Matrix Equities, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 12, 2016

29-CA-168345 (N.L.R.B. Jul. 12, 2016)

JD(NY)-25-16
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
MATRIX EQUITIES, INC.
And Case 29-CA-168345
BRIAN BURNS, an individual
Brent E. Childerhose Esq.,
for the General Counsel.
Gerard J. McCreight Esq., counsel for
the Respondent.
Decision
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case on June 7, 2016, in
Brooklyn, New York. The charge in this proceeding was filed on January 25, 2016. The
complaint that was issued on March 25, alleged that the respondent discharged Brian Burns
because he complained about the wages hours and working conditions of the employees.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following1
Findings and Conclusions
I. Jurisdiction
The parties agree and I find that the Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. The alleged unfair labor practice
The employer is an enterprise that is engaged in providing real estate services. It
operates in several states including New York, New Jersey, and Connecticut. The company
employs about 250 people throughout its various locations. The respondent’s headquarters are
located in Long Island, New York, where it employs about 25 people who are engaged in
executive or administrative functions. Among these functions is a two-person human resources
department.
Kathryn Puma is the office manager and head of the two person human resource
department. Prior to the hiring of Brian Burns this department consisted or herself and Joe
Farruggio. The latter’s title was human resource specialist. Because Farruggio was leaving the
company in August, an advertisement was placed for the hire of his replacement. In pertinent
part, this read as follows: Human Resources Assistant

1
At times, the transcript lists the Judge as Judge Davis. This is incorrect and should be changed.
JD(NY)-25-16
2
We are seeking an ambitious HR professional to assist in the overall operations
of the HR department. Standard duties will include but not be limited to;
recruiting, employee relations, payroll, benefits and employment law.
5
* * * *
Preferred Skills and Abilities:
Full cycle recruiting; job descriptions, posting, screening and interviewing10
Familiar with employment law and main HR topics
Able to develop and assist in the employee orientation process
Familiar with ADP Workforce or similar payroll systems
Payroll, Time and Attendance, 401K and Custom reports preferred
Entry in payroll/ADP for Direct Deposit, Payroll changes, etc. 15
Communications oriented: Draft, Revise and Release Memos as needed.
Familiar with FMLA, COBRA & other notices
Familiar with I-9 documents and other HR paperwork
Knowledge of ACA compliance is a major plus
20
Preferred Education:
Bachelor’s, Master, MBA, PHR and SHRM-CP all major pluses
In response, Brian Burns sent in his resume. In his resume, he represented his 25
qualifications, work experience, and educational background in human resources. In part this
states:
Qualifications
30
Well versed in analyzing and executing recruitment strategies, human resource
functions, building the internal/external customer experience and leading change
management.
Successfully supported and executed the strategic direction of HR, including the 35
implementation of high-value added HR processes that support business
goals/objectives.
Proficient in creating a diverse workforce and having a compliance mindset as it
correlates to building an all-inclusive working environment.40
Expertise in various areas of local, state and federal employment and labor law and
effectively applying them to real life practical scenarios.
Demonstrated knowledge and abilities of various computer and HRIS systems45
Education
Doctor of Business Administration – Human Resource Management
Walden University – Online. 50
Anticipated Graduation Date – June 2017…
JD(NY)-25-16
3
Master of Science in Human Resource Management – General Human Resource
Management
Capella University
5
Master of Science in Human Resource Management Functional HR Management
Walden University
Bachelor of Science in Business Management and Economics with a concentration in
Human Resource Management10
SUNY Empire State College
On August 7, 2015, the company offered Burns the position of human resources
assistant. His starting salary was $45,000 per year with eligibility for medical, dental, long term
disability, and life insurance benefits after the standard probationary period. The offer also 15
provided for a 401K plan after 4 months of employment.
With respect to the hiring of Burns, Kathryn Puma testified that the company, in looking
for a replacement for Joe Farruggio, needed someone who would be able to replace his
functions. She also testified that a reason she decided to hire Burns was because from his 20
resume and interview, he represented himself as being knowledgeable about compliance
issues. That is, she credibly testified that the company was growing pretty fast, and that it
needed someone who was familiar with Federal, State, and local laws relating to employment
so as to insure that the company would be in compliance with those laws.
25
Burns began his employment on August 10 and lasted until August 25. At the start of his
employment Burns was trained in the company payroll, computer, and other systems by
Farruggio who remained on for a few days. It should be noted that because Burns was
employed for only 2 weeks, he did not actually get to perform many of the functions for which he
was hired. And so in his brief tenure, his ultimate job duties and responsibilities never fully 30
jelled. He did, however, have access to confidential employee files, which were kept under lock
and key.
On Wednesday, August 19, during a discussion with Puma about employee background
checks, Burns told her that he had been arrested for larceny and had pleaded guilty to a lesser 35
offense. She told him that if she had known that, she wouldn’t have hired him.
