Success Village Apartments, Inc.

National Labor Relations Board - Board Decisions

Aug 28, 2006

347 N.L.R.B. 1065 (N.L.R.B. 2006)

SUCCESS VILLAGE APARTMENTS
347 NLRB No. 100
1065
Success Village Apartments, Inc. and International
Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America, Local
376, AFL–CIO. Cases 34–CA–9889–2, 34–CA–
9908, 34–CA–9949, 34–CA–10007, 34–CA–
10072, 34–CA–10172, 34–CA–10177, 34–CA–
10205, 34–CA–10206, 34–CA–10222, 34–CA–
10260, 34–CA–10296, 34–CA–10297, 34–CA–
10357, 34–CA–10358, 34–CA–10543, 34–CA–
10544, 34–CA–10545, 34–CA–10554, 34–CA–
10555, 34–CA–10566, and 34–CA–10697
August 28, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 30, 2004, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,1 and conclusions2 as
modified below, and to adopt the Order as modified and
set forth in full below.
I. THE JUDGE’S PROCEDURAL RULINGS
The Respondent has filed exceptions to several of the
judge’s procedural rulings. We find no merit in these
exceptions.
First, the Respondent argues that the judge improperly
granted a motion by the Connecticut State Attorney Gen-
eral to quash a subpoena requiring state mediator Tho-
mas Sweeney to testify at the hearing on the Respon-
dent’s behalf. We find that the motion was properly
granted, as Board policy does not permit a party to com-
pel a mediator to testify in Board proceedings. See, e.g.,
J. W. Rex Co., 308 NLRB 473 fn. 2 (1992), enfd. mem.
998 F.2d 1003 (3d Cir. 1993); Tomlinson of High Point,
Inc., 74 NLRB 681, 684–685 (1947).

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
2 There were no exceptions filed with respect to the allegations dis-
missed by the judge.
Second, the Respondent argues that the judge improp-
erly admitted into evidence the affidavit of the Respon-
dent’s former manager, George Heil, which was taken ex
parte by the General Counsel after Heil ceased working
for the Respondent. We reject this argument. Pursuant to
Section 10058 of the Board’s Casehandling Manual, Part
I, the General Counsel’s investigatory policy takes into
consideration ethical standards applicable to Board attor-
neys, particularly the Model Code of Professional Re-
sponsibility 4.2 (MR 4.2), as well as the varying ethical
codes of State jurisdictions. Connecticut Rule of Profes-
sional Responsibility 4.2, which is essentially the same
as MR 4.2, permits ex parte contact between a govern-
ment agency and former employees of a represented ad-
verse party. United States v. Housing Authority of Mil-
ford, 179 F.R.D. 69, 71–72 (D.Conn. 1997), citing Du-
bois v. Gradco, 136 F.R.D. 341 (D.Conn. 1991). An
exception exists for former employees who become trial
consultants for their former employer by virtue of exten-
sive involvement in gathering evidence and preparing for
litigation, and as such are likely to be privy to privileged
information. E.g., MMR/Wallace Power and Industrial
Inc. v. Thames Assoc., 764 F.Supp. 712 (D.Conn. 1991).
The Respondent bears the burden of showing that Heil’s
affidavit should be excluded under this exception. Hous-
ing Authority of the Town of Milford, supra, 179 F.R.D.
at 73–74. We find that the Respondent has failed to meet
this burden.3 There is no evidence of extensive dealings
between the Respondent and its former manager Heil in
preparation for this unfair labor practice litigation. Ac-
cordingly, we reject the Respondent’s argument that
Heil’s affidavit was improperly obtained.
We also reject the Respondent’s argument that it was
prejudiced by the General Counsel’s failure to provide
the affidavit in advance of Heil’s testimony. Pursuant to
Section 102.118(b) (1) of the Board’s Rules and Regula-
tions, the Respondent was provided with the affidavit at
the hearing prior to its cross-examination of Heil and it
had an opportunity to cross-examine Heil about his prior
statements.
Finally, the Respondent argues that the judge improp-
erly allowed Union Representative Russell See to testify
in rebuttal to Respondent witness Mark Zaken because
See allegedly had the opportunity to hear about Zaken’s

3 Compare MMR/Wallace, supra, 764 F.Supp. at 723–725 (former
employee functioned “almost exclusively” as trial consultant and para-
legal with extensive contact with counsel, substantial disclosure of
work product, and ongoing access to litigation materials and strategy),
with Housing Authority of the Town of Milford, supra, 179 F.R.D. at 69
(former employee not deemed a “trial consultant” based on having had
one meeting with former employer’s attorney about which no specifics
offered). Moreover, we note that the Respondent does not claim that
Heil’s affidavit actually contains any privileged information.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1066
testimony prior to testifying. However, the Respondent
has presented no evidence to establish that See had prior
knowledge of Zaken’s testimony or that the judge’s se-
questration order had been violated. Therefore, we find
that the judge properly allowed the testimony.
II. THE UNFAIR LABOR PRACTICE ALLEGATIONS
A. Introduction
Respondent Success Village Apartments is a residen-
tial cooperative development comprising 97 buildings
covering about 40 acres of land. The cooperative is run
by a 9-member board of directors, which is composed of
individuals who reside in the complex and who are
elected by the other residents. The board employs a
management company to oversee the daily operations of
the complex. The Respondent’s employees have been
represented by the Union since about 1975.
In August 2001, the board of directors chose WC&F
Real Estate and Development Corporation (WC&F) to
manage the property because it believed that the com-
pany could effectively deal with various problems it had
with the operation of the complex. In particular, the
board expressed concerns that employees were ineffi-
cient and unproductive, and that the Union had opposed
past attempts to make employees more efficient. The
record shows that within a few months after WC&F took
over management of the Respondent’s property, the rela-
tionship between the Respondent and the Union became
rancorous. It was in this context that the allegations of
unfair labor practices that were litigated in this proceed-
ing arose.
B. Alleged Disparagement of the Union
The judge found that the Respondent’s board member,
Robert Marcinczyk, violated Section 8(a) (1) of the Act
by making disparaging remarks to Union Representative
Russell See in the presence of unit employee Una Boul-
ware. Marcinczyk had served as a shop steward for the
Union pursuant to his employment at Milford Jai Alai,
and had known See for several years relative to that em-
ployment prior to becoming a board member with the
Respondent.4 The credited testimony, set forth more
fully in the judge’s decision, establishes that on Decem-
ber 7, 2001, as See was leaving the Respondent’s office,
Marcinczyk yelled at See that he should tell the employ-
ees how he “fucked us over at Jai Alai,” caused the place
to close, and that he would “end up fucking this place
up” as he had at Milford. The judge concluded that these
statements, made in the presence of a unit employee,

4 Marcinczyk resigned his position as a shop steward at Milford Jai
Alai in April 2001 when he was elected president of the Respondent’s
board.
undermined the Union and were therefore coercive. We
disagree.5
“It is well settled that the Act countenances a signifi-
cant degree of vituperative speech in the heat of labor
relations. Indeed, ‘[words] of disparagement alone con-
cerning a union or its officials are insufficient for finding
a violation of Section 8(a)(1).’” Trailmobile Trailers,
LLC, 343 NLRB 95, 95 (2004), quoting from Sears, Roe-
buck & Co., 305 NLRB 193 (1991). Such statements by
an employer constitute protected free speech under Sec-
tion 8(c) of the Act unless conveyed in a coercive con-
text.
Marcinczyk’s remarks may have disparaged See and,
by implication, the Union, but they did not suggest the
futility of union representation or convey any express or
implicit threats against union activity. On the contrary,
Marcinczyk’s statements reflected his personal dissatis-
faction with See’s past representation of employees in
the Milford Jai Alai bargaining unit and his view that the
Respondent’s employees would fare no better with See’s
representation. In these noncoercive circumstances, the
disparaging statements did not violate Section 8(a)(1) of
the Act as alleged.
C. The December 2001 Layoff
The judge found that the Respondent’s seasonal layoff
of employee Dennis Brown on December 7, 2001, was
unlawfully motivated by animus against his union activi-
ties. The Respondent argues that this finding should be
reversed because the complaint allegation that Brown’s
layoff was unlawful was based upon a charge that was
not timely filed within the meaning of Section 10(b) of
the Act.6 We find merit in the Respondent’s argument.
On April 22, 2002, the Union filed a charge alleging
since on or about April 2001, and continuing within the
past six-months, the [Respondent] has been engaged
[in] a course of action designed to undermine the Un-
ion . . .by eliminating bargaining unit jobs, changing
the hours of employees, and otherwise changing the
terms and conditions of employment of employees.
The charge was amended in December 2002 to specifically
allege that the Respondent tried to undermine the Union by,
among other things, laying off Dennis Brown in December
2001.
We agree with the judge that the December 2002
amended charge was not timely filed within 6 months of
Brown’s layoff, and that the allegation that Brown’s lay-

5 Member Liebman would affirm the violation found by the judge,
for the reasons stated in his decision.
6 Sec. 10(b) provides that “[n]o complaint shall issue based upon any
unfair labor practice occurring more than six months prior to the filing
of the charge with the Board . . . .”
SUCCESS VILLAGE APARTMENTS 1067
off was unlawful can withstand the Respondent’s chal-
lenge under Section 10(b) only if it is closely related to
the allegations in the charge that was filed in April. See
Redd-I, Inc., 290 NLRB 1115 (1988). Unlike the judge,
however, we do not find that the amended charge allega-
tion was closely related to the original allegations in the
April charge.
In determining whether the layoff allegation in the
amended charge was closely related to the allegations in
the original charge, we consider the following factors:
(1) whether the allegation involved the same legal theory
as the allegations in the original charge; (2) whether the
otherwise untimely allegation arose from the same fac-
tual circumstances or sequence of events as the allega-
tions in the original charge; and (3) whether the Respon-
dent would raise similar defenses to both allegations.
See Nickles Bakery of Indiana, 296 NLRB 927, 928
(1989).
Although both allegations are based on a similar legal
theory—that the Respondent violated Section 8(a)(3) by
discriminating against employees and attempting to un-
dermine the Union—the allegation about Brown’s layoff
did not arise from the same set of facts as the allegations
contained in the original charge. Union Business Agent
Michael Langston testified that he filed the original
charge as a result of certain changes the Respondent
made in the shifts of boiler room employees in March
2002. The employees affected by the shift change were
John Netsel and Antonio Teja. Brown was not working
at the time the shift changes were made, as he had been
laid off from a nonboiler room position several months
earlier.
Further, the Respondent would not likely have raised
similar defenses to both allegations. Although prepara-
tion of a defense against any allegation of unlawful dis-
crimination would commonly involve presenting evi-
dence of reliance on a legitimate motive for acting, the
Respondent would not be expected to preserve and pre-
pare for use the same evidence of motivation for the sea-
sonal layoff of Brown as it would for the shift changes of
different employees in different jobs several months
later. Indeed, as far as the Respondent knew prior to the
filing of the untimely amended charge in December
2002, the Union was not claiming that Brown’s layoff
was discriminatory. To this point, the Respondent only
had to defend against the Union’s claim that the Respon-
dent did not have the unilateral management right to
make seasonal layoffs under the parties’ contract.7

7 On December 5, 2001, shortly after Brown was informed of his
impending layoff, the Union filed a charge alleging that the Respondent
violated Sec. 8(a)(5) by “laying off employees [and] by calling them
seasonal workers, when the contract has no provision for seasonal
In these circumstances, we conclude that the allegation
that Brown’s layoff was unlawful was not closely related
to the April charge. Accordingly, we dismiss the allega-
tion as time-barred.
D. The Respondent’s Refusal to Meet and Bargain Face-
to-Face with the Union
The judge found that the Respondent violated Section
8(a)(5) of the Act by refusing to engage in face-to-face
bargaining with the Union and by insisting on conduct-
ing negotiations in separate rooms through a mediator.
The judge also found that the Respondent violated the
Act by declaring impasse and unilaterally implementing
its bargaining proposals when the Union refused to bar-
gain under these conditions. The Respondent has ex-
cepted to the judge’s findings, arguing that the Union
had no interest in legitimate bargaining and that any
face-to-face meetings with the Union would not have
been productive. For reasons discussed below, we reject
the Respondent’s arguments and affirm the judge’s find-
ings.
The most recent collective-bargaining agreement be-
tween the parties expired on May 31, 2002.8 The parties
began negotiations for a new agreement on May 15, and
subsequently met on May 23, July 15, and July 22.
However, little progress was made during those sessions.
After the July 22 session, the Respondent requested the
aid of State Mediator Thomas Sweeney to help facilitate
negotiations, and the Union consented to Sweeney’s par-
ticipation.
The parties met with Sweeney at the Connecticut
Board of Arbitration on August 29. The Respondent’s
representatives arrived first for the meeting and met
separately with Sweeney for about an hour. When the
Union’s representatives arrived, Sweeney asked them to
wait in another room. Sweeney then met with the Un-
ion’s representatives and informed them that the Re-
spondent refused to meet in face-to-face bargaining ses-
sions and insisted on conducting bargaining with
Sweeney acting as the intermediary. The Union pro-
tested, asserting that the parties were far apart in their
positions and needed to deal with each other directly
across the table. The parties did not directly engage in
any contract discussions, and the session ended with no
agreement as to how future bargaining sessions would be
conducted.
Immediately after meeting with Sweeney, the Union
sent a letter to the Respondent demanding that the parties

workers.” This charge was dismissed, and the Union’s appeal of the
dismissal was denied. Subsequently, an arbitration panel found merit in
the Union’s contractual claim and ordered Brown reinstated.
8 All dates are in 2002 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1068
resume face-to-face negotiations. The Union asserted
that the parties were still in the early stages of negotia-
tions and were not “close to the point of needing a go-
between to arrange trade offs.” The Respondent replied
that it was willing to meet in separate rooms with a me-
diator acting as an intermediary. The parties did not en-
gage in any bargaining sessions after August 29.
The Respondent reiterated its bargaining conditions in
a September 29 letter to the Union. In early October,
based on the Union’s refusal to negotiate under the Re-
spondent’s conditions, the Respondent declared that the
parties were at impasse and unilaterally implemented its
proposals for a new contract.
We agree with the judge that the Respondent violated
Section 8(a) (5) of the Act by refusing to bargain with
the Union unless the sessions were conducted through a
mediator, with the parties remaining separated. Section
8(d) of the Act requires that employers and unions “meet
at reasonable times and confer in good faith” about terms
and conditions of employment. Here, we find that the
Respondent did not satisfy this requirement.
Mediation is a well-established means of facilitating
the process of collective bargaining. Where parties have
agreed to mediation, it is common practice for a mediator
to conduct separate meetings in attempting to explore
avenues for compromise and ultimate agreement. This
practice is not in conflict with the Act’s requirement to
meet and bargain in good faith.9 Indeed, it seems par-
ticularly well-suited for parties, such as the Respondent
and Union, who shared responsibility for a series of
heated and unproductive face-to-face meetings.
However, face-to-face meetings are the bargaining
norm and are routine even in mediated negotiations. In
this case, the Respondent unilaterally imposed the pre-
condition that the parties could not meet face-to-face.
Although parties may voluntarily agree to engage in me-
diation as a means of collective bargaining, the use of
mediation as a bargaining process is a permissive subject
of bargaining, and a party may not insist on mediation,
much less on a particular mediation format, to the point
of impasse. See Riverside Cement Co., 305 NLRB 815,
818–819 (1991), affd. mem. 976 F.2d 731 (5th Cir.
1992).10 That is what the Respondent did here after the

9 We disagree with the judge to the extent he suggests that bargain-
ing through a mediator would inhibit the parties from reaching agree-
ment.
10 We find no merit in the Respondent’s argument that Riverside
Cement is distinguishable from the situation here because Sweeney was
willing to mediate the negotiations. The Board’s decision in Riverside
Cement did not turn on the willingness of the mediator to participate in
negotiations. Rather, the Board found that “in general, an employer’s
obligation under Section 8(d) of the Act to meet at reasonable times
Union clearly expressed its position that direct, face-to-
face negotiations were necessary. Under the law set out
above, it was the Union’s prerogative to decline the Re-
spondent’s offer to bargain in separate rooms through a
mediator. Under the same law, the Respondent’s insis-
tence to impasse on this nonmandatory subject of bar-
gaining procedure is a violation of Section 8(a) (5).
The Respondent relies on the behavior of the Union’s
representatives in antecedent negotiations and grievance
proceedings to justify its insistence on this precondition
to further bargaining. The conduct of the Union’s nego-
tiators may have been confrontational and derisive of
management officials (and those officials at times re-
sponded in like manner), but the Respondent has failed
to show that this conduct rose to the level of bad-faith
bargaining that would excuse the Respondent from bar-
gaining altogether, e.g., Times Publishing Co., 72 NLRB
676, 683 (1947) (“a union’s refusal to bargain in good
faith may remove the possibility of negotiation and thus
preclude the existence of a situation in which the em-
ployer’s own good faith can be tested. If it cannot be
tested, its absence can hardly be found.”), or permit it to
impose conditions on negotiations, e.g., KDEN Broad-
casting Co., 225 NLRB 25, 35 (1976) (an employer is
justified in refusing to meet with a particular union rep-
resentative if there is “persuasive evidence that the pres-
ence of [that individual] would create ill-will and make
good faith bargaining impossible.”) We therefore agree
with the judge that the Respondent’s refusal to meet and
bargain with the Union face-to-face violated Section 8(a)
(5) of the Act, as did its subsequent unilateral implemen-
tation of new terms and conditions of employment in the
absence of a legitimate impasse in bargaining.
E. Raul DeSousa’s Disciplinary Warning
The judge found that the Respondent violated Section
8(a) (3) of the Act when it issued a written warning to
leadman Raul DeSousa on July 5, for allegedly failing to
assign work to union activists Dennis Brown and Anto-
nio Teja and allowing them to stand around the shop
area.11 At around 11:30 a.m. that morning, Property
Manager Francis Callahan entered the shop area and ob-
served that Brown and Teja were not working. In re-
sponse to questioning by Callahan, Brown stated that he
was working on in-walks (paved pathways on the Re-
spondent’s premises), but that no one had told him which
in-walks to do. Callahan subsequently disciplined
DeSousa for failing to make work assignments, but de-

with the employee representative is wholly independent of the willing-
ness of any mediator to participate.” 305 NLRB at 818.
11 The Respondent does not contend that DeSousa was a statutory
supervisor.
SUCCESS VILLAGE APARTMENTS 1069
cided not to discipline either Brown or Teja for being
idle because they had not been given assignments. There
is no evidence that DeSousa was a union activist, or that
the Respondent suspected that he was a union activist.
The warning issued to DeSousa stated that he had
failed to assign work to the employees from 10:15 to
11:50 a.m. The judge, however, credited Brown’s testi-
mony that both employees had been at the garbage dump
during most of that time, and had returned to the Re-
spondent’s property at approximately 11:20 a.m. Based
on this finding, the judge concluded that the reason given
for DeSousa’s discipline was false, and inferred that the
discipline was motivated by the Respondent’s animus
toward the union activities of Brown and Teja. Accord-
ingly, the judge found the discipline unlawful. We dis-
agree.
Under Wright Line,12 the General Counsel bears the
burden of establishing that the Respondent’s discipline of
DeSousa was unlawfully motivated. We find that this
burden has not been met. The General Counsel does not
argue that the warning was used to retaliate against
DeSousa for his own union activities, but rather argues
that the discipline was intended to discourage or retaliate
against support for the Union by Brown and Teja. How-
ever, the General Counsel has provided no basis for find-
ing that imposing discipline on DeSousa was intended to
serve any purpose other than assuring that an employee
subject to this leadman’s directions was assigned suffi-
cient work. Indeed, the evidence shows that Callahan
specifically declined to discipline known union activists
Brown and Teja for their idleness,13 and there is no evi-
dence that the Respondent, by means of this warning,
was attempting to impose harsher terms of employment
on Brown or Teja. There is also no evidence that the
Respondent tolerated the failure of DeSousa or other
leadmen to assign sufficient work to employees who
were not known union activists. Consequently, we re-
verse the judge and dismiss the allegation of a discrimi-
natory warning for DeSousa.
F. Dennis Brown’s Disciplinary Warning
We agree with the judge that a written disciplinary
warning issued to Dennis Brown as a result of a confron-
tation he had with supervisor George Heil was unlawful
under Section 8(a)(3) of the Act. On the afternoon of
July 5, Raul DeSousa approached Brown, who was the
union shop chairperson, about the warning DeSousa re-
ceived for his alleged failure to assign work to Brown

12 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
13 This failure to discipline therefore stands in contrast to the unlaw-
ful warning issued 2 days earlier to Brown for “malingering” while he
was engaged in protected grievance activities.
and Teja. Brown and DeSousa then went together to
Heil’s office to discuss the warning, which they believed
was unwarranted. At the outset of the discussion,
Brown, who was admittedly upset, loudly asked, “What
the hell is this crap?” Brown then apologized and qui-
eted down, but demanded the identity of the employees
involved. A week later, on July 12, the Respondent is-
sued a written warning to Brown stating that his behavior
had been disruptive and unprofessional, and that such
behavior would not be tolerated.
It is clear that Brown was acting in his capacity as
shop chairperson when he confronted Heil, and that he
was engaged in protected conduct at the time. Thus, the
appropriate inquiry here is whether the nature of
Brown’s conduct was so egregious as to remove him
from the protection of the Act. To determine whether an
employee who is otherwise engaged in protected activity
loses the protection of the Act due to opprobrious con-
duct, the Board considers the following factors: (1) the
place of the discussion; (2) the subject matter of the dis-
cussion; (3) the nature of the employee’s outburst; and
(4) whether the outburst was, in any way, provoked by
an employer’s unfair labor practice. Atlantic Steel Co.,
245 NLRB 814, 816 (1979).
Applying these factors here, we find that Brown’s be-
havior was not so extreme as to cause him to lose the
protection of the Act. The discussion with Heil con-
cerned the discipline of a unit member and took place in
Heil’s office where only Heil, Brown, and DeSousa were
present. Although Brown admittedly used crude lan-
guage and yelled at Heil at the outset of the discussion
regarding the merits of the discipline, he subsequently
apologized for his behavior and resumed normal dis-
course. There is no evidence that Brown’s outburst,
which apparently lasted only a few seconds, was disrup-
tive to the workplace. Finally, although Brown’s out-
burst was not provoked by any of the Respondent’s un-
fair labor practices, it was not uncharacteristic of the
occasionally intemperate conduct engaged in by both
management and union representatives during grievance
and contract discussions. In these circumstances, we do
not find that Brown’s conduct lost the Act’s protection.
We therefore affirm the judge and find that the discipline
was unlawful.
G. Subcontracting of Unit Work
The judge found, and we agree, that the Respondent
violated the Act by subcontracting plumbing work on
July 5, 2002, and also by subcontracting various types of
boiler room work in the fall of 2002.14 The relevant pro-

14 We reverse the judge’s finding that the Respondent unlawfully as-
signed the task of changing a single light bulb to an electrical subcon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1070
vision of the parties’ collective-bargaining agreement,
which we find to have been in effect at the time that the
work was subcontracted,15 stipulated that unit work
would not be performed by nonunit members except in
limited circumstances, such as in emergencies when em-
ployees are not available.16 Additionally, the parties
have an established practice under which the Respondent
advises the Union when it is considering the subcontract-
ing of unit work, and unit employees are then given the
opportunity to perform the work or to decline it. Pursu-
ant to this practice, the job is subcontracted only if there
is no unit employee who is able and willing to perform
the work.
On July 5, employee Lloyd Reid was assigned to
snake a bathroom sink. Reid took the sink trap apart and
snaked the sink, but was unable to reassemble the trap.
Reid then told Supervisor Heil that he was not able to
complete the repair, and Heil called a subcontractor.
Heil did not consult with a union representative about the
work.17 Because Heil did not follow the Respondent’s
practice with regard to subcontracting, we agree with the
judge that the Respondent violated the Act by not con-
tacting the Union and giving unit members the opportu-
nity to perform the work.
For similar reasons, we affirm the judge’s finding that
the Respondent unlawfully subcontracted boiler room
work in the fall of 2002 that included starting and check-
ing the boiler, repairing an oil lead, and cleaning and
servicing the burners and boilers. The Respondent ar-
gues that the work was properly contracted out because
employee John Netsel, who was the only employee as-
signed to the boiler room, was out of work with an injury
at the time. We do not find this argument persuasive.
The fact that Netsel was not available to perform the
work does not justify the Respondent’s undisputed fail-
ure to consult with the Union prior to the subcontracting

tractor who was performing nonunit work on the Respondent’s prop-
erty, as we find that the amount of work involved was too insignificant
to warrant finding a violation.
15 As stated above, the agreement expired in May 2002, and the par-
ties had not reached a new agreement or lawfully bargained to impasse
by the close of the hearing in this proceeding.
16 The agreement provided, in relevant part, that:
Persons excluded from the bargaining unit shall not perform
work of the type customarily performed by employees of the
bargaining unit, except in the following situations: a) in emer-
gencies when employees are not available, b) in the bona fide
instruction or training of employees, c) duties of an experimen-
tal nature or in the case of vendors or warrantees [sic], tryouts.
17 The record indicates that Reid served as steward or shop chairper-
son at some later point; however, there is no evidence that Reid was
acting as steward at the time of this incident. Further, the Respondent
does not argue that its obligation to consult with the Union was satis-
fied because of Reid’s position as steward.
of the work pursuant to the established practice.18 Ac-
cordingly, we affirm the judge’s finding of the viola-
tion.19
H. Reduction of Sick Leave Accrual
The judge found that the Respondent violated both
Section 8(a)(5) and (3) of the Act by unilaterally reduc-
ing Brown’s annual sick leave accrual in August 2002 as
a result of his layoff from December 7, 2001, to May 1,
2002. We agree with the judge, for reasons set forth in
his decision, that the reduction of sick leave accrual vio-
lated Section 8(a)(5).20 However, we reverse the judge’s
finding that the change also violated Section 8(a)(3) and
(1), as this finding was contingent on a finding that
Brown’s December 2001 layoff was unlawfully moti-
vated by animus against his protected union activities.
Because we have dismissed the allegation regarding the
layoff, as discussed above, we also dismiss the allegation
that the change in sick leave violated Section 8(a)(3) and
(1).21
I. The October 2002 Layoff
We agree with the judge that the Respondent violated
Section 8(a)(3) and (1) by laying off Dennis Brown in
October 2002.22 Based on the credited testimony of Re-

18 The Respondent does not contend that the work was subcontracted
out pursuant to the collective-bargaining agreement’s emergency
clause.
19 In finding the violation, we do not rely on the judge’s finding that
the work could have been performed by Dennis Brown. Regardless of
whether Brown was qualified to do the work, a violation is established
by the Respondent’s failure to follow its established practice of notify-
ing the Union and giving the employees an opportunity to perform the
work.
20 We reject the Respondent’s argument that the judge improperly
allowed the General Counsel to amend the complaint at the hearing to
allege that the change in sick leave accrual violated Sec. 8(a)(5) and
(1). The relevant charge, which was filed within the 10(b) period and
attached to the complaint, alleged that the Respondent had “failed and
refused to bargain in good faith by unilaterally reducing sick leave
accrual for employee Dennis Brown.” Thus, we find that the Respon-
dent was on notice of the allegation, and that the amendment was prop-
erly allowed by the judge.
21 Member Liebman would find it unnecessary to pass on whether
the reduction of sick leave accrual violated Sec. 8(a)(3) and (1), as the
remedy for such a violation would be cumulative. See Tri-Tech Ser-
vices, 340 NLRB 894, 895–896 (2003) (and cases cited therein).
22 We also affirm the judge’s findings, for reasons set forth in his de-
cision, that the Respondent acted unlawfully by disciplining Brown
assertedly for taking too much time to write grievances, by refusing to
provide Brown with asbestos training, and by imposing more onerous
working conditions on Brown beginning in May 2002. The judge
found, and we agree, that each of these actions was motivated by
Brown’s activities as shop chair. We find it unnecessary to pass on the
judge’s finding that the Respondent harassed Brown by assigning him
more arduous work, as this finding is cumulative and does not substan-
tially affect the remedy.
SUCCESS VILLAGE APARTMENTS 1071
spondent’s board member, Judith Cannizzio, that the
board targeted Brown for layoff in the fall of 2002 be-
cause of his union activities, we find that the General
Counsel has met his burden under Wright Line of estab-
lishing that the layoff was unlawfully motivated.23 We
further find that the Respondent has failed to establish
that Brown was laid off due to a lack of work, as it ar-
gues in its brief. Indeed, the evidence shows that at the
time of the layoff, Brown was installing sheetrock and
painting ceilings, and that the project had not been com-
pleted when Brown was told he would be laid off for
lack of work. Accordingly, we affirm the judge’s finding
of the violation.
J. The Weingarten Allegation
The judge found that employee John Netsel was
unlawfully denied his Weingarten right24 to have a union
representative present during a meeting with Supervisor
Phil Segneri on the afternoon of July 8, 2003. For rea-
sons discussed below, we reverse the judge’s finding that
this conduct violated Section 8(a)(1)of the Act.
Netsel works in the Respondent’s boiler room. Some
time in late June 2003, Segneri instructed Netsel that he
should keep the boiler room doors closed any time he
was not in the room. On the morning of July 8, 2003,
Segneri called Netsel into his office and asked him why
he had not locked the doors when he was out of the
room. Netsel replied that he had been told only to close
the doors, not lock them. There was no discussion or
portent of possible disciplinary action during this meet-
ing. Later that day, Segneri again called Netsel to his
office. According to Netsel’s credited testimony,
Segneri appeared “annoyed” and “agitated” from the
morning meeting and Netsel believed the second meeting
would be a continuation of the earlier session and that he
would be disciplined. Netsel indicated at that time that
he wanted to have a union representative present, but
Segneri would not allow it. Segneri then told Netsel that
he wanted to make it clear that Netsel was not to leave
the boiler room doors unlocked when he was out of the
room, and asked Netsel to sign a statement acknowledg-
ing that instruction.
Contrary to the judge, we find that the Respondent was
not required to comply with Netsel’s request for a union

