Appendix — Shore Club Condominium Ass'n v. National Labor Relations Board

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT FILED FEBRUARY 28, 2005

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-15501

SHORE CLUB CONDOMINIUM ASSOCIATION, INC.,

a.k.a. SC CONDOMINIUM ASSOCIATION, INC.,

Petitioner-Cross-Respondent,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent-Cross-Petitioner.

Petitions for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

(February 28, 2005)

Before CARNES and COX, Circuit

Judges, and STROM?,

District Judge.

* Honorable Lyle E. Strom, United States District Judge for

the District of Nebraska, sitting by designation.

Appendix A

STROM, District Judge:

This case 1s before the Court on the petition of the Shore

Ciub Condominium Association, Inc. (“the Association’), to

review and set aside an order of the National Labor Relations

Board (“the Board”). The Association, a nonprofit Florida

corporation, provides maintenance and security services to

the owners and residents of the Shore Club Condominium.

The condominium property consists of a recreational area

and two residential towers in Fort Lauderdale, Florida. The

two residential towers, which contain 192 units and an above-

ground garage below each tower, are located at 1901 and

1905 North Ocean Drive. The recreational area, which

includes beach property, a recreational building, and a pool,

is located at 1912 North Ocean Drive. The Association

employs a lead maintenance employee and four other

maintenance employees, including one who functions

primarily as a painter, and three cleaners who perform

janitorial functions.

On April 3, 2003, the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, Local Union No. 390, AFL-CIO (“the Union”) filed

a petition with the Board seeking certification as the

collective-bargaining representative of the Association’s

maintenance employees. The Association opposed the

Union’s petition, claiming that the unit sought was

inappropriate because it consisted of domestic employees,

who are excluded by Section 2(3) of the National Labor

Relations Act (“the Act’), 29 U.S.C. § 151 et seq. Following

an evidentiary hearing on April 17, 2003, the Regional

Director issued a decision finding the following unit

Appendix A

appropriate for the purpose of collective bargaining: “All full-

time and regular part-time maintenance employees, including

but not limited to the main or lead maintenance employee,

painters and cleaners, employed by the [Association] at its

facility in Ft. Lauderdale, Florida, excluding all office

employees, security employees, guards and supervisors as

defined in the Act.” The Regional Director then conducted a

secret-ballot election in the specified unit on June 11, 2003,

in which there was a 5-0 vote in favor of representation by

the Union. Thus, on July 22, 2003, the Regional Director

certified the Union as the exclusive collective-bargaining

representative of the Association’s maintenance employees.

Following the certification, the Union requested

bargaining and the Association refused. The Union then filed

an unfair labor practice charge, asserting that the

Association’s refusal to bargain violated the Act. Upon an

investigation, the Board’s General Counsel issued a

complaint alleging that the Association violated Sections

8(a)(5) and (1) of the Act by refusing to bargain with the

Union. The Association filed an answer admitting its refusal

to bargain, but arguing that the Board had improperly certified

the Union. On September 30, 2003, the Board granted the

General Counsel’s motion for summary judgment and ordered

the Association to bargain with the Union. The Board held

that the employees in question were not domestic employees

within the meaning of Section 2(3) of the Act, and therefore

the Association violated Sections 8(a)(5) and (1) of the Act

by refusing to recognize and bargain with the Union.

The Association filed a petition for review on October

29, 2003, arguing that the Board erred when it failed to hold

MG oe me

Appendix A

that the unit employees were domestic employees excluded

from the Act’s coverage by Section 2(3). The Board filed a

cross-application for enforcement of the Board’s order on

November 25, 2003. We find that the Association’s position

is contrary to established Eleventh Circuit precedent and hold

that the Board’s order must be enforced.

Standard of Review

The Board’s finding of an unfair labor practice “must be

upheld if it is based upon substantial evidence contained in

the record taken as a whole, and based upon reasonable

inferences drawn from the facts as found.” NLRB. v. Imperial

House Condominium, Inc., 831 F.2d 999, 1006 (11th

Cir.1987). “Because of the Board’s ‘special competence’ in

the field of labor relations, its interpretation of the Act is

accorded substantial deference.” Jd. at 1005, citing Pattern

Makers’ League of North America v. NLRB, 473 U.S. 95,

100, 105 S.Ct. 3064, 3068, 87 L.Ed.2d 68 (1985). “[T]he

remedy chosen by the Board must ‘be given special respect

by reviewing courts.’ “ Imperial House, 831 F.2d at 1006,

citing NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n. 32,

89 S.Ct. 1918, 1939 n. 32, 23 L.Ed.2d 547 (1969). “So long

as the Board has made a plausible inference from the record

evidence, we will not overturn its determinations, even if

we would have made different findings upon a de novo review

of the evidence.” Cooper/T. Smith, Inc. v. NLRB, 177 F.3d

1259, 1261 (11th Cir.1999).

Appendix A

Discussion

Section 2(3) of the Act excludes from the definition of

“employee” anyone employed “in the domestic service of

any family or person at his home.” 29 U.S.C. § 152(3). The

Association argues that the employees at issue in this case

are “domestic” because they work for the owners in their

individual home units, and in the common areas, which the

Association claims are owned by the individual unit owners.

The Association employs a total of five employees who

perform various maintenance and cleaning services. The lead

maintenance employee is responsible for the installation,

repair and maintenance of various equipment in the common

areas of the buildings, but his job occasionally requires him

to enter an individual resident’s unit to perform maintenance

on air conditioning drain lines and condensation lines. The

Association also employs a full-time painter who maintains

the paint on the exterior and in the common areas of the

buildings. The painter performs some additional painting for

individual residents within their units, but he does that work

on his own time and is compensated by the resident rather

than the Association. Finally, the Association employs three

cleaners that are responsible for cleaning the common areas,

such as the elevators, lobbies, catwalks and stairwells, and

collecting newspapers from the trash bin for recycling.

The Association argues that the Board erred in finding

that these employees are not “domestic” employees within

the meaning of Section 2(3) of the Act. However, in 30 Sutton

Appendix A

Place Corp., 240 NLRB 752, 753 n.6 (1979), the Board held:

[T]here is a substantial difference between

employment by a single homeowner and

employment by a cooperative or condominium

entity. In the first instance, an individual and

personal relationship is created between the

homeowner and the employee; in the second

instance, the employee’s relationship with the

employer, the cooperative or condominium entity,

is no different from that of an employee

performing similar work for an apartment house

or office building entrepreneur. “Domestic service

implies employment on an individual and personal

basis and cannot be enlarged to include a

maintenance crew or clerical staff for a [47] unit

housing complex.” Success Apartments, Inc. v.

UAW, Local 376, 99 LRRM 3169, 3171 (1978).

See also Ankh Services, Inc., 243 NLRB 478 (1979).

Subsequently, in NLRB v. Imperial House Condominium,

Inc., this Court followed the Board’s decisions in 30 Sutton

Place and Ankh, in rejecting a Condominium’s contention

that employees involved in housekeeping activities were

exempt from the Act’s coverage as “domestic” employees

under Section 2(3):

It is clear that the Condominium’s housekeepers

are not employed by the unit owners in whose

home the housekeepers provide their services.

Appendix A

Although the housekeepers do render services to

the unit owners, they nevertheless perform these

services on behalf of and are clearly employed by

the Condominium, a Florida corporation.

831 F.2d 999, 1005 (11th Cir.1987). Based on this Court’s

decision in Jmperial House, we believe there is substantial

evidence to support the Board’s finding that the employees

at issue in this case are employed by the Association, rather

than the individual unit owners. Thus, the Board was

warranted in holding that these employees are not exempt

from the Act because they are not domestic employees within

the meaning of Section 2(3).

The Association argues that the United States Supreme

Court’s decision in NLRB. v. Kentucky River Community

Care, Inc., 532 U.S. 706, 121 S.Ct. 1861, 149 L.Ed.2d 939

(2001), requires that we reverse our holding in Jmperial

House. The Association makes a strong effort to persuade us

that the employees at issue in this case should be considered

domestic employees who are exempt from the Act. However,

we do not believe that the Supreme Court’s decision in

Kentucky River requires reversal of the /mperial House

decision.

The Association makes additional arguments under

Florida law and the United States Constitution. Specifically,

the Association argues that applying the Act to its employees

would destroy the concepts of state sovereignty and

federalism, and would violate the United States Constitution

in the following ways: (1) if the Union demanded money,

this could be a “taking” of the unit owners’ property in

Appendix A

violation of the Fifth Amendment; (2) if the Union demanded

information, this could be an unlawful search in violation of

the Fourth Amendment; (3) by striking, the Union could

prevent someone from living in their own home, which would

constitute a violation of due process; and (4) the Union could

interfere with the rights of the unit owners in a manner that

would be inconsistent with due process and equal! protection.

