Marcus Management, Inc , And Roseville Towne Houses Cooperative, Inc

National Labor Relations Board - Board Decisions

Jan 10, 1989

292 N.L.R.B. 251 (N.L.R.B. 1989)

MARCUS MANAGEMENT 251
Marcus Management, Inc , and Roseville Towne
Houses Cooperative , Inc and Paul Glenn
Forbes Cases 7-CA-26948(l) and 7-CA-
26948(2)
January 10, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
HIGGINS
On July 8, 1988, Administrative Law Judge
Walter H Maloney issued the attached decision
The General Counsel filed limited exceptions and a
supporting brief, and the Respondents answered
The National Labor Relations Board has delegat-
ed 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, but not to adopt the recommended
Order 1
ORDER
The National Labor Relations Board orders that
the Respondents, Marcus Management, Inc, South-
field, Michigan, and Roseville Towne Houses Co-
operative, Inc, Roseville, Michigan, their officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Issuing new and more onerous work rules or
restricting or reducing compensation of employees
in reprisal for their union activities
(b) Discouraging membership in and activities on
behalf of the International Union, United Automo
bile, Aerospace and Agricultural Implement Work-
ers of America (UAW), or any other labor organi-
zation, by discharging employees or otherwise dis-
criminating against them in their hire or tenure
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Rescind and no longer enforce work rules un
lawfully implemented on February 17 and March
5, 1987
(b) Offer Paul G Forbes immediate and full rein
statement to his former job or, if that job no longer
exists , to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or
privileges previously enjoyed, and make him whole
for any loss of earnings and other benefits suffered
as a result of the discrimination found herein, in the
manner set forth in the remedy section of the
judge's decision
(c) Remove from their files any reference to the
unlawful discharge and notify the employee in
writing that this has been done and that the dis
charge will not be used against him in any way
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy
ing, 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
(e) Post at Respondent Roseville Towne Houses
Cooperative, Inc 's Roseville, Michigan place of
business copies of the attached notice marked "Ap-
pendix "2 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being
signed by the Respondents' authorized representa
tive, shall be posted by the Respondents immedi
ately upon receipt and maintained for 60 consecu
tive days in conspicuous places including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply
2 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 Nation
al 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
APPENDIX
i Member Johansen notes that Roseville is a joint employer with
Marcus Management
The General Counsel has excepted only to the judge s failure to order
the Respondents to rescind and no longer enforce certain work rules that
the judge found were issued in violation of Sec 8(a)(1) We find ment in
the General Counsel s exception and shall modify the judge s recom
mended Order language accordingly In addition we shall modify the
,judges reinstatement language to conform to that traditionally used by
the Board and shall order the Respondents to remove from their files any
reference to the Charging Party s unlawful discharge Finally we shall
order the Respondents to preserve records necessary for the computation
of backpay In light of the extent of our revisions in the recommended
Order we shall substitute an entirely new Order and notice
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
292 NLRB No 23
252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT issue new and more onerous work
rules or restrict or reduce the compensation of em-
ployees in order to take reprisal against them for
engaging in union activities
WE WILL NOT discharge employees or otherwise
discriminate against them in their hire or tenure for
the purpose of discouraging membership in the
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW), or any other labor organization
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec
tion 7 of the National Labor Relations Act Those
rights include the right to form, join, or assist labor
organizations , to bargain collectively through rep-
resentatives of their own choosing, and to engage
in other concerted activities for their mutual aid
and protection
WE WILL rescind and no longer enforce work
rules unlawfully implemented on February 17 and
March 5, 1987
WE WILL offer Paul G Forbes immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights or privileges previously enjoyed, and WE
WILL make him whole for any loss of earnings and
other benefits that he may have suffered by reason
of the discrimination practiced against him, with in-
terest
WE WILL notify him that we have removed from
our files any reference to his discharge and that the
discharge will not be used against him in any way
ROSEVILLE TOWNE HOUSES COOPER
ATIVE, INC
MARCUS MANAGEMENT, INC
Ellen J Dannin Esq for the General Counsel
Harvey I Wax and Michael Kimber Esqs of Detroit
Michigan for the Respondents
Russell J Thomas Jr Esq of Detroit Michigan for the
Charging Party
DECISION
FINDINGS OF FACT
STATEMENT OF THE CASE
WALTER H MALONEY Administrative Law Judge
This case came on for hearing before me at Detroit
Michigan on an unfair labor practice complaint,' issued
1 The principal docket entries in these cases are as follows
Charges filed in Cases 7 -CA-26948(l) and (2) by Paul G Forbes an
individual against Respondent Marcus Management Inc on May 7
1987 complaint issued against Respondents by the Regional Director for
Region 7 on June 29 1987 Respondents answer was filed on September
by the Regional Director for Region 7 which alleges
that the Respondents Marcus Management , Inc (Marcus
Management) and Roseville Towne Houses Cooperative
Inc (Roseville),2 violated Section 8(a)(1) and (3) of the
Act More particularly the complaint alleges that the
Respondents altered the manner in which overtime was
computed and changed work rules in order to harass em
ployees in reprisal for their union sympathies and activi
ties and discriminatorily discharged Charging Party Paul
G Forbes The Respondents deny allegations that they
committed independent violations of Section 8(a)(1) of
the Act and assert that Forbes was fired because he
failed and refused to remove snow from the Roseville
project on March 14, 1988 The Respondents also deny
that they were joint employers of Forbes Based on these
contentions the issues were joined 3
I THE UNFAIR LABOR PRACTICES ALLEGED
Respondent Roseville is a nonprofit housing coopera
tive It operates a housing project consisting of 155 co
operative apartment units located in a suburb of Detroit
Roseville is controlled by a five member board of direc
tors that is periodically elected by the residents of the
cooperative who are not strictly speaking, tenants but
holders of cooperative shares Because the financing of
this development was guaranteed by the U S Depart
ment of Housing and Urban Development (HUD), it
must be operated under the terms of section 221(d)(3) of
the National Housing Act This act sets limits on the
income of residents who must vacate the premises and
sell their cooperative shares if their incomes rise above
stated levels An agreement between Roseville and HUD
requires among other things, that Roseville employ an
approved management agent to supervise the operation
of the facility in accordance with an approved manage
ment plan Respondent Marcus Management has been
16 1987 amended complaint was issued by the Regional Director for
Region 7 against Respondents on November 13 1987 Respondents
answer to amended complaint was filed on November 25 1987 hearing
was held in Detroit Michigan on November 23-25 1988 briefs were
filed with me by the General Counsel the Charging Party and the Re
spondents on May 11 1988
2 The Respondents admit and I find that Respondent Marcus Manage
ment is a Michigan corporation which maintains its principal place of
business in Southfield Michigan where it is engaged in providing profes
sional management services to residential cooperatives including Re
spondent Rosedale During the calendar year ending December 31 1986
Respondent Marcus Management in the course and conduct of this bus]
ness derived gross revenues in excess of $50 000 and purchased goods
and materials valued in excess of $5000 directly from enterprises located
in the State of Michigan which in turn purchased the goods and mater[
als directly from points and places located outside the State of Michigan
Accordingly Respondent Marcus is an employer engaged in commerce
within the meaning of Sec 2(2) (6) and (7) of the Act Respondent
Roseville is a nonprofit housing cooperative located in Roseville Michi
gan During the same calendar year Respondent Roseville in the course
and conduct of its business operations derived gross revenues in excess
of $50 000 and purchased goods and materials valued in excess of $5000
directly from enterprises located in the State of Michigan which in turn
purchased the goods directly from points and places located outside the
State of Michigan Accordingly Respondent Roseville is an employer en
gaged in commerce within the meaning of Sec 2(2) (6) and (7) of the
Act The International Union United Automobile Aerospace and Agri
cultural Implement Workers of America (UAW) is a labor organization
within the meaning of Sec 2(5) of the Act
3 Certain errors in the transcript are noted and corrected
