First Lakewood Associates

FIRST LAKEWOOD ASSOCIATES, ET AL. First Lakewood Associates, Limited Partnership, Second Lakewood Associates, Limited Partner- ship, Fifth Lakewood Associates, Limited Partner- ship, and Sixth Lakewood Associates, Limited Partnership and Entrust Management Company, an Illinois Corporation, Joint Employers, and Janitors Union Local I of the Service Employees International Union, AFL-CIO. Cases 13-CA- 15100, 13-CA-15526, 13-CA-15652, 13-CA- 15454, and 13-RC-13902 August 16, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On February 11, 1977, Administrative Law Judge Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, Respondents filed excep- tions, a supporting brief, and an answering brief opposing the exceptions of Charging Part and General Counsel. Charging Party and General Counsel filed exceptions, supporting briefs, and answering briefs opposing Respondents' exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' findings,2 and conclusions of the Administrative Law Judge only to the extent consistent herewith. We agree with the Administrative Law Judge that Respondents violated Section 8(a)(1) by coercively interrogating employees concerning their union activities and their feelings towards the Union; by impliedly threatening an employee with discharge for refusing to reveal the identities of employees who had attended a union meeting; by threatening to take away the apartments from the janitor helpers and charge the head janitors for the second bedroom if the Union came in; and by paying and promising to pay employees for miscarriage and maternity bene- fits. In addition, the record reveals that Respondents gave the impression of surveillance of their employ- We overrule the Administrative Law Judge's denial of General Counsels motion to amend the complaint allegation of unilateral changes to read "Commencing on or about May 1, 1976" instead of "Commencing on or about June I" and allow the amendment to conform the pleading to the proof We find that Respondents were on notice of said amendment at the hearing and are not prejudiced in any way by this amendment. 2 The General Counsel and Respondents have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard 231 NLRB No. 68 ees' union activities, thereby violating Section 8(a)(l), by informing an employee that Respondents knew (or had heard) that said employee had joined the Union. We further agree with the Administrative Law Judge's finding that Respondents did not violate Section 8(a)(l) by engaging in certain other conduct and that Respondents did not violate Section 8(a)(1) and (3) by reprimanding, suspending, and changing the job duties and working conditions of employee Andrew Hogue. In light of Respondents' numerous and pervasive unfair labor practices, we find, contrary to the Administrative Law Judge, that a bargaining order is required to protect the employees' representational rights. We further find that on the date of demand the Union represented a majority of employees in the appropriate unit 3 and that Respondents violated Section 8(a)(l) and (5) by refusing to bargain with the Union. The Administrative Law Judge correctly found that on December 5, 1975, the Union represented seven of the employees performing work in the bargaining unit.4 However, we disagree with the Administrative Law Judge's determination that the evidence failed to establish the identity or total number of unit employees. Nowhere in the record is there any dispute as to the total number of unit employees, and there was no evidence presented to suggest that any employees other than those found eligible to vote were unit employees at the time. Moreover, Ted Neill, who is in charge of all maintenance and janitorial employees, testified that the following were the employees performing such functions in December 1975; George Green, Michael Stein, Arley Canterbury, Ted Ervin, Curl Snelten, Greg Tomek, Glenn Stahl, Andy Hogue, Richard Malouf, and Neill. 5 Marie Harle was and still is Neill's secretary and performs maintenance clerical functions; and maintenance clericals are specifically included in the unit. Neill further testified that the identity of the maintenance and janitorial employees has remained constant, with the exception of Malouf, who quit subsequent to the election. We find that the 10 individuals named above plus Neill (who became a supervisor before the election) constituted the appropriate bargaining unit on the date the Union requested recognition. Accordingly, we find that the Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 3 Set forth in Conclusion of Law 6 and par. I (g) of the Order. 4 Ted Neill became a supervisor on December 24, 1975. We find it unnecessary to determine the union membership status of Neill because of our finding that the Union had a clear majority on December 8, 1975, the date of demand. 5 Neill was a supervisor as of the time of the election and, consequently, there were 10 bargaining unit employees on January 30. 1976. 463 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seven unit employees who designated the Union as their collective-bargaining representative by signing authorization cards on December 5, 1975, consti- tuted a majority of Respondent's unit employees. In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), the Supreme Court approved the use of authorization cards as an indication of employee sentiment and further approved reliance upon such cards as a basis for a bargaining order where there is a showing that the employer has engaged in unfair labor practices which "have the tendency to under- mine majority strength and impede the election processes." 395 U.S. at 614. In the instant case, immediately upon receiving the Union's demand for recognition, Respondents em- barked upon a course of unlawful conduct, and these unfair labor practices continued until the election. Thus Respondents interrogated seven unit employees as to their union activities, some more than once; impliedly threatened Gregory Tomek with discharge for refusing to reveal the names of employees who attended a union meeting; and threatened Curt Snelten with the loss of rent-free apartments should the Union win the election. In addition, Respondents promised to pay, and paid, maternity medical benefits immediately following the Union's demand for bargaining in order to discourage employees from supporting the Union. We have further found that Respondents gave the impression of surveillance of their employees' union activities, thereby violating the Act. We find that these unlawful activities, which began at the time the Union demanded recognition and continued throughout the critical period, had the effect of dissipating the Union's majority status as established by authorization cards. The numerous instances of unlawful actions created an atmosphere hostile to the Union and its adherents. Moreover, all of Respondents' employees, with the possible excep- tion of Marie Harle, were targets of the unlawful conduct. We find that Respondents' serious and pervasive violations of the Act make a fair election unlikely and require a bargaining order as of December 8, 1975, the date of the Union's demand for recognition. Trading Port, Inc., 219 NLRB 298 (1975). We further find that Respondents violated Section 8(a)(5) of the Act by making the following unilateral changes without bargaining with or giving notice to the Union: hiring new unit employees on or about June 7, 1976, at wages, hours, and terms and conditions of employment different from those of bargaining unit employees already hired by Respon- dents; and instituting changes in the wages, hours, and terms and conditions of other unit employees on or about May 1, June 7, and July 15 and 19, 1976. THE REMEDY We have found in agreement with the Administra- tive Law Judge that Respondents engaged in conduct violative of Section 8(a)(l) of the Act and, according- ly, we adopt his remedial recommendations in that regard. However, we have found, contrary to the Administrative Law Judge, that Respondents have engaged in certain unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. We therefore order that Respondents cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the record as a whole we make the following: CONCLUSIONS OF LAW 1. Respondents are employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Janitors Union Local I of the Service Employ- ees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees con- cerning their union activities and those of other employees; by coercively interrogating employees concerning attendance at union meetings and about their feelings towards the Union or about joining the Union; by impliedly threatening an employee with discharge for refusing to reveal the identities of employees who had attended a union meeting; by threatening an- employee if the Union came in the Company would take away the apartments from the janitor helpers and charge the head janitors for the second bedroom; by creating the impression of surveillance of its employees' union activities; by informing an employee that Respondents knew (or heard) that said employee had joined the Union; and by promising to pay and paying employees for miscarriage and maternity medical expenses to discourage them from supporting the Union, Re- spondents have interfered with, restrained, and coerced their employees in the exercise of their rights guaranteed in Section 7 of the Act and have engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. Respondents did not violate Section 8(a)(1) and (3) of the Act by discriminating against Andrew Hogue in his employment. 5. Certain of the additional objections set forth supra have been sustained by the evidence and Respondents have thereby interfered with and affected the results of the Board election held on January 30, 1976. 