Finally, for the reasons set forth in the judge’s decision, we affirm
his finding that the Respondent violated Sec. 8(a)(3) on July 24, 2003,
by sending Shop Steward Reid home without pay for a half day.
23 In affirming the judge’s findings that the General Counsel proved
Respondent’s animus against union activities, Member Schaumber does
not rely on former manager Heil’s statement of “belief” that Property
Manager Callahan “had it in” for the Union, Brown, and bargaining
unit employees.
24 See NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975).
representative during the afternoon meeting.25 Under
Weingarten, an employee has a right to request that a
union representative be present during an investigatory
interview if the employee reasonably believes the meet-
ing will result in discipline. An employer who ignores
the employee’s request and then proceeds with the inter-
view violates Section 8(a) (1) of the Act.
Even assuming, arguendo, that Netsel reasonably be-
lieved, based primarily on his observation of Segneri’s
demeanor, that discipline could result from the afternoon
meeting, he was not entitled to union representation.26
The Weingarten right does not apply to an interview held
solely for the purpose of informing an employee of a
previously made disciplinary decision. See Baton Rouge
Water Works, 246 NLRB 995 (1979). A fortiori, no
Weingarten right attaches to an interview whose sole
purpose is to inform the employee of a previously made
nondisciplinary administrative decision. The afternoon
meeting between Netsel and Segneri was limited to this
purpose. It had no investigatory aspect.27 Segneri did
not question Netsel during the meeting or seek to obtain
any information from him. He reconfirmed instructions
to Netsel about locking the boiler room doors and se-
cured Netsel’s written acknowledgement of these in-
structions. Thus, we find that the Respondent had no
obligation to allow a union representative to be present at
the meeting, and did not violate the Act by refusing Net-
sel’s request.
K. The Locker Policy
The judge found that the Respondent violated Section
8(a)(5) of the Act by unilaterally implementing a locker
policy on July 3, 2003.28 The Respondent argues that it

25 Member Liebman would affirm the violation found by the judge,
for the reasons stated in his decision.
26 Member Schaumber additionally finds, under the circumstances of
this case, that Netsel lacked a reasonable belief that discipline would
result from the afternoon meeting. Netsel had already met with Segneri
that morning in an investigatory interview about locking the boiler
room doors and had fully explained his actions. There is no evidence
that Segneri suggested the possibility of disciplinary action for the
conduct under investigation.
Chairman Battista does not pass on this rationale for the dismissal.
He agrees with the rationale set forth in the text that the meeting was
solely to inform Netsel, and obtain his acknowledgment, that the boiler
room was to be locked.
27 Contrary to the judge’s analysis, it does not matter whether Netsel
reasonably believed the afternoon meeting would entail further investi-
gation. The question is whether the interview in fact has investigatory
aspects leading to or supporting disciplinary action. See U.S. Postal
Service, 252 NLRB 61 (1980) (employees not entitled to a Weingarten
representative during “fitness for duty” medical examinations, in part
because of “the absence of evidence that questions of an investigatory
nature were in fact asked at these examinations.”)
28 The judge also found that the Respondent violated Sec. 8(a) (5) by
unilaterally implementing changes in its timecard discrepancy discipli-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1072
was not required to bargain with the Union over the pol-
icy’s implementation because the policy did not consti-
tute a material change in terms and conditions of em-
ployment. As discussed below, we find merit in the Re-
spondent’s argument.
Pursuant to the terms established by the parties’ most
recent collective-bargaining agreement, the Respondent
provides employees with various types of equipment,
and each employee is personally responsible for the loss
or negligent destruction of that equipment. The Respon-
dent also provides employees with access to lockers in
the shop area to store their equipment. Prior to the issu-
ance of the locker policy, employees could choose a
locker and secure it with a lock that they provided. Un-
der the new policy, each employee was assigned a locker
and issued a combination lock by the Respondent.
Although employees were previously allowed to
choose their lockers, there is no evidence that there is
any significant difference among the lockers or that there
was competition among employees regarding access to a
particular locker. Cf. J. R. Simplot Co., 238 NLRB 374,
375 (1978) (unilateral assignment of lockers by employer
unlawful where use of lockers by employees had been a
“festering problem” within the plant). The policy did not
provide any discipline for the failure to utilize the as-
signed locker or the lock, and there is no evidence that
such discipline was imposed or that there was more rig-
orous enforcement of the contract’s provision regarding
loss of equipment as a result of the new policy. Further,
employees were able to secure their lockers before and
after the issuance of the policy; the only difference was
that under the new policy the Respondent provided the
locks. In these circumstances, we find that the new
locker policy did not represent a material change in em-
ployees’ terms and conditions of employment that re-
quired bargaining. Accordingly, we reverse the judge
and dismiss the relevant 8(a)(5) allegation.

nary policy, phone policy, fax policy, and copier policy. We affirm the
judge’s findings for the reasons set forth in his decision. With respect
to the copier and fax machine, the Union was permitted to use it in the
past, without charge. In the instant case, the Respondent announced a
new policy, under which there would be a charge of 25 cents per page
for copying, and there would be no fax use at all. There is no showing
that the Union’s use of either machine exceeded that which it had been
in the past. The Respondent would not be required to permit any in-
crease in usage.
With regard to the change in the timecard policy, Chairman Battista
and Member Schaumber find it unnecessary to pass on Board prece-
dent, cited by the judge, indicating that a contractual management
rights clause does not survive expiration of the contract.
ORDER
The Respondent, Success Village Apartments, Inc.,
Bridgeport, Connecticut, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to negotiate with International Union,
United Automobile, Aerospace & Agricultural Imple-
ment Workers of America, Local 376, AFL–CIO, in
face-to-face bargaining sessions concerning the terms of
a renewal collective-bargaining agreement.
(b) Insisting, as a condition of reaching any collective-
bargaining agreement, that the Union agree to conduct
negotiations in separate rooms through an intermediary.
(c) Bargaining to impasse in support of the condition
set forth above in paragraph (b), and implementing its
contract proposals as a result of the unlawful impasse.
(d) Unilaterally implementing a restricted phone use
policy, a copier and facsimile use policy, and a timecard
discrepancy disciplinary policy without bargaining with
the Union or obtaining the Union’s consent.
(e) Unilaterally reducing employees’ sick leave accrual
without bargaining with the Union or obtaining the Un-
ion’s consent.
(f) Laying off, suspending, issuing warnings, or oth-
erwise discriminating against employees because of their
union activities.
(g) Unilaterally subcontracting unit work without bar-
gaining with the Union or obtaining the Union’s consent.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union, in face-to-face
sessions, as the exclusive representative of the employ-
ees in the following appropriate unit, concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
All production, maintenance, and clerical employees,
including plumbers, electricians, boiler tenders, fire-
men, general maintenance, file clerks and bookkeepers,
regularly employed by Respondent, but excluding
foremen, managerial employees, confidential secretar-
ies, and guards and supervisors as defined in the Act.
(b) Rescind, at the Union’s request, the unilateral
changes it made in terms and conditions of employment,
including the restricted phone use policy, copier and fac-
simile use policy, the time card discrepancy discipline
policy, and the reduction of sick leave accrual.
SUCCESS VILLAGE APARTMENTS 1073
(c) Rescind, at the Union’s request, the proposals that
it implemented following its announcement of an im-
passe in bargaining.
(d) Make Dennis Brown and Lloyd Reid whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them in the manner set forth in
the remedy section of the judge’s decision.
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful layoffs, sus-
pension, and written warnings, and within 3 days thereaf-
ter notify the employees in writing that this has been
done and these unlawful actions will not be used against
them in any way.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Bridgeport, Connecticut, copies of the at-
tached notice marked “Appendix.”29 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 34, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all placed where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since September
2001.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

29 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to negotiate with International Un-
ion, United Automobile, Aerospace & Agricultural Im-
plement Workers of America, Local 376, AFL–CIO, in
face-to-face bargaining sessions concerning the terms of
a renewal collective-bargaining agreement.
WE WILL NOT insist, as a condition of reaching any col-
lective-bargaining agreement, that the Union agree to
conduct negotiations in separate rooms through an inter-
mediary.
WE WILL NOT bargain to impasse in support of the con-
dition set forth above, and implement our contract pro-
posals as a result of unlawful impasse.
WE WILL NOT unilaterally implement a restricted phone
use policy, a copier and facsimile use policy, and a time-
card discrepancy discipline policy without bargaining
with the Union or obtaining the Union’s consent.
WE WILL NOT unilaterally reduce employees’ sick leave
accrual without bargaining with the Union or obtaining
the Union’s consent.
WE WILL NOT unilaterally subcontract unit work with-
out bargaining with the Union or obtaining the Union’s
consent.
WE WILL NOT discipline, lay off, suspend, or otherwise
discriminate against employees because of their union
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights set forth above.
WE WILL, on request, bargain with the Union in face-
to-face sessions, as the exclusive representative of the
employees, in the following appropriate union, concern-
ing terms and conditions of employment, and if an un-
derstanding is reached, embody the understanding in a
signed agreement:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1074
All production, maintenance, and clerical employees,
including plumbers, electricians, boiler tenders, fire-
men, general maintenance, file clerks and bookkeepers,
regularly employed by us but excluding foremen,
managerial employees, confidential secretaries, and
guards and supervisors as defined in the Act.
WE WILL rescind, at the Union’s request, the unilateral
changes in terms and conditions of employment that we
have made.
WE WILL rescind, at the Union’s request, the proposals
that we implemented following our announcement of an
impasse in bargaining.
WE WILL make Dennis Brown and Lloyd Reid whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them.
WE WILL within 14 days from the date of this Order,
remove from our files any reference to the unlawful lay-
offs, suspension, and written warnings of Dennis Brown
and Lloyd Reid, and within 3 days thereafter notify the
employees in writing that this has been done and that the
layoffs, suspensions, and written warnings will not be
used against them in any way.
SUCCESS VILLAGE APARTMENTS, INC.
Thomas E. Quigley and Jennifer F. Dease, Esqs., for the Gen-
eral Counsel.
Marc L. Zaken and John D. Doran, Esqs. (Edwards & Angell,
LLP), of Stamford, Connecticut, for the Respondent.
Thomas Meiklejohn, Esq. (Livingston, Adler, Pulda, Meiklejohn
& Kelly), of Hartford, Connecticut, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Various charges
and amended charges were filed by International Union, United
Automobile, Aerospace & Agricultural Implement Workers of
America, Local 376, AFL–CIO (Union) which resulted in com-
plaints being issued on February 28, 2003, April 30, 2003, June
10, 2003, and September 4 and 24, 2003, against Success Vil-
lage Apartments, Inc. (Respondent). All of the complaints were
consolidated for hearing, and some were amended during the
hearing.
The Union has been the representative of the production,
maintenance and clerical employees of the Respondent since
about 1975. They have had a collective-bargaining relationship
since that time, with the most recent contract running from June
1, 1999 through May 31, 2002.
The complaints allege essentially that the Respondent unlaw-
fully (a) denied Union representatives access to work areas (b)
disparaged Union representatives in the presence of unit em-
ployees (c) laid off employee Dennis Brown on December 7,
2001 (d) prohibited employees from talking to Union represen-
tatives (e) imposed more onerous working conditions on Brown
(f) issued written discipline in the Summer of 2002 to Brown,
Raul DeSousa and Antonio Teja (g) reduced Brown’s sick
leave accrual, refused to provide asbestos awareness training to
Brown and Teja, and thereafter laid off Brown on October 11,
2002 (h) unilaterally implemented a restricted phone use pol-
icy, a copier and facsimile use policy, a time card discrepancy
discipline policy, and a locker and lock policy (i) unilaterally
reduced the paid time for Union officials engaged in represen-
tation functions (j) unilaterally subcontracted certain work that
had previously been performed by unit employees (k) during
bargaining, insisted, as a condition of reaching a contract, that
the Union agree to conduct negotiations in separate rooms
through an intermediary, and bargained to impasse on that con-
dition, and thereafter implemented its contract proposals (l)
denied the request of employee John Netsel to be represented
by the Union during a disciplinary interview (m) harassed em-
ployee Brown, in violation of Section 8(a)(3) and 8(a)(4) of the
Act, and employee Lloyd Reid in violation of Section 8(a)(3),
by assigning them work they do not normally perform, assign-
ing them work without the use of customary or adequate
equipment, assigning them work without customary or ade-
quate assistance, watching them more closely and more fre-
quently while they work, and assigning them more physically
demanding work and (n) suspended Reid on July 24, 2003, and
suspended Brown on October 20 and 21, 2003.
The Respondent’s answers denied the material allegations of
the complaints, and alleged certain affirmative defenses. On
June 11–13, September 15–18, 22–24, and December 15–17,
2003, a hearing was held before me in Hartford, Connecticut.
Upon the evidence presented in this proceeding and my ob-
servation of the demeanor of the witnesses and after considera-
tion of the briefs filed by the General Counsel and the Respon-
dent, I make the following1
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place of
business in Bridgeport, Connecticut, has been engaged in the
operation of a non-profit cooperative apartment complex. Dur-
ing the 12-month period ending January 31, 2003, the Respon-
dent derived gross revenues in excess of $500,000, and during
the same period it purchased and received at its facility goods
valued in excess of $50,000 directly from points outside Con-
necticut. The Respondent admits, and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act. The Respondent also admits, and I
find that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Success Village Apartments is a residential cooperative de-
velopment built in 1941, consisting of 924 apartments in 97
buildings spread over about 30 to 40 acres. The complex has a
central heating plant located in the main building which also

1 The General Counsel’s unopposed motion to correct the transcript
is hereby granted, and is received in evidence as GC 95.
SUCCESS VILLAGE APARTMENTS 1075
houses, on the main floor, a community hall which is a large
meeting room, a management office, and a business office
where the clerical employees work. Below the main floor is the
maintenance area which contains a carpenters’ shop which is
adjacent to the boiler room.
A nine-member board of directors, all of whom are residents
of the development and elected by the residents, runs the Re-
spondent. The board has monthly meetings.
Since about 1975, the Union has represented the Respon-
dent’s employees in the following appropriate collective-
bargaining unit:
All production, maintenance and clerical employees, includ-
ing plumbers, electricians, boiler tenders, firemen, general
maintenance, file clerks and bookkeepers, regularly employed
by Respondent, but excluding foremen, managerial employ-
ees, confidential secretaries, and guards and supervisors as de-
fined in the Act.
The last collective-bargaining agreement between the parties
ran from June 1, 1999 through May 31, 2002. The contract
contains a list of wages for various “labor grades”, specifically
mentioning leadman, bookkeeper A, plumber 1A, fireman 1A
1st shift, carpenter, bookkeeper 1B, fireman B, mason, grounds-
man, plumber 1B, bookkeeper assistant, and carpenter’s helper
1B. In 1999, about 20 employees worked for the Respondent.
In the Fall of 2001, there were 13 to 17 workers. The Union has
two on-site agents who are the Respondent’s employees. They
are the shop chair and the shop steward.
The property has been managed over the years by several
management companies. As will be set forth below, in the
summer of 2001, the board of directors decided to obtain a new
management company to remedy certain problems it had with
the operation of the complex. Chief among its concerns was its
belief that the employees were not working hard and were inef-
ficient, and attempts to correct that situation in the past were
met with vigorous Union opposition, including the filing of
grievances.
B. The Meetings Between the Parties and their Bargaining
1. The meeting of June 6, 2001
Newly elected board president Robert Marcinczyk suggested
that the board of directors and the Union meet in an informal
session to attempt to work out their differences. Marcinczyk
had been a shop steward for the Union at the Milford Jai Alai,
and believed that his acquaintance with Union president Russ
See could be used productively at Success Village.
Board member June Prescott testified that when See walked
into the meeting he objected loudly to her having a tape re-
corder present. She heard See remark that the Union would
cause the Respondent to become bankrupt due to legal ex-
penses caused by the grievances it intended to file. Marcinczyk
testified that employee Michael Langston, who later became
the Union’s business agent, told him, in connection with a
grievance in June, 2001, that the Union would run up the Re-
spondent’s legal bills.
See stated that the board wanted to make changes in the cur-
rent contract, such as a reduction in the work force; the termi-
nation of employee Pierre Agnant; a proposal that board mem-
bers perform work done by the clerical unit employees; and a
change in the contractual provision for time and one-half for
Saturday work. See refused to agree to those changes and
walked out of the meeting.
2. A new Property manager is hired
On August 8, 2001, the Respondent’s board of directors
hired WC&F Real Estate and Development Corporation to be
its property manager. Frank Callahan is the president. His on-
site managers at the location, successively, were Jim Elliott,
George Heil, and Philip Segneri. For about six months prior to
the hire of WC&F, the Respondent’s board managed the prop-
erty. Prior to that time, the Respondent had various property
managers.
Board member Prescott testified that in the summer of 2001,
she heard complaints from residents that certain maintenance
employees were not working hard and not doing their jobs. She
said that these complaints were not remedied because there was
a “strict union” and nothing could be done about it. Whenever
the prior management attempted to remedy the situation by
making the workers more efficient, a grievance would be filed
which was too expensive to litigate, so the board settled the
grievance and “rolled over.” Board member Barbara Ignatiuk
testified that the board was upset at the lack of productivity of
the employees, and that Callahan was hired to make the opera-
tion more efficient. She noted that the board did not tell him to
harass the workers, nor to give Brown harder assignments.
Board member Marcinczyk testified that one of the reasons the
board changed property managers was that it wanted to take a
more active part in union related matters.
WC&F president Callahan testified that the board felt “very
frustrated” with its relationship with Union president See and
with the Union. Callahan was informed that the board tried to
work together with the Union but each time they had a transac-
tion he just walked out on their meetings. Callahan was also
told that the employees were inefficient and wasted time, cost-
ing the Respondent money, and although the board told the
prior property managers to make the operation more efficient,
they were not able to. He was told that the board’s efforts to
promote greater productivity were resisted by the Union, which
filed grievances and had numerous meetings which resulted in
increased legal fees for the Respondent.
Callahan was asked to recommend a course of action to help
the board with its “union situation” and “solve their problems.”
Callahan assured the board that he anticipated that with the
Union’s cooperation, he would have the operation running
smoothly. He offered to evaluate and observe all of the Re-
spondent’s operations, including how the employees perform
their jobs, and the length of time they take to perform their
tasks as compared to a “normal” worker, and then make rec-
ommendations. Callahan testified that prior to implementing
any changes, he analyzed each employee’s position and func-
tion in an effort to determine how productive the employees
were, in order to see what changes could be made to make the
operation more efficient. He reviewed the number and type of
work orders, he personally observed the employees at work,
and determined their skill levels. Callahan suggested an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1076
“amendment” to each work category describing each em-
ployee’s responsibilities.
Callahan’s observations and conclusions included the fol-
lowing: He observed that the two workers on garbage detail
drove slowly and that there was no accountability as to when
they left the premises to take the garbage to the dump or when
they returned. He concluded that only one employee was re-
quired for that task. Nevertheless, he did not reduce the detail
to one employee. He also observed that leadman Joseph Otocka
only distributed assignments, but not much more. Callahan
conceded that the leadman’s job is to distribute work orders
and do no other work, but that as part of the changes he hoped
to implement, he wanted the leadman to perform other work.
Plumber Ralph Giannattassio was very inefficient, and as a
result his work hours were reduced by one-half; clerical em-
ployee Ceil Johnson, who had limited computer and typing
skills, had an office which was untidy. Clerical employee Una
Boulware did not make good use of her time. Clerical em-
ployee Agnant did special, long term “make-work” projects and
filled in when employees were at lunch, and “he did nothing.”
As a result, his job was eliminated and Agnant was discharged.
John Kelly who was on light duty due to an injury, answered
the phone in the office.2 Callahan stated that before making
those decisions, the Respondent did not offer to bargain with
the Union because it was exercising its management rights.
Callahan also recommended to the board that based on its
history with the Union, and if it wanted to make changes, that it
retain a labor attorney. There was also some confusion on the
part of the board members as to whether the contract would
terminate on its expiration date. Thereafter, Callahan recom-
mended attorney Marc Zaken, and the Respondent interviewed
and hired him.
3. The grievance meetings between the parties3
a. The meeting of October 19, 2001
Manager Callahan testified that in October, 2001, the Re-
spondent terminated Agnant, discharged Teja and cut plumber
Giannattassio’s weekly work hours from 40 to 20, in an effort
to assert its management’s rights pursuant to the contract. The
Union filed grievances regarding these actions, and Callahan
asserted that the situation was “totally out of control,” with the
Union doing whatever it wanted when it wanted to do it.
On October 19, a meeting was scheduled for 10 a.m. be-
tween the Union and the Respondent to discuss the termination
of Agnant, and other matters.
Union agent Langston arrived prior to 9:30 a.m. and spoke to
employees in the downstairs maintenance area. At 9:30 a.m.,
Callahan advised Langston that he should not be downstairs,
that the meeting was upstairs and he was to go upstairs.
Langston replied that he would be at the meeting at the sched-
uled time of 10:00 a.m., and advised him that he would meet

2 Arbitration decisions upheld the Respondent’s reduction of Gian-
nattassio’s hours, and the elimination of the positions of Agnant and
Kelly.
3 The relevant parts of the meetings are summarized herein, and are
at times composites of the meetings taken from several witnesses,
which represent what I find was said at those meetings.
with the employees until the meeting began. Callahan again
directed him to go upstairs immediately and Langston refused.
Union president See arrived at 9:30 or 9:45 and immediately
went to the downstairs maintenance department to speak with
the employees concerning the grievance. He stated that he was
told by shop chairperson Otocka that Callahan called and said
that See “could not be downstairs.” See said he had the right to
meet with the men downstairs, and that he had always done so.
See told Otocka to relay the message that if Callahan had a
“problem” with that, he should call the police and have him
removed. About five minutes later, See went upstairs to the
meeting. See conceded that he did not announce himself in the
office before going down to the maintenance area, and he had
never done so. Otocka testified that Callahan asked him why
See was downstairs. Otocka replied that they were discussing
the issues to be raised at the meeting. Callahan answered that
such a meeting could not take place in the maintenance area,
and that he wanted them to meet upstairs. Brown, the shop
steward, was a part of the meeting with Langston and See.
Langston, See and Otocka testified that prior to October 19,
See had never been prohibited from meeting with employees in
the downstairs maintenance area prior to a grievance meeting.
Langston stated that during Callahan’s tenure the Union has
met with employees for membership meetings in the commu-
nity hall upstairs, after having obtained permission for such
meetings.
At the meeting, See asked whether the Respondent intended
to eliminate the boiler room employees and also inquired about
the presence of asbestos in working areas. Callahan refused to
respond to those inquiries. Callahan justified the termination of
Agnant on the basis of a study he did on Agnant’s job. See
asked for a copy of the study and Callahan said that he is not
entitled to it. See announced that the meeting was going “no-
where”, suggested that Callahan retain an attorney and left the
room. As they left, board member Hank Skonieczny said that
See should not let “the door hit you in the ass on your way
out.” Marcinczyk, the president of the board of directors, was at
that time a current member of the Union while employed at the
Milford Jai Alai, and generally believed that See did not repre-
sent the employees there aggressively. He asked See if dues
would be continued to be deducted from their salaries at Mil-
ford, apparently since it was due to close in two months. See
refused to answer, saying that the Milford situation had nothing
to do with this meeting. See denied saying that he hoped that
the Respondent had a lot of money to pay its attorney.4
About four members of the board of directors were present at
this meeting. See questioned the number of board members,
saying that he usually met with fewer members. According to
Marcinczyk, See verbally “attacked” Callahan, asking him in a
disrespectful and rude voice whether he had the authority to
bargain in behalf of the Respondent, and threatening that the
Union would “run up the legal bills.”
See testified that after leaving the meeting, he spoke to
Otocka in the maintenance area. Marcinczyk approached and

4 Langston stated that since WC&F arrived, the number of griev-
ances filed has increased. He stated that they were filed in order to
defend the Union’s position, not to harass or bankrupt the Respondent.
SUCCESS VILLAGE APARTMENTS 1077
said “you fuck those people in the jai alai, you’re going to fuck
these people, and as long as I’m president, for as long as I’m
president I’m going to get rid of this union.” See cursed at him.
Otocka gave uncontradicted testimony that he heard Marcinc-
zyk say essentially that “he was going to do everything he
could in his two year term of office to get rid of Russ [See] and
the UAW.”
Following the conclusion of the meeting, Marcinczyk real-
ized that See had been in the maintenance area for 15 to 20
minutes, and became further annoyed that See had, for the sec-
ond time that day been in the maintenance area. Marcinczyk
went downstairs, and asked See to “respect our wishes” and
meet upstairs. He stated that See “picked a fight” with him,
“one thing led to another” and “words were exchanged.” He
conceded saying “as long as I’m . . . on the board . . . I would
beat him at his own game.”
Marcinczyk testified that he asked that See not meet with the
men in the maintenance area because “we didn’t . . . like the
idea of them down in the maintenance room. A lot of things
could happen and none of them were good.” He further stated
that the Respondent had the right to designate a place for the
Union to meet with the employees, and that he mistrusted See,
that he “would do something amiss in . . . maintenance area.”
He testified to an altruistic purpose, however, in asking See to
meet upstairs in a private room in the community hall—to pro-
vide See and the employees with “privacy” in a closed room.
Langston denied that Callahan asked him to meet with the em-
ployees in the community room upstairs.
Callahan, essentially corroborating Marcinczyk’s testimony,
added that the practice prior to that time, apparently had been
to permit See to do “whatever” he wanted when he wanted.
However, upon Callahan’s becoming the property manager,
“we were looking at all aspects of how we manage” the Re-
spondent’s operations, including See’s meeting with employ-
ees. Callahan’s point was that the contract did not provide that
the Union had the right to enter the property and meet with
employees in the maintenance area during work time. Regard-
ing the substance of the meeting, Callahan stated that See’s
questions were of an “attacking nature” and See apparently did
not listen to Callahan’s responses. See told Callahan that “you
and I are going to have a good time together,” adding that the
Union had more money than the Respondent.
b. The alleged denial of access to union agents prior
to the October 19 meeting
It is alleged that, based on the above, conduct, the Respon-
dent unlawfully denied Union representatives access to work
areas on October 19 in violation of Section 8(a)(1) of the Act. It
is thus not alleged that the denial of access constituted a unilat-
eral change in past practice in violation of Section 8(a)(5) of
the Act. Rather, it is alleged that the Respondent’s conduct
interfered with employee Section 7 rights.
In NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112
(1956), the Supreme Court held that an employer could law-
fully prohibit nonemployee union organizers from distributing
union literature on the employer’s parking lot if (a) reasonable
efforts through other available channels of communication will
enable it to reach the employees and (b) the employer does not
discriminate against the union by allowing distribution of items
by other nonemployees. In Lechmere, Inc. v. NLRB, 502 U.S.
527, 533–534 (1992), the Court extended Babcock & Wilcox to
a customer parking lot, and held that the employer’s property
right must yield only where there are extraordinary barriers to
communication with the employees. Only after the union
makes a threshold showing that the location of a plant and the
living quarters of the employees place them beyond the reach
of reasonable union efforts to communicate with them, does a
balancing test between the employer’s private property rights
and the employee’s need for information about their Section 7
rights take place. See Holyoke Water Power Co., 170 NLRB
1369, 1370 (1985).
Here, there has been no showing that the Union was unable
to meet with the employees outside of the employer’s property
in order to prepare for the grievance session. Accordingly, the
Respondent properly denied access to the Union to the work
areas of its property on October 19. Kay Fries, Inc., 265 NLRB
1077, 1093 (1982), and General Electric Co., 160 NLRB 1308,
1312 (1966), relied on by the General Counsel, are inapposite.
In both cases, the contracts gave the union representative a
right of access to the plant. Here, in contrast, there is no con-
tractual provision permitting access, and, indeed, the Union
was given access to the facility for the purpose of attending the
grievance session.
Accordingly, I will recommend that this allegation of the
complaint be dismissed.
c. The meeting of October 26
This meeting was attended by Callahan and Marc Zaken, the
attorney for the Respondent, several board directors, and
Langston, See, and shop steward Dennis Brown. Board mem-
ber Joe Olbrys had a laptop computer and See asked what he
was doing with it. According to Langston, Olbrys replied “any
fucking thing I want to do.” Zaken answered that he could use a
laptop in lieu of taking written notes. See stated that only one
board member could be present and asked that all other mem-
bers leave. Zaken replied that all the board members had a right
to be present. The Union representatives then left the meeting.5
Langston supplied another reason for the Union’s departure. He
said that each time Callahan answered a question, the other
board members cheered or applauded, calling out “you tell
them.” As the Union agents left, board member Skonieczny
told them not to let the door hit them in the “ass”. See essen-
tially corroborated Langston’s version of this meeting, as set
forth above. Callahan denied that board members were cheer-
ing or applauding, but he did concede that the meeting was a
“zoo”, attributing it to See’s unprofessional attitude and con-
frontation with the board. Employee Brown stated that as the
Union agents left, the board members applauded and made
other noises. According to Brown, See asked Zaken if he ap-
proved of the board members’ behavior. Zaken said he did.

5 The Union’s claim was based on its reading of the grievance pro-
cedure set forth in the contract. It provides that Step 3 grievances
would be addressed by the “representative” of the board of directors. A
later arbitration decision held that more than one director may be pre-
sent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1078
d. The Meeting of December 7
On December 6, Langston faxed a letter to Callahan which
stated that the Union would not meet if the Respondent had
more than one board member present. When Callahan received
the fax he immediately called and faxed the Union, saying that
since the board intended to have more than one member pre-
sent, the December 7 meeting was cancelled. Although Brown
was aware that the meeting was cancelled he could not reach
any of the Union agents. Apparently the Union did not get
these messages and Langston and See entered the office for the
meeting. Callahan told them that the meeting was cancelled.
I credit the testimony of Langston and See that, as they left
the office and stood on the visitor side of the rent window,
board member Marcinczyk yelled at See that he should tell the
employees here how he “fucked us over at jai alai”, caused it to
close, and that he would “end up fucking this place up” as he
had at Milford.” See replied that he was “not fucking this place.
If anyone is fucking this place you are.” Marcincyk then called
See an “asshole.” See asked if he wanted to “take this outside?”
Board member Skonieczny then slid the rent window shut, after
which Marcincyk told See that his “mother is an asshole.”6
Employee Boulware testified that she heard Marcinczyk tell
See “why don’t you tell them what you did to us at the Jai-Alai,
you sell us out?” See called Marcinczyk a “jerk”, and Marcinc-
zyk replied “like your mother.” See asked him to repeat that
remark outside, at which time the rent window was then closed
by a board member. Marcinczyk testified that he was upset at
losing his job at the Milford Jai Alai, and resented See for do-
ing nothing for the workers there while fighting so hard for the
Respondent’s employees.
On December 10, the Union sent a letter which stated that
due to the disregard of the third step grievance procedure and
the “shameless, unprofessional behavior” of the board members
at the last three third step grievance meetings, and in order “to
circumvent further hostility, the Union would refer all present
and future grievances to arbitration.
The complaint alleges that on about December 7, 2001, Mar-
cinczyk disparaged Union representatives in the presence of
unit employees.
I credit the mutually corroborative testimony of the General
Counsel’s witnesses that Marcinczyk yelled that See would
destroy the Respondent as he had Milford, and made a scurri-
lous remark about See and his mother. Employee Boulware
was present during this exchange. Although she did not testify
to Marcinczyk’s remarks that See would destroy the Respon-
dent, she did say that Marcinczyk accused See of “selling out”
the employees at Milford.
I find that Marcinczyk’s remarks were not merely personal,
as asserted by the Respondent, but were an effort to denigrate
the Union in the eyes of the employees. By telling See in
Boulware’s presence that he would destroy the Respondent,
and by calling See vulgar names, Marcinczyk undermined the
Union. Such comments had a reasonable tendency to interfere
with employees’ rights to remain represented by the Union.