MARCUS MANAGEMENT 253
employed by Roseville for this purpose since 1977
Marcus Management is a corporation owned by its press
dent, Alphonse Marcus It employs Estelle Marcus the
wife of Alphonse Marcus and their son Ralph, all of
whom are officers as well as employees Marcus Man
agement is a specialist in the management of HUD fi
nanced cooperatives and manages approximately 10 such
developments in the Detroit metropolitan area Among
its many duties under its HUD approved agreement with
Roseville are the collection of rents, preparation of fi
nancial statements, budgets, and tax forms, enforcement
of occupancy agreements, physical maintenance of prem
ises, and the day to day direction of maintenance and
office employees, who are paid by Marcus Management
from an account that it uses for the transaction of all
business on behalf of Roseville One of the three Mar
cuses visits the premises at least once a week, normally
on Wednesday, to check on the operation, and one of
them is usually in attendance at monthly and special
meetings of the Roseville board of directors
Helene Ottinger, who occupies a clerical position as
resale clerk is normally present during business hours at
the Roseville office The only other employees on the
premises during the day are the maintenance employees
who, at the time of the events at issue in this case, were
Charging Party Paul G Forbes and assistant mainte
nance man Frank Arndt Forbes held the title of mainte
nance supervisor, though there is no contention in this
case that he was a supervisor within the meaning of Sec
tion 2(11) of the Act One of the requirements of his job
was that he be a resident of the cooperative Arndt lived
about 2 miles from the Roseville cooperative and was
normally present only during regular working hours al
though, under some circumstances, he could be placed
on call and required to return to the premises for emer
gencies such as snow removal
Alphonse Marcus testified without contradiction that
Marcus Management hired employees in conjunction
with the Roseville board of directors and often made
recommendations to the board concerning job applicants
He further testified that Marcus Management could not
discharge an employee without the approval of the Rose
ville Board Routine day to day instructions to mainte
nance employees were given by Marcus Management
principally by Ralph Marcus, who among the Marcus
Management principals visited the premises most fre
quently The question of who else was empowered to
give instructions to whom is one of the subsidiary prob
lems in this case
Paul Forbes was interviewed jointly by Alphonse
Marcus and the Roseville board at a closed meeting on
November 25, 1985 for the position as maintenance su
pervisor After some discussion over salary, he was hired
at $8 an hour, with the understanding that he would re
ceive periodic increments of $1 an hour until his hourly
rate reached $10 Part of the compensation also included
a unit at the Cooperative, which he was required to
occupy Forbes had to sell his house before he moved
into the cooperative and was given time to do so While
a resident of the cooperative, his utilities other than tele
phone bills, were to be paid by Roseville as part of his
compensation During the interim before he moved in, he
was given a certain allowance in lieu of utilities
During negotiations over wages Forbes objected to
Roseville s initial offer of $6 an hour He argued that he
was an experienced maintenance man and was entitled to
more because he could spare Roseville considerable ex
pense in hiring outside contractors This factor doubtless
influenced the cooperative in making him a higher offer
Forbes insists that he was also promised a percentage of
the amount of the money he saved the Cooperative by
not engaging outside help Both Marcus and the board
have no recollection of such an agreement It is not nec
essary in this decision to resolve this dispute, but it
should be noted that the refusal of the cooperative to
give Forbes a Christmas bonus at the end of 1986 reflect
ing these cost savings was a source of sharp disappoint
ment and dissatisfaction on his part
For a number of years Roseville and Marcus Manage
ment maintained a personnel job description outlining
benefits and procedures for employees The job descrip
tion in effect when Forbes was hired was dated 1979
Among other things, it provided full time maintenance
employees 2 weeks vacation with pay after 1 year of
employment and Blue Cross and Blue Shield health in
surance coverage at the expense of the cooperative The
description stated that the cooperative will not dock for
occasional days off due to sickness or personal business
unless they become excessive It also stated that Christ
mas bonuses would be given which are dependent
upon the services which you provide It provided that
there would be annual salary reviews at the beginning of
each fiscal year and noted that arrangements must be
made to cover emergencies during (stated) holidays
Taking days off before or after a holiday without prior
written permission will not be considered Working
hours were defined as 8 a in to 5 p in Monday through
Friday, with an hour off for lunch Work orders were re
quired to be handled in a prompt and efficient manner
No work orders are to be serviced after normal working
hours except in the case of emergencies Good judgment
should be used to determine emergencies " As for out
side contractors, they
should be eliminated as much as possible to save the
Cooperative money However contractors must be
called if it is a requirement or if a lack of knowl
edge would jeopardize or affect safety or health
The more knowledge acquired by maintenance will
result in higher salaries When outside contractors
are called in, maintenance must check for satisfac
tory work and approve invoices for payment
Maintenance men were also to be on call after normal
working hours, weekends, and holidays without extra
pay " The description stated
[T]ime taken off because of illness or personal buss
ness is not deducted from your pay as long as it is
not excessive Time taken off and paid for compen
sates for nightcalls Personal usage of the Co
operative truck, tools or equipment is prohibited
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unless a request is made in writing as to the nature
of usage
There was a separate section on snow removal, which
provided
Snow removal is to be done dunng normal working
hours unless a heavy snowfall is experienced Then,
the roads should be cleared so that members can get
to work Only emergencies would take priority
over snow removal Salting should be done only if
the walks and drives are slippery and temperature is
not lower than fifteen (15) degrees Part time
additional help to clean snow may be hired at $3 00
per hour
By the spring of 1986 , two exceptions to the stated rules
had come about It was permissible for Forbes to pick up
Arndt in the cooperative pickup truck and bring him to
work , especially during inclement weather Regular
working hours had become 8 30 a in to 4 30 p in, mean
ing that cooperative employees actually received a paid
lunch hour
Forbes began his duties in late 1985 and moved into
the Roseville cooperative in the spring of 1986 His first
problem was Arndt , who was reluctant to take orders
from the new maintenance supervisor Ralph Marcus
wrote Arndt a letter, dated December 15, 1985 , in which
he told Arndt that there were new procedures in the
maintenance program First , the new maintenance super
visor Mr Forbes has complete discretion in setting pn
onties of work orders and how certain jobs are complet
ed In no way are you to establish what can or cannot be
completed or when work will be completed
Forbes second problem was not so easily resolved
During the spring and early summer months of 1986 he
began having difficulties with John Kotowski the presi
dent of the Roseville board, and Nancy Wickowski, the
board secretary The nub of the problem , also shared by
Arndt was that Kotowski and Wickowski began to give
them maintenance directives , which had the effect of in
terrupting the completion of jobs they were working on
in order to respond to the specific complaint for which
these board members demanded immediate attention
The problem was particularly acute in the case of Wick
owski who was not employed and who was usually
home in her cooperative unit throughout each working
day The regular procedure for obtaining maintenance
service was that a cooperative member or a board
member would fill out a work order and leave it in the
office These orders would then be attended to in the
order they were filed Late in June 1986, Marcus Man
agement assigned both Forbes and Arndt to a long term
project removing and replacing the guttering and down
spouts throughout the entire development in order to
prepare for a HUD inspection Devoting time to this on
going assignment meant that work orders arising out of
specific tenant complaints began to pile up Specific
verbal directives to Forbes and Arndt from Kotowski
and Wickowski often made in response to tenant corn
plaints also began to increase
Forbes became fed up with having too many bosses
Apparently Arndt shared this view although he did not
agree with Forbes suggested remedy Forbes contacted
Johnny Whitman , a UAW organizer, and obtained au
thorization cards and an information packet relating to
unionization Forbes signed a card and asked Ottinger
and Arndt to sign Ottinger declined and Arndt said he
would think about it As a matter of fact , Arndt never
did sign a card despite additional requests from Forbes
during the fall of 1986 On August 8 , Forbes wrote the