464 FIRST LAKEWOOD ASSOCIATES, ET AL. 6. All full-time and regular part-time janitorial, custodial and maintenance employees including head janitors, janitor helpers, head maintenance men, maintenance helpers and maintenance clericals employed by Respondents at their facility located in Schaumburg, Illinois, but excluding casual and temporary employees, other clerical employees, professional employees, guards, and supervisors as defined in the Act and all other employees, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 7. As of December 8, 1975, the date of the Union's demand for recognition, seven unit employ- ees, a majority, designated the Union as their collective-bargaining representative. 8. By refusing since December 8, 1975, to recognize and bargain with the Union as the exclusive representative of its employees in the appropriate unit set out above, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 9. Respondents have violated Section 8(a)(5) of the Act by instituting unilateral changes in the wages, hours, terms and conditions of employment of unit employees on or about May 1, 1976, and on specific dates thereafter, and by hiring new unit employees on June 7, 1976, at wages, hours, and terms and conditions of employment different from those of bargaining unit employees then employed by Re- spondents. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, First Lakewood Associates, Limited Partnership, Second Lakewood Associates, Limited Partnership, Fifth Lakewood Associates, Limited Partnership, Sixth Lakewood Associates, Limited Partnership, and Entrust Management Company, Schaumburg, Illinois, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating their employees con- cerning their union activities and those of other employees. (b) Coercively interrogating their employees con- cerning attendance at union meetings and about their feelings towards the Union or joining the Union. (c) Creating the impression of surveillance of the union activities. (d) Impliedly threatening employees with discharge for refusing to reveal the identities of employees who attend union meetings. (e) Threatening employees that if the Union comes in the Company will take away the apartments from the janitor helpers and charge the head janitors for the second bedroom. (f) Promising to pay or paying employees for miscarriage and maternity medical expenses to discourage them from supporting the Union. (g) Refusing to bargain collectively with Janitors Union Local I of the Service Employees Internation- al Union, AFL-CIO, as the exclusive collective- bargaining representative of its employees in an appropriate unit composed of: All full-time and regular part-time janitorial, custodial and maintenance employees including head janitors, janitor helpers, head maintenance men, maintenance helpers and maintenance clericals employed by Respondents at their facility located in Schaumburg, Illinois, but excluding casual and temporary employees, other clerical employees, professional employees, guards and supervisors as defined in the Act and all other employees. (h) Instituting unilateral changes in the wages, hours, and terms and conditions of employment of unit employees or hiring new unit employees at wages, hours, and terms and conditions of employ- ment different from those of bargaining unit employ- ees then employed without first bargaining with the Union. (i) In any other manner interfering with, restrain- ing, or coercing their employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain collective- ly with Janitors Union Local I of the Service Employees International Union, AFL-CIO, as the exclusive collective-bargaining representative of its employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed contract. 465 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at their facilities located at Schaumburg, Illinois, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondents' authorized representatives, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. IT IS FURTHER ORDERED that the election conducted in Case 13-RC-1309 is set aside. " In the event that 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our em- ployees concerning their union activities or those of other employees. WE WILL NOT interrogate our employees con- cerning attendance at union meetings and about their feelings towards the Union or joining the Union. WE WILL NOT impliedly threaten our employees with discharge for refusing to reveal the identities of employees who attend union meetings. WE WILL NOT threaten our employees that if the Union comes in the Company will take away the apartments from the janitor helpers and charge the head janitors for the second bedroom. WE WILL NOT pay or promise to pay employees for miscarriage and maternity medical expenses to discourage them from supporting the union. WE WILL NOT create the impression of surveil- lance of employees' union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in organizational activities or collective bargaining, or to refrain from such activities. WE WILL, upon request, recognize and bargain with Janitors Union Local I of the Service Employees International Union, AFL-CIO, as the exclusive bargaining representative of our employees in the appropriate unit composed of: All full-time and regular part-time janito- rial, custodial and maintenance employees including head janitors, janitor helpers, head maintenance men, maintenance helpers and maintenance clericals employed by Respon- dents at their facility located in Schaumburg, Illinois, but excluding casual and temporary employees, other clerical employees, profes- sional employees, guards, and supervisors as defined in the Act and all other employees. WE WILL NOT institute changes in the wages, hours, and terms and conditions of employment of unit employees or hire new employees at wages, hours, and terms and conditions of employment different from those of unit employ- ees already employed without first bargaining with the Union. FIRST LAKEWOOD ASSOCIATES, LIMITED PARTNERSHIP, SECOND LAKEWOOD ASSOCIATES, LIMITED PARTNERSHIP, FIFTH LAKEWOOD ASSOCIATES, LIMITED PARTNERSHIP, AND SIXTH LAKEWOOD ASSOCIATES, LIMITED PARTNERSHIP AND ENTRUST MANAGEMENT COMPANY, AN ILLINOIS CORPORATION DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON, Administrative Law Judge: These consolidated cases were heard at Chicago, Illinois, on September 20 through 24, 1976,1 pursuant to charges filed by Janitors Union Local I of the Service Employees International Union, AFL-CIO (herein referred to as the Union), in Case 13-CA-15100 on February 3, in Case 13- I All dates referred to are in 1976 unless otherwise stated. 466 FIRST LAKEWOOD ASSOCIATES, ET AL. CA-15454 on May 20, in Case 13-CA-15526 on June 7, in Case 13-CA-15652 on July 22, and a consolidated amended complaint issued on July 23 and amendments to the consolidated amended complaint issued on August 6 and September 9. The amended consolidated amended complaint, which was further amended at the hearing, alleges that First Lakewood Associates, Limited Partnership, Second Lake- wood Associates, Limited Partnership, Fifth Lakewood Associates, Limited Partnership, and Sixth Lakewood Associates, Limited Partnership and Entrust Management Company, An Illinois Corporation, Joint Employers (herein referred to as Respondents) violated Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended (herein referred to as the Act), by interrogating employees concerning their union membership, activities, and desires; threatened an employee with discharge or reprisals if the employee did not reveal everything about his and other employees' union activities and sympathies or if the employee gave assistance or support to the Union; threatened an employee with loss of existing benefits if the Union won the election; granted employees increased wages and different or new job titles to discourage them from supporting the Union; promised employees new or improved benefits including wage increases if the Union did not win the election or to discourage employees from supporting the Union; gave an impression of surveillance of union activities by informing an employee they knew or had heard he had joined the Union; promised to pay and paid certain maternity bills of employees, a benefit which did not previously exist, to discourage them from support- ing the Union; issued a written reprimand to Andrew Hogue and placed him on a I-week disciplinary suspension without pay, changed his job duties and working condi- tions, and failed and refused to grant him a wage increase given to other unit employees because of his union or protected concerted activities; refused to recognize and bargain with the Union; unilaterally and without notice to or bargaining with the Union hired new employees in the unit at different rates of pay, wages, hours of employment and other terms and conditions of employment from those employees in the bargaining unit, and instituted changes in the wages, hours, and working conditions of unit employ- ees; and further alleges that because of certain of these unfair labor practices a remedial order requiring Respon- dents to recognize and bargain with the Union is warranted. Respondents in their answers filed on August 2 and 9 and amended at the hearing deny having violated the Act. The issues involved are whether Respondents violated Section 8(a)(1), (3), and (5) of the Act as alleged by unlawfully creating an impression of surveillances, interro- gating, threatening, promising, and granting employees benefits with respect to their union activities; by repri- manding and suspending Andrew Hogue, changing his job duties and working conditions, and refusing to give him a raise because of his union or protected concerted activities; refusing to recognize and bargain with the Union and making unilateral changes in its wages, hours, and working 2 The Regional Director's report on objections reflects that, of approxi- mately II eligible voters, 4 cast valid votes for, and 6 cast valid votes against. the Union. conditions of unit employees; and whether a bargaining order was warranted. An additional issue is whether the objections to the conduct of the election, discussed infra, have merit to warrant setting aside the election results. On April 15, the Regional