The Court has considered the Association’s arguments, and

finds them without merit. i.

Finally, the Association claims that it was prejudiced by

rulings of the hearing officer which precluded it from

introducing certain evidence at the hearing. For instance, the

Association claims that it should have been allowed to

question a Union representative about whether he lived in a

condominium, and that it should have been allowed to

introduce Exhibit 7 in its entirety into evidence. Upon

consideration of these arguments, the Court finds that the

rulings were within the discretion of the hearing officer, and

do not constitute prejudicial error. Thus, the Association’s

arguments on this issue are also rejected.

Conclusion

We conclude that there is substantial evidence to support

the Board’s finding that the employees at issue in this case

are not exempt from the Act because they are not domestic

employees within the meaning of Section 2(3). Moreover,

we reject the Association’s constitutional and evidentiary

arguments. Therefore, the Association’s petition to set aside

the Board’s order is denied, and the Board’s cross-application

for enforcement of the order is GRANTED.

APPENDIX B — DECISION OF THE NLRB

FILED SEPTEMBER 30, 2003

Shore Club Condominium Association, Inc., a/k/a S.C.

Condominium Association, Inc. and International

Brotherhood of Teamsters, Local Union No. 390, AFL-CIO

Case 12-CA-23262

September 30, 2003

DECISION AND ORDER

CHAIRMAN BATTISTA AND MEMBERS

LIEBMAN AND SCHAUMBER

This is a refusal-to-bargain case in which the Respondent

is contesting the Union’s certification as bargaining

representative in the underlying representation proceeding.

Pursuant to a charge filed on August 7, 2003,' the General

Counsel issued the complaint on August 22, 2003, alleging

that the Respondent has violated Section 8(a)(5) and (1) of

the Act by refusing the Union’s request to bargain following

1. The Respondent’s answer to the complaint states that it is

without knowledge as to the filing date, service, or mailing dates of

the charge by the Union, and therefore denies this allegation.

However, copies of the charge and affidavit of service are attached

as Exhs. G and | to the General Counsel’s motion and the Respondent

has not contested the authenticity of these documents. Further, the

Respondent admits that it received a copy of the charge. Accordingly,

we find that the Respondent has not raised any issue regarding filing

and service of the charge warranting a hearing. See, e.g., Corrections

Corp. of America, 330 NLRB 663 (2000), enfd. 34 F.3d 1321 (D.C.

Cir. 2000).

10a

Appendix B

the Union’s certification in Case 12-RC-8915. (Official notice

is taken of the “record” in the representation proceeding as

defined in the Board’s Rules and Regulations, Secs. 102.68

and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The

Respondent filed an answer admitting in part and denying in

part the allegations in the complaint and asserting affirmative

defenses.

On September 11, 2003, the General Counsel fiied a

Motion for Summary Judgment. On September 15, 2003, the

Board issued an order transferring the proceeding to the

Board and a Notice to Show Cause why the motion should

not be granted. The Respondent filed a response and cross-

motion for summary judgment.

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

Ruling on Motion for Summary Judgment

The Respondent admits its refusal to bargain, but contests

the validity of the certification based on its contentions in

the representation proceeding that the Board lacks

jurisdiction and that the unit employees are in the domestic

service of families and persons at their homes and, therefore,

are not “employees” under Section 2(3) of the Act.

All representation issues raised by the Respondent were

or could have been litigated in the prior representation

proceeding. The Respondent does not offer to adduce at a

hearing any newly discovered and previously unavailable

evidence, nor does it allege any special circumstances that

lla

Appendix B

would require the Board to reexamine the decision made in

the representation proceeding. We therefore find that the

Respondent has not raised any representatiop issue that is

properly litigable in this unfair labor practice proceeding.

See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162

(1941). Accordingly, we grant the Motion for Summary

Judgment.’

On the entire record, the Board makes the following

FINDINGS OF FACT

I. JURISDICTION

At all material times, the Respondent, a Florida

corporation, with an office and principal place of business

located at 1910 North Ocean Drive, Ft. Lauderdale, Florida,

has provided maintenance and security services to

condominium owners, most of whom are residents, at a

complex consisting of two residential buildings located at

1901 and 1905 North Ocean Drive, Ft. Lauderdale, Florida,

and a recreational facility located at 1912 North Ocean Drive,

Ft. Lauderdale, Florida. During the 12-month period

preceding issuance of the complaint, the Respondent, in

conducting its business operations described above, derived

gross revenues in excess of $500,000 and purchased and

received goods and materials valued in excess of $50,000

directly from points outside the State of Florida.’

2. The Respondent’s cross-motion for summary judgment and

request to dismiss the complaint are therefore denied.

3. The foregoing findings are consistent with the Regional

Director’s findings and the parties’ stipulation in the representation

proceeding.

12a

Appendix B

We find that the Respondent is an employer engaged in

commerce within the meaning of Section 2(2), (6), and (7)

of the Act and that the Union 1s a labor organization within

the meaning of Section 2(5) of the Act.

Il. ALLEGED UNFaiR LABOR PRACTICES

A. The Certification

Following the election held April 17, 2003, the Union

was certified on July 22, 2003, as the exclusive collective-

bargaining representative of the employees in the following

appropriate unit:

All full-time and regular part-time maintenance

employees, including but not limited to the main

or lead maintenance employee, painters and

cleaners, employed by Respondent at its facility

at Ft. Lauderdale, Florida excluding all office

employees, security employees, guards and

supervisors as defined in the Act.

The Union continues to be the exclusive representative

under Section 9(a) of the Act.

B. Refusal to Bargain

On various dates since about July 3, 2003, the Union

has requested the Respondent to bargain, and, since about

July 22, 2003, the Respondent has failed and refused. We

find that the Respondent’s conduct constitutes an unlawful

refusal to bargain in violation of Section 8(a)(5) and (1) of

the Act.

13a

Appendix B

CONCLUSIONS OF LAW

By failing and refusing on and after July 22, 2003, to

bargain with the Union as the exclusive collective-bargaining

representative of employees in the appropriate unit, the

Respondent has engaged in unfair labor practices affecting

commerce within the meaning of Section 8(a)(5) and (1) and

Section 2(6) and (7) of the Act.

REMEDY

Having found that the Respondent has violated Section

8(a)(5) and (1) of the Act, we shall order it to cease and desist,

to bargain on request with the Union, and, if an understanding

is reached, to embody the understanding in a signed

agreement.*

To ensure that the employees are accorded the services

of their selected bargaining agent for the period provided by

law, we shall construe the initial period of the certification

as beginning the date the Respondent begins to bargain in

4. We shall also order the Respondent to post the attached Notice

to Employees. The General Counsel’s complaint requests that the

Respondent be ordered to post the Notice in English, Spanish, and

Creole. However, the Respondent’s answer generally denies that the

requested relief is appropriate. Because there is no indication in the

submitted record that the election notices in the underlying

representation proceeding were posted in foreign languages, and the

complaint or motion does not set forth any factual basis for posting

the Notice in foreign languages, we shall leave to the compliance

stage of this proceeding the determination of whether the Notice

should also be posted in Spanish and Creole. See Triple A

Maintenance Corp., 283 NLRB 44, fn. 3 (1987).

l4a

Appendix B

good faith with the Union. Mar-Jac Poultry Co., 136 NLRB

785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd.

328 F.2d 600 (Sth Cir. 1964), cert. denied 379 U.S. 817

(1964); Burnett Construction Co., 149 NLRB 1419, 1421

(1964), enfd. 350 F.2d 57 (10th Cir. 1965).

ORDER

The National Labor Relations Board orders that the

Respondent, Shore Club Condominium Association, Inc., a/

k/a S.C. Condominium Association, Inc., Ft. Lauderdale,

Florida, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Refusing to bargain with International Brotherhood

of Teamsters, Local Union No. 390. AFL-CIO, as the

exclusive bargaining representative of the employees in the

bargaining unit.

(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. ,

2. Take the following affirmative action necessary, to

effectuate the policies of the Act.

