference to his position as an
employee or union officer. Munns also gave Pizzano a copy of
the Respondent’s bylaws.
After his meeting with Munns, Pizzano prepared a 2-page
flyer with the heading “An Unsolicited Opinion From Alcott
Place”5 that was sharply critical of Baez and her position on a
number of issues including the lobby attendant program. Piz-
zano signed the flyer with his name and address. The flyer con-
tains no mention of his position as an employee of the Respon-
dent, member of the Union or role as its president. Pizzano met
with Munns again in late April 1999, before distributing the
flyer to clarify the appropriate manner of distribution. Accord-
ing to Pizzano, Munns told him that he could distribute the
flyer from 8 a.m. to 10 p.m., that the flyers could be placed
under cooperators’ doors and that they should cause absolutely
no litter. Munns also told Pizzano that he could not wear his
Riverbay uniform or any clothing or outerwear identifying
himself as a union member while distributing the flyer. Follow-
ing these instructions, Pizzano distributed about 2000 flyers.
On or about May 1, 1999, Baez distributed flyers of her own in
response to Pizzano’s flyers. In Baez’ flyer, she identifies Piz-
zano as the president of the Union and a member of the Public
Safety department and castigates him for being “dishonest” by
not disclosing his identity. Despite Pizzano’s and the Union’s
opposition, Baez was elected to the board of directors and was
thereafter selected by the other directors to be the Respondent’s
president. On November 4, 1999, more than 6 months after the
election, Pizzano was terminated under the above-quoted rule
for his conduct in producing and distributing the flyer.6 The
lobby attendant program that Baez advocated was approved in
2000 and implemented in 2001. Baez was still the Respon-
dent’s president at the time of the hearing.
The General Counsel placed in evidence internal correspon-
dence and correspondence between the Respondent and its
former outside counsel showing that, after the election, Baez
was involved in initiating the Respondent’s review of Pizzano’s
conduct for possible discipline. Although outside counsel rec-
ommended, in June 1999, against taking any disciplinary ac-
tion, the Respondent sought additional advice from another law
firm 3 months later. The second firm apparently also recom-
mended a lesser form of discipline. However, internal corre-
spondence dated October 19, 1999, suggests that Baez pre-
ferred a stronger form of discipline. As previously noted, the
Respondent decided to terminate Pizzano, imposing the strong-
est form of discipline, in early November. Silverman, who
signed Pizzano’s termination letter about a month after com-
mencing his employment as the Respondent’s executive general
manager, acknowledged on cross-examination that it was Baez
who complained to him about Pizzano’s flyer and that he initi-
ated the “investigation” that led to Pizzano’s termination as a
result of Baez’ complaint. Silverman denied, however, that he