Over the next several days, Burns, by going into the employee personnel files and
reviewing payroll records, accumulated a batch of information that he put together into a
document that he emailed to Puma on August 24. When he arrived at work on the 25, Burns 40
met with Puma and she read this document as it was being printed out. At the conclusion of her
reading, she told Burns that he was fired.
Before describing this document, I note that Burns did not discuss with any employees
any of the issues that are set forth in the document. Burns spoke to no employees and no 45
employees spoke to him about any complaints that they may have had about their wages or
working conditions. No employee expressed any interest in forming or joining a union and he
had no conversations with any employee about unionization. Indeed, given his conversation
with Puma on Wednesday and given Burns’ knowledge of employment law, it is obvious to me
that the only reason he wrote this letter was to see if he could retain his job by threatening legal 50
JD(NY)-25-16
4
actions against the company; or if that failed to a establish a foundation for a retaliation claim. I
don’t believe that he was interested in furthering the interests of the other employees.
That said, the memorandum states in pertinent part:
5
I have some major concerns about the workplace at Matrix …
The first thing I want to discuss is that Chris Nelson is a self-proclaimed racist.
On August 7, he stated that he is a … racist and was proud of it…
10
The second aspect I am very concerned about is that the company radio plays
a plethora and variety of different song/genres throughout the day every day.
The radio does not have colorful and expletive language censored…. This is
certain not professional for anyone to have to listen to in the workplace.
15
In New York State, each and every employee regardless of whether they are
exempt or nonexempt needs a Notice of Pay form. This form is defined within
section 195 of the NYSLL. I have found with spot-checking employee files….
that they do not have this form or perhaps an incomplete form within their
folders… 20
I have also spot checked a lot of NYS employee file folders and have found that
they are not receiving the NYS IT-2104 form. This form is the NYS tax form that
must be in each employee’s folder along with the W-4 form or can be in lieu of
the W-4 form, according to the NYS Department of Taxation.25
On another note, I do not see anywhere in the workplace the required minimum
wage poster, discrimination is unlawful poster, the workers compensation
certificate, Article 23-a of the Correction Law of NYS and other required posters
both state and federal ones posited conspicuously in the workplace. 30
Moving on towards payroll related issues, I notice that there are employees …
in payroll that do not earn enough to be placed in the exempt level status….
I also noticed that many NYS employees are not punching in and out for the 35
mandatory 30 minute breaks when working a shift of more than 6 hours….
The paid time off policy… is subpar at best. Between the misclassification of
employees from exempt and nonexempt, wage disparities and subpar
compensatory, medical, dental etc. benefits… I have and will continue to give 40
serious thought in regards to contacting the NLRB and attempting to organize
and eventually hope to form a union.
Salaries of some of the workers are below the average demographic salary
range for what is required of them and I believe that many employees are 45
classified in the exempt status are more than likely misclassified and should be
reclassified in nonexempt status. My position for example, does not rise to the
level of an exempt level classification. I merely perform tasks that are given to
me, have direct oversight from an hourly manager (Kathryn Puma) and do not
have the level of discretion and independent judgment, amongst other 50
requirements that an exempt level position should be. Therefore, I request that I
JD(NY)-25-16
5
am reclassified as a nonexempt level employee. I am requesting back wages
with interest and will seek further redress through the courts or the NY
Department of Labor accordingly.
On Wednesday August 19, 2015, I presented information to you regarding my 5
background check results from Castlebranch… I came forth to you… and stated
that I had a conviction that came up on my background check. When I returned
with my background screening results … you looked at my background check
and said that, “if I would have known about this before, I would not even have
hired you.” I stated that I put this information on my employment application and 10
was honest from the beginning. You stated… that my conviction was for a
grand larceny and I stated that that was the original arrest charge and that you
cannot go by that because it was dropped down to a misdemeanor petit larceny
conviction….
15
In regards to hiring … Christina Whitehurst is clearly age biased and sex biased
as well. She stated to me… that she would rather fill Peter’s position with a girl
than a guy. Her stated reasoning for this is because she and her team will be
able to get along with a girl better than a guy.
20
On August 21, 2015, Ms. Whitehurst spoke to me about the same staff
accountant position. She said that she wants someone young, fresh and still
“hungry” to fill the upcoming vacancy. I informed her that we needed to pick the
most qualified candidate regardless of anything else. She stated that she would
rather have a girl fill the vacancy rather than a guy, citing alleged team dynamic 25
issues.
All of these workplace issues are very serious, can have severe repercussions
and can be terminally detrimental to the overall stability and integrity of the
employees and the company alike. These issues are severe and pervasive 30
enough in some instances to rise to the level of a racially hostile work
environment, age biased, sex biased and previous conviction biased workplace.
I have been deeply affected by these issues and will not tolerate them anymore.
