 DECISIONS OF NATIONAL LABOR RELATIONS BOARDNew York Chinatown Senior Citizens Coalition Cen-ter, Inc. and April C. Sung. Case 2-CA-14555December 6, 1978DECISION AND ORDERBY CHAIRMAN FANNING AND MEMBERS JENKINSAND TRUESDALFOn August 1, 1978, Administrative Law JudgeThomas A. Ricci issued the attached Decision in thisproceeding. Thereafter, the General Counsel and theCharging Party filed exceptions and supportingbriefs.Pursuant to the provisions of Section 3(b) of theNational Labor Relations Act, as amended, the Na-tional Labor Relations Board has delegated its au-thority in this proceeding to a three-member panel.The Board has considered the record and the at-tached Decision in light of the exceptions and briefsand has decided to affirm the rulings, findings, andconclusions' of the Administrative Law Judge andto adopt his recommended Order.ORDERPursuant to Section 10(c) of the National LaborRelations Act, as amended, the National Labor Re-lations Board adopts as its Order the recommendedOrder of the Administrative Law Judge and herebyorders that the complaint be, and it hereby is, dis-missed in its entirety.While we do not adopt all of the commentary in the Administrative LawJudge's Decision, we agree with his conclusion that Respondent lawfullydischarged Moy. Chung, and Lau since the thrust and purpose of theiractivities was to effect a change in the top management of their Employer.See Retail Clerks Union, Local 770 Retail Clerks International Association,208 NLRB 356 (1974).DECISIONSTATEMENT OF THE CASETHOMAS A Ricci, Administrative Law Judge: A hearingin this proceeding was held on April 27 and 28, 1977, andon March 6, 1978, on complaint of the General Counselagainst New York Chinatown Senior Citizens CoalitionCenter, Inc., here called the Respondent or the Employer.The complaint issued on March 2, 1977, upon a chargefiled on October 15, 1976, by April C. Sung, here called theCharging Party. The issue presented is whether, as chargedby Ms. Sung, the Respondent discharged William Chung,Peter Moy and Linda Lau in violation of Section 8(a)(1) ofthe statute.Upon the entire record, and from my observation of thewitnesses, I make the following:FINDINGS OF FACTI. JURISDICTIONAL FACTSNew York Chinatown Senior Citizens Coalition Center,Inc., is a nonprofit corporation existing under the laws ofthe State of New York. It maintains a place of business inNew York City where it is engaged in providing hotlunches, recreational activities and educational facilitiesand other social services for senior citizens. During the pastyear, a representative period, it operated on a budget ofabout $130,000 which it received from the New York CityDepartment of Social Services. Of this amount 75 percentconsisted of funds furnished by the United States Govern-ment through its Department of Health, Education, andWelfare. The remainder came from the city and State ofNew York in equal amounts.I find that this ce lter is engaged in commerce within themeaning of the Act. Child and Family Service of Springfield,Inc., 220 NLRB 37 (1975).II. THE ALLEGED UNFAIR LABOR PRACTICESA. IntroductionThis case presents a classic story of personality clashesunfortunately not uncommon in human experience. Thestresses of life, the unending variances in individual con-ceptions of social responsibility, the ego of man-and ofwomen-brought the actors of this play into inevitableconflict. The end result was, as it had to be, permanentseparation of irreconcilable personalities.The state setting was a very large room in the basementof a church on Duane Street, on the edge of New YorkCity's Chinatown. Here are carried on the activities of theNew York City Chinatown Senior Citizens Coalition Cen-ter, a Government-funded social service project. Every dayhundreds of elderly persons-all Chinese-gather here tospend the time of day safely, happily, in a beneficial andconstructive environment. They receive free lunches andan afternoon snack, expert advice on the usual problems ofthe aged-such as Medicare benefits, social security rights,information about nursing and convalescent homes whennecessary, and even periodic medical assistance. Every sooften groups of these so-called senior citizens go for a pic-nic into the park. Of all the people who gather here very,very few speak any English. They are distinctly ethnic inboth language and cultural tradition.The Center is run at the top by a board of governorsconsisting of businessmen and other important members ofthe Chinese community. They do not personally come nearthe place. They appoint an executive director, whose officeis at the Center and who is in charge of everything all daylong. He hires-and fires--at least three full-time employ-ees: A social worker, a bookkeeper, and a cook. There area few part-timers, such as assistant cooks, dishwashers,etc., but whether these are also paid employees is not clearon the record. Much help, however, is given by volunteers;these are themselves senior citizens who spend their time atthe Center anyway. They help serve the meals, assist in thekitchen, distribute fruits. atid generally help with the oldpeople one way or another. After all, they are there be-614 N.Y. CHINATOWN SENIOR CITIZENS COALITIONcause they have