Lincoln Property Co. C & S, Inc.

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lincoln Property Company C & S, Inc , Managing Agent for Lincoln Colony Associates, Lincoln Gate- house Associates, Lincoln Property Partners I and Willow Road Associates and Janitors Union, Local No. 1 of the Service Employees International Union, AFL-CIO. Cases 13-CA-14393, 13-RC- 13672, 13-RC-13673, and 13-RC-13674 June 8, 1976 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On January 27, 1976, Administrative Law Judge Paul L Harper issued the attached Decision in this proceeding Thereafter, Respondent filed exceptions and a supporting brief, and the Union filed a brief in answer to the Respondent's exceptions Pursuant to the provisions of Section 3(b) of the National 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Lincoln Property Com- pany C. & S, Inc, Managing Agent for Lincoln Colo- ny Associates, Lincoln Gatehouse Associates, Lin- coln Property Partners I and Willow Road Associates, Arlington Heights, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modi- fied below I Add the following as paragraph 1(c) "(c) In any other manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act, as amended " 2 Substitute the attached notice for that of the Administrative Law Judge i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge s resolutions with respect to credibility CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Janitors Union Local No 1 of the Service Employees International Union, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the following appropriate unit found appropriate herein for the purposes of collec- tive bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employ- ment All janitorial employees employed by the Em- ployer at its apartment communities now locat- ed at 475 East Enterprise Drive, Mount Pros- pect, Illinois, 2134 South Goebert Road, Arlington Heights, Illinois, and 806 Willow Road, Wheeling, Illinois but excluding office clerical employees, head maintenance men, guards and supervisors as defined in the Act unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products Inc 91 NLRB 544 (1950), enfd 188 F 2d 362 (CA 3 1951) We have carefully examined the record and find no basis for reversing his findings The Administrative Law Judge's Decision contains a number of inadver- tent errors in chronology which are corrected as follows ( 1) In the fifth paragraph of the discussion of "The Announcement of the benefit package" he states that employee Joswiak was first employed by Respondent in No- vember 1975, the correct date is November 1974 (2) In the sixth paragraph of the same discussion he states that employee Jones admitted he was put on a salary basis sometime in November 1975 the correct date is November 1974 (3) In the paragraph captioned The discharge of James Bryon Shul- tis' he states that Shultis was employed to June 4 , 1975, as a janitorial employee, the correct date is June 3, 1975 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against any of our employees because of their membership in or activity on behalf of Jan- itors Union, Local No 1 of the Service Employ- ees International Union, AFL-CIO, or any other labor organization WE WILL NOT grant, expedite, or announce new and/or additional benefits to our employ- ees for the purpose of discouraging their interest in or support of the aforesaid labor organiza- tion 224 NLRB No 81 LINCOLN PROPERTY COMPANY C & S, INC WE WILL offer James Bryon Shultis immedi- ate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to seniority or other rights and privileges, and WE WILL make him whole for any loss of pay suffered by reason of his discharge WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them in Section 7 of the Act, as amended LINCOLN PROPERTY COMPANY C & S, INC, MANAGING AGENT FOR LINCOLN COLONY ASSOCIATES, LINCOLN GATEHOUSE Asso CIATES, LINCOLN PROPERTY PARTNERS I AND WILLOW ROAD ASSOCIATES DECISION STATEMENT OF THE CASE PAUL L HARPER, Administrative Law Judge Hearing in this consolidated proceeding was conducted in Chicago, Illinois, on November 10, 11, and 12, 1975 Complaint in 13-CA-14393 was issued August 19, 1975, alleging violations of Section 8(a)(1) and (3) of the Act Report on objections in 13-RC-13672, 13-RC-13673, and 13-RC-13674, order consolidating cases with 13-CA- 14393, and notice of consolidated hearing were issued Au- gust 19, 1975 1 In its answer to the complaint the Respondent conceded certain facts with respect to its business operations, but denied all allegations that it had committed unfair labor practices All parties were represented by counsel, given full oppor- tunity to examine and cross-examine witnesses, and to file briefs The parties waived oral argument General Counsel and the Union filed briefs 2 Upon the entire record and from observation of the witnesses, I make the following FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT The Respondent, a Texas corporation with its principal office in Dallas, Texas, and with an office and place of business in Arlington Heights, Illinois, is engaged at the latter location in furnishing management and janitorial services to residential buildings in the State of Illinois Re- spondent, during the past year, received gross revenue in excess of $500,000 from such services The apartment com- plexes involved herein are known by their short title of Colony, Gatehouse, and Willow Bend Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act Objections were filed by the Employer 2 Employer filed brief in support of objections II LABOR ORGANIZATION INVOLVED 495 Janitors Union, Local No 1 of the Service Employees International Union, AFL-CIO, is a labor organization within the meaning of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Complaint Allegations The complaint alleges two counts of alleged 8(a)(1) vio- lations and one count of an alleged 8(a)(3) violation with respect to the discharge of James Bryon Shultis B Issues Whether or not Respondent violated Section 8(a)(1) of the Act by announcing new and/or additional fringe bene- fits to employees at the June 5 and 6, 