County Window Cleaning Co. - Decision Summary

County Window Cleaning Co. (2-CA-29418, 2-RC-21690; 328 NLRB No. 26) White Plains, NY April 30, 1999. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Giovanni Valencia and Duvan Arteaga because of their activities for Service Employees Local 2; and violated Section 8(a)(1) by coercively interrogating its employees, promising them a pay raise, insurance, and other improvements in order to persuade them to abandon support for Service Employees Local 2, conditioning their employment upon their union support, and soliciting its employees to sign a letter withdrawing their previous authorizations of the Union to represent them.

Relying on A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995), enfd. 134 F.3d 50 (2d Cir. 1997), Members Fox and Liebman ordered the Respondent to reinstate undocumented alien Arteaga upon condition and to make him whole, noting that the Respondent employed Arteaga with knowledge of his undocumented status and that it did not discharge him because of that status, but because of his protected activities. Members Fox and Liebman, in overruling the challenge to Arteaga's ballot, cited NLRB v. Kolkka, 160 LRRM 2810 (9th Cir. 1999), stating: "In this connection, we would not impose new voter eligibility criteria on an undocumented alien who is the victim of an unfair labor practice that results in a loss of employment, as our colleague does in his concurrence. Quite unlike an employee whose community of interest becomes an issue as a result of a lawful layoff, Arteaga would have been otherwise employed at the time of the election but for the unlawful conduct perpetrated against him."

Member Hurtgen, concurring and dissenting in part, found it inappropriate to award backpay to Arteaga for periods when he cannot establish his lawful entitlement to be present and employed in the U.S. In this regard, he adopted the view set forth in former Member Cohen's dissenting opinion in A.P.R.A. And, while he agrees that Arteaga is eligible to vote in the election, he does not "apply a blanket rule permitting unlawfully discharged undocumented aliens to vote." Member Hurtgen wrote: "In my view, the fact that such undocumented aliens retain the status of statutory employee, standing alone, does not dispose of the question of whether they have a community of interest with the unit employees. That determination depends upon whether the undocumented alien has a reasonable expectation of working in the unit." He found that Arteaga has demonstrated a reasonable expectation of obtaining legal status within a reasonable period of time, and he is eligible to vote in the election.

(Members Fox, Liebman, and Hurtgen participated.)

Charge filed by Service Employees Local 2; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York on Nov. 4, 1996. Adm. Law Judge Steven Fish issued his decision July 16, 1997.