(a) On request, bargain with the Union as the exclusive

representative of the employees in the following appropriate

unit on terms and conditions of employment, and if an

15a

Appendix B

understanding is reached, embody the understanding in a

signed agreement

All full-time and regular part-time maintenance

employees, including but not limited to the main

or lead maintenance employee, painters and

cleaners, employed by Respondent at its facility,

at Ft. Lauderdale, Florida excluding all office

employees, security employees, guards and

supervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at

its facilities in Ft. Lauderdale, Florida, copies of the attached

notice marked “Appendix.”° Copies of the notice, on forms

provided by the Regional Director for Region 12, 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 facilities 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

July 22, 2003.

5. 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.”

l6a

Appendix B

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.

Dated, Washington, D.C. September 30, 1003

Robert J. Battista Chairman

Wilma B. Liebman Member

Dennis P. Walsh Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

APPENDIX

Notice To EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we

violated Federal labor law and has ordered us to post and

obey this notice.

17a

Appendix B

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and

protection

Choose not to engage in any of these protected activities.

WE WiLL Nor refuse to. bargain with International

Brotherhood of Teamsters, Local Union No. 390, AFL-CIO

as the exclusive representative of the employees in the

bargaining.

WE Wit Nor 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, on request, bargain with the Union and put in

writing and sign any agreement reached on terms and

conditions of employment for our employees in the

bargaining unit:

All full-time and regular part-time maintenance

employees, including but not limited to the main

or lead maintenance employs, painters and

cleaners, employed by us at our facility at

Ft. Lauderdale, Florida excluding all office

employees, security employees, guards and

supervisors as defined in the Act.

SHorE CLus CoNDOMINIUM Assn. A/K/A

S.C. ConDoMINIUM Assn., INC.

18a

APPENDIX C — REGIONAL DIRECTOR’S

DECISION AND DIRECTION OF ELECTION

BEFORE THE NATIONAL LABOR RELATIONS

BOARD, REGION 12 DATED MAY 16, 2003

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

REGION 12

Case 12-RC-8915

SHORE CLUB CONDOMINIUM ASSOCIATION, INC.,

a/k/a S.C. CONDOMINIUM ASSOCIATION, INC.

Employer

and

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

LOCAL UNION NO: 390, AFL-C10?

Petitioner

1. The name of the Employer appears as amended at the hearing.

2 The name of the Petitioner appears as amended at the hearing,

and as further amended to reflect the correct name of the International

Union, and its affiliation with the AFL-CIO. I have taken official

notice of the correct name of the International Union and its affiliation

with the AFL-CIO. See www.teamster.org/about/constiiution/

article_i1_.htm and www.aflicio.org/aboutunions/unions/.

19a

Appendix C

REGIONAL DIRECTOR’S DECISION AND

DIRECTION OF ELECTION

Shore Club Condominium Association, Inc., also known

as (a/k/a) S.C. Condominium Association, Inc. (the

Employer) provides maintenance and security services to

condominium owners, most of whom are residents, at a

complex located in Fort Lauderdale, Florida. The complex

consists of two residential buildings, located at 1901 North

Ocean Drive (the South building) and 1905 North Ocean

Drive (the East building), and a recreational facility at 1912

North Ocean Drive. There are 192 units in the two residential

buildings, which are high rise towers located on the west

side of Route A1A, i.e. across A1A from the Atlantic Ocean.

The recreational area includes beach property, a recreational

building and a pool.

International Brotherhood of Teamsters, Local Union

No. 390, AFL-CIO (the Petitioner) filed a petition with the

National Labor Relations Board under Section 9(c) of the

National Labor Relations Act seeking certification as the

collective bargaining representative of a unit of maintenance

and security employees who “are really concierges,”

excluding office employees and management officials. A

hearing in this matter was held before a hearing officer.

Following the hearing, the parties each filed briefs with me.

The parties took different positions regarding the

following issues:

(1) The Petitioner asserts that the Board has jurisdiction

over the Employer’s operations, whereas the Employer denies

that it is engaged in commerce within the meaning of the

20a

Appendix C

National Labor Relations Act (the Act).

(2) The Employer refused to stipulate to the Petitioner’s

status as a labor organization. The Petitioner asserts that it is

a labor organization within the meaning of Section 2(5) of

the Act.

(3) The Petitioner contends that the petitioned-for

employees are employees within the meaning of Section 2(3)

of the Act,*? whereas the Employer asserts that they are

individuals employed in the domestic service of families or

persons at their homes, and therefore that the petition should

be dismissed. The Employer further argues, in effect, that

the United States Constitution requires this conclusion.

(4) The Employer further contends that the security

employees in the petitioned-for unit are employed as guards

as set forth in Section 9(b)(3) of the Act (i.e. they are

employed as guards to enforce against employees and other

persons rules to protect property of the employer or to protect

the safety of persons on the Employer’s premises), and that,

assuming for the sake of argument that the maintenance

employees are employees within the meaning of the Act, the

petitioned-for unit is inappropriate because it includes guards

and non-guards. The Employer also asserts that under Section

9(b)(3) of the Act, the Petitioner cannot be certified as the

representative of the Employer’s security employees because

it admits to membership employees other than guards. The

3. The Petitioner also stated its willingness to proceed if the

petitioned-for unit is found inappropriate and an alternative unit is

found appropriate.

21a

Appendix C

Petitioner contends that the Employer’s security employees

are not guards.

(5) Finally, the Employer contends that the hearing

officer made prejudicial errors in excluding certain

documents and testimony, and, simultaneously with the filing

of its post-hearing brief, the Employer filed a motion to

reopen the record to introduce the employment application

of an employee witness into evidence. The Petitioner has

not replied to the Employer’s motion.

I have considered the evidence and arguments presented

by the parties on each of the issues. As discussed below, I

conclude that the Board should assert jurisdiction over the

Employer’s operations; the Petitioner is a statutory labor

organization; the Employer’s employees are employees

within the meaning of the Act and are not domestics; the

employees who perform security functions are guards and

should be excluded from the unit; the hearing officer’s

evidentiary rulings are free from prejudicial error; and the

Employer’s motion to reopen the record is denied.

Accordingly, I have directed an election ina unit that consists

of approximately five employees. To provide a context for

my discussion of the issues, I will first provide the relevant

factual background in this case. Then, ! will present in detail

the facts and reasoning that support each of my conclusions

on the issues.

22a

Appendix C

RELEVANT FACTUAL BACKGROUND

The Employer has a board of directors, which is elected

by the individual members and operates the condominium

on their behalf. Most of the owners, or members, of the

Employer live in the units they own, although there are 11 or

12 non-resident owners.

The Employer’s resident manager reports directly to the

board of directors, and supervises the Employer’s entire staff

on a day-to-day basis.* The resident manager occupies one

of the 192 residential units and is available 24 hours a day,

seven days a week. It appears that he functions like a building

superintendent in an apartment complex.

The supervisor reports directly to the resident manager.

There are six security employees who report to the supervisor

and the resident manager. In addition, the Employer employs

a main, or lead maintenance employee,’ and four other

maintenance employees, including one who functions

primarily as a painter, and three cleaners who perform

janitorial functions. The maintenance employees report to

the resident manager.

4. The parties stipulated, and I find, that Richard Thornton, the

resident manager, and Kevin Noble, the supervisor (also referred to

as the lead guard), are supervisors within the meaning of

Section 2(11) of the Act inasmuch as they hire, fire or discipline

employees, and that Shirley Peffer, office manager, has authority to

discipline employees and is also a supervisor within the meaning of

Section 2(11) of the Act.

5. There is no contention or evidence that the main, or lead,

maintenance employee is a statutory supervisor.

23a

Appendix C

The complex has two security offices. The upper security

office is glassed in and located at the top of the main entrance

ramp to the complex, where there are security gates. It iS

staffed by a security employee at all times. The office contains

seven electronic monitors, phones, and receivers from

speakers in the garage. The monitors resemble small

television screens and display views from cameras dispersed

through the property. The cameras are always on. The upper

security office employees continually monitor the gates and

other areas of the property (including a tunnel under Route

A1A, between the recreational area and the residential

buildings) at all times, via motion detectors and via the

security monitors in the upper security office.

The lower security office is located at the rear of the

building and is also adjacent to an automatic gate entrance.

There are no electronic monitors at that office.

Some residents may have personal security alarm systems

installed in their units, but the Employer’s security employees

are not responsible for monitoring such personal security

systems.

The Employer has maintained a security manual since

about 1991. According to the resident manager, the security

manual is issued to all newly hired security employees, who

are required to read it. It is undisputed that copies of the

security manual are maintained in the security offices for

reference. However, one security employee, who has worked

for the Employer in that capacity for a year, testified that he

was never told to read the security manual, and has never

referred to it.