6 Langston stated that both men were “in the heat of anger” and that
See’s comment may be interpreted as an invitation to fight, but he did
not believe that a fight was about to ensue.
Dayton Hudson Corp., 316 NLRB 477, 483 (1995); Domsey
Trading Corp., 310 NLRB 777, 793 (1993); Lehigh Lumber
Co., 230 NLRB 1122, 1125 (1977). I reject the Respondent’s
argument that See was at fault because he invited Marcinczyk
outside. That invitation came only following Marcinczyk’s
improper remarks. I accordingly find and conclude that the
Respondent violated Section 8(a)(1) of the Act by disparaging
the Union, as alleged.
4. The Collective Bargaining Sessions7
a. The Meeting of May 15, 2002
The parties exchanged proposals for a new contract and dis-
cussed them. The Respondent’s proposal consisted of the expir-
ing contract with “redlining”, indicating the changes it sought.
See asked for a separate document containing just the changes
desired, and the Respondent agreed to supply it, and did so
prior to the next meeting. It was agreed that the economic is-
sues would be discussed during final bargaining. The session
lasted one to one and one-half hours.
Callahan stated that at some point during the meeting, See
used the word “fuck.” Callahan noted, however, that See did
not direct that word toward anyone in management. Callahan’s
pre-trial affidavit did not mention that obscenity. Zaken re-
sponded that he sought a very professional meeting and did not
want any profanity. See conceded that he told Zaken that he
(See) had taught a lot of young attorneys over the years and he
would teach Zaken too. Callahan said that the Respondent
asked for certain information such as the Union’s proposed
pension plan, and job descriptions. Neither was forthcoming
during the negotiations.
b. The Meeting of May 23
Each party explained their proposals and answered questions
about them. The meeting ended when the Union requested a
two-hour lunch break after which they would resume negotia-
tions for 30 minutes. The Respondent suggested a shorter
break, but the Union refused. Callahan described the meeting as
non-productive. On May 31, the contract expired.
c. The Meeting of July 15
The parties spoke about vacations, and a brief discussion was
held concerning asbestos in the workplace. Callahan described
the meeting as non-productive.
d. The Meeting of July 22
See asked if the Respondent’s workers’ compensation carrier
had changed. Zaken said that he did not know and took a break
to call the office. When he returned, Zaken said that he would
find out the answer and inform the Union later in the week, and
he did so.
See was then given a copy of a medical questionnaire con-
cerning asbestos which had been given to certain employees

7 There was disagreement over where the sessions would take place.
The Union wanted to meet at Success Village and the Respondent
refused. The Respondent suggested using its attorney’s office, or shar-
ing the cost of renting a hotel room, and the Union refused. The ses-
sions were held either at city hall or at the Connecticut State Board of
Arbitration.
SUCCESS VILLAGE APARTMENTS 1079
three months previously, in April. The six-page document con-
tained numerous questions concerning the medical condition of
the employee and type of job functions performed. The Union
took a 40-minute break to examine it.
Langston testified that upon their return to the room, See
apologized for taking so long, explaining that the questionnaire
was very lengthy. Zaken then asked what took so long, and See
asked him whether he was deaf. Zaken got agitated, said he did
not have to take such language, closed his file, stood up and
announced that he would contact a mediator. See asked what
the problem was, and Zaken said that he did not have to take
such insults. See replied that he did not insult Zaken, adding
that if had called Zaken an “asshole” that would be an insult.
Zaken then asked whether See was calling him an “asshole”
and See replied that he was not calling him such a name, but
that “maybe you are an asshole.” Zaken said that he would call
the mediator, and he and his committee left. See essentially
corroborated Langston’s account.
Callahan testified that See called Zaken an “asshole” during
the meeting, and with that, Zaken said he would not meet if See
used offensive language, and the Respondent then left.
Following the meeting, Zaken wrote to See, stating that See
used foul language toward him during their May 15 meeting.
Referring to the July 22 meeting, Zaken gave his version of
See’s conduct at the meeting as follows: See called him an
“asshole,” said he would continue to use foul language toward
Zaken, and asked Zaken “what are you going to do about it,
walk out?” Zaken replied that he would not tolerate such lan-
guage and would leave if he continued to make personal in-
sults, and See responded “go ahead and walk out, you asshole.”
In a letter to mediator Thomas Sweeney, Zaken said that the
parties remain “very far apart in their positions, and the process
has been marred by personal insults and threats” from See.
One month later, See wrote to Zaken, conceding only that
when Zaken accused him of attacking him, he (See) asked what
he would do if he called him an “asshole,” whereupon Zaken
left. See’s letter also stated that Zaken could not answer ques-
tions concerning the Respondent’s proposals and, when an-
swering, gave only vague replies. See concluded that he was
“not too concerned about [Zaken’s] objection to abusive lan-
guage. If you are that thin skinned maybe you should look into
another line of work.” He also looked forward to having a me-
diator present because Zaken needed “all the help [he] can get.”
In his reply, Zaken stated that he believed that a mediator was
necessary to prevent a continuation of the Union’s abusive
language and bad faith bargaining. Langston testified that foul
language, set forth above, “marred” the parties’ relationship
during the Fall, 2001, agreeing that it was a “problem.”
e. The Meeting of August 29
This meeting was held at the Connecticut Board of Arbitra-
tion. The Respondent arrived first and met with mediator
Sweeney for about one hour, outlining the history of the par-
ties’ negotiations up to that point, and informing him that “no
fruitful discussions regarding anything had taken place.” Zaken
testified that he spoke to Sweeney on “areas that I thought we
might be able to make some progress if Mr. See would negoti-
ate with us on them.” When the Union’s agents arrived,
Sweeney asked them to wait in another room.
Sweeney met with the Union and asked if the matter could
be resolved. See replied that the parties were very far apart, and
had not even discussed certain issues. See asked that Sweeney
get the parties together to begin bargaining. Sweeney reported
that the Respondent refused to meet for face-to-face negotia-
tions and insisted on bargaining in separate rooms with
Sweeney acting as the intermediary. See told Sweeney that
lengthy negotiations are necessary to arrive at a new contract,
which could not be accomplished by bargaining separately. See
gave as an example the issue of subcontracting. Sweeney left
and returned, saying that the Respondent does not intend to
subcontract all unit work. See replied that they must meet to-
gether since he did not even know what work the Respondent
wants to subcontract, adding that they must deal across the
table so that the Union knows what the Respondent is talking
about.
Zaken testified that he told Sweeney that based on the his-
tory between the parties, face-to-face bargaining had been un-
productive. Zaken testified about a private conversation he had
with Sweeney, in which Sweeney told him that See mentioned
privately to Sweeney that he wanted to meet face-to-face so
that he could call Zaken an “asshole” which would cause Zaken
to leave the meeting, permitting See to file a charge against the
Respondent. Callahan and Marcinczyk testified that Zaken
related that conversation to them. That information contributed
to the Respondent’s decision thereafter not to meet in person
with the Union.
Zaken testified that even before this meeting he believed that
the parties must meet in separate rooms because of See’s prior
conduct, the long breaks taken by the Union, the filing of
charges, and “because of all of the things that had gone on.”
See denied being alone with Sweeney that day, and further
denied telling him that he wanted to have a face-to-face meet-
ing with Zaken because he wanted to call him an asshole and
then file a charge. See stated, however, that at the end of the
meeting, Sweeney said that the Respondent was refusing to
bargain, apparently by refusing to meet face-to-face with the
Union. See then told him that he would file a charge against the
Respondent. See added that he has known Sweeney for 20
years, and had never told him what a company attorney told
him in confidence.
Langston testified that he was in See’s presence during their
entire session that day, and did not see the mediator engage in a
private discussion with See. He added that anytime See spoke
with the mediator, he (Langston) was present. He specifically
denied hearing the comment allegedly made by See to
Sweeney.
Following the meeting, the Union wrote to the Respondent
demanding face-to-face negotiations, explaining that the parties
had not fully discussed their proposals, the Respondent had not
given its reasons for wanting changes in the expired contract,
and negotiations had not progressed to the point where a me-
diator was necessary. In response, Zaken wrote on August 29
that the Respondent would bargain with the Union in separate
rooms with the assistance of the mediator to communicate their
positions. No bargaining sessions were held after August 29.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1080
C. The Violations of Section 8(a)(5) of the Act
1. Impasse and the Implementation of the
Respondent’s Proposals
The Respondent continued to insist that bargaining be con-
ducted in separate rooms with the assistance of the mediator.
The Union refused to do so. On September 30, 2002, Zaken
wrote to the Union that given the unwillingness of the Union to
meet in separate rooms “it is apparent that our negotiations are
at an impasse.” Zaken advised that, effective October 10, it
would implement its proposals made to the Union at the initial
bargaining session of May 15, unless “in the interim we receive
notification . . . that the Union is willing to meet with Success
Village on the terms described above [bargaining with the par-
ties in separate rooms].” Zaken further noted that since no wage
proposal was made during negotiations, the Respondent would
maintain the status quo with respect to wages.
On October 16, the Respondent wrote to its employees that,
inasmuch as the Respondent and the Union have reached an
impasse in their contract negotiations, the Respondent “is thus
unilaterally implementing its last best offer.” In October, the
Respondent eliminated the positions of Boilerman 1A, lead-
man, and temporary leadman, and Giannattassio was termi-
nated because he was unable to report to work for more than
six months. All those actions were consistent with its proposals
for a new contract. Callahan testified that not all of its propos-
als were implemented.
Callahan further testified that the Respondent did not believe
that there was any point in continuing negotiations with the
Union. They had met face-to-face and “nothing was really ac-
complished. There were obscenities and it just wasn’t going to
get anywhere.”
See stated that when negotiations ended, the parties had not
discussed, at length, any one issue. Langston testified that since
July 22, the Union had not received from the Respondent pro-
posed language concerning its four hours pay proposal, and
information concerning the pension plan and job descriptions
that it had requested. See testified that when negotiations
ended, not all of the Respondent’s proposals had been dis-
cussed. For example, the Respondent sought to change the
weekly payday to biweekly paydays. At the July meeting, See
asked why the change was necessary, and Zaken replied that it
would save it money. See asked how much money would be
saved, and Zaken said that he did not know but would have that
information at the next meeting, but no substantive discussion
took place thereafter. See noted that, in the past, he has partici-
pated in face-to-face negotiation sessions with the Respondent
with a mediator present.
a. Analysis and Discussion
The complaint alleges that on August 29, 2002, the Respon-
dent insisted, as a condition of reaching any collective-
bargaining agreement, that the Union agree to conduct negotia-
tions in separate rooms through an intermediary, that such con-
dition is not a mandatory subject of bargaining, and that, in
support of that condition, the Respondent bargained to impasse
and implemented its contract proposals.
“It is elementary that collective bargaining is most effec-
tively carried out by personal meetings and conferences of
parties at the bargaining table. Indeed, the Act imposes this
duty to meet.” U.S. Cold Storage Corp., 96 NLRB 1108
(1951). Section 8(d) of the Act defines the duty to bargain col-
lectively as the mutual obligation of the parties to “meet . . .
and confer in good faith. . . .” See Twin City Concrete, 317
NLRB 1313, 1314 (1995); Chemung Contracting Corp., 291
NLRB 773, 784 (1988); The Westgate Corp., 196 NLRB 306,
313–314 (1972). An employer may not insist that negotiations
be conducted by phone or by mail. Alle Arecibo Corp., 264
NLRB 1267, 1273 (1982). The Board has held that “an em-
ployer who insists on negotiating by mail or demanding that a
union submit its proposals in writing, has unlawfully refused to
bargain.” Beverly Farm Foundation, 323 NLRB 787, 793
(1997).
The Respondent’s insistence on bargaining through a media-
tor and not in face-to-face sessions does not satisfy its bargain-
ing obligation. Such a procedure does not permit a complete
give-and-take of ideas and proposals. As noted by See and
Langston, there were many issues which still required full dis-
cussion. Bargaining through a mediator would inhibit the free
flow of ideas from both sides which could result in an agree-
ment. Such bargaining also would not permit the parties to
simultaneously sign-off on tentatively agreed-upon terms in the
middle of bargaining, or hold sidebar conferences with the
other party’s negotiators. Separate-room bargaining would not
permit one party to fully articulate its position as to a complex
issue and follow-up with a further explanation if needed. Nor
could the other side be in a position to immediately respond to
such explanation with concerns of its own. Such bargaining
would also remove the possibility that each side would be able
to observe the body language of, or maintain eye contact with
the opposition.
It is more likely that an agreement would be reached where
there is a free flow of ideas between the parties, and an oppor-
tunity for the parties to reason with each other as to the merits
of their proposals. None of these opportunities are available
when the parties are bargaining through a mediator with no
opportunity for face-to-face contact.
I find, as alleged in the complaint, that the Respondent in-
sisted, as a condition of reaching a collective-bargaining
agreement, that the Union agree to conduct negotiations in
separate rooms through an intermediary. In its letters of August
28 and September 30, the Respondent insisted on such a bar-
gaining arrangement as a condition of continuing negotiations.
When the Union refused to do so, the Respondent declared
impasse, and announced that it would implement its proposals
unless it was notified that the Union was willing to meet with
Success Village in separate rooms with the mediator as an in-
termediary.
The Respondent could not lawfully insist on such bargaining
as a condition of meeting with the Union. Bargaining in sepa-
rate rooms through an intermediary is not a mandatory subject
of bargaining, but rather is a permissive subject, as to which the
Respondent could not insist to impasse. Riverside Cement Co.,
305 NLRB 815, 818 (1991).
SUCCESS VILLAGE APARTMENTS 1081
I accordingly find and conclude that the Respondent’s insis-
tence on bargaining only through a mediator in separate rooms
and not in face-to-face sessions violated the Respondent’s bar-
gaining obligation.
I further find that no legitimate impasse in bargaining was
reached by the parties. In Taft Broadcasting Co., 163 NLRB
475, 478 (1979), the Board set forth several factors for deter-
mining whether impasse has been reached:
Whether a bargaining impasse exists is a matter of judgment.
The bargaining history, the good faith of the parties in nego-
tiations, the length of the negotiations, the importance of the
issue or issues as to which there is disagreement, the contem-
poraneous understanding of the parties as to the state of nego-
tiations are all relevant factors to be considered in deciding
whether an impasse in bargaining existed.
After considering the relevant factors, the Board will find
that an impasse existed at a given time only if there is “no real-
istic possibility that continuation of discussion at that time
would have been fruitful.” Cotter & Co., 331 NLRB 787
(2000). It is clear that the Union believed that further negotia-
tions might produce agreement. Union officials testified that
there were a number of items which had not yet been discussed
and other matters had not been fully explored by the parties. An
impasse can exist only if both parties believe that they are “at
the end of their rope,” and where neither party is willing to
compromise. Cotter & Co., above, at 788. “A genuine impasse
in negotiations is synonymous with a deadlock: the parties have
discussed a subject or subjects in good faith, and, despite their
best efforts to achieve agreement with respect to such, neither
party is willing to move from its respective position.” Hi-Way
Billboards, 206 NLRB 22, 23 (173). If the parties had an op-
portunity to engage in further bargaining it is possible that
agreement could be reached. After only four unproductive
meetings it can hardly be said that the parties were deadlocked
as to any issue. Indeed, there was hardly any discussion at all.
Based on that, given further negotiations, compromises were
possible and it is also possible that agreement could be reached.
In addition, “a lawful impasse cannot be reached in the pres-
ence of unremedied unfair labor practices. . . . An employer
that has committed unfair labor practices cannot ‘parlay an
impasse resulting from its own misconduct into a license to
make unilateral changes.” Dynatron/Bondo Corp., 333 NLRB
750, 752 (2001). Only “serious unremedied unfair labor prac-
tices that affect the negotiations” will taint the asserted im-
passe.” Titan Tire Corp., 333 NLRB 1156, 1158 (2001); Alwin
Mfg. Co., 326 NLRB 646, 688 (1998). It is clear that here, the
Respondent’s unfair labor practice of conditioning bargaining
on negotiations occurring in separate rooms through a mediator
obviously affected the negotiations. The Respondent would not
bargain unless that unlawful condition was met. When the Un-
ion refused to agree to that unlawful condition, the Respondent
effectively foreclosed bargaining from continuing. No better
example of an unremedied unfair labor practice affecting the
negotiations can be cited. Accordingly, the parties were unable
to reach agreement, or even bargain toward that end, because of
the existence of this unremedied unfair labor practice commit-
ted by the Respondent. Jano Graphics, Inc., 339 NLRB 251
(2003).
The Respondent argues that it bargained in good faith with
the Union, but reached an impasse when it became apparent
that further negotiations would be futile. The Respondent con-
tends that the Union’s approach to bargaining from the very
beginning evidenced a desire to avoid good faith bargaining or
reach agreement. It asserts that it declared an impasse because
the Union’s conduct during the four negotiation sessions and
the mediation session established that the Union had no interest
in legitimate bargaining.
The Respondent asserts that the bargaining session of July
22 at which See allegedly called Zaken an asshole convinced
the Respondent that the parties were at impasse and would not
have been able to make further progress without the assistance
of a mediator. It is true that the parties did not make much pro-
gress in the four bargaining sessions held. But the parties did
exchange proposals and discussed them. Productive, substan-
tive discussion on the proposals had not yet taken place when
the Respondent prematurely declared impasse. Grosvenor Re-
sort, 336 NLRB 613, 615 (2001).
There can be no doubt that See is a confrontational person,
and that he approached the negotiations without the diplomacy
of a foreign ambassador. However, no one expects labor nego-
tiations to be conducted in the sitting room of the Harvard Club
by persons having a gracious, gentle manner. “For better or
worse, the obligation to bargain also imposes the obligation to
thicken one’s skin and to carry on even in the face of what
otherwise would be rude and unacceptable behavior.” Victoria
Packing Corp., 332 NLRB 597, 600 (2000).
However, nothing in See’s conduct, or in the conduct of the
Union establishes that the Union engaged in any misconduct as
to interfere with the mechanics of collective bargaining.
Langston Cos., 304 NLRB 1022, 1072 (1991). The General
Counsel cites cases where the employer refused to meet with a
particular union representative. KDEN Broadcasting, 225
NLRB 25 (1976); King Soopers, Inc., 338 NLRB 269 (2002).
In such cases, “an employer is justified in refusing to meet with
a particular union representative if there is ‘persuasive evidence
that the presence of [that individual] would create ill will and
make good faith bargaining impossible.’” King Soopers, above.
Those cases hold that the employer is justified in refusing to
meet with a specific union negotiator if the agent engaged in
violent, physical conduct. No such conduct took place here.
Indeed, in Long Island Jewish Medical Center, 296 NLRB 51,
71–72 (1989), the Board found that a union agent who slightly
pushed a hospital administrator and called her an asshole on
several occasions did not create ill-will or make bargaining
impossible.
In any event, the Respondent is not offering to bargain with
the Union without See present. It argues that the Union’s con-
duct relieved it of its obligation to meet with the Union at all in
face-to-face bargaining. The record does not establish that the
Respondent may impose that demand.
Nothing in the Union’s conduct relieved the Respondent of
its obligation to bargain in good faith with the Union. The Re-
spondent cites certain charges filed by the Union which were
dismissed. However, others had merit and are the subject of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1082
this proceeding. Bargaining had barely begun when the Re-
spondent prematurely declared impasse. The bargaining history
of the parties demonstrates that, although negotiations leading
up to prior contracts were lengthy, they always reached agree-
ment. I cannot credit the Respondent’s witnesses that See told
mediator Sweeney that the only reason that See wanted face-to-
face bargaining was to call Zaken an asshole so that the Re-
spondent would walk out of the meeting. The evidence does not
establish that the Union sought to avoid reaching agreement. It
presented its proposals to the Respondent, attended bargaining
sessions, and engaged in discussions concerning its proposals
and the Respondent’s proposals. After the Respondent refused
to meet in face-to-face bargaining, the Union continued its
efforts to convince the Respondent that it sought in-person
bargaining and gave its reasons as to why such a method was
necessary.
The other factors cited by the Respondent as evidence that
the Union was not interested in bargaining, and which allegedly
justified its declaring impasse similarly have no merit. The
facts that the Union may have arrived late at negotiation ses-
sions, took long lunches, ended sessions early, and did not fur-
nish requested information do not establish, separately or to-
gether, a desire not to reach agreement. It should be noted that
the Union claims that the Respondent did not furnish informa-
tion it requested.
Inasmuch as I find that no good-faith impasse occurred, I
therefore find that the Respondent was not entitled to imple-
ment its contract proposals. Dynatron/Bondo Corp., above. It
follows, accordingly, that it cannot rely upon its implemented
contract proposals to support the various changes it made in the
terms and conditions of employment of its employees, dis-
cussed below.
2. The Respondent’s Obligation to Bargain with
Respect to Changes in Employees’ Terms and
Conditions of Employment
Inasmuch as I have found that no proper impasse in bargain-
ing occurred, I therefore find that the Respondent was unable,
legally, to implement its contract proposals. It thus follows that
the Respondent cannot rely upon its implemented contract pro-
posals to support the various changes it made in the terms and
conditions of employment of its employees.
The Respondent also argues that the Union waived its right
to bargain concerning the changes by virtue of certain clauses
in their collective-bargaining agreement, specifically, the man-
agement-rights clause, the “zipper clause”, a clause prohibiting
any prior practice except those specifically enumerated, and
clauses concerning waiver of a breach of the agreement, and
providing that no act or omission of the Respondent shall be
used to establish a past practice of the parties. The relevant
provisions of the contract are as follows:
Article 2—Management:
It is agreed that the rights of the management of the Co-op
have been bargained and that, except as otherwise provided
by this agreement, the Co-op retains the sole and exclusive
right to fully manage and conduct its business affairs, which
rights include specifically, but not being limited to, the fol-
lowing: the exclusive right to fully direct and assign its em-
ployees, including but not limited to, the right to hire, pro-
mote, demote, transfer, lay off for lack of work or other busi-
ness reason deemed sufficient to the Co-op; discharge or dis-
cipline for just cause, and to maintain discipline among em-
ployees; the determination of services to be performed; the
standards of quality of work to be maintained; the type and
quantity of machines, tools, equipment and methods to be
used; to maintain and enforce rules of conduct and safety; to
introduce changes in methods; to establish work standards; to
determine the size of its work force; to determine the number
of hours per day or per week operations shall be carried on; to
allocate or assign work; and to generally manage the Co-op’s
business as it deems best.
Article 18, General Provisions:
Section 6—This agreement constitutes the entire contract be-
tween the Co-op and the Union, and settles all demands* and
issues with respect to all matters subject to collective bargain-
ing. Therefore, the Co-op and the Union, for the duration of
this Agreement, waive the right, and each agrees that the other
shall not be obligated to bargain collectively with respect to
any subject or matter which is subject to collective bargain-
ing, whether or not such subject is specifically referred to
herein.
Section 7—No prior policy, practice or procedure of the Co-
op shall be required to be continued except for those specifi-
cally enumerated in this Agreement, including the Appendix
B. This provision (and Sections 8 and 9 of this Article) shall
not apply to the issue of subcontracting and transfer to [sic]
work, which shall continue as heretofore. Thus, the Union
and/or the employee shall have no right to demand of the Co-
op anything not provided for in this Agreement.
Section 8—The waiver of any breach or condition of this
Agreement by either party shall not constitute a precedent in
the future enforcement of all the terms and conditions herein.
Section 9—No act or omission of the Co-op prior to the sign-
ing of this Agreement or during this Agreement shall be used
in any way to establish any “past practice” of the parties.
Appendix B contains a list of 15 paragraphs providing for
various terms and benefits for employees including permitting
a washer/dryer, locker room, lunch room, and radio and televi-
sion set in the maintenance area; and providing that if a holiday
falls on a Friday, payday will be on Wednesday.
I begin with a discussion of the legal principles applicable to
alleged unilateral changes. I will then apply the law to the spe-
cific changes alleged.
An employer’s duty to bargain with the union representing
its employees encompasses the obligation to bargain over the
following mandatory subjects—wages, hours, and other terms
and conditions of employment. First National Maintenance
Corp. v. NLRB, 452 U.S. 666, 679–682 (1981). An employer
violates Section 8(a)(5) of the Act when it makes a material and
substantial change in wages, hours, or any other term of em-
ployment that is a mandatory subject of bargaining, at a time
when the employees are represented by a union. Fresno Bee,
339 NLRB 1214 (2003). The General Counsel establishes a
prima facie violation of Section 8(a)(5) when he shows that the
SUCCESS VILLAGE APARTMENTS 1083
employer made a material and substantial change in a term of
employment without negotiating with the union. Chemical
Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 159
(1971); Taino Paper Co., 290 NLRB 975, 977 (1988). The
burden is then on the employer to show that the unilateral
change was in some way privileged. Cypress Lawn Cemetery
Assn., 300 NLRB 609, 628 (1990).
A “term and condition of employment,” even though not ex-
pressly provided for in the collective-bargaining agreement
cannot be unilaterally altered or abolished by the employer
without affording the Union notice and an opportunity to bar-
gain. Thus, a unilateral change constitutes an unlawful refusal
to bargain unless, as the Respondent contends, the Union has
waived its right to bargain over this matter. “The right to be
consulted on changes in terms and conditions of employment is
a statutory right; thus, to establish that it has been waived the
party asserting waiver must show that the right has been clearly
and unmistakably relinquished. Whether such a showing has
been made is decided by ‘an examination of all the surrounding
circumstances including but not limited to bargaining history,
the actual contract language, and the completeness of the col-
lective-bargaining agreement.’” TCI of New York, 301 NLRB
822, 825 (1991).
However, waivers of statutory rights are not to be “lightly in-
ferred.” Georgia Power Co., 325 NLRB 420 (1998). “National
labor policy disfavors waivers of statutory rights by a union
and thus a union’s intention to waive a right must be clear be-
fore a waiver can succeed.” C & P Telephone Co. v. NLRB, 687
F.2d 633, 636 (2nd Cir. 1982). “We will not infer from a general
contractual provision that the parties intended to waive a statu-
torily protected right unless the undertaking is ‘explicitly
stated.’ More succinctly, the waiver must be clear and unmis-
takable.” Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708
(1983). To meet the ‘clear and unmistakable’ standard, the
contract language must be specific, or it must be shown that the
matter claimed to have been waived was fully discussed by the
parties and that the party alleged to have waived its rights con-
sciously yielded its interest in the matter.” Allison Corp., 330
NLRB 1363, 1365 (2000).
“The Board finds a waiver of the statutory right to bargain
based on language contained in the contract if the contract lan-
guage is specific regarding the waiver of the right to bargain
regarding the particular subject at issue. Thus, the Board looks
to the precise wording of the relevant contract provisions in
determining whether there has been a clear and unmistakable
waiver.” Allison Corp., above, at 1365.
The Respondent argues that the Union, because it agreed to
the zipper clause, waived its right to bargain during the term of
the contract over mandatory subjects not addressed in the con-
tract and not raised during bargaining. “The clear and unmis-
takable waiver test applies equally to alleged waivers contained
in zipper clauses as it does to those contained in other contrac-
tual provisions.” Michigan Bell Telephone Co., 306 NLRB 281,
282 (1992).
The Board has held that a contract clause must specifically
include the subject at issue and that the parties’ bargaining
history must show that the matter at issue was fully discussed
and consciously explored during negotiations, and that the Un-
ion consciously yielded or clearly and unmistakably waived its
interest in the subject matter before a waiver will be found. Mt.
Sinai Hospital, 331 NLRB 895, 910 (2000), citing Johnson-
Bateman Co., 295 NLRB 180, 184–188 (1989). Here, none of
the contractual provisions establish, on their face, prior union
consent to the actions taken by Respondent, nor a waiver of the
union’s right to advance notice and an opportunity to bargain
about such actions. Mt. Sinai, above. at 184. “Generally
worded management rights clauses or ‘zipper’ clauses will not
be construed as waivers of statutory bargaining rights.’” John-
son-Bateman Co., above.
“In order to establish the waiver of a statutory right as to a
specific mandatory bargaining subject, there must be clear and
unequivocal contractual language or comparable bargaining
history evidence indicating that the particular matter at issue
was fully discussed and consciously explored during negotia-
tions, and that the union consciously yielded or clearly and
unmistakably waived its interest in the matter. Absent such
evidence, the Board has consistently found that a general man-
agement-rights clause does not constitute a clear, unequivocal,
and unmistakable waiver by the union of its statutory right to
bargain about an employer’s implementation of a work rule not
specifically mentioned in the clause.” Hi-Tech Cable Corp.,
309 NLRB 3, 4 (1992).
In general, a zipper clause is an agreement by the parties to
preclude further bargaining during the term of the contract. If
the zipper clause contains clear and unmistakable language to
that effect, the result will be that neither party can force the
other party to bargain, during the term of the contract, about
matters encompassed by the clause. That is, the zipper clause
will “shield”, from a refusal to bargain charge, the party to
whom such a bargaining demand is made. Similarly, under
such a clause, neither party can unilaterally institute, during
the term of the contract, a proposal concerning a matter en-
compassed by the clause. That is, the zipper clause cannot be
used as a “sword” to accomplish a change from the status
quo. Michigan Bell Telephone, above, at 282.
Here, as in Pepsi Cola, 241 NLRB 869 (1979), I find gener-
ally, as set forth below, that the Respondent used the zipper
clause as a sword, and not as a shield, to “unilaterally institute”
changes in terms and conditions of employment. The Respon-
dent first unilaterally changed the employees’ existing working
conditions, then used the zipper clause as a “sword” to justify
its refusal to discuss the unilateral changes made to the status
quo.
A zipper clause does not mean that a union has clearly and
unmistakably relinquished its right to bargain over all manda-
tory subjects of bargaining. Rather, the Board and the courts
have interpreted such a clause as a curb on the union’s right to
demand bargaining during the life of a collective-bargaining
agreement about the terms and conditions of employment
which are contained in the agreement. The Board and the courts
have not interpreted the presence of a zipper clause as a grant to
an employer to unilaterally change existing terms and condi-
tions of employment. See GTE Automatic, Inc., 261 NLRB
1491, 1492 (1982); Angelus Block Co., 250 NLRB 868, 877
(1980).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1084
I cannot conclude that the zipper clause clearly and unmis-
takably waived the parties’ rights to bargain over mandatory
subjects not mentioned in the contract. There was no evidence
of the specific matters discussed in negotiations leading up to
the execution of the contract which expired in May, 2003.
Where the zipper clause does not contain clear and unmistak-
able language, there is no waiver of the right to bargain. Each
party has the right, and the opposing party has the duty, to bar-
gain about subjects not covered by the contract and not dis-
cussed in contract negotiations. Michigan Bell, above.
It must also be noted that here, as in Suffolk Child Develop-
ment Center, 277 NLRB 1345, 1351 (1985), in finding that a
zipper clause did not act as a waiver, the Board noted that the
benefits at issue continued for nearly 1½ years after the con-
tract became effective, and thus the clause was not intended to
strike all prior agreements. Thus, the Respondent permitted the
practices which are alleged to have occurred, in the face of the
various clauses. Aeronica, Inc., 253 NLRB 261, 264–265
(1980).
Applying the above principals generally to the changes insti-
tuted by the Respondent, I can find no specific language in any
of the contractual clauses, except for subcontracting which will
be discussed below, which refers to the “particular subject at
issue.” The clauses are all worded generally. For example, the
management-rights clause, set forth above, speaks generally
about the Respondent’s ability to run its business, but does not
expressly mention the new policies at issue here, such as the
phone use policy, copier and facsimile use policy, time card
discrepancy policy, reduction of paid time for Union officials,
and the lock and locker policy. The zipper clause is also
phrased in general language. The clause which states that no
prior practice will be required to be continued except those
specifically enumerated, similarly does not identify which prior
practices must be discontinued.
E. I. du Pont & Co., 294 NLRB 563 (1989), relied on by the
Respondent, is easily distinguishable. The changes imple-
mented by the employer in that case were all the subject of
proposals made to the union during the term of the agreement,
and as to which, the employer offered to bargain about. In addi-
tion, the past practice urged by the union in that case conflicted
with specific terms of the contract which involved employees
engaged in union representation during working time. The cir-
cumstances in that case are thus completely different than the
instant case in which no offer to bargain was made, and no
specific term of the contract mentioned the express changes
made here.
As set forth above, I cannot find that the Union by such
general language in the contractual terms, clearly and unmis-
takably waived its right to bargain about these long-standing
practices, or consciously yielded its interest in these matters.
a. The Changes in Working Conditions
The complaint alleges that (a) in October, 2001, the Respon-
dent implemented a restricted phone use policy (b) on January
14, 2002, implemented a copier and facsimile use policy (c) on
July 23, 2002 implemented a time card discrepancy discipline
policy (d) since about December 20, 2002, it reduced the paid
time for Union officials engaged in representation functions
and (e) on July 3, 2003, implemented a locker and lock policy.
It is alleged that the Respondent took these actions without
affording the Union an opportunity to bargain with it regarding
these changes.
i. The Phone Use Policy
A telephone had been located in the downstairs maintenance
area in building 100—an area used by the employees. During
Langston’s tenure as shop steward he used the phone to make
occasional long distance calls to the Union office in Newing-
ton, Connecticut. In connection with his work as a boiler ten-
der, he also used that phone to make long distance calls to order
parts. Prior to the hire of WC&F, the prior management com-
pany, Van Court, gave each employee a four-digit code to use
when making a long distance call. That system held each em-
ployee accountable for such calls made by him. The change
was necessary due to long distance calls being made which
were unrelated to union business or work matters.
At a board meeting in September, 2001, it was decided that
only the management, including the board, and clerical em-
ployees Boulware and Johnson would be permitted to make
long distance phone calls. It was also decided that any em-
ployee who made long distance calls without prior permission
would be written up and required to pay for the call. Union
agent Langston testified that beginning in September, the
downstairs phone was no longer capable of making long dis-
tance calls. In order to make business-related calls, the em-
ployee had to use the phone in the upstairs office—either in the
manager’s office or on the clerical employees’ desks. For per-
sonal long distance calls, employees could no longer use the
Respondent’s phone either downstairs or upstairs. They were
required to use a pay phone in the office foyer. However,
Langston also testified that the employees may use the phone
downstairs to make local calls, including calls to his cell phone
which is a local call. Langston stated that the Union received
no notice or opportunity to bargain with the Respondent before
the implementation of these new policies.
Employee Otocka stated that he had always used the phone
downstairs to call the Union. Upon the change, he was told by
the Respondent that he would have to use the pay phone in the
manager’s office to make such a call.
Callahan testified that the board examined the Respondent’s
office phone bills, and found that such bills were $250 to $300
per month. He said that employee Agnant had been making
unauthorized long distance calls. The Respondent changed the
phone code system so that the only persons who had the codes
would be management and the two office employees, Boulware
and Johnson. If maintenance employees had to make a long
distance call they would have to come to the office and a man-
ager would dial the number. Callahan testified that the down-
stairs phone continued to be able to transmit and receive local
calls, and that union representatives were able to make such
calls from that phone. He stated that a long distance call to the
Union office is unrelated to the employee’s job, further noting
that the Respondent did not recognize any past practice that
was not provided for in the contract, and that the making of
long distance calls by union representatives is not included in
the contract.
SUCCESS VILLAGE APARTMENTS 1085
As set forth above, in September, 2001, a new rule was im-
plemented, restricting employees’ use of the phone by prohibit-
ing their making long distance phone calls without permission.
Prior to the September, 2001, no written rule existed concern-
ing this matter, and employees were permitted to make such
calls. Specifically, long distance calls to the Union’s office
were permitted prior to the new rule.
“An employer has a duty not to change past practices for
employees who are represented by a union until it has bar-
gained to impasse on that subject with the union.” NLRB v.
Katz, 369 U.S. 736, 745–747 (1962). An employer may not
unilaterally eliminate a past practice, even if the practice has
not been embodied in a term of a collective-bargaining agree-
ment. Arvinmeritor, Inc., 340 NLRB 1035,1039 (2003). But the
activity must be “satisfactorily established by practice or cus-
tom, an established practice, a long standing practice.” Exxon
Shipping Co., 291 NLRB 489, 493 (1988).
A policy regarding telephone usage is a mandatory subject of
bargaining. Pepsi-Cola Bottling Co. of Fayetteville, 330 NLRB
900, 903 (2000); Illiana Transit Warehouse Corp., 323 NLRB
111, 122 (1997). In Santa Rosa Blueprint Service, 288 NLRB
762, 764 (1988), the employer’s reason for limiting the use of
the phone was similar to that here—increased phone bills. The
Board found that the “change in telephone policy ‘affected all
employees and constituted a substantial modification of a privi-
lege which had been an existing condition of employment,’”
citing Brown & Connolly, Inc., 237 NLRB 271, 281 (1978);
See Advertising Mfg. Co., 280 NLRB 1185, 1191 (1986).
The use of phones by employees was therefore a term and
condition of their employment, and thus a mandatory bargain-
ing subject which the Respondent was not at liberty to unilater-
ally alter without first notifying the Union and affording it an
opportunity to bargain. Illiana Transit, above; Pepsi-Cola Bot-
tling Co. of Fayetteville, 330 NLRB 900, 903 (2000).
It is undisputed that the employees were permitted to make
long distance calls to the Union prior to the change. It appears
to have been a long-standing practice. Such use was discontin-
ued without notice to the Union. I find that the change was a
“substantial modification of a privilege which had been an
existing condition of employment,” Brown & Connolly, above.
The fact that employees could continue to make local calls to
Langston’s cell phone does not alter the fact that the change
was substantial. Langston’s circumstances may change, and
business agents may change, and the availability of his contin-
ued availability by local cell phone is uncertain. There is no
reason that the Union should make accommodations in its
availability simply because the Respondent changed this long-
standing practice.
I accordingly find and conclude that the Respondent’s uni-
lateral institution of a new phone use policy violated Section
8(a)(5) of the Act.
ii. The Copier and Facsimile Use Policy
Callahan stated that, pursuant to a request by the Union for
plumbing work orders, he turned over 300 to 400 documents to
the Union. The Union did not ask for copies, but employee Teja
came to the office, and began making copies of them. Callahan
interrupted him, saying he could not make copies, and would
have to pay for any copies made. Callahan further told him that
such copies are costing the Respondent money, and that it had
no obligation to make a copier available.
Immediately thereafter, on January 14, 2002, Callahan sent a
letter to Langston stating that the plumbing work orders he
requested were ready for his review, and that if the Union
wanted copies, effective immediately, all copies made in the
office would cost 25 cents per page, which may be made by
employees after work hours. The letter further advised that Teja
had been making copies and using the office fax machine, and
that effective immediately, the fax machine “cannot be util-
ized.”
Langston testified that prior to January 14, when such docu-
ments required copying, as the union representative, he made
copies on the Respondent’s machine, and had never been
charged for copying. Also, prior to January 14, Union represen-
tatives were permitted to use the office fax machine.
Langston further stated that he received no notice of the
change of policy prior to January 14, and that the Union had
not been requested to bargain over the cost of copying or the
use of the fax machine by union officers. Langston conceded
that the expired contract does not mention use of the phone, fax
or copier machine, nor did he believe that the contract was
violated by the Respondent in imposing restrictions on their
use.
As set forth above, on January 14, 2002, Callahan stopped
employee Teja from making copies of documents requested by
the Union and furnished by the Respondent, and imposed on
the Union a fee for copies, and prohibited employee use of the
fax machine. Previously, the Respondent did not charge the
Union for making copies, and permitted employee use of the
fax machine.
Similarly with respect to the phone policy, use of the copier
and fax machines constituted a benefit to employees, which
was withdrawn by the Respondent. The Respondent imposed
this policy because Teja was making hundreds of copies, at a
tremendous cost to the company. My finding, in this regard, is
that even assuming the Respondent had a legitimate reason to
impose the policy it could not do so without bargaining with
the Union with respect to this mandatory subject of bargaining.
Treanor Moving & Storage Co., 311 NLRB 371, 383, 386
(1993).
I accordingly find and conclude that the Respondent’s uni-
lateral institution of a new copier and fax use policy violated
Section 8(a)(5) of the Act.
iii. The Time Card Discrepancy Discipline Policy
On July 23, 2002, the Respondent sent a memo to its em-
ployees which stated that in the past several weeks there had
been numerous time card errors—employees were not punch-
ing the time card correctly, and failed to punch at the required
times. The memo stated that effective immediately, failure to
punch the time card correctly would result in a written warning
for the first occurrence and forfeiture of one-half hour’s pay for
the second occurrence.
This was a new policy which was issued without giving the
Union an opportunity to bargain regarding it prior to its imple-
mentation. Callahan stated, however, that the Union did not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1086
request that the Respondent bargain about it. This is somewhat
disingenuous since he admits that the board did not wish to
speak to the Union prior to the issuance of the memo.
Langston testified there was no time card policy in effect
prior to July 23. The only requirement was that the employee
was required to punch in four times, and no discipline had been
issued for not doing so prior to July 23. While employees had
been disciplined for lateness prior to July 23, no employee had
been disciplined for not punching in correctly, as set forth in
the memo of July 23.
Callahan testified that the reason for the new policy was that
the employees consistently failed to punch in correctly, either
by double punching, or employees would forget to punch in.
He emphasized that inasmuch as the workers are paid based on
their time at work, accurate time card punching practice was
essential. Prior to the issuance of the memo, he had spoken to
the employees about this without issuing a written warning, but
errors in the time cards persisted. Callahan noted that since the
issuance of the memo, no employee forfeited pay due to incor-
rectly punching his or her time card. However, Netsel received
a written warning pursuant to the new policy because he was
chronically late and skipped punches in his time card.
As set forth above, on July 23, 2002, the Respondent imple-
mented a time card discrepancy discipline policy in which the
employees could be warned and lose pay if they fail to punch
their time card correctly or fail to punch in at the required
times.
There was no such rule prior to July 23. I reject the Respon-
dent’s argument that this was simply a “reaffirmation of exist-
ing practices.” Although, prior to July 23, the employees were
told of the need to correctly punch their cards, they were not
subject to a written warning or forfeiture of pay if they did not
do so. In addition, the fact that no one actually lost pay does not
change the fact that they could suffer those penalties.
“It is well established that work rules that can be grounds for
discipline are mandatory subjects of bargaining.” King Soopers,
Inc., 340 NLRB 628 (2003). The Respondent’s argument that
the Union waived its right to bargain over this new rule by
failing to request bargaining after it was issued, is without
merit. “A union cannot be held to have waived bargaining over
a change that is presented to it as a fait accompli. . . . An em-
ployer must at least inform the union of its proposed actions
under circumstances which afford a reasonable opportunity for
counterarguments or proposals.” Pontiac Osteopathic Hospital,
336 NLRB 1021, 1023 (2001). Here, the new rule was imple-
mented without any notice to the Union.
I also reject the Respondent’s argument that the manage-
ment-rights clause in the contract operated as a waiver of the
Union’s right to bargain about the implementation of this rule.
The contract had expired on May 31, 2002, and the rule was
implemented nearly two months later, on July 23. The Board
has held that a management-rights clause does not survive the
expiration of a contract. Beverly Health & Rehabilitation Ser-
vices, 335 NLRB 635, 636 (2001); Ryder/Ate, Inc., 331 NLRB
889 fn. 1 (2000).
I accordingly find and conclude that the implementation of
the new time card discrepancy discipline policy violated Sec-
tion 8(a)(5) of the Act.
IV. THE REDUCTION OF PAID TIME FOR UNION OFFICIALS
ENGAGED IN REPRESENTATION FUNCTIONS
On December 19, 2002, the Union sent a letter to the Re-
spondent requesting that employees Reid and Teja “be excused
on Union business” on December 20 from 11:00 a.m. for the
rest of the day. The Respondent replied the same day as fol-
lows: “Please advise to the nature of the union business and the
reason why their presence is required from 11:00 a.m. to the
end of the day.” The Union did not reply to the letter. Callahan
stated that he did not normally respond to such a request for
union leave by asking the nature of the union business the em-
ployee would be engaged in, however he had asked that ques-
tion prior to that time and was told that it was none of his busi-
ness.
The expired contract provides that the Respondent “shall pay
the shop chairperson and steward for all time spent during
working hours on Union business including the handling and
investigation of grievances, as set out in this Agreement, for
time spent on arbitration hearings and for negotiations.”
Langston testified that the past practice of the parties under
that provision of the contract had been that the union officials
were paid for any and all union time for grievance handling,
grievance investigation and writing, and arbitrations. When
Langston was a unit employee, he notified the Respondent that
he was going to be on Union time, such as having to leave
work early to attend a Union meeting at a distant site, and he
was paid for such time. Langston stated that such practice
changed as a result of the December 19 letter.
Langston stated that prior to December 19, no explanation
was requested as to what union business he was engaging in,
and according to the contract, such time was not limited, and no
explanation was required. Langston did not reply to the Re-
spondent’s letter inasmuch as the employees were on union
time, and what they were doing on such time was none of the
Respondent’s business. Langston stated that the Union had a
Christmas party in 2002 to which unit employees are invited,
but he could not recall the date, or if he invited the Respon-
dent’s employees, or whether Reid or Teja were present. See,
however, testified that he believed that Reid and Teja were
present, but was not certain of that fact.
Callahan stated that as far as he knew, there were no griev-
ance hearings, arbitrations, negotiations or union-employer
meetings scheduled for December 20, but he believed that the
Union was having a Christmas party at its office on that day.
According to the Respondent, it did not, as set forth in the
complaint, since December 20, 2002, reduce paid time for un-
ion business. It asserts that it had begun doing that on May 7,
2002. In a letter dated May 7, 2002, Callahan responded to the
Union’s advice that Brown’s presence was required on May 6
for an arbitration hearing. Callahan wrote that inasmuch as the
hearing ended at about 11:00 a.m. and Brown should have been
at work at 12:30 p.m. the Respondent would not pay him for
four hours, from 12:30 p.m. to 4:30 p.m. That policy was begun
by Callahan at that time in May.
As set forth above, on December 19, 2002, the Union asked
that Reid and Teja be excused on union business on December
20 from 11:00 a.m. for the rest of the day. The Respondent
asked for the nature of the union business and for an explana-
SUCCESS VILLAGE APARTMENTS 1087
tion of why their presence was required for the period of time
requested.
The parties’ expired contract provided that paid union time
activities included grievance investigation and handling, and
time spent at arbitration hearings and negotiations. Although
Langston testified that, in the past, the Respondent had not
requested an explanation as to why union time was requested,
however, apparently the Union did inform the Respondent on
May 7, 2002 that Brown was needed for an arbitration hearing
and would be on union time. In addition, Langston’s testimony
implied that when he requested union time, for example, he
advised that he had to leave work early to attend a union meet-
ing at a distant site.
In this case, Callahan was not aware that any of the contrac-
tually enumerated events, such as an arbitration hearing or a
negotiation, required Reid’s and Teja’s presence away from the
facility, and as such he reasonably asked the nature of their
union business. I do not regard this as an intrusion into their
union activities, but only a means to ensure that the contractual
provision was observed. In this regard, this issue is similar to
that in the past practice in E. I. du Pont & Co., above, in which
the past practice cited by the union conflicted with specific
terms of the contract. Here, specific language in the contract
specified what types of union business was contemplated in
requiring the Respondent to pay employees for their time in
such activities. Those activities included grievance handling
and investigation and for their time at arbitration hearings and
negotiations. The Union could not explain why Reid and Teja
were needed, and the implication, based on See’s testimony
that he believed that they were present at a Union Christmas
party that day supports Callahan’s belief that they were so en-
gaged.
In sum, I find that there was no change in the past practice of
providing representatives with paid time off for union business,
as defined in the contract, and that the Respondent has not vio-
lated its obligation to bargain in this regard.
V. THE IMPLEMENTATION OF A LOCKER AND LOCK POLICY
On July 3, 2003, the Respondent issued a memo to its em-
ployees which stated that “each maintenance employee will be
assigned a locker and issued a combination lock.” This refers to
the lockers in the basement shop area.
Prior to the issuance of the memo, no lockers were assigned.
If an employee wanted to use a locker he just selected one and
put his belongings in it. If he wished to lock it, he used his own
lock. It was Brown’s practice to put his company-issued rain-
gear, coat, overalls and equipment in the locker, but not lock it.
The parties’ contract provides that if a company issued item is
lost or negligently destroyed, the employee shall replace it at
his own expense. Brown conceded that it is a good idea to lock
his locker since he is responsible for lost items.
After the memo was issued, Respondent’s manager Segneri
assigned a locker, and gave a combination lock to each em-
ployee. Brown stated that prior to the issuance of the memo, no
one from the Respondent discussed this new locker and lock
policy with him as shop chair, and no offer to bargain about it
was made. Similarly, Brown did not know that the memo
would be issued prior to the time that it was issued.
Segneri testified that employees were given equipment 10
years earlier but no longer had them. In order to hold employ-
ees responsible for the equipment they were issued, Segneri
decided to assign lockers and give locks to each worker, in
which they would keep their company-issued equipment. He
stated that since the issuance of the policy, he has not disci-
plined anyone for not locking his locker.
As set forth above, on July 3, 2003, the Respondent imple-
mented a new policy whereby it assigned a locker and lock to
each employee. Prior to this memo, the employee used any
locker and locked it if he wished. This policy was instituted for
the purpose of holding employees responsible for the clothing
and equipment they were issued, which under the contract they
had to replace if lost or negligently destroyed.
Locker rooms and locker use is a mandatory subject of bar-
gaining as to which the Respondent must bargain with the Un-
ion before implementing a new policy. J. R. Simplot Co., 238
NLRB 374, 375 (1978). The Respondent asserts that the new
policy was consistent with the contractual provisions, above,
requiring it to supply certain equipment, and making employees
responsible for lost items.
Although the new policy may be a reasonable outgrowth of
the contractual provisions, it nevertheless is a new policy which
required bargaining with the Union before its implementation.
Contrary to the Respondent’s assertion, the policy is a material
change, requiring employees to put their gear in lockers and
lock the locker, pursuant to which they would be held responsi-
ble for the loss of such property. Although they were held re-
sponsible before the implementation of the new rule, this new
requirement represented a change, as to which the Respondent
was required to bargain with the Union before its implementa-
tion.
I accordingly find and conclude that the implementation of
the new locker and lock policy violated Section 8(a)(5) of the
Act.
3. The Subcontracting of Unit Work
As set forth above, before a waiver of the duty to bargain
will be found, there must be clear and unmistakable evidence of
the parties’ intent to waive this right. Such evidence is gleaned
from an examination of all the surrounding circumstances,
including but not limited to bargaining history, the actual con-
tract language, and the completeness of the collective-
bargaining agreement. Columbus Electric Co., 270 NLRB 686,
687 (1984).
The complaint alleges that on various dates in 2002 and
2003, the Respondent unilaterally subcontracted certain work
that had previously been performed by unit employees, without
giving the Union an opportunity to bargain with it concerning
such subcontracting.
The contract’s recognition clause also states that persons not
in the unit shall not perform “work of the type customarily
performed by” unit employees except in the following situa-
tions: (a) in emergencies when employees are not available (b)
in the bona fide instruction or training of employees and (c)
duties of an experimental nature or in the case of vendors or
warranties, tryouts. The remedy for a violation of the above is
that “the employee in the appropriate job description with the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1088
least amount of accumulated overtime hours will receive pay at
the applicable rate for the hours of work performed.”
Callahan testified that he generally asked the Union’s stew-
ard or shop chair or lead person or even a unit employee to
perform certain work. If that person said he could not do the
job, or if the Respondent did not have the special equipment
needed such as a powerful jet snake, he would subcontract the
work.
Langston testified that in his 20 years of employment at the
Respondent, and his service as shop chair, the practice regard-
ing subcontracting of work was that if the employer believed
that a subcontractor was needed, it advised the shop steward or
the shop chair that it was considering having a subcontractor
perform certain work. The Respondent would be questioned as
to which subcontractor would be doing the work, the type of
work to be performed, and the length of time estimated for the
work. The unit employees would then be given the opportunity
to perform the work, and if it was beyond the scope of their
ability, such as welding, the removal of large trees, or snaking
plumbing lines containing large amounts of roots or grease
requiring a long snake or a powerful jet snake, the Union would
decline the work. Otocka, who had also been employed for 20
years, and Brown, gave testimony consistent with the above.
Langston conceded, however, that the expired contract does not
contain any language requiring that this discussion process
occur before the Respondent subcontracts work. However, he
also stated that he was not aware of any instances over the
years where the Respondent routinely subcontracted work
without discussing the matter with the Union. Nevertheless, he
agreed that the annual cleaning of the rain gutters is subcon-
tracted without the Respondent discussing the need for subcon-
tracting with the Union. In this regard, however, Langston
stated that gutter cleaning was once a part of the employees’
work, but had previously been “bargained away” by the Un-
ion.8 In this connection, Langston stated that if subcontracted
work is not part of a unit employee’s job, there is no need for a
discussion with the Union.
Specifically, Langston stated that prior to the arrival of
WC&F, when he became aware that a subcontractor was erect-
ing a large fence around the perimeter of the property, he pro-
tested that the Respondent did not notify the Union about such
work. He met with the property manager at the time and the
work was given to the unit employees, with payment being
made for the amount of time the contractor performed such
work. Otocka testified to a similar event with an antennae re-
moval project which was begun by a subcontractor but finished
by unit employees after a grievance was filed.
Callahan also testified to an ongoing window project in
which every window at the complex was being replaced over a
five to six year period. Although this was carpenters’ work, a
contractor did that job without any objection by the Union.
Heil’s pre-trial affidavit stated that he could not understand,
sometimes, why Callahan wanted to pay outside contractors for
jobs the Union employees could have done. However, he testi-
fied that the only plumbing work that was subcontracted was