Director for Region 13 by order consolidated for hearing with the issues arising under the original complaint issued on April 14, which was subsequently amended, the resolution of Objection II filed by the Union concerning the election held in Case 13-RC- 13902, which the Union lost, and conduct referred to as additional objections set forth in paragraphs IX(g) through IX(n) and (p) of that complaint. The election was conducted on January 302 pursuant to a Stipulation for Certification Upon Consent Election approved on December 30, 1975, by the Acting Regional Director based upon a petition filed by the Union on December 11, 1975. Objection 11 provides as follows: While some employees were given a new and additional fringe benefit after the filing of the representation petition, other employees were told the Employer would no longer do this because the Union's petition froze all benefits but that the Employers would "take care of" employees in other, unspecified, ways. The additional objections which are now set forth in paragraphs IX(g) through IX(n) and IX(p) of the amended consolidated amended complaint provide as follows: On a date unknown, in or about the second week of December 1975, Respondents, by their supervisor and/or agent Lynn Mehrholz, interrogated an employee concerning said employee's union membership, activities, and desires; on or about December 17, 1975, Respondents, by their supervisor and/or agent Lynn Mehrholz, granted an employee increased wages and a different job title in order to discourage said employee from supporting the Union; on or about December 17, 1975, Respondents by agent Lynn Mehrholz informed an employee that his future maternity bills would be paid by Respondents, a benefit which did not previously exist prior to the union organiza- tional campaign, in order to discourage employees from supporting the Union; on or about December 18, 1975, Respondents, by Lynn Mehrholz, informed an employee that his future maternity bills would be paid by Respon- dents, a benefit which did not exist prior to the union organizational campaign, and, in fact, certain of said employee's bills were paid by Respondents on or about January 27, 1976, in order to discourage employees from supporting the Union; on a date unknown, between on or about December 11 and 25, 1975, Respondents, by their supervisor and/or agent Lynn Mehrholz, granted an employee increased wages and a new job title in order to discourage said employee from supporting the Union; on a date unknown, in the middle of January 1976, Respondents by their supervisor and/or agent Ted Raymond Neill, interrogated an employee concerning said employee's union membership, activities, and desires; on a date unknown, in the middle of January 1976, Respondents by their supervisor and/or agent Ted Raymond Neill, prom- ised an employee new or improved benefits in said 467 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee's terms and conditions of employment if the Union did not win the Board-conducted representation election and/or in order to discourage said employee from supporting the Union; on or about January 30, 1976, Respondents, by their supervisor and/or agent Ted Raymond Neill, threatened an employee with the loss of existing benefits if the Union won the Board-conducted representation election; and on a date unknown, after January 16, 1976, but prior to January 30, 1976, Respon- dents, by their supervisor and/or agent Donald Allen, promised an employee that, if the Union did not win the Board-conducted representation election, future wage adjustments would not entail a reduction in wages for said employee but rather would entail specific wage increases for said employees. Upon the entire record3 in these cases and from my observation of the witnesses and after due consideration of the briefs filed by all the parties, I hereby make the following: 4 FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENTS Respondents, which are joint employers, with their office and principal place of business located at Schaumburg, Illinois, are engaged in the business of the ownership and management of the Walden residential rental apartment and townhouse complex located at Schaumburg, Illinois. During 1975, a representative period, Respondents' gross volume of business from their operations exceeded $500,000 and they purchased and received goods, valued in excess of $50,000, which were shipped directly to their Illinois facility from points located outside the State of Illinois. Respondents admit, and I find, that they are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondents admit, and I find, that Janitors Union Local I of the Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondents are engaged in the ownership and manage- ment of a rental apartment and townhouse complex located at Schaumburg, Illinois. Included among their official and supervisory personnel are Vice President Donald Kilourie, Vice President Donald Allen, Property Manager Thomas Holmes, Maintenance Supervisor Ted Neill, and Maintenance Supervisor Lynn Mehrholz.5 Ted : Errors in the transcnpt have been noted and corrected. I Unless otherwise indicated the findings are based upon pleadings, admissions. stipulations, and undisputed evidence contained in the record, which I credit. , Respondents admit, and I find, that each of these individuals are supervisors within the meaning of the Act. j The terms "janitor" and 'janitor helper" are used to describe the same job. Neill replaced Lynn Mehrholz, who is no longer employed by Respondents, as maintenance supervisor about Decem- ber 24, 1975. Respondents as part of their operations employ janitori- al, custodial, and maintenance employees. Their various job classifications include head janitor, janitor, janitor helper,6 head maintenance man, maintenance helper, and maintenance clerical. The Union began an organizational campaign among Respondents' employees and held its first meeting with the employees on December 5, 1975. These proceedings arose out of conduct occurring during that organizational campaign and the representation election which was held on January 30. B. Interrogations, Promises, and Threats On December 8 and 9, 1975, Maintenance Supervisor Mehrholz7 telephoned Gregory Tomek at his home and asked him questions about whether any of the union people had been to see or talk to him, where the union meeting was held, who had attended the meeting, and what was said at the meeting. During the conversation, Mehrholz told Tomek he had given him a nice job and he had an apartment but said that he was either on his side of the fence or the other and it was his last chance to tell him who had attended the meeting. When Tomek refused, Mehrholz informed him he would feel the ___s of the earth. Mehrholz also reminded Tomek that he had told him at the time he was hired that there would be no union. On December 9, 1975, Mehrholz telephoned George Green at his home and asked him whether he went to the union meeting and why he had not told him about the union meeting. On December 9, 1975, at the maintenance office, Mehrholz told Theodore Ervin that he heard they had a meeting and brought in an organizer to organize a union. Mehrholz asked Ervin who had attended the meeting and who had sent for the organizer. When Ervin refused to tell him, Mehrholz told him not to sign anything or talk to any organizer, to keep his ears open, and to let him know if he heard or found out anything. That evening, Mehrholz telephoned Ervin at his home and asked him who the organizer was and whether it was Gregory Tomek or Arley Canterbury. Mehrholz again told Ervin to keep his ears and eyes open and let him know if he heard anything and not to sign anything. About the second week in December 1975, Mehrholz asked Michael Stein if he had heard anything about the union. On the morning of December 10, 1975, after Mehrholz told the employees to wait because he wanted to talk to them, he called Andrew Hogue into the office and asked "So you want to join the union, huh?" When Hogue asked Mehrholz who told him Mehrholz replied the union man. 7 Maintenance Supervisor Mehrholz did not testify and I credit the undenied testimony of Gregory Tomek, George Green, Theodore Ervin, Michael Stein. Curt Snelten, Andrew Hogue, and Arley Canterbury concerning their conversations with him. B The omitted word is a four-letter curse word. 468 FIRST LAKEWOOD ASSOCIATES, ET AL. That same morning Curt Snelten was called in the office by Mehrholz who asked him if he had joined the Union. On December 9, 1975, Mehrholz asked Arley Canterbury what the Union had done for him. Based upon the foregoing evidence, I find that Mainte- nance Supervisor Mehrholz on December 8 and 9, 1975, interrogated Arley Canterbury, Curt Snelten, George Tomek, and Theodore Ervin about their union activities; on December 8 and 9, 1975, Mehrholz interrogated George Green, Gregory Tomek, and Theodore Ervin about a union meeting; on December 9, 1975, Mehrholz impliedly threatened Gregory Tomek with discharge for refusing to reveal the identities of employees who had attended a union meeting; on December 9, 1975, Mehrholz interrogat- ed Theodore Ervin about the union activities of other employees; on December 10, 1975, Mehrholz interrogated Andrew Hogue and Curt Snelten about their joining the Union; and about the second week in December 1975 Mehrholz interrogated Michael Stein about his union activities. On January 22, Curt Snelten and Gregory Tomek had a conversation with Vice President Allen at which the Union was discussed. According to Snelten, when he questioned Allen about whether his pay would be cut, Allen informed him it would not and said they tried to even out the pay scale through annual raises whereby the helpers would get 10 percent and he would get 5 percent and that way, in the long run, it would even out. Allen denied making any promises about wage increases. His version was, when Tomek expressed that he did not feel it was fair for an employee to do the same job as another man without receiving the same amount of