following letter to Marcus Management and mailed it to
their Southfield office
I find it necessary, at this time , to inform you I
have decided to ask the Union to represent myself
& co workers , if they are interested I was led to
believe I was accountable to the Marcus Manage
ment Co , and occasionally would receive a special
request from a few of the Board of Directors Be
cause of a personality conflict , a few of the Board
members have made my job all but impossible I
cannot schedule work or handle many of the more
serious jobs or implement any of the many preven
tive maintenance programs needed at the Roseville
Townhouses Under the present working conditions
there never can be a sense of accomplishment No
department or person can have 6 bosses each going
in their own direction, not being knowledgeable as
to the many aspects of running an efficient mainte
nance dept A person can go on forever repairing
things, not ever getting to cause or making neces
sary corrections to prevent future problems I feel if
given a chance I could be an asset to the complex
In a much smaller way I know how Lee Iacocca
felt in regards to Henry Ford They don t like
me' which means at this time job security is nil It
may not be apparent but I have an investment of
time and life style change in regards to selling my
house to conform with living in the complex If I
had the slightest notion what was in store for me I
would have run the other way In an effort to try
and protect myself and end up with one boss, the
union seems to be the only way to go
Sincerely
Paul Forbes
I credit Forbes testimony that , a few days later, Al
phonse Marcus phoned Forbes told him that he did not
think a union was necessary , and said that he would take
his complaints to the board of directors Marcus urged
Forbes not to say anything to the board because they
would get mad adding that he could handle the board
and would get back to Forbes
About this same period of time, Forbes had a similar
conversation with Jack Kuzmanovski , a member of the
board who at one time had been the maintenance super
visor at Roseville Prior to this conversation Ottinger
who was in frequent contact with Wickowski each day
had informed Wickowski that Forbes had joined the
Union and Wickowski had informed other board mem
bers Kuzmanovski told Forbes that he had a real prob
lem because the board members were furious about this
decision to join a union Kuzmanovski reported Wick
MARCUS MANAGEMENT 255
owski s reaction to this news was fire the son of a
bitch, while board member Norm Kucharski said that
Forbes would join the Union over my dead body Ko
towski s reported reaction was that the board could not
fire Forbes because he 11 sue us 4 Kotowski reportedly
felt that the Board had to wait 6 months before it could
take any action against Forbes
On August 13, Alphonse and Estelle Marcus met with
Forbes and Arndt at the community room at Roseville to
discuss Forbes complaint Estelle Marcus asked Forbes
if he had received a note from Wickowski asking him to
do a job Forbes replied that he had a whole stack of
such notes Alphonse Marcus told the three employees
that they should ignore orders that emanated from indi
vidual board members and that they should take instruc
tions from him He went so far as to say that they should
avoid talking with board members if possible Forbes
complained that Wickowski had told him that he either
had to follow her orders or be fired Arndt also voiced a
complaint that board members and the cooperative's rest
dents as well would stop him and make requests for
maintenance services without filing a work order in the
office Forbes also suggested the desirability of having a
daily work log so that he could have a better idea of just
what Arndt was doing Arndt had an attendance prob
lem and , at the hearing, Forbes claimed that he also had
a drinking problem, so he needed some method of keep
ing tabs on what his assistant was doing each day I dis
credit A Marcus testimony that the two employees
agreed on this occasion to extend their daily quitting
time from 4 30 to 5 p in
On August 14 1986, Alphonse Marcus wrote the fol
lowing letter to all five board members
On August 13 1986, we received a letter from
Paul Forbes your maintenance supervisor, com
4 Two key credibility determinations in this case involve the above re
cited conversation between Kuzmanovski and Forbes which took place
just before a significant board meeting of August 21 1986 and a subse
quent conversation that took place a week or two after that meeting I
credit Forbes versions of both of these conversations and discredit Kuz
manovski s evasive testimony on point As a former maintenance man
Kuzmanovski evidenced at one time a certain sympathy with Forbes
predicament in having too many bosses and he expressed this sympathy
to Forbes However after Forbes was discharged in March 1987 and in
stituted a multimillion dollar civil action against the board and all of its
individual members for wrongful discharge Kuzmanovski changed his
entire attitude toward this case In particular during the investigation of
the charges in this case his willingness to cooperate changed between the
time he was first contacted by a Board agent and after he consulted with
his attorney Kuztnanovski remained a board member even after he
moved out of the complex staying on until his term of office expired
Because of the distance from his new home to Roseville he could not be
contacted to sign off on the directive effectuating Forbes discharge
Kuzmanovski supplied Forbes with a key piece of damaging evidence to
the Respondents case but his story that he just happened to have it with
him at a bar at Christmastime and gave it to Forbes while having a hole
day drink in order to make Forbes feel good is preposterous The more
probable version of that subsidiary event is the version supplied by
Forbes namely that in the fall of 1986 Kuzmanovski told Forbes he
had something that would help him if he ever needed it and then gave it
to Forbes after the latter was discharged Kuzmanovski s demeanor was
bad his answers were evasive and he displayed an attitude of fencing
with questioners His bias was unusually pronounced because he is not
only a defendant in a civil action involving Roseville and Marcus Man
agement but as an independent contractor he now derives part of his
livelihood from business referrals provided by Marcus Management
plaining that he had too many bosses telling him
what to do Also he indicated that he would be
joining a Union so that Board Members would stop
interfering with his maintenance duties
On the same day since Mrs Marcus and I were
coming out to the Co op, we had a meeting with
Paul Forbes and Frank Arndt The major com
plaints from both of these employees are that Board
members continually pull them off of jobs to jobs
that they feel are more important They have also
complained about the Board Member s verbal ap
proach and threats of being fired
Since we are having a Board meeting on August
21, 1986, to discuss this matter and the reduced
Real Estate Taxes, I strongly feel that this employee
problem will be resolved to everyone's satisfaction
Attached is a copy of the letter which I have
sent to Paul and Frank with daily work log form
which will be filled in each day by them to show
where they spend their time If the priority work
schedule contained therein is in conflict with the
Board s priorities please advise me
On August 14, Alphonse Marcus sent a memo to
Forbes and Arndt, which read as follows
In response to your letter dated August 8, 1986
received by our office on August 13, 1986, and our
meeting on August 13, 1986, you are instructed to
complete the following
The top priority for maintenance at this time is to
complete the replacement and repair of gutters
and downspouts, tuck pointing and repair of front
porches and correcting the electrical short by
digging up the electrical line if necessary so that
the building exterior lights will function properly
As you are aware, REAL emergencies and
vacant units take precedence over the above
Normal work orders are to be done on a limited
basis until the priority maintenance is completed, or
they can be caught up on rainy days
Another item is the repairing and painting of the
wooden fence This should be worked on later this
fall You and Frank are not to deviate from the
schedule unless instructed to do so by this office
In reference to the complaints received from
both of you they will be brought forth before the
Board of Directors
In reference to the employees joining a union
this is your perrogative [sic] However we feel that
these matters can be resolved to the benefit of ev
eryone concerned
Also attached is the daily work log form which
you requested
The form in question was merely a list of the 5 workdays
of the week with lines drawn below them and the re
quest that employees explain briefly what they worked
on each day and how long they worked on it There is
no indication in the record that any of these forms were
256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ever filled out or that any information of the kind and
character requested was reported until March 1987
When John Kotowski arrived at the August 21 meet
ing he gave Alphonse Marcus and each board member a
2 1/2 page handwritten outline entitled If They Want a
Union He had prepared this document in advance of
the meeting and had caused it to be duplicated It read
1) To go over job description and change it
bring it up to date We as a board should have the
right to say when people can go their vaction [sic]
2) Put in time clock
3) Hours to go back to 9 00 to 5 30, 8 1/2 hour