24a

Appendix C

The security employees do not carry or have access to

any weapons. The Employer does not require its security

employees to be licensed or certified, or to have any specific

skills other than proficiency in English. It prefers to hire

security employees who have some security experience,

experience in the hotel or motel industry, or other experience

dealing with the public. The Employer checks references on

applicants for security positions but does not call the police

and ask for fingerprints. Similar reference checks may be

made on applicants for maintenance employee (cleaner)

positions. There is some evidence that newly hired upper

gate security employees receive two days of on-the-job

training from the supervisor, or lead guard, and newly hired

lower gate security employees receive two days of on-the-job

training from the lower gate security employee who works

on the day shift. However, a security employee testified that

his training consisted of a 45 minute tour of the property

given by the supervisor, and instructions to greet guests,

accept packages, call cabs for residents, and help residents

with luggage from time to time, and that he never received

any other training from the Employer. The same employee

concedes that before working for the Employer he had

substantial experience as a security guard working for

security contractors.

Security employees working in the upper security office

deal primarily with guests of residents, and package deliveries

for residents, and observe the surveillance monitors. They

announce the arrivals of guests to residents and will not allow

the guests to enter without permission from the resident in

question. They also keep logs of guest visits and direct guests

as needed. In addition, they are the primary contact in

emergency situations and are responsible for calling 911 or

—.

25a

Appendix C

calling the resident manager to report certain types of security

incidents. They inform residents about the arrival of

packages, and sometimes help residents with carrying

packages to their units. Security employees also retain

custody of a resident’s package in the upper security office

until the delivery can be made directly to the resident.

Security employees assigned to the lower security office

deal primarily with contractors, delivery persons and other

commercial visitors, who are required to park their vehicles

at the rear of the premises, and who are not admitted without

confirmation from the relevant resident to the security

employees. Commercial visitors are given an identification

badge (or sticker) that shows the building and unit which

they are to visit. In addition, the security employees at the

lower security office maintain a log showing the visiting

worker’s name, company name, time in and out, unit visited,

and vehicle license. If such commercial visitors approach

the upper gate or park in the upper garage, the security

personnel at that location send them to the lower security

office. The Employer’s security employees require

trades-people to leave its premises after 5:00 P.M., and also

enforce the rule that guests may not use recreation facilities

without permission.

After issuing the identification badge the security

employee at the lower security office locks down the lower

gate and escorts the commercial visitor to the appropriate

elevator (which is key-operated) and directs him or her to

the proper floor. If the visitor refuses to wear the badge, the

security employee is to deny him entrance and call the

supervisor. In addition, the security employees at the lower

26a

—— Appendix C

gate are responsible for installing protective pads and flooring

in elevators when needed to protect them from tools,

equipment or other items being delivered or moved by

commercial visitors.

Both security employees and maintenance employees

wear radios to communicate with co-workers and supervisors.

In case of emergency there is a phone at the recreation center,

which calls directly into the upper security office. In the

exercise room there is a button that lights up an exterior light

placed so that it can be seen by the security employees

through a glass plate from their normal workstation.

Security employees lock down the lower gates each night

at about 9:00 p.m. At that point the security employee

assigned to that location starts making rounds, checking all

areas of the recreation center, going up elevators and to the

roofs of the two residential, buildings. There is evidence that

they make these rounds two times during a typical night shift.

When security employees see trespassers during their rounds,

the trespassers are often residents of neighboring properties,

using the Employer’s property as a shortcut. In those

instances, the security employees simply file an incident

report and permit the trespasser to continue. However, if the

trespasser 1s someone unknown to the security employee,

the security employee is to ask the trespasser to leave the

premises. If they refuse, the security employee files an

incident report and notifies the resident manager, but is not

supposed to physically force the trespasser to leave.

Security staff is responsible for filing incident reports

regarding any problems or breaches of the condominium rules

27a

Appendix C

and regulations. These may range from domestic disturbances

to vandalism to relatively minor matters such as a pickup

truck parked in the upper garage, or a trespasser on a bicycle.

Upper level security employees are also responsible for

calling 911 as needed. However, it appears that most often

security employees simply report incidents to the resident

manager.

The resident manager recalls only three incidents during

his 22 months on the job when the police were called to the

Employer’s premises, two times as a result of deaths, and

once because of damage to a light. The resident manager

was personally involved in all three of these calls, and it

does not appear that security employees made any of these

calls.

The recreation center is locked but residents have access

using a key, which also provides access to certain elevators

and the front entrances of the two residential towers. The

security guards carry a master key that allows access to almost

all areas. The security employees also hold certain keys,

including those for locks on chains restricting access to the

Employer’s grilling facilities. However, security employees

do not have access to the individual residents’ units and they

may only enter individual units when accompanied by their

supervisor.

The resident manager testified that apart from the

occasional courtesy assistance to residents, for example with

a heavy package, security guards perform only security

functions. In specific they do not perform concierge functions

aaa

28a

Appendix C

such as identifying dining and entertainment options,

securing reservations and such, and although they may

occasionally get a cab for a resident this is not part of their

job. A security employee testified that he calls cabs for

residents about two or three times a Week, that he was told

that was part of his job, and that he has assisted residents

with packages on about 40 occasions, although in most

instances, he merely delivers the packages a short distance

from the security office to the resident’s car.

The only cleaning or maintenance function performed

by the Employer’s security employees, is to clean occasional

messes when no maintenance employee is on duty and to

keep the security offices neat. There is no evidence that

security employees ever substitute for maintenance

employees.

The security staff wears white shirts with the Employer’s

logo on one sleeve, and their names on the other, and black

pants. This is distinct from the maintenance employees’ dark

khaki uniforms. The security employees do not wear any

marking or badge which identifies them as security guards.

The duties of the maintenance employees are distinct

from those of security employees, although on rare occasions

the main maintenance employee has worked as a substitute

security employee for a portion of a day. The “main”

maintenance employee does most of the installation and

repairs of equipment and lighting and pool heaters, and

performs indoor repairs and other maintenance work.

Occasionally he needs to enter residential units to perform

maintenance on air conditioning drain lines and condensation

29a

Appendix C

lines. A second maintenance employee spends 90 to 95

percent of his time painting outside. Occasionally, he

performs work inside residential units for individual

residents, and is compensated directly by those individuals.

However, the painter is on his own time and is not working

for the Employer when he performs work for an individual

resident. The three maintenance employees who work as

cleaners are primarily assigned to the South building, the

East building and the recreational facility, respectively. Their,

duties include cleaning elevators, lobbies, catwalks, and

stairwells, i.e. common areas, and carrying recycling. They

share some responsibilities for the common areas.

Security employees earn between about $7.75 per hour

and $8.50 per hour. Maintenance employees earn comparable

wages, except for the main maintenance employee, whose

wages are considerably higher. All employees receive similar

health insurance and other benefits.

The upper security office employees work the following

shifts: from 6:30 a.m. to 2:30 p.m., from 2:30 p.m. to 10:30

p.m., and from 10:30 p.m. to 6:30 a.m. seven days a week.

The lower security office employees work from 8:00 a.m. to

4:00 p.m. and from 4:00 p.m. to midnight, Mondays to

Fridays, and from 8:00 a.m. to 1:00 p.m. on Saturdays. The

lower gate is locked at other times. Maintenance employees

cover the hours from 7:30 a.m. to 6:00 p.m. weekdays and

from 6:30 a.m. to 2:30 p.m. on weekends, except for the main

maintenance employee, who works from 8:00 a.m. to 3:30

p.m. on Saturdays. The resident manager usually performs

any maintenance work, which needs to be done when there

are no other maintenance employees on duty. Occasionally

the supervisor assists him in this work.

30a

Appendix C

THE BOARD HAS JURISDICTION

OVER THE EMPLOYER.

The parties stipulated that the Employer is a Florida

corporation with its principal place of business located at

1910 North Ocean Drive, Fort Lauderdale, Florida, where it

is engaged in the business of providing maintenance and

security of residents, and that during the past 12 months, a

representative period of time the Employer, in the course

and conduct of its operations, derived gross revenues in

excess of $500,000 and purchased and received goods and

materials valued in excess of $50,000 directly from points

located outside the State of Florida. The Employer refused

to stipulate to the conclusion that it is an employer engaged

in commerce within the meaning of the Act. However, the

Board has long held that it has jurisdiction over the operations

of residential condominiums and cooperatives, which have

gross annual revenues in excess of $500,000 and more than

de minimis interstate commerce. 30 Sutton Place, 240 NLRB

752 (1979); Imperial House Condominium, 279 NLRB 1225

(1986), affd. 831 F.2d 999 (11% Cir. 1987); Riverdale Manor

Owners Corp., 311 NLRB 1094, fn. 1 (1993).