pay, he agreed and said the equal pay for equal work concept should be valid throughout any situation. Although Tomek testified as a witness on behalf of the General Counsel concerning the same conversation, he failed to corroborate Snelten's testimony on this issue, and I credit Allen's denials that he made any promises concerning wage increases on that occasion. On the morning of January 30, 1975, shortly before the election was held that same morning, Curt Snelten had a conversation with Maintenance Supervisor Neill. Snelten testified Neill asked him to trust him and, after telling him that he did not know whether the Union would be good or bad and Walden had realized some of the mistakes that had been made in the past, told him, if the Union came in, he knew for a fact that Walden would take the apartments away from the helpers and charge the head janitors for the second bedroom. On cross-examination Snelten stated Neill told him it would go to rock bottom for negotiations and that apartments, wages, and everything would be negotiable. Neill denied making any threats to Snelten about losing any benefits if the Union won the election. His version was he told Snelten he hoped that he would put his trust in the Company and, upon being asked by Snelten if they would lose their apartments if the Union got in, he told Snelten he was sure that anything that happened would have to be negotiated. Snelten impressed me as a more credible witness than Neill, and I credit his testimony " The amended consolidated amended complaint did not allege any threats were made on this occasion. Accordingly, no finding will be made. rather than Neill's and find that on January 30, prior to the election, Maintenance Supervisor Neill threatened Snelten that, if the Union came in, the Company would take the apartments away from the helpers and charge the head janitors for the second bedroom. Apart from my observa- tions of the witnesses in crediting Snelten Neill testified in an evasive manner. About the middle of January, Andrew Hogue had a conversation with Maintenance Supervisor Neill about moving to another apartment during which the Union was discussed. Hogue's version was Neill suggested that he wait until after the election before moving because he didn't want to see him have to move twice. The reason given by Neill was that Hogue would have to pay rent on the second bedroom and explained to Hogue that he could check around and would find that under union contracts janitor helpers like Hogue did not receive apartments. Upon asking Neill how the "on call" procedure was going to work since there were going to be more people on emergency work and the schedule wouldn't be the same, Neill's response was he had not thought about it. When he suggested that Neill put Michael Stein and George Green on call at the same time Neill said he thought it was a good idea and would think about it and also said they could even throw in an extra 100 bucks for the guy who pulled weekend duty. Hogue also stated Neill asked whether he would like to be a head janitor and whether he thought the Company could afford to pay the other two janitor helpers the head janitors' wages. Neill mentioned that, since they had gotten rid of Maintenance Supervisor Mehrholz, things were going to be different. Further, Neill asked him whether he would be willing to strike if the Union called a strike, whether he could live off strikers' wages, and what would happen if he did not like his union steward. Neill also remarked about being stuck with a union they didn't like for 3 years and concluded the conversation by saying what it all came down to was who was Hogue going to trust, someone he knew or some guy downtown in Chicago he did not know. Under cross-examination Hogue stated Neill told him that he was not saying somebody was going to take away his apartment, but under a union contract it might be negotiated away. Neill denied making any promises to Hogue. 9 His version of the conversation was he pointed out to Hogue they were in the middle of a union election and apartments on the old side of the lake were more expensive and since everything was negotiable he was not guaranteed he would have a two-bedroom apartment when it was done and maybe he would rather wait to see how it turned out before moving. He mentioned there were many union contracts in Chicago where a janitor's helper did not receive an apartment. Neill acknowledged asking Hogue whether he could live on strike pay. Based upon Hogue's testimony concerning questions about a strike and Neill's acknowledgment that he questioned Hogue about living on strike pay I find that Maintenance Supervisor Neill about the middle of January interrogated Hogue concerning his feelings about the Union. However, I do not find that any unlawful promises were made as alleged in the amended consolidated 469 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amended complaint. To the extent Hogue's testimony indicated such promises were made I credit the denials of Neill who I find was a more credible witness than Hogue. C. Promotions to Head Janitor About the middle of December 1975 Theodore Ervin and Curt Snelten were promoted by Respondents from their positions of janitor helpers to head janitors and received raises of approximately $400. Snelten was as- signed as head janitor for Lakewood Five and Lakewood Six and Ervin for Lakewood One and Lakewood Two. Prior to their promotions two vacancies had been created in these positions in the fall of 1975 as a result of a cost reduction program 'o when one head janitor, Tom Lyons, who left Respondents' employment, was not replaced and another head janitor, Gregory Tomek, was demoted to the lower salaried position of a janitor helper. At least one head janitor, Arley Canterbury, remained in that position. Vice President Kilourie, whose testimony was partially corroborated by Property Manager Holmes, stated the decision to promote the two persons to the positions of head janitor in December 1975 resulted from an increase in the occupancy rate of apartment rentals and in order to provide the best type of janitorial service. The occupancy rate for Fifth Lakewood, which had 396 units, had increased from approximately 60 percent in early fall 1975 to approximately 70 percent in December 1975, while the occupancy rate for Sixth Lakewood for the same period increased from approximately 80 percent to approximately 87 percent. The General Counsel at the hearing contended the promotions of Ervin and Snelten were changes in title only without substantial changes in responsibilities and consti- tuted a sham. However, both Ervin and Snelten, who testified as witnesses on behalf of the General Counsel, while stating that their work remained the same, acknowledged that in addition to being primarily responsible for their own buildings assigned to them they were each also responsible for certain other buildings assigned to janitor helpers including Gregory Tomek, Glenn Stahl, and Richard Malouf and were given this responsibility at the time they were promoted." Moreover, Ervin acknowledged after becoming head janitor he helped the janitor helper under him who in turn helped him and, under cross-examination, acknowledged in performing his new duties as head janitor he spent more time on the job than previously as a janitor helper. Ervin's description of his responsibilities as head janitor was essentially the same as those which he described for Tom Lyons under whom he worked as a janitor helper while Lyons was head janitor. Janitor helpers Gregory Tomek and Glenn Stahl, who also testified as witnesses for General Counsel, acknowledged at the time Ervin and Snelten became head janitors they were informed of their newly acquired responsibilities. Vice President Kilourie described the responsibilities of the head janitors who were to be primarily responsible for "' According to Vice President Kilourie the cost-reduction program resulted from economic difficulties experienced in the completions of Fifth Lakewood and Sixth L.akewood in 1975 and a decrease in business. " The janitor helpers' duties include cleaning the buildings to which they their own assigned buildings and also for those buildings assigned to the janitors or janitor helpers under them. They served as lead employees who reported directly to the maintenance supervisor. Based upon the foregoing evidence, which establishes that at the time these promotions occurred the position of head janitor was already in existence, two vacant positions had been previously filled by other employees, and the testimony of the General Counsel's own witnesses concern- ing their responsibilities as head janitors, I find contrary to the General Counsel's position that these promotions were not a change in title only and a sham but were in fact actual positions of responsibility similar to those which had previously existed and were in existence at the time of the promotions. Further, absent evidence to refute the undis- puted testimony of Vice President Kilourie and Property Manager Holmes, which I credit, concerning the reasons for the promotions, I do not find the promotions of Ervin and Snelten, even occurring at the time they did during the Union's organizational campaign, violated the Act. D. Maternity Benefits Respondents have a group insurance policy with the State Mutual Life Assurance Company of America covering their employees. Although the policy provides for certain benefits in connection with pregnancies it excludes medical coverage for maternity and miscarriage expenses. Vice President Kilourie, whose testimony was partially corroborated by Vice President Allen, contends that Respondents since February 1973 have had a self-insured policy covering maternity and miscarriage expenses for the employees in those instances where both the conception and birth occur during the employment of the employees. However, Kilourie acknowledged he had never explained this unwritten policy to the employees and various employees including Theodore Ervin, Michael Stein, Arley Canterbury, Gregory Tomek, George Green, Glenn Stahl, Curt Snelten, and Andrew Hogue all denied being told anything about such policy when they were hired. Prior to December 1975, the only evidence of any maternity benefits being paid by Respondents occurred about January 10, 1974, and involved the payment of $400 towards the maternity medical expenses for the wife of Mel Persin. However, in that instance, the amount paid was specifically agreed upon between Respondents and Persin, who was employed as a construction coordinator, as part of his employment compensation package. Thus, since this was a separate arrangement, neither the payment nor document authorizing such payment supports Respon- dents' position that they had a self-insured maternity benefit policy covering their janitorial, custodial, and maintenance helpers. About June or early July 1975, Maintenance Supervisor Mehrholz informed employees Andrew Hogue and Pat Mulligan, both of whose wives were pregnant, 2 that the Company's insurance did not cover babies. The maternity are assigned, cleaning the apartments after tenants have moved out, shoveling snow, and performing minor maintenance work. 12 Hogue's wife was pregnant at the time of his employment. 