8 Otocka stated that the unit position of “roofer” had been elimi-
nated.
work which the employees were unable to handle because they
did not have the proper equipment for the job, for example,
snaking a main sewer line going into the street.
Heil stated that in 2002, Callahan told him to call outside
contractors such as Mr. Rooter for many routine plumbing jobs,
but which the employees could not handle, and were not com-
pletely qualified for, such as sewer work. His affidavit further
stated that he was told by Callahan to call American Boiler and
Santa Fuel “just about any time we had boiler work to be done”
and was also told by Callahan that he did not want the “Union
guys” in the boiler room.
a. The Allegedly Unilaterally Subcontracted Work
The complaint alleges that certain specific work was unilat-
erally subcontracted. In Fibreboard Paper Prods. Corp. v.
NLRB, 379 U.S. 203 (1964), the Supreme Court held that the
decision to subcontract work which resulted in the replacement
of unit employees with those of a contractor to do the same
work is a mandatory subject for bargaining, and that such duty
includes the duty to advise a union in advance of making a
decision to subcontract. As set forth above, the contract in-
cludes a provision which states that the past practice regarding
subcontracting shall continue. See Allison Corp., 330 NLRB
1363, 1365 (2000). The work allegedly unlawfully subcon-
tracted will be discussed here.
i. June 17, 2002
It is alleged that on June 17, 2002, the Respondent subcon-
tracted boiler work, including preparing boilers for tube re-
placement and closing boilers.
On June 17, 2002, employees of American Boiler, Inc.
(American) opened the boiler doors in preparation for boiler
tube repairs. The boiler doors must be opened so that the tubes
may be repaired. Langston and boiler tender Netsel stated that
in the past, the Respondent’s employees opened and closed the
boiler doors.
Langston stated that American Boiler has routinely per-
formed subcontracted work in the boiler room, such as chang-
ing boiler tubes and welding work. Langston notified American
regarding the need for it to perform such work. It is clear that
changing tubes was not work that unit employees could per-
form. Callahan stated that American Boiler has opened the
boilers in the past.
James McCarthy, the manager of American, stated that it has
performed work for the Respondent for 20 years, including
welding, and repairing leaks on the boiler and in piping. He
also stated that American would dispatch a mechanic in re-
sponse to a call from Langston or his employer of a leak, add-
ing that Langston contacted him many times when boiler room
work needed to be done, most of which was tube replacement
or underground steam lines in the building. He stated that at
times American opened and closed the boiler doors in connec-
tion with its work in the boiler. He stated that upon American’s
arrival, if the boiler doors were closed, its mechanics would
open them, often with the help of Respondent’s boilermen. On
occasion, those employees refused to help open the doors. With
respect to the June 17 work, McCarthy did not know whether
American opened the boilers, and Callahan testified that he
believed that boiler tender Netsel was not at work.
SUCCESS VILLAGE APARTMENTS 1089
The evidence establishes that, historically, the work of open-
ing and closing the boilers prior to work being performed on
the boilers, has been performed by the unit employees. How-
ever, American has, in the past, performed such work as inci-
dental to its work on the boilers. On such occasions, when the
Respondent’s employees were not available to perform such
work, or if the doors had not been opened, American would
open and then, after completing its work, close them. Based on
these facts, I cannot find that the General Counsel has proven
that the Respondent unlawfully subcontracted unit work on
June 17. There was no evidence that unit employees were
available to perform that work, or that they were denied an
opportunity to do such work. I will accordingly recommend
that this allegation be dismissed.
ii. June 21, 2002
It is alleged that on June 21, the Respondent subcontracted
boiler work, including the replacement of hot water circulators
and sump pump.
On June 21, American replaced two hot water circulators and
one sump pump in the boiler room. Langston testified that such
work was unit work which he had performed many times in the
past. He stated that replacing the circulators, which involve
disconnecting the wiring, is “standard boiler tender’s work” not
requiring an electrician’s license. He added that during his
employment at the Respondent, it had not historically subcon-
tracted such work. Netsel testified that he has, in the past, re-
placed hot water circulators and sump pumps. In fact, Netsel
stated that he was specifically asked by Callahan to obtain a
new sump pump, and he installed it. Netsel testified that the
circulators were broken for one month before they were re-
placed. Brown stated that he replaced hot water circulators and
sump pumps.
Callahan stated that American has replaced hot water circu-
lators before, and that such work requires electrical work, dis-
connecting the old wiring and connecting it to the new circula-
tor, adding that the Respondent has no electrician on its payroll
who is qualified to work with wiring. He further stated that
American replaced the sump pump on an emergency basis, and
to his knowledge it has replaced sump pumps before.
McCarthy stated that American has replaced circulators at
the Respondent’s premises prior to June 21. Although some
electrical work was involved in the June 21 work, he did not
deliberately assign the company’s licensed electrician to re-
place the circulator. American was called by the Respondent on
June 21because of a three-foot flood in the boiler room, which
was due to the broken sump pump. Apparently, Netsel, the sole
boiler tender at the time, was not at work that day. McCarthy
could not recall if American replaced sump pumps at the Re-
spondent’s premises in the past. McCarthy stated that he be-
lieved that employee Tapanes was capable of changing a sump
pump.
The collective-bargaining agreement permits non-unit per-
sonnel to perform unit work in the event of “emergencies when
employees are not available.” This appears to be one of those
cases. I accordingly cannot find that the Respondent has acted
unlawfully in subcontracting the replacement of hot water cir-
culators and sump pump on June 21 which due to their break-
age caused a flood in the basement in the absence of unit em-
ployees. I will accordingly recommend that this allegation be
dismissed.
iii. June 24, 2002
It is alleged that on June 24, the Respondent subcontracted
the work of replacing an outside faucet. On that date, American
replaced an outside faucet which was causing a flood. Langston
stated that such work was routinely done by the Respondent’s
plumber. Employee Kelly stated that in order to obtain access
to the faucet the employee must enter the crawl space contain-
ing asbestos, to shut the water. At the time of this work, the
employees had not been certified to work in areas contaminated
by asbestos and, in fact, had been prohibited from entering the
crawl spaces and basements since July, 2001. At that time, the
board of directors sent a notice to all employees that they were
not to enter the cellars, until further notice, to do plumbing
work. Prior to that time, in March, 2001, the employees were
told that if they saw any friable asbestos in the crawl spaces
they must leave the area immediately and report it to the lead-
man. Brown conceded that it was in the best interest of the
workers’ health that they not enter those areas.
McCarthy stated that American had not performed that type
of work prior to June 24.
Callahan stated that at that time, American Boiler was at the
facility performing other work, and he asked that company to
fix the faucet since the unit employees could not enter the crawl
spaces.
I will recommend the dismissal of this allegation. First, the
work was done pursuant to an emergency, a flood caused by
the defective faucet. Unit employees were not available since
they were prohibited from entering the crawl space to shut the
water before replacing the faucet. Under these circumstances,
the Respondent did not violate the Act by subcontracting this
particular repair work.
iv. July 5, 2002
It is alleged that on July 5, the Respondent subcontracted a
plumbing repair. On that date, a subcontractor was asked to
complete a plumbing repair which Lloyd Reid began but was
not able to complete. In the grievance form, the Union stated
that Reid, a carpenter, was not qualified to make the repair.
Reid testified that he was assigned to snake a bathroom sink.
He took the sink trap apart and snaked the sink, but could not
reassemble the trap. He told Heil that he could not complete the
job, and Heil said that he would call Mr. Rooter, a subcontrac-
tor. Reid stated that Heil did not check with any other unit em-
ployee, although Brown was working that day, before saying
that he would call a subcontractor. However, Reid noted that he
did not suggest to Heil that Brown or anyone else in the unit
could have finished the job. Tapanes was not at work that day.
Reid stated that prior to the arrival of WC&F, if he was asked
to perform a particular job which was beyond his skill level, he
believed he told his supervisor to ask another employee, and if
he could not do the work, to check with the Union.
Brown stated that when he and Roscrans were laid off, no
plumbers were employed, so the Respondent assigned Tapanes
to be the plumber, and Reid, who was inexperienced, as his
helper. Brown filed the grievance regarding the July 5 work
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1090
because he was available, and could have completed the job.
Callahan stated that subcontracting is routinely done where he
is told by the unit employee that he was not able to complete
the repair.
This appears to be an instance in which another unit em-
ployee, specifically Brown, could have performed the work.
Brown had experience in plumbing work. The Union’s wit-
nesses convincingly testified, which testimony is consistent
with Callahan’s testimony regarding the subcontracting of door
installation work, that if a unit employee was unable to perform
certain work, or if the Respondent was considering subcontract-
ing a job, the Union would be consulted and other unit employ-
ees were asked if they could do the work. Only when no unit
employee could perform the work, was the job subcontracted.
I accordingly find that inasmuch as Brown was available to
perform this unit work, the subcontracting of such work was
unlawful.
v. July 17, 2002
It is alleged that on July 17, the Respondent subcontracted
the replacement of check valves.On that date, three employees
of American replaced eight check valves, taking eight hours to
complete that job. Langston stated that that was routine plumb-
ing work done by the Respondent’s employees in the past.
Brown stated that he and Tapanes performed such work in the
past. This work took place in the crawl space and was subcon-
tracted because unit employees had been prohibited from enter-
ing those areas due to the presence of asbestos. McCarthy testi-
fied that such work was performed in the crawl space, adding
that American had replaced check valves at the Respondent’s
premises about eight to ten years before this instance.
I cannot find that the Respondent violated the Act with re-
spect to this instance of subcontracting. The work required to
be performed was located in the crawl space containing asbes-
tos at a time when the unit employees were not trained in per-
forming work in asbestos contaminated areas. I will accord-
ingly recommend that this allegation be dismissed.
vi. October, 2002 through November, 2002
It is alleged that from October, 2002 through November,
2002, the Respondent unilaterally subcontracted boiler work,
including starting and checking the boiler, repairing an oil lead,
and cleaning and servicing the burners and cleaning the boilers.
Invoices received in evidence from American Boiler and Santa
Energy Services (Santa), establish that such work, with the
exception of repairing an oil lead, was done during that time
period. Langston testified that unit employees perform all such
work, including repairing oil leads. Similarly, Netsel testified
that he has in the past performed the following work which was
done by American: handhole and manhole gaskets, close the
boiler, start and check the boiler, clean and service the burners,
replace a flex line, and clean the burner nozzles. He also stated
that he installed new leader leads and new pump leads.
Callahan testified that on October 15, at the start of the heat-
ing season, there was a problem with one of the boilers when
the boilers were turned on. He conceded that Netsel cleans the
boilers and opens and closes them, but stated that at that time,
Netsel was out of work for six weeks due to an injury, and no
one employed in the boiler room was available to perform this
work or other routine work. Netsel conceded that in October,
2002, when he was out of work, there was no employee in the
boiler room to get the boilers started for the heating season. He
further stated that as to the work done by Santa in October and
November, such work was performed by that company in the
past. Callahan noted that the state of Connecticut requires that
persons performing work on a burner be licensed. However, no
evidence was produced to prove that alleged requirement, and
no employee of Respondent possesses such a license. Netsel,
who is the Respondent’s sole boiler tender, testified that no
license is needed to work on the Respondent’s low-pressure
boilers. The basis for Callahan’s knowledge of this alleged
requirement is his awareness that American and Santa are li-
censed to do the work. Santa’s manager, Thomas Fahy, testi-
fied that a technician employed by a heating contractor such as
Santa must be licensed. That only establishes that a heating
contractor’s employees must be licensed, not employees of the
Respondent.
Regarding the specific work done by the contractors and al-
leged here as unlawful subcontracting, Callahan agreed that
checking the boiler, and cleaning nozzles and strainers are
work done by unit employees.
McCarthy testified that American cleaned the boiler because
Netsel was out of work due to an injury, and that cleaning the
boiler was not part of American’s usual duties at the Respon-
dent.
Santa manager Fahy testified that the state of Connecticut
requires that Santa’s employees be licensed to work on burners.
It has responded to emergency, “no-heat” calls from the Re-
spondent, and it has also done routine work on an as-called
basis to fill in for the Respondent’s employees. Regarding the
specific instances of the alleged subcontracting, Fahy testified
that with respect to the period between October 31 and No-
vember 13, 2002, Santa had performed such work in the past,
in 2001 and 2002, and it had also done similar, although not
identical routine maintenance, cleaning and other service work
prior to that time, between February, 2001 and May, 2002.
Fahy stated that he knows that the Respondent’s employees
perform the routine cleaning of burners and nozzles as part of
their regular duties. However, Santa performs such work pur-
suant to a request by the Respondent, when the Respondent’s
employees are unavailable. He believed that in October and
November, 2002, when Santa performed such work, Netsel was
out of work due to an injury.
The General Counsel argues that, notwithstanding that Net-
sel was out of work during the time that the above work was
subcontracted, the Respondent should have asked the Union if
other employees could perform such work before subcontract-
ing it. One such person who could have done such work was
Brown, who the Respondent had laid off for lack of work on
October 11, 2002.
Inasmuch as I find that Brown was unlawfully laid off on
October 11, 2002, it must be determined whether he could have
performed the above work on the boilers which was the unit
employees’ usual work. Brown had five or six years experience
as a boiler tender with the Respondent. The Respondent relies
on Brown’s alleged statement one year earlier that he was un-
qualified to work on the boilers. Regardless of whether Brown
SUCCESS VILLAGE APARTMENTS 1091
said that he was unqualified to perform such work, had he not
been unlawfully laid off in October, 2002, he would still have
been employed by the Respondent at the time this work was
subcontracted. Clearly, he could have been assigned to perform
such work at that time. I accordingly find that the Respondent
unlawfully subcontracted such work.
vii. October 4, 2002
It is alleged that on October 4, 2002, the Respondent subcon-
tracted the replacement of light bulbs and light repair. A griev-
ance set forth that on October 4, the Respondent employed a
contractor to perform electrical work in the basement. The
work done included checking the basement lights, replacing
light bulbs, fixing a socket, and repairing wiring on a wall
switch. Brown conceded that those last two jobs were electri-
cians’ work, although the unit employees fixed sockets.
DeSousa testified that he saw the electrical contractor changing
light bulbs in the basement, and that the worker said that Heil
called him regarding those lights. The Respondent employs no
electrician, but as testified by Langston, the unit employees
performed certain electrical work such as maintaining electrical
components such as floor lights, changing starters in sodium
lights, changing timers, wiring a photoelectric cell in a timer,
changing light fixtures and bulbs, and changing outlets in
apartments. Nevertheless, unit employees could not perform
such work as changing the direction of electric flow, or replac-
ing equipment with a different type of equipment. However,
unit employees could change equipment that was already in
place.
Brown testified that the contractor replaced a light bulb. He
asked Heil why he hired a subcontractor to change a bulb. Heil
replied that he gave the work order to DeSousa who claimed
that he could not do the job. Brown accused Heil of lying, add-
ing that DeSousa said that he never saw the work order and was
not offered the job. DeSousa corroborated that testimony.
Brown conceded that the electrician might have been called to
perform other work, and was given the bulb-changing assign-
ment since he was already at the premises. DeSousa testified
that he does such electrical work as replacing switches, plugs,
and changing light bulbs and light fixtures. The Respondent did
not offer to bargain with the Union regarding changing the
bulbs.
Callahan stated that the electrician was called in to fix or re-
place a socket, work which has been historically subcontracted.
While he was on the premises he was asked to change a light
bulb. Callahan had no knowledge of whether employees change
wall sockets in apartments, but conceded that they make simple
changes of light fixtures.
It is clear that changing light bulbs is unit work. The mere
fact that the electrician was present to wire a light socket,
which has been historically subcontracted, does not mean that
he could also perform unit work, such as replacing a light bulb.
I accordingly find that the Respondent unlawfully unilaterally
subcontracted the work of replacing light bulbs
viii. July 15, 2003
It is alleged that on July 3, 2003, the Respondent subcon-
tracted the work of constructing concrete slabs. Brown testified
that during the summer and fall of 2003, he saw an outside
contractor installing two concrete slabs on which the garbage
dumpster sits. The contractor’s employees were digging out an
area to accommodate the dumpster, framing it, and pouring two
slabs of concrete. Brown claimed that such work was unit work
since the Respondent’s employees do the same type of work,
the only difference being that the concrete slab had a different
size and was larger than the in-walks the workers installed.
Brown further stated that the Respondent did not inform him as
shop chair that the contractor would be performing this work.
Brown conceded that concrete for sidewalks and roadways at
the Respondent’s premises has been poured by subcontractors,
and that an asphalt sidewalk was installed next to this dump-
ster. Installation of the sidewalk adjacent to the dumpster had
historically been the work of subcontractors. Although Brown
did not know what equipment the contractor used to dig out the
area where the concrete pad was laid, he conceded that the
Respondent does not have a backhoe, and that work involving
backhoes has been historically subcontracted out.
Segneri testified that the decision to subcontract the work of
installing the concrete pad was made before the Respondent
employed him. He noted the differences between that work and
the installation of in-walks. Whereas the in-walks require three
to four inches of 3,000 pound pressure mix rated concrete
placed on a gravel base, the dumpster pad was six to eight
inches thick, requiring a 4,000 to 5,000 pound pressure mix
reinforced with steel. In addition, the dumpster area must be
excavated to one foot which cannot be done with any equip-
ment owned by the Respondent. Further, asphalt had to be ap-
plied where the sidewalk met the concrete, and the Respondent
does not do asphalt work of that magnitude.
I find that the work done here differs in material kind from
that which the unit employees performed. It involved excava-
tion work with equipment not owned by the Respondent, and
which the employees do not historically perform, and the use of
concrete of a different grade than usually utilized by unit em-
ployees. In addition, the installation of the sidewalk adjacent to
the dumpster had traditionally been subcontracted. I accord-
ingly find no violation in the Respondent’s subcontracting of
this particular work.
D. The Alleged Discrimination Against Employees
1. Animus Toward the Union
Certain board members met with attorney Zaken on July 12,
2001 prior to his being retained. A memo entitled “project
rope-a-dope” was prepared thereafter which stated that the
purpose of the meeting was “to obtain information regarding
the ousting of Success Village Union employees.” The memo
further stated that Callahan met with the board and “stated the
need of his organization due to all the union problems we are
encountering.” Callahan stated that “with the proper personnel
at the helm, Success Village will be running smoothly within a
short time.” A confidential memorandum concerning legal
advice given to the board was prepared. The Respondent ob-
jected to that memo and its offer in evidence was rejected as
being subject to the attorney client privilege.9

