# Petition for Writ of Certiorari — Cassis Management Corp. v. National Labor Relations Board

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1005%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 983

## Text

\ Supreme Court, U.S.
‘ FIL&D

ma 98 609 aCT9 1998

GFHGE OF THE CLERK
In The

Supreme Court of the United States

fe
October Term, 1998

CASSIS MANAGEMENT CORPORATION,
Petitioner,
VS.
NATIONAL LABOR RELATIONS BOARD,
Respondent.

On Petition for Writ of Certiorari to the
United States Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT M. ZISKIN
Attorney for Petitioner
6268 Jericho Turnpike
Suite 12A
Commack, New York 11725
(516) 462-1417

148227 @ Counsel Press LLC
FORMERLY LUTZ APPELLATE SERVICES
(800) 274-3321 + (800) 359-6859

i

QUESTIONS PRESENTED

1. Did the National Labor Relations Board (herein the
“NLRB”) err when it found Donald Hoy to be an employee
rather than a supervisor and failed to interpret and apply Section
2(11) of the National Labor Relations Act in the disjunctive?

2. Did the United States Court of Appeals for the Second
Circuit err in failing to overturn the decision of the NLRB when
it found the issue of Hoy’s supervisory status “presented a close
question” and further found that ‘some factors’ militated in
favor of finding him a supervisor .. .” and still further found
“there was evidence to support an inference in either direction”?

ii
PARTIES TO THE PROCEEDING

The parties to the proceeding are the Petitioner Cassis
Management Corp. and the Respondent NLRB. Local 32E,
Service Employees International Union AFL-CIO (herein
“Local 32E”) did not intervene in the proceedings before the
United States Court of Appeals for the Second Circuit (herein
the “Court of Appeals”).

The Petitioner is wholly owned by the Cassis Family
Limited Partnership, a New York limited partnership made up
of only members of the Cassis family. The petitioner has no
nonwholly owned subsidiaries.

iii

TABLE OF CONTENTS

Page
I I i ee Ft i
PORES ees pode rey. ii
SRR apa eg ae a reper iii
ree ae iv
I i a i a l
Statement of Jurisdiction ........................ l
Statutory Provision Involved ..................... l
eV ceeeeee. 2
Facts Concerning Donald Hoy’s Employment Status . 2
Reasons for Granting the Writ .................... +

I. The Petition Should Be Granted Because There

Was Substantial Evidence To Find Hoy Was A
I on, bo cena bebe s cous 4

Il. The Petition Should Be Granted Because The

NLRB Has Manipulated And Failed To

Consistently Interpret Section 2(11) In The
NS Ss CS whi kara 'siars « gos bes 6

SAGE SOLE ENR 1S ee ing SEER el 9

iv

TABLE OF CITED AUTHORITIES

Cases:

Amalgamated Local Union 355 v. NLRB, 482 F.2d 996
COP GI, BPEE a aos cnn shoe eden sed ueeineaies

Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347
a Re SR Rates Sr SOE Ey:

N.L.R.B. v. Baby Watson Cheesecake, Inc., Lexis 3027,
1992 WL58825, 148 LLRM 2898 (2nd Cir. 1994) .

NLRB v. Meenan Oil Co., 139 F.3d 311 ...........

NLRB v. Metropolitan Life Insurance, 405 F. 2d 1169
CSG BE 60h snd eedeuasecesageeiers ee

N.L.R.B. v. Monroe Tube Co., 545 F.2d 1320 (2nd Cir.
PIPE ee ec chen chu sds cede sd vie cage ee
SEE ss 553 vb dene heaven eee

Spentonbush/Redstar Company v. NLRB, 106 F. 3d 484
CT BGT 8 oo es eis wn a hee ro eo aa

Universal Camera Corp., 340 U.S. 464, 715 S. Ct. 456
+ RRR See ESR rey re ap Meaty at

Page

Table of Cited Authorities

Page
Statutes:
ee gh Ee Beit | Seppe oy Paki nee ations |
SP es OB EPMEEED sk hdd oe es Cia a ee
APPENDIX
Appendix A — Summary Order Of The United States
Court Of Appeals For The Second Circuit Filed April
ne BEDS ie ee eee bs pale eid ches tah sie ren la
Appendix B — Supplemental Decision And Order Date
WOE Fe SUES oie von bc ebankins cite Sa
Appendix C — Decision And Order Dated April 14,
gb ORAS Ta Derg PM aA cea et Sy eraser aa 19a
Appendix D — Decision And Order Before The National
Labor Relations Board, Division Of Judges, New York
Branch Office Dated September 30, 1996 ........ 42a
Appendix E — Order Of The United States Court Of
Appeals For The Second Circuit Denying Petition For
Rehearing Filed July 21, 1998 .................. 67a

were ail ae. TRE a teno 3 me a ee

l

Petitioner Cassis Management Corp. (herein “Cassis”),
respectfully requests that a writ of certiorari be issued to review
the decision of the National Labor Relations Board and the
judgment of the United States Court of Appeals for the Second
Circuit.

OPINIONS BELOW

The decisions of the National Labor Relations Board appear
in Appendices B, C and D. The Summary Order of the United
States Court of Appeals for the Second Circuit is not published,
but can be found at 1998 WL 386197 (App. A).

STATEMENT OF JURISDICTION

The Summary Order of the United States Court of Appeals
for the Second Circuit was entered on April 22, 1998. The Court
of Appeals denied a timely petition for rehearing on July 21,
1998. (App. E.) The jurisdiction of this court is involved
pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Section 2(11) of the National Labor Relations Act, as
amended, 29 U.S.C. § 153(11) defines a “supervisor” as:

Any individual having authority, in the interest of
the Employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward or
discipline other employees, or reasonably to direct
them, or to adjust their grievances, or effectively
recommend such action, if in connection with the
foregoing, the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment.

2

STATEMENT OF THE CASE

The fundamental questions in this case are whether Donald
Hoy is a supervisor or an employee within the meaning of the
Act and more specifically, whether the NLRB correctly
interpreted and applied Section 2(11) of the Act. Additionally,
a question exists as to whether the Second Circuit correctly
concluded there was substantial evidence to support the finding
Hoy was an employee rather than a statutory supervisor
notwithstanding the court’s finding of “factors militating in
favor of finding him to be a supervisor... .”

FACTS CONCERNING DONALD HOY’S
EMPLOYMENT STATUS

Cassis owns and manages the Mountainview Apartments
located in Dobbs Ferry, New York. The Mountainview
Apartments are situated on 15 acres of land and compromise
fourteen buildings of which there are a total of 262 apartments.

Commencing in or about 1993 and continuing forward,
Donald Hoy began serving the complex as a superintendent.

From in or about 1993, in his capacity as superintendent,
Hoy, who was provided with an on-premises apartment, was
not required to pay any rent, although the value of such
apartment was approximately $750 a month. No other employee
received such a benefit. In addition to being provided with a
rent-free apartment and a Jeep, Hoy received a gross weekly
salary of $100 and an additional weekly cash sum of $350. In
contrast, maintenance men and porters received pay rates of
$8.00 per hour.

In his capacity as superintendent, Hoy would meet each
morning at 8:00 a.m. with the complex’s maintenance men and

Feat cathy Dhaene eh

PGR ee a Se Sen Oe a

3

porters and issue their work assignments for the day. Hoy,
would, on a daily basis, check upon the work of the maintenance
men and porters, resolve problems concerning job duties and,
when necessary, assign employees to assist their co-employees
in the performance of ticiz duties. Hoy worked from 8:00 a.m.
to 5:00 p.m., Monday through Friday and was on call 24 hours
a day.

As part of his duties as superintendent, Hoy regularly
exercised independent discretion by interviewing prospective
candidates for employment for the positions of maintenance
men and porter, reviewing their employment applications with
respect to work history and prior experience and weeding out
those candidates who he concluded were not suitable for the
job.

Having weeded out undesirable candidates, Hoy would
recommend to Complex General Manager George Cassis the
candidate to be selected to the position. In addition, Hoy would
verify the employment references provided by the prospective
candidates.

Hoy acknowledged that as superintendent he conducted
employment interviews with no less than five job candidates.
He specifically admitted on direct examination that he was “. . .
the supervisor of the property.”

Hoy acknowledged that he not only interviewed employee
Bunch, but hired him, reviewed the duties to be performed and
negotiated Bunch’s starting salary. In this connection, Hoy as
superintendent recommended wage increases to be paid to
maintenance men and porters.

Employees Louis Cioffi, Charles Allien and Dean
Cassametis testified that they took daily instructions from Hoy

4

as to the work to be performed and that Hoy would give them
specific tasks to perform in addition to their routine duties.

In connection with Hoy’s supervisory duties, maintenance
men and porters would directly notify him when they intended
to be absent due to illness or for other reasons. V hen Hoy went
on vacation on or about March 29, 1996, he left a detailed
schedule cf jobs to be performed by the maintenance men and
porters and left same with the complex office manager Kathy
Shea.

REASONS FOR GRANTING THE WRIT
I.

THE PETITION SHOULD BE GRANTED BECAUSE
THERE WAS SUBSTANTIAL EVIDENCE TO FIND HOY
WAS A STATUTORY SUPERVISOR.

In its Summary Order (App. A at 3a) the Second Circuit
held that the

matter of whether Hoy was a supervisor within the
meaning of Section 29 U.S.C. § 152(11) presented
a close question. Some factors militated in favor of
finding him a supervisor, and some militated against
such a finding.

The court then proceeded to conclude that “there was evidence
to support an inference in either direction” as to whether Hoy
was Or was not a supervisor. (App. A at 4a).

Given the Second Circuit’s finding that there was evidence

to support an inference in either direction as to Hoy’s
supervisory status, it is urged that the court was incorrect tn

|

5

finding that there was substantial evidence to support the
NLRB’s decision.

The United States Supreme Court in Universal Camera
Corp., 340 U.S. 464, 715 S. Ct. 456 (1951) held:

Congress has merely made it clear that a reviewing
court is not barred from setting aside a Board
decision when it cannot conscientiously find that
the evidence supporting that decision is substantial,
when viewed in the light that the record in its
entirety furnishes, including the body of evidence
opposed to the Board’s view.

Significantly, evidence which is found to support an
inference “in either direction” would not appear to satisfy the
definition of “substantial evidence.” Likewise, evidence which
is found to support an inference in either direction and which
includes some factors that militate in favor of finding an
individual to be a supervisor and some evidence militating
against such a finding does not satisfy the Universal Camera,
supra, test of finding

that the evidence supporting the NLRB’s decision
is substantial, when viewed in the light that the
record in its entirety furnishes, including the body
of evidence oppesed to the Board’s view.

In Schnuck Markets, Inc. v. N.L.R.B., 961 F.2d 700 (8th
Cir. 1992), the Eighth Circuit observed as follows:

Meeting the substantial evidence standard ...
requires more than a parsing of the record for
evidence supporting the Board’s decision. We also
must consider evidence in the record that fairly
detracts from the weight of the decision.

Pinar eee eee ee

6

Significantly, the Second Circuit failed to take into account
the evidence which detracted from the NLRB’s decision to the
effect that Hoy was an employee rather than a supervisor.

Given the Second Circuit’s conclusion that there was
evidence which supported an inference in either direction as to
Hoy’s supervisory status and given the proposition that Section
2(11) should be read in the disjunctive, the Second Circuit
should have reached its own conclusions as to whether Hoy |
was a supervisor and reversed the NLRB’s decision.

Il.

THE PETITION SHOULD BE GRANTED BECAUSE
THE NLRB HAS MANIPULATED AND FAILED TO
CONSISTENTLY INTERPRET SECTION 2(11) IN THE
DISJUNCTIVE.