3la

Appendix C

THE PETITIONER IS A LABOR ORGANIZATION

WITHIN THE MEANING OF SECTION 2(5)

OF THE ACT. |

The record evidence establishes that the Petitioner

represents employees for the purpose of collectively

bargaining with employers as the exclusive representative

of employees with respect to wages, hours and other terms

and conditions of employment. Thus, the Petitioner has a

number of collective-bargaining agreements with employers,

which it administers on behalf of employees. It is further

undisputed that the Petitioner admits employees to

membership and that employees participate in the Petitioner’s

affairs by, among other things, attending meetings of its

Executive Board and participating in collective-bargaining

negotiations with employers. Based on all of the above I find

that the Petitioner is a labor organization within the meaning

of Section 2(5) of the Act.

THE PETITIONED-FOR UNIT CONSISTS OF

EMPLOYEES WITHIN THE MEANING OF SECTION

2(3) OF THE ACT RATHER THAN INDIVIDUALS

EMPLOYED IN DOMESTIC SERVICE.

On this issue the Employer also seeks to overturn years

of settled Board precedent, arguing that condominium

employees are individuals employed in the domestic service

of a family or person at his home. As established by the record

in this case, the condominium employees work for the entire

condominium association, rather than for any individual unit

owner. The employees perform the vast majority of their work

in common areas of the complex, which consists of 192 units

and has substantial amenities such as recreational, parking,

32a

Appendix C

security and maintenance services. On the rare occasions that

the employees must enter individual units to perform their

duties on behalf of the Employer, it is clearly to perform

work on behalf of the condominium association as a whole,

rather than as employees of an individual unit owner.

As the Board held in 30 Sutton Place Corporation, 240

NLRB 752, 753 (1979):

[U]nlike individual homeowners, present-day

condominiums and cooperatives, consisting of

numerous Owners acting in concert to manage and

maintain their collective properties, are engaged

in business having a significant impact on

interstate commerce. Accordingly, condominiums

and cooperatives fall within the Act’s

jurisdictional mandate.

The Board’s decision in Ankh Services. Inc., 243 NLRB 478

(1979), further supports the conclusion that the Employer’s

employees are employees within the meaning of the Act rather

than domestics, because the Employer consists of a

condominium association rather than an individual

homeowner or resident:

Here we are not presented with a few individuals

who are employed by the homeowner or resident

of the home in which they perform their domestic

services. Rather we are presented with a stipulated

unit of approximately 40 persons, each of whom

works from time to time in the homes or

residences of numerous clients and all of whom

33a

Appendix C

are employed by the Employer and not by the

clients. Thus our focus is on the principals to

whom the employer-employee relationship in

fact runs and not merely on the undisputedly

“domestic” nature of some of the services

rendered.

Ankh Services, Inc., 243 NLRB at 480 (emphasis supplied,

footnotes omitted); see also Imperial House Condominium,

279 NLRB 1225 (1986), affd. 831 F.2d 999 (11% Cir. 1987).

The Employer also contends that application of the Act

to its employees would be unconstitutional because it would

ignore the concepts of state sovereignty and federalism, in

that the Florida state constitution and state statutes enable

the use of a condominium legal structure and recognize

condominium owners’ right to claim a homestead exemption

from taxes, and therefore the employees of a condominium

are domestics and are not employees within the meaning of

the Act. This strained argument does not withstand scrutiny.

A finding that the employees of a condominium association

are covered by the Act does not in any manner prevent the

organization of condominium associations or negate the right

of individual condominium owners to claim a homestead

exemption under the Florida state constitution. Florida’s

sovereignty is not jeopardized by the Federal Government

exercising jurisdiction over employees who are employed

by an entity (a condominium), which is a creature of state

law. Indeed all corporations are, in a sense, creatures of the

states which incorporate them, but this does not preclude

the assertion of federal jurisdiction over a corporation’s

employees and its labor relations.

34a

Appendix C

I also find the Employer’s claims that the assertion of

jurisdiction over its employees would lead to an assortment

of other violations of the United States Constitution to be

without merit. The Employer contends that: (1) if the

Petitioner demanded money (from the Employer -—

presumably economic demands in collective-bargaining

negotiations) and the Act was interpreted to allow a strike,

this would be a “taking” of the homeowners’ property; (2) if

the Petitioner demanded information this could be an

unlawful search; (3) by striking the Petitioner could prevent

someone from living in their own home thus constituting

cruel and unusual punishment; and (4) the Petitioner could

interfere in homeowners’ rights in a manner inconsistent with

due process and equal protection. However, these purported

consequences do not flow from the Board’s mere recognition

of the rights of the Employer’s employees under the Act,

and of course, if the Petitioner was certified as the employees’

representative, there would be limits on its rights under the

Act.®

6. Similarly, the policy arguments raised by the Employer in its

brief are without merit.

35a

Appendix C

THE SECURITY EMPLOYEES ARE GUARDS

WITHIN THE MEANING OF SECTION 9(b)(3) OF

THE ACT AND MAY NOT BE INCLUDED INA UNIT

WITH THE EMPLOYER’S NON-GUARD

EMPLOYEES.

THE PETITIONER MAY NOT BE CERTIFIED AS

THE BARGAINING AGENT OF THE EMPLOYER'S

SECURITY EMPLOYEES BECAUSE IT ADMITS

NON-GUARDS TO MEMBERSHIP.

The Employer contends that the security personnel are

guards as defined in the Act. The Petitioner contends that

they are “concierges” and are not guards.

Section 9(b)(3) of the Act provides that the Board shall

not:

decide that any unit is appropriate .... if it

includes, together with other employees, any

individual employed as a guard to enforce against

employees and other persons rules to protect

property of the Employer or to protect the safety

of persons on the employer’s premises; but no

labor organization shall be certified as the

representative of employees in a bargaining unit

of guards if such organization admits to

membership, or is affiliated directly or indirectly

with an organization which admits to membership,

employees other than guards.

36a

Appendix C

A petition for employees found to be guards will be dismissed

when the union, which seeks to represent them, has members

who are not guards. A.D.T. Co., 112 NLRB 80 (1955); Brinks

Incorporated of Florida, 276 NLRB | (1985). It is undisputed

that the Petitioner admits non-guards to membership.

Accordingly, the real issue is whether the Employer’s security

employees meet the statutory definition of a guard.

In general the board and the Courts have held that

employees are guards where their security function (enforcing

safety and protection rules and regulations) is an essential

rather than an incidental part of their duties and

responsibilities. See McDonnell Aircraft Co. v. NLRB, 827

F2d. 324 (1987) (fire prevention workers); Baker Protective

Services, 289 NLRB 562 (1988) (service technicians); A. W.

Schlesinger Geriatric Center 267 NLRB 1363 (1983)

(maintenance workers).

The Board has consistently found that an employee need

not be in uniform or armed to be deemed a guard. Thus a

janitor who monitored security cameras and checked people

in at a security gate was found to be a guard. PECO Energy

Co., 322 NLRB 1074 (1997). Plainclothes security employees

were included in a unit with uniformed guards, where the

latter performed a range of traditional police functions. Burns

Security Systems, 188 NLRB 222 (1971). In Madison Square

Garden, 333 NLRB No. 77 (2001), the Board found that

certain supervisors of event staff employees were guards

within the meaning of the Act where the supervisors

constituted an “essential part” of an employer’s security

procedures and regularly performed security functions, which

required them to enforce rules against patrons and staff, and

to protect the employer’s facility, patrons and staff.

37a

Appendix C

The Petitioner seeks to show that the security employees

in this case are not guards within the Act but instead perform

a kind of concierge function. Petitioner cites 55 Liberty

Owners Corp., 318 NLRB 308 (1995) as being particularly

close to the instant facts. In 55 Liberty Owners the Board

found certain doorpersons and elevator operators were not

guards although the doorpersons were expected to monitor

surveillance monitors connected to cameras. The Board found

their guard functions to be incidental to their other

responsibilities.