9 My Order rejecting that exhibit was received in evidence as GC
Exhibit 51.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1092
June Prescott, a member of the Respondent’s board of direc-
tors, testified that it was never the board’s plan to oust the Un-
ion from Success Village. She stated that the term “ousting” in
the memo related to the board’s belief that upon the expiration
of the contract on May 31, 2002, the Union would no longer be
the employees’ representative, and that the Union would be
“through” and “ousted” as of that date, and that then the Re-
spondent “had nothing more to worry about.” She referred to
the confidential memo as being not “for everyone’s eyes. In
other words, this was our problem until we solved it.” Board
member Barbara Ignatiuk stated that she believed that upon the
contract’s expiration the Respondent could fire the employees
and hire others. However, at the meeting with Zaken on July
12, the Board was informed that it had to bargain in good faith
with the Union even though the contract bore an expiration
date.
As set forth above, on October 19, 2001, as set forth in the
credited testimony of See and Otocka, Marcinczyk told See that
“as long as I’m president, for as long as I’m president I’m go-
ing to get rid of this union.” Otocka testified that he heard
board president Marcinczyk say essentially that “he was going
to do everything he could in his two year term of office there to
get rid of Russ [See] and the UAW.” I do not credit Marcinc-
zyk’s testimony that he merely told See that he would beat him
at his own game. Even assuming he said that, such a comment
tends to support a finding that Marcinczyk sought to eliminate
the Union from the Respondent’s premises.
Board member Willie Lawrence signed a memo in July,
2002 which stated, inter alia, that the board based many of its
decisions “on how to discourage the employees and how to get
rid of the union” based on suggestions made by board members
Tortorello and Bica. Lawrence wrote that Tortorello “hated”
the idea that Brown was allowed to attend Union meetings on
company time. “He felt that we shouldn’t allow it no matter
what the contract said.” Lawrence testified that he could not
say that the Board “exactly discussed getting rid of the union
per se, what we was trying to do is trying to get more work out
of the employees and just trying to figure out a way to do that. I
don’t remember discussing any other thing.” He had no recol-
lection of any matter in the memo aside from what was written
there. He first stated that he did not know that Langston was a
union agent. He believed that clerk Ceil Johnson wrote his
statement, and then he signed it. He further stated that he did
not read it when he signed it. He also said that he hand-wrote
the statement and Johnson typed it. Then he said that Johnson
hand-wrote it and then typed it. He also stated inconsistently
that he was a board member, and was not a board member
when he signed it. In fact, he was not on the board when he
signed it, and then said he was not certain if he was on the
board at that time. He noted that he has urged the board to hire
more employees to get the work done.
Board member Judith Cannizzio stated that Marcinczyk dis-
cussed “getting rid of the Union” at a number of board meet-
ings, adding that he said that the “cost to keep them there was
too much and that they wanted to more or less get rid of them
and go to seasonal work or whatever and outside help, outside
contracting . . . instead of union employees.”
She stated that “rope-a-dope” was a “code word” so that the
Union members would not know what they were talking about.
Cannizzio also stated that Marcinczyk said that he wanted to
get rid of Brown and make him a seasonal employee “because
he was a shop person and because they wanted to get rid of
who they could that was union.” The other board members
agreed with this plan.
Cannizzio stated that prior to the summer of 2001, the rela-
tionship between the Union and the Respondent was good, with
the employees working well and few grievances being filed.
She conceded hearing some complaints, which were not “dras-
tic” complaints, that the employees were not performing their
work. She also noted that in the Fall of 2001, residents com-
plained that more workers were needed.
Cannizzio is a union member at her job, and has been a
friend of See for more than 15 years. She showed him copies of
board minutes and spoke with him about topics discussed at
board meetings. She claimed that the discharges of Kelly and
Agnant were because they were Union members, and also
stated that the Respondent sought to eliminate Union employ-
ees in the boiler room so they could automate some of their
duties.
Callahan testified that Marcinczyk’s meaning of the term
“rope-a-dope” in the July memo signified the course of events
if the Respondent attempted to make its operation more effi-
cient: the Union would file grievances causing the Respondent
to pay large legal fees, and then the Respondent would “give
in.” Board member Ignatiuk gave similar testimony. Marcinc-
zyk testified that the term was a reference to a prizefight in
which one boxer became exhausted in punching the other who
leaned against the ropes. He applied it to the current situation,
in which the Respondent expected to get a “deluge” of griev-
ances, but that the Respondent would absorb them and then
“win the fight legally.” He denied that it was a plan to get rid of
the Union.
Brown testified that when he was out of work due to an in-
jury in August, 2002, he and DeSousa were scheduled to meet
with an NLRB agent. The agent canceled the meeting, and
Brown went to the shop where he told Heil that DeSousa would
not have to meet with the Board agent since the meeting was
cancelled. At that time, Callahan entered the room, and said
“oh, this damn union is in here again. I got a business to run
here. I can’t be fooling around with this union.” Brown con-
ceded that his pre-trial affidavit did not include this exact ex-
change, but it did state that Callahan said something about the
union being “in here again,” and that “he had a place to run and
this union kept coming in.”
Heil’s pre-trial affidavit stated that board members Marcinc-
zyk and Tortorello complained often about Brown’s grievance
activities. Heil’s affidavit also stated that he believed that Cal-
lahan or some of the other board members “had it in for
Brown” because he filed many grievances and utilized “Union
time” on the Respondent’s time.
Heil testified that he believed that Callahan “had it in” for all
the Respondent’s employees, and he also believed that Calla-
han is attempting to “get rid” of the Union. Heil’s credibility is
subject to question. He first testified that he came to the hearing
alone, in his own car, and that he followed Callahan and Zaken.
SUCCESS VILLAGE APARTMENTS 1093
Then he testified that he came to the hearing in the same car as
Zaken and Callahan, and then stated that Callahan followed
them in his own car. He admitted that he gave false testimony
that he drove alone because he believed that it “was not the
right thing to say” because it may have been a “conflict of in-
terest” for him to have traveled to the hearing with the Respon-
dent’s attorney and principal. It should be noted that at the time
of the hearing, Heil was no longer employed by the Respon-
dent. He further testified that, on substantive matters, his testi-
mony was inconsistent with his pre-trial affidavit. Nevertheless,
he stated that other than his testimony concerning his trip to the
hearing, the rest of his testimony was truthful. As noted below,
I credit Heil’s testimony concerning the Respondent’s attitude
toward the Union. Heil was the on-site, full-time manager of
the WC&F who enjoyed the confidence of Callahan. The fact
that he lied about how he came to the hearing does not detract
from his testimony in chief as to the matters about which this
hearing was concerned.
The above synopsis of the evidence concerning the Respon-
dent’s attitude toward the Union and toward its employees who
were represented by the Union has a common thread. There
was a dislike of the Union because of its aggressive stance
regarding grievances. If the Respondent sought to oppose a
grievance it had to incur legal fees and increased costs. The
board believed that it was powerless to oppose the Union, and
therefore resented it and its members. In retaining Callahan and
Zaken, the Respondent sought to “oust” the Union, and if it
could not do so, it would attempt to change its relationship with
the Union. Callahan testified repeatedly that he was hired upon
a promise to change the relationship between the Respondent
and the Union, and to change the operation in order to make it
more efficient. He sought to make these changes immediately
upon his hire, and, as testified repeatedly by Callahan, affected
the employees directly.
I credit Heil’s testimony concerning the Respondent’s atti-
tude toward the Union. Such testimony was consistent with that
of board member Prescott who believed that the board wanted
to “oust” the Union, and board president Marcinczyk’s state-
ment that as president, he would do everything he could to get
rid of the Union, and Lawrence’s testimony that the board
wanted to get rid of the Union. Although the testimony of Heil
and Lawrence were at times confused and inconsistent, their
essence, that the Respondent sought to rid itself of the Union
was consistent and credible.
2. Dennis Brown
The complaint alleges that the Respondent unlawfully (a)
laid off Dennis Brown on December 7, 2001(b) imposed more
onerous working conditions on him since May 1, 2002 when he
returned from layoff (c) issued written discipline to him on July
3 and 12, and August 5, 2002 (d) reduced his sick leave accrual
on August 30, 2002 and (e) laid him off on October 11, 2002.10
Brown was employed by the Respondent for about nine
years. For the first five or six years he worked as a boiler ten-
der. He then requested a transfer because he no longer wanted

10 Brown was actually laid off by letter dated October 12, effective
on October 18. That date will be used hereafter.
to work during holidays and weekends which is required of a
boiler tender. He then worked as a plumber and carpenter. He
had prior experience as a plumber before beginning work with
the Respondent. As a carpenter, he replaced broken windows,
did sheetrock repairs, renovated bathroom floors, changed light
bulbs and light fixtures, and worked outside on the garbage
truck if needed. He also did plumbing work when employed as
a carpenter if Giannattassio or Reinaldo Tapanes, who regularly
did the plumbing work, were not at work.
Brown became shop steward in September, 2001, and when
Otocka left his employ in about November, he became shop
chair and held that position until his lay off on December 7.
Upon his return to work on May 1, 2002, he resumed his posi-
tion as shop chair until his layoff on October 12. Brown was an
active and vocal Union representative. He attended meetings
with management regarding grievances over the reduction of
hours of Giannattassio and the termination of Agnant and Teja.
During the time that he served in these positions he wrote at
least 70 to 80 grievances.
a. The Lay Off of December 7, 2001
On December 3, 2001, the Respondent notified Brown that it
was “going to seasonally” lay him off, effective December 7.11
Brown immediately wrote back, asking to “invoke my right to
bump the lowest seniority man, which would be I-B boiler man
position effective immediately.” The only employee in the
boiler room at that time was Netsel, and Brown had greater
seniority than Netsel. Brown was not permitted to exercise any
bumping rights he may have possessed. Callahan replied two
months later, on February 8, 2002, that Brown was laid off
because he was the least senior employee “in the carpenter and
general maintenance areas” and there were no positions to
which he could bump. Nevertheless, Callahan testified that the
basis for his refusal to permit Brown to bump into the boiler
room was Brown’s alleged statement in October that he was
not qualified to work in the boiler room.
In that connection, Callahan testified that he was present at a
meeting on October 18, 2001 with Brown, Otocka and supervi-
sor Elliot in which Callahan requested help in the boiler room
since only one employee, Netsel, was working there following
Teja’s discharge the day before. Specifically, the managers
wanted Brown to work in the boiler room. As testified by Cal-
lahan and confirmed in a letter written by Elliott to Otocka the
next day, Brown was quoted as saying at the meeting that he
was uncomfortable and “unqualified” to work in the boiler
room. No reply to that letter was sent and the letter’s claim that
Brown said that he was unqualified to work in the boiler room
went unchallenged.
Brown denied being at the meeting, and also denied telling
Otocka that he was not qualified to work in the boiler room,
although conceding telling him that he did not “really” want to
work there since he was “comfortable” in his current position,
which had favorable hours. Otocka denied telling Elliott that
Brown was unqualified to work in the boiler room.

11 Russell Roscrans was also seasonally laid off at that time, but his
layoff has not been alleged here as an unfair labor practice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1094
Brown stated that although he did not want to return to the
boiler room in October, 2001, he was willing to bump into that
position upon his layoff in December because his job was “at
stake.”
It should be noted that although Callahan knew that Brown
had “qualms” about returning to the boiler room, he did not tell
him on October 18 that he intended to lay him off, and did not
tell him in November that he was in danger of losing his job
due to a layoff. Further, in December, Callahan did not advise
the Union that it was about to lay off Brown, and he did not
give Brown an opportunity to reconsider his lack of interest in
working in the boiler room. Callahan stated that the basis for
not permitting Brown to bump into the boiler room was Elliot’s
letter of October 19 to Otocka confirming that Brown said that
he was unqualified to work in the boiler room.
The contract provides that layoffs shall be made on the basis
of seniority, provided that the senior employee is qualified and
able to perform the work available. Upon a layoff, bumping to
another position is permitted. The contract states that “in the
event that the Co-op feels that an employee is not qualified and
able to perform the available work, the employee may request,
and the Co-op will grant him/her five days in which to demon-
strate to the Co-op his/her qualifications and ability to perform
the required work.” Langston believes that that clause would
have permitted Brown to prove that he was qualified to perform
work in the boiler room upon bumping into Netsel’s position.
Nevertheless, Callahan noted that although the Respondent
believed that Brown was qualified to work in the boiler room
and that is why it asked him to do so in October, 2001, he said
that he was not qualified at that time. Accordingly, two months
later, in December, when Brown requested bumping rights, the
Respondent rejected that right, relying on Brown’s previous
statement that he was unqualified for that position. Callahan
said that the contract’s provision that Brown would have five
days to prove his qualifications was irrelevant as Brown had
already informed it that he was not qualified for the boiler
room.
i. Reasons for the Layoff
Brown stated that when he was laid off, he was doing car-
pentry work, helping Roscrans with plumbing assignments,
helping on the garbage truck and any other work which needed
to be done. He testified that he noticed no decrease in the
amount of work he did in the time leading up to his layoff. In
fact, in the past, there had always been an abundant amount of
work in the winter for carpenters, which in addition to their
regular work included leaf and snow removal.
Langston testified that in the Fall of 2001 and the Spring of
2002, due to the enormous size of the co-op complex, he was
not aware of a significant reduction in the number of work
orders, adding that there was never a time that work declines.
He noted that in the winter, when the in-walks cannot be re-
paired, the carpenters worked inside—painting, changing ceil-
ings, doing plumbing work and removing leaves and snow.
Langston also testified that Brown was qualified to do plumb-
ing work, and that such work increases by 50% in the winter
with the onset of the heating season because the plumbers have
their regular plumbing work to do in addition to heating-related
problems. Langston, Otocka and Brown testified that prior to
that time they had never heard the term “seasonal layoff”, and
no one had been seasonally laid off.”
Otocka testified that Brown was a carpenter, doing floor,
door and ceiling replacements, ceiling repairs, and drywall
repairs. He is also familiar with plumbing work. He stated that
there was never a time when the carpenters had no work to do,
noting that there were only two or three carpenters to service
924 apartments.
Reid testified that there was ample plumbing and carpentry
work in December, 2001 when Brown was laid off. He stated
that following Brown’s layoff, he worked with the plumber in
addition to performing carpentry work. When plumber Gian-
nattassio went on sick leave in November or December, 2001,
Reid was asked to carry a beeper for plumbing emergencies. He
also stated that during the winter months, the carpenters do
mostly inside work, such as repairing ceilings and walls.
Subcontractor Mr. Rooter Plumbing performed various work
during the time of Brown’s layoff, from January, 2002 through
April, 2002. Invoices for such work were received in evidence
for the purpose of rebutting the Respondent’s argument that
Brown was laid off for lack of work in December, 2001, and to
show that there was sufficient work available so that his em-
ployment could have continued. The work done by Mr. Roofer
was the following: On January 11, 2002, a main sewer line
was snaked; on January 12 and April 10, a toilet line was
snaked and the toilet was removed. Brown testified that he had
performed similar work at the Respondent’s premises in the
past and was capable of doing this work. 12
Callahan testified that Brown and Roscrans did “catchall”
work consisting of plumbing and carpentry, “all kinds of dif-
ferent kinds of things, leaves, grass . . . some carpentry work,
some miscellaneous work, little bit of plumbing work, little bit
of everything,” and that they had “so many work orders,” but
took longer than they should have to complete them. He stated
that Brown was laid off because he was the least senior em-
ployee, and that the Respondent did not need two employees,
Brown and Roscrans.
Callahan stated that prior to laying off Brown, he undertook
a review, from the beginning of his tenure in August to De-
cember 7, in which he examined the number of work orders for
the various months, and the types of jobs performed, and found
that the work orders were “basically consistent”, meaning that
they were at the same level, and based on that decided that the
Respondent did not need two employees. At that time, Kelly
and Giannattassio were out of work due to injuries.
Callahan testified that he made the decision to lay off Brown
and Roscrans between October 18 and December 3. He did not
discuss his decision with the Union. He called it a seasonal
layoff because he wanted it understood that Brown would be
returning to work in early May for the outdoor maintenance

12 Other work done by Mr. Rooter during that time involved work in
crawl spaces or basements in which employees were prohibited from
working due to the presence of asbestos. That such work was per-
formed in those areas is indicated on the invoice or description of work,
or in testimony that an additional charge for labor was added for such
work. That work will not be discussed herein since Brown was not
permitted to work in those areas because of the presence of asbestos.
SUCCESS VILLAGE APARTMENTS 1095
season, adding that there would be more work at that time in
different areas such as grass cutting and leaf removal. Such
additional work, combined with employees taking vacations
during that period of time, justified Brown’s recall. Callahan
disputed Langston’s contention that there was more interior
work in the winter, saying that such work was not the subject of
work orders. Rather, that work was discretionary, for example
someone deciding that the hallways should be painted. He de-
cided that such work was not necessary to be done then. Calla-
han conceded that there is slightly more work during the heat-
ing season, with radiator and other plumbing problems becom-
ing more frequent.
Callahan was aware that Brown was the shop chair at the
time of his layoff, but stated that had no impact on his decision
to lay him off. Roscrans, who did not hold a position in the
Union, was also laid off at that time. They were both offered
recall on May 1, 2002, but Roscrans declined the offer. No one
was hired at that time to replace Roscrans. Callahan noted that
during Brown’s layoff, the Respondent had no difficulty in
completing work assignments.
When asked the reason for Brown’s layoff, Callahan testified
that “people were working in an inefficient manner,” and that
he determined to do the same amount of work orders with less
employees.
Board member Cannizzio flatly stated that the board author-
ized Brown’s layoff in the fall of 2002 because he was the un-
ion shop chairperson.
Marcinczyk testified that Brown and Roscrans were laid off
because the board believed that there was not enough grounds
work to do, and they were selected since they were the least
senior employees. Although Netsel was lower in seniority he
was not selected because he was working in the boiler room.
ii. The Arbitration
The Union grieved the layoffs of Brown and Roscrans, and
was ultimately successful. The arbitration panel held that al-
though the Respondent had the right to lay off employees for
lack of work or for other reasons, nevertheless, the contract
contains no language explicitly authorizing it to engage in sea-
sonal layoffs, nor does it refer to seasonal employees, and a
seasonal layoff was therefore apparently never contemplated by
the parties.
The panel decided that in view of the absence of such lan-
guage, the management-rights clause “is inherently ambigu-
ous,” thereby permitting the panel, using principles of parol
evidence and contract construction, to find that the clause did
not permit the Respondent to engage in seasonal layoffs. The
panel based this conclusion on the facts that the contract does
not provide for such layoffs or even seasonal positions, and that
prior enforcement of the contract, its negotiation and prior
management uses of the layoff provisions were silent as to
seasonal layoffs. The panel concluded that the management-
rights clause “abridges the Co-op’s exclusive and unfettered
right to establish seasonal positions unilaterally or to engage in
seasonal layoffs in like fashion.” The panel ordered that Brown
be made whole.13

