Murbro Parking, Inc.

National Labor Relations Board - Board Decisions

Jul 26, 1981

266 N.L.R.B. 1133 (N.L.R.B. 1981)

MURBRO PARKING, INC.
Murbro Parking, Inc. and Service Employees Inter-
national Union, Local 200, AFL-CIO. Case 3-
CA-10523
26 July 1981
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On August 30, 1982, Administrative Law Judge
James T. Youngblood issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief and the General
Counsel filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Murbro Parking, Inc., Syracuse, New York, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from its records and files any and
all references to the unlawful discharge of employ-
ee Lawrence Reil and notify him, in writing, that
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951). We have careful-
ly examined the record and find no basis for reversing his findings.
We find merit in the General Counsel's cross-exception to the Adminis-
trative Law Judge's failure to find that the statement by Supervisor
Schioppa to employee Reil that Schioppa had observed Reil "talking
union" to other employees and knew that Reil had met with a union busi-
ness agent constituted an additional instance of unlawfully creating the
impression of surveillance, in violation of Sec. 8(a)(l) of the Act.
The complaint identifies Schioppa as having made statements which
gave the impression that the union activities of Respondent's employees
were under surveillance; Schioppa's statement to Reil in this regard was
fully litigated, and, at the close of the hearing, the General Counsel
moved to conform the pleadings to the proof during the hearing and said
motion was granted.
266 NLRB No. 199
this has been done and that evidence of this unlaw-
ful discharge will not be used as a basis for future
personnel actions against him."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT inform our employees that
their union meetings or union activities are
under surveillance.
WE WILL NOT engage in surveillance of our
employees' union meetings or union activities.
WE WILL NOT discourage membership in
Service Employees International Union, Local
200, AFL-CIO, or any other labor organiza-
tion, by discharging our employees, or in any
other manner discriminate against our employ-
ees in regard to hire, tenure, or any other term
or condition of employment.
WE WILL NOT In any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed to
them in Section 7 of the Act.
WE WILL offer Lawrence Reil immediate
and full reinstatement to his former position
and make him whole for any loss of earnings
suffered by reason of his discharge, with inter-
est.
WE WILL expunge from our records and
files any and all references to the unlawful dis-
charge of Lawrence Reil, and WE WILL notify
him, in writing, that this has been done and
that evidence of this unlawful discharge will
not be used as a basis for future personnel ac-
tions against him.
MURBRO PARKING, INC.
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge:
This matter was heard before me on May 24 and 25 and
June 3 and 4, 1982, in Syracuse, New York, pursuant to
a complaint which issued on July 31, 1981, alleging that
Murbro Parking, Inc. (herein Murbro or Respondent),
engaged in certain conduct violative of Section 8(a)(1) of
the Act and discharged Lawrence A. Reil in violation of
Section 8(a)(3) of the Act. Respondent filed an answer
denying the commission of any unfair labor practices and
the jurisdiction of the National Labor Relations Board in
this matter.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. THE BUSINESS OF RESPONDENT AND JURISDICTION
OF THE BOARD
Respondent is a New York corporation owned equally
by two brothers, John and Donald Murphy. Respondent
is engaged in the operation of approximately 15 to 16
parking lots and 4 parking garages in the Syracuse, New
York, area. It is one of the two largest businesses of its
type in Syracuse, the other being Allright Parking.
Ninety percent of Respondent's business is from individ-
ual customers who drive to the downtown Syracuse area
to go to work, attend court hearings, and go shopping.