1975, meetings at each of the apartment premises involved herein just a few days before the election on June 9, 1975 Whether Respondent, at the June 5 and 6 employee meetings, told its employees, in effect, it would be futile for them to continue to support the Union at the upcoming election Whether or not Respondent violated Section 8(a)(3) of the Act in the discharge of James Bryon Shultis C The Announcement of the Benefit Package The complaint alleges, at paragraph VI(a), in substance, that Respondent, during employee meetings on June 5 and 6, 1975,3 at each of the three apartment complexes involved herein, "announced new and/or additional fringe bene- fits", that it did so in an effort to discourage employees from supporting the Union and, inferentially , to vote against the Union in the upcoming election on June 9 The General Counsel contends that the benefits outlined at the June employee meetings were actually new and/or additional benefits insofar as the employees were con- cerned , that the employees, even if entitled to certain bene- fits, were unaware of such entitlement since they had never been so informed prior to the June meetings, and further, as a matter of fact, had never received many of the bene- fits, for example, nonhospitalization sick leave, personal leave, paid vacations to the extent announced, and were unaware and did not understand the announced retirement and profit sharing plan, etc Moreover the General Counsel contends such benefits "can be added to and subtracted from at the discretion of Yelvington or sometimes by resi- dent managers " The General Counsel further contends that "parading and granting unknown benefits before employees prior to an election is unfair labor practice 11 The alleged announced new and/or additional fringe benefits were presented to the employee groups by Vice President Yelvington displaying them on a large card- board The benefits are set forth in General Counsel's Ex- hibit 7 as follows 3 Unless otherwise indicated all dates refer to 1975 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Free LPC Benefits-I Holidays-seven days, II Va- cations-two (2) weeks, III Sick Leave-six (6) days per year, IV Personal Time-four (4) days per year, V Maternity-Child covered from birth, VI Retire- ment-profit sharing, VII Reviews, promotions and transfers based on individual merit, VIII Health and medical insurance-100% company paid for you and dependents-50/yr deductible-twenty-four hour coverage-disability benefits-pays 100% up to $1000 and 80% after initial $1000-$2000 of life insurance, IX Life insurance-for you and dependents-mini- mum of $12,000 (plus double indemmty)-value al- ways exceeds annual salary, X All benefits are FREE Employee Joswiak testified that when hired, she was in- formed about certain fringe benefits including hospitaliza- tion, life insurance, and paid vacations, but nothing about other benefits enumerated in the June employee meeting She testified the employee meeting took place Thursday or Friday before the election on Monday, June 9, that James Court and she were the only employees eligible to vote in the election present at this particular meeting, that Mr Yelvington displayed a large cardboard (G C Exh 7) from which he read and explained the benefits Yelvington, ac- cording to Joswiak, stated further that even though em- ployees had signed union cards they still had the opportu- nity to vote "no" in the election, that if the Union came in employees would not be able to transfer from one property to another, that if the employees went on strike they would not be paid while on strike, and that he asked "for our vote against the Union because he wanted us to give his company a chance to prove itself " On May 20, Joswiak received an identification card from the bookkeeper at Willow Bend relating to certain insurance benefits Noth- ing was said to her at the time by way of explanation of such insurance benefits On cross-examination she ac- knowledged filling out some forms, apparently relating to insurance benefits, but testified she did not read or under- stand what she had signed She further testified that she had been off sick intermittently for a period of about 10 days, that she was not docked but had to make up such time by working Saturdays except for 5 days, 3 of which she had spent in the hospital and 2 convalescing at home Also she testified she was off work an entire week in July 1975 apparently to be with her daughter after the birth of a grandchild, that she was paid for this time by coming in to work "an hour earlier or stay an hour later " It was later brought out her hospital stay had resulted from injuries received at work Joswiak's testimony is substantially corroborated by that of employee Anderson who testified that when hired he was informed of practically no fringe benefits He recalled, after several months of employment, being informed by a resident manager about certain insurance benefits and of filling out certain insurance forms on May 19 He was first employed in November 1975 He attended the meeting conducted by Yelvington on June 6 at the Colony complex along with employees Green and Stewart Anderson testi- fied that Yelvington discussed the various benefits set forth on a large cardboard item by item, that of the 10 benefits displayed and discussed he was aware of being entitled to only 1 and that was the one listed at paragraph VII entitled "Reviews, promotions and transfers-based on individual merit " Anderson testified that during the meeting he told Mr Yelvington he had been required to make up time for a holiday and that Mr Yelvington replied he was "un- aware of it and it wouldn't happen again " He also told Yelvington about not having a company insurance policy Anderson testified that Yelvington "told everybody in the room we had these benefits" set forth on the cardboard and displayed to the employees at the meeting He later acknowledged receiving an insurance identification card along with an explanatory booklet on May 19, about 2 weeks before the June 6 meeting Anderson also testified that he recalled one or two occasions being off sick