13 Roscrans’ grievance was also upheld.
The award noted that the Respondent stated that “the Union
did not present evidence of, or allege, that the Employer’s ac-
tions were prompted by “improper motives or unjustifiable
reasons.” The Union’s brief to the arbitrator, however, stated
that it believed that the Respondent laid Brown off “in retalia-
tion … because of his involvement with the Union. This course
of events has further demonstrated the companies [sic] desire to
eliminate the union and discourage the workers.”
iii. Analysis
(a) The Section 10(b) Defense
The Respondent argues that the charge alleging Brown’s
layoff was untimely filed pursuant to Section 10(b) of the Act.
On December 5, 2001, the Union filed a charge in Case No.
34–CA–9945 which alleged that the Respondent violated Sec-
tion 8(a)(5) of the Act by failing to bargain in good faith by
“laying off employees and calling them seasonal workers, when
the contract has no provision for seasonal workers. It is just
another way of undermining the Union.” This charge was dis-
missed, and the Union’s appeal was denied.
On April 4, 2002, within the six month period following
Brown’s December, 2001 layoff, the Union filed a charge in
Case No. 34–CA–10072 alleging essentially that since April,
2001, the Employer engaged in a course of action designed to
undermine the Union and discourage employees from joining
and supporting the Union by eliminating bargaining unit jobs,
changing the hours of employees, and otherwise changing the
terms and conditions of employment of employees in violation
of Section 8(a)(3) of the Act. The charge did not mention
Brown.
On December 20, 2002, the charge was amended to specifi-
cally allege that Brown was laid off in December, 2001 in vio-
lation of Section 8(a)(3) of the Act. On February 28, 2003, the
charge was dismissed. During the pendency of the Union’s
appeal of the dismissal, on April 30, 2003, the Regional Office
reconsidered the matters raised in the appeal, and decided that
Brown’s December, 2001 layoff violated Section 8(a)(3) of the
Act. The Director revoked the dismissal of that allegation, and
issued a complaint as to it.
Standing alone, the specific 8(a)(3) allegation amended on
December 20, 2002, that Brown was unlawfully laid off in
December, 2001, was not timely filed within the meaning of
Section 10(b) because it involved an event which occurred
more than six months prior to the filing of the timely filed
charge in April, 2002. That allegation can survive a 10(b) chal-
lenge only if it is “closely related” to the allegation in the origi-
nal, timely filed charge. Nickles Bakery of Indiana, 296 NLRB
927, 928 (1989); Redd-I, Inc., 290 NLRB 1115, 1118(1988).
First, the Board will look at whether the otherwise untimely
allegations involve the same legal theory as the allegations in
the pending timely charge. Second, the Board will look at
whether the otherwise untimely allegations arise form the
same factual circumstances or sequence of events as the pend-
ing timely charge. Finally, the Board may look at whether a
respondent would raise similar defenses to the allegations.
Nickles Bakery, above, at 928.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1096
The Board has generally found that there is “a sufficient rela-
tion between the charge and subsequent allegations in circum-
stances involving acts that are part of the same course of con-
duct such as a single campaign against a union.” Further, the
Board will find a “sufficient factual relationship whether or not
the acts are of precisely the same kind and whether or not the
charge specifically alleges the existence of an overall plan on
the part of the employer.” Ross Stores, Inc., 329 NLRB 573
(1999). The same “closely related” test is applied to cases in
which a prior allegation raising the same issue has been with-
drawn or dismissed. Seton Co., 332 NLRB 979, 983 (2000).
The charge amended on December, 2002, meets all the tests
required in Redd-I. First, the amended charge which alleges
Brown’s unlawful layoff involves the same legal theory as the
original timely filed , April, 2002 charge. The theory is that the
Respondent engaged in a course of conduct in violation of Sec-
tion 8(a)(3) of the Act by discriminating against its employees.
The original charge alleged that the Respondent unlawfully
undermined the Union by eliminating unit jobs and discourag-
ing employees from supporting the Union. This clearly en-
compasses Brown’s layoff in December, 2001 which was al-
leged in the December, 2002 amendment. Although the “elimi-
nation of unit jobs” may technically refer to Agnant’s dis-
missal, which was not specifically alleged in the charge, the
overriding thrust of the original charge is to place at issue the
Respondent’s actions relating to its employees following the
retention of WC & F. Accordingly, the layoff of Brown, which
could be considered an elimination of a job, fits well within the
parameters of the original, timely filed charge. Finally, it is
clear that the Respondent’s defenses remain the same generally.
An investigation of the elimination of jobs would logically
entail an investigation of the Respondent’s layoff of Brown.
I accordingly find that under the Board’s “closely related”
test, the allegations of the amended charge are sufficient to
support the same allegation in the complaint.
(b) The Merits of the Layoff
In Wright Line, 251 NLRB 1083 (1980), the Board stated
that the General Counsel has the initial burden of proving that a
respondent was motivated in discriminating against an em-
ployee because of his union activities, or other protected, con-
certed activity, or that the person’s union activities was a moti-
vating factor in the employer’s decision to discriminate against
him. Once that is established, the burden shifts to the respon-
dent to demonstrate that it would have taken the same action
even in the absence of the protected conduct.
First, I find that Brown should have been permitted to bump
into the boiler room since he had greater seniority than boiler
tender Netsel. It is true that Brown had been asked to work in
the boiler room only two months before, and refused. However,
upon being informed of his layoff he requested, pursuant to the
contract, that he bump into that position. I need not resolve the
controversy over whether Brown was present at the boiler room
conversation or whether he said that he was unqualified to
work there. A letter was sent claiming that Brown made that
claim, and the letter was not challenged. Although he had ear-
lier refused to work in the boiler room, he now requested such
an assignment as an alternative to layoff. Brown had worked as
a boiler tender for a number of years, and left that position
voluntarily. He did not leave because he was unqualified. The
Respondent was undoubtedly aware of this. Upon asking to
bump into the boiler room it was incumbent upon the Respon-
dent to inquire as to whether Brown believed that he was un-
qualified to assume that position, or to demonstrate his skills.
The Respondent did neither. I do not believe that it was entitled
to dismiss Brown’s request for contractual bumping rights
without further inquiry.
Brown was the Union’s shop chair at the time of his layoff.
The Respondent, through its board members, expressed a sig-
nificant amount of animus toward Brown because of his union
position or activities in behalf of the Union. Thus, as set forth
above, board member Tortorello advised that the Respondent
should ignore the contractual provision that employees, specifi-
cally Brown, could attend union meetings on company time.
Marcinczyk wanted to get rid of Brown because of he was the
shop chair, and both board members complained often about
Brown’s grievance activities. In addition, Callahan or board
members “had it in for Brown” because of his union activities.
I accordingly find that Brown’s union activities were a motivat-
ing factor in his layoff in December, 2001.
Callahan testified that Brown was laid off because the Re-
spondent did not need him or Roscrans, basically because al-
though the work load was consistent and remained the same,
the employees were working in such an inefficient manner that
the Respondent could perform the same work with fewer em-
ployees. This reason stands in stark contrast to the reason as-
serted by the Respondent’s counsel—lack of work—in a posi-
tion statement submitted to the Regional Office during the in-
vestigation of the charge. According to Callahan, the amount of
work remained the same, but more work could and should be
produced by the remaining workers.
Neither defense was proven. Brown was qualified to perform
plumbing work. Callahan conceded that Brown did such work
for the Respondent, and further admitted that there is a slight
increase in such work during the winter, when Brown was laid
off. There was also credited testimony that in the past, more
inside work was done in the winter. Although Callahan dis-
puted that assertion, he conceded that work done in the winter
was “discretionary.” Whether the work was discretionary or the
subject of pre-scheduled work orders, it was work nevertheless
which Brown could have performed during the period of his
layoff. In addition, subcontracted plumbing work on January
11, 12 and April 10 could have been done by Brown during his
period of layoff.
I accordingly find and conclude that the Respondent has not
met its Wright Line defense, and that the layoff of Brown on
December 7, 2001 violated Section 8(a)(3) of the Act.
b. Imposition of More Onerous Working Conditions
The complaint alleges that since May 1, 2002, the Respon-
dent has imposed more onerous working conditions on Brown.
Brown testified that upon his return to work on May 1, 2002,
his title was carpenter and he was the Union’s shop chair. That
summer, his main assignment was the renovation of the in-
walks, and to a much lesser extent—cutting grass and helping
out on the garbage truck.
SUCCESS VILLAGE APARTMENTS 1097
In May, 2002, Brown and one other employee were assigned
to work on the in-walks as a two-man crew. In-walks are the
20-foot long, 3-foot wide concrete entrance to the buildings in
the complex. Over the years, these walkways have become
deteriorated, and it was the Respondent’s practice to gradually
replace them in the spring and summer months using employ-
ees in various job titles, including the boiler tenders, whose
responsibilities in the boiler room were reduced during the non-
heating season.
Brown was assigned by Heil to work with DeSousa, then
Netsel, then Teja, and finally, Jones. The others worked from
two to three days, to two to three weeks, depending on whether
they could be excused from their other assignments, but Brown
worked on the in-walks continuously.
Brown conceded that he had done this work before, as a car-
penter and a boiler tender. However, when he did such work
prior to May, 2002, he worked in a group of four. Langston
also testified that during his tenure, such work was done with
an eight-man crew, never with only two people.
Brown’s work consisted of breaking up the concrete with the
jackhammer, removing the debris with a shovel, putting the
rubble in a wheelbarrow and moving it about 50 yards where it
was dumped, digging up roots with an axe and pick, widening
the area and placing gravel in it, framing the walk with wooden
forms, and finally, with the help of a bigger crew, pouring and
leveling concrete for the new walk.
During the summer of 2002, Brown did such work on about
15 in-walks. Brown, who is 59 years old, described this work
as physically hard due to the effort of using the jackhammer,
and lifting blocks of concrete and digging. He stated that jack
hammering an in-walk consumed about three hours. He and his
partner alternated the use of the jackhammer.
Brown first stated that he never had to work on in-walks in
the rain. Then he testified that Heil asked him to break up the
in-walks when it was raining. Brown complained, and Heil told
him that he had a raincoat. Brown refused, saying that it was
unsafe to use an electric jackhammer in the rain, and he was
given another assignment. Brown asked whose idea it was to
give him this assignment, and Heil motioned upward, which
Brown interpreted to refer to Callahan.
Otocka, a leadman for five years, testified that in the sum-
mer, the boiler men helped with in-walk renovations, and in-
deed all workers who could be spared from other assignments
are utilized for such work. He stated that three employees are
used to demolish the concrete; three to remove the debris with
wheelbarrows; two to prepare the forms; seven or eight workers
to pour the cement; and two to finish the cement. He stated that
he never saw only two employees perform the in-walk con-
struction work since it is a tough, physical job. If only two
workers did such work it would take “forever.” Otocka con-
ceded that the Respondent has the ultimate right to determine
how many employees would work on a particular job.
DeSousa testified that prior to 2001, when he worked on in-
walks, such work was done with a crew of four employees.
Callahan testified that inasmuch as the Respondent owns
only one jackhammer, the job of breaking up the concrete is a
two-person, and not a four-person job since only one person
could use the jackhammer at one time.14 When the jackham-
mer is in use, the other employee picks up the debris and takes
it away. Similarly, the placement of the wooden forms is a two-
person job, and then the concrete is poured by a four to five
person crew. He further noted that the four new employees
hired in October to do the in-walks worked in two-man teams.
When Brown complained to him that he did not like the “situa-
tion”, Callahan replied that that was the only work available.
Indeed, he further testified that “Dennis Brown was coming
back [from layoff] to do in-walks.” Callahan did not recall
telling Heil to require Brown to use the jackhammer in the rain.
He stated that in a hard downpour the only work done was
garbage removal. In a light rain, the workers have rain gear and
are expected to work.
Heil testified that Callahan told him to assign Brown to in-
walks and other work orders as needed, including carpentry
work. Brown told Heil that he had a master plumbers license.
He stated that Heil did not assign him to much plumbing work
because Tapanes was doing the plumbing jobs following
plumber Giannattassio’s departure. However, according to
Langston, Tapanes was a plumber but transferred from that
position to a job on the garbage truck, and Reid is a carpenter
having no plumbing experience.
Heil stated that although he was aware that Brown knew car-
pentry and sheetrock work, he worked mostly at doing in-
walks, until he hurt his back and was out of work for several
weeks. Heil stated that he and Callahan were concerned that by
continuing to demolish the in-walks he would injure himself
further, so they reassigned him to other work.
Invoices from Mr. Rooter Plumbing were received in evi-
dence to demonstrate that Brown could have been assigned to
less arduous tasks than the in-walks. Brown testified that he
could perform such work and has done such work in the past.
Thus, on May 24, 2002, a bathtub drain line was snaked.15 Cal-
lahan testified that the Respondent contracted work to Mr.
Rooter when unit employees said they could not do the work.
He added that he would never prefer to give work to Mr.
Rooter as that company was expensive, but nevertheless, since
he could not assign employees to work in the crawl spaces he
had no choice but to have Mr. Rooter do such work.
i. Analysis
It is true that, prior to his layoff, Brown had broken up in-
walks as part of his duties, and had other assignments in addi-
tion to such work. The Respondent has the right to assign work
to Brown. The question is whether the work that it assigned to
him was in retaliation for his Union activities.
The work assigned Brown was clearly harder and more on-
erous than the work he had done prior to his layoff. Whereas,
before his layoff he had broken up in-walks, he was part of a
four-man crew which did such work. Following his return, he

14 The Respondent’s brief, p. 89, concedes that Callahan made this
change: “Callahan determined that the first phase of demolishing the
in-walks could be performed with a two-man crew, and not with a
larger crew that had been used in prior years.”
15 See footnote 12, above, regarding those invoices which were not
considered herein because Brown was not permitted at that time to
work in crawl spaces or basements which contained asbestos.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1098
was assigned to such work continuously, but with only one
partner. Callahan had determined that Brown’s job on his re-
turn would be in-walks.
The Respondent admits that it changed the method of break-
ing up in-walks so that only two men were assigned to that
task, that he was “coming back to do in-walks”, and that this
task constituted the majority of his work. There is no question
that the work of breaking up in-walks, involving jack hammer-
ing and removing concrete is physically demanding work—
more so than other jobs assigned to other unit employees.
Callahan conceded that prior to his layoff Brown performed
various tasks, including carpentry, plumbing and landscaping,
but that nevertheless, upon his return from layoff he was pri-
marily assigned to breaking up the in-walks, a physically de-
manding task.
The General Counsel has met his burden under Wright Line.
As set forth above, Brown was the shop chair, and the Respon-
dent, especially Callahan, who directed the assignments to
Brown, bore animus against him, according to Heil. I cannot
find that the Respondent has shown that it would have assigned
the same work to Brown in the same manner in the absence of
his union activities. The work of jack hammering and remov-
ing debris was clearly arduous and onerous, and in the past it
had been performed by a crew of four. No credible reason was
advanced as to why additional employees could not have been
assigned, as they had in the past, to such work. I believe that
the only answer lies in the Respondent’s desire to harass Brown
because of his Union activities.
I accordingly find that, since May 1, 2002, the Respondent
has imposed more onerous working conditions on Brown inv
violation of Section 8(a)(3) of the Act.
c. The Reduction of Brown’s Sick Leave Accrual
Pursuant to the expired contract, employees receive seven
paid sick days (56 hours) per year. A new accrual of seven days
is added to the employee’s account on June 1 of each year. If
sick leave is not taken during the year, the employee is paid for
the unused amount.
Brown was laid off from December 7, 2001 to May 1, 2002,
and was then recalled to work. On August 30, 2002, the Re-
spondent informed Brown that because he worked only a part
of the past year, his sick days were being adjusted accordingly.
Thus, since he did not work 37% of the year, his sick time was
reduced by 37% of the 56 hours sick time allotted, or a total of
35 hours.
Langston testified that the Union was given no notice of the
Respondent’s plan to reduce Brown’s sick leave accrual prior
to it being done. He further stated that the expired contract
contains no language permitting pro-rating of sick time accrual,
and that in his 20 years as an employee of the Respondent he
did not become aware that the Respondent had reduced the sick
time of any employee. Langston conceded, however, that prior
to Brown’s layoff, no other employee had been laid off for six
months, or for any period of time, and then recalled to work.
The complaint alleges that since August 30, 2002, the Re-
spondent reduced Brown’s sick leave accrual in violation of
Section 8(a)(1)(3) and (5) of the Act. 16
The pro-rating of vacation pay is permitted by the parties’
contract which provides that vacation pay is not accrued during
a layoff. However, the contract is silent regarding the pro-rating
of sick leave for employees on layoff.
A change in matters relating to sick leave is a mandatory
subject of bargaining, as to which the Respondent was obli-
gated to bargain with the Union. Flambeau Airmold Corp., 334
NLRB 165, 166 (2001).
I accordingly find and conclude that the Respondent was ob-
ligated to bargain with the Union concerning this change. Its
failure to do so violated Section 8(a)(5) of the Act. In addition,
I find that inasmuch as Brown was unlawfully laid off on De-
cember 7, 2001, had he remained employed, his sick leave
would have continued to accrue. I therefore find that the reduc-
tion of his sick leave accrual also violated Section 8(a)(3) of the
Act.
d. Issuance of Written Discipline
The complaint alleges that on various dates in the summer of
2002, the Respondent issued written discipline to Brown,
DeSousa and Teja.
i. The July 3 Discipline of Brown
On July 3, 2002, the Respondent issued a disciplinary warn-
ing notice to Brown for spending five and one-half hours on
June 17 writing four grievances, two of which alleged the same
violation of the contract—that water was shut off in the crawl
spaces by non-unit employees, and the other grievances alleg-
ing that certain work was performed by subcontractors. The
warning also noted that previously, Brown took about two
hours to fill out four grievances with very similar allegations.
The letter further stated that “while management recognizes
your right to process grievances, your status as the Shop Chair-
person does not give you the right to be a malingerer. Your
malingering is also demonstrated by you taking extended
breaks, and taking longer to perform work tasks than other
employees, such as mowing the lawn. You require constant
supervision or else you perform little or no work. If you [sic]
work productivity does not increase, then further disciplinary
action will be taken.”
Each of the four grievances comprises one paragraph from
eight to ten lines. They contain a simple statement of the griev-
ance—that on a specific date, work was done by non-unit per-
sonnel in violation of the contract, and a demand for relief.
Brown conceded that he had filed a grievance a few weeks
earlier concerning the same subject as one of them at issue
here—a non-unit person doing work in the crawl space.
Brown testified that he may have spent three and one-half to
four hours writing the four grievances. The time was consumed
speaking to employees and “seeking out and investigating”

16 This allegation was included as a Section 8(a)(3) violation, but not
as an 8(a)(5) violation in the master complaint which was issued on
September 24, 2003. However, in his opening statement and in his oral
amendment to the complaint, the General Counsel made reference to
this allegation as being a violation of Section 8(a)(5) of the Act.
SUCCESS VILLAGE APARTMENTS 1099
what occurred. He further noted that he is a “very poor writer,”
it took him time to write the grievances, and that he occasion-
ally writes three rough drafts of the grievance before filling out
the grievance form. Brown further stated that he had written
grievances prior to this incident which may have taken the
same amount of time, but he had not been disciplined in those
instances. In addition, he had never before been warned about
“malingering.”
The expired contract provides that the Respondent “shall pay
the shop chairperson and steward for all time spent during
working hours on Union business including the handling and
investigation of grievances, as set out in this Agreement, for
time spent on arbitration hearings and for negotiations.”
Heil testified that he believed that Brown spent “way too
much time” writing up the four grievances, and he also be-
lieved that Brown was malingering. Callahan testified that he
observed Brown writing the grievances from about 11:00 a.m.
to noon, and then from 1:00 p.m. to 4:30 p.m. on June 17. He
did not see Brown interviewing any workers during the time he
wrote the grievances, which were similar in content. Callahan
concluded that Brown simply did not want to work that day. He
added that Brown had been engaged in a “work slow down” in
that general time period, in which he and at least one other
worker, Teja, regularly worked at a slower than reasonable
pace. Callahan also noted that four prior grievances submitted
only three weeks before took two hours to complete.
In deciding to issue the July 3 discipline, Callahan concluded
that taking five and one-half hours to write four simple griev-
ances was an egregious waste of time. He stated that if Brown
had taken only two to three hours, he would have overlooked it,
as he had the earlier grievances, since he believed that two
hours was a reasonable amount of time to spend on that task.
Callahan also considered that Brown was clearly engaged in
Union business while writing the grievances, and he expected a
grievance to be filed over the July 3 discipline. But neverthe-
less, he believed that Brown’s action on June 17 was a gross
abuse of his obligation to work a full day. Callahan drafted the
warning and had Heil sign it and give it to Brown.
As to the July 3 memo accusing Brown of “malingering”,
Callahan testiftied that when Brown returned to work on May 1
from his layoff, he engaged in a “slow down,” doing whatever
he wanted to do, taking longer to perform such work as mow-
ing the lawn, than other employees, and he required constant
supervision, or else he would do little or no work.
Brown was engaged in protected, concerted activity in writ-
ing the grievances, and was also acting pursuant to the contract
which broadly provided that he would be paid for all time spent
during working hours on Union business, including the han-
dling and investigation of grievances. The contract provides no
limitation on the amount of time a Union agent spends in writ-
ing grievances, but clearly a reasonable amount of time is con-
templated. A factual question exists as to the amount of time
that Brown took in writing the four grievances. Brown said that
the least amount of time he took was three and one-half hours,
and Callahan said that he would have overlooked the matter if
Brown had only taken three hours. Inasmuch as I credit
Brown’s testimony that part of the time consisted of speaking
to employees and investigating the matter, and that Callahan
did not testify that he watched Brown for five and one-half
hours, it is reasonable to conclude that Brown was not merely
writing for the amount of time it took to prepare the grievances,
but also investigating the matters involved.
For the above reasons, I find that the warning note to Brown
for taking too much time to write the four grievances interfered
with his right to engage in union activities, and violated Section
8(a)(1) of the Act.
ii. The July 5 Discipline of DeSousa and July 12
Discipline of Brown
On July 5, 2002, DeSousa received a written warning which
stated that on July 2, he permitted two employees to stand
around the shop area from 10:15 a.m. to 11:50 a.m. without
assigning them work. The letter noted that as the leadman he is
expected to make work assignments. DeSousa showed the letter
to Brown and together they confronted Heil. Brown testified
that was approached by DeSousa while he (Brown) was walk-
ing to the bathroom, and he became upset, believing that the
warning was unjustified. Together, Brown and Heil went to see
Heil. Brown asked Heil in a loud, yelling, very forceful manner
“what the hell is this crap?” Brown testified that he was upset
at the discipline to DeSousa because he knew that he and Teja
had been at the dump during the time in question. Brown
apologized for being loud, and then stopped yelling, but de-
manded the identity of the two unnamed employees. Heil told
him that the two employees referred to in the letter were Brown
and Teja. B
This was the first warning issued to DeSousa, who denied
that he was in the shop area, as alleged, at that time. He also
denied being present with Brown or Teja at that time. However,
he first testified that he was in the maintenance area, and then
stated that he was not there. Brown testified that he and Teja
were at the garbage dump from about 10:18 or 10:28 a.m., and
he produced a receipt from the dump, which bore a stamp
which indicated that at 10:48 a.m. his truck was weighed, and
at 11:00 a.m. the truck left the dump. He stated that he and Teja
returned to the Respondent’s premises at about 11:20 a.m., and
then went to lunch until 11:50 a.m.
Callahan testified that the July 5 letter should have read
“11:15 a.m.”, and not “10:15 a.m.” as the time that DeSousa
was first observed not assigning employees to work. Neverthe-
less, Callahan did not issue a memo correcting the time. Calla-
han stated that at about 11:30 a.m. he personally observed
Brown and Teja not working, and DeSousa standing in the
area. He asked Brown what he was doing. Brown replied that
he was working on in-walks. Callahan asked why he was not
doing that work now, and Brown answered that no one told
them which in-walk to work on next. Callahan believed that to
be true, and asked DeSousa what assignment he was giving the
two men. DeSousa shrugged and did not respond. Callahan
called Heil and told him to have them get to work. Heil said
that Tortorella just reported that the men were idle. Accord-
ingly, Callahan decided to issue the warning to DeSousa for not
assigning the men to work. Inasmuch as Brown and Teja were
not given an assignment, he did not issue a warning to them.
On July 12, Brown received a written warning, signed by
Callahan, which stated that on July 5 at 3:45 p.m. he left his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1100
workstation without authorization to meet with Heil, and yelled
and screamed at him in a very loud voice concerning the warn-
ing letters to DeSousa and Netsel. The letter added that Brown
did not return to his work assignment for the balance of the
shift to 4:30 p.m. The warning called Brown’s behavior “totally
unprofessional, disruptive and will not be tolerated in the fu-
ture.” It also asked him to make an appointment through cleri-
cal employee Johnson to meet with Callahan regarding union
matters, noting that he may not leave his work assignment
without authorization to discuss union business “whenever you
choose.” Finally, the letter noted that Brown “continued to find
excuses to not work a full eight hours” and that he had been
previously warned to improve his productivity. “While man-
agement recognizes your right to process grievances, your
status as the Shop Chairperson does not give you the right to be
a malingerer.” The letter concluded that if his work productiv-
ity does not increase, further disciplinary action will be taken.
Callahan stated that Brown has a habit of yelling at people, and
he has yelled at him in the past.
Brown testified that he has never needed authorization to
leave his workstation to use the bathroom, which he was walk-
ing to when DeSousa showed him the warning letter. He stated
that between his last warning on July 3 for taking too much
time to write grievances and this warning, no one had spoken to
him regarding his work productivity.
DeSousa was not a union representative and did not attend
any grievance meetings, arbitration hearings or contract nego-
tiations.
Heil’s pre-trial affidavit stated that board members Marcinc-
zyk and Tortorello complained often about Brown’s grievance
activities. Heil’s affidavit also stated that he believed that Cal-
lahan or some of the other board members “had it in for
Brown” because he filed many grievances and utilized “Union
time” doing so on the Respondent’s time.
The General Counsel does not argue that the warning to
DeSousa was issued because of his union activities. Rather, he
asserts that the warning was given in order to punish unit em-
ployees in an effort to discourage their support for the Union
since Brown and Teja were active Union officials and also in
retaliation for Brown’s July 3 warning.
The basis of the warning to DeSousa was that he failed to as-
sign work to Brown and Teja for more than 1½ hours, from
10:15 a.m. to 11:50 a.m. As proven by the General Counsel,
documentary evidence supports a finding that at 10:48 a.m. a
truck occupied by Brown and Teja was weighed at the dump,
and at 11:00 a.m. the truck left the dump. Brown credibly testi-
fied that he and Teja were at the garbage dump at about 10:18
or 10:28 a.m., and returned to the Respondent’s premises at
about 11:20 a.m. when they then went to lunch. Accordingly, at
most, DeSousa failed to assign the two men to work for fifteen
minutes, from 11:15 a.m. to 11:30 a.m. when Callahan claimed
he saw the men being idle. I recognize that Callahan claimed
that a typographical error had been made in the letter which
claimed that the men were idle from 10:15 a.m., but neverthe-
less the letter was not corrected until he testified in contradic-
tion to it at hearing.
Although no discipline was issued to Brown and Teja be-
cause they were idle, a reasonable inference could be drawn
that the Union activities of the two men was a motivating factor
in the issuance of DeSousa’s warning letter. Wright Line,
above. Brown and Teja were the two Union officials in the
facility, and the Respondent’s animus toward the Union and
Brown have been amply set forth above. The reason given in
the warning, that DeSousa failed to assign the men to work
during the specific time that they were off the premises, was
false. The men were actually working during part of that time.
Under these circumstances, I find that the Respondent has not
established that it would have issued that letter in the absence
of the Union activities of Brown and Teja.
Brown was understandably upset at receiving the warning
for his conduct in confronting Heil with respect to DeSousa’s
grievance. Brown’s offense at the warning was reasonable par-
ticularly since he had evidence that he had been at the dump
during the time specified in the letter when, as it turned out, he
and Teja were accused of not working. In speaking with Heil,
Brown was presenting a grievance concerning the warning
given to DeSousa. “It is well settled that an ‘empoyee’s right to
engage in concerted activity may permit some leeway for im-
pulsive behavior which must be balanced against the em-
ployer’s right to maintain order and respect.’” Mast Advertising
& Publishing, 304 NLRB 819 (1991). The warning primarily
objected to Brown’s confrontational approach to Heil. Brown
admitted yelling and speaking forcefully to Heil, but then
stopped that behavior and apologized. Brown did not curse or
engage in violent conduct, and his conduct posed no threat to
the Respondent’s maintenance of order, respect, or discipline.
Mast, above, at 820.
I accordingly find that the warning letters to Brown and
DeSousa violated Section 8(a)(3) of the Act.
iii. The August 5 Discipline of Brown and Teja
By letter of August 5, 2002, Brown received a disciplinary
warning which stated that on July 3, he was seen sitting on the
steps of building 58 “smoking and not performing your as-
signed work.” The letter further stated that on July 5, “you were
talking to a resident in a loud voice for approximately twenty
minutes instead of performing your assigned tasks.” The letter
warned that “this behavior is totally unacceptable. You con-
tinue to work less than the required eight hours per day. You
have been verbally warned and received other non-performance
letters.” The letter concluded that if Brown’s work productivity
does not increase immediately, his “suitability for employment
at Success Village Apts, Inc. will be reviewed.”
Brown stated that he is a smoker, and occasionally takes a
break to smoke, and at times smokes while working. He had
never been disciplined prior to that time for smoking. Brown
denied smoking while sitting on the steps of building 58. He
stated that he was on garbage duty that day. He further recalls
speaking to resident Sonja on July 5, perhaps for 20 minutes,
although he later denied speaking to her for 20 minutes, adding
that he was working during their conversation. He denied that
he spoke to her in a loud voice. Their conversation concerned a
letter she received from the board of directors. He conceded
that when he works he exchanges pleasantries with residents.
He had never been disciplined prior to that time for speaking to
residents. Brown receives two 10-minute breaks per day, at
SUCCESS VILLAGE APARTMENTS 1101
10:00 a.m., and at 2:00 p.m., and a 30-minute lunch break at
noon. He stated that he does not abuse his break times, but also
takes smoking breaks of a couple of minutes, not exceeding
five minutes, in addition to the regularly scheduled breaks.
Also, if he is tired, he will sit down during the workday.
Callahan testified that a board member observed Brown’s
conduct set forth in the letter of August 5, and requested that
Callahan discipline him.
On August 5, Teja was issued a disciplinary warning which
stated that he was observed on July 3 sitting on the steps of a
building and “not performing your assigned tasks.” The letter
also stated that on July 5 he was seen talking to a resident for
about ten minutes and not working. The letter concluded that he
had been “previously verbally warned about [not] working a
full eight hour day.” Teja did not testify.
Langston testified that during his employment with the Re-
spondent he has spoken to residents while working, whether or
not he was working for that resident at the time. No discipline
has resulted from any ten-minute conversations with a resident.
I cannot find that a violation of the Act has been committed
in the issuance of the warnings to Brown and Teja for speaking
to residents for extended periods of time. Brown admitted
speaking to the resident for about 20 minutes, but explained
that he was working while speaking to her. Since he was on
garbage detail at the time, I find that it would be very difficult
for him to perform such work while engaging in an extended
conversation. Inasmuch as Teja did not testify I credit Calla-
han’s recital of what he was told by the resident concerning
Teja’s not working.
I accordingly find that the issuance of the August 5 warnings
to Brown and Teja did not violate the Act.
e. The Refusal to Provide Asbestos Awareness Training
to Brown and Teja
The complaint alleges that since about July 26, 2002, the Re-
spondent refused to provide asbestos awareness training to
Brown and Teja. On that date, the Union received an asbestos
report from the Respondent, and learned that Brown and Teja
had not received asbestos training that had been provided for
other employees. Langston had not been told, prior to receiving
the report, that Brown and Teja would not receive asbestos
awareness training.
The Respondent was aware of the presence of asbestos in the
crawl spaces and the basements of the buildings as early as
March, 2001, when it told the employees that if they see friable
asbestos in those areas they should leave immediately. In July,
2001, they were prohibited from entering those areas.
A report of an asbestos investigation was issued on July 24,
2001. Callahan received it shortly after he began work with the
Respondent in August. The first report recommended the re-
moval of asbestos. Callahan looked into alternatives to remov-
ing the asbestos. Dr. Forrest wrote a report dated October 14. A
follow-up report was written on October 30 which recom-
mended the implementation of a program including asbestos
awareness training and the use of respirators while working in
asbestos contaminated areas. In about October, 2001, Callahan
received asbestos reports from various experts. Respondent’s
attorney, Zaken, wrote a letter to Union president See on No-
vember 1, 2001, transmitting the reports to the Union at its
request. A Connecticut Department of Labor agent visited in
February, 2002, and thereafter determined that maintenance
employees should not enter the crawl spaces, and directed that
an asbestos awareness training program be conducted. Callahan
retained a firm to conduct the training, which consisted of three
phases: asbestos awareness training and the showing of a film
on April 23; a medical evaluation, completion of a question-
naire, and a fit test with an explanation of the use of the respira-
tor in June or July; and, thereafter, a fit test with the respirator.
The employee must complete each step of the training program
before proceeding to the next session.
On April 19, 2002, Callahan posted a notice in the boiler
room requesting that six employees, DeSousa, Giannattassio,
Netsel, Reid, Tapanes, and Teja, attend a mandatory asbestos
awareness training program on April 23. Callahan testified that
all the employees listed were actively working at the Respon-
dent’s premises. He noted, however, that plumber Giannattas-
sio was on workers compensation and had not actually been at
work since October, 2001, and “if” he returned to work he
should be trained. In fact, he never returned to work. He and
Teja did not attend the training session. Callahan gave uncon-
tradicted testimony that Teja told him that he would be at home
sleeping after his evening shift in the boiler room. Callahan did
not insist that he be present, and Teja received no discipline for
refusing to attend. Callahan believed that the six employees
mentioned in the notice constituted an “adequate” number of
workers to be trained. He knew that Brown had done some
plumbing work, but also knew that Brown would be returning
to work from layoff to perform work on the in-walks. He con-
ceded that none of the OSHA reports limited the types of work-
ers to be trained. In fact, the Connecticut report broadly stated
that training should be given to workers who perform work in
areas containing asbestos.
On April 23, the date of the asbestos training, Brown was on
layoff status. He testified that on April 23, he was in the base-
ment when he saw Heil ask three workers to report to see a film
regarding asbestos. Heil specifically told Brown and Teja that
they would not go to the training session. Brown asked why he
was excluded and Heil did not reply. Maintenance employees
DeSousa, Netsel, Reid, and Tapanes attended a two-hour asbes-
tos awareness training session that day. Managers Callahan and
Heil, and also board members Olbrys and Skonieczny attended
the training that day.
On April 23, Brown was on layoff status, and according to
Langston could not have attended the asbestos awareness train-
ing session. He returned to work on May 1. Langston stated
that both a carpenter and plumber must be trained in asbestos
awareness because they are exposed to asbestos during their
work.
Brown was not invited to the final two phases of asbestos
training because he had not attended the April session. Begin-
ning on August 1, 2002, all employees except Brown had com-
pleted the asbestos training and were certified to work in areas
containing asbestos. Brown was given asbestos training in 2003
and completed such training.
I cannot find that Teja was unlawfully refused asbestos train-
ing on April 23. His name was on the list of employees invited
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1102
to attend the training.17 Callahan gave uncontradicted testimony
that Teja refused to attend the training and did not appear. I
accordingly will dismiss this allegation.
However, it is clear, and I find that Brown, the Union shop
chair, was deliberately excluded from training. His Union ac-
tivities and position as shop chair, I believe, contributed to the
decision, and the animus of the board and of Callahan toward
the Union and Brown motivated its decision to exclude him.
Wright Line; Scott-New Madrid-Mississippi Electric Coopera-
tive, 323 NLRB 421, 423 (1997). By excluding Brown from an
opportunity to receive asbestos training in April, his ability to
perform work in asbestos contaminated areas was delayed.
Such delay caused him to be excluded from work opportunities
which might arise in such areas, and lessened the amount of
work available to him. Einhorn Enterprises, 279 NLRB 576,
591 (1986). The fact that thereafter, Brown refused to shave
and therefore become able to wear a respirator, or later refused
certain “volunteer” work in the basements is irrelevant since we
are concerned here with the initial decision as to who should
receive asbestos training.
The various reasons given by the Respondent for its failure
to include Brown in the asbestos training do not ring true. Cal-
lahan asserted that Brown was on layoff and thus could not
attend the training. The training was conducted on April 23,
and Brown was scheduled to return from layoff one week later,
on May 1. He could have been asked to return to the facility to
attend the training. Indeed, Brown gave uncontradicted testi-
mony that he was at the facility on April 23. He could have
been included at the last moment, as apparently the two board
members were. Callahan stated that they were at the facility
that day and wanted to be trained. Significantly, Giannattassio
was invited to have such training although he was absent from
work on workers compensation and had not actually been at
work since October, 2001. Callahan said that “if” he returned to
work he should be trained. In fact, he never returned to work,
whereas Brown was scheduled to return to work only seven
days after the training and was not invited to be trained. Al-
though Callahan believed that Brown would perform work on
the in-walks when he returned, there still existed a possibility
that he would work in areas contaminated with asbestos.
Clearly, it would be more likely that Brown would work in
such areas than the two board members who were trained that
day. In addition, the OSHA agencies did not limit the types of
workers to be trained, but indeed stated that such training
should be given to workers who perform work in areas contain-
ing asbestos. Brown was one of those workers.
I accordingly find and conclude that the failure to provide
asbestos awareness training to Brown on April 23, 2002 vio-
lated Section 8(a)(1) and (3) of the Act.
f. The Layoff of Brown on October 18, 2002
On October 12, the Respondent notified Brown that he
would be laid off, effective October 18, for lack of work.
Brown testified that when he was given the notice, he was