The other 10 percent of the parking spaces are utilized
by those who have made monthly group parking ar-
rangements. Respondent also operates an 1,800 space lot
at the Syracuse airport, which is used by employees of
the airport as well as customers who use the airport,
such as passengers who may fly to points located outside
the New York area. Respondent admits that the airport
parking facility generates about $1 million in annual rev-
enue. Additionally, Respondent admits that it receives
gross revenues in excess of $500,000 for its business oper-
ations in Syracuse. Respondent's product is sold to the
ultimate consumer and its operations are designed for the
ultimate consumer. Therefore, it may be viewed as being
primarily retail in nature and, as it receives more than
$500,000 in gross revenue, it satisfies the Board's mone-
tary jurisdictional test for retail enterprises. See Margate
Bridge Co., 247 NLRB 1437 (1980). Additionally, as Re-
spondent annually purchases more than $10,000 in goods
and supplies from enterprises located outside the State of
New York, it meets the Board's legal jurisdictional stand-
ard. Therefore, it is my conclusion that the Board has
legal jurisdiction and it would exercise its discretionary
jurisdiction over this employer, and I so find. Therefore,
it is my conclusion that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act. t
11. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Service Employees
International Union, Local 200, AFL-CIO (herein the
Union), is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
As indicated, Murbro operates a series of parking lots
in the Syracuse area. It employs parking lot attendants,
cashiers, and lot checkers, who earn the minimum wage
and receive no benefits. At any one time Respondent
may employ between 15 and 22 employees to operate its
downtown Syracuse parking facilities. Respondent also
operates a parking lot at the municipal airport where it
employs an equal number of employees. This parking lot
is not involved in this proceeding. Needless to say, Re-
spondent experiences a large turnover in personnel.
I The Employer's airport operation alone grosses in excess of $1 mil-
lion in revenue, and it is reasonable to assume that at least $50,000 of this
revenue was derived from passengers engaged in interstate travel. There-
fore, Respondent's operation is an essential link in interstate commerce.
See Airlines Parking. Inc., 196 NLRB 1018 (1972).
Larry Reil was hired in mid-December 1980, and
worked continuously until June 12, 1981.2 Reil was clas-
sified as a lot checker which required him to make the
rounds of unattended lots to check the payment boxes. 3
Between the hours of 7:30 and 9 a.m., he assisted in park-
ing cars at one of the lots. All the lots checked by Reil
were located in the immediate downtown area and he
made his rounds on foot. After 9 a.m., he would begin
his rounds of the unattended lots. At each lot he would
record the license number of the car which occupied
each space and the amount of money deposited in the
payment box. The first tour of the lots was the longest
tour as the lots filled up in the mornings. On his subse-
quent tours Reil needed only to record the new cars in
the lot and the money deposited by the new customers
and he was able to finish these rounds more quickly.
Reil was required to be at the State and Washington
lot at the beginning of his second round before 12:30
p.m., when the Murphy brothers arrived to collect the
moneys in that payment box. Additionally, he had to
unlock the chain at the Civic Center lot at 3 p.m., in
order to permit the customers there to leave the lot as
they came out of work. After dropping the chain at the
Civic Center lot, Reil then returned to the Hotel Syra-
cuse garage office at or about 3:05 p.m. He then filled
out his lot sheet headings for the following day, filed his
completed lot sheets in the bottom drawers of the desk,
and punched out at approximately 3:16 p.m. each day.4
One morning during the week ending on June 12, Reil
initiated a discussion among the employees regarding the
benefits of unionization. This took place in the Hotel
Syracuse office. Ed Sellars, the maintenance man for the
Hotel Syracuse garage, Joe Seaver, the night ticket
booth attendant, and Jim King, the cashier, were parties
to this conversation. The employees talked about higher
pay, health and welfare benefits, a union contract, and
the fact that the Allright Parking lot attendants were
unionized. 5
Later that morning in a parking lot, Reil was ap-
proached by Bill Giblin, a union steward and an employ-
ee of Allright Parking. Giblin asked Reil whether
Murbro employees were going to be organized and Reil
told him that they had been talking about it. At that
point Giblin offered to call the union representative,
Jerry Dennis, to talk to Reil. Later Reil met with
Dennis. They walked out of the lot and stood between
2 Unless otherwise indicated all dates refer to 1981.
3 In the unattended lots the customer would park his car and place his
money in a numbered slot in a box which corresponded to the numbered
parking space in which his car was parked. It was Reil's job to check the
payment box.
4 In February, Reil had been advised by Sherry Bixler, the office
worker who was responsible for checking the timecards, that he could
punch out at 3:16 p.m. if he desired. Although Bixler holds no managerial
position and no supervisory authority, she testified that she had told Reil
this and that this practice was permitted. Respondent did not deny that
Reil had been punching out at 3:16 from February on, and that he contin-
ued to be paid for his entire 8-hour workday without any complaint.