nothing else to do, and how better pass thetime of day than by helping others in a nice way?During the month of July 1976, the position of directorwas vacant, the last incumbent having left. Linda Lau, for2 years the social worker, was acting director and occupiedthe director's office. William Chung, the bookkeeper, whoworked in another office, had three times during the prior2 years applied for the director's job but been rejected bythe board of governors, his last attempt failing only theprevious month. The board appointed a new director-Mr.Peter Lee-on July 16. Word of this got about, and Leefirst appeared at the Center to assume his duties on August2. There was born that day, and there continued to flarethereafter with one incident following another, a pervasivediscord between Lee and the three full-timers--Lau,Chung, and Peter Moy, the cook, that ended with this pro-ceeding. On September 7 Lee fired all three of them. Aftera whole month and 8 days a charge was filed on theirbehalf with the National Labor Relations Board contend-ing that the things they did after Lee arrived, and whichcaused them to lose their jobs, were "protected" by theTaft-Hartley Act.B. Some FactsLee, as a witness, started by saying that when he arrivedon August 2, Lau came to work 2 hours late, at I a.m. Laudenied this. I do not know what time she came to work butjudging from other evidence of her independent spirit onthe job, it may well be she did as she thought best even asto work starting time. But what happened next is not inquestion. Lee asked her to move out of the office; as Lautestified, "he wanted to take my office." It will be remem-bered Lau had been acting director for a month by thistime. She refused to move out-as simply as that. Again inher own words: "I just cursed with him." She had neverbefore seen the man.From this Lee went to Chung, the bookkeeper. He toorefused to budge: "I told him [Lee] this is a public placeand the accounts in the Center have to be placed in a saferoom." Now Lee asks Chung for the key, and Chung sayshe does not have one. Later he finds it and produces it. Leethen asks for the keys to the cabinets; again Chung saysthey are in the hands of the board of governors. Lee neverdid get them until 2 weeks later.Throughout the month of August there continued a pro-gressively more and more aggravated bickering betweenthese employees and Lee. Many of the areas in which theemployees disagreed with the director involved how bestthey might discharge their duties, including what hoursthey should spend inside the Center. Lee testified they tooktoo long for lunch, arrived too late, came and went as theysaw fit despite his repeated instructions that they were notto take time away from work during scheduled hours.Chung and Lau did not really contradict this testimony. Asto what they thought they had a right to do in connectionwith their duties, there is little conflict in the testimony.Although the witnesses all too often mixed their factualstatements with mutual exchanges of criticism and faultfinding, some facts do appear clearly.One of the things Lee announced at early staff meetingswas that anyone wishing to take a vacation must first givehim 2 weeks advance notice. On August 19 Chung handedhim a memo asking for a week off starting the 20th. Thedirector told him not to do that, but Chung ignored himand left anyway. There is a billiard table in the middle ofthe general area where the old people play to pass time.Chung testified Lee gave orders that the full-time staffmembers were not to spend their time, other than perhapsduring their scheduled lunch hour, playing billiards, at-tending the physical fitness classes, or going out to the parkpicnicking with the old people. The staff members dis-agreed; they considered this the wrong way of running theCenter. What more clearly reveals both what talk tookplace during August and what the employees in questionfound fault with in Lee, is a letter the three of them wroteto the board of governors on August 26 strongly urgingthat Lee be thrown out of the place. Among other things,they said: (I) ". ..he intended to drive Linda Lau outfrom her office"; (2) "the employees cannot participate inany activities in the Center"; (3) ". ..he tried to move theaccountant out too"; and (4) ". .. he opened a Sun-Chi-Chuan class since August 12 and he was the teacher him-self .."Things came to a head on August 30. Moy, the cook,had been on vacation in Hong Kong from the beginning ofAugust and returned home by August 21. Lee learned ofthis and telephoned him to come to work. Moy refused toobey. He did come in on August 30. During that morninghe left his work in the kitchen and came out to the middleof the large room to "quarrel"-his own word-with one ofthe elder citizens, a man named Mr. Eng. This was in thepresence of over 100 of the Center's citizens. Moy hadlearned of an article that had appeared in the local Chinesenewspaper saying he had stolen something from the Cen-ter. He accused Eng of having told this to some reporter.Soon voices were raised; Lau and Chung came out of theirrooms and the situation quickly became tense. Lee, now"scared," as he said, came running out and seized the loud-speaker microphone