17 The General Counsel asserts that Teja’s name was added after the
list was issued. This should have been raised at trial as there is no evi-
dence to support this claim.
working with DeSousa in installing sheetrock and painting a
couple of ceilings and a bathroom. That work was not finished
when he was laid off. Brown also stated that during the winter,
the employees were kept busy with inside work as well as snow
removal. Reid testified that at the time that Brown was laid off,
there was no decrease in the level of work, but conceded that
although there was plumbing and maintenance work, there was
not too much carpentry work.
Also on October 18, four new employees who worked for
the Respondent for only one month, were also laid off. Brown
stated that he told Heil that he wanted to exercise his bumping
rights, and asked whether Netsel would also be laid off. Heil
said that he did not know anything about that.
Callahan testified that in the fall of 2002, 160 fireproof
apartment doors had to be installed, and he asked DeSousa
whether he and Reid could do the work.. DeSousa replied that
they could not do that work. A subcontractor was hired to do
that work. DeSousa testified that Callahan asked him if he
could install the doors. He replied that he could not do so alone
since he was the only carpenter, inasmuch as Brown was laid
off and Reid worked at plumbing.
A charge alleging the unlawful subcontracting of those doors
was either withdrawn or dismissed. Regardless of whether the
charge was not pursued, the replacement of the fireproof doors
was offered to the unit employees and declined since not
enough workers were available to perform such a large job.
Brown performed carpentry work. DeSousa’s response to Cal-
lahan demonstrated that if workers were available, the unit
employees could have done the job. Clearly, this establishes
that there was work for Brown to have performed at about the
time he was laid off.
I accordingly find and conclude that the General Counsel has
proven that, based on the considerations set forth above, that
the Respondent’s ongoing discrimination against Brown, in-
cluding the October, 2002 layoff, was motivated by his Union
activities. I further find that the Respondent has failed to prove
that it would have laid Brown off even in the absence of those
activities as it had available work for him to perform, including
the ceiling and carpentry work he was doing at the time of his
layoff and the installation of the fireproof doors. I therefore
find that Brown’s layoff on October 18, 2002 violated Section
8(a)(3) of the Act.
3. The Alleged Harassment of Brown and Reid
The complaint alleges that since about June 5, 2003, the Re-
spondent harassed Brown and Lloyd Reid by assigning them
work (a) that they do not normally perform (b) without the use
of customary or adequate equipment (c) without customary or
adequate assistance (d) which was more physically demanding,
and on June 5, watched them more closely and frequently while
they were working. In the summer of 2003, Brown was the
shop chair and Reid was the shop steward.
a. Dennis Brown
Brown was laid off in October, 2002, and returned to work
on May 5, 2003, resuming his position as shop chair. His notice
of recall stated that he was being recalled “in order to do in-
walks and other miscellaneous tasks.”
SUCCESS VILLAGE APARTMENTS 1103
Upon his return to work, Brown was assigned to grass cut-
ting, changing door locks, moving tile and sheet rocking ceil-
ings with DeSousa. One month after his recall in May, 2003, he
was told by Callahan that two new employees would be starting
work doing the in-walks, and that Brown would train them, and
he should let them do the bulk of the heavy work since he (Cal-
lahan) did not want Brown to injure his back. Callahan said that
he would probably continue to cut grass and do other work.
The new employees were Luis Andrade and Greg Pavliscsak.
Heil testified that Andrade and Pavliscsak were hired be-
cause the Respondent needed additional help in the renovation
of the in-walks. They began work on the in-walks, but then
were reassigned to lawn cutting and garbage pick up. Brown,
who was doing the in-walks when the two men were hired,
continued in that assignment. In Heil’s opinion, the work that
Brown did was harder than the jobs the two new men were
assigned. He observed Brown and Teja breaking up the con-
crete with a jackhammer, alternating such work, and also noted
that in the May and June, 2003 period, Brown and Teja did
most of the in-walk work, with Brown doing the bulk of the
work.
Manager Segneri testified that Andrade and Pavliscsak were
already working on in-walks when he was hired, and the fol-
lowing week he assigned them to work on more in-walks,
where they worked for about three to four weeks thereafter. He
noted that they worked exclusively on in-walks during that
time, doing only the hardest work—using the jackhammer and
clearing rubble. Segneri claimed that during his first week of
work, Brown was cutting grass, which had been assigned by
Heil.
Brown stated that he did not work on any in-walks from the
time of his recall until the new men were hired. Thereafter, he
worked with them and trained them in the removal of the old
concrete and framing. Shortly after Segneri became employed
with the Respondent, he assigned Brown alone to fill the in-
walk with process, which is pulverized dirt and rock. Brown
testified that he told Segneri that ordinarily two to three work-
ers do that job, and that they use a New Holland mini-bucket
loader machine to assist them. According to Brown, the New
Holland lifts the process and loads it into the wheelbarrow,
making the job more efficient and speedily done. Brown stated
that he asked Segneri if the men could use that machine and
Segneri replied that he would let them know when they could
use it.
Brown stated that Andrade and Pavliscsak worked on in-
walks for about three weeks only. He added, however, that he
did all the “labor-intensive” work, and that he worked on in-
walks for most of the summer. Teja, too, also did in-walks in
the summer. They both chopped out the concrete, Brown dug
and framed, and filled in the cleared area with dirt and process.
Brown noted that Teja occasionally chopped the in-walks
alone, and carried the process in wheelbarrows as Brown did.
Brown also conceded that Reid used the plastic forms to frame
the in-walks by himself.
Brown stated that his primary job all summer was to move
broken concrete with the wheelbarrow. Segneri asked him to
move stone process from one side of a field to the jobsite to be
filled into the in-walks. Brown did not ask to use the New Hol-
land because he knew that he was being “railroaded.” He did
such work from 8:00 a.m. to 3:30 p.m. when he was helped by
another worker. Brown testified that while he was doing such
work, board member Skonieczny asked why he was not using
the New Holland. Brown said that he was not permitted to use
it unless he was told to do so. Skonieczny said that that was
ridiculous, and that he would speak to Segneri. Skonieczny told
Brown later that Segneri said he could use the New Holland.
Brown replied that if he had been given such permission he
would have used it, and not worked so hard with the wheelbar-
row. Skonieczny said that “that’s because they’re trying to get
rid of you and they’re making it hard on you.”18 Later,
Skonieczny told Brown that Segneri said that he had permis-
sion to use the New Holland. Brown estimated that he walked
about 17.5 miles that day. He stated that he never had to walk
that far in order to move process from one place to another.
Segneri asked DeSousa to frame a sidewalk and DeSousa
protested that such work required two workers, one to hold the
boards, another to assemble them. When Segneri asked him to
try to do it himself, DeSousa refused. DeSousa began to help
Brown put the process in the in-walk. Segneri approached and
assigned Reid to help DeSousa frame the in-walk, saying that
installing the process was Brown’s job, which Brown would do
alone. At that time, Andrade and Pavliscsak were cutting grass.
Brown stated that he spread the process for about 1½ days, and
was not permitted to use the New Holland machine during that
time, although he was permitted to use it later that summer. On
the second day that he spread process, he was assigned to chop
the roots from an in-walk to prepare it for framing. Brown
stated that as he was chopping the roots, Segneri stood over
him with his arms folded. Brown became nervous and asked
Segneri whether he would “stand there all day and watch me
work?” Segneri replied that he was supervising, doing his job.
Brown answered that Segneri was making him nervous, adding
that he did not need to be watched. Brown stated that Segneri
stood there for 30 minutes, when Brown said that he was “in-
timidating” him, and threatened to file charges alleging “in-
timidation.” Segneri then left. Brown testified that Heil never
watched him work for 30 minutes at a time.
In June, 2003, Hugg Construction Company, a paving con-
tractor, was at the Respondent’s premises paving a parking lot,
when Brown observed its backhoe operator break up and dig
out two in-walks. Brown interrupted his own work, and ap-
proached the contractor’s worker, announcing that he was do-
ing the work of the Respondent’s employees. Brown asked him
who authorized such work, and Segneri was identified. Brown
approached Segneri and announced that the contractor was
doing their work. Segneri said that Brown had no business
speaking to the contractor’s employee. Brown said that, as the
shop chair he had a right to question someone who was doing
unit work. Segneri replied that he was just doing “us” a favor,
and that Brown should return to work. Brown asked to have a