5 Reil's recollection was that these conversations took place on June
12. The other employees involved in that conversation as well as the tes-
timony of other General Counsel witnesses indicated that these discus-
sions occurred prior to June 12. In any event, all the witnesses indicated
that these conversations and other discussions about the Union as well as
union meetings all were discussed prior to June 12.
1134
MURBRO PARKING, INC.
two buildings and discussed the organization of a union
at the Murbro Parking lots. Reil reported that he had
talked to several employees and they were in favor of
the Union. Dennis advised Reil to get the names and lo-
cations of those who were interested in the Union and
Dennis arranged to meet Reil with the interested em-
ployees in the evening at the Back Door Restaurant in
Syracuse. Thereafter, Reil advised a number of employ-
ees of the meeting with the union representative to be
held on June 12.
On June 12, when Reil was making his final tour of
duty he observed Peter Schioppa, general manager for
Murbro, backing up his truck to the payment box at the
Civic Center parking lot, Reil's last stop of the day.
Schioppa looked at Reil after he got out of his truck and
turned around twice to watch Reil as he walked up the
street. According to Reil, it was unusual for Schioppa to
be in that lot at that particular time of day. Schioppa ad-
mitted this when he was on the stand. It started to rain
as Reil checked the lot, finished up his work, and re-
turned to the hotel garage office at a few minutes after 3
p.m. As he normally did he sat at the desk and filled out
his lot sheets, and filed his lot sheets in the bottom
drawer, and prepared the new sheets for the next work-
day. Another employee, Ed Sellars, was sitting on the
desk and Jim King was standing in the doorway of the
office. They were all talking, and it was raining hard
outside, when Schioppa, who appeared very angry and
upset, came into the office and pointed to Ed Sellars and
stated that as he had nothing to do he should punch out.
Schioppa then pointed to Reil and said the same thing.
Reil was very surprised but, nevertheless, he and Sellars
punched out and left the office. King returned to his
ticket booth and he was not reprimanded or disciplined
in any way over this incident.
That night at the union meeting at the Back Door Res-
taurant only Dennis, the union representative, and Reil
showed up. Sherry Bixler credibly testified that Schioppa
had told her that he was aware that there was going to
be a union meeting at the Back Door, and he knew that
Larry Reil was involved in setting it up; that he,
Schioppa, was going to park his truck across the street
from the Back Door Restaurant and wait to see who at-
tended the meeting. Bixler related this fact to Jim King
and they decided against going to the meeting because
they felt that their jobs would be in jeopardy. According
to Reil, he was not certain that he was discharged on
June 12, but over the weekend he talked to employees
King and Dave Gross who informed him that they had
heard that he had been fired. Reil checked the timecards
at the parking lot and saw that his card along with Sel-
lars was missing from the rack.
On the following Monday morning, June 15, Reil re-
ported to work as usual. Joe Seaver approached him and
told him that Schioppa had instructed Seaver to have
Reil turn in his keys, that he, Reil, had been fired. Reil
went in to see Schioppa in the trailer office and
Schioppa told him that he was all through. In response
to Reil's question as to why, Schioppa stated, "You were
hanging around the office too long for the last two
weeks." Reil stated that this was not true and he in-
formed Schioppa that the real reason he was being fired
was because he had tried to organize a union and
Schioppa stated, "Well, I observed you talking union
with Bill Waddington and Dave Gross. And, I also knew
that you met Jerry Dennis in an Allright Parking Lot."
There is no doubt that Reil was a conscientious em-
ployee and this record so indicates. Also this record re-
flects that Respondent had not disciplined Reil in any
way and had apparently considered him as a good em-
ployee and one on which they could rely.
Discussion and Conclusions
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) by Schioppa's statement to Bixler that he was
going to wait outside the Back Door Restaurant and see
what employees attended the union meeting. Additional-
ly, the complaint alleges that the discharge of Larry Reil
was because of his union activities in violation of Section
8(a)(3) of the Act.
Respondent denies the statement attributed to
Schioppa and contends that Larry Reil was discharged
for cause; namely, that he was hanging around the office
too much.