470 FIRST LAKEWOOD ASSOCIATES, ET AL. expenses for the birth of Hogue's child born on July 9, 1975, were not paid by Respondents. On October 1, 1975, George Green's wife had a miscarriage. During November 1975 Green had two discussions with Vice President Allen concerning payment of the medical bills incurred as a result of the miscarriage. Green stated Allen informed him he thought the insurance carrier should pay for it because it was a complication rather than a pregnancy and if the insurance carrier did not accept the bills to bring them to him and he would try to put it through. Upon subsequently informing Allen the insurance carrier refused to pay the bills, Allen again told him to bring him the bills and he would see what he could do and thought the insurance carrier would cover it. Although Allen said the bills would be paid, he did not say by whom, and it was Green's understanding that Allen would check with the insurance company. Vice President Allen's version was, when Green asked how he was going to handle the bills covering his wife's miscarriage, he informed Allen to get the bills together and he would take care of it. About 2 weeks later when Green again inquired, he told Allen to get the bills and he would pay them. On December 10, 1975, Green submitted the medical bills to Allen at which time he was given a draft dated December 10, 1975, for $186 by Respondents' secretary to cover the amount of the bills incurred.' 3 On that occasion, Green stated Allen told him he thought it should be covered under complications and, if the insurance compa- ny sent him a check, for him to give the money back. Allen denied the medical bills were paid to discourage Green from supporting the Union and stated they were paid pursuant to the self-insured policy. He acknowledged he may have mentioned to Green that complications were conceivably covered under another type of insurance policy. I credit the testimony of Green who I find was a more credible witness than Allen. In my observations of the witnesses Allen's testimony was vague. One or two months prior to the birth of Glenn Stahl's child on December 19, 1975, Stahl was informed by Maintenance Supervisor Mehrholz pursuant to his inquiry that the Company's insurance program did not cover maternity benefits.t4 However, on December 18, 1975, when Stahl, pursuant to Mehrholz' inquiry, informed Mehrholz that he had been employed by the Company approximately 10 months, Mehrholz told him his maternity bill would be covered by the Company and he could return the bank loan which he had borrowed for the maternity expenses to the bank. Respondents, by a draft dated January 27, paid the Northwest Community Hospital the sum of $1,132.85 towards the maternity expenses incurred by Stahl's wife. On December 17, 1975, Maintenance Supervisor Meh- rholz inquired of Curt Snelten whether his wife was pregnant. Upon replying she was, Mehrholz told Snelten not to worry about the bills because they would be taken 1:1 Vice President Kilourie could not recall the date he approved the draft. " Maintenance Supervisor Mehrholz was informed by Stahl the baby was due on December 24, 1975. care of by the Company. When Snelten asked Mehrholz why it was not in the insurance booklet, his response was he had to be working there a while to get benefits. This was the first time Snelten had been informed of such a policy. On January 21, Respondents held a meeting with the employees at which Curt Snelten asked if maternity bills would be paid. Snelten stated Vice President Allen's response was he didn't know anything about it and they would have to discuss it later. Snelten also recalled Allen saying something like, under the law, the Company could not make any changes in wages or benefits during the critical period prior to the election. George Green, who was also present, testified Allen's response was he couldn't get them any answer then, because an election was going on, and before the vote, because it would be an unfair labor practice. Under cross-examination Green also stated Allen said he could not make any promises because they were in the midst of an election. Vice President Allen denied that Snelten's question about the payment of maternity expenses, which was raised after one of Respondents' representatives at the meeting mentioned that all benefits were frozen, was answered.15 The following day Curt Snelten and Gregory Tomek met with Vice President Allen; Allen acknowledged when Snelten asked him about the payment of future maternity benefits he informed him there was no reason he wouldn't be treated as fairly as anyone else had been in the past. The versions of Snelten and Tomek concerning this portion of the conversation are conflicting and are discredited. Based upon the absence of any evidence to establish that prior to December 1975 the employees were informed of the alleged self-insured maternity benefit policy; the undisputed testimony of both Andrew Hogue and Glenn Stahl that Maintenance Supervisor Mehrholz had informed them prior to that time there were no maternity benefits; and Vice President Allen's failure to inform Green of the alleged maternity policy even though it was supposed to cover miscarriages, I find that prior to December 1975 Respondents, contrary to the denials of both Vice Presi- dent Allen and Vice President Kilourie, which I discredit, did not have a policy covering maternity and miscarriage medical expenses for their janitorial, custodial, and maintenance employees. I further find notwithstanding the fact Respondents did not have a policy covering maternity and miscarriage medical expenses that Respondents on December 10, 1975, paid George Green's medical expenses for the miscarriage suffered by his wife; on December 18, 1975, Maintenance Supervisor Mehrholz promised Glenn Stahl that Respondents would pay for the maternity expenses of his pregnant wife and on January 27 they paid certain maternity expenses incurred by Stahl's wife; on December 17, 1975, Maintenance Supervisor Mehrholz promised Curt Snelten that Respondents would pay for the maternity expenses of his pregnant wife; and on January 22 Vice President Allen impliedly promised Curt Snelten and Gregory Tomek that Respondents would pay future maternity expenses. Is None of the other official and supervisor) personnel present at the meeting including Vice President Kilourie, Property Manager Holmes, and Maintenance Supervisor Neill testified concerning this meeting. 471 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The Reprimand, Suspension, and Subsequent Job Reassignment of Andrew Hogue and Failure To Give Him a Raise Andrew Hogue was hired in February 1975 and works as a janitor helper under the supervision of Maintenance Supervisor Neill. His union activities consisted of signing a union authorization card and attending a union meeting held on December 5, 1975. Respondents, through their unlawful interrogations of Hogue, discussed supra, had knowledge or reason to believe he supported the Union. Further, Hogue testified without denial that after the election that same day or the next day Maintenance Supervisor Neill told him he knew he voted for the Union and didn't want any hard feelings between them. On May 18, Hogue was given a written reprimand and a I-week disciplinary layoff, without pay, effective from May 19 to May 26, by Property Manager Holmes and Mainte- nance Supervisor Neill. The written reasons furnished Hogue on that occasion were as follows: "On February 16, 1976, he was told by Ray Neill and Tom Holmes that his work performance was below standard. The past incidents were covered with him. Since that time, and specifically on the dates of April 20, May 3 and 7, 1976, it was necessary to call Andy Hogue at home and wake him up and tell him to come to work. On May 1, 1976, a resident of 1919 Prairie Square came in the leasing office and complained of the condition of the building she lived in. She noted that it was in much worse shape now than a couple of weeks ago when Andy Hogue was on vacation and his replacement was there. Two letters are on file dated March 31, 1976, and March 1, 1976, from a resident who lives below Andy Hogue and has complained on several occasions of noise; and on May I, 1976, Andy Hogue left at 11:30 a.m. to buy a Mother's Day present. This was a half hour earlier than quitting time. On this day we also received a complaint from a resident in Post Oak who complained that the dumpster had not been returned and was blocking his parking place. This normally is done before noon." The written reprimand further warned that Hogue's failure to perform his job properly or any further such occurrences would result in his immediate termination. Hogue protested the action, mentioning other employees had been late and offered to move if there was a noise problem. Holmes declined Hogue's offer to inspect