and that he was not paid for such sick leave A similar meeting took place at the Gatehouse apart- ment complex Again Yelvington presided with Supervisors Hester and Holmes in attendance Employee Gerald Jones testified he and about three other employees attended the meeting Yelvington, according to Jones, displayed the large cardboard exhibit and discussed "all the benefits and explained them out and we learned exactly what we had ', that Yelvington went on "talking about why we were voting the union in and why they didn't want it in " On cross-examination Jones admitted that he was put on a salary basis sometime in November 1975, about a month after he was hired, that Supervisor Hester explained that he would have life insurance, health insurance, 2 weeks' vacation, and paid holidays, and that he read about having 6 paid sick leave days on a contract Mr Hester had him sign regarding maintaining a 50-hour workweek at this same time He further testified that prior to the June 6 employee meeting he was unaware of such benefits as time off for certain personal reasons, retirement, and profit- sharing Employee Riha testified that at the time he was hired sometime in November 1974 he was told nothing about fringe benefits, that when he was put on a salary basis sometime in February 1975 he was informed of certain benefits including 2 weeks' paid vacation, hospitalization, health and life insurance, but no "specifics" regarding such benefits, further that he attended the meeting on June 6 along with several other employees during which Mr Yelv- ington explained the benefits described above from the document identified in the record as General Counsel's Ex- hibit 7 Riha also testified that he was unaware of any of the other benefits shown on this exhibit, and that whenever he was off sick such time off was deducted from credited time off due to work in excess of 40 hours in any given week It was standard procedure for employees to be com- pensated for work in excess of 40 hours a week by granting them future time off Respondent's Vice President Yelvington testified that the employee benefit package was incorporated in a com- pany personnel manual which was "normally" maintained on the "properties," at his office and "almost every office we do business with in the United States", that the manual was updated from time to time with inserts, that it was his job to check to see that all inserts were put in the manuals but that after instructions were forwarded to the various managers he did not follow up to check on whether the LINCOLN PROPERTY COMPANY C & S, INC inserts had actually been filed in the manuals He testified thus "To follow up, to go check it, I don't ever remember doing that specifically " He further testified, on cross-ex- amination, that he had the authority to modify the provi- sions of the manual by granting "more" but not "less" ben- efits set out in the manual Also, in regard to vacation benefits relating to hourly employees , Yelvington said he did not notify his resident managers of the change from I week provided in the manual to 2 weeks announced during the June meetings with the various employee groups Fur- ther that the only time he personally informed employees of their benefits was at the June meetings Additionally, Yelvington testified that with respect to sick leave he as well as resident managers could deviate from the manual and in fact "it was done " Concluding Findings Yelvington's testimony does not substantially refute in any material respect the testimony of General Counsel's witnesses in regard to what was said during the June meet- ings with the various employee groups The composite tes- timony of all witnesses clearly reveals a lack of communi- cation from top management through intermediate management to the rank-and-file employees The testimo- ny clearly establishes that none of the employees were aware, or had been informed before the June meetings, of all benefits to which they were, or may have been, entitled All of the employees were aware , or had been informed, of only some of the benefit package Some of the employees had either been off sick or worked on holidays and had not received the alleged benefits There is no question that the Respondent announced such benefits in the context of an upcoming election The June 5 and 6 group meetings Respondent conducted with its employees flowed directly from its election strategy meeting on June 2 There is likewise no question that Re- spondent, by the timing and announcement of said bene- fits, was attempting to influence its employees to vote against the Union The Respondent had the right, of course, to express its opinion about the relative benefits or nonbenefits of unionization on the part of its employees so long as it made no threats of reprisals or promises of bene- fits Based on all the above considerations , I find that the Respondent did, in fact, announce to its employees on the eve of the June 9 election new and/or additional benefits for the admitted purpose of influencing their vote against the Union This finding is based primarily on the fact, es- tablished by credible record testimony, that employees not only were not aware of most of the announced benefits but some of the employees who had been off sick, or off on holidays, or off for personal reasons , failed to receive and/ or were denied such benefits The announced benefits were clearly advantages the employees not only did not know about but in some instances noted above did not have prior to the announcements on June 5 and 6 Furthermore, some of the benefits listed on General Counsel's Exhibit 7 and presumably actually enjoyed by the employees were of un- certain nature Moreover, admittedly some of the benefits could be altered at the will and whim of the Respondent 497 Thus, as far as the employees were concerned, the an- nouncements at the June 5 and 6 meetings were tanta- mount to receiving new or additional benefits and it would be unrealistic to conclude that such announcement would have no impact in the coming election Accordingly, I find Respondent's conduct described above to constitute a