In 1994 the United States Court of Appeals for the Second
Circuit in N.L.R.B. v. Baby Watson Cheesecake, Inc., Lexis
3027, 1992 WL58825, 148 LLRM 2898, 2903 (2nd Cir. 1994)
held that in a assessing an “individual’s status, one must look
to his actual job duties and not simply to his job title or
classification.”

i ai al ee ee a ee Oe Re a a ee er ere A ea

In considering issues concerning supervisory status, the
Second Circuit in N.L.R.B. v. Baby Watson Cheesecake, Inc.,
supra, specifically concluded that the definition of a supervisor
is “intended to be read in the disjunctive so that, an employee
who meets any of the criteria set forth in this section is deemed
to be a supervisor within the meaning of the Act.” (See in accord
N.L.R.B. v. Monroe Tube Co., 545 F.2d 1320, 1324 (2nd Cir.
1976); Amalgamated Local Union 355 v. NLRB, 482 F.2d 996, :
999 (2nd Cir. 1973); NLRB v. Metropolitan Life Insurance, 405
F. 2d 1169, 1173 (2nd Cir. 1968); Maine Yankee Atomic Power
Co. v. NLRB, 624 F.2d 347, 360 (1st Cir. 1980).

CO aN NO Mees Set Te oe

EE

7

The Second Circuit in Spentonbush/Redstar Company y.
NLRB, 106 F. 3d 484 (2nd Cir. 1997) observed that the NLRB
all too often rejects evidence which does not support its
preferred result and went on to point out that the NLRB’s
“manipulation” of the definition of supervisor had reduced the
deference that would otherwise be accorded to its holdings.

In Spentorbush/Redstar, supra, Circuit Judge Van
Graafeiland observed as follows:

The deference owed by the judiciary to the
decisions of the Board has been stated on numerous
occasions and need not now be reiterated here.
However, the Board’s biased mishandling of cases
involving supervisors increasingly has called into
question our obeisance to the Board’s decisions in
this area.

In March of 1998, the Second Circuit again had occasion
in NLRB v. Meenan Oil Co., 139 F.3d 311 to review the NLRB’s
application of Section 2(1 1) of the Act. In this decision, the
Second Circuit concluded that it was appropriate to apply a
“more probing” standard of review. Specifically, the Second
Circuit held as follows:

If (1) an employee possesses at least one of the listed
kinds of authority and (2) the exercise of that power
involves the use of independent judgment which
goes beyond the routine and clerical, the employee
qualifies as a supervisor.

Given the fact that the Second Circuit concluded that there
were factors which militated in favor of finding Hoy to be a
supervisor and based upon the legal proposition that Section
2(11) of the Act is to be read in the disjunctive, the Second

a a a eta area

8

Circuit in accord with the decision in Universal Camera Corp.
v. NLRB, supra, should have found that Hoy was a supervisor
and reversed the decision of the NLRB.

In the case before this court, there is no substantial evidence
to support the NLRB’s determination that Donald Hoy was an
employee rather than a supervisor. To the contrary, there is
substantial evidence in the record to establish as concluded by
both Administrative Law Judge Green (App. D at 48a-51a) and
by dissenting NLRB member Higgins that Hoy was a supervisor
within the meaning of the Act. (App. C at 39a).

Upon a review of the record, it is respectfully urged that :
NLRB Chairman Gould and member Fox chose to disregard |
the findings and conclusions of Administrative Law Judge
Green as to Hoy’s supervisor status and in fact mischaracterized ,
and misstated the record in order to reach the conclusion that
Hoy was not a supervisor. (App. C at 23a).

In view of the fact that Section 2(11) of the Act is intended
to be read in the disjunctive and upon reviewing Hoy’s various
duties, it is clear that Hoy had authority to hire and/or effectively
recommend hiring, to transfer employees, to assign employees
and to responsibly direct employees in the course of their duties.
In addition, the record indicates that Hoy had authority to adjust :
grievances and/or to effectively recommend action to be taken 3
with respect to such grievances. ,

Significantly, the record clearly established that Hoy was
given independent authority to interview candidates for
employment and to weed out those candidates whom he
concluded did not have the qualifications or other attributes to
successfully fill the positions involved. (App. D at 50a and App.
C at 39a).

9

Clearly, when one considers Hoy’s duties and
responsibilities, one can only conclude, as did the
Administrative Law Judge and dissenting NLRB member
Higgins, that Hoy was a “supervisor” and exercised his authority
not merely in a routine or clerical nature but by means of the
use of independent judgment.

CONCLUSION

This case presents questions of exceptional and ongoing
importance. Specifically, this case presents the question of
whether the NLRB is obligated to consider and apply Section
2(11) of the Act in the disjunctive when determining the
supervisory status of an individual. Additionally, by granting
this petition for certiorari, this court will have the opportunity
of reiterating and amplifying upon the role of Courts of Appeal
in determining whether substantial evidence exists to support
NLRB factual findings and conclusions of law.

Accordingly, Petitioner respectfully requests that the
petition for writ of certiorari be granted.

Respectfully submitted,

ROBERT M. ZISKIN
Attorney for Petitioner
6268 Jericho Turnpike
Suite 12A

Commack, New York 11725
(516) 462-1417

APPENDIX

la

APPENDIX A — SUMMARY ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT FILED APRIL 22, 1998

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED
IN THE FEDERAL REPORTER AND MAY NOT BE
CITED AS PRECEDENTIAL AUTHORITY TO THIS OR
ANY OTHER COURT, BUT MAY BE CALLED TO THE
ATTENTION OF THIS OR ANY OTHER COURT IN A
SUBSEQUENT STAGE OF THIS CASE, IN A RELATED
CASE, OR IN ANY CASE FOR PURPOSES OF
COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated Term of the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse, Foley
Square, in the City of New York, on the Twenty-Second day
of April, one thousand nine hundred and ninety-eight.

Present! HONORABLE AMALYA L. KEARSE,
HONORABLE ROGER J. MINER,
Circuit Judges,

HONORABLE CAROL BAGLEY AMON,
District Judge*.

* Honorable Carol Bagley Amon, of the United States District court
for the Eastern District of New York sitting by designation.

2a

Appendix A

No. 97-4125
-4355

CASSIS MANAGEMENT CORPORATION,
Petitioner-Cross-Respondent,
a
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross- Petitioner.

Appearing for Petitioner —
Cross-Respondent: Robert M. Ziskin, Commack, N.Y.

Appearing for Respondent —
Cross-Petitioner: Ana L. Avendafio, NLRB,
Washington, D.C.

Petition for review of orders of the National Labor Relations
Board; cross-petition by National Labor Relations Board for
enforcement of its orders.

This cause came on to be heard on the transcript of record
from the National Labor Relations Board and was argued by
counsel.

ON CONSIDERATION WHEREOF, it is now hereby
ordered, adjudged, and decreed that the orders of the National
Labor Relations Board be, and they hereby are enforced, and
that the petition for review be and hereby is denied.

3a

Appendix A

Petitioner-Cross-Respondent Cassis Management
Corporation (“Cassis”) petitions for review of two orders of the
Nationa! Labor Relations Board (the “Board”), 323 NLRB No.
68 dated April 14, 1997, 324 NLRB No. 55 dated August 29,
1997, requiring it to, inter alia, recognize and bargain with a
union and reinstate several terminated employees. The Board
cross-petitions for enforcement of its orders. Cassis’s principal
contention is that the Board erred in finding that its employee
Donald Hoy was not a supervisor within the meaning of 29
U.S.C. § 152(11). It also contends that the Board erred in
determining that another employee was an employee rather than
an independent contractor and that certain other terminated
employees should be reinstated. We reject all of Cassis’s
contentions.

The Board's findings of fact are “conclusive” on appeal, so
long as they are supported by substantial evidence on the basis
of the record considered as a whole. See 29 U.S.C. § 160(f)
(1994): Universal Camera Corp. v. NLRB, 340 U.S. 474,
487-88 (1951). Substantial evidence “is more than a mere
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see, e.g.,
Holo-Krome Co. v. NLRB, 947 F.2d 588. 592 (2d Cir. 1991)
Although we consider both the evidence that supports the
Board's decision and the evidence that Suggests a contrary result,
see, e.g., Universal Camera Corp. v. NLRB, 340 U.S. at 487-
88, this Court may not “displace the Board’s choice between
two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been
before it de novo,” id. at 488.

In the present case, the matter of whether Hoy was a
supervisor within the meaning of 29 U.S.C. § 152 (11) presented

4a

Appendix A

a close question. Some factors militated in favor of finding
him a supervisor, and some militated against such a finding.
Given that there was evidence to support an inference in either
direction, we conclude that the Board's finding that Hoy was
not a supervisor was supported by substantial evidence and
may not be overturned.

We reject Cassis’s other contentions substantially for the
reasons stated in the Board’s Decision and Order dated April
14, 1997.

We have considered all of Cassis’s contentions in support
of its petition for review and have found in them no basis for
overturning the orders of the Board. The petition for review is
denied; the petition for enforcement is granted.

FOR THE COURT:
GEORGE LANGE III, Clerk
by: s/ Lucille Carr

Sa

APPENDIX B — SUPPLEMENTAL DECISION AND
ORDER DATE MAY 7, 1997

Cassis Management Corporation and Service Employees
International Union, Local 32E, AFL-CIO, Case 2-CA-
29311

August 29, 1997
SUPPLEMENTAL DECISION AND ORDER

BY CHAIRMAN GOULD AND
MEMBERS FOX AND HIGGINS

On September 30, 1996, Administrative Law Judge
Raymond P. Green issued a decision in this case finding that
the Respondent discharged the entire bargaining unit, including
Charles W. Morrow, in violation of Section 8(a)(3) and (1) of
the Act, that Donald Hoy was a supervisor within the meaning
of Section 2(11) of the Act. that the authorization cards Hoy
Solicited were invalid, and that there was no basis for a
bargaining order under the principles enunciated in NLRB y.
Gissel Packing Co., 395 U.S. 575 (1969). On April 14, 1997,
The National Labor Relations Board issued a decision adopting
the judge's findings concerning the unlawful discharge of the
bargaining unit employees, but the Board reversed the judge’s
findings concerning Hoy’s Supervisory status, the validity of
the authorization cards, and the appropriateness of a bargaining
order.' Thus, the Board found that Hoy was not a Statutory
supervisor, that he should be offered reinstatement and backpay
along with the rest of the bargaining unit, that the authorization

1. 323 NLRB No. 68 (Chairman Gould and Member Fox; Member
Higgins dissenting).

neers Sate tant ene ts

6a

Appendix B

cards he solicited were valid, and that the cards demonstrated
that a majority of the employees in the unit wished to be
represented by the Union. The Board further found that, because
of the Respondent’s egregious unfair labor practices, a
bargaining order was presumptively appropriate.

The National Labor Relations Board, however, did not
order the Respondent to bargain with the Union because of
the need to resolve a conflict in the hearing testimony as to
facts concerning the Respondent’s allegation that union officials
had engaged in picket line misconduct. The Respondent claims
that the alleged misconduct precludes the issuance of a
bargaining order under the doctrine set forth by the Board in
Laura Modes Co., 144 NLRB 1592 (1963). The board
remanded the matter to the judge for the purpose of making
credibility resolutions concerning the conflicting testimony,
and findings of fact and conclusions of law concerning the
Respondent’s defense based on Laura Modes Co.

On May 7, 1997, the judge issued his supplemental
decision. The Respondent filed exceptions and a supporting
brief, and the General Counsel filed and answering brief.

The Board has considered the supplemental decision and
the record in light of the exceptions and briefs and has decided
to affirm the judge’s rulings, findings,? and conclusions set
forth in the supplemental decision, and to issue the Order set

2. The Respondent has excepted to some of the judge’s credibility
findings. The Board's established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance 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.

7a

Appendix B

forth below,’ which supersedes the order previously entered
in this proceeding.‘

3. On May 12, 1997, the Respondent filed a motion for
reconsideration and to reopen the record, and the General Counsel
subsequently filed a reply. In its motion for reconsideration, the
Respondent contends, among other things, that in reaching its conclusion
that Hoy was not a statutory supervisor, th: Board erroneously found on
p. 2 of its decision that “Hoy and the other unit employees met with
(Property Manager] Shea daily in the office at 8 a.m. and discussed the
work that needed to be done.” The Respondent asserts that the Board’s
finding is inconsistent with Shea’s testimony that she did not report to
work until 9 a.m.