his building. According to both Holmes and Neill, their purpose in reprimanding and suspending Hogue was to get him to improve his performance and attitude. They denied such action was taken because of union activities. The evidence with respect to each of the various reasons given for Hogue's reprimand and suspension, in the order listed, disclosed as follows: About the middle of February a tenant was scheduled to move into an apartment located in Hogue's building. However, at the time of the required inspection to insure it was ready, the apartment had not been cleaned which resulted in the tenant having to wait while other employees were brought in that evening to help 1 The condition of Hogue's building is discussed, infra ' While tardiness records are not normally kept on employees Harle had previously kept such records on a former employee, Pat Mulligan. Hogue clean it. Although Hogue, like other janitors and janitor helpers, was responsible for cleaning the apartments in his building prior to the inspections for new tenants moving in, he denied any knowledge about the move-in date scheduled for the tenant. The procedure for informing janitors and janitor helpers of move-in dates was by posting them on a blackboard in the maintenance office and by the issuance of a work order. While there is conflicting testimony between Hogue and Marie Harle, who is the secretary in the maintenance office and responsible for posting the information and preparing the work orders, about whether the move-in date had been posted on the blackboard and whether she had orally reminded Hogue that week about the move-in, a work order, dated February 9, was given to Hogue a week earlier concerning the apartment involved. It contained the date "2/15" and asked whether the apartment was ready. Although Hogue claimed he did not know what the work order meant he wrote "No" on it, turned it in without inquiring of Harle, who had prepared it, about what it meant and took no further action. Under these circum- stances I find Respondents had reason for holding Hogue responsible for not having the apartment ready on time. While Hogue further contends that same evening Property Manager Holmes told him he understood Hogue had no prior knowledge of the move-in date and in March Maintenance Neill told him it was Neill's own fault that the apartment was not ready, I credited the denials of both Holmes and Neill, who I find were more credible witnesses than Hogue, that they had made such statements. No evidence was presented to show that other employees having sufficient notice of move-in dates had failed to have their apartments ready for tenants. That same evening Property Manager Holmes and Maintenance Supervisor Neill discussed the move-in incident with Hogue, at which time Neill also informed Hogue that his work performance was below standard and he was not keeping his building clean, mentioning such areas as the halls, laundry room, and elevators.16 Hogue denied it and requested Holmes to inspect the building and point out what was wrong. Employees are supposed to report to the maintenance office for work at 8 a.m. Whenever they are going to be late they are supposed to call in; otherwise, secretary Harle and on occasions Maintenance Supervisor Neill will call and remind them. According to both Neill and Harle, during the period from about January to April 20, Hogue was late to work on approximately five or six occasions without calling in, whereupon Neill instructed Harle to keep a record of his tardiness. l7 Both Neill and Harle stated in April and May that Hogue was late on April 20 and several other occasions, which Harle placed as occurring on May 3, 7, and 11. On three of these occasions Harle called Hogue at home. Hogue could not recall being late from January until his return from vacation on April 19,18 but acknowledged being, called by Harle four times in April and May, including two times during I week although he could not remember the dates. Neill, whom I credit, stated he talked iR Hogue's vacation began on April 4. 472 FIRST LAKEWOOD ASSOCIATES, ET AL. to Hogue, who denied having been threatened about being late, several times between February and May 18 and warned him about being late. Glenn Stahl, a witness for the General Counsel, testified on approximately three or four occasions he had been 10 to 15 minutes late without prior authorization and was called by Neill and Harle. However, these were the only instances which had occurred since he was hired in March 1975 and he was never late twice in the same week. Although Stahl had observed other janitors reporting late he did not know whether or not they had called in. Both Neill and Harle denied that any other employee during this period was tardy as many times as Hogue and no evidence to the contrary was presented. On May I Property Manager Holmes stated he over- heard a woman resident of building 1919 Prairie Square for which Hogue was responsible complaining in a loud voice to the rental agent about the condition of the building and the laundry room. After stating while the building had once looked good she said she wasn't going to pay that rent to lease a dirty building. Neither the tenant nor rental agent testified concerning this complaint nor was Hogue in- formed of it at the time. While Gregory Tomek and Glenn Stahl testified they had received complaints from tenants about themselves, the evidence does not establish such complaints were similar to the one involving Hogue. The tenant who resides in the apartment located directly beneath the apartment occupied by Hogue wrote letters, dated March I and 31, to Respondents complaining about noise from Hogue's apartment. The tenant requested that she be allowed to move to another floor or that a formal complaint be issued against such noises as stomping, running, and flute playing and further related that the occupants above had been asked on at least three occasions to be quieter. Property Manager Holmes upon receipt of the letters gave them to Neill to talk to Hogue. According to Neill, he informed Hogue of the complaints, asking him to keep the noise down, which Hogue denied making. Hogue, who denied seeing the letters, did not refute Neill's testimony but, as previously noted, had offered at the time of his suspension to move if noise was a problem. While neither Holmes nor Neill checked with the tenant herself about her complaints they denied any noise complaints had been made against other janitors. On May I, Hogue left the premises about 11:30 a.m. to buy his wife a present. Upon leaving early that day' 9 Hogue did not put away the trash dumpster located at the Post Oak townhouses which he contended had not been emptied.2 0 According to Holmes, about 1 1:30 a.m., upon receiving a complaint from a resident of the Post Oak townhouses that the dumpster had been left out and was blocking his automobile, he went to investigate and observed Hogue leaving early while the dumpster which he described as empty had not been put away.2 ' 1' The parties stipulated that. prior to the change in July. the work hours on Saturday were from 8 a.m. to 12 o'clock noon. 2' The General Counsel's witnesses Gregory Tomek and Theodore Ervin, as well as Maintenance Supervisor Neill. all stated the dumpsters are to be put away as soon as they are empty. 21 A week or two earlier Holmes had received a similar complaint from another resident of the Post Oak townhouses. 22 Based upon the testimony of Vice President Kilourie. Property While Hogue stated Holmes questioned him that day about his not putting the dumpster away, Holmes, who reported the incident to Neill, could not recall talking to Hogue. Maintenance Supervisor Neill, whom I credit, testified between January and May he received approximately 8 to 10 calls about the dumpster blocking automobiles and he had talked to Hogue on three or four occasions about putting the dumpster back as soon as it was empty. Hogue acknowledged between January and April the dumpster was not returned to its proper place on two occasions and both Holmes and Neill had talked to him about it. Neill testified the only other complaint which he had received about a dumpster involved employee Theodore Ervin and this had occurred only one time. Effective July 26, Hogue was reassigned from his job as a janitor helper in building 1919 Prairie Square to the position of swing man.22 His new duties, which were to be performed on Saturdays, Sundays, 23 and 3 weekdays each week, included cleaning carpets in apartments, townhous- es, and office buildings, if necessary, throughout the Walden complex and various other general cleaning and maintenance duties. Further, while other employees, who had been performing similar work as Hogue including Glenn Stahl and Gregory Tomek, received raises effective July 15, Hogue did not receive a raise. Both Holmes and Neill made the decision to reassign Hogue to his new job and not to give him a raise; they stated their reasons, of which they informed Hogue on July 19, were based upon his past performance and they denied such action was taken because of his union activities. During their conversation on July 19 Hogue testified upon asking Holmes to inspect his building Holmes' response was the building was not the issue but the fact was they had a man in Post Oak who was willing to tell a judge that the garbage can was repeatedly left out, that Hogue had been late, and he had been warned and suspended. Holmes, whose testimony was corroborated by Neill, credibly denied having made such statement. Holmes did mention to Hogue that some of the charges filed with the National Labor Relations Board concerning Hogue's suspension had been dropped,2 4 which Hogue disputed. Neill acknowledged that following Hogue's return to work after his suspension there had been no complaints received concerning the reasons for which he had been suspended, except he continued to have to talk to Hogue about the general condition of his building. Neill, who resided in Hogue's building and as part of his duties inspected all the buildings, testified that the appearance of Hogue's building never looked as nice as the other buildings. For example, the hallways needed vacuuming, the globes in the entrance way were dirty, the windows did not look nice, and the laundry room was messy. Holmes corroborated Neill's testimony concerning the condition of Manager Holmes, and Maintenance Supervisor Neill this was a new position created for the purpose of improving the appearance of the building complex on weekends when most rentals occurred. 