vio- lation of Section 8(a)(1) of the Act D The Alleged Futility Statements In support of paragraph VI(b) of the complaint the Gen- eral Counsel contends that certain statements made by Re- spondent Vice President Yelvington to employees at the June group meetings contained the unlawful threat that it would be futile for the employees to continue their support of the Union since they would gain nothing by voting for the Union at the June 9 election The General Counsel relies primarily on the testimony of employees Gerald E Jones and Joseph Riha In this connection Jones testified that during the group meeting he attended on June 5 he asked Yelvington why a big company like the Respondent couldn't pay more to its maintenance employees Yelvington, according to Jones, replied "(Yelvington) told me they were paying all they could afford to pay " Yelvington , in response to further interrogation, repeated this response several times, in sub- stantially the same manner Jones' testimony is corroborat- ed by that of Riha Yelvington, with respect to this allegation, testified that he "told these groups separately that if the Union was vot- ed in, it did not necessarily mean that they would get any additional benefit or higher pay " Concluding Findings It is essential to consider Yelvington's statements in proper context Admittedly, even according to General Counsel's witnesses , Yelvington made his remarks in re- sponse to a question asked by employee Jones Jones, after asking Yelvington why such a big company as the Respon- dent couldn't pay more to its employees and getting Yelvington's alleged reply to the effect that the Company couldn't afford any pay increases, went on to say to Yelv- ington that if Respondent "couldn't afford to pay us more, why they couldn't afford to give us an apartment and the wages we already had, which would make it almost more than fair to work there And he said he couldn't give me an answer because it was against the law He couldn't make any promises " (Emphasis supplied ) Moreover, on cross-examination Jones testified that after Yelvington had responded to his question about more pay and benefits that Yelvington went on to say he would negotiate with the Union if it was voted in He testified as follows Q Isn't it a fact Mr Yelvington discussed the pos- sibility of negotiating a contract with the union' A Yes, if it was voted in 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q Did he not say that they would negotiate fairly with the umon9 A Yes Although I have no reason to doubt the testimony of Jones or Riha both seemed inclined to elaborate somewhat as counsel continued his interrogation, as if to give a more complete interpretation of their impression of what Yelv- ington meant by his statements In this connection it is important to note that on direct examination Jones testi- fied that after asking Yelvington about more pay, or a free apartment with the same pay, that Yelvmgton replied he couldn't "make any promises " It was not until cross-exam- ination that Jones testified Yelvington definitely stated the Company couldn't afford to pay any more than it was cur- rently paying its employees Based on all the above considerations, especially Jones' admission that Yelvington, immediately following his re- marks about more pay and benefits, went on to say he would negotiate with the Union if the employees selected the Union as their representative, I conclude and find that the record evidence is insufficient to sustain the allegations contained in paragraph VI(b) of the complaint According- ly, I recommend this allegation be dismissed E The Discharge of James Bryon Shultis Shultis was employed by Respondent from February 19, 1975, to June 4, 1975, as a janitorial employee He was at various times under the immediate supervision of Supervi- sors Toth, Lyman, and Hester, in that order F Contention of the Parties It is the contention of the General Counsel and Union that Respondent discharged Shultis just a few days before the June 9 representation election on the pretext of malin- gering in order to rid itself of a potential vote for the Union Both the General Counsel and Union admit that Shultis was a "less than ideal" employee but rely heavily on the pretextual nature of the discharge and the events which led to it at a so-called election strategy meeting of Respondent's officials on the day before Shultis' discharge Respondent at the hearing asserted several reasons for its discharge of Shultis, including the need of Shultis for more than average supervision, tardiness, absenteeism, and malingering Ultimately, Respondent took the position that Shultis primarily was discharged because of malingering or pretending to be off sick the day before his discharge when in fact he was not sick G The Evidence 1 Shultis' union activity and Respondent's knowledge of same Shultis, along with several other of Respondent's em- ployees, attended a union meeting the latter part of March 1975 at a restaurant in the metropolitan area of Chicago Also in attendance at this meeting was head maintenance man Richard Denner, an admitted supervisor There is evi- dence in the record that Shultis spoke to Denner about the Union on several occasions, Shultis speaking in favor of union representation Denner did not testify From this evi- dence alone I find that Respondent knew of Shultis' union interest and support Additionally, however, Respondent's knowledge of Shultis' union interest and support becomes clearly manifest at the election strategy meeting the day before Shultis' discharge discussed more fully below 2 Respondent' s defense As noted above the General Counsel and Union ac- knowledge that Shultis was "less than an ideal employee " Thus, there is evidence unrebutted that all of Shultis' su- pervisors at one time or another complained about his work habits and attitude towards his job Toth, according to Yelvington's testimony, about mid-March 1975, com- plained to Yelvington she was having trouble with Shultis in getting "conditions of the hallways and the property in general," corrected At that time Yelvington told Toth if she had "somebody