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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 820

## Text

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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.

2a
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

3a

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

4a

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).

Sa

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

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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.

7a

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

8a

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.

9a

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

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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

(c) 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.

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

ee

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.

ha

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

v.
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
I IO © sncidhs's Sak uckar wn dbecnvenencses aly denres 1
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)

IV

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

v.

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.

3

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.

4

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-

5

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.

6

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

7

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0961%3A2. Public record. Not legal advice.