18 Brown’s notebook notation of this conversation omitted any refer-
ence to Skonieczny’s comment that they were trying to get rid of
Brown. I place no great emphasis on this omission inasmuch as Brown
stated that he already knew that the Respondent sought to eliminate him
from the work force.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1104
meeting with Segneri and Reid about the matter. Segneri re-
fused, and assigned Brown to pick up concrete and take it to a
building located about one-quarter of a mile away. Brown of-
fered to get the New Holland, but Segneri refused the request,
directing that he use the wheelbarrow, and further advising that
he (Segneri) would tell him when he could use the New Hol-
land. Brown testified that in the past he had been permitted to
use the New Holland to move pieces of concrete since it was
more efficient. He and Segneri had some discussion, and finally
Brown said that Segneri made him “absolutely sick” to his
stomach, and that he was going home. On one occasion,
Segneri assigned Brown to use the electric jackhammer in the
rain.
Segneri testified that the backhoe operator, on his own, and
without instruction from Segneri, removed about three to four
feet of rubble from one in-walk that had been broken up by unit
employees but not yet cleared of debris. Segneri stated that he
did not stop the operator as it did not occur to him that he was
doing unit work, and in fact asked him, if he wished, to do him
a favor, and clear the next in-walk. The operator agreed.
Segneri stated that this was heavy work on a hot day, requiring
employees to shovel the cement blocks which had been jack
hammered, and take them in the wheelbarrow to the street. The
operator simply used the backhoe to put the rubble in his truck.
When Brown complained to Segneri that the operator was do-
ing unit work, Segneri told the operator to stop what he was
doing.
Brown stated that following this argument, Segneri assigned
him, for the remainder of the summer, to pick up wet leaves.
Brown described this assignment as particularly difficult be-
cause the leaves, being wet, were matted down, and it was nec-
essary to use a shovel to pick them up, comparing the assign-
ment to shoveling snow. He loaded the leaves onto the garbage
truck and then dumped them. Brown conceded that such a task
was unit work, and perhaps other unit employees have done
that work. On one occasion while he was picking up the leaves,
Brown took a short break and was asked by Segneri why he
was not working. Brown replied that the work was hard and he
needed to take a break. Segneri answered that his only breaks
are at 10:00 a.m. and 2:00 p.m. Brown responded that if he
needed to take a break he would, adding that he had high blood
pressure, weak knees and back problems. Segneri laughed and
left the area. Brown noted that during such occasions he was
idle only for two minutes, and took such breaks at 10:30 a.m.,
and at 11:20 a.m. Segneri testified that the leaf assignment was
prompted by tenant complaints and not for any discriminatory
reason. He added that other unit employees have been assigned
that job.
Following his assignment by Segneri to jackhammer the in-
walks, Brown protested his assignment to Segneri, asking him
whether he was going to be the only worker doing work on the
in-walks alone. Brown asked why Andrade and Pavliscsak
were hired to do such work, but were in fact cutting grass, in-
quiring whether the assignment was due to his being the shop
chair. Segneri replied that everyone is entitled to his own opin-
ion, but that is not the reason, adding that Andrade cut the grass
better than he and he knows how to fix the machines.
In this connection, Segneri testified that he reassigned
Brown from his regular job of cutting grass because he did that
job very slowly and the lines he cut were not straight. He of-
fered to teach him how to cut straight rows but Brown refused.
In addition, according to Segneri, Brown replaced a mower belt
improperly. Segneri assigned Pavliscsak because he had prior
experience as a landscaper and was experienced in fixing ma-
chinery. Segneri reassigned Brown to the in-walk work, a job
not requiring much skill, in which he worked with the jack-
hammer, cleared rubble, and spread process. Other employees
such as Andrade, Pavliscsak, Teja, and perhaps Reid also jack
hammered.
Brown testified that during the summer of 2003, Segneri was
constantly “hawking” him, meaning that he would closely ob-
serve Brown at work by stopping at his work location and star-
ing at him. Brown stated that Segneri engaged in such conduct
at least an average of 4 times per day, but there have been occa-
sions where Segneri would stand and watch him seven to eight
times per day. Segneri’s routine would be to stand watching
Brown for about five minutes, and then leave, and then Brown
saw him go around the building and peek around the corner.
Brown stated that he felt intimidated by such conduct. Brown
described the close supervision given to him by Segneri, who
became angered on one occasion, telling Brown that he was
told to pick up stone in one location and not another, and that
he had to finish another assignment first.
Heil testified that he checked on the employees about twice
during the day, for about 30 minutes—during the morning and
afternoon, and there were days that he did not check on the
workers, depending on what jobs they were doing, and how
much work he had in the office. He did not show the workers
how to perform their work because they knew their jobs, al-
though occasionally he perhaps instructed a worker on how to
complete a task. He said that occasionally, Callahan encour-
aged him to be outside more, supervising the workers.
In this connection, Segneri testified that when he was hired,
Callahan told him that Heil stayed in his office and “let the men
do as they wished” which Callahan believed was not correct.
Callahan wanted Segneri to “go out into the field” and make
sure that the work was done in a proper and timely manner.
Segneri had worked for the Respondent years earlier, and Cal-
lahan advised him that the Union “is still there.” He denied
being aware of the Board case when he was hired, but within
two to three weeks of his hire he learned about the matter.
Segneri stated that upon his hire, he observed the employees
several times per day, and watched Brown more often than
others because of a conversation he overheard in which Brown
told his co-workers that since they did not have enough nails to
complete a job they would have to take a ride for a couple of
hours to obtain nails. Segneri conceded standing and watching
Brown for three to four minutes or less when he worked on the
in-walks. Brown accused him of harassing him, and Segneri
replied that his job was supervising, and he wanted to see how
Brown worked. Segneri tried to visit each employee on an
hourly basis. Segneri conceded that he watched Brown at least
once per hour, sometimes less often, but “as often as possible,”
which was consistent with his practice of visiting other em-
ployees’ work places. Segneri further stated that he supervises
SUCCESS VILLAGE APARTMENTS 1105
Brown more than the other workers because he is “constantly
. . . gold bricking or not doing his job… I have to be watching
them (Brown and Teja) constantly. When I am not watching
them, nothing or very little gets done.”
Brown testified that Segneri urged him to carry more mate-
rial in his wheelbarrow that he felt physically capable of carry-
ing. For example, he told a concrete deliveryman to fill his
wheelbarrow only ¾ full. Segneri chided him, saying that a five
year-old boy is stronger than him, and ordered him to “work
like a man.” Segneri demanded that he fill the wheelbarrow,
telling Brown that if he did not want to carry a full wheelbar-
row he could go home.
Segneri testified that when Brown protested the amount of
concrete that was placed in his wheelbarrow, he asked Brown if
he had a disability or medical problem. Brown said that his
knees hurt. Segneri asked for a physician’s note, and demon-
strated that the amount of concrete in his wheelbarrow was not
heavy.
Brown related another incident in which he spent an entire
hot day digging out a mass of roots from an in-walk. At 3:00
p.m. he sat on a stoop and was asked by Segneri whether he
had a problem. Brown said “no”, and was then asked by
Segneri why he was not working. Brown explained that he was
taking a break, and was reminded by Segneri that his breaks
were at 10:00 a.m. and 2:00 p.m. Brown replied that he was
aware of that, but the weather was hot. Segneri then made a
series of suggestions: that Brown punch out, go home, see a
physician, perhaps take “weight training” so he could become
stronger, or get a job he was able to perform. Brown responded
that he had told Segneri before, when he was shoveling the wet
leaves, that he would not “kill” himself for the company.
Brown continued sitting on the stoop and Segneri remained
there looking at him. When Brown resumed work, Segneri left.
In this connection, Brown conceded that he used a tree stump
grinder on two consecutive days which had been rented by
Segneri. The grinder makes the job of chopping roots easier.
Regarding Segneri’s suggestion that Brown see a physician,
Brown stated that he was never asked to provide a doctor’s
note, and he has no medical restrictions which limit his ability
to perform his work.
Andrade testified that when he worked with Brown and Teja
on in-walks, they told him essentially that he should not work
too fast, and that he should take his time. Andrade, who is 24
years old, said that his work experience with Brown was lim-
ited to one or two times, and that during such times, Brown did
not work very slowly, but Brown’s rate of work was not as fast
as his.
Pavliscsak described Brown as a “good worker” based on his
work experience with him. Pavliscsak, at 40 years old, stated
that he filled his wheelbarrow with only what he could handle.
Although he saw Brown move his wheelbarrow a little slower
than he, Pavliscsak attributed it to Brown’s being older than
him.
The General Counsel asserts that Brown should have been
assigned to work other than the in-walks. Segneri stated that
Brown was cutting grass in the summer so he was not assigned
plumbing work until September or October. Segneri testified
that Brown told him that he did not like to work under the
buildings, which is sometimes required for plumbing jobs since
the shut-off valves are located there. Segneri assigned Brown
and Tapanes to do a plumbing job. When they finished, Segneri
told Brown that the job was not done correctly. Segneri as-
signed them another plumbing job which took 2½ hours to
complete, longer than Segneri believed it should have taken.
Segneri visited the job site and saw them sitting in the truck at
3:00 p.m. At 3:30 p.m., Segneri told them that the job was not
done correctly and asked them to re-do it. Brown announced
that he was going home. Shortly thereafter, Segneri assigned
Brown to do a plumbing job under a building. At the time,
Brown was wearing a beard and Segneri refused to assign him
to that work because he could not wear a respirator with the
beard. Brown said that he did not need a respirator, but Segneri
would not permit him to work without a respirator. Instead, he
suggested that Brown shave and wear the respirator. Brown
refused. Although he had volunteered to do this type of work
and attended a class taught by Segneri, Brown told Segneri at
this time that he “unvolunteered” for this work. Segneri stated
that thereafter, he gave Brown another “simple” plumbing job
to perform. Segneri said that he performed the job improperly
by bending the pipe instead of installing elbow fittings. There-
after, Segneri did not assign Brown to any plumbing jobs.
Segneri testified that upon his hire he began to observe the
employees as they worked, and formed impressions concerning
their work ethic and their abilities. He concluded that there
were areas where he believed that he could make the employees
work more efficiently. For example, where Reid claimed that
certain plumbing work required two employees, discussed
above, Segneri determined that only one worker was required.
Similarly, the use of plastic forms for the in-walks required
only one person to put them together, and changed the installa-
tion of furring strips to a one-person job. He also obtained four
sets of finishing tools for concrete installation so the men could
work together to get the job done more quickly. He also or-
dered concrete, which could be mixed as needed, as opposed to
the prior practice of mixing all the concrete at one time.
Segneri stated that in an effort to make the employees’ jobs
easier and efficient, he bought new equipment, such as new
tools to be used when working on the in-walks.
i. Analysis
The above facts establish that, although Andrade and Pav-
liscsak were hired to work on the in-walks, they were neverthe-
less, shortly after Segneri’s hire, assigned to other, less de-
manding tasks. That assignment caused Brown to work on in-
walks for the vast majority of his time. Brown was required to
perform the most arduous tasks, breaking up the concrete and
removing the rubble with a wheelbarrow, while at the same
time being denied the use of the New Holland machine, which
would have made the removal process easier. Although the new
workers may have cut the grass in a better manner than Brown,
nevertheless, prior managers, including Heil apparently found
no fault with Brown’s grass cutting.
The Respondent’s assignment of Brown to such arduous
work, while at the same time refusing to permit him to use the
New Holland to make such work easier, establish that it sought
to harass him through such assignments. In addition, following
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1106
a conversation in which Brown questioned the use of a contrac-
tor to do unit work, his assignment was changed to the arduous
task of picking up wet leaves. That assignment was accompa-
nied by Segneri’s close supervision. Regarding Segneri’s
claims of Brown’s laziness, presumably neutral employees
Andrade and Pavliscsak described him as a good worker.
Although Segneri claimed that he was justified in watching
Brown closely because of his perceived laziness and interest in
shirking work, the manner in which Segneri watched him ex-
ceeded the bounds of what could be considered proper supervi-
sion under the circumstances and amounted to harassment.
Thus, Segneri stood over Brown with his arms folded for 30
minutes, and only left after Brown claimed that such conduct
was intimidating. There was no evidence that any other worker
was supervised in this manner. Brown was also frequently
treated in a humiliating way by Segneri, who compared him to
a crying child on more than one occasion.
I find that the General Counsel has established that the Re-
spondent was motivated in harassing Brown, as alleged in the
complaint, because of his position with the Union and because
of his Union activities in violation of Section 8(a)(3) of the Act.
Brown was an outspoken, active and aggressive Union repre-
sentative, and given the evidence of animus set forth above, the
Respondent’s unlawful motivation is established. Wright Line.
As set forth above, the Respondent has not proven that it would
have engaged in this course of conduct in the absence of his
Union activities. Palagonia Bakery Co., 339 NLRB 515 527–
528 (2003); EDP Medical Computer Systems, 284 NLRB 1286,
1295–1296 (1987).
However, I cannot find that the Respondent was also moti-
vated in its conduct because of Brown’s testimony at the hear-
ing. There is no evidence that the Respondent treated him as it
did specifically because he exercised his right under the Act to
give testimony. Accordingly, I will dismiss that part of the
charge which alleges that the Respondent harassed Brown in
violation of Section 8(a)(4) of the Act.
b. The Suspension of Brown on October 20 and
21, 2003
Brown stated that his official hours of work are from 8:00
a.m. to 4:30 p.m., but that he generally works until 4:15 p.m.
The extra time is used as “clean-up time.” He stated that in the
summer of 2003, he went to the bathroom in order to clean up
at about 4:10 p.m. He was met there by Segneri who told him
not to return from work until 4:15 p.m. Brown accused him of
“singling” him out, since other workers were permitted to stop
work at 4:10 p.m.
On October 20, Brown had been doing landscaping work in-
volving working in dirt. At 4:10 p.m. he had one more project
to complete, and decided not to start it, but rather return to the
shop. He sat on a stoop cleaning mud from his boots when
Segneri asked him what he was doing. Brown did not answer,
and Segneri said that he should not ignore him and repeated his
question. Brown replied that he was cleaning the mud from his
boots. Segneri said that it was 4:15 p.m., and demanded that he
finish the work he was doing. Brown answered, “I don’t think
so.” Segneri repeated his order, and Brown replied that he was
“done.” Segneri said “you’re done all right, and said that he
would be paid only until 4:15 p.m. Brown replied “I don’t think
so” and Segneri again told him to continue to work. Brown
again refused, saying that it was time to clean up and go home.
Brown entered the office at about 4:20 and saw his fellow
workers there. Brown was paid until 4:15 p.m. that day.
The following day, Brown was called into Segneri’s office,
and was told that he was suspended for one day for insubordi-
nation because he refused a direct order. Brown replied that the
order to work past quitting time was an unreasonable order.
Segneri then wrote in his book that Brown left his job at 4:00
p.m. and refused to work when ordered to do so. Brown said
that was a lie, since he left the job at 4:10, and not at 4:00.
Segneri insisted that he left the job at 4:00. Callahan, who was
present during the meeting, told Brown that employees are paid
for eight hours work. Brown said that the employees generally
get 15 minutes clean-up time. Callahan said that was a “gift”
from the company, there being nothing in the contract provid-
ing for such time.
Segneri testified that he told the workers that he would allow
them 10 minutes to return from their work site to the office,
return their tools and punch out. He said that prior to the day of
Brown’s suspension he saw Brown returning to the office at
about 3:50 or 3:55 p.m. It should be noted that Segneri’s log-
book noted that at 4:05 p.m. he checked on Brown and could
not find him. Segneri told him that the workday ends at 4:30,
and asked what he was doing. Brown replied that unless he had
a written order he would not comply with an oral directive.
Segneri then told him that he could leave his work site only at
4:20.
Segneri stated that on about October 20, he could not find
Brown at about 3:50 p.m., but then saw him cleaning dirt from
his shoes on the steps near the office. At 3:55, Segneri told him
that he was supposed to be working. Brown replied that he was
“through for today.” Segneri demanded that he return to work
until 4:20. Brown refused. Segneri punched his card at 4:10,
and wrote in a 4:00 punch out time. The following day, Segneri
said that Brown was suspended for insubordination because he
refused Segneri’s order to return to work.
Heil testified that the Respondent gives employees 10 min-
utes clean-up time before the end of the workday. The workers
are expected to return to the shop at 4:20 p.m. Employee Pav-
liscsak testified that he occasionally returns to the shop before
4:15 p.m., and at times when he returned before 4:20, Segneri
told him not to do so. He stopped returning early, but conceded
that at times he returned early because his job was done.
I cannot find that the General Counsel has established a vio-
lation of the Act. It is undisputed that the employees’ workday
ends at 4:30 p.m., but that they are given 10 minutes clean-up
time. Brown violated that rule by ending work prior to 4:20.
Pavliscsak was warned about returning early, so it appears that
Brown was not the only worker subject to this rule. Although
Pavliscsak was not suspended for doing so, he was not given a
direct order by Segneri to return to work. In this case, Brown
was told to return to work until 4:20, and he refused. Accord-
ingly, the Respondent has satisfied its Wright Line burden in
this respect, and I will dismiss this allegation of the complaint.
SUCCESS VILLAGE APARTMENTS 1107
c. Lloyd Reid
Reid testified that he was classified as a carpenter, but im-
mediately upon the hire of Segneri his job assignments
changed, and he was asked to perform work he never did be-
fore, and he was asked to perform work alone that had previ-
ously been done by two employees. The work he had never
done before included spraying weeds and cutting branches.
Such work had previously been done by the grounds crew who
work on the garbage truck. Reid had not been assigned such
work by any managers prior to Segneri. Reid sprayed weeds
three to four days per week, and cut branches for two to three
weeks. Such work was not continuous, however. For example,
he did such work only three to four days in a two-week period,
then the following week he did such work only for one day, and
then in the following two weeks, only two to three days. Reid
conceded that one branch cutting assignment was a legitimate
task requested by a tenant.
Segneri stated that he assigned Reid to spray weeds, perhaps
only once the entire summer. He assigned that work to others
also, including perhaps Andrade. Brown was also given that
assignment but refused to perform it. Segneri also assigned
Reid to cut branches with employee Pavliscsak. Such work was
requested by a tenant and was assigned as “fill-in” work if no
carpentry or plumbing work was available for him.
The tasks that Reid was asked to perform alone included
plumbing work that had usually been done by two workers. For
example, on July 15, 2003, Reid was asked to make a repair in
an apartment. The job involved first shutting the water to the
fixture in the basement, then making the repair in the apart-
ment, next turning the water on in the basement and finally,
returning to the apartment to test the repair. Reid testified that
prior to Segneri’s arrival, such a job was done with two work-
ers, one staying in the basement to shut and then turn on the
water supply, and the other making the repair in the apartment.
He stated that it was easier with two employees, and told
Segneri that if one worker did the job, he would track his
muddy and asbestos-laden shoes into the apartment, which the
tenants did not want. Segneri had suggested to Reid on another
occasion that he take his boots off before entering the apart-
ment. Reid protested that he did not have boots. Segneri ob-
tained new boots for him about one month later. When Reid
told Segneri on July 15 that he needed a helper to perform a
job, Segneri wrote on the job ticket that Reid refused to do the
job because he needed two employees. Segneri then asked
Tapanes to do the work alone and Tapanes also asked for a
helper. Then Segneri told Reid and Tapanes to do the job to-
gether.
Another job usually done by Reid with two workers was cut-
ting wooden boards which were used as concrete forms for the
in-walks. Since the boards were sometimes 25 feet long, Reid
maintained that one employee was needed to hold one end
against the saw to ensure that the wood would be cut straight
while the other worker cut the board. Segneri told Reid that by
putting the saw on the ground only one employee was needed.
This was of no help to Reid since he insisted that two people
were needed even if the saw was placed on the ground. It
should be noted that in the summer of 2003, the Respondent
purchased plastic forms, which could be assembled by one
person.
During the summer of 2003, Reid and DeSousa were as-
signed to install an apartment ceiling. They did the preparatory
work and then needed to bring three sheets of four foot by eight
foot sheetrock to the apartment. Reid requested permission to
use the truck to transport the sheetrock to the apartment. Reid
testified that the sheetrock was located 250 to 300 yards from
the apartment, contradicting his pre-trial affidavit that the dis-
tance was 260 to 300 feet. Segneri told them to carry the sheet-
rock to the job. They did so, which consumed 15 to 20 minutes,
whereas according to Reid, they would have needed only five
minutes if they transported the material by truck.
Segneri testified that neither Reid nor DeSousa asked him
for permission to use the truck for this assignment, neverthe-
less, when Segneri asked them why they were not doing the job
one hour after their assignment was given, they said that they
needed a truck to move the sheetrock. He told them to move it
through the back door of the building and through one apart-
ment and out the door at the front of the building rather than
walk around the building’s perimeter through the back door of
one building and out the front door. Reid stated that he could
have used this method, but such a trek would require them to
go through a kitchen.
Reid testified that during the period from late June to July,
2003, he had been refused permission to use the truck, and
accordingly had to walk to get to his assignment. He conceded,
however, that he has used the truck since July to transport
sheetrock and tools.
Reid had been carrying a beeper for after hours and weekend
emergency plumbing work since October, 2001. The employee
carrying the beeper receives eight hours additional pay per
week. It was Reid’s practice to return the beeper to his supervi-
sor if he would be out of town for the weekend, and retrieve it
upon his return to work on Monday. In June, 2003, Reid told
Heil that he would not be available that weekend and would
turn in the beeper the following day, Friday. Segneri, who was
present, told Reid to give him the beeper. Reid obtained the
beeper from his home in Success Village, and returned to the
office and tendered it to Segneri, who asked him to sign a paper
saying that he had voluntarily turned in the beeper. Reid re-
fused to sign, saying he had not voluntarily returned the beeper.
Reid asked Brown to become involved, and during the ensuing
discussion, Reid and Segneri each accused the other of lying.
Segneri testified that one Wednesday, Heil told him that
Reid would not carry the beeper thereafter. Segneri interpreted
that statement to mean that he was surrendering it. He asked
Reid whether it was the fact that he would not carry the beeper
any more, and Reid said “yes.” Segneri asked for the beeper,
and Reid gave it to him. Reid asked for a note that Segneri
asked him to surrender the beeper and Segneri gave him the
note. Reid objected to the term in the note saying that he had
voluntarily surrendered the beeper, saying that he did not vol-
untarily surrender it. Later, Callahan told Segneri that Reid
would not carry the beeper that weekend. Segneri replied that
no one told him that, and that Reid said he was not carrying the
beeper. Callahan told Segneri that he resolved the misunder-
standing, and that when Reid came to work he should be given
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1108
the beeper, but he would not be carrying it that weekend. The
following day, Segneri returned the beeper to Reid. Reid turned
it in on Friday, and picked it up the following Monday, and
carried it thereafter.
Reid testified that following this incident, Segneri began
watching his work more closely than he was used to prior to
that time. Reid noted that each time he was assigned to a job,
Segneri visited his work area 15 to 20 times per day. Reid
stated that occasionally, Segneri would drive up to the work
site and sit in his truck for two to four minutes and then leave,
followed by another visit 10 to 20 minutes later. Segneri did
not explain his reason for watching him. Reid stated that this
surveillance of his work continued until about September.
Segneri denied checking on Reid 15 to 20 times per day, es-
timating that he did so perhaps five to six times per day, which
was the number of times he checked on all the other workers.
i. Analysis
I cannot find that the assignments of work to Reid or the way
in which he was supervised support a violation of the Act. The
landscaping work was not shown to be onerous, and although
usually performed by the grounds crew, there is no showing
that such work is not the type of work which could be per-
formed by Reid. In addition, the denial by the Respondent of
the use of two workers to perform the plumbing jobs which
could easily be done by one is not unreasonable. This must be
contrasted, of course, with the situation discussed above where
Brown worked on the in-walks with only one other person, and
not the usual four man crew. Such work was extremely onerous
and arduous, in comparison with Reid’s assistant simply being
stationed in the basement, opening and closing a valve while he
made the repair.
Similarly, I cannot find that the denial of a truck to move
sheetrock in the various instances described above constituted
harassment. The material was to be moved only short distances,
and as described in the testimony would have been more easily
and quickly moved by hand. The incident with the beeper ap-
pears to be a misunderstanding between Segneri, Heil and Reid
which Callahan explained and resolved. Finally, I credit
Segneri’s testimony that he checked on Reid’s work in a simi-
lar manner that he checked on other employees’ work.
I will accordingly recommend dismissal of this allegation.
ii. The Suspension of Reid on July 24, 2003
On July 24, 2003, Reid was assigned to replace a ceiling in
an apartment. The first step in such a task is to measure the
ceiling so that furring strips could be secured to the existing
ceiling. Reid told Segneri that he could not measure the ceiling
without a helper since it was 25 to 30 feet long. Segneri sug-
gested that he measure the floor, which should have the same
dimensions as the ceiling. Reid said such a method of measur-
ing would not be accurate because of a 1” or 1.5” difference
between the floor and ceiling, and that the baseboard moulding
and furniture would make floor measuring inaccurate.
Segneri reassigned the job to another worker, and asked Reid
to replace a screen door, which he did. Reid was then assigned
to break up a sidewalk and prepare it for concrete forms. Reid
went to the garage for his equipment and realized that he did
not have his back brace on. He reported to Segneri that he did
not have a back brace or safety glasses. Segneri gave him a
“worn, used” brace. Reid refused to wear it because of its poor
condition. Segneri said that he had no more braces and that he
should wear it or go home. At 9:00 a.m., Reid reported this
incident to Brown, and then went home. He was paid until noon
that day. Thereafter, Segneri gave Reid safety glasses, and a
new back brace, which Reid used to perform heavy work.
According to Reid, the following day, July 25, his time card
was not in the rack and he spoke to Segneri, who asked him
what type of work he could do without a back brace or safety
glasses. Reid told him that was a “stupid question.” Segneri
told him to leave his office and spray weeds. Reid protested
that he did not know how to mix the weed killer. Segneri told
him to read the bottle, and Reid left to prepare the mixture.
Reid testified that Segneri approached him one minute later
and asked him if he found the poison yet. Reid made a remark
concerning the use of the term “poison” and Segneri told him to
“shut your mouth and do your job,” Reid answered that he was
doing just that, reading the instructions on the weed killer bot-
tle. Segneri again told him to shut his mouth and do his job.
Reid then challenged him, saying, “why don’t you come and
shut my mouth?” Segneri approached him, standing one foot
away and shouted at him. Reid turned to walk away, and
Segneri blocked his way, saying he was insubordinate because
he walked away when Segneri was speaking to him.
A short time later, Reid told Brown about this confrontation,
and the two sat down and prepared some notes. Segneri ap-
proached the area where the two men were speaking, and di-
rected Reid to pick up garbage in a specific area. Some time
later, Segneri gave him a different assignment—to pick up
garbage in another area—before he had an opportunity to per-
form the first job. Brown asked why Reid was being assigned
that type of job. Segneri replied that he did not have a back
brace or safety glasses. Reid performed that assignment, and
later that day was supplied with safety glasses and a new back
brace.
Segneri testified that prior to his arrival at the Respondent,
the employees’ practice had been to measure for furring strips
using two workers. Segneri said that the furring strips do not
have to be measured exactly, and therefore only one worker
was required for that task.
Segneri stated that when Reid refused to work without a
back brace, he told Reid that it was Reid’s “prerogative” to
refuse to work without a brace, but that Segneri had no work
for him at that time, and he could go home or work without a
brace, adding that he would order a new brace immediately,
and expected to receive it the following day.
Segneri testified that he then asked Reid whether there was
any work he could perform without a brace and safety glasses,
because “if not you might as well go home.” Segneri could not
recall whether Reid said that his question was stupid, but that
he simply did not answer Segneri, who denied telling Reid that
he was insubordinate. Segneri further denies suspending Reid,
disciplining him, or docking his pay because of insubordina-
tion. Segneri stated that he offered Reid the job of spraying
weed killer on weeds which did not require a brace or safety
glasses. Segneri believes that Reid declined that job, and left
work at 9:15 a.m.
SUCCESS VILLAGE APARTMENTS 1109
Accordingly, the question here is whether a suspension oc-
curred, as alleged in the complaint, and whether the course of
events occurred over two days, as claimed by Reid, or one day,
as alleged by Segneri. According to the General Counsel, the
suspension occurred on July 24 when Segneri announced that
Reid had to wear the brace he offered, or go home. Reid re-
fused to wear a brace he believed was unsuitable, and left. Ac-
cording to Segneri, he offered Reid other jobs that day which
Reid declined, and then left on his own.
I credit Reid’s testimony, and find that on July 24, he was di-
rected to wear the brace or leave since there was no other work
for him. Segneri corroborated that testimony, but added that he
asked Reid whether there were any jobs he could perform, and
then offered Reid the weed-spraying job which he declined. I
find that such an offer occurred the following day, July 25,
after Reid returned from being sent home on July 24. It would
make no sense for Segneri to first tell Reid to go home, and
then offer him other work. As Segneri testified, he told Reid
that he had no other work for him and that Reid should go
home. The fact that Reid followed that instruction establishes
that Segneri gave him that order, and I so find.
Of course the next questions are whether such conduct con-
stitutes a suspension, and if so, whether Reid was suspended in
violation of the Act. On these facts, I find that Reid was sus-
pended on July 24. Segneri told him to wear the old back brace
or go home. Segneri conceded that Reid was justified in refus-
ing to wear the worn, used brace to perform heavy work. How-
ever, it appears that there was work to be performed that day.
First, Segneri admitted that he offered Reid other jobs that day
not requiring a brace, which he refused, thus proving that other
jobs were available. In fact, Segneri assigned Reid to other
work the following day which he performed.
I find that the General Counsel has made a showing that
Reid’s suspension was motivated by his position as a shop
steward. This is made clear in the suspension itself, and the
events which occurred just after the suspension, which demon-
strate the unreasonable antagonism demonstrated by Segneri
toward Reid. Thus, Segneri’s action in suspending Reid al-
though there was work for him to do that day shows that
Segneri dealt with Reid in an unreasonable way which can only
be explained by his animus toward him as the shop steward. In
addition, the day after the suspension, Segneri engaged Reid in
an unprovoked confrontation, and later gave Reid two jobs in
rapid succession, asking him why he had not finished the first.
It is significant to note that Reid was speaking to Brown when
asked that question by Segneri.
I accordingly find and conclude that Reid’s suspension vio-
lated Section 8(a)(1) and (3) of the Act.
E. The Alleged Interference with the Section 7 Rights
of Employees
1. The Alleged Prohibition of Employees from Speaking
with Union Agents
On September 19, 2002, the Respondent hired four employ-
ees for the purpose of renovating its in-walks. The four workers
were hired through a temporary employment service, but paid
by the Respondent and became employees of the Respondent.
Aldrick Hamilton, one of the new workers, testified that a cou-
ple of days after his hire, Callahan told him that if a man shows
up, later identified by other workers as Brown, he should “pay
him no mind”, just continue to work, because Hamilton did not
have to “deal with” Brown since he would not be “qualified for
a long period of work experience.”
Hamilton stated that about three days after his hire, Brown
asked him how he was hired, and whether he had a physical
examination. Hamilton replied that Callahan hired him, and
that he had not had a physical exam. He further testified, incon-
sistently, that he rebuffed Brown’s attempt to talk to him, say-
ing that he was not supposed to speak with him, whereupon
Hamilton walked away.
Brown testified that in mid-September, he was not working
due to an injury, but was still the Union’s shop chair. He visited
the Respondent’s premises and asked Callahan where he ob-
tained the new workers. Callahan replied that they were regular
employees being paid by the Respondent. Brown asked if they
had a physical examination and if they filled out employment
papers. Callahan did not reply. Brown then introduced himself
as the Union’s representative to the four new men, and in re-
sponse to his questions, said that they came from a temporary
employment agency, did not have a physical exam and did not
complete any employment papers. Brown testified, inconsis-
tently, that the men would not talk to him and would not an-
swer his questions. According to Brown, Callahan approached
the group and told the men not to speak to Brown and not to
answer his questions, adding that if Brown had any questions
he could ask Callahan. Brown then asked why should he ask
Callahan any questions since Callahan was a “fucking liar.”
Callahan testified that upon their hire, he told the men that
the Respondent was a union shop and that after 30 days they
would be required to join the Union, and that the Union would
be speaking with them. He stated that on their first day of work,
he was told by all four men that someone was yelling and
screaming at them, and harassing them, asking them how they
were hired and other questions. He did not tell them not to talk
to Brown. Rather, he said that he would speak to Brown and
answer his questions. Shortly thereafter, Brown asked Callahan
which employment agency hired the men and Callahan an-
swered that they were hired through an agency but were on the
Respondent’s full time payroll. Brown called him a liar. Hamil-
ton denied that Callahan mentioned anything about the Union
when he was hired, and also denied that Brown had screamed
or yelled at him, and also denied telling Callahan that Brown
had done those things.
The four men were employed for only one month, and were
laid off for lack of work on October 18. They did not complete
their Union probationary period and did not join the Union.
The complaint alleges that on about September 19, 2002,
Callahan prohibited employees from talking to Union represen-
tatives.
I cannot credit the General Counsel’s witnesses with respect
to this allegation. Their testimony was contradictory and incon-
sistent. Thus, Hamilton variously testified that he spoke to
Brown, answering his questions about the nature of his hire, but
also stated that he refused to speak to Brown and did not do so.
Similarly, Brown testified that the men answered his questions,
but also stated that they refused to speak to him and would not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1110
answer his inquiries. In addition, Hamilton’s honesty is open to
question inasmuch as he admitted that he accepted gasoline for
his car, which was supposed to be used for the Respondent’s
vehicles.
The General Counsel argues that the employees at first were
approached by Brown and answered his questions, and then, as
testified by Brown, when Callahan saw them speaking to him
told them not to speak with Brown. This could explain why the
men first answered Brown’s questions and then refused to do
so. However, this explanation was not corroborated by any
other witness, and contradicts Hamilton’s testimony that Calla-
han first told him not to speak to Brown, but then inexplicably,
he did so.
I accordingly will recommend dismissal of this allegation of
the complaint.
2. The Request for Union Representation
The complaint alleges that on about July 8, 2003, Segneri
denied Netsel’s request to be represented by the Union during
an interview, which Netsel reasonably believed would result in
disciplinary action being taken against him, and that the Re-
spondent conducted the interview anyway.
Netsel worked in the boiler room, where all the windows
were kept in an open position so that the boiler would have
“make-up” air needed to operate. He testified that on June 24,
2003, Segneri told him that all the windows must be closed.
Netsel told him that he would close the windows, but would
leave one door open to provide for make-up air. Segneri
agreed. Later that day, Netsel told Segneri that he closed the
windows and opened the door. Segneri said “ok.” Shortly
thereafter, Segneri told him that he should keep the door closed
when he was not in the boiler room. Thereafter, when Netsel
left the boiler room, he closed the door.
One week later, on July 8, Netsel arrived at work and found
that his time card was not in its usual place. He was told that
Segneri had it. He went to Segneri’s office, and was asked by
Segneri why the boiler room doors were not locked. Netsel
replied that he was told only to close the doors when he was
absent from the boiler room. Later that day, Segneri called
Netsel to his office. Netsel observed that Segneri appeared
“annoyed”, and “agitated” from the morning meeting. Immedi-
ately upon entering, Netsel asked if this was an “official” meet-
ing. Netsel stated that he asked that question because Segneri
appeared “agitated”, and he believed that he would be disci-
plined. Segneri replied that although the meeting was official, it
was just “between” him and Netsel.
At that point, Netsel replied that if the meeting was official,
he wanted union representation. At the hearing, Netsel ex-
plained that, based on Segneri’s tone of voice and body lan-
guage, he believed that that this conversation would be a “con-
tinuation” of the morning discussion, and that he would be
disciplined or would “get in trouble” for not locking the doors.
Netsel did not recall Segneri telling him that he would not be
disciplined. In fact, he was not disciplined for not locking the
boiler room doors.
Segneri did not grant Netsel’s request for Union representa-
tion and proceeded with the interview, stating that he told Net-
sel to lock the doors when he was absent from the boiler room.
Netsel denied being told to lock the doors, insisting that he was
only told to close the doors. At Segneri’s request, Netsel signed
a statement, written by Segneri in his logbook, that he would
lock the boiler room doors when he was absent from that room.
It must be noted that the entry above that statement is Segneri’s
notation: “boiler room unlocked—I specifically told N [Netsel]
to lock when he is not there.”
Netsel stated that he did not believe that he had ever before
been in Segneri’s office for a personal discussion such as this
one, and he had never asked Segneri for union representation
prior to this time.
Segneri testified that he told Netsel to close the windows and
open the doors, but that the doors should be locked when he
was not present in the boiler room. Thereafter, Segneri’s super-
visor, Callahan, told him that the boiler room door was
unlocked. Segneri stated that he called Netsel in, and told him
that he wanted him to be “very clear” that the boiler room door
must be locked in his absence. At hearing, while recounting his
instruction, Segneri bounced his finger on the desk for empha-
sis, but later denied “pounding” his finger when speaking with
Netsel. While giving Netsel this direction, he asked him to sign
a statement that the boiler room doors must be locked, so that
he understood what he just said. When Netsel asked for a union
representative, Segneri told him “you do not need a Union rep-
resentative. This is an instruction to you. I am going to give it
to you in writing. I want to make sure that you understand
clearly what I mean.” Netsel signed the statement. It is signifi-
cant to note that, first, Segneri testified that he told Netsel that
he would not be disciplined, and then testified that he did not
use those words. Accordingly, I cannot credit Segneri that he
told Netsel that no disciplinary action would result from their
meeting.
Netsel has been disciplined before, for time and attendance
violations, and Segneri testified that he has verbally suspended
employees in the presence of their Union representative.
An employee is entitled to union representation, on request,
at an interview if the employee reasonably believes that the
interview will result in disciplinary action. NLRB v J. Weingar-
ten Inc., 420 U.S. 251, 257 (1975). I credit Netsel’s testimony
that Segneri appeared annoyed and agitated at the start of the
interview, and that he believed that the interview would be a
continuation of the earlier discussion, and that he would be
disciplined. Inasmuch as Netsel had been previously called to
Segneri’s office earlier that day and questioned as to why the
doors had not been locked, I find that Netsel could reasonably
conclude that the interview would result in disciplinary action.
This belief was reinforced when Netsel was asked to sign a
document which stated that he understood that the boiler room
doors must be locked. This was, in effect, a demand that Netsel
formally acknowledge his responsibility to lock the doors, and
implied that if Netsel refused to do so he would be disciplined.
Moreover, this was not a typical “run-of-the-mill shop-floor
conversations as, for example, the giving of instructions or
training or needed corrections of work technique.” Weingarten,
above at 257–258. Segneri had allegedly given similar instruc-
tions to Netsel on the shop floor, and as recorded in Segneri’s
log, he had ignored them. Thus, Netsel could reasonably be-
lieve that the interview could result in discipline, particularly
SUCCESS VILLAGE APARTMENTS 1111
since it was conducted in the formality of Segneri’s office and
was accompanied by a demand that he acknowledge, in writing,
his job responsibility. Segneri’s testimony was contradictory as
to whether he told Netsel that disciplinary action was not being
considered. Denying union representation under these circum-
stances and continuing the meeting without the options pro-
vided under Weingarten violated Section 8(a)(1) of the Act.
Lennox Industries Inc., 244 NLRB 607, 608–609 (1979). Fur-
thermore, Segneri was incorrect in informing Netsel that a un-
ion representative was not necessary since he did not intend to
discipline him. Weingarten rights apply equally to “discipli-
nary” and “investigatory” interviews. Baton Rouge Water
Works Co., 246 NLRB 995 (1979).
It is no answer to a Weingarten violation that Segneri had no
intention of imposing discipline. Segneri was obligated to
evaluate the interview from an objective standpoint - whether
Netsel would reasonably believe that discipline might result
from the interview. Consolidated Edison of New York, 323
NLRB 910 (1997). The firmness with which Segneri delivered
his message—at hearing bouncing his finger on the desk for
emphasis, while saying that he wanted “to make sure that you
understand clearly what I mean” supports Netsel’s observation
that Segneri was “agitated” and “annoyed”, and caused Netsel
to reasonably believe that discipline would be imposed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, a labor organization within the meaning of
Section 2(5) of the Act, is the exclusive representative of the
employees in the following appropriate unit within the meaning
of Section 9(a) of the Act:
All production, maintenance and clerical employees, includ-
ing plumbers, electricians, boiler tenders, firemen, general
maintenance, file clerks and bookkeepers, regularly employed
by Respondent, but excluding foremen, managerial employ-
ees, confidential secretaries, and guards and supervisors as de-
fined in the Act.
3. By refusing to negotiate with the Union in face-to-face
bargaining sessions concerning the terms of a renewal collec-
tive-bargaining agreement, the Respondent violated Section
8(a)(5) of the Act.
4. By insisting, as a condition of reaching any collective-
bargaining agreement, that the Union agree to conduct negotia-
tions in separate rooms through an intermediary, the Respon-
dent violated Section 8(a)(5) of the Act.
5. By bargaining to impasse in support of the condition set
forth above in paragraph 4, and implementing its contract pro-
posals, the Respondent violated Section 8(a)(5) of the Act.
6. By unilaterally implementing a restricted phone use pol-
icy, a copier and facsimile use policy, a time card discrepancy
discipline policy, a locker and lock policy, and by reducing
Dennis Brown’s sick leave accrual, without bargaining with
the Union or obtaining the Union’s consent thereto, the Re-
spondent violated Section 8(a)(5) of the Act.
7. By unilaterally subcontracting plumbing repair work on
July 5, 2002; work including starting, checking, cleaning and
servicing the boilers during the period October, 2002 through
November, 2002; and electrical work including changing light
bulbs, without bargaining with the Union or obtaining the Un-
ion’s consent thereto, the Respondent violated Section 8(a)(5)
of the Act.
8. By laying off Dennis Brown on December 7, 2001; by
imposing more onerous working conditions on Brown since
May 1, 2002; by reducing Brown’s sick leave accrual; by issu-
ing a disciplinary warning to Brown on July 3, 2002; by issuing
a writing warning to Brown on July 12, 2002; by refusing to
provide asbestos awareness training to Brown on April 23,
2002; by laying off Brown on October 18, 2002; by harassing
Brown by assigning him work without the use of customary or
adequate equipment which was more physically demanding; by
watching Brown more closely and frequently while he was
working on June 5, 2002; the Respondent violated Section
8(a)(3) of the Act.
9. By issuing a written warning to Raul DeSousa on July 5,
2002, the Respondent violated Section 8(a)(3) of the Act.
10. By suspending Lloyd Reid on July 24, 2002, the Re-
spondent violated Section 8(a)(3) of the Act.
11. By denying the request of John Netsel for union repre-
sentation on July 8, 2003 at an interview when he reasonably
believed that he would be subject to discipline, the Respondent
violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent has unlawfully refused to
bargain with the Union in certain respects, I shall order that it
bargain with the Union in good faith by rescinding its refusal to
bargain in face-to-face sessions with the Union. I shall also
order that it rescind, at the request of the Union, the unilateral
changes it made, including the new policies it instituted, and
the proposals which it implemented following its announce-
ment of an “impasse” in bargaining. The Respondent shall also
be ordered to make whole its employees for any losses they
suffered as a result of these changes. Fresno Bee, 339 NLRB
1214, 1216 (2003); Dynatron/Bondo, 333 NLRB 750, 754
(2001).
The Respondent having discriminatorily laid off Brown on
December 7, 2001 and on October 18, 2002, and suspended
Reid on July 24, 2002, it must make them whole for any loss of
earnings and other benefits, suffered as a result of the layoffs
and suspension, plus interest, as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]