day
4) They will get paid for 8 hrs a day and 1/2 hr
paid lunch Lunch will be from 12 00 to 12 30
5) Drop hourly wages, cut them down to mini
mum wage if possible
6) Change vaction [sic] time and go by how long
the employee has work here [sic]
Sample
1-3 yrs-1 week
3-5 yrs-1 1/2 weeks
5-10 yrs-2 weeks
10-15 yrs-2 1/2 weeks
15-20 yrs-3 weeks
20 and over-4 weeks
7) Cut Frank and Helena down to 3 days a week
Mon, Wed, Fr This way we can drop BC & BS
benefits because they won t have enough hours to
qualify working 24 hrs a week They would have
to work at least 30 hrs to qualify
8) At the present time the three (3) employees
are working only 7 hrs a day the other 1 hr is
taken for lunch This would stop under our new job
description
9) To have the full time maintenance man pay his
own gas light and half of his rent We would pay
for the phone and the other half of the rent on the
unit
10) All holiday bonus to stop
11) Get all three employees work records and go
over them and see how much time they have miss
[sic]
12) Have Mr Rein check on all this and see if we
as a Board can legally do this 5
13) To cut the full time maintenance man medical
benefits down too, because it would not be fair to
cut the other two employees medical benefits down
and not his too
14) If full time maintenance man wants a day off
or a weekend off he should find somebody to take
his place and pay him out of his own pocket The
co op should not be held responsible for finding and
paying another man to take his place That is his re
sponsibility
15) If the Union get in they will want the co op
to start paying overtime anything over 8 hrs or 40
hrs
5 Rein is the attorney who formerly represented Roseville
16) Half days, 2 hrs in the morning and 2 hrs in
the afternoon (sample) 9-10 work 10-12 off 1200
to 12 30 lunch, 12 30 to 3 30 work, 3 30 to 5 30 off
On reading Kotowski s outline Alphonse Marcus told
him You cant do anything like this, John You can t
take away anything he already has As far as this
record reflects, there was no further discussion of this
memo or of the organizing campaign at the August 21
meeting The board did discuss the complaint that
Forbes had previously voiced to the Marcuses and
which he had detailed in his August 8 letter, namely,
that he had too many bosses Board members agreed that
they would request maintenance service only through
the placing of work orders in the box designated for
them at the Roseville office They also agreed to send
out a flyer to the residents of the cooperative instructing
them to request maintenance work by filling out work
orders rather than by making personal requests of main
tenance men when they met them on the premises Such
a flyer was distributed throughout the development on
August 26
Shortly after the flyer was distributed to the coopera
tive s residents, Forbes had occasion to speak again with
Kuzmanovski just outside the Roseville community
building Kuzmanovski told Forbes that the board really
wanted to get rid of him but felt that they had to wait 6
months in order to do so He warned Forbes that he had
better watch himself because the board was looking for
any legal way it could find to fire him He told Forbes
that if he was ever fired Kuzmanovski had a paper that
he would give Forbes but he refused to say at that time
what the paper was I discredit Kuzmanovski s testimony
that he gave Forbes a copy of Kotowski s August 21
outline of what to do in case employees wanted a union
while having a drink with him at a bar during the Christ
mas season He gave it to Forbes a day or two after
Forbes was discharged in March 1987 as Forbes testa
fled
At a closed board meeting on September 11 the board
discussed a new proposed job description for the two
maintenance men It was ultimately adopted and present
ed to Forbes and Arndt sometime in September Among
the changes from existing practices was that the work
day was extended from 4 30 to 5 p in It repeated the
provision in the 1979 job description that the Coopers
tive will not dock you for occasional days off due to
sickness or personal business unless they become excel
sive It spelled out in greater detail what the mainte
nance supervisor should do when he wished to leave the
complex during holidays and weekends namely that
emergencies during these periods of time should be cov
ered by the second man and if he was not available
by a maintenance man at one of the other nearby coop
eratives Employees were required by the new regulation
to mail in timesheets on Friday of each week Moreover,
there was no provision in the new job description for
any health insurance coverage Paid vacations were
changed from 2 weeks vacation after 1 year of employ
ment to 1 week after 1 year of employment and 2 weeks
after 2 years of employment with a pro rating of half a
day per month for a partial year if a vacation was taken
MARCUS MANAGEMENT
between May 1 and November 1 The former provision
on snow removal was repeated namely that snow re
moval should be handled during normal working hours
unless a heavy snowfall was experienced in which in
stance roads should be cleared first so that members of
the Cooperative could get to work
When Alphonse Marcus gave the new job description
to Forbes, the latter asked him why there was a change
in hours, that had the effect of cutting back on the
amount of paid lunchtime I credit Forbes testimony that
A Marcus told him that he had to give the board some
thing to get them off Forbes back He told Marcus that,
at the board meeting three members-Kotowski Ku
charski and Mrs Wickowski-all wanted to fire Forbes
and that he had told them to put their directive in writ
ing, whereupon Kotowski backed off saying that Forbes
would sue them if he were fired
Forbes felt that he had one ally on the board Karen
Craib Secondino, for whom he had campaigned actively
as a board member She once told Forbes that his name
was continually being brought up by board members
with respect to complaints or reported shortcomings
Forbes asked her to get something in writing but she re
plied that she thought that it was all just idle talk
Forbes was given a $100 Christmas bonus, as
were the other two employees He was also given a
50 cent per hour raise, effective in January He was
disappointed by the bonus and claimed that he was
entitled to a percentage of what he had saved the
cooperative by not hiring outside contractors and
expressed his dissatisfaction with the bonus check
Both the cooperative and Marcus Management dis
agreed
At its February 1987 meeting the Board adopted an
other revised job description, but it was not transmitted
to Arndt and Forbes until early in March It read
The following items are to be added to the
present employee Maintenance Job Description
This shall serve as new Cooperative policy in re
placement of the old policy
1 During any snow fall of 2 inches or more the
main streets of the Co op must be plowed The re
mainder of plowing and clearing of snow shall be
completed during the next business day When a 2
inch or greater snow fall is experienced on a Friday
or Saturday night directions for snow removal shall
be given by the President of the Board All snow
removal must be completed by Maintenance De
partment only
2 The Co op truck during non business hours
must be parked at the Resale Office on New Eng
land Street The Co op truck must be used for Co
op business only At no time is the Co op truck to
be used for personal business or driving employees
to and from the Co op
3 When leaving the Co op grounds after business
hours and on weekends maintenance persons must
keep the Board informed who is handling emergen
cy calls and the person(s) phone number
257
4 All emergency calls will be paid at time and
one half from the time the maintenance person
leaves his unit to the time the maintenance person
leaves the member s unit The work order must be a
true emergency and be signed by the member
5 Five sick days will be given on an annual basis
Sick days may not be used as vacation days
6 A weekly maintenance report is to be made
and left in the Resale Office each Friday This
report is to list the work orders completed by each
maintenance person, the number of hours spent on
rehab units the number of outstanding work orders
all work orders completed by contractors, and the
amount that was charged
Early in February, Forbes complained to Ralph
Marcus about the manner in which compensatory or
banked time computations were being made In the past,
if Forbes or Arndt worked more than a 40 hour week
the overtime could be banked and taken as leave
during the normal workweek Forbes told R Marcus
that he thought that the time worked on Saturday should
be considered overtime and not compensated for simply
as straight time According to Forbes if he were given
banked time for Saturday work it should be at the rate
of 1 1/2 hours off for each hour of Saturday work He
told R Marcus that he had some pamphlets from a gov
ernment agency that required compensatory time to be
handled in this manner R Marcus replied If you want
anything changed, you change it
On February 17, R Marcus sent Forbes the following
letter
We are writing you regarding our conversation
of February 11, 1987 concerning the banked/
sicktime program and your request to discontinue
this program The Board of Directors has reviewed
this program and has determined that the banked/
sicktime program will be discontinued as of Febru
ary 17, 1987
Therefore, beginning February 18 1987, any
overtime work orders must state the exact number
of minutes which it took you to respond to the
emergency request Your time should be calculated
from the time you actually leave your unit to the