The doorpersons and elevator operators do not

make rounds, are not trained in security, are not

armed, are instructed not to use physical force,

and do not present themselves as guards in their

appearance. They do not perform other guard-like

functions such as checking suspicious packages

or asking off-duty employees to leave. Their

guard-like functions of asking unauthorized

persons to leave (or enforcing in some manner the

no loitering and no-smoking rules) ... are

incidental to their primary non-guard duties and

there is no evidence that the doorpersons

enforce rules against employees or other

persons to protect the safety of persons on the

premises or the property itself.

55 Liberty Owners Corp. at 310 (emphasis added).

Contrary to the facts in 55 Liberty Owners, in the instant

case it appears that it is the non-guard duties which are

incidental to the security employees’ main guard functions

38a

Appendix C

including making regular rounds and enforcing rules for the

protection of residents and guests. Although the instant case

is somewhat similar to the facts in 55 Liberty Owners because

the employees in question did announce visitors, delivery

persons and contractors to residents, the employees in that

case did not provide visitors with identification tags, or check

on their whereabouts after 5:00 p.m. as the Employer’s

security employees do. Moreover, in addition to performing

certain courtesy functions performed by the Employer’s

security employees, such as announcing visitors, accepting

packages and mail, and carrying baggage on occasion, the

employees in 55 Liberty Owners were expected to greet and

open doors for residents. These duties are more akin to

“courtesy oriented and receptionist type” services than the

duties regularly performed by the Employer’s security

employees.

Petitioner also cites Ford Motor Company, 116 NLRB

1995 (1956) where the Board found that a receptionist was

not a guard. However, in that case, unlike the instant case,

the receptionist did not monitor security cameras or motion

detectors, make rounds, or take independent steps to enforce

security rules against visitors or guests. In making its finding

in Ford Motor Company, the Board relied on the fact that

the receptionist needed to call in plant guards to enforce the

security policies.

In the instant case the security employees are the only

ones performing guard functions and they call either their

manager or 911 depending on the situation. Indeed they are

the only employees performing any kind of security function.

39a

Appendix C

Wolverine Dispatch, Inc., 321 NLRB 796 (1996), another

case where a receptionist was not found to be a guard despite

performing similar guard functions to the guards in the instant

case, is also distinguishable because the receptionist’s guard

duties related solely to controlling entry to the front lobby,

and they primarily involved secretarial and administrative

duties, such as taking notes at meetings, doing clerical

computer entry and arranging for employees’ uniforms.

The security employees in the instant case more closely

resemble the employees found to be guards in Rhode Island

Hospital, 313 NLRB 343, 345-347 (1993) (security

dispatchers were guards because they monitored closed

circuit TV systems, were directly responsible for being alert

to any incident, situation, or problem which needs responsive

action and for reporting such incidents to the proper

authorities); MGM Grand Hotel, 274 NLRB 139, 140 (1985)

(the operators of a security system served to monitor and

report possible security problems and infractions and possible

life-endangering situations, even where other, armed security

guards were primarily responsible for enforcing security and

compliance with rules); AW Schlesinger Geriatric Center,

267 NLRB 1363 (1983) (security employees at a residence

for the aged had no training, weapons, OF uniforms, and

continued to perform maintenance functions, but sometimes

confronted trespassers and devoted 50 to 70 percent of their

time to security work); Crossroads Community Correctional

Center, 308 NLRB 558, 562 (1992) (employees at an inmate

work release program were found to be guards even though

they were told not to use physical force but to call the police

or supervisors; they had no specific training, uniforms, or

weapons; and they accompanied residents who were going

40a

Appendix C

cut to work, prepared reports on property damage, checked

for fire hazards and contraband possessions, received calls,

and received packages).

Based on the above, I find that the Employer’s security

employees are guards within the meaning of Section 9(b)(3)

of the Act, and should be excluded from the unit sought by

the Petitioner.

THE HEARING OFFICER’S EXCLUSION OF

EVIDENCE WAS PROPER AND DOES NOT

CONSTITUTE PREJUDICIAL ERROR. THE

EMPLOYER’S MOTION TO REOPEN THE

RECORD IS DENIED.

The Employer complains that the hearing officer

improperly precluded it from introducing certain evidence.

The Employer’s contentions are without merit.

The Employer’s attempt to engage in a detailed

examination of the employment experience of a security

employee before he worked for the Employer was correctly

deemed irrelevant by the hearing officer. As the hearing,

officer correctly found, the relevant inquiry concerned the

witness’ employment with the Employer, rather than his

previous employment. Moreover, the hearing officer afforded

the Employer substantial latitude in cross-examining the

witness with respect to his previous employment before

making her ruling. In addition, the Employer’s motion to

reopen the record to introduce that same witness’ application

for employment with the Employer to show that he applied

for a security position, rather than for “any position,” as he

4la

Appendix C

testified, is denied. The Empleyer has made no showing or

claim that the application in question was newly discovered

or was unavailable at the time of the hearing, as is required

pursuant to Section 102.65(e)(1) of the Board’s Rules and

Regulations. Yet, the Employer failed to file its motion or

offer the application in evidence until it filed its brief in this

matter, two weeks after the hearing.

With respect to the Employer’s claim that the hearing

officer improperly precluded its questioning of the

Petitioner’s agent as to whether he was a condominium owner

and as to the Petitioner’s potential representation of the

petitioned-for unit, it appears from the Employer’s brief and

arguments at the hearing that the Employer was engaged in

pure speculation that the Petitioner’s agent may be a

condominium owner. Accordingly, I find that the hearing

officer properly precluded the Employer from pursuing that

line of questioning.

Finally, the Employer claims that the hearing officer

should have permitted it to introduce in evidence the portion

of Employer Exhibit 7, which consists of approximately 112

pages of condominium documents.’ However, when the

hearing officer attempted to ascertain which portion of the

lengthy document the Employer sought to rely upon, counsel

for the Employer refused to specify any portion. Therefore,

the hearing officer properly rejected the exhibit and placed

it in a rejected exhibit file. Moreover, in his brief, counsel

for the Employer cites the rejected exhibit only for the

7. The portion of Employer Exhibit 7 consisting of the

Employer’s articles of incorporation was admitted in evidence.

ee ee ey eT ee

42a

Appendix C

proposition that a condominium owner cannot sell or lease

his or her unit without the permission of the other owners.

However, the President of the Employer’s Board of Directors

testified to this very point and his testimony was undisputed.

Accordingly, I have considered this evidence in reaching the

above conclusions.

For the foregoing reasons, | find that all of the

Employer’s assertions that the hearing officer committed

prejudicial error are without merit, and the Employer’s

motion to reopen the record 1s denied.

CONCLUSIONS AND FINDINGS

Based upon the entire record in this proceeding, and in

accordz.ace with the discussion above, I conclude and find

as follows:

1. The hearing officer’s rulings made at the hearing are

free from prejudicial error and are hereby affirmed.

2. The Employer is engaged in commerce within the

meaning of the Act, and it will effectuate the purposes of the

Act to assert jurisdiction herein.

3. The Petitioner, a labor organization, seeks to represent

certain employees of the Employer.

4. A question affecting commerce exists concerning the

representation of certain employees of the Employer within

the meaning of Section 9(c)(1) and Section 2(6) and (7) of

the Act.

43a

Appendix C

5. The following employees of the Employer constitute

a unit appropriate® for the purpose of collective bargaining

within the meaning of Section 9(b) of the Act:

All full-time and regular part-time maintenance

employees, including but not limited to the main

or lead maintenance employee, painters and

cleaners, employed by the Employer at its facility

at Ft. Lauderdale, Florida, excluding all office

employees, security employees, guards and

supervisors as defined in the Act.

DIRECTION OF ELECTION

The National Labor Relations Board will conduct a secret

ballot election among employees in the unit found appropriate

above. The employees will vote on the question of whether

or not they wish to be represented by the International

Brotherhood of Teamsters, Local Union No. 390, AFL-CIO

for the purposes of collective bargaining. The date, time and

place of the election will be specified in the notice of election

that the Board’s Regional Office will issue subsequent to

this decision.

A. Voter Eligibility

Eligible to vote in the election are those in the unit who

were employed during the payroll period ending immediately

8. As noted above, at the hearing the Petitioner indicated that it

wished to proceed to an election in an alternative unit if the

petitioned-for unit was found inappropriate.

44a

Appendix C

before the date of this Decision, including employees who

did not work during that period because they were ill, on

vacation or temporarily laid off. Employees engaged in an

economic strike who have retained their status as strikers

and who have not been permanently replaced are also eligible

to vote. In addition, in an economic strike that began less

than 12 months before the election date, employees engaged

in such strike who have retained their status as strikers but

who have been permanently replaced, as well as their

replacements, are eligible to vote. Unit employees in the

military services of the United States may vote if they appear

in person at the polls.