Even assuming arguendo that Shea was not present for the 8 a.m.
meetings, the Board would still reach the same result. The question
whether Shea was present at the morning meetings is immaterial because
the Board found that Hoy’s role at those meetings was not indicative of
supervisory status. Thus, the Board found that at the daily meetings
Hoy merely informed “his coworkers if something had occurred during
the night that they were required to deal with before they returned to
their normal routine,” that “no independent judgment was required to
determine what problems constituted emergencies,” and that “Hoy’s
announcements of emergency repairs cannot be considered evidence of
supervisory authority.” Cassis, supra, slip. op. 3.

In all other respects, the Respondents’s motion for reconsideration
is denied as raising nothing not previously considered and as lacking in
merit.

In its motion to reopen the record, the Respondent asserts that
Donald Hoy is deceased, and therefore a reinstatement order as to Hoy is
not appropriate. The General Counsel acknowledges that Hoy is
deceased, and therefore submits that there is no need to reopen the
record on this matter. Accordingly, we shall modify the Order by deleting
Hoy’s name from the list of employees to be reinstated and by providing

that his estate shall be made whole.
(Cont'd)

8a

Appendix B

(Cont'd)

The Respondent also asserts that the record must be reopened to
demonstrate changed circumstances affecting the reinstatement of the
discriminatees. First, the Respondent contends that it should be permitted
to offer evidence that certain of the discriminatees are not entitled to
reinstatement, because they were unable to perform their work in a
satisfactory manner. We find that this issue either was, or should have
been, litigated by the Respondent during the underlying unfair labor
practice hearing. In addition, we find that the Respondent has failed to
demonstrate that the evidence it seeks to adduce on this matter is either
newly discovered since the close of the hearing or was previously
unavailable. See sec. 102.48(a)(1) of the Board’s Rules. Second, the
Respondent submits that it should be given the opportunity to introduce
evidence that since the April 1996 discharges of the discriminatees, it
changed the nature of its business operation by contracting out to another
company the maintenance work that the discriminatees performed. The
mere fact that the Respondent may have subcontracted out his work
does not relive the Respondent of its obligation to reinstate unlawfully
discharged employees. See Stalwart Assn., 310 NLRB 1046, 1055
(1993); Central Air Corp., 216 NLRB 204, 214 (1975). Rather, the
Respondent must prove that it would have subcontracted the work in
question even if the discriminatees had not been terminated, and during
the compliance stage of this proceeding the Respondent will have an
opportunity to present evidence bearing on that issue. See Ellis & Watts
Products, 143 NLRB 1269, 1271 (1963), enfd. 344 F.2d 67 (6th Cir.
1965). Accordingly, we deny the Respondent's motion to reopen the
record. -

4. Member Higgins joins the majority in affirming the judge’s
finding that there is not credible evidence of any picket line misconduct,
and in denying the Respondent's motion for reconsideration and to
reopen the record. However, he continues to adhere to his earlier
dissenting view of this case. Thus Member Higgins finds that Donald
Hoy was a supervisor and that union authorization cards cannot be used
to support a bargaining order. See Cassis Management Corp., 323 NLRB
No. 68 (April 14, 1997), Member Higgins dissenting.

9a

Appendix B

In Laura Modes, the Board held that where a union
evidences total disinterest in enforcing its rights through the
peaceful legal process provided by the Act and instead resorts
t6 violence, the Board will refuse to issue a bargaining order,
even though the employer has violated the Act. Here, the judge
found, based on his credibility findings, that no agent of the
Union or prounion employee engaged in any picket line
misconduct, Specifically, the judge discredited the testimony
of the Respondent's witnesses and found that no threats were
made by union officials or agents to kill or physically harm
employees Reyes and Jusino, who had crossed the Union’s
picket line in order to perform work for the Respondent. As
Stated in footnote 2, supra, there is no basis for reversing the
judge’s credibility resolutions. Therefore, we find that there is
nothing to preclude a bargaining order under the doctrine set
forth in Laura Modes, supra.*

Accordingly, based on the judge's credibility findings in
his supplemental decision and our own findings in our prior
decision summarized above, we conclude that Respondent
violated Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Union on April 4, 1996, and
we shall order the Respondent to bargain with the Union as
the exclusive representative of the employees in the bargaining
unit.

5. The Respondent excepts to the judge's failure to find that Union
Official Formisano threatened to suspend employee Reyes’ pension
checks and that thereafter Reyes’ pension payments were, in fact,
suspended. We find not merit in this exception. Any such alleged threats
are beyond the scope of the Board's remand, which was for the express
purpose of consideration of alleged death threats directed at Reyes or
other employees. In any event the record indicates that any cessation of
Reyes’ pension payments that may have occurred were in accord with
the terms of the Union's pension plan.

10a

Appendix B
ORDER

The National Labor Relations Board orders that the
Respondent, Cassis Management Corporation, Dobbs Ferry,
New York, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Discharging or otherwise discriminating against any
employee for supporting Service Employees International
Union, Local 32E, AFL-CIO or any other union.

(b) Refusing to recognize and bargain with the Union as
the exclusive collective-bargaining representative of its
employees in the following appropriate unit:

All full-time and regular part-time and regular part-
time cleaning, painting, and maintenance workers
employed by the Employer at its facility located at
200 Beacon Hill Road, Dobbs Ferry, New York,
excluding all managers and supervisors as defined
in the Act.

(c) In any other manner interfering with, resiraining, or
coercing employees in the exercise of the rights ,uaranteed
them by Section 7 of the Act.

2. Take the following affirmative action necessary to
effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer
Charles Allien, Louis Cioffi, Nicholas Michel, Joe Elias Moody

Py

lla

Appendix B

J:., and Charles W. Morrow, full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.

(b) Make Charles Allien, Louis Cioffi, Nicholas Michel,
Joe Elias Moody, Jr., Charles W. Morrow, and the estate of
Donald Hoy, 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.

(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of Charles
Allien, Louis Cioffi, Nicholas Michel, Joe Elias Moody Jr.,
and Charles W. Morrow, and within 3 days thereafter notify
them in writing that this has been done and that the discharges
will not be used against them in any way.

(d) On request, recognize and bargain with the Union as
the exclusive collective-bargaining representative of its
employees in the appropriate unit concerning wages, hours,
and other terms and conditions of employment and, if an
understanding is reached, embody the understanding in a
signed agreement.

(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment records,
timecards, personnel records and reports and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.

(f) Within 14 days after service by the Region, post at its
Dobbs Ferry, New York facility copies of the attached notice

12a
Appendix B

marked “Appendix.” ® Copies of the notice, on forms provided by
the Regional Director for Region 2, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during
the pendency of these proceedings the Respondent has gone out
of business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees
employed by the Respondent at any time since April 11, 1996.

(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps the
Respondent has taken to comply.

Dated, Washington, D.C. August 29, 1997

William B. Gould IV, Chairman

Sarah M. Fox, Member

John E. Higgins, Jr., Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

6. 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
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”

13a
Appendix B
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 violated
the National Labor Relations Act and has ordered us to post
and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize

To form, join, or assist any union

To bargain collectively through representatives
of their own choice *

To act together for other mutual aid or protection

To choose not to engage in any of these
protected concerted activities.

WE WILL NOT discharge or otherwise discriminate
against any employee for Supporting Service Employees
International Union, Local 32E, AFL-CIO or any other union.

WE WILL NOT refuse to recogni.. and bargain with
Service Employmees International Union, Local 32E, AFL-CIO
as the exclusive collective-bargaining representative of
employees in the following appropriate unit:

l4a

Appendix B

All full-time and regular part-time cleaning painting,
and maintenance workers employed at our facility
at 200 Beacon Hill Road, Dobbs Ferry, New York,
excluding all managers and supervisors as defined
in the Act.

WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s
Order, offer Charles Allien, Louis Cioffi, Nicholas Michel, Joe
Elias Moody Jr., and Charles W. Morrow, full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.

WE WILL make Charles Allien, Louis Cioffi, Nicholas
Michel, Joe Elias Moody Jr., and Charles W. Morrow, and the
estate of Donald Hoy, whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them,
with interest.

WE WILL, on request, recognize and bargain with Service
Employees International Union, Local 32E, AFL-CIO as the
exclusive collective-bargaining representative of our employees
in the appropriate unit concerning wages, hours, and other
terms and conditions of employment and, if an understanding
is reached, WE WILL embody the understanding in a signed
agreement.

WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharges of Charles Allien, Louis Cioffi, Donald Hoy,

15a

Appendix B

Nicholas Michel, Joe Elias Moody Jr., and Charles W. Morrow
and WE WILL, within 3 days thereafter, notify them in writing
that this has been done and that the discharges will not be
used against them in any way.

CASSIS MANAGEMENT CORPORATION
lan Penny Esq. and Lauri Kaplan Esq., for the General Counsel.
Robert Ziskin, Esq. and Stacey Ziskin, Esq., for the Respondent.
Mathew N. Persanis, Esq., for the Charging Party.
SUPPLEMENTAL DECISION

RAYMOND P. GREEN, Administrative Law Judge. On
April 14, 1997, the board issued its decision in this case wherein
it found that the employer had violated the Act in certain
respects. As part of that decision, the Board remanded a portion
of the case to me for further determination. In this regard, the
Board noted that two employees, Carlos Reyes and Israel
Jusino, were told by a union official at the picket line that he
wanted to kill them. This was denied by the Union’s witnesses
and the Board remanded this question for a credibility finding.

I have reviewed again the relevant portions of the transcript
and have considered the briefs previously filed by the parties.
I have also considered the demeanor of the witnesses in making
the following conclusions. (In conjunction with the transcript
and my own notes taken at the hearing, I recall these witnesses,
notwithstanding that their testimony was taken on July 31 and
August 1, 1996.) As the previously filed briefs dealt with this
contention, there is no need for further briefing on this issue.

16a
Appendix B

Therefore, based on the record as a whole, the briefs filed by
the parties and my observation of the demeanor of the witnesses,
I make the following findings.

Both of the witnesses presented by the Respondent were
hired as replacements for the illegally discharged employees.
One of them, Carlos Reyes, had previously worked for the
employer and indicated that he had received lots of favors
from George Cassis in the past. The testimony of George Cassis
also indicated that there was some animosity between Hoy and
Reyes.

Reyes testified that he was threatened every day with
statements by the pickets and by union officials to the effect
that they wanted to kill him. He pointed specifically to Anthony
Formisano, a business representative, as being one of the
people who made this threat. Reyes also testified that Formisano
made a threat to kill him, when handing him a piece of paper
which was a charge by the Union. (R. Exh. 13.) In the latter
regard, Reyes testified that a policeman was present when he

got this paper.

Jusino testified that thai one or more of the people on the
picket line said, “he was going to kill one of — he want to
poke us.” He went on to testify that the pickets called Reyes
and old man and said that the was going to lose his check.
According to Jusino, statements were made to himself and
Reyes almost every day for about 2 weeks after the picketing
started. When asked if he recognized Formisano in the
courtroom, Jusino said that he did. However, when asked if
Mr. Formisano made the threats, Jusino said that he did not.
When asked who made the threats to kill or comment about
poking, Jusino said that it “was a colored guy who was saying

iesiiniteeemmmicaitalialianasaaeaaiiiiiil

17a
Appendix B

every day that he wanted to kill one of you. He wanted to
poke us.”

Formisano and Union Business Agent Angel Figueroa
testified that they supervised the picketing and were there
almost every day. Both credibly denied making any threats to
kill either Reyes or Jusino. Both credibly testified that no such
threats were made in their presence by any of the other people
on the picket line. With respect to the charge noted above,
Formisano testified that when he tried to hand it to Reyes, the
latter became very agitated and a policeman came over to
explain to Reyes that all he (Formisano) wanted was to hand
him the piece of paper.

The General Counsel called police officers Curt Giacobbe
and Gregory Vince to testify in this matter. Both testified that
as far as they observed, the picketing was peaceful and without
any incidents of threats or violence.

Officer Giacobbe testified to the incident when Formisano
gave the paper to Reyes and his testimony was that Formisano
made no threats during that incident.