actual time you leave the member s unit All over
time work orders must have the member s signature
to qualify as a true emergency to be paid as an
overtime work order
Further it has been decided to reconcile your
overtime for all payrolls paid within this fiscal year
regarding your banked overtime hours and your
sick or absent hours It should be noted that the one
hour minimum remained in place when completing
this reconciliation (Even if you actually spent 10 or
15 minutes arranging for complete service for an
emergency the next day the one hour minimum is
being translated into one hour and one half) A sum
mary is as follows
Hours of overtime reported through February 17,
1987 = 26 5 hours
Conversion to time and one half = 39 75 hours
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Minus Absent hours thru February 17 1987 =
42 5 hours
Total time to be docked as of February 17, 1987
= 2 75 hours
Finally there will be five (5) sick days allowed
throughout each fiscal year Prorating these hours
from February 18, 1987 through December 31,
1987, you have 35 absent hours remaining
On February 26 Forbes entered a hospital with acute
bronchitis and did not return to work until March 9
During this same time he received two additional letters
from R Marcus A letter dated February 25 stated
We are writing you regarding several items con
cerning maintenance
1 The Board wishes for you to immediately re
place the east end community building door with a
steel door This request is repeated from an earlier
request
2 As discussed, please repair the outstanding
work orders in Mr and Mrs Suchara s unit They
should have been completed six months ago
3 Install the railings on the entrance of the Com
munity Building, this request was also made some
time ago
Finally, the normal business hours are from 8 30
a in to 5 00 p in When you come in early to handle
snow removal or an emergency you are not to
assume you may leave a proportionate time early
A second letter dated March 5 read
At a recent meeting of the Board of Directors a
discussion was held regarding your continued ab
Bence from work The Board has requested that you
submit a doctors letter explaining your illness and
when you might expect to return to work Also
please provide a full release statement from your
doctor before you do return We hope that your ill
ness is not severe and wish you a speedy return
The Board would appreciate this information within
next three days
When you do return to work there are a few
items which continue to be outstanding
1 Renail the gutter on the one bedroom unit ap
proximately third from the south end of the Co op
2 At the January 13, 1987 board meeting, we dis
cussed that Mrs Gesser s tubwall needs to be re
paired or replaced
3 We must have the physical inventory of all
tools and equipment
On Friday evening March 13, it began to snow The
snowfall continued throughout the night Early Saturday
morning Kotowski left the cooperative to go to work
and remained at the Ford Motor Co plant, where he
was employed, throughout the day Forbes testified that
he expected to hear from Kotowski concerning Saturday
snow removal but Kotowski did not contact him About
1 40 p in Forbes received a phone call at his cooperative
unit from Wickowski She asked him why he had not
been out cleaning away the snow Forbes replied that he
had not been notified to do so by Kotowski Her reply
was that he should have had enough common sense to
know that he should have been removing the snow with
out receiving any special instruction She expressed the
opinion that the streets did not need plowing, but told
Forbes that he had to clean the sidewalks in the develop
ment
There was a well recognized division of labor in
volved in snow removal at the cooperatives Arndt who
did not possess a driver s license operated a hand guided
snowblower that was housed in the maintenance build
ing He used it to clean the internal sidewalks and path
ways within the project Forbes drove the Roseville
pickup truck, to which a snowplow was attached and
used it to clear away the streets and parking lots When
Wickowski told him to clean the sidewalks, Forbes re
plied that he had never operated the snowblower but
that he would go to the maintenance building and give it
a try He also phoned Arndt to ask him to come to work
but Arndt was not at home 6
I credit Forbes testimony that he went to the mainte
nance building and found the snowblower chained to the
building The key to the lock was missing and there was
no key in the ignition switch of the snowblower, so he
was unable to gain access to the machine 7 He reported
this state of affairs to Wickowski and told her that he
was unable to reach Arndt at his home She said that
someone would have to be hired to shovel the snow
Forbes told her that Ottinger normally hired the coop
erative s members to do this kind of emergency work
and that she would know whom to contact Wickowski
said that it would not be possible to contact Ottinger be
cause she was at a baby shower Wickowski was eventu
ally able to find a neighbor who was willing to shovel
snow but she had to promise him $5 an hour, not the
minimum wage rate spelled out in the 1979 and 1986
maintenance job descriptions
Kotowski testified that he spoke with Wickowski
about the snow removal problem when he arrived home
that afternoon from the plant I discredit his testimony
Wickowski left the cooperative about 4 p in to attend
her grandsons birthday party and testified that she did
not speak to any of the other board members concerning
snow removal until Sunday morning 8
6 It turned out that Arndt had left home with his brother about 9 a in
on Saturday and had gone to a nearby bar Later in the day they left the
bar and went to Arndt s brothers house several miles away
r Testimony at the hearing revealed that the ignition key was in
Arndt s pocket I discredit Wickowski s testimony that she told Forbes to
cut the chain that secured the snowblower to the building Had he been
able to free the machine it would have served no purpose because
Forbes had no way to start the ignition
a There was a sequestration order in effect in this case Forbes testified
at length throughout the first day of the hearing Before the hearing
began on the morning of the second day most of the Respondents wit
nesses gathered with their attorney in the basement cafeteria of the Fed
eral Building in Detroit and had coffee together There is no doubt in my
mind from the evidence adduced at the hearing that they were discussing
their testimony in this case as well as the small talk they admitted engag
mg in on this occasion I find the testimony of several witnesses unbeliev
able when they stated that although they were sitting immediately next
to each other at the cafeteria table they were unable to hear what their
neighbor was saying to company counsel This kind of joint preparation
Continued
MARCUS MANAGEMENT
On Sunday, March 15 Wickowski phoned both Ko
towski and Kucharski told them that Forbes had failed
to clear the snow at the cooperative the previous day
and suggested that he be fired They agreed She pre
pared a resolution/directive, a form used by the board to
give orders that are concurred in by at least three of the
five members, and obtained the signatures of Kucharski
and Kotowski on Monday, March 16 Because Kuzman
ovski was not living at Roseville any longer, she was
unable to obtain his signature, although she spoke with
him by phone and he agreed verbally with the position
of the other board members She was able to obtain the
signature of board member Craib on March 18 The
resolution/directive read
The failure to clear snow Saturday March 14, 1987,
from co op grounds The Board of Directors in
structs Marcus Management to immediately terms
nate Paul Forbes employment Advice him [sic] to
vacate co op unit 25937 Salem within thirty days
On Tuesday March 17, Wickowski phoned R
Marcus, talked to him about the snow removal problem
and told him that the board wanted Marcus Management
to discharge Forbes R Marcus agreed to do so, but in
sisted on having a directive in writing authorizing this
action Wickowski said it would be in his mailbox when
he came to Roseville for his regular Wednesday visit On
the strength of this information, R Marcus prepared the
following letter to Forbes, dated March 17
By evidence of the recent letters to you you
have failed to execute the directives and require
ments of your employment In an effort to keep the
directives of the Roseville Board of Directors on
record these items were put into writing and
mailed to you
This past week end, approximately five inches of
snow fell in the City of Roseville, yet you did not
plow the streets of the Cooperative or any of the
walks, even after a member of the Board of Direc
tors asked you to do so Your failure to act created
a possible liability for the Cooperative You are
well aware that any snow over two (2) inches calls
for plowing of at least the main streets
In light of your inaction and recent warnings to
complete your work as directed the Board of Di
rectors has terminated your employment effective
immediately Please turn in your keys and any and
all Cooperative property tools etc to Mrs Ottin
ger at the Resale Office Also turn in all petty cash
and petty cash receipts
In conjunction with your termination you will
have until April 17 1987 to move from the Cooper
ative Housing Unit which you are presently resid
of witnesses violates both the spirit and the letter of a sequestration order
because it undermines the very purpose of the order namely that wit
nesses should present to the Board their own individual and unprompted