to urge calm on everybody. He calledout that everybody should sit down, and told Lau, Chung,and Moy to return to their offices or place of work. In thepresence of all these people, each of the three refused toleave. The details of loud voices--threats or no threats,exchange of invitations "to fight," and hands raised ornot-are not in themselves important. What is clear is thatthree or four times Lee told the staff members, particularlyMoy, to get out of there and that they disregarded him.Moy's explanation: "He [Lee] asked me to go back to thekitchen and work. And I said ...I got to clarify this formy honor and for my work because this is going to affectmy spirit of work and I got to clarify this today." Asked, atthe hearing, why she refused to go back to her office, Lauexplained: "Anybody can answer the telephone. If it ringsanybody can answer."With Lee continuing his efforts to disperse and quiet thecrowd, another old man dropped in a faint. An ambulancewas called and he was taken to the hospital. Finally, thingsquieted down. The man Moy had accusingly confronteddied 3 days later. Justice demands that one thing be madeclear at this point: there is no evidence here at all that theman's unfortunate death was in any way related to theincident that occurred that morning.615 DECISIONS OF NATIONAL LABOR RELATIONS BOARDAt noon that same day three volunteers-these are thepeople who assisted at lunch in the distribution of utensilsand such things-told Lee that Moy, in charge of the lunchoperation, had "fired" them. Moy denied having fired any-body. Given Moy's then agitated state of mind, it is possi-ble the volunteers could have been mistaken. The impor-tant thing is that they did say this to Lee. After lunch, atabout I o'clock, Lee saw Lau and Chung distributing or-anges to the mass of people in the middle of the room. Hetold them to stop it and to go back to their own offices anddo their assigned work. They refused, and continued to dowhat they thought was proper instead. That it was not partof their work to do this is admitted, although Lau told Lee,while ignoring his instructions, "1 like to do this."By this time, Lee, faced with what he could only view aspersistent insubordination by the staff, tried to contact theboard of governors about how to solve his administrativeproblem. He got no help. Early in the afternoon he askedall three of the employees to come to a staff meeting in hisoffice at 3 o'clock to discuss "the problem that happenedthis morning." And again each one of them deliberatelyrefused to attend. Their explanations, long after the event:LAU:A. ... I had to finish all the reports... I told Mr.Lee ... if it's very important perhaps I can stay a fewminutes ...He didn't say being at the meeting isimportant or not important or what. So, I assumedokay, you know, it's not very important and I wentback to my work.CHUNG:A. She [Lau] told me at about 3:30 in the afternoonthere would be a staff meeting.Q. Did you go to the staff meeting?A. No.MoY:Q. ... did Mr. Lee inform you that there would bea staff meeting that day at 3:00?A. Yes...Q. What did he say to you about the meeting?A. Nothing, just a meeting.. .I told him that if Iwere free that I would come.Q. Did you go to the meeting?A. No.The next day-August 31-the three employees wroteup a document entitled "Letter of the Public-Strong Pro-test Against Sun-Ho Lee's performance." They gave it to acitizen member of the Center who had copies made, andthese were distributed on the sidewalks in the general Chi-natown area. Lee learned about this leaflet, signed by Lau,Chung, and Moy on the same day. On September 7 hedischarged all three of them.C. The Law; As Distinguished From What ReallyHappenedIn the sense that this is a legal proceeding, the two mainparticipants are counsel for the General Counsel, Mr. Bi-blowitz, and the lawyer for the Center, or the Respondent,Mr. Moore. Each, of course, views the case in a totallydifferent light. Speaking through the formal complaint, theGeneral Counsel says that what these three employees didduring the month of August (I) was concerted-i.e., theydid it together, and (2) involved their working conditions.He must say this, because the Center is charged with hav-ing violated Section 8(a)(1) of the Act, which uses exactlythose words. It is then argued that Lee fired the three be-cause whatever they did they did "together," and becausewhat they wanted was to better their working conditions. Ifin fact Lee was motivated by resentment against such "to-getherness" and the urgent insistence on bettering employ-ee working conditions, he violated the law when he dis-charged them. The Respondent says this is not whathappened. Moore said, towards the close of the hearing,that Lee got rid of them only because of their "miscon-duct," or "insubordination," and not for any other reason.Like all lawyers Biblowitz and Moore want me to look atonly part of the picture, that selected portion which servesto support their respective views. This is what is called anout-of-context appraisal of the total evidence. They eachtake too narrow a look and I think they are therefore bothmistaken. The three staff members are also a real party tothe case, and the dispute-all Labor