Officer Vince testified that he was dispatched to the picket
line on three occasions, once when it was reported that the
pickets were on the property and the other two times when it
was reported that there was some blockage of entrances. In
describing what he saw when he arrived, Officer Vice testified
that he saw “a peaceful demonstration of numerous picketers
Standing on the street area.” There was no indication in his
testimony, or in any other testimony, that Reyes and Jusino
had ever complained to the police about alleged threats of
physical harm or alleged threats to kill them.

18a

Appendix B

In conclusion, I do not credit the testimony of Reyes and
Jusino about the alleged threats.

Dated Washington, D.C. May 7, 1997

19a

APPENDIX C — DECISION AND ORDER
DATED APRIL 14, 1997

Cassis Management Corporation and Service Employees
International Union, Local 32E, AFL-CIO. Case
2-CA-29311

April 14, 1997
DECISION AND ORDER

BY CHAIRMAN GOULD AND
MEMBERS FOX AND HIGGINS

On September 30, 1996, Administrative Law Judge
Raymond P. Green issued the attached decision. The General
Counsel and the Respondent filed exceptions, supporting briefs,
and answering briefs.

The National Labor Relations Board has considered the
decision’ and the record in light of the exceptions and briefs
and has decided to affirm the judge’s rulings, findings,’ and
conclusions only to the extent consistent with this decision.

We agree with the judge’s findings that the Respondent
discharged the entire bargaining unit, including employee
Charles W. Morrow, in violation of Section 8(a)(3) and (1) of

* We correct the following inadvertent error in sec. Il, A, par. 11,
of the judge’s decision “Branch” should read “Bunch.”

1. The Respondent has excepted to some of the judge’s credibility
findings. The Board's established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance 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.

20a

Appendix C

the Act, and that the unit employees named in the recommended
Order should be offered reinstatement and be made whole for
their losses. We do not agree, however, with the judge’s findings
that Donald Hoy is a supervisor within the meaning of Section
2(11) of the Act. Accordingly, we reverse the judge and find
that Hoy was unlawfully discharged, that the union
authorization cards solicited by Hoy were valid, that the Union
demonstrated that a majority of the employees in the bargaining
unit wished to be represented by the Union, and therefore, that
there is a basis for a bargaining order under the principles
enunciated in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).

Tue Facts

The Respondent is owned and operated by the Cassis
family. The Respondent owns and manages the 262 unit
Mountainview Apartments. As of April 4, 1996,’ the following
individuals were employed at Mountainview: General Manager
George Cassis; Property Manager Kathleen Shea (a stipulated
supervisor); office clerical Carol McNiff; Superintendent
Donald Hoy; handymen Joe Moody, Charles Morrow, and Dean
Cassimitis (a family member and not part of the unit); and
porters Charles Allien, Louis Cioffi, and Nicholas Michel.

In the second or third week of March, Hoy met with
officials of the Union, obtained authorization cards, signed a
card himself, and solicited the other employees to sign cards.
Union Attorney Matthew Parsanis, by a letter dated March 26,
requested recognition based on cards signed by a majority of
the Respondent’s six employees, namely, Hoy and employees
Ciofii, Moody, and Morrow. The Union received no reply to
its letter, and the Union filed a petition for a representation
election on April 3.

2. All dates are in 1996 unless otherwise indicated.

2la

Appendix C

The judge found that George Cassis received the Union’s
letter on or before April 4. On the afternoon of April 4, Kathleen
Shea informed all the employees that they were discharged.
Immediately thereafter, Charles Morrow telephoned George
Cassis, who said that he had gotten a letter from the Union,
that he did not want a union, and that the employees were all
terminated. That same afternoon Hoy received a call from Shea
while he was on vacation. Shea told Hoy that Cassis instructed
her to fire the entire crew because they had gone to the Union.

A. Hoy’s Supervisory Status

The judge found that Hoy was a statutory supervisor. The
General Counsel has excepted, and we find merit in this
exception. It is well settled that the burden of proving
supervisory status is upon the party asserting it.’ Thus, the
burden was on the Respondent to establish Hoy’s supervisory
status. Contrary to the judge, we find that the Respondent has
failed to meet that burden.

Hoy became employed by the Respondent through his
mother, who was the property manager until her retirement in
June 1994. She assigned him to be the superintendent in 1990.
The porters mainly perform cleaning functions, and handymen
or maintenance employees perform various types of repairs,
although there is a degree of overlap in duties between these
two classifications. When the type of repair requires the use of

3. Chevron U.S.A., Inc., 309 NLRB 59, 62 (1992), enfd. 28 F.3d
107 (9th Cir. 1994) (unpublished table decision); George C. Foss Co. v.
NLRB, 752 F.2d 1407, 1410 (9th Cir. 1985).

22a

Appendix C

an outside contractor, George Cassis makes the decision to hire
outside contractors.

When Hoy’s mother retired, the Respondent hired Shea to
be the property manager. Shea works in the office and
supervises the secretary. She handles the collection of rents,
screens applicants for apartments, acts as a liaison between the
Respondent and it: attorneys and tenants, receives and enters
in the log book tenant requests for repairs, prepares the payroll,
and, by her own admission, supervises unit employees.

Hoy lived in a rent-free apartment valued at $700 to $800
per month. His wages were $450 per week, the same as those
of handyman Joe Moody, but less than those received by family
member Dean Cassimitis. Hoy was scheduled to work from
8 a.m. to 4 p.m., Monday through Friday, but was on call 24
hours a day. Hoy reported to Shea and George Cassis. Hoy
performed boiler maintenance and landscaping, as well as
maintenance and repair work on buildings and apartments.

George Cassis came to the property once or twice a week
and met with Shea and Hoy. They discussed matters such as
equipment needs, new repairs, the need for outside contractors,
and the expenditure of money. Hoy asked for direction on how
to handle particular problems, and Cassis gave Hoy specific
directions. When something special arose, Cassis called Hoy
at home.

Shea informed Hoy of tenant complaints and repairs that
needed to be made. Hoy and the other unit employees met with
Shea daily in the office at 8 a.m. and discussed the work that
needed to be done. Additionally, employees looked at the log
book to determine the next project to be performed.

23a

Appendix C

Like Shea, Hoy interviewed job applicants and eliminated
those he deemed to be unqualified. Significantly, George Cassis
conducted his own interviews with the qualified candidates
before making a hiring decision.

In his decision, the judge repeatedly expressed doubt
concerning his conclusion that Hoy was a supervisor. For
example, the judge stated that “[{a]s Hoy’s relationship to the
company was one which evolved over time and was not reduced
to any writing, the evidence regarding his supervisory status
is, at least to my mind, ambiguous.” The judge’s decision is, at
best, equivocal regarding his findings as to Hoy’s authority to
effectively discharge, hire, or reward employees.* The judge

4. We find that the Respondent has not Sustained its burden of
demonstrating that Hoy had the authority to discharge, hire, or reward
unit employees, or effectively to recommend such action. Concerning
Hoy’s discharge recommendations. the judge found that “his
recommendations had mixed results.” Although Hoy successfully
recommended the discharge of Shawn Bunch, the Respondent ignored
Hoy's repeated recommendations that Moody be terminated for
absenteeism. There is no evidence that Moody was even disciplined for
his absenteeism. Hoy continually recommended that Carlos Reyes be
terminated. The judge found that Cassis finally “acceded” to this request.
We do not adopt this finding, however, because Reyes, Cassis, and Hoy
all testified that Reyes was never discharged. When the record evidence
is considered as a whole, we find that the Respondent has failed to show
that Hoy’s discharge recommendations were generally followed.

Concerning Hoy’s role in the hiring process, his screening of
applicants to eliminate individuals lacking the necessary qualifications
is clearly not sufficient to establish 2(11) supervisory status. See The
Door, 297 NLRB 601, 602 (1990). With the exception of one isolated
instance in which Cassis agreed with Hoy’s recommendation to “try
out” Shawn Bunch, the son of a tenant, the record shows that Hoy’s

(Cont'd)

24a
. Appendix C

acknowledged that Hoy “lacked many of the criteria for
supervisory status.” Nevertheless, the judge found that Hoy
“assigned and directed the work” of unit employees, including
nonroutine work, in a manner requiring the exercise of
independent judgment, and he found Hoy to be a superviso: on
that basis.

We agree with the General Counsel that Hoy possessed no
primary indicia of supervisory status, including the authority
to assign and direct the employees in a manner requiring the
exercise of independent judgment.’ The Board has observed

(Cont'd)

hiring recommendations were independently evaluated by George Cassis.
Thus, as stated above, it was (Cassis’ practice to personally interview
job applicants before deciding to hire them.

The Respondent contends, and the judge found, that Hoy
successfully recommended that Moody be given a raise. We agree with
the General Counsel that the evidence concerning this matter does not
support a finding of supervisory status. The record reveals that Hoy
merely asked Cassis to restore to Moody an $80 cut in take home pay
lost because of an accounting change. The recommendation was not
followed with respect to the amount. Even assuming this incident
constituted an effective recommendation for a pay raise, it was the only
such instance in Hoy’s 6 years of employment. We find that it represents
far too isolated an occurrence to constitute evidence of meaningful
supervisory authority.

No specific evidence was presented that Hoy ever evaluated,
transferred, promoted, laid off, recalled, disciplined, or suspended
employees or adjusted their grievances.

5. The judge based his conclusion on two additional factors, namely
that Hoy was “the highest paid of the maintenance employees,” and that
(Cont'd)

25a

Appendix C

(Cont'd)

Hoy was the only person “who could Supervise the employees on a
day-to-day basis.” We agree with the General Counsel that the judge’s latter
two findings relate to secondary indicia of supervisory status. It is well
settled that secondary indicia of Supervisory authority are in themselves
not controlling. Consolidated Services, 321 NLRB 845, 846 fn. 7 (1996).
Furthermore, we find the judge’s findings regarding these nmatters to be
inaccurate. The judge incorrectly found that Hoy was the highest paid of all
the maintenance employees. The value of his apartment translates to $175
to $200 per week. This amount plus Hoy’s salary is still less than Cassimitis’
salary. Presumably, the free apartment was a benefit Hoy received in return
for being on call 24 hours a day.

The judge found that Hoy was the only person able to supervise the
employees at the complex “on a day-to-day basis.” In so finding, the judge
discounted the daily presence of admitted Supervisor Shea and the regular
visits of George Cassis and of George’s mother and the Respondent's general
partner, Carol Cassis. As noted, Shea was present daily on the property and
admitted she “supervise[d] the men — staff” at the complex. Her admission
is consistent with Hoy’s description of Shea as his “boss” and is not
diminished by her protestation that she lacked the technical experience in
building maintenance. Furthermore, she testified that she accompanied
Cassis on his inspections of the complex, during which they examined
“things in need of repair.” She further testified that during her daily
conversations with Cassis, she discussed “things in need of repair or what
was being done on it.” Hoy testified that he discussed work to be done with
Shea on a daily basis.

Conceming the visits of George Cassis, the record reveals that he was
intimately involved in supervising the work at the facility. He conducted
inspections of the property, noted the quality of employees’ work, examined
things in need of repair, discussed repairs with Shea, discussed with Hoy
the manner in which repairs were carried out, authorized equipment
purchases, hired contractors, and handled “whatever has to be taken care
of” at the complex. With respect to Carol Cassis, the record shows that on
one of her monthly visits to the property, she held a meeting with Hoy to
discuss the security of his job and then conducted a job interview with
applicant Charles Morrow. (Cont'd)

26a

Appendix C

that, in enacting Section 2(11), Congress stressed that only
persons with “genuine management prerogatives” should be
considered supervisors, as opposed to “straw bosses, leadmen,
... and other minor supervisory employees.” Chicago Metallic
Corp., 273 NLRB 1677, 1688 (1985). Therefore, the Board has
a duty to employees “not to construe supervisory status too
broadly because the employee who is deemed a supervisor is
denied . . . rights which the Act is intended to protect.” Id. at
1689. Additionally, the Board has often held that building
superintendents were nonsupervisory employees.°®

The judge conceded that the work performed by the porters
was “repetitive or routine” and involved mainly cleaning. The
judge found that “the same could not be said for the maintenance
work which sometimes involved repairs and upkeep to the
buildings, garage, and apartments.” He further concluded that
the maintenance work might require electrical work or light
plumbing, and that such functions “can hardly be called
routine.” We find, however, that the Respondent has not
presented sufficient evidence to support the judge’s conclusion

(Cont'd)

In sum, given the presence of Supervisor Shea at the apartment
complex, the regular visits of General Manager George Cassis, and
general partner, Carol Cassis, and the fact that Hoy was able to
communicate with George Cassis by telephone, we conclude that the
record does not support the judge's finding that Hoy was the only
individual able to supervise the unit employees on a daily basis. See
First Western Building Services, 309 NLRB 591, 603 (1992), and cases
cited therein.