versions of the events in question The fact that this violation occurred
casts a pall over the testimony of all the individuals who were involved
in this coffee klatch Notwithstanding the opportunity it presented the
board members were still unable to agree on the entire sequence of
events that led to Forbes discharge
259
ing in Your final paycheck for the week of March
16 1987 will be mailed immediately upon the re
ceipt of your time sheet
When R Marcus arrived at the cooperative on
Wednesday he checked his mailbox and found the prom
ised directive from the board so he gave Forbes the
above recited discharge letter
In addition to filing the charges in this case, Forbes
and his wife also filed an extensive civil damage suits
against the Respondents, the individual members of the
board, and A and R Marcus, personally The suit seeks
both compensatory and punitive damages for wrongful
discharge under Michigan common law relating to em
ployment at will and various state civil rights statutes
The suit is currently pending in the Macomb County
Circuit Court
II ANALYSIS AND CONCLUSIONS
A The Joint Employer Relationship of Marcus
Management and Roseville
The General Counsel contends that Marcus Manage
ment and Roseville were joint employers of Paul G
Forbes The tests applied to determine joint employer
and single employer status are somewhat different since a
higher degree of common functioning by two enterprises
is involved in a single employer situation The General
Counsel makes no contention that the Respondents in
this case are a single integrated enterprise Indeed
Marcus Management has a life of its own quite apart
from Roseville in the other co ops that it manages
However, her contention is that they are bound together
closely enough with respect to Roseville that each is re
sponsible for the acts of the other as they relate to Rose
ville employees The contention is well taken
The Sixth Circuit pointed out in Carrier Corp v
NLRB, 768 F 2d 778 at 781 (1985), that the
proper legal standard to determine if a joint
employer relationship exists is [W]here two or
more employers exert significant control over the
same employees-where from the evidence it can
be shown that they share or co determine those
matters governing essential terms and conditions of
employment-they constitute joint employers
within the meaning of the NLRA, NLRB v
Browning Ferris Industries of Pennsylvania Inc 691
F 2d 1117 1124 (3d Cir 1982) Whether a company
exercises such control as to be considered a joint
employer is a factual issue to be determined by the
Board Boire v Greyhound Corp 376 U S 473 481
(1964)
All parties admit in this case that Roseville was Forbes
employer The only issue is whether Marcus Manage
ment also stands in those shoes
9 There is no limiting ad damnum clause in this suit setting a maximum
recovery for the plaintiffs The complaint simply seeks damages in each
of several counts for amounts in excess of $10 000
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Marcus Management was and is an integral part of the
operation at the Roseville cooperative Roseville can dis
charge Marcus Management only for cause and if it
does so, it must, under the terms of its mortgage incur
ance agreement with HUD replace Marcus Management
with another management company that fulfills the same
responsibilities Marcus Management prepares the Rose
ville budget collects the rents pays the bills and super
vises both maintenance and other employees It hires em
ployees in conjunction with the Roseville board In
Forbes case, Alphonse Marcus and the Roseville board
jointly interviewed him for the position from which he
was ultimately discharged Marcus Management provides
supervision of the maintenance operation When Forbes
and Arndt had a grievance, Marcus Management at
tempted to adjust the grievance When the Roseville
board had problems with Forbes it was R Marcus who
wrote to Forbes to direct his attention to specific mainte
nance problems they felt needed his immediate attention
When the Roseville board decided to fire Forbes, it was
Marcus Management that carried out the directive It is
quite clear from these facts that Marcus Management sig
nificantly controls the employment of maintenance per
sonnel and, as such, is a joint employer with Roseville
Sands Motel 280 NLRB 132 (1986) Moderate Income
Management Co, 256 NLRB 1193 (1981), Union Carbide
Building Co 269 NLRB 144 (1984)
B Antiunion Animus on the Part of the Respondents
Both the disputed and undisputed testimony in this
record reflects that a high degree of antiunion animus
greeted Forbes decision in August 1986 to join the
UAW Alphonse Marcus tried to put the onus on the
board He told Forbes that they would get mad if they
saw his letter announcing an intention to join the Union
As for himself he told Forbes both orally and in writing
that he did not think that a union was necessary He vol
unteered to work out the grievance that both Forbes and
Arndt had concerning too many bosses by taking up
the matter directly with board members Wickowski
stated two or three times in her testimony that Board
President Kotowski was upset at the news that Forbes
had joined a union Kuzmanovski testified that Wickows
ki s reaction to the news that Forbes was organizing was
fire the son of a bitch Kucharski s reaction was that
Forbes would join a union over my dead body Ko
towski although upset was concerned that Forbes
would sue Roseville Alphonse Marcus told Forbes
sometime in September that certain adjustments had to
be made in his compensation to get the board off Forbes
back He also told Forbes that three members of the
board wanted to fire Forbes, but they had backed off
when A Marcus told them to put it in writing
The paper drawn up by Kotowski, himself a UAW
member and presented to the board at its August 21
meeting entitled If They Want a Union," was a draconi
an response to an organizing threat His later character
ization of this document as bargaining proposals bor
ders on the absurd Alphonse Marcus did not regard it as
such at the meeting He flatly told Kotowski that Ko
towski simply could not do what he was proposing to
do There was no one in the picture at that moment with
whom to bargain-and indeed the UAW never filed a
petition or made a bargaining demand-so the attempt to
downplay this document by calling it bargaining pro
posals has no substance when viewed in light of the cir
cumstances in which it was presented Moreover certain
suggestions made in Kotowski s document simply do not
relate to bargainable matters For instance, he proposed
that the board inspect the work records of all three em
ployees to determine how much time they missed He
also suggested that the board consult legal counsel to see
if they could get away with what he was proposing
Such items can hardly be termed bargaining demands
Kotowski s document outlined a program for harassment
of employees and particularly the Charging Party in
response to Forbes announced decision to seek union
representation What remains to be determined is wheth
er a series of adverse actions taken by the Respondents
against Forbes in the ensuing 7 months were an ample
mentation of Kotowski s game plan or whether they
were prompted by other considerations
C The September Revision of the Maintenance
Department Job Description
One of the items on Kotowski s list of bargaining
proposals was a cut in vacation pay to 1 week for em
ployees with 1-3 years service At that time employees
with more than a year s service enjoyed 2 weeks off with
pay This change, effectuated in the September 1986 re
vised job description was undertaken supposedly be
cause of the board s concern with having sufficient help
available during winter months for snow removal The
board s mid August concern with winter snow removal
was far greater than the concern it demonstrated until
1 40 p in on March 14 when 5 1/2 inches had been
laying on the ground for nearly 12 hours This change
affected only Forbes who received a week s vacation
immediately but never collected any more for 1986 be
cause of his discharge in mid March of the following
year The facial difference in vacation benefits coupled
with the timing of this change the Respondents demon
strated animus and Alphonse Marcus explanation that
he had to do something to get the board off Forbes
back, makes it abundantly clear that this reduction in
these benefits was taken in reprisal for Forbes union ac
tivities The fact that Forbes signature appears on the re
vised job description in no way indicates that he consent
ed to the change The board simply reduced a benefit
that he had previously enjoyed and presented both him
and Arndt with a fait accompli While it did so at a point
in time that was beyond the reach of Section 8(a)(1) of
the Act the Respondents action at this time demon
strates not only continuing animus, but the first step in a
pattern of conduct designed to carry out Kotowski s
August 21 reprisal document
The same should be said about health insurance There
is no provision in the revised job description relating to
health insurance although the previous job description
outlined Blue Cross and Blue Shield coverage for main
tenance employees This revision is also in accordance
with Kotowski s stated plan Alphonse Marcus testified
that the omission was an error but no revisions have
MARCUS MANAGEMENT
been published in the nearly 2 years that have elapsed
since September 1986 to correct the error Forbes testa
fled that in fact he received coverage when he was hos
pitalized in late February 1987 but this fact in no way
detracts from the fact that the Respondents published
benefit coverage no longer includes health insurance,