Ineligible to vote are (1) employees who have quit or

been discharged for cause since the designated payroll period;

(2) striking employees who have been discharged for cause

since the strike began and who have not been rehired or

reinstated before the election date; and (3) employees who

are engaged in an economic strike that began more than

12 months before the election date and who have been

permanently replaced.

B. Employer to Submit List of Eligible Voters

To ensure that all eligible voters may have the

opportunity to be informed of the issues in the exercise of

their statutory right to vote, all parties to the election should

have access to a list of voters and their addresses, which may

be used to communicate with them. Excelsior Underwear,

Inc., 156 NLRB 1236 (1966), NLRB v. Wyman-Gordon

Company, 394 U.S. 759 (1969).

45a

Appendix C

Accordingly it is hereby directed that within 7 days of

this Decision; the Employer must submit to the Regional

Office, an election eligibility list, containing the full names

and addresses of all the eligible-voters. North Macon Health

Care Facility, 315 NLRB 359, 361 (1994). This list must be

of sufficiently large type to be clearly legible. To speed both

preliminary checking and the voting process, the names on

the list should be alphabetized. Upon receipt of the list, I

will make it available to all parties to the election.

To be timely filed, the list must be received in the

Regional Office, 201 East Kennedy Boulevard, Suite 530,

Tampa, Florida 33602-5824, on or before May 23”, 2003.

No extension of time to file this list will be granted except

in extraordinary circumstances, nor will the filing of a request

for review affect the requirement to file this list. Failure to

comply with this requirement will be grounds for setting aside

the election whenever proper objections are filed. If you have

any questions, please contact the Regional Office.

C. Notice of Posting Obligations

According to Section 103.20 of the Board’s Rules and

Regulations, the Employer must post the Notices of Election

provided by the Board in areas conspicuously visible to

poteatial voters for a minimum of 3 full working days prior

to tke date of the election. Failure to follow the posting

requirement may result in additional litigation if proper

objections to the election are filed. Section 103.20(c) requires

an employer to notify the Board at least 5 full working days

prio: to 12:01 a.m. of the day of the election if it has not

received copies of the election notice. Club Demonstration

46a

Appendix C

Services, 317 NLRB 349 (1995). An employer who fails to

do so may not file objections based on the non-posting of

the election notice.

RIGHT TO REQUEST REVIEW

Under the provisions of Section 102.67 of the Board’s

Rules and Regulations, a request for review of this Decision

may be filed with the National Labor Relations Board,

addressed to the Executive Secretary, 1099 14th Street, N.W.

Washington, D.C. 20570-0001. This request must be received

by the Board in Washington by 5 p.m., EST, on May 30,

2003. This request may not be filed by facsimile.

DATED at Tampa, Florida, this 16" day of May 2003.

Rochelle Kentov, Regional Director

National Labor Relations Board, Region 12

201 E. Kennedy Boulevard, Suite 530

Tampa, FL 33602

CLASSIFICATION INDEX

220-2525-0100

260-6704

177-3925-2000

177-3925-4000

177-2484-2500

339-7575-7500

339-7575-7575

401-2575-2800

401-2575-2825

401-2575-2850

460-7550-4500

[Supreme ¢ Court, U- U.S

FILED |

AUG 3 ~ 2005

CFFICE OF THE anc |

No. 04-1603

“Sn the Supreme Court of the Gnited States

SHORE CLUB CONDOMINIUM ASSOCIATION, INC., AKA

SC CONDOMINIUM ASSOCIATION, INC., PETITIONER

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CiRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS

BOARD IN OPPOSITION

PAUL D. CLEMENT

ARTHUR F. ROSENFELD Solicitor General

Acting General Counsel “ nr sapcl J waste

epartment of Justice

ge sire renee ey a Washington, D.C. 20530-0001

JOHN H. FERGUSON (202) 514-2217

Associate General Counsel

LINDAJ. DREEBEN

Assistant General Counsel

ANNE MARIE LOFASO

Attorney

National Labor Relations

Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether the National Labor Relations Board

reasonably found that individuals employed to perform

maintenance work in the common areas of a con-

dominium complex were employees under Section 2(3)

of the National Labor Relations Act, 29 U.S.C. 152(3),

and not excluded from the Act’s coverage as “employed

* * * in the domestic service of any family or person at

his home” under that section.

(I)

TABLE OF CONTENTS

Page

Rg ee Pere ers ST ere TT Tere cere re Circe 1 -

INE SN ean sas sds cee Nde backs ieee en aenenet 2

I Serie Some sae bed 14 bah as be okt nwes coed ak pec kien 7

RNIN 5s 5s Cine ck 6 bE Tp oa ah oS Oa Oe bb kn eee 13

TABLE OF AUTHORITIES

Cases:

Ankh Servs., Inc., 243 N.L.R.B. 478 (1979) ....... 2, 4,8

Bayside Enters., Inc. v. NLRB, 429 US. 298

CREED shee ad oak cues aoe beanie eee bacas 7

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 437

CRI isa vk ck seed or ees cd Sek vs WES ees 7

Federal Maritime Comm’n v. South Carolina

State Ports Auth., 585 U.S. 743 (2002) ............ 12

Holly Farms Corp. v. NLRB, 517 U.S. 392 (1996) ..... 7

Imperial House Condominium, 279 N.L.R.B.

1225 (1968), aff'd, 831 F.2d 999 (11th Cir.

a Raa ey Peace Sam ALA prc M rN cog oon hoi MOEN oe 4, 10

Leisure Village Ass’n, 236 N.L.R.B. 102 (1978) ....... 9

NLREB v. Imperial House Condominium, Inc.,

831 F.2d 999 (11th Cir. 1987) .............. 2, 6, 8, 10

NLRB v. Kentucky River Community Care,

FUE, Te Wit TOMAOOED Geo Sse bec chee 7,10, 11

Point East Condominium Owners Ass’n, 193

PERS LTRS 5 oc es Vai cdo w awe s 6k So eke Feee 9

30 Sutton Place, 240 N.L.R.B. 752 (1979) ........ 9,10

(IIT)

Constitution and statute: Page

U.S. Const.:

EB ee a Sh hae ia wa ob eo eee e eek bee 5

I ee ee ik Saw is add bho Gees cae 12

Just Compensation Clause ..................05. 12

National Labor Relations Act, 29 U.S.C. 151

et seq.:

$20), 22 U.S.C. 1628) 2... 56.66 c8 es 2, 4, 7, 8, 10, 11

Bl) ae A MOEA) oes vc dakcs ce ebcns 10, 11

BONO NA), Be A, ROOD) ci ic este nc ssc utedese 6

§ Sand), ZOU S.C. 1G8(aNG) . 2... sca kc cceweee 6

Sone) oe ss. IBDN) ooo ces ce eeeee’ 3

Miscellaneous:

S. Rep. No. 1184, 73d Cong., 2d Sess. (1984) .......... 8

In the Supreme Court of the Gnited States

No. 04-1603

SHORE CLUB CONDOMINIUM ASSOCIATION, INC., AKA

SC CONDOMINIUM ASSOCIATION, INC., PETITIONER

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS

BOARD IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-8a)

is reported at 400 F.3d 1336. The decision and order of

the National Labor Relations Board (Pet. App. 9a-17a)

is reported at 340 N.L.R.B. No. 82. The decision and

direction of election of the Board’s regional director for

Region 12 (Pet. App. 18a-46a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

February 28, 2005. The petition for a writ of certiorari

was filed on May 27, 2005. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. Section 2(3) of the National Labor Relations Act

(NLRA or Act) defines “employee” for purposes of the

Act. That definition excludes “any individual employed

* * * in the domestic service of any family or person at

his home.” 29 U.S.C. 152(8).

In determining whether an employee is “employed

* * * in the domestic service of any family or person at

his home” under Section 2(3), the National Labor Rela-

tions Board focuses “on the principals to whom the

employer-employee relationship in fact runs and not

merely on the * * * ‘domestic’ nature of * * * the

services rendered.” Ankh Servs., Inc., 248 N.L.R.B.

478, 480 (1979). The Board, with judicial approval, has

held that workers performing maintenance and cleaning

work at a condominium are not employed “in the domes-

tic service of any family or person at his home,” where

they perform those services “on behalf of and are clearly

employed by” the incorporated condominium associa-

tion. See NLRB v. Imperial House Condominium, Inc.,

831 F.2d 999, 1005 (11th Cir. 1987).

2. Petitioner is a nonprofit Florida corporation that

provides maintenance and security services to condo-

minium owners at a condominium complex consisting of

two high rise residential buildings, which have a total of

192 condominium units, and one recreational facility.