23 To accommodate Hogue, who attended church on Sundays. he was permitted to set his own work hours on Sunday. 24 Holmes stated he had received a letter from the National Labor Relations Board. 473 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the building. Two witnesses, Glenn Stahl and Arley Canterbury, presented by the General Counsel, testified concerning the condition of Hogue's building. While Stahl stated during two emergency calls he had made to Hogue's building he had observed certain areas of the building such as the laundry room, stairwells, storage room, and garbage room which he described as being in good or average condition he acknowledged under cross-examination that on those occasions he had not actually been in all those areas of the building. Further, Arley Canterbury, who was the head janitor over Hogue, only described the condition of Hogue's building as being in fair condition. Based upon the testimony of Neill and Holmes, which I credit, concerning the condition of Hogue's building, which Hogue, Stahl, and Canterbury failed to refute, I find that Hogue failed to properly maintain the condition of his building. F. The Bargaining Issue and Unilateral Changes The amended consolidated amended complaint alleges, Respondents admit, and I find that the following unit constitutes 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 janitorial, custodi- al and maintenance employees including head janitors, janitor helpers, head maintenance men, maintenance helpers and maintenance clericals employed by Re- spondents at their facility located in Schaumburg, Illinois, but excluding casual and temporary employees, other clerical employees, professional employees, guards and supervisors as defined in the Act and all other employees. The General Counsel submitted as evidence to establish that the Union represented a majority of the employees in the aforesaid bargaining unit authorization cards signed by six employees and evidence concerning the union member- ship of two other employees, namely, Arley Canterbury and Ted Neill. The six authorization cards 25 were signed on December 5, 1975, by Richard Malouf, Gregory Tomek, Theodore Ervin,2 6 Glenn Stahl, Andrew Hogue, and Curt Snelten, each of whom properly authenticated their own cards at the hearing.27 25 The cards designated the Union to represent the employees for the purpose of collective bargaining concerning wages, hours and others terms and conditions of employment and contained the following statement, "I understand that this card can be used by the Union to obtain recognition from my employer without an election." 26 Theodore Ervin's card contains the date December 6, 1975. 27 Respondents' argument in their brief that the authorization cards were invalid because certain employees were told there would be an election is rejected. The fact that employees were also told that the authorization cards. which on their face clearly and unequivocally authorized the Union to represent them for the purpose of collective bargaining without an election, would be used for an election would not destroy the validity of their cards since the) were neither told nor intentionally led to believe the sole purpose of the cards was to obtain an election. See Walgreen Company, 221 NLRB 1096(1975). 21 The Union in its brief further asserts that the report on objections establishes there were I I eligible voters in the unit and attached to its brief an alleged copy of the list of eligible voters in Case 13-RC-13902. The report on objections not only refers to the approximate rather than the Through stipulations as well as the testimony of Arley Canterbury it was established that on and since December 5, 1975, Arley Canterbury has been a member of the Union in good standing. All of these seven employees performed jobs which fell within those classifications encompassed by the description of the bargaining unit. The union membership status of Ted Neill, who performed maintenance work that fell within the bargain- ing unit description until about December 24, 1975, at which time he replaced Lynn Mehrholz as maintenance supervisor, was in dispute. Joseph Quiring, a union organizer, testified Neill was a member of the Union in early December 1975 and remained a member until February. However, no records were received in evidence to support his testimony. Neill, while acknowledging he had been a member of the Union, testified that he ceased paying dues during the early part of 1975 and only remained a member until about March 1975. I credit Neill's testimony that he was no longer a member of the Union after about March 1975. Thus, the evidence establishes that on December 5, 1975, the Union represented seven of the employees performing work within the bargaining unit described. However, during the presentation of the General Coun- sel's case no evidence was proffered to establish either the identity or total number of employees who were employed within the bargaining unit. Both the General Counsel and the Union, relying primarily on the testimony of Maintenance Supervisor Neill, contend that there were 11 employees in the unit described when the demand for bargaining was made on December 8 and 9 as discussed infra.28 Although Neill, while testifying for Respondents, named certain employees performing janitorial and maintenance work about December 15, 1975,29 prior to the time he became a supervisor and again between the period January 7 and June 130 after he became maintenance supervisor such evidence was not offered for the purpose of establish- ing specifically who was in the bargaining unit, nor does it appear to be conclusive since it did not cover all of the job classifications 3t or employees employed by Respondents. 32 Therefore, I find the evidence failed to establish either the identity or the total number of employees comprising the bargaining unit.33 actual number of eligible voters, but also does not constitute probative evidence to establish the Union's majority status. With respect to the alleged list of eligible voters this document has not been received in evidence and will not be considered. Cf. Sunset Coffee and Macadamia Nut Co-Op of Kona, 225 NLRB 1021 (1976). 29 They included Michael Stein, George Green, Ted Ervin, Arley Canterbury, Gregory Tomek, Glenn Stahl, Curt Snelten, Andrew Hogue, and himself. 30 These employees included Ted Ervin, Arley Canterbury, Gregory Tomek, Glenn Stahl, Curt Snelten, Andrew Hogue, Michael Stein, and George Green. 31 Maintenance clericals, for example, were not included, although Neill subsequently described the duties of Marie Harle who worked as a secretary in the maintenance office. 32 For example, the record indicates that during part of the time Respondents employed a Bill Keeley, who performed janitorial and maintenance work in addition to driving a refuse truck, as did Michael Stein who the General Counsel contends was in the unit. 33 While Respondents in their brief state that II identified employees 474 FIRST LAKEWOOD ASSOCIATES, ET AL. On the afternoon of December 8, 1975, Joseph Quiring, the Union's organizer, contacted Thomas Holmes, who then held the position of rental manager,34 by telephone and informed Holmes that the majority of the employees had signed authorization cards and requested a meeting regarding a contract. Holmes' response was that he had nothing to do with controlling the employees, could not honor the demand, and referred him to Mr. Kilourie, Mr. Walsh, or Mr. Allen. On the afternoon of December 9, Quiring contacted Vice President Allen by telephone and informed him over 50 percent of the employees had signed authorization cards and requested a meeting. Quiring refused Allen's request to let him know who had signed the cards and informed him they had been given to the National Labor Relations Board. In response to Quiring's request for a meeting Allen told Quiring to call him at a later date, which Quiring placed as a week from Wednesday while Allen placed it as after December 17, 1975. According to Quiring he also informed Allen he was referring to the janitorial employees and wanted the meeting to talk about a contract, whereas Allen contended that Quiring refused to tell him which employees he was speaking of and denied there was any discussion about recognizing the Union. I credit the testimony of Quiring rather than Allen for reasons previously given. Based upon the foregoing evidence I am persuaded and find that Quiring informed Respondents that over 50 percent of the janitorial employees had signed authoriza- tion cards for the Union and the Union had requested a meeting concerning a contract. The amended consolidated amended complaint alleges certain unilateral changes were made by Respondents without notice to or bargaining with the Union. The evidence, with respect to those allegations, which was stipulated to between the parties establishes that, in addition to the change in duties and work hours of Andrew Hogue in July discussed supra, the following changes were also made: About June 7, Carol Monfils and Sherry Pallek were hired at a monthly salary of $770 but did not receive a rent-free apartment. Their duties consisted of cleaning apartments and common areas in the building on the new side of the Walden complex; effective July 15, Glenn Stahl and Gregory Tomek received raises from $804 to $1,000 per month and continued receiving a rent-free, two bedroom apartment; effective July 19, Ted Ervin who had been a head janitor doing cleaning and maintenance work at 1926 Prairie Square apartment building and the Sycamore Place townhouses was given responsibility for all janitorial work in all buildings on the old side of Walden complex known as Lakewood One and Two; and about May 1,3 5 George Green and Michael Stein received raises from $804 to $1,000 per month; effective July 19, 1976, the work hours of the janitorial and maintenance employees were changed from 8 a.m. to 4:30 p.m. on Monday through Friday and from 8 a.m. to 12 o'clock noon on Saturday to 8 were eligible to vote, they fail to set forth the basis for such statement. Inasmuch as the Union's majority status has been contested, absent as here, a basis for such statement, which is not proven by the record. I find it is not sufficient to constitute either a concession or admission for the purpose of establishing the Union's majonty status. :'4 Holmes did not become property manager until about December 25. 