when once it did 10
In September 1986, the Respondents also extended the
workday of the two maintenance men from 4 30 to 5
p in This was an indirect way of reducing their paid
lunchbreak from 1 hour to one half hour, a downward
revision also envisioned in Kotowski s memorandum
Like the reduction in stated health insurance benefits, a
prosecution by the General Counsel of this revision,
taken as it was in order to harass Forbes for joining the
Union, is barred by Section 10(b) of the Act, but this
limitation does not prevent a finding that the action was
motivated by animus and that it was one more piece in a
mosaic that was being constructed, bit by bit, in response
to a perceived threat of unionization
D Further Reductions in Benefits and Compensation
By letter dated February 17, the Respondents discon
tinued the practice of granting Forbes so called banked
or compensatory time in exchange for overtime worked
Both the 1979 and 1986 job descriptions provided that
the cooperative would not dock employees for occasion
al days off, either for sick leave or personal leave, so
long as these absences did not become excessive In con
junction with this practice, another practice had grown
up whereby maintenance men were given time off during
a workday in lieu of cash payments for work performed
outside normal working hours Earlier in the month
Forbes told R Marcus that he thought that compensato
ry time off should be computed at the rate of time and a
half because the law required overtime to be paid at that
rate Instead of either granting or ignoring this request
the board revised the entire practice, eliminating com
pensatory time entirely and granting each employee 5
days a year sick leave The flexible allowance of sick and
personal leave was also discontinued at least for Forbes
Forbes testified that he was astonished when he received
notification of this change It is incredible as the Re
spondents have contended that he either requested the
February 17 change or consented to it At no time did
Forbes object to the banked time arrangement His ob
jection was that he felt he was not being compensated at
a time and a half rate when overtime hours were banked
There is no basis for the assertion that the February 17
revisions were regulated or consented to by Forbes As
with other job description revisions these were unilater
ally imposed The fact that this change was made retro
active to January 1 and resulted in docking his pay was
simply a way of rubbing it in
Although job descriptions forbade the use of company
vehicles for personal errands, Forbes had been instructed
io In States such as Michigan which have developed a very expansive
employment at will case law that often predicates the existence of such a
contract of employment on provisions in personnel handbooks and pub
lashed statements of benefits a difference such as the one outlined above
could be of critical importance
261
by Marcus Management to pick up Arndt during inclem
ent weather to make sure that Arndt, who had a bad ab
senteeism record, was available for snow removal and
other jobs This practice had been followed for some
time At the February meeting , this practice was specifi
cally discontinued by the board The only reason given
at the hearing for this change in practice was that the
board wanted company employees to be working on the
premises during working hours rather than picking up
people and bringing them to work However the former
practice involved picking up Arndt before working
hours so the board s rationale for its action as well as
the timing of the action, leaves this change in working
conditions essentially unexplained
The computation for overtime payments for emergen
cy calls performed after normal working hours was also
revised by the board This revision also amounted to a
reduction in compensation Formerly a maintenance man
(and it was usually Forbes, the resident maintenance
man) was given at least an hour of banked time for any
call that was answered after regular duty hours, regard
less of its duration, unless the call exceeded 1 hour in
which instance the actual time worked was banked
Under the revised procedure, payment was to be made in
cash, not in time off, at the rate of time and a half, but
only for actual time spent going to and from Forbes
dwelling unit and the site of the emergency call This
change was personally disadvantageous to Forbes and
there is no merit in any contention that he consented to
it or asked for it
For a long time Forbes engaged in the practice, at
least during periods of inclement weather, of parking the
cooperative truck outside the maintenance building that
was located near his apartment This made it easy for
him to have access to the vehicle both in routine and
emergency situations such as snow removal The board
directive dated February 1987 instructed him to park
the truck only at the resale office on New England
Street, a couple of blocks away from his dwelling unit
This change caused Forbes some inconvenience because
in snowy weather he would have to walk through the
snow for a block or two to get to the truck he used for
snowplowing This instruction was simply petty harass
ment Both reasons advanced at the hearing for this in
struction were trivial and unconvincing and the timing
for imposing this inconvenience on Forbes was suspi
cious
Respondents claim that Forbes had become disen
chanted with his job as a result of not receiving the
bonus he thought he was entitled to and that he was
slackening off in his work so he had to be disciplined
and restrained as a result of a sudden decline in perform
ance As evidence of Forbes soured disposition and its
impact on his work habits Respondents point to two let
tern sent to Forbes by R Marcus dated February 25 and
March 5, respectively telling Forbes to get cracking on
certain repair work that he had not performed One of
these letters was sent to Forbes while he was under a
physicians care for bronchitis and was totally incapaci
tated Some of these items were matters that Forbes had
either been working on or could not be completed be
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cause of weather or because of problems with the fire
code compliance This background taken together with
the accusatorial and argumentative tone of the letters, in
dicates Marcus Management was using this correspond
ence as a means of building a case against Forbes, not of
getting work done that badly needed to be done These
letters were specifically referred to by R Marcus in his
discharge letter of March 16 The letters do not reflect a
hostile attitude on the part of Forbes but a hostile atti
tude toward Forbes on the Respondents part The fact
that they were written within days of the 6 month anni
versary of the board s August 21 meeting, when an irate
board president presented to his colleagues a battle plan
for combatting unionism among employees of the coop
erative, serves to explain the timing of these measures far
more than the several excuses proffered by the Respond
ents I conclude that by imposing new work rules on
maintenance employees and by reducing their pay and
benefits in the February 17 and March 5 letters in order
to take reprisal against Forbes for seeking union assist
ance, the Respondents violated Section 8(a)(1) of the
Act
E The Discharge of Paul G Forbes on
March 17 1987
Respondents are correct in saying that in order to find
a violation of Section 8(a)(3) of the Act, a discharge
must be tied to the union activities of the alleged discri
minatee and specifically prompted by those activities It
is not enough that a discharge may have arisen out of a
bizarre set of circumstances, or that it occurred under
circumstances that might be unfair in terms of some gen
eral notions of equity or propriety, or even that Forbes
would be placed in the impossible position of violating
company rules if he performed the acts he was dis
charged for failing to perform 11 The General Counsel
must show by a preponderance of the evidence that all
of these circumstances brought about a discharge that
was, in fact, prompted by union considerations In
making this argument Respondents point out that union
activity on the part of Forbes had ceased sometime in
the fall of 1986 because he was unable to engender any
enthusiasm for his cause from either Arndt or Ottinger
and that the Respondents never heard from the UAW as
a result of Forbes organizing efforts It is the Respond
ents contention that the union campaign was dead that
it had paid no attention to this effort in the first place
and that Forbes was discharged because he failed to
remove snow, something that any maintenance man
should have known was a high priority item and that he
had been repeatedly told was a matter of great concern
both to the Roseville cooperative and to its members
Kotowski to the contrary notwithstanding, there is no
specified time lag between union activity and discharge
that serves to immunize an employer from responsibility
under the Act A discriminatory discharge can take 4
11 As noted elsewhere in this decision the Charging Party has filed
suit against these Respondents and their principals and is seeking damages
in a civil court under the common law and the statutes of Michigan It is
not my intention in this decision to resolve any question of fact or law
that may be at issue in that litigation
months12 after overt union activity is discovered or even
17 months 13 thereafter The weakest part of the General
Counsels case is the fact that a considerable amount of
time passed between union activity on Forbes part and
the discharge that took place on March 17, 1987 How