who will not work (she) should get rid of them " Yelvington testified Toth complained about Shultis between the date Shultis was hired until about April 3, 1975, on at least three separate occasions Nevertheless Toth, on or about March 23, 1975, recommended in writ- ing that Shultis be granted a 50-cent-an-hour increase in pay Her recommendation included the statement "J B (Shultis) has done a good job, is very cooperative " Yelvington testified that he personally repeatedly ob- served Shultis at work and that "he moved slowly, that he nad a lackadaisical attitude, that he in fact had to be in- structed repeatedly to do his everyday tasks " Nevertheless Yelvington testified "it was (his) policy to leave it to the resident managers to directly supervise their employees, and that included the hiring and firing, and I felt like that with the past record of Mr Shultis that I had knowledge of, that I had had enough of Mr Shultrs " This testimony fol- lowed a question as to what influence, if any, did Yelvington's observations of Shultis have upon his instruc- tions to Mr Hester on June 2, the day before Shultis' dis- charge Resident Manager Lynam testified that while Shultis was under her immediate direction she complained to Mr Hester on several occasions about Shultis' poor work per- formance, that she spoke to Hester about Shultis "two or three times a week for the three weeks I was there " Also that she complained to Yelvington about Shultis "on a few occasions " Lynam also testified Shultis was tardy quite often and she talked to him about this "2 to 3 days" during the first week of his employment Further, that on at least two occasions he used "slangy" words in her presence such as "Don't worry, Toots, I will take care of it " The testimony of Hester regarding Shultis' work perfor- mance substantially corroborates that of Yelvington and Lynam In respect to Toth's recommendation on March 23 that Shultis be granted a raise, and her laudatory com- ments, Hester testified he disagreed with Toth's statements but that he was "attempting to try to get the man more money in hopes that he would try to perform (his) job in a much more professional manner " LINCOLN PROPERTY COMPANY C & S, INC 499 3 The election strategy meeting of June 2, 1975 The facts surrounding this meeting of Respondent's offi- cials, supervisors, and legal counsel are not in dispute Vice President and General Manager Yelvington and Resident Managers Hester, Holmes, and Lynam, along with Respondent's attorney Berman, attended Also, it is not disputed that the purpose of the meeting was to discuss the upcoming election on June 9 and to talk about a plan to "sell" each employee on the idea of voting against the Union Hester's testimony is the most explanatory of those testifying He testified "We just went over our rules and our benefit package, how we were to try to sell each of the employees to vote against the Union, and that was ba- sically it Just to sell our company, how we could sell our company in place of the union " The June 5 and 6 employ- ee group meetings at the three apartment complexes result- ed directly from this strategy meeting on June 2 4 Shultis is discussed at the June 2 meeting About mid-way through the meeting, according to Hester's testimony and not disputed by others present, Hester brought up the fact that Shultis had reported in sick that very morning and would not be in for work that day The meeting lasted about 3 hours and began about 1 p in Yelvington, according to Hester, responded by telling Hes- ter to "Go in there (apparently an adjacent office) and call the employee and find out if he is in fact sick " Hester went in another room, made the phone call, and reported back to Yelvington that Shultis' phone didn't answer Yelving- ton told Hester "to continue to try and get in touch with the man " According to Hester's notes the first call was made about 2 30 p in About 3 30 p in, according to Hes- ter, he made a second attempt to reach Shultis by phone, again without success, and again reporting these results to Yelvington At the conclusion of the meeting about 3 45 p in Yelvmgton again instructed Hester to "call Shultis and make sure and find out whether he is sick or not " After reporting back to Yelvington that he still had been unable to reach Shultis, Yelvington, according to Hester, stated "we can't continue to tolerate this kind of behavior find out tomorrow when Shultis gets in whether he was ill or not " It is thus noted that all three phone calls encompassed no more than about an hour and fifteen minutes ranging from the first call about 2 30 p in to the third call about 3 45 p in On cross-examination Hester testified as follows Q Between 2 30 and 3 15 (first and second phone call) did you continue to discuss the Union? A Yes, sir, we did Q And you continued to discuss in fact who you thought was a swing vote and who you thought would be influenced9 A Who I could sell, yes Q By "sell" you mean sell in terms of voting against the Union9 A That is correct Hester was further interrogated as follows Q And do you recall in what category J B Shultis fell A Oh, I amjust guessing I believe we felt he would be a tough vote to win over to our side In regard to the exact timing of the decision to discharge Shultis and some of the events leading thereto there is some discrepancy in the testimony of Yelvington and Hester For example Yelvington testified that Hester notified him during the morning of June 2 that Shultis had called in sick, that he then and there asked Hester if he thought Shultis was really sick and Hester said "no," whereupon Yelving- ton instructed Hester "to get on the phone and call Shultis all day long until you reach him on that phone Then I want you to determine from his explanation of why he is sick if, in fact, he is sick, and if he is not sick, then I want you to counsel with that young man " Hester on the other hand testified that although he was notified about Shultis' absence that morning that he made no attempt to phone Shultis until that afternoon after he had mentioned Shultis' absence to Yelvington during the afternoon meet- ing