5 Alcott Place was the building where Pizzano lived.
6 Although the charge originally alleged Pizzano’s termination as a
violation of Sec. 8(a)(1) and (3) of the Act, the Union withdrew that
aspect of the charge prior to issuance of the complaint.
needed or sought approval from the board of directors before
making his decision to terminate Pizzano.
The Respondent offered the testimony of Silverman, as well
as the Respondent’s bylaws, its management contract with
Marion Scott, and copies of state regulations governing entities
like the Respondent to show that the Respondent’s board of
directors has no direct impact on unit employees’ terms and
conditions of employment. These documents establish that the
Respondent’s directors function much like the directors of any
other corporation, i.e., they set corporate policy, look out for
the interests of the shareholders, and delegate day-to-day man-
agement of the business to professionals hired for that purpose.
The regulations of the New York State Division of Housing and
Community Renewal, chapter IV, section 1725–3.3 specifically
codifies the State’s public policy against interference by mem-
bers of a co-op’s board “with the day-to-day management and
operation of project or with its employees.” The uncontradicted
testimony of Silverman, which is corroborated to a great extent
by the documents, demonstrates that Marion Scott has full re-
sponsibility for the hiring, discipline and termination of em-
ployees. According to Silverman, he makes the final decision
regarding the termination of employees. The Respondent’s
board has also delegated to Marion Scott the authority to nego-
tiate with the various labor organizations representing the Re-
spondent’s employees and to hear and adjust grievances filed
by those employees. Although Marion Scott is required to sub-
mit any collective-bargaining agreement to the board for ratifi-
cation, the board is not involved in the formulation of contract
proposals or the negotiation of those proposals. With respect to
grievances, the record shows that Silverman has final authority
to enter into agreements with employees and their unions to
settle complaints. According to Silverman, he is not required to
submit these settlements to the board for prior approval.
The sole issue in this case is whether the above-quoted rule,
as it existed in 1999 and/or as modified in 2000, unlawfully
interferes with, restrains, or coerces employees in the exercise
of any rights protected by Section 7 of the Act. The General
Counsel argues that employees have a statutory right to partici-
pate in elections for members of the Respondent’s board of
directors because decisions made by these directors, such as the
decision regarding the lobby attendant program, have an impact
on unit employees. Although counsel for the General Counsel
offered evidence regarding enforcement of the rule against
Pizzano, her theory of the case is that the rule is unlawful on its
face and that mere maintenance of the rule violates Section
8(a)(1). The Respondent argues that Section 7 does not give
employees the right to participate in the selection of individu-
als, like the Respondent’s directors here, who are at the peak of
an employer’s management hierarchy. The Respondent con-
tends that the rule, on its face, does not reach protected activity.
Many years ago, the Supreme Court recognized the tension
that exists between the right of employees to self-organization
and the right of employers to maintain order in the workplace
and the Board’s statutory role in accommodating these compet-
ing interests. Republic Aviation v. NLRB, 324 U.S. 793 (1945).
In determining whether employer rules of conduct adequately
accommodate or unlawfully infringe upon employees’ statutory
rights, the Board examines

CO-OP CITY 265

whether the rules would reasonably tend to chill employees in
the exercise of [those] rights. Where the rules are likely to
have a chilling effect on Section 7 rights, the Board may con-
clude that their maintenance is an unfair labor practice, even
absent evidence of enforcement.

Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203
F.3d 52 (D.C. Cir. 1999) and cases cited therein.(footnote omit-
ted.) In applying this test to the specific rules at issue in Lafay-
ette Park, the Board considered whether employees would rea-
sonably read or interpret a particular rule as prohibiting Section
7 conduct. The Board also considered whether there was any
evidence that the employer had engaged in conduct that would
lead employees reasonably to believe that the rule in fact pro-
hibited Section 7 activity, such as enforcing the rule against
employees who engaged in protected activity, or promulgating
the rule in response to protected activity. Id. at 825–828.7
The Respondent’s rule, on its face, addresses employee con-
duct in connection with the election of directors to the Respon-
dent’s governing board. The rule differentiates between em-
ployees who are residents/shareholders and those who are not.
Employees who are not residents and the Union itself, are sub-
ject to a total prohibition on participation in these elections. The
right of resident employees, as residents, to participate indi-
vidually in the election process is recognized. However, they
are prohibited from engaging in any activity, including con-
certed activity with other employees, that might be “construed
as an attempt to use their position [as an employee] for the
purpose of influencing the outcome of the election.” The new
rule adopted in 2000, while still limiting the right of resident
employees, contains additional language clarifying the types of
activities that would violate the rule. The new rule also contains
express language recognizing the right of employees to engage
in “other concerted activity for the purpose of collective bar-
gaining or other mutual aid or protection or . . . to refrain from
any or all such activities.” In order to determine whether this
rule would “reasonably tend to chill employees in the exercise
of their Section 7 rights,” it must first be determined what right,
if any, employees have under the Act to participate in the selec-
tion of the employer’s board of directors.
The “mutual aid or protection” clause of Section 7 of the Act
has been broadly construed to encompass concerted activity
that is directed at the selection and retention of certain supervi-
sory and managerial personnel where the activity concerns
actual conditions of employment and the means employed by
the employees is reasonable. Yesterday’s Children v. NLRB,
115 F.3d 36 (1st Cir. 1997). The identity of an individual in the
employer’s managerial hierarchy who has a direct impact on
the employees’ wages, hours, and working conditions, such as a