Board cases arise fromsome kind of a dispute-was between them and Lee. Thetrue question to be answered-and the case will stand orfall upon this answer-is: What was the nature of the dis-pute between the entrenched employees who were runningthe Center according to their own sense of values, and thenewly arrived boss who had his own ideas as to how thesocial objectives of the Center could best be achieved? Thewhole story is just one single mixup, but the case can bestbe understood if one thing be taken at a time.The General Counsel did not file a brief, and therebyavoided answering questions that might shed light upon thetruth. In their first written criticism of Lee-sent to theboard of governors on August 26-the three employeescomplained of his "conceit and pride," his "pickiness andhypocrisy," the fact that "he felt that some of them are notwell trained." The document also belittles Lee for havingtaken the liberty of teaching a course 2 days a week. Amore revealing phrase reads: "In the olden federalistic age,we still have the saying that wrong commands should notbe obeyed."Unless the executive director's particular ideas as to thecorrect method for achieving desirable community goals,ideas which these employees equated with objectionablepersonality idiosyncrasies, are to be called a condition oftheir own employment as that phrase has always beenviewed under Board law, I cannot see how the quotedphrasings of their dispute relate to the complaint here atall. The statement concedes that the director did notthreaten the employees' status. Apparently the Chinese lo-cal newspaper had carried, long before he came on thescene, some rumor about Lee intending to take action det-rimental to the staff. On August 3-still according to theAugust 26 document-the staff members called his atten-tion to those old newspaper stories and he denied them,even called them "ridiculous." A fair reading of the totalityof this listing of complaints therefore is that the three em-ployees thought Lee was not good enough to hold the job,and that they were of this view essentially because he was616 N.Y. CHINATOWN SENIOR CITIZENS COALITIONnot running the Center in such a way as would best achievethe social objective for which public funds were beingspent. They honestly thought the Center should be run en-tirely differently.This operation cannot be called a "business" in the ordi-nary sense; certainly the end product of all the employeeseffort is different from the usual. But employees these threepersons were; they had fixed hours of work, a certain rateof pay, necessary supervision, and an object to accomplish.One asks: If they had been cabinetmakers and the productof the "business" were furniture, could they question theiremployer's decision to produce Louis XIV consoles andinsist that he make Swedish Modern instead? Were theymembers of a hospital staff working to make people well,would Section 8(a)(1) of the statute "protect" their "con-certed" action aimed at giving the patients two, instead ofone, daily enema as prescribed by the physician director?Of course fashioning this furniture or that, applying onemedication or another, touches upon working conditions.And it is equally true Lau, Chung, and Moy all three hadideas in common about how the citizen center could bestbenefit the senior citizens of Chinatown. But to focus sole-ly upon the fact they were three and not one, and the factthat whatever was in dispute had something to do withtheir work, is to exalt form over substance. It is not theadjective that governs, but the noun.When he said, as the record does show, there might becertain job rotations because some employees were notwell trained, was Lee speaking about wages being too high,fringe benefits too generous-the real terms and conditionsof employment-or was he saying that anyone who thinkshe should play bingo and go to the park on picnics duringworking hours misconceives the proper way of running asocial center such as this? There is a difference, and a verysignificant one, between a concern with conditions of em-ployment--or matters that traditionally belong in collec-tive-bargaining agreements-and personal disagreementwith an individual employer that has nothing to do withwages, work assignments, and things like that. Chung, thebookkeeper, who had also signed the detailed listing ofgripes against the director on August 26, was asked whydid he take part in its preparation. He answered: "BecauseMr. Peter Lee became the Executive Director of the Cen-ter. What he did and what he said affected my spirit ofworking very much." This was the man who had threetimes tried to get the job and was turned down. That hisspirit would be depressed is understandable. I am sure hefelt he could do a better job of running the Center. But itdoes not follow from this that his purpose, or his 'concert-ed activity," was to improve his working conditions as abookkeeper.The distinction between what these staff members weredoing and what could conceivably be called their "workingconditions," is even more clearly seen if one keeps in mindthat the dispute here was virtually a public one. Some ofthe witnesses said that between 100 and 200 elderly citizenshave lunch in the Center every day, and