6. Hagar Management Corp., 313 NLRB 438 (1993), J.R.R. Realty
Co., 273 NLRB 1523 (1985), enfd. 785 F.2d 46 (2d Cir. 1986), and
Elias Mallouk Realty Corp., 265 NLRB 3225 (1982). We do not agree
with the judge’s finding that these cases are distinguishable.

27a
Appendix C

that these duties are not routine. To the contrary, Shea
acknowledged that the handymen performed the same kinds of
routine minor repairs over and over again. The record reveals
that nonroutine repairs requiring specialized expertise, such as
bricklaying, plumbing involving pipe more than 2 inches in
diameter, heating, and tree and glass work, were consistently
performed by outside contractors.

The judge found that, during the morning meetings, Hoy
“reviewed the work that needed to be done and gave out
assignments.” We find that the judge has mischaracterized the
purpose of these meetings. According to Hoy’s testimony,
which was corroborated by Cioffi and Moody, the purpose of
the meeting was for Hoy, who lived at the complex, to inform
his co-workers if something had occurred during the night that
they were required to deal with before they returned to their
normal routine. The record is clear that the porters knew what
to do regarding cleaning, that the handymen obtained their work
assignments by referring to the tenant complaint book, and that
no independent judgment was required to determine what
problems constituted emergencies. We conclude that Hoy’s
announcements of emergency vepairs cannot be considered
evidence of supervisory authority.

Shea admitted that the handymen knew how to perform
their repair work and did not require any further direction once
they were notified of a tenant’s complaint. There is no evidence
that Hoy directed the employees in the performance of their
work or evaluated their skills. Rather, Hoy testified that he onl y

casually observed the work of other employees “in the process
of performing [his] own duties.”

We find that Hoy was an experienced senior employee
subject to regular higher supervision. His limited role in the

28a

Appendix C

parceling out of tasks to the other employees is attributable to
Hoy’s status as the most senior employee and the fact that he
lived on the premises. Accordingly, we conclude that Hoy did
not assign and direct the unit employees in a manner requiring
the use of independent judgment, nor did he possess any
other indicia of supervisory status within the meaaing of
Section 2(11).

We further find that Hoy was not an agent of the
Respondent. There is no evidence that Hoy was so closely
associated with management in such a manner that the
employees might assume that he was speaking for management
on union matters.’ On the contrary, it was clear that he openly
expressed to fellow employees his disagreement with
management’s benefit and other personnel policies. Neither did
Hoy enjoy any special employment privileges because of the
position that formerly had been held by his mother. Therefore,
we do not adopt the judge’s finding set forth at footnote 8 of
his decision that Hoy was an agent of the Respondent.

B. Hoy’s Unlawful Discharge

The judge found, and we agree, that the bargaining unit
employees (other than Hoy) were discharged because of their
union activity. In doing so, the judge properly rejected the
Respondent’s asserted reasons for each of the discharges. The
judge credited Hoy’s testimony that Shea informed Hoy that
he was being discharged because he and the other employees
went to the Union. We have found that Hoy was a unit

7. By contrast, in the case cited by the judge in fn. 8 of his decision,
there was testimony supporting the conclusion that the employees
tended to regard the superintendents as closely identified with
management.

29a
Appendix C

employee. Therefore, we conclude that Hoy was unlawfully
discharged in violation of Section 8(a)(3), along with the other
unit employees. Accordingly, we shall order that Hoy be offered
reinstatement and given backpay and other remedies along with
the other unit employees.

C. The Bargaining Order

Because we have found that Hoy was not a supervisor, we
reverse the judge’s finding that the authorization cards solicited
by him were tainted. We find that the cards are valid and
demonstrate that at the time of the Union’s demand for
recognition a majority of the employees — four of the six
members of the unit — wished to be represented by the Union.®

In determining whether a bargaining order is warranted to
remedy the Respondent’s unfair labor practices, we apply the
test set forth in NLRB v. Gissel Packing Co., 395 U.S. 575
(1969). There the Court identified two categories of cases in
which a bargaining order would be appropriate absent an

8. The Respondent has questioned the validity of Moody's card
because be did not sign it. The record shows that Moody filled out an
authorization card, but neglected to Sign it. Moody did, however, sign
and date a form attached to the card, titled “Application for Membership.”
Moody also paid for and received a union “Membership Book” dated
March 25, 1996. Further, when his failure to sign his authorization card
was brought to his attention by Hoy, Moody approved the signing of the
card by union delegate Davis. In these circumstances, we find that the
authorization card in question clearly demonstrates Moody’s desire to
be represented by the Union.

In view of our determination that Hoy is not a supervisor, we find
it unnecessary to pass on the General Counsel's contention that, even if
he is a supervisor, the cards he solicited should be counted.

30a
Appendix C

election. The first category of cases involves “exceptional
cases” marked by unfair labor practices that are so “outrageous”
and “pervasive” that traditional remedies cannot erase their
coercive effects, thus rendering a fair election impossible. The
second category involves “less extraordinary cases marked by
less pervasive practices which nonetheless have a tendency to
undermine majority strength and impede election processes.”
In this second category of cases, the Court reasoned that the
“possibility of erasing the effects of past practices and of
ensuring a fair election . . . by the use of traditional remedies,
though present, is slight and that employee sentiment once
expressed [by] cards would, on balance, be better protected by
a bargaining order.” Id. at 613, 614-615; Massachusetts Coastal
Seafoods, 293 NLRB 496, 498 (1989).

In this case, the Respondent discharged the entire
bargaining unit immediately after it learned that the Union
requested recognition. Additionally, the Respondent made it
clear to employees that the reason for the discharges was the
unit employees’ support for the Union.

Discharge of an entire bargaining unit is the ultimate
retaliation for union aciivity, the final assault on the
employment relationship. It is difficult to conceive of unfair
labor practices with more severe consequences for employees
or with more lasting effects on the exercise of Section 7 rights.
Mass discharges leave no doubt as to the response that the
employees will reasonably fear from their employer if, after
reinstatement, they persist in their support for a union. Even
newly hired employees Allien and Michel were not exempt from
the Respondent's unlawful “power display” against the work
force. See Majestic Molded Products v. NLRB, 330 F.2d 603,
606 (2d Cir. 1964). The coercive impact of the Respondent's

3la
Appendix C

discharge of the entire unit is increased by virtue of the
precipitate and reflexive nature of the discharges here, carried
out immediately after the Union requested recognition.’ Thus,
the discharges served abrupt, graphic, and indelible notice on
the employees that the Respondent controlled their employment,
to the exclusion of any outside agency that might seek an
improvement in their conditions. The impact of these discharges
is further heightened by the special stature and direct
involvement of George Cassis, who is an owner of the
Respondent and the son of Carol Cassis, who holds the largest
partnership share of the Respondent.

It can hardly be gainsaid that the Respondent's discharge
of the entire bargaining unit, in conjunction with the
Respondent’s contemporaneous statement to employees that the
reason for the mass discharge is their union activity, constitutes
unfair labor practices that are both outrageous and pervasive.
Therefore, we find that the Respondent's conduct places it in
the realm of those exceptional cases warranting a bargaining
order under category I of the Gisse/ standard, such that
traditional remedies cannot erase the coercive effects of the
conduct, making the holding of a fair election impossible."

9. Astro Printing Services, 300 NLRB 1028 (1990).

10. In a category I case like this one, the District of Columbia
Circuit has held that the Board “need not make detailed findings of the
type required for Category II cases, but instead must only make ‘minimal
findings’ of the lasting effect of unfair labor practices to support a
bargaining order.” Power Inc. v. NLRB, 40 F.3d 409, 422 (1994).
Consistent with the court's decision, we have set forth above our reasons
for finding that the detrimental effects of the unfair labor practices will
persist over time.

32a

Appendix C

Additional support for the bargaining order is provided by
Balsam Village Management Co., 273 NLRB 420 (1984), enfd.
792 F.2d 29 (2d Cir. 1986). In that case, the Board found that a
Gissel bargaining order was necessary to remedy what it
described as the employer’s “unlawful discharge of an entire
bargaining unit, lock, stock and barrel, for the express purpose
of avoiding the statutory bargaining obligation.” The court of
appeals upheld the Board’s decision, finding that “[a]ll of the
requirements for enforcement of a Gissel order have been met
here.” 792 F.2d at 33.

Furthermore, even assuming arguendo that the
Respondent's conduct does not fall within Gisse/ category I,
the unfair labor practices certainly qualify as “less pervasive
practices which nonetheless still have the tendency to
undermine majority strength and impede the election process.”
Gissel Packing. supra at 614. Thus, the discharge of union
adherents has long been considered by the courts to be a
“hallmark” violation of the Act because of its lasting effect on
election conditions. NLRB v. Janwica Towing, 632 F.2d 208,
212-213 (2d Cir. 1980). This unlawful conduct, which “goes
to the very heart of the Act,” NLRB v. Entwistle Mfg. Co., 120
F.2d 532, 536 (4th Cir. 1941), directly affected every member
of the bargaining unit. The Board has found that such hallmark
violations committed by high company officials in a small unit
have a tendency to undermine majority strength and impede
the election process. Airtex, 308 NLRB 1135 (1992). While it
is true that the discharged unit employees are entitled to
reinstatement and backpay, these remedies would not, in our
view, erase the coercive effect of the Respondent’s conduct.
The reinstated employees would not likely risk the recurrence
of a long period of unemployment by engaging in further
attempts to improve their working conditions, in the absence

33a

Appendix C

of a bargaining order. And given the swiftness and thoroughness
with which the Respondent reacted to the first sign of the
Union’s presence, the likelihood of it again resorting to illegal
conduct is clearly present."

In these circumstances, we conclude that the possibility of
erasing the effects of the Respondent’s unfair labor practices
by traditional remedies and the conducting of a fair election is
slight. We further find that the employee’s representational
desires as expressed by authorization cards would, on balance,
be better protected by a bargaining order and that, therefore, a
bargaining order is also warranted under category II of the
Gissel standard.

Accordingly, we conclude that a bargaining order is
presumptively appropriate in the circumstances of this
case.'* We shall not, however, order the Respondent to bargain
with the Union at this time, because of the need to resolve the
alleged picket line misconduct issue discussed below.

11. The Respondent acted so precipitously that the Union never
had sufficient time to utilize the Board's election machinery. (The
discharges occurred just | day after the Union’s election petition was
filed.) In light of this track record, it is doubtful at best whether the
Respondent would ever permit a fair election to be held.

12. In light of the Respondent's egregious and widespread
misconduct demonstrating a general disregard for the employees’
fundamental statutory rights, we find that a broad cease-and-desist order
is warranted under Hickmott Foods, 242 NLRB 1357 (1979).

34a

Appendix C
D. The Alleged Picket Line Misconduct

Concerning whether or not the Board should issue a
bargaining order, the Respondent in its exceptions contends
that certain picket line misconduct must preclude any such order
under the doctrine set forth by the Board in Laura Modes Co.,
144 NLRB 1592 (1963). At the hearing, the Respondent
presented testimony from two newly hired employees who
crossed the picket line, at least one of whom was a union
member, that a union official stated that he wanted to kill them.
The Union presented several witnesses who denied that any
such comments were made by anyone on the picket line and
represented that the individuals who picketed remained off of
the Respondent’s property and conducted themselves at all
times in a proper and orderly manner.

Because the judge’s finding regarding the supervisor status
of Hoy led him to conclude that there was no basis for a
bargaining order, the judge did not set forth this conflicting
testimony or make a credibility resolution concerning it. In light
of our conclusion that a bargaining order is presumptively
appropriate, we find it necessary to remand this proceeding
to the judge for a resolution of this conflict in the testimony
and for an analysis of the Respondent’s Laura Modes
defense.”