Therefore, due to the severity, frequency and continuity of these egregious
violations, I am going to report them to various governmental agencies 35
accordingly. These agencies will include but not be limited to the following: The
New York State Department of Labor, the New York State Division of Human
Rights, the Equal Employment Opportunity Commission, the New York State
Attorney General, the National Labor Relation Board and any other agency that
I deem suitable to report these violations to. 40
With respect to the conversation on August 25, Puma credibly testified that after she
read the email, Burns stated that he couldn’t work under these conditions and that he was
sending all of this information to all of the governmental agencies. Puma testified that she felt
betrayed and that she told Burns that he was not a team player and that he needed to go. 45
Puma’s testimony was that she fired Burns not because he raised issues about wages or
terms of employment (which was part of his job), but because instead of seeking to discuss and
resolve those issues internally as a member of the human resources department, he threatened
to initiate (without the consent or support of any other employees), legal proceedings that could 50
potentially cause the company to incur substantial liabilities.
JD(NY)-25-16
6
Analysis
It is the General Counsel’s theory that by discharging Burns for writing the letter of
August 24, the Respondent violated Section 8(a)(1) because it sought to prevent Burns from 5
engaging in some future protected concerted activity. Thus, the General Counsel, relying on
Paraxel International LLC, 356 NLRB 516 (2001), asserts that it is unlawful for the employer to
“pre-emptively” discharge an employee to prevent him from engaging in protected activity. He
argues that this is true even in instances where an employee has not yet actually engaged in
concerted activity. 10
I do not agree for the following reasons.
In Paraxel the facts were that the charging party, Therese Neuschafer, had engaged in
discussions with fellow employees about the relative wage rates given to some but not other 15
employees. She thereupon reported those discussions to her immediate supervisor and
suggested that perhaps everyone should quit and come back with a raise. This was reported to
management and Neuschafer was called in for a meeting. When satisfied that Neuschafer had
not yet stirred up any concern about wages or possible discrimination among other employees,
the Respondent discharged her before she could do so.20
The facts in Paraxel show that the charging party had engaged in discussion with other
employees about their respective wage rates, which would be protected concerted activity for
which she could not be discharged. Therefore, under existing law, a discharge of an employee
for engaging in that kind of activity would have, by itself, been a violation of the Act. The fact 25
that the Respondent may also have been motivated by a desire to prevent her from continuing
to engage in similar concerted activity in the future is simply gilding the lily.
In the present case, Mr. Burns, although reciting a litany of alleged labor violations in his
August letter, never had any discussions with any employees about any of these issues. And I 30
don’t believe that he ever intended to. Indeed, it is my conclusion that he was interested only in
protecting his own job by threatening to initiate a variety of legal actions and that he had no
interest in promoting, supporting, or assisting other employees in seeking to address any of
those issues. Nor do I believe that he had any intention of trying to convince other employees
to join or assist a union. 35
In addition, although Burns did not work long enough for us to be certain as to what his
ultimate functions would have been, it seems to me that both his and the company’s intention
was that he would be utilized in a professional/managerial position. In this regard, the
company’s job advertisement was for a person with a professional education in human 40
resources who would be involved, inter alia, in addressing legal issues relating to employment.
For his part, Burns represented that he was soon going to obtain a PHD in human resources
and that he had “expertise in various areas of local, state and federal employment and labor law
and effectively applying them to real life practical scenarios.” It is therefore my conclusion that
the intention of both parties was that Burns would be utilized to formulate labor relations policies 45
so that the company would be in compliance with the various Federal, State, and local laws that
regulate employment relations.
It seems to me that one of the functions of a human resource professional is to help his
or her employer avoid (but not evade), potential legal liabilities that can arise in the course of 50
doing business. In my opinion, a person in Burn’s position is essentially more aligned with
JD(NY)-25-16
7
management and has the job of advising his employer as to how to comply with the law. And if
he finds during the course of his employment, that there are practices or procedures that may
be contrary to law, his function is to devise, in consultation with his superiors, remedies to
redress those situations where potential liabilities may arise. In my opinion, it is not the job of
such a person to surprise his employer by first initiating, on his own initiative, legal actions 5
against his own company.
In short, I conclude that because Burns was hired as a human resources professional,
his position was aligned with management and he should be construed as a managerial
employee. As such, I conclude that he does not enjoy the protection of the Act. See NLRB v. 10
Bell Aerospace Co., Div. of Textron, Inc., 416 U.S. 267 (1974). Cf. Solartec, Inc., 352 NLRB 331
(2008), where the Board although finding that the employee was not a managerial employee,
nevertheless opined that managerial employees are not protected by the Act. 2
For the reasons described above, I therefore recommend that the complaint be 15
dismissed.
Dated, Washington, D.C. July 12, 2016
20
________________________
Raymond P. Green
Administrative Law Judge
25
30

2
In NLRB v. Yeshiva University, 444 U.S. 672, 687– 688 (1980), the Supreme Court pointed out that the
purpose of exempting managerial employees from the Act’s protection is to ensure “that employees who
exercise discretionary authority on behalf of the employer will not divide their loyalty between employer
and union.”