1975. although he had been informed of the promotion earlier. a.m. to 5 p.m. Monday through Friday; and, effective June 7, Curt Snelten was reassigned from his job as head janitor performing cleaning and maintenance work in buildings 1724, 1727, and 1731 Locust Place, and 1707 Maple Place to the job of performing maintenance work in all the apartment buildings on the new side of the Walden project, also known as Lakewood Five and Six, and became head janitor over Carol Monfils and Sherry Pallek. Respondents have not recognized or bargained with the Union including these unilateral changes. G. Analysis and Conclusions The General Counsel contends contrary to Respondents' denials that Respondents violated Section 8(aXl 1), (3), and (5) of the Act, by creating an impression of surveillance, threatening, promising, and granting employees benefits with respect to their union activities; by reprimanding, suspending, and changing the duties and working condi- tions of Andrew Hogue and refusing to grant him a raise because of his union and protected concerted activities; by refusing to recognize and bargain with the Union and making unilateral changes in the wages, hours, and working conditions of unit employees; and that a bargain- ing order was warranted. Section 8(a)(1) of the Act prohibits an employer from interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. Section 8(a)(3) of the Act provides in pertinent part, "It shall be an unfair labor practice for an employer . . . by discrimination in regard to hire or tenure of employ- ment or any term or condition of employment to encourage or discourage membership in any labor organization .... " Section 8(a)(5) of the Act prohibits an employer from refusing to bargain collectively with the representa- tive of its employees. Based upon my findings supra, Maintenance Supervisor Mehrholz on December 8 and 9, 1975, interrogated Arley Canterbury, Curt Snelten, George Green, Gregory Tomek, and Theodore Ervin about their union activities; on December 8 and 9, 1975, Mehrholz interrogated George Green, Gregory Tomek, and Theodore Ervin about a union meeting; on December 9, 1975, Mehrholz impliedly threatened Gregory Tomek with discharge for refusing to reveal the identities of employees who had attended a union meeting; on December 9, 1975, Mehrholz interrogat- ed Theodore Ervin about the union activities of other employees; on December 10, 1975, Mehrholz interrogated Andrew Hogue and Curt Snelten about their joining the Union; about the second week in December 1975 Meh- rholz interrogated Michael Stein about his union activities; on January 30, 1976, prior to the election Maintenance Supervisor Neill threatened Curt Snelten that, if the Union came in, the Company would take the apartments away from the janitor helpers and charge the head janitors for the second bedroom; and about the middle of January 35 The amended consolidated amended complaint alleges the initial changes commenced on or about June I and continued to date. The General Counsel's motion contained in a footnote in its brief to amend the date from about June I, 1975, to about May 1, 1976. is untimely and is hereby denied. 475 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1976 Neill interrogated Andrew Hogue concerning his feelings about the Union. The test applied in determining whether a violation of Section 8(a)(1) of the Act has occurred is "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of the employee rights under the Act." Electrical Fittings Corpora- tion, a Subsidiary of l-T-E Imperial Corporation, 216 NLRB 1076 (1975). Applying this test I find that Respondents, by interrogating and threatening their employees, as enumer- ated supra, have interfered with, restrained, and coerced their employees in the exercise of their rights guaranteed in Section 7 of the Act, and have thereby violated Section 8(a)(l) of the Act. With respect to maternity benefits the findings supra established that Respondents on December 10, 1975, paid George Green's medical expenses for the miscarriage suffered by his wife; on December 18, 1975, Maintenance Supervisor Mehrholz promised Glenn Stahl that Respon- dents would pay for the maternity expenses of his pregnant wife and on January 27, 1976, they paid certain maternity expenses incurred by Stahl's wife; on December 17, 1975, Maintenance Supervisor Mehrholz promised Snelten that Respondents would pay for the maternity expenses of his pregnant wife; and on January 22, 1976, Vice President Allen impliedly promised Curt Snelten and Gregory Tomek that Respondents would pay future maternity expenses. Section 8(a)(1) of the Act prohibits conduct "immediate- ly favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect." N.LR.B. v. Exchange Parts Co., 375 U.S. 405, 409 (1964). Having found that Respondents did not have a policy covering miscarriage and maternity medical expenses for their janitorial, custodial, and maintenance employees prior to December 1975, I am persuaded and find that, based upon the conferral of such new benefits consisting of the promises and payments enumerated supra, immediately following the Union's demand for bargaining and occur- ring at a time when employees were being unlawfully interrogated and threatened concerning their union activi- ties, such actions were taken by Respondents for the purpose of discouraging employees from supporting the Union and thereby violated Section 8(a)(1) of the Act. The next issue is whether Respondents reprimanded and suspended Andrew Hogue for I week on May 18, 1976, and in July 1976 changed his duties and working condi- tions and refused to give him a raise because of his union or protected concerted activities. Direct evidence of discriminatory motivation is not necessary to support a finding of discrimination and such intent may be inferred from the record as a whole. Heath International, Inc., 196 NLRB 318 (1972). The findings supra establish that Hogue engaged in union activities; Respondents had knowledge or reason to :16 N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 575 (1969). '7 See Fuqua Homes Missouri, Inc., 201 NLRB 130 (1973); Heck's Inc., 191 NLRB 886, 888 (1971), enfd. as modified sub nom Food Store Employees Union. Local No. 347, Amalgamated Meat Cutters and Butcher Workmen of believe he supported the Union; and he was unlawfully interrogated by both Maintenance Supervisor Mehrholz and Maintenance Supervisor Neill. All of these factors, along with Respondents' union animus as evidenced by their unlawful conduct herein found, are relevant in considering whether the actions taken against Hogue were for discriminatory reasons under the Act. However, the findings further establish that Hogue's union activities were minimal, they occurred months before such actions were taken against him and during which period numerous complaints concerning his work arose. Moreover, the evidence which I have credited fully supports those complaints which were the reasons given by Respondents for their actions. Upon considering the entire record and for those reasons stated, I am persuaded and find that the General Counsel has failed to prove by a preponderance of the evidence as is its burden that Respondents violated Section 8(a)(1) and (3) of the Act, as alleged, by reprimanding, suspending, and changing the job duties and working conditions of Andrew Hogue and denying him a raise because of his union or protected concerted activities. The remaining issues are whether Respondents unlawful- ly refused to recognize and bargain with the Union, made unilateral changes, and whether a bargain order is warranted. Under the general principles enunciated by the United States Supreme Court in Gissel36 applicable to the issuance of bargaining orders, such orders are authorized to redress those unfair labor practices so coercive that, even in the absence of an 8(a)(5) violation, a bargaining order would be necessary to repair the unlawful effects of such unfair labor practices and in those less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election process. In the latter instance the Board is to examine the nature and extent of the employer's unlawful conduct and ascertain whether use of traditional remedies would insure a fair election. Having found supra that the General Counsel has failed to prove that the Union ever represented a majority of the Respondent's employees in the aforesaid bargaining unit I find that the Respondents did not violate Section 8(a)(1) and (5) of the Act, as alleged, by refusing to recognize and bargain with the Union37 or by making unilateral changes or that a bargaining order was warranted. H. The Objections to the Election The following conduct herein found to be unlawful falls within the scope of the additional objections and occurred within the objectional period.38 On January 30, 1976, prior to the election Maintenance Supervisor Neill threatened Curt Snelten that if the union came in the Company would take the apartments away from the janitor helpers and charge the head janitors for the second bedroom; about the middle of January 1976 Maintenance Supervisor Neill interrogated Hogue concerning his feelings about the North America, 476 F.2d 546 (C.A.D.C., 1973) reversed