7 Although there is evidence of enforcement in the instant case, i.e.
Pizzano’s termination, it is unnecessary for me to decide whether the
Respondent’s application of the rule to Pizzano’s conduct during the
1999 election campaign was unlawful because the complaint does not
allege such a violation. The complaint alleges that the mere mainte-
nance of the rule was unlawful. I have, however, considered the evi-
dence regarding Pizzano’s termination as relevant to my determination
whether employees could reasonably believe that the rule prohibited
Sec. 7 activity. See Lafayette Park Hotel, supra.
supervisor with immediate authority over the employees, has
been found to be a legitimate topic of concerted activity under
Section 7. See, e.g., Atlantic-Pacific Construction Co. v. NLRB,
52 F.3d 260 (9th Cir. 1995); NLRB v. Oakes Machine Corp.,
897 F.2d 84 (2d Cir. 1990); Senior Citizens Coordinating
Council of Riverbay Community, 330 NLRB 1100, 1103
(2000); Dobbs Houses, 135 NLRB 885 (1962), enf. denied 325
F.2d 531 (5th Cir. 1963). The Board and the courts have his-
torically distinguished this type of protected activity from em-
ployee activity directed at affecting the ultimate direction and
managerial policies of the business, which lies outside the
scope of Section 7. Lutheran Social Services of Minnesota, 250
NLRB 35, 41 (1980); Retail Clerks Local 770, 208 NLRB 356
(1974). Which side of the line any particular employee activity
falls is a question of fact, based on the totality of circumstances.
NLRB v. Oakes Machine Corp., 897 F.2d supra at 89.
Under the Respondent’s bylaws and the applicable laws and
regulations of the State of New York, the Respondent’s board
of directors has no direct impact on unit employees’ wages,
hours, or terms and conditions of employment. At most, the
directors indirectly affect employees’ working conditions
through their hiring and oversight of the general manager,
Marion Scott. It is the actions of the general manager that di-
rectly impact the employees’ working conditions, e.g., through
the decisions it makes regarding hiring, discipline, and termina-
tion of employees; by negotiating with the Union regarding the
employees wages, benefits, and other working conditions and
by adjusting their grievances; and, through the department
heads and other supervisors it hires, assigning and directing
employees’ work on a day-to-day basis. The only evidence in
the record which might show the type of direct impact neces-
sary to give the employees a statutory right to a voice in the
selection of the Respondent’s board of directors is the board’s
consideration of the lobby attendant program and the involve-
ment of one director in Pizzano’s termination. These are the
two facts the General Counsel relies upon to prove her theory
of the case.
The decision to adopt a lobby attendant program arguably
would impact the unit employees. Such a program involved the
hiring of a new category of employees whose unit placement
could affect existing employees. Money budgeted to pay the
wages and benefits of the new employees could reduce funds
available to compensate existing employees. Duties assigned to
the lobby attendants could reduce the role of the existing unit
employees and might even call into question the necessity of
maintaining the same size security force as previously existed.
Under these circumstances, employees would generally have a
right under Section 7 to express their views regarding this issue.
However, the Respondent’s election rule, on its face, does not
prohibit the employees from expressing their views in an ap-
propriate manner. What the rule prohibits is employees engag-
ing in activities designed to effect the outcome of the election
of the Respondent’s directors. That is a different matter en-
tirely. Under the well-established interpretation of Section 7
noted above, employees do not have a right to designate those
individuals who set corporate policy and make the core entre-
preneurial decisions necessary to run the business. Retail
Clerks, supra. There is a distinction, which the Board and the