others spoke of thetotal number who come to pass the time as about 1,000.This is a considerable segment of Chinatown. This alsoexplains why the employees involved appealed to the "pub-lic" to join their cause, and why their written complaintwas distributed on the sidewalks away from the premises.Labor disputes relating to working conditions in a factory,or in any place of employment, normally are publicizedright there, even if outside the door. It was enough to lookat the mass of people in attendance at the hearing-easilyover 100, filling the room and overflowing into the crowd-ed corridor-to appreciate that this was a public furor farremoved from what could be called, under applicable law,Lau's, Chung's, or Moy's interest in the details of theirpersonal jobs. In their "Letter to the Public" distributed onAugust 31, the staff members publicized their assertionthat Lee had "not been doing anything profitable to thepublic since he arrived." and that unless he were removed"the principles of serving the public would be disturbed."It is one thing to appeal to the public not to patronize arecalcitrant employer, to urge that they make their pur-chases elsewhere instead of here. But it is something elseagain to bring about a division of sentiment among thevery participants of a social welfare program that exists fortheir own benefit. Such public discord worked exactly inthe opposite direction from the purpose for which the Cen-ter exists. To the extent that it was within his power, Leehad no choice but to put a stop to it, lest the public fundsbe totally wasted.' This significant point is interestinglyemphasized by a letter sent to me after the hearing withreference-I think!-to post-hearing attempts at amicablesettlement of the whole case. The outside of the mailingenvelope identifies the addressers as "Most of the SeniorCitizens, Senior Citizen Coalition Center." This was anhonest and revealing statement by one group that the dis-pute involved affects and has divided the whole commu-nity.2I conclude, on the record in its entirety, that the threestaff members were not dismissed because of activities re-lated to their own working conditions, but rather to resolvea broad community problem that divided the public, thehundreds of senior citizens who frequent the coalition cen-ter, and its paid employees-supervisor and rank-and-file.I shall therefore recommend dismissal of the complaint.But like the General Counsel, the Respondent too mis-conceives the nature of the employees' protest. To labeltheir intentions "misconduct" is to see only the surface ofthings, and to ignore the real meaning. The word miscon-duct suggests disrespect, offense, or behavior that is justnot nice. Lau, Chung, and Moy do not deserve such dispar-agement. When Lau and Chung insisted upon completingthe distribution of fruit to the elderly people they werethinking of the necessity of substituting for the absence ofthe volunteers and not of disobeying the director. When allthree of the staff members stayed close to the entire groupof people during the heat of the fracas on August 30, evenignoring Lee's idea that it would be better if they returnedto their private places, it was really because they believedthey could by their presence be a more calming influence.I"The relation between superiors and inferiors Is like that between thewind and Ihe grass. The grass must bend vhepr the wind blows across it"The ( oinfucian Analects." bk XII. 19I havse marked this envelope as A 1.J Fxh I and added it to the recordAs its contents 'ere written entirel in ('hinese. without Iranslatin, theyhase not been considered in reaching a decision here.617 DECISIONS OF NATIONAL LABOR RELATIONS BOARDAnd this is equally true, as the record in its entirety clearlyshows, of their total course of conduct-always aimed at amore successful fulfillment of the Center's ultimate objec-tive. In a superficial sense it looked like insubordination toLee, and I suppose he could reasonably call it that.I think everyone was well intentioned at the time of theevents. Thereafter they spoke hastily and acted withoutsufficient thought. Lau, Chung, and Moy are not to befaulted for having filed the charge in this proceeding. Cer-tainly the General Counsel went on to issue the complaintin the light of what on the surface seemed a triable case.Understandably offended by the charge of having actedillegally, Lee reacted by calling it misconduct. I am sure herealizes now the employees did not mean to offend himpersonally. And again, if I may quote the old philosopher:"Things that are done, it is needless to speak about ...Things that are past, it is needless to blame." "The Confu-cian Analects," book 111, 21, ii.ORDER3It is hereby recommended that the complaint be, and ithereby is, dismissed.1 In the event noi exceptions are filed as provided by Sec 102.46 of theRules and Regulations of the National Labor Relations Board, the findings.conclusions and recommended Order herein shall, as provided in Sec.102 48 of the Rules and Regulations, be adopted by the Board and becomeits findings, conclusions. and Order. and all objections thereto shall bedeemed waived for all purposes618
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