Hester testified it was Yelvington who, after the third unsuccessful phone call to reach Shultis, told him if Shultis did not have a good excuse for his absence when he report- ed the next day to fire him Hester testified as follows Q Did Mr Yelvington tell you that if he didn't have a good excuse (to) fire him9 A Yes Yelvington, contrary to Hester, testified that "in the af- ternoon on the 2nd (June) when Bob had tried unsuccess- fully to reach him (Shultis) and told me what he wanted to do, and I told him that is what I thought he should do " Further that Hester said to him at this meeting "Brownie, (Yelvington) I want to fire this guy but I am afraid to because of what Herb Berman (Respondent's attorney of record) said, that you must be very cautious about firing somebody during an election " Yelvington testified he ex- plained to Hester his right to fire Shultis "if he is not doing his job we have got enough background on this guy, we just don't have to put up with it anymore " Lynam testified that the decision to discharge Shultis was dis- cussed at the meeting but she didn't recall whether it was Yelvington or Hester who made the decision Concluding Findings Based on the above considerations, the entire record in the case, and the more specific considerations noted below, I am persuaded, and find, that in discharging Shultis on June 3, just a few days before the scheduled representation election on June 9, Respondent's overriding concern was Shultis' known interest in and support of the Union Ad- mittedly, at its election strategy meeting on June 2 Respondent's officials and supervisors discussed the possi- bility of a close vote in the election in which one or two votes might make the difference in the outcome Moreover, the participants at this meeting discussed and weighed the potential vote of each eligible employee for or against the Union Admittedly all agreed that Shultis' vote would be 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Union In these circumstances I find the conclusion inescapable that Respondent was motivated, at least in part, to rid itself of a known union supporter and thus enhance its chances of preventing the Union from winning the election and becoming the certified bargaining repre- sentative of its employees Although Respondent may have had reason enough to discharge Shultis in the past for any or all of the reasons asserted at the hearing, it is impossible, in view of all the circumstances already described, to accept Respondent's assertion that Shultis' absence on June 2, and his alleged malingering on that date, was the real reason for his dis- charge on June 3 I attach significance to the fact that Hester, upon learning early in the morning of June 2 that Shultis had reported in sick, made no effort to contact Shultis until the election strategy meeting that afternoon Moreover, although Hester was unsuccessful in his at- tempts to reach Shultis by phone during the meeting and therefore could not have ascertained whether or not Shultis was or was not actually sick, it was decided then and there by Yelvington and/or Hester to discharge Shultis the fol- lowing day if Shultis "did not have a good excuse " The next day, June 3, Hester approached Shultis at his work station to obtain an explanation for his absence the day before, all as planned by Yelvington and Hester at the meeting the day before When Shultis told Hester he had been sick, Hester said to Shultis that he had tried unsuc- cessfully to reach him three times by phone Shultis replied that he may have been out of hearing distance of the phone at the time "either down in the basement washing my clothes or out back feeding the dog " To this Hester retort- ed "That is a very flimsy excuse," whereupon Shultis re- sponded "Well, that is the truth " Hester then stated to Shultis"`Well, I don't want it to ever happen again " Thus Hester apparently accepted, at least momentarily, Shultis' statement that he had been sick and also was aware, from Shultis' explanation, that his illness was of a mild nature In any event Hester apparently was not then and there sure enough that Shultis' explanations were not valid since he permitted Shultis to go back to work with the warning that he didn't want this sort of thing to happen again There is no other explanation from the record testimony for Hester's hesitation in firing Shultis when he first ap- proached him at work According to Hester, after leaving Shultis he returned to his office, began to think about "all the additional problems I had at that property," returned to Shultis and told Shultis he could no longer "continue to tolerate his actions" and then terminated Shultis' employ- ment Whether Hester needed time to reflect, or sought further advice and counseling, cannot be ascertained from this record What is clear is that Hester did not fire Shultis because Shultis' explanations concerning his illness were not valid-or even that Hester believed such explanations invalid At no time did Hester challenge Shultis' statement that he had in fact been sick, although mildly, to the extent he was able to perform certain household duties It is also clear from Hester's own testimony that Shultis would not have been fired if Hester had believed Shultis in fact was sick and not malingering Yet Hester testified he reached the conclusion Shultis was malingering based solely on the fact that he did not answer his phone when Hester tried to reach him on the three occasions over a period of 1 hour and 15 minutes during Respondent's election strategy meeting Obviously Hester could not have determined Shultis' state of health from the unsuccessful phone calls Nothing thereafter occurred which disproved Shultis' state- ments regarding his illness It is true of course that Hester could have lawfully fired Shultis on his belief that Shultis was guilty of malingering if Shultis' union interest and sup- port was of no consideration I find however Hester's, and therefore Respondent's, asserted reasons for discharging Shultis to be pretextual of the more overriding reason al- ready discussed above As Shultis' discharge was motivat- ed, at