Accordingly, we shall remand this proceeding to the judge
for the purpose of making resolutions of credibility concerning
the testimony regarding the alleged picket line misconduct by

13. We find no basis in the record for the Respondent’s suggestion
in its brief in support of its exceptions that the Union’s picketing was
conducted improperly in any other respect.

35a

Appendix C

a representative of the Union, and findings of fact and
conclusions »f law concerning this evidence."

ORDER

The National Labor Relations Board orders that the
Respondent, Cassis Management Corporation. Dobbs Ferry,
New York, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Discharging or otherwise discriminating against any
employee for supporting Service Employees International
Union, Local 32E, AFL-CIO (the Union), or any other union.

(b) In any other manner interfering with, restraining, 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) Within 14 days from the date of this Order, offer
Charles Allien, Louis Cioffi, Donald Hoy, Nicholas Michel,
Joe Elias Moody Jr., and Charles W. Morrow, full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.

14, Because this case involves a petition for relief pursuant to Sec.
10(j) of the Act, we ask the judge to issue his findings as expeditiously
as possible.

36a

Appendix C

(b) Make Charles Allien, Louis Cioffi, Donald Hoy,
Nicholas Michel, Joe Elias Moody Jr., and Charles W. Morrow
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.

(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of Charles
Allien, Louis Cioffi, Donald Hoy, Nicholas Michel, Joe Elias
Moody Jr., and Charles W. Morrow, and within 3 days thereafter
notify them in writing that this has been done and that the
discharges will not be used against them in any way.

(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and copying,
all payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of this
Order.

_ (e) Within 14 days after service by the Region, post at is
Dobbs Ferry, New York facility copies of the attached notice
marked “Appendix.”'* Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to

15. 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
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”

|

37a

Appendix C

employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings the Respondent
3 has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since April 11, 1996.

OD DNS ie Ta

(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps
the Respondent has taken to comply.

IT IS FURTHER ORDERED that this proceeding is
remanded to Administrative Law Judge Raymond P. Green for
the purpose of making credibility resolutions concerning the
testimony regarding alleged picket line misconduct, findings
of fact, conclusions of law, and recommendations concerning
the alleged picket line misconduct and its effect on the
appropriateness of a bargaining order.

IT IS ALSO FURTHER ORDERED that the judge prepare
and serve on the parties a supplemental decision containing
credibility resolutions, findings of fact, conclusions of law, and
recommendations. Following service of the supplemental
decision on the parties, the provisions of Section 102.46 of the
Board’s Rules and Regulations shall be applicable.

Dated, Washington, D.C. April 14, 1997

38a

Appendix C

William B. Gould IV, Chairman

Sarah M. Fox, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

I

39a

Appendix C
MEMBER HIGGINS, DISSENTING.

I agree with Administrative Law Judge Raymond P.
Green’s finding that Donald Hoy is a supervisor. Accordingly,
I dissent from the contrary conclusion of my colleagues.

SSD Fe sages oi ML WINE ORE STON te: aM cos

Hoy was the Respondent’s superintendent. As such, he
assigned and directed the work of unit employees. The judge
found that, except for the cleaning work, the work performed
by unit employees was not routine. More particularly, the repair
and upkeep of the buildings, garage and apartments involved
electrical and light plumbing functions. Both the selection of a
particular employees for specific tasks, as well as the direction
of these employees, required the use of independent judgment,
according to the judge. I would not disturb these findings.

Since Hoy was a supervisor, the cards that he solicited were
not valid, and they, therefore, cannot be used to support a
bargaining order.

Dated, Washington, D.C. April 14, 1997

John E. Higgins, Jr., Member

NATIONAL LABOR RELATIONS BOARD

1. My colleagues assert that the tenant complaint book would set
forth the work to be performed. However, this book did not set forth
which particular employees would be assigned specific tasks.

40a

Appendix C
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
violated the National Labor Relations Act and has ordered us
to post and abide by this notice.

Section 7 of the Act gives employees these nights.
To organize
To form, join, or assist any union

To bargain collectively through representatives
of their own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discharge or otherwise discriminate

against any employee for supporting Service Employees
International Union, Local 32E, AFL-CIO or any other union.

WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.

4la
Appendix C

WE WILL, within 14 days from the date of the Board’s
Order, offer Charles Allien, Louis Cioffi, Donald Hoy, Nicholas
Michel, Joe Elias Moody Jr., and Charles W. Morrow, full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges previously
enjoyed.

WE WILL make Charles Allien, Louis Cioffi, Donald Hoy,
Nicholas Michel, Joe Elias Moody Jr., and Charles W. Morrow
whole for any loss of earnings and other benefits suffered asa
result of the discrimination against them, with interest.

WE WILL, within 14 days from the date of The Board’s
Order, remove from our files any reference to the unlawful
discharges of Charles Allien, Louis Cioffi, Donald Hoy,
Nicholas Michel, Joe Elias Moody Jr., and Charles W. Morrow
and WE WILL, within 3 days thereafter, notify them in writing
that this has been done and that the discharges will not be used
against them in any way.

42a

APPENDIX D — DECISION AND ORDER BEFORE
THE NATIONAL LABOR RELATIONS BOARD,
DIVISION OF JUDGES, NEW YORK BRANCH
OFFICE DATED SEPTEMBER 30, 1996

UNITED STATES OF AMERICA
BEFORE THE NATIONAL
LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

CASE NO. 2-CA-29311
CASSIS MANAGEMENT CORPORATION
AND

SERVICE EMPLOYEES INTERNATIONAL UNION,
LOCAL 32E, AFL-CIO

Jan Penny Esq., and Lauri Kaplan Esq.,

Counsels for the General Counsel.

Robert Ziskin, Esq., and Stacey Ziskin, Esq.,
Counsel for the Respondent.

Mathew N. Persanis, Esg., Counsel for the Union.

DECISION
Statement of Case

Raymond P. Green, Administrative Law Judge. This case
was tried in New York, New York on July 22, 23, 24 and 31
and August 1, 1996. The charge and first amended charge were

43a
Appendix D

filed on April 11 and April 16, 1996. On May 30, 1996, a
Complaint was issued which, amended at the hearing, alleged
in substance.

1. That from March 22 to March 25, 1996, a majority of
employees in an appropriate unit, designated the Union as their
representative.

2. That on or about March 27, 1996, the Union requested
recognition in a unit consisting of

All full-time and regular part-time cleaning,
painting, and maintenance workers employed by the
Employer at its facility located at 200 Beacon Hill
Road, Dobbs Ferry, New York, excluding all
managers and supervisors as defined in the Act.

3. That on or about April 4, 1996, the Respondent
discharged all of its unit employees; to wit, Donald Hoy, Charles
W. Morrow, Louis Cioffi, Joe Elias Moody Jr., Charles Allien
and Nicholas Michel.

4. That the aforesaid conduct made a fair election
improbable and therefore that a bargaining order should be
issued.

Findings of Fact
I. Jurisdiction

The company, owns and manages various properties
including the Mountainview Apartments in Dobbs Ferry, New

44a

Appendix D

York. At the hearing, the company amended its Answer to admit
and | find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.

Il. Alleged Unfair Labor Practice’
(a) The Status of Donald Hoy

The Respondent consists of the Cassis family. The two
founders and general partners are Constantine and his wife Carol
Cassis. Their children, George, Nicholas, Emanuel and Elaine
Cassis, are limited partners. The children have a variety of
functions but are subordinate to the parents in terms of the
company’s management. This enterprise owns various
properties including an apartment complex called the
Mountainview Apartments, which is located on a 15 acre tract
of land in Dobbs Ferry, New York. The Respondent’s main
office and place of business is Freeport, New York, which is at
least an hours drive from the Dobbs Ferry complex.

George Cassis is the family member who is responsible
for, among other things, running the Mountainview Apartment
complex which is a group of 262 garden apartments in 14
buildings. In this regard, in addition to visiting other properties,
he visits this site about one or two times per week and consults

1. This company was found to have violated the Act in an earlier
case called Cassis Management Corp., 281 NLRB 1304 (1986). In that
case, which involved an apartment building in Freeport, New York, the
Respondent was held to have violated Section 8(a)(1) by unlawfully
interrogating an employee, and to have violated Section 8(a)(3) of the
Act by discharging an employee because he signed an authorization card
for Local 32B-32J.

45a

Appendix D

with either Donald Hoy, the superintendent or Kathy Shea, the
office manager. (1 he Complaint alleged and the Respondent
stipulated that Ms. Shea was supervisor within the meaning of
Section 2(11) of the Act). George Cassis’ son also works at
this complex as a maintenance person. George Cassis’ mother
has no operational functions with respect to this apartment
complex, although as we shall see further on, that she did make
one decision that was important in this case.

i should note that this is a small company which does not
have a highly defined hierarchy. As Hoy’s relationship to the
company was one which evolved over time and was not reduced
to any writing, the evidence regarding his supervisory status
is, at least to my mind, ambiguous.

Mr. Hoy became employed through his mother who was
the property manager until her retirement in June 1994. After a
period of time, she assigned him to be the superintendent and
it appears that she pretty much defined his role at the apartment
complex. In the past, there have been anywhere from between
3 to 6 other maintenance employees working at the complex at
any given time. These consist of porters who mainly do cleaning
functions and maintenance people who do various types of
repairs except where the extent or type of repair may require
the use of an outside contractor.? There is, however, a degree
of overlap and then it snowed profusely during 1995, all of the
employees were involved in snow removal.

When Mr. Hoy’s mother retired, the Respondent hired
Kathy Shea to be the property manager. She essentially works

2. When a repair may require the use of an outside contractor, this
is a matter which is discussed between George Cassis and Donald Hoy.
Mr. Cassis, obviously is the person who ultimately makes the decision
as to whether to use a contractor.

46a

Appendix D

in the office with a secretary and handles the collection of rents,
screens people who apply for apartments, acts as a liaison
between the company, its attorneys and tenants, receives and
enters tenant requests for repairs, does payroll and supervises
staff. As noted above, it was stipulated that Ms. Shea was a
supervisor within the meaning of Section 2(11) of the Act.
Contrary to General Counsel’s assertion that Mr. Hoy reported
to Shea, he testified that he considered himself to be on the
same level as Ms. Shea. It is noted that Shea testified that she
has no knowledge of repairs and maintenance and therefore
she cannot and does not give instructions to the maintenance
employees on these subjects.

The evidence shows that Mr. Hoy earned $450 per week
and received the free use of an apartment that was worth
between $700 and $800 per month. Thus, his total weekly
remuneration was about $625 to $650 per week. This was more
than any of the other porters and maintenance people working
at the facility. In addition, he had the use of a company vehicle.

Every morning, Mr. Hoy held a meeting with the employees
where he reviewed the work that needed to be done and gave
out assignments. Hoy testified that his job was to see that the
employees were doing their jobs correctly and that if they had
problems they would talk to him about them. He also testified
that employees would call him if they could not come in to
work. While it may be said that the porter functions were
repetitive or routine and mostly involved cleaning, the same
cannot be said for maintenance work which sometimes involved
repairs and upkeep to the buildings, garage and apartments.
Thus, the maintenance people might on_some occasions be
called upon to do electrical work while at other times be

es ea.

47a

Appendix D

required to do light plumbing. These functions, which can
hardly be called routine, were overseen by Mr. Hoy.’

By the Spring of 1996, there was quite of lot of repair and
maintenance work that had to be done. And because of the
extensive snow storms, which not only took time away from
repairs but created damage to the Structures, the backlog of
repairs was quite extensive.