Pet. App. 2a, lla, 19a, 30a. Petitioner is controlled by a

board of directors, which is elected by the owners of the

condominium units. /d. at 22a. A resident manager su-

pervises petitioner's entire staff and reports directly to

the board of directors. /bid. He functions like a build-

ing superintendent in an apartment complex and is

available 24 hours a day, seven days a week. I[bid.

Petitioner employs five maintenance employees, in-

cluding one lead maintenance worker, one painter, and

three janitors, all of whom report to the resident man-

ager. Pet. App. 22a. They wear dark khaki uniforms, id.

at 28a, and use radios to communicate with one another,

id. at 26a. The lead maintenance employee is responsi-

ble for installing, repairing, and maintaining equipment,

such as lighting and pool heaters, in the common areas

of the building. Jd. at 5a, 28a. Occasionally he enters

residential units to perform work on behalf of petitioner,

such as maintenance on air conditioning drain lines and

condensation lines. Jd. at 5a, 28a, 32a. The painter

spends 90 to 95% of his time painting outside. On his

own time, he may perform work inside residential units

and receive payment directly from the individual resi-

dent. Jd. at 29a. Each of the three janitors is assigned

to one of the three buildings. The janitors spend their

time carrying recycling materials and cleaning common

areas, such as the elevators, lobbies, catwalk, and stair-

wells. [bid.

3. On April 3, 2003, the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, Local Union No. 390, AFL-CIO (Union), filed

a petition with the Board seeking certification as the

collective-bargaining representative of petitioner’s five

maintenance employees.’ Pet. App. 2a. Petitioner op-

posed the Union’s election petition, claiming, inter alia,

The Union’s petition sought to include petitioner’s security em-

ployees in the bargaining unit. The Board’s regional director concluded

that those security employees were guards, who, under Section 9(b)(3)

of the NLRA, 29 U.S.C. 159(b)(3), could not be represented in a unit

that included nonguards. Pet. App. 35a-40a. The Union did not contest

thatruling. The status of petitioner’s security employees was therefore

not before the court of appeals and is not before this Court.

that the petitioned-for unit was inappropriate, because

the maintenance employees were employed in the do-

mestic service of families or persons at their homes and

therefore excluded by Section 2(3) of the Act. Jbid.

Following a hearing, the Board’s regional director

issued a decision, finding, in relevant part, that peti-

tioner’s maintenance employees were covered by the Act

and directing an election in a unit of “[aJll full-time and

regular part-time maintenance employees * * * em-

ployed by [petitioner] at its facility in Ft. Lauderdale,

Florida.” Pet. App. 3a, 12a, 43a. In finding that the five

maintenance workers were not individuals “employed

* * * in the domestic service of any family or person

at his home,” the regional director “focus[ed] * * * on

the principals to whom the employer-employee relation-

ship in fact runs.” Pet. App. 33a (quoting Ankh Servs.,

Inc., 243 N.L.R.B. 478, 480 (1979), and citing /mperial

House Condominium, 279 N.L.R.B. 1225 (1968), aff'd,

831 F.2d 999 (11th Cir. 1987)). The regional director

observed that “(t]he employees perform the vast major-

ity of their work in common areas of the complex,” Pet.

App. 3la, and that when they enter individual units on

rare occasions to perform maintenance on air condition-

ing lines, they perform work on behalf of petitioner, and

not as employees of individual unit owners. /d. at 29a,

32a. The regional director concluded that the five main-

tenance employees “work for the entire condominium

association, rather than for any individual unit owner.”

Id. at 31a.

The regional director rejected petitioner’s contention

that applying the Act to its maintenance employees

would violate principles of state sovereignty and federal-

ism because the State recognizes the use of the condo-

minium legal structure and permits condominium own-

ers to claim a homestead exemption on their state tax

returns. Pet. App. 33a. The regional director explained

that application of the Act would neither prevent the

organization of condominium associations nor preclude

individual condominium owners from claiming a home-

stead exemption under the Florida state constitution.

Ibid. The regional director further explained that

“Florida’s sovereignty is not jeopardized by the Federal

Government exercising jurisdiction over employees who

are employed by an entity (a condominium), which is a

creature of state law.” /bid. The regional director

noted that corporations, like condominiums, are “crea-

tures of the state which incorporate[s] them, but this

does not preclude the assertion of federal jurisdiction

over a corporation’s employees and its labor relations.”

Ibid. Rejecting petitioner’s remaining constitutional

claims, based on the Fourth and Fifth Amendments, the

regional director found that the Board’s recognition of

the rights of employees would not itself result in any of

the consequences—such as a taking of the owners’ prop-

erty or the imposition by the government of “cruel and

unusual punishment”—that petitioner claimed would

violate its constitutional rights. /d. at 34a. The Board

subsequently denied petitioner’s request for review of

the regional director’s decision and direction of election.

Id. at 3a.

On June 11, 2003, the regional director conducted a

secret-ballot election in the specified unit. Pet. App. 3a.

By a 5-0 vote, the Union won the election. /bid. The

regional director then certified the Union as the exclu-

sive collective-bargaining representative of petitioner’s

maintenance employees. /d. at 3a, 12a, 43a.

When petitioner subsequently refused to bargain, the

Union filed an unfair labor practice charge. Pet. App.

3a, 12a. The Board’s General Counsel issued a coni-

plaint, alleging that petitioner’s refusal to bargain vio-

lated Section 8(a)(5) and (1) of the Act, 29 U.S.C.

158(a)(5) and (1). Pet. App. 3a. Finding that all issues

relevant to the unfair labor practice charge were, or

could have been, litigated in the representation proceed-

ing, the Board granted summary judgment, decreeing

that petitioner had violated Section 8(a)(5) and (1) of the

Act, and ordered petitioner to bargain on request with

the Union. /d. at 10a-13a.

4. Petitioner filed a petition for review in the court

of appeals, and the Board filed a cross-application for

enforcement of its order. The court of appeals denied

the petition for review and enforced the Board’s bar-

gaining order. Pet. App. la-8a.

The court of appeals upheld the Board’s determina-

tion that petitioner’s maintenance workers did not fall

within the “domestic service” exemption of Section 2(3),

relying on its prior decision in NLRB v. Imperial House

Condominium, Inc., 831 F.2d 999, 1001, 1005 (11th Cir.

1987). In that case, the court had held that employees

involved in housekeeping activities at a condominium

were not exempt as “domestic” employees, because they

were not employed by owners of condominium units to

whom the housekeepers rendered services, but per-

formed their-services “on behalf of and are clearly em-

ployed by the Condominium, a Florida corporation.”

Ibid. Noting the evidence that the five maintenance

workers employed by petitioner similarly work almost

exclusively in the common areas, the court held that sub-

stantial evidence supported the Board’s finding “that the

employees at issue in this case are employed by the As-

sociation, rather than the individual unit owners,” and

that therefore the Board “was warranted in holding that

these employees are not exempt from the Act because

they are not domestic employees within the meaning of

Section 2(3).” Pet. App. 7a.

The court summarily rejected petitioner’s contention

that this Court’s decision in NLRB v. Kentucky River

Community Care, Inc., 582 U.S. 706 (2001), required a

different result. Pet. App. 7a. The court also summarily

rejected petitioner’s constitutional arguments. /d. at 7a-

9a.

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or

any other court of appeals. Further review is therefore

unwarranted.

1. As this Court has recognized, the Board’s inter-

pretation of the term “employee” in Section 2(3) of the

Act is entitled to deference if it is based on a reasonable

construction of the statute. Holly Farms Corp. v.

NLRB, 517 U.S. 392, 398-399, 409 (1996) (“appropriate

weight * * * must be given to the judgment of the

agency whose special duty is to apply th[e} broad statu-

tory language to varying fact patterns”) (citing Bayside

Enters., Inc. v. NLRB, 429 U.S. 298, 304 (1977)); see

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 437, 843 (1984).

As this Court has further recognized, the Board and

reviewing courts “must take care to assure that exemp-

tions from NLRA coverage are not so expansively inter-

preted as to deny protection to workers the Act was de-

signed to reach.” Holly Farms Corp., 517 U.S. at 399.

Consistent with those principles, the court of appeals

correctly affirmed the Board’s determination that the

maintenance employees employed by the condominium

association are “employee[s]” and are not “employed

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.