least in part, because of Respondent's desire to rid itself of a known union supporter and a potential vote for the Union in the upcoming representation election, I find Respondent's discharge of Shultis on June 3 to be in viola- tion of Section 8(a)(3) of the Act IV THE EMPLOYERS OBJECTION TO CONDUCT AFFECTING RESULTS OF THE ELECTION As noted above the election in this matter was conduct- ed on June 9, with the Union receiving six votes for repre- sentation, four against, and one challenged ballot On June 16, the Employer timely filed the subject objections, as fol- lows Objection to Conduct of Election During the time the polls were open, in the polling place and in the presence or earshot of other employees, a dis- charged employee stated that he had been discharged be- cause the Company did not want him to vote in the elec- tion This statement has interfered with the conduct of the election and has affected the results thereof in such a man- ner as to render it a nullity Objection to Conduct Affecting the Results of the Election 1 On or about the middle of April 1975, after the peti- tions herein were filed, the Umon, by its officers and agents, threatened employees with physical harm should they fail to engage in postelection union activities, and such threats were intended to create an atmosphere of fear should they fail to support the Umon and its activities 2 By these and other acts and conduct, the Union has interfered with the holding of a free and fair election On August 19, the Acting Regional Director of the Board's Chicago Regional Office issued a report on objec- tions and order consolidating cases and notice of consoli- dated hearing in the subject proceeding In this report the Acting Regional Director noted that the Employer had, with his approval, withdrawn Objection 1 In support of Objection 2 the Employer presented the testimony of two witnesses, Monfils and Gigstead, mother and daughter respectively, both of whom were still em- ployed by the Employer at the time of the hearing The thrust of the objection is that the Union's Organizer Joseph Quiring, on one occasion, during a union meeting with several of the Employer's employees, threatened the LINCOLN PROPERTY COMPANY C & S, INC 501 employees with physical harm should any of them attempt to cross a picket line if such a picket line was established at the Employer's place of business Monfils testified that during a union meeting in mid- April, Union Organizer Quiring, in response to a question from an employee, stated that in the event of a strike, Re- spondent could bring in replacements "he referred to them as scabs He (Quinng) mentioned another complex that had been on strike, and he said they had brought mgger- scabs to work, and they had gotten the shit kicked out of them, and he also said if anyone crossed the picket line that they could get the shit kicked out of them " Gigstead's testimony regarding Quiring's alleged remark about picket line violence is almost word for word identical to that of Monfils Gigstead testified as follows "He (Quir- ing) said if anyone had tried to cross a picket line where there was a strike going on they could get the shit kicked out of them" Quiring denied making the remarks attributed to him by Monfils and Gigstead Quiring testified that the meeting referred to by the two employees above was held the first week in May at the Three Fountains project in the rental office in Rolling Meadows, Illinois, that employees Urba- nowisz, Riha, Beatty, Jones, Gigstead, Monfils, and Ander- son attended The purpose of the meeting, according to Quiring, "was to explain the position of having to go to an election through NLRB", to explain about supervisors being excluded from the bargaining unit, negotiation pro- cedures, voting procedures, "dues, assessments, fines and violations " With respect to strikes, Quiring testified he told the employees "first of all it would not be a strike unless you and the (other) employees elect not to accept whatever negotiations were reached between management and union " that "if you did vote for a strike they (the Employer) could hire replacements " He testified he made it clear "everybody" had the free choice to cross or not cross a picket line Further, that as to a possible strike he told the employees "You are the people that have the say-so on that " He recalled hearing someone from the au- dience using the word "breaking" while he was talking about strikes and the rights of employees during strikes but did not catch the whole sentence He recalled talking about a recent strike at another employer's premises but denied using the words "tugger" or "nigger scabs" but did recall hearing these remarks from some of the employees in the audience Concluding Findings Based on all the credible testimony I am persuaded and find that Quirmg did not make the remarks attributed to him by Monfils and Gigstead I base this finding almost exclusively on credibility resolutions Based primarily on their demeanor on the witness stand I discredit the entire testimony of Monfils and Gigstead Both Monfils and Gig- stead testified as if they had memorized their lines Both had practically no recall of anything that was said at the meeting except the one alleged remark by Quiring about "tugger scabs" and that anyone crossing a picket line "could get the shit kicked out of them " Thus Monfils couldn't recall if she attended a union meeting subsequent to the one she testified about, couldn't recall who attended the meeting in question except one other employee besides her daughter, and nothing else that Quiring said during the meeting which she finally admitted lasted more than an hour Gigstead on the other hand recalled the names of six employees besides Monfils and Quiring, presumably all who attended the meeting She estimated the meeting last- ed about 2 hours Unlike Monfils, she recalled that other employees talked about picket line violence, not just Quir- ing Like Monfils, however, she could recall nothing specif- ically being said at the meeting other than the one remark about scabs getting beat up which she attributed solely to