Mr. Hoy admittedly interviewed job applicants and he could
eliminate from consideration, those people whose resumes or
prior experience he felt were not adequate for a position. Along
with Ms. Shea, he made hiring recommendations to George
Cassis, but it is fairly clear that his recommendations have not
always been followed.‘ Thus, in January 1996, Hoy
recommended to Mr. Cassis that Mr. Morrow be hired, but
someone else was hired instead. (Mr. Morrow was subsequently
hired in April 1996 but Mr. Hoy did not play any role in that
decision). On the other hand, Hoy and his mother interviewed
and recommended the hiring of Joe Moody in 1990. (Mr. Hoy,
on one occasion, also successfully recommended that Mr.
Moody receive a pay increase). And Mr. Hoy recommended
the hiring and subsequent discharge of Shawn Bunch in early
1996. (Bunch worked briefly as a porter).

3. Louis Cioffi, one of the alleged discriminatees testified that he
was employed as a landscaper and general worker whose job included
painting, cleaning hailways, and keeping the grounds maintained. He
testified that he would foliow a routine unless Hoy assigned him to some
other job that needed doing.

4. Mr. Hoy acknowledges that for some time before his discharge
and his union activity, his relationshin with George Cassis was strained.
This could account for the fact that his recommendations were not always
followed.

48a

Appendix D

The Respondent put in evidence to show that Mr. Hoy could
commit the company’s credit for purchases for supplies and
tools. However, the evidence shows that other employees such
as Joe Moody could do the same and therefore this assertion by
the Respondent does not have much weight.

There also was evidence that Mr. Hoy, on various
occasions, recommended to Mr. Cassis that individuals be
discharged. In this respect, his recommendations had mixed
results. For example, Hoy testified that he had unsuccessfully
recommended that Moody be discharged on several occasions
on account of his absenteeism. On the other hand, Hoy
successfully recommended the discharge of Mr. Branch.
Moreover, the evidence shows that Hoy kept asking for the
discharge of Carlos Reyes, (a porter), until George Cassis
acceded and discharged the man.

While not free from doubt, the evidence as a whole leads
me to conclude that Mr. Hoy was a supervisor within the
meaning of Section 2(11) of the Act.’

The Board and the Courts have interpreted Section 2(11)
ofthe Act in the disjunctive so that the possession of any one
of the authorities listed in this Section of the Act, places a person

5. Section 2(11) of the Act defines as supervisor as follows:

Any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees,
or responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connection
with the foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment.

49a
Appendix D

into the supervisory class. Ohio Power Company v. NLRB 176
F.2d 385 (6th Cir. 1949), cert. denied 338 U.S. 899. See also
NLRB v. Porta Systems Corp., 625 F.2d 399, 401 , and 2nd Cir.
1980); Allen Services Co., 314 NLRB 1060 (1994); and Queen
Mary, 317 NLRB 1303 (1995). Nevertheless, the Board has
made it plain that the party asserting that a person isa supervisor
has the burden on that issue. Adeo Electric, 307 NLRB 1113,
fn. 3 (1992).

While Mr. Hoy lacked many of the criteria for supervisory
Status, the evidence shows that he assigned and directed the
work of between 3 and 6 individuals; that he oversaw their
work and gave them direction; that at least some of this work,
involving repair and maintenance, was not routine; and that in
doing so, he exercised independent judgment. See Superior
Bakery, 294 NLRB 256 (1989); Rose Metal Products, 289
NLRB 1153 (1988); Jilini Steel Fabricators, Inc., 197 NLRB
303; and Custom Bronze & Aluminum Corp., 197 NLRB 397
(1972).

The evidence shows that Mr. Hoy was the highest paid of
the maintenance employees. Moreover, as Ms. Shea did not
have the knowledge to supervise repair and maintenance work,
and as George Cassis visited about 2 times a week, the only
person at the facility who could supervise the employees on a
day-to-day basis was Mr. Hoy.

The General Counsel cites a number of cases where
building superintendents were held to be non-supervisory
employees.

In J.R.R. Realty Co., 273 NLRB 1523, (1985), the
Administrative Law Judge, (ALJ), concluded that the person

eee er ree rhe a

50a

Appendix D

in dispute was not a supervisor, but was more in the nature of
“an experienced, senior employee who routinely oversees the
maintenance of the building, and is subject to regular and
constant higher supervisor.” The ALJ noted that higher
management visited the job site at least once a week to inspect
what was going on. He noted that there were only two other
employees, (the elevator operator and porter) who had jobs that
were repetitive in nature and which required no particular
further instructions or assignments. The Board noted that
although the individual in question testified that he “hired” the
porter, and that the authority to hire is often a dispositive factor
for supervisory status, that if the “hiring” individual merely
performed a ministerial act or hired at the direction of another,
this would not, by itself, prove supervisory status.

In Hagar Management Corp., 313 NLRB 428 (1993), the
Respondent was charged, inter alia, with being a successor and
not recognizing the Union that had been party to a contract
with the predecessor company. That contract covered two
people employed at the building; the superintendent and the
porter. The ALJ concluded that the superintendent was not a
supervisor, (ard therefore illegally discharged), noting his
testimony that he had none of the authority listed in Section
2(11) of the Act, that he merely passed along co:nplaints about
dirt to the porter, and that if tenants requested repairs, he would
have to obtain permission to make the repair from the
management office. The ALJ also found that since the purchase
of the building, the new company sent a supervisor to the
building several times a week.

In Elias Malluk Realty Corp., 265 NLRB 1225, (1982),
the Employer was found to have illegally withdrawn recognition
from one union, while entering into a contact with a rival union.

Sla
Appendix D

The ALJ found that the superintendents, (who had been
represented under the old contract with Local 32B-32J), did
not exercise supervisory authority. In this regard, he held that
their hire and discharge recommendations were independently
evaluated by higher management who did not uniformly or even
generally follow their recommendations. The ALJ concluded
that the superintendents were more like experienced, senior
employees who “routinely Supervise the maintenance of their
buildings, but subject to reguiar and constant higher supervision,
report and even recommend on personnel actions regarding the
assistants under them, but do not exercise independent judgment
on personne! matters and are not uniformly or even generally

followed on their personnel recommendations when made or
solicited.”

Notwithstanding the conclusion that the superintendents
in Elias Malluk Realty Corp., were not supervisors, the ALJ
nevertheless found that they were agents of the Respondent for
purposes of itsliability pursuant to Section 8(a)(1) and (2) of
the Act, (For the threat by one and the assistance conduct of
the other). He noted that the employees tended to regard the
superintendents as closely identified with management and that
the employees could reasonably believe that the superintendents

spoke and acted for management, particularly on union-related
matters.

Notwithstanding the cases cited above, (and the other cases
cited by the General Counsel in his Brief), I think that the facts

of the present case are distinguishable and put Hoy over the
line into supervisory status.

52a

Appendix D
(b) The Status of Charles Morrow.

The Respondent asserts that Mr. Morrow was retained as
an independent contractor. I reject this contention and find that
he was hired as an employee.

Prior to his association with the Respondent, Mr. Morrow
was a self-employed contractor. (He and Mr. Hoy knew each
other through the school that their children attended). In
response to a newspaper advertisement, he spoke to Kathy Shea
in January 1996 and was also interviewed by George Cassis.
At that time, he was engaged to do a single tiling job lasting
about 3 hours for which he was paid $75.00. Upon finishing
that one job, he was not called back by the Respondent until
March 1996.

-In mid-March, 1996, Morrow spoke with Hoy and was told
that the company needed someone. According to Morrow, he
had an interview with George Cassis, Emanuel Cassis and Carol
Cassis on March 20, 1996. Morrow states that he explained
what he could do and what his fees were but stated that he
wanted to be hired as an employee rather than as a contractor.
And in this regard, Morrow states that there was a discussion
about whether to hire him as an employee or an independent
contractor and that he was told that they wanted to think it
over. Finally, Morrow testified that he was asked if he would
sign a contract stating that he would not join a union. Nothing
was settled during this meeting and the employers
representatives said that they would contact Morrow.

According to Mr. Morrow, he received a phone call from
George Cassis on the evening of March 20 and was told that
the family had talked it over and that he, (Morrow), was hired
to begin on April 1 at $500 net pay per week.

53a
Appendix D

Morrow testified that on March 27, 1996 he filled out an
application form given to him by Ms. Shea and that he was told
to report to work immediately. He states that he also filled out
a tax withholding form, and that Shea, after looking at a chart,
figured out that he would have to have gross weekly earnings
of between $696 and $704 to reach a net weekly pay of $500.00.
At the same time, Morrow states that he spoke to Shea and
George Cassis who set up his work schedule as being from
Monday through Friday from 8 a.m. to 4 p.m. with the
commitment that he would also be available for emergencies.
He testifiec: that no-one said that this was going to be a
temporary jvb or that he was being retained as an independent
contractor. He also was told that Mr. Hoy was about to go on
vacation.

On March 28 Mr. Morrow was shown around the property
by Mr. Hoy who told him what his daily duties would be. Hoy
also took him over to Readers Hardware to introduce him there
so that he could make purchases on behalf of the Respondent.
In addition, Kathy Shea gave him a copy ofa list of backlogged
repairs that needed to be taken care of. Morrow began working
on this day and Mr. Hoy went on vacation on the following
day.

George Cassis testified that when he offered the position
to Mr. Morrow, he explicitly made the offer based on the
understanding that Morrow would be working 2s ai independent
contractor. Nevertheless, whatever words were used at the time
of the offer, (and I will credit Morrow’s version), the
determination of whether a person is an employee or
independent contractor is not dependent on the title used but
on the actual relationship between the individual and the
company. National Freight, Inc., 153 NLRB 1536 (1965).

54a

Appendix D

The test of whether an individual is an independent
contractor or an employee is the common law of agency
right-to-control test. NLRB v United Insurance Co., 390 U.S
254, 256, (1968). Pursuant to that test, an employer-employee
relationship exists when the employer reserves the right to
control not only the ends to be achieved, but also the means to
be used to achieve those ends. On the other hand, where the
control is reserved only as to the result, an independent contractor
relationship exists. Gold Medal Baking Co. Inc., 199 NLRB 895,
(1972). See also Standard Oil Co., 230 NLRB, 967, 968 (1987).

In the present case, the evidence indicates that Mr. Morrow
was hired to work for an indefinite duration, on a regularly
scheduled 8 hour day, and to perform work assigned to him
daily by the Respondent on its premises. He was to use the
tools and equipment of the Respondent and was, during his
scheduled hours, to work exclusively for the Respondent. That
the Respondent may have chosen to call him an independent
contractor is of no legal consequence, since it is clear to me
that the Respondent intended to retain the right to control not
only the ends to be achieved but also the means to be used to
achieve those ends.

(c) The discharges

In the second or third week of March 1996, Mr. Hoy met
with representatives of the Union and talked to them about the
possibility of having union renresentation. On or about March
22, 1996, he went to the Union’s office where he obtained union
authorization cards which he thereafter distributed to employees.

Mr. Hoy signed a union card on March 22, 1996 and he
was the person who solicited the others to sign the cards. Mr.
Cioffi, and Mr. Morrow signed union <*tds on March 25. Mr.

55a

Appendix D

Moody, although not signing a card himself, testified that he
authorized a Union representative to sign a card on his behalf,
after Hoy told him that he had forgotten, to sign the card that
Hoy had given him.

Contemporaneous with the above, Mr. Hoy and Mr. Cassis
got into a big argument over a matter unrelated to the Union
Mr. Cassis placed this argument as taking place on or abou:
March 21 whereas Mr. Hoy placed it on or about March 27. Ir
either event, the argument took place before the company was
aware of the Union and both sides agree that it was very heated.‘
According to Mr. Hoy, George Cassis accused him of ruining
his relationship with his family. At one point during the
argument, Cassis told Hoy to “get the fuck out,” and states that
he intended, by those words, to discharge Hoy. He acknowledges,
however, that he did not use the words, discharge or fire.

According to Mr. Hoy, after the argument, Ms. Shea to!d
him, later in the day, that she had talked to George’s mother,
(Carol Cassis), who told her that Hoy was not fired and that
although George was her son, she was still the boss.’ He also
testified that a day or two later, he met with Carol Cassis who
confirmed that his job was still secure. In this regard, Mrs.
Cassis testified that she went to the property on March 26, 1996
and that she had a conversation with Mr. Hoy on that date.
Both Mrs. Cassis and her other son, Emanuel, testified that
during the conversation, she asked if Hoy was coming back to

6. This argument did not come out of the blue as Hoy admitted
that before this time, his relationship with George Cassis was “awkward
at best.”