ever there is such a thing as latent hostility which bides
its time and lies in wait, seeking the appropriate occasion
to work its will This is what the Board is confronted
with in this case In presenting his battle plan on August
21, Kotowski was afraid that Forbes might sue if he
were immediately discharged Both Marcus and Kuz
manovski told Forbes that the board wanted to fire him
immediately but they declined to do so for this reason
In fact, Kuzmanovski told Forbes that the only thing
that prevented his discharge from taking place immedi
ately was fear of a lawsuit Accordingly, the board de
cided to wait 6 months to do what it would have pre
ferred to do immediately This is just what happened
The picture painted by the Respondents in this case is
that snow removal has always held high priority because
the cooperative has a number of elderly residents who
are in danger of slipping if walks and pathways are not
cleaned promptly after a snowfall This risk makes the
Respondents potentially liable for serious damage claims
everytime it snows so it is imperative that snow be re
moved immediately after it hits the ground This is not
what printed job descriptions have said as far back as
1979 Then, as now, priority in snow removal was not
assigned paths and walkways, but to parking lots so that
residents could use their cars to go to work The 1979
description said that snow removal is not to be done
during normal working hours unless a heavy snowfall is
experienced Then the roads should be cleared so that
members can get to work The 1986 description, given
to the maintenance department following the August 21
board meeting, repeated this language almost in haec
verba The February 1987 job description amendment
carried forward the same policy but was more explicit
During any snow fall of 2 inches or more the main
streets of the Co op must be plowed The remainder
of plowing and clearing of snow shall be completed
during the next business day When a 2 inch or
greater snow fall is experienced on a Friday or Sat
urday night directions for snow removal shall be
given by the President of the Board All snow re
moval must be completed by the Maintenance De
partment only 14
The standard long term written policy of the cooperative
has been to leave the clearing of walks and pathways to
the following business day or to regular working hours
unless there is an unusually heavy snow The reason for
this policy is quite evident and Kuzmanovski admitted
12 Datagraphic Inc 259 NLRB 1285 (1982)
is J P Stevens & Co 167 NLRB 258 (1967)
14 The last sentence in the amendment is new The 1979 and 1986 job
descriptions provided
Part time additional help to clean snow may be hired at minimum
wage Any person hired for part time help must be at least eighteen
(18) years of age They are to be paid out of Petty Cash and they
must sign for the money which they receive
MARCUS MANAGEMENT
the basis for it, namely, to save the cooperative the over
time labor cost that would apse if maintenance employ
ees worked around the clock to clean the premises when
it snowed In March 1987 Forbes hourly rate was $10 50
an hour, which works out to an overtime rate of $15 75
an hour In its February job description amendments, the
Respondents eliminated banked time, so any overtime
paid to Forbes for snow removal on Saturday, March 14,
would mean a cash outlay of $15 75 an hour, not com
pensatory time off This is expensive snow removal for
an employer on a tight budget, and it is far more than
the minimum wage or the $5 an hour for which Rose
ville could hire temporary help It is also much more
money than Roseville would have to lay out if it simply
waited until Monday, hoped for warmer weather, and let
the maintenance crew remove the balance of the snow
during their normal tour of duty Cost saving is the obvi
ous rationale for the very explicit provision in the Febru
ary 1987 job description amendment relied on by Forbes,
which states that when a 2 inch or greater snowfall is ex
perienced on a Friday or Saturday night directions for
snow removal shall be given by the President of the
Board " The president of the board gave no such direc
tive on March 14 to Forbes Instead, he simply got in his
car, drove out of the parking lot, and went to work,
thereby saving the cooperative $15 75 an hour in snow
removal cost from Forbes and about $9 an hour in the
case of Arndt Had Forbes gone ahead with snowplow
ing on that Saturday morning without Kotowski's explic
it instruction, he would have been guilty of running up a
large bill for unauthorized overtime, for which infraction
he could have been either disciplined or at least not paid
The General Counsel argues quite correctly that Forbes
was, in fact, discharged for failing to be insubordinate
and for complying with the categorical and unambiguous
language of a directive that he had received only 10 days
before The only answer the Respondents make to this
allegation is that Forbes should have had enough
common sense to remove the snow without being told If
there was any want of common sense involved in this sit
uation it is in the formulation of the February regula
tion not in Forbes compliance with its terms
There is no support in the record for the contention
that Forbes disobeyed a direct order to remove snow on
March 14 Wickowski asserted that she had the right to
give Forbes specific orders concerning maintenance mat
ters if the orders were reasonable and she was the judge
of what was reasonable The whole arrangement engi
neered by Alphonse Marcus in August 1986 was de
signed to preclude just such interference with mainte
nance operations The explicit language in the February
1987 job description amendment placed weekend snow
removal instruction power squarely in the president of
the board not the secretary, and on the occasion in ques
tion the president declined to exercise his power Leav
ing aside the question of Wickowski's attempted power
play, the fact remains that she gave Forbes an instruction
that could not be carried out because the individual who
normally performed snow removal on the paths and
walkways of the cooperative was out drinking, had the
keys to the snowblower in his pocket, and could not be
reached For Arndt s dereliction Forbes was blamed
263
Failure to remove snow was merely the cover story
which the Respondents used to get rid of Forbes They
had decided to take this action back in August 1986,
long before the first snow fell, but decided to wait in
order to shore up their legal position What transpired
after this decision was taken as merely an unfolding of a
game plan that was hit upon at that time The NLRB
may not inquire into the reasonableness of an employer's
decision to terminate an employee However, where, as
here, there was company knowledge and strong animus,
the arbitrariness and irrationality of the employer's
action is some evidence that its asserted reason was not
its real reason I find and conclude that this was the case
at Roseville By discharging Paul G Forbes because of
his sympathy for and activities on behalf of the UAW,
the Respondents, and each of them, violated Section
8(a)(1) and (3) of the Act
On these findings of fact and on the entire record con
sidered as a whole, I make the following
CONCLUSIONS OF LAW
1 Respondents Marcus Management, Inc and Rose
ville Towne Houses Cooperative, Inc, and each of them,
are now and at all times material herein have been em
ployers engaged in commerce within the meaning of
Section 2(2) of the Act They are joint employers
2 The International Union, United Automobile, Aero
space and Agricultural Implement Workers of America
(UAW) is a labor organization within the meaning of
Section 2(5) of the Act
3 By discharging Paul G Forbes because of his activi
ties on behalf of the Union, the Respondents and each of
them, violated Section 8(a)(3) of the Act
4 By the acts and conduct set forth above in Conclu
sion of Law 3 and by issuing new and more onerous
work rules and restricting and reducing compensation of
employees because of their activities on behalf of the
Union, the Respondents violated Section 8(a)(1) of the
Act
5 The acts have a close intimate and substantial
effect on the free flow of commerce within the meaning
of Section 2(2), (6), and (7) of the Act
REMEDY
Having found that the Respondents have committed
certain unfair labor practices, I will recommend that
they be required to cease and desist therefrom and to
take other actions designed to effectuate the purposes
and policies of the Act I will recommend to the Board
that the Respondents, and each of them, be required to
offer to Paul G Forbes reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority or other benefits he may have enjoyed, and that
he be made whole for any loss of pay or benefits that he
may have suffered by reason of the discrimination found
in this case in accordance with the formula set forth in
the Woolworth case 15 with interest computed at the
15 F W Woolworth Co 90 NLRB 289 (1950)
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
short term Federal rate used to compute interest on un
derpayments and overpayments of Federal income taxes
under the Tax Reform Act of 1986 New Horizons for the
Retarded 283 NLRB 1173 (1987) This make whole
remedy should include relocation costs incurred by
Forbes and any costs incidental to buying or selling a
house that he may have incurred or that he might incur
as a result of compliance with this Order I will also rec
ommend that the Respondents be required to post the
usual notice advising its employees of their rights and of
the results in this case
[Recommended Order omitted from publication]