In my view, this is a routine. typical garden variety
case. Here the employees of this parking lot attempted to
organize a union ostensibly to better their situation. They
wanted to increase their income which was the minimum
wage allowable under Federal law, and to get some ben-
efits as they had none. The employer learned of the or-
ganizational activity of its employees and swiftly dis-
charged the leading union adherent and troublemaker.
Thus, the union organizational drive is quashed and the
employer no longer fears the union for the time being.
This record clearly reflects that Larry Reil was a con-
scientious employee who performed his duties in a re-
sponsible manner and was well thought of by his superi-
ors. He also was instrumental in starting an organization-
al campaign at Respondent's facility. Although Reil testi-
fied that he thought all of this activity occurred on June
12, the date he was discharged, the other employees
seemed to believe that some of the activity occurred
shortly before his discharge. At the time of the hearing
this matter was over a year old. In any event, all the em-
ployees testified that the union activities of Reil occurred
prior to his discharge and the conversations between
Bixler and Schioppa occurred prior to his discharge.
There is no doubt that the union activity occurred prior
to June 12 and that Schioppa was aware of this fact prior
to the discharge of Reil on June 12. Thus, Respondent
clearly had knowledge of Reil's union activities, and I so
find.
Based on the testimony of Reil as to what Schioppa
related to him at the time of his discharge, that he had
seen him discussing the Union in the parking lot with
two employees, and this was the real reason for his dis-
charge, I conclude that Respondent discharged Reil for
his union activities. Additionally, I find that the alleged
reason given by Respondent for the discharge was total-
ly pretextual. I find it inconceivable that this Respondent
would have discharged a conscientious employee like
Reil merely because he was sitting on a desk doing noth-
ing shortly before his workday expired at or around 3:30
1135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
p.m. Respondent was aware of the fact that Reil had
been clocking out early since February, and it did noth-
ing about this prior to learning of the union organization-
al campaign. This conduct clearly leads me to believe,
and I find, that Respondent's discharge of Reil was based
in part on his union activities. Additionally, I find that
the statement by Schioppa to Bixler that he was going to
watch the union meeting at the Back Door Restaurant to
find out who was present was clearly an indication to
employees that their union meetings and union activities
were under surveillance by Respondent, and was viola-
tive of Section 8(a)(l) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occur-
ring in connection with Respondent's operations, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor dispute, burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I shall recommend that Respondent be or-
dered to cease and desist therefrom, and take certain af-
firmative action designed to effectuate the policies of the
Act.
As I have found that Respondent unlawfully dis-
charged its employee Lawrence Reil, I shall order that
Respondent offer reinstatement to Lawrence Reil and
make him whole for any loss of earnings he may have
suffered as a result of the unlawful discrimination in a
manner prescribed by the Board in F. W. Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977)6
Upon the foregoing findings of fact and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Murbro Parking, Inc., Respondent herein, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Service Employees International Union, Local 200,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By informing its employees that their union meet-
ings are under surveillance, Respondent has engaged in
conduct violative of Section 8(a)(1) of the Act.
4. By discriminatorily discharging its employees be-
cause of their union activities, Respondent has discour-
aged membership in the Union in violation of Section
8(a)(1) and (3) of the Act.
The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6 See, generally, tIis Plumbing & Iteating Co., 138 NLRB 716 (1962)
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 7
The Respondent, Murbro Parking. Inc., Syracuse,
New York, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Informing its employees that Respondent has their
union meetings or activities under surveillance.
(b) Engaging in surveillance of its employees' union
meetings or union activities.
(c) Discouraging membership in Service Employees
International Union, Local 200, AFL-CIO, or any other
labor organization, by discharging employees, or in any
manner discriminating against its employees in regard to
hire, tenure, or other terms or conditions of employment.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Lawrence Reil immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and
make him whole for any loss of earnings suffered by
reason of his discharge in the manner set forth in the sec-
tion herein entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
and the right of reinstatement on the terms of this Order.
(c) Post at its various parking lots in and around Syra-
cuse, New York, where its employees customarily work
copies of the attached notice marked "Appendix."8
Copies of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by Re-
spondent's representatives, shall be posted by Respond-
ent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1136