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 266
courts have recognized, between protesting an employer’s poli-
cies or business decisions and seeking a roll in making those
decisions. See, e.g., Harrah’s Lake Tahoe Resort Casino, 307
NLRB 182 (1992) (activity advocating an employee stock
ownership plan that would give employees 50 percent owner-
ship of the employer is not protected by Sec. 7 of the Act be-
cause it does not advance employees’ interests as employees
but rather advances employees’ interests as entrepreneurs,
owners, and managers).
One might argue, as the General Counsel does, that the Re-
spondent’s application of the rule to Pizzano’s distribution of
his preelection leaflet shows that the employer intended the rule
to cover protected activity, or that this application of the rule
would reasonably lead employees to believe that the rule pro-
hibited Section 7 activity. However, I find that Pizzano was not
engaging in protected concerted activity when he prepared and
distributed his leaflet. Although the leaflet addressed some of
the concerns of the Union and the employees regarding the
lobby attendant proposal, it also criticized the incumbent direc-
tors, and Baez and her slate of candidates, for decisions that had
little or no impact on employees. In addition, Pizzano framed
his leaflet as the “unsolicited opinion” of a resident who was
concerned about the directors’ stewardship of the cooperative’s
assets. Such concerns are outside the scope of Section 7. See
Harrah’s Lake Tahoe Resort Casino. Anyone reading Piz-
zano’s leaflet could not reasonably conclude that he was speak-
ing out as an employee. In fact, he was careful not to mention
his status as an employee. An objective reader would see the
leaflet for what it was, the opinions of a cooperator on a matter
of concern to cooperators. Thus, the application of the rule to
Pizzano, under the circumstances, does not establish that the
rule could reasonably be interpreted by employees as limiting
or prohibiting them from engaging in Section 7 activity.8
The evidence in the record strongly suggests that Baez
played a significant role in the Respondent’s decision to termi-
nate Pizzano. Despite the advice of two outside attorneys
against taking this action, Silverman admittedly terminated
Pizzano after receiving a complaint from Baez. The Respon-
dent’s own internal correspondence indicates that Baez pre-
ferred that such action be taken against Pizzano. The retaliatory
nature of Baez’ efforts to punish Pizzano for the leaflet are
transparent. Nevertheless, this single instance of a lone director
exercising undue influence over the Respondent’s managers is
not enough to establish that the rule, on its face [emphasis
added], would reasonably tend to chill employees in the exer-

8 It is possible that the Respondent’s termination of Pizzano’s em-
ployment violated his rights as a shareholder/cooperator, or violated
New York state law governing housing cooperatives like the Respon-
dent. Such issues are beyond the scope of this proceeding.
cise of Section 7 rights. As noted above, Pizzano was not en-
gaged in protected concerted activity when he communicated
with his fellow cooperators regarding the upcoming election.
Moreover, the rule, on its face, permitted Pizzano’s participa-
tion in the election as a resident. Because he was scrupulous in
avoiding any conduct that could be deemed use of his position
as a union officer and employee to influence the outcome of the
election, he did not in fact violate the rule. Under these circum-
stances, employees would not reasonably conclude that activity
protected by Section 7 of the Act was prohibited by the rule.
In sum, I find that the General Counsel has not met his bur-
den of proving that the Respondent’s rule regarding the partici-
pation of employees in the election of the Respondent’s board
of directors would reasonably tend to chill employees in the
exercise of their Section 7 rights. Lafayette Park Hotel, supra.
The rule, on its face, only prohibits employees from using their
position as employees to affect the outcome of the election.
Because employees do not have a right under Section 7 of the
Act to select an employer’s directors, the rule does not reach
protected activity. No reasonable construction of the rule, either
in its 1999 form, or as modified in 2000, would limit employees
in their right to concertedly express their opinions as employ-
ees, in an appropriate manner, on matters directly related to
their working conditions. Accordingly, I shall recommend that
the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent did not interfere with, restrain, or coerce
its employees, in violation of Section 8(a)(1) of the Act, by
maintaining a rule that prohibited employees from participating
in the election of members of the Respondent’s board of direc-
tors.
2. The Respondent did not interfere with, restrain or coerce
its employees, in violation of Section 8(a)(1) of the Act, by
modifying the rule described above in spring 2000.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The complaint is dismissed.
9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.