Quiring After exhaustive interrogation Gigstead testified she and Monfils, along with two other employees, went to see Mr Yelvington in his office the day after the election to let him know they were unhappy with the outcome of the election, that Mr Yelvington was busy at the time and suggested they return later, that 2 or 3 days later she and Monfils returned to Mr Yelvington's office but that most of her conversation was with the Employer's attorney who was with Yelvington at the time, that again she and Mon- fils wanted Respondent to know they were not "happy that the union won the election " Once again, at this second encounter with management, there is nothing in the testi- mony of either witness that anything was said at the time about their concern over Quiring's alleged remark regard- ing picket line violence Their recollection of only the one alleged remark by Quiring and almost complete lack of recall of anything else occurring or being said at the union meeting defies believability Contrary to Monfils and Gigstead, Quiring testified in a forthright and candid manner with excellent recall of what went on and was said at the particular union meeting in question He gave details of what occurred including his instructions to those employees present about organiza- tional procedures, election procedures, and his responses to questions about strikes and picket lines He denied he used the words "nigger scabs" and denied he made any such remark that employees who crossed a picket line "could get the shit kicked out of them " His testimony in this respect was corroborated by at least one other employee present at the meeting Moreover, Gerald Jones, an employee who attended this same meeting, admitted it was he, not Quir- ing, who made the remarks Monfils and Gigstead attribut- ed to Quiring He testified he and another employee, Mark Beatty, were in a somewhat playful mood at the meeting, being fortified with several bottles of beer beforehand He testified as follows Q Do you recall anyone using the phrase "getting the shit kicked out of them" A Yes, I might have used it a couple of times I know Mark did a couple of times When asked if he recalled Quiring using the term "nigger scab" he replied emphatically "never " Based on all the above considerations I fully credit Quiring's denial and find that he did not make the singular remarks attributed to him by Monfils and Gigstead Ac- cordingly I shall recommend that the Employer's Objec- tion 2 be overruled Further, since the Union has obtained a majority of the valid votes cast in the election, that the 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union be certified as the exclusive bargaining representa- tive of the Employer's employees in the unit found to be appropriate in the Stipulation for Certification Upon Con- sent Election CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 Respondent has violated Section 8(a)(1) of the Act by promising employees benefits in order to influence their vote in the June 9, 1975, representation election as alleged in paragraph VI(a) of the complaint 4 Respondent has not violated Section (a)(1) of the Act as alleged in paragraph VI(b) of the complaint 5 Respondent has violated Section 8(a)(3) of the Act as alleged in paragraph VII of the complaint by discharging James Bryon Shultis because of his interest in and support of the Union 6 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act REMEDY In order to remedy the unfair labor practices found here- in my recommended Order will require Respondent to cease and desist therefrom and take certain affirmative ac- tion as set forth in the following Order Upon the foregoing findings of fact and conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby recommend the following ORDER4 Lincoln Property Company C & S, Inc, Managing Agent for Lincoln Colony Associates, Lincoln Gatehouse Associates, Lincoln Property Partners I and Willow Road Associates, Arlington Heights, Illinois, its officers, agents, successors, and assigns, shall 1 Cease and desist from 4 In the event no exceptions are filed as provided by Sec 102 46 of the Rules 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 become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes (a) Granting, expediting, or announcing new and/or ad- ditional benefits to its employees to discourage their inter- est in or support of the Union (b) Discharging or otherwise discriminating against any of its employees for engaging in union or other protected concerted activity 2 Take the following affirmative action necessary to ef- fectuate the policies of the Act (a) Offer James Bryon Shultis full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of his discharge It is further or- dered that such backpay be computed in the manner pre- scribed in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962) (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security records, timecards, personnel records and reports, as well as all other records necessary to analyze and compute the amount of backpay due here- under (c) Post at its apartment communities located at 475 East Enterprise Drive, Mount Prospect, Illinois, 2134 South Goebert Road, Arlington Heights, Illinois, and 806 Old Willow Road, Wheeling, Illinois, copies of the at- tached notice marked "Appendix " 5 Copies of said notice, on forms provided by the Regional Director for Region 13, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith IT IS FURTHER ORDERED that the Employer's objections be overruled and that Janitors Union, Local No 1 of the Ser- vice Employees International Union, AFL-CIO, be certi- fied as the exclusive bargaining representative of the Employer's employees in an appropriate bargaining unit as set forth in the Stipulation for Certification Upon Consent Election dated April 25, 1975, and identified in this record as Board Exhibit 1(a) 5 In the event the Boards Order is enforced by a Judgment of the United States Court of Appeals the words in the notice reading `Posted by Order of the National Labor Relations Board" shall read ` Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board