7. George Cassis testified that his mother had authority over him
in relation to the running of the business.

56a

Appendix D

work after his vacation and that when he said yes, she told him
that his job would still be there. It therefore is clear that despite
the blowup between George Cassis and Donald Hoy, the latter
was still employed by the Respondent when he left for his
vacation on April 1, 1996.

Union attorney, Mathew Parsanis, wrote a letter to the
company which was dated March 26, 1996 and signed by the
Union’s president, Robert L. Chartier. The letter was addressed
to Cassis Management, at 100 Brooklyn Avenue, Freeport, Long
Island, and, on Wednesday, March 27, 1996, was put in the
place where outgoing mail was picked up by the mailman. The
letter stated:

Please be advised that Local 32E of the Service
Employees International Union has been designated
by the employees of the bove captioned building
to act as their collective bargaining agent, pursuant
to the New York State Labor Relations Law.

In view of this designation, we are arranging an
appointment for Wednesday April 10, 1996 at 2:30
p.m. in our Bronx office and see Mr. Matthew
Persanis, Esq. to discuss the agreement covering
wages, hours, working conditions and benefits for
such employees.

In the event that this appointment cannot be kept,
please do not hesitate to contact this office to arrange
a convenient day and time.

Not receiving any response to this letter, the Union filed a
petition for an election in Case No. 2-RC-21674. This was
received in the Regional Office on April 3, 1996 at 2:36 p.m.

57a

Appendix D

Between March 22 and April 4, two new employees were
hired as porters. These were Charles Allien and Nicholas
Michel.

Assuming, as I do, that the mailman picked up the Union’s
letter on March 27, it would be extremely unlikely that the letter
would not have been received before April 4, 1996 when the
discharges occurred. Although George Cassis at first testified
that he was unsure if he got this letter before or after April 4,
and later testified that he received it on April 5, I don’t believe
him and I conclude that he received the letter on or before April
4. (I view as suspicious the fact that the Respondent, although
retaining the original of the letter, claims that it did not retain
the envelope which would have shown the date stamp. I also
view as suspicious the fact that the original had several things
written on it and then crossed out in such a manner that they
could not be read).

On the afternoon of April 4, Ms. Shea informed all the
employees, (except for Cioffi who had gone home early and
George’s son), that they were discharged. And in this regard,
Charles Morrow credibly testified that after Shea said that they
were all discharged, he got on the phone with George Cassis,
who said that he had gotten a letter from the Union, that he
didn’t want a union, and that they were all terminz ted.

On April 4, 1996, while Mr. Hoy was on vacation in F lorida,
he received a phone call from Ms. Shea. He credibly testified
that during the conversation, she told him that George Cassis
had called her from the Long Island Office and told her that
the men went to a I Inion and to fire everyone. (Although
denying that George Cassis said anything about a union, Ms.
Shea does concede that on April 4 she was told by him to fire
the entire crew).

58a
Appendix D

Louis Cioffi testified that he left early on April 4 because
he didn’t feel well and didn’t go to work on April 5 or 6. He
testified that when he called Donald Hoy on Sunday, April 7,
he was told that they were all fired. Cioffi took Hoy’s word for
it and did not report back to work. Instead, when the Union put
up a picket line, he participated in the picketing on one day.
Since it is clear from Shea’s testimony that she was directed to
discharge all of the workers, I conclude that Cioffi would have
been discharged on August 4 had he been present on that day
and that the message that he reczived from Hoy on April 7,
simply confirmed that state of affairs. I also note that the
Respondent did not communicate with Cioffi after April 7 in
an effort to have him return to work.

The Respondent argues that Morrow was never terminated
and that it is ready to use him as an independent contractor
when needed. It has, however, never offered him any more work
after April 4. Based on the credited testimony of Morrow, |
conclude that he was hired as an employee and that he was
discharged with the other employees on April 4.

The Respondent contends that it discharged Mr. Moody
because of his past poor attendance. A)though Mr. Moody may
have had a poor attendance recezu, the evidence shows that for
a long period of time the Respondent tolerated his absences,
apparently because George Cassis felt that Mr. Moody offered
good performance while at the job. I also note that in during
the 3 week period before April 4, Mr. Moody had no attendance
problems.

Based on the credited evidence, the only conclusion that |
can reach in this case is that having received the Union’s
demand for recognition, the Respondent, as it did in a prior

59a
Appendix D

case, responded by discharging the people employed at the
Mountain-view job site. (Retaining only Mr. Cassis’ son). This
conclusion is based on the timing of the discharges in relation
to the receipt of the recognition demand and on the credited
testimony of Mr. Hoy and Mr. Morrow. Although Mr. Alien
and Mr. Michel did not sign cards for the Union, (having been
only recently hired), this fact is not significant because the evi-
dence shows ‘hat George Cassis’ object was to remove the entire
crew because there was, in his mind, reason to believe that the
employees there might choose to be represented by a union.

Notwithstanding this conclusion, I must nevertheless
recommend that insofar as the Complaint alleges the unlawful
discharge of Mr. Hoy, this allegation should be dismissed
because of his supervisory status. Parker-Robb Chevrolet, Inc.
262 NLRB 402 (1982).

(d) The 8(a)(5) allegation

The evidence here shows that Mr. Hoy was a supervisor
and that he was the person who solicited and obtained the
authorization cards from Cioffi and Moody. As such, these cards
and his own, cannot form the basis for showing that the Union
represented a majority of the employees. Carl H. Neuman
d/b/a Sara Neuman Nursing Home, 270 NLRB 663 (1984).
Accordingly, as the General Counsel cannot show that a
majority of the employees voluntarily selected the Union as
their representative, the refusal to bargain allegation must be
dismissed.* In this regard, I view as distinguishable the cases

8. Even if I had concluded that Mr. Hoy was not a supervisor, |
would nevertheless find that the cards were tainted based on his
relationship between management and the employees. See for example
Elias Malluk Realty Corp., 265 NLRB 1225, (1982). At the time of the

(Cont'd)

60a
Appendix D

cited by the General Counsel in his Brief. For example, in
A.P.R.A. Fuei Oil, 309 NLRB 480, 498-99 (1992) the Board
held that the fact that a low level supervisor participated in the
union campaign, did not taint cards solicited by others. And in
United Artists Communications, 280 NLRB 1056 (1058), the
Board stated:

As the judge notes, supervisory participation in
the solicitation of authorization cards, normally
“taints” the cards, rendering them unreliable as
indicators of employee support for a union.
However, we agree with the judge that the normal
rule does not apply to the unusual circumstances in
this case. At the time, Tola solicited the cards, he
was scheduled for discharge, told the employees he
was being discharged, and asked the employees not
is tell management that he was soliciting cards. . . .
He did not make any promises of benefits or threats
of reprisals in regard to their employment in the
course of his solicitation of the authorization cards.
Indeed, three of the employees who signed
authorization cards for Local 5A had been strongly
advised as recently as 4 months earlier by
then-Theater Manager Mancuso against signing
union cards. . .

Thus, at the time the employees were solicited
by Tola to sign authorization cards for Local 5A in

(Cont'd)

demand for recognition, there were 5 employees plus Hoy. Of these,
Cioffi signed a card directly solicited by Hoy. Moody did not actually
sign a card, but asserts that he authorized a union agent to sign a card on
his behalf. Morrow signed a card at the Union's office in the presence
of Mr. Hoy. Alien and Miche! did not sign union cards.

senate iittala

6la
Appendix D

June 1982, they were well aware of the Respondent’s
strong opposition to unions, and had been threatened
with discharge if they joined a union. They were
also aware that Tila himself would soon be
discharged and wou therefore be incapable of
either rewarding them for Signing a card, or
punishing them for not doing so. Under these
circumstances, we agree with the judge that the
potentially objectionable effects of card solicitation
by a supervisor are not present in this case.

Conclusions of Law

1. By discharging Charles W. Morrow, Louis Cioffi, Joe
Elias Moody Jr. Charles Allien and Nicholas Michel, the
Respondent violated Section 8(a)(1) & (3) of the Act. .

2. By the conduct noted above, the Respondent has
engaged in unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.

3. The Respondent has not violated the Act in any other
manner alleged in the Complaint.

Remedy

Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered te cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

ee

62a

Appendix D

The Respondent having discriminatorily discharged
employees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed on
a quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).

On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended ”

ORDER

The Respondent, Cassis Management Corporation, its
officers, agents, successors, and assigns, shall

1. Cease and desist from
(a) Discharging or otherwise discriminating against

any employee for supporting Service Employees International
Union, Local 32E, AFL-CIO, or any other union,

(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.

9. If no exceptions are filed as Provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived
for all purposes.

—

Ee

63a
Appendix D

2. Take the following affirmative action necessary to
effectuate the policies of the Act.

(a) Offer Charles W. Morrow, Louis Cioffi, Joe Elias
Moody Jr., Charles Allien and Nicholas Michel, within 14 days,
of this order, immediate and ful] reinstatement to their former
jobs or, of those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them 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 decision.

(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges and notify
the employees in writing that this has been done and that the
discharges will not be used against them in any way.

(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and copying,
all payroll records, social security payment records, timecards,
personnel records and reports, ana all other records necessary
to analyze the amount of backpay due under the terms of this
Order.

(d) Within 14 days after service by the Region, post at
its facility in Dobbs Ferry, New York, copies of the attached
notice marked “Appendix,” Copies of the notice, on forms

10. If this Order is enforced by a Judgment of the United States
Court of Appeals, the words in the notice reading “POSTED BY ORDER
OF THE NATIONAL LABOR RELATIONS BOARD” shall read
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES
COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD.”

64a

Appendix D

provided by the Regional Director for Region 2, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. in the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees
employed by the Respondent at any time since April 11 1996.

(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps
that the Respondent has taken to comply.

(f) IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations of the Act not
specifically found.

Dated, Washington, D.C. September 30, 1996
s/ Raymond P. Green

Raymond P. Green
Administrative Law Judge

ae

65a

Appendix D
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 violated
the National Labor Relations Act and has ordered us to post
and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize

To form, join, or assist any union

To bargain collectively through representatives of
their own choice

To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Service Employees International
Union, Local 32E, AFL-CIO, or any other union.

WE WILL NOT in any like or related manner interfere with,
restrain, Or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s Order,
offer Charles W. Morrow, Louis Cioffi, Joe Elias Moody Jr.
Charles Allien and Nicholas Miche] immediate and full

66a

Appendix D

reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges previously
enjoyed and WE WILL make them whole for any loss of
earnings and other benefits resulting from their discharge, less
any net interim earnings, plus interest.

WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharges
of the aforesaid employees and WE WILL, within 3 days
thereafter, notify each of them in writing that this has been
done and that the discharges will not be used against them in
any way.

Cassis Management Corporation

(Employer)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by
anyone.

This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered with any other material. Any questions concerning this
notice or compliance with its provisions may be directed to the
Board’s Office, 26 Federal Plaza, Room 3614, New York, New
York 10278-0104, Telephone 212-264-0346

eS” tt

67a

APPENDIX E— ORDER OF THE UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT DENYING
PETITION FOR REHEARING FILED JULY 21, 1998

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

CAROLYN CLARK CAMPBELL,
CLERK

As a stated Term of the United States Court of Appeals for
the Second Circuit held at the United States Courthouse, Foley
Square, in the City of New York, on the 21st day of July, one
thousand nine hundred and ninety-eight.

Docket No. 97-4125 (L) & 97-4355 (XAP)

Cassis Management Corporation,

Petitioner-Cross-Respondent,

¥.

National Labor Relations Board,

Respondent-Cross-Petitioner.

A petition for rehearing containing a suggestion that the action
be reheard in banc having been filed herein by the Petitioner-
Cross-Respondent Cassis Management Corporation,

Upon consideration by the panel that decided the

appeal, it is Orderea that said petition for rehearing
is DENIED.

68a
Appendix E

It is further noted that the suggestion for rehearing in banc has
transmitted to the judges for the court in regular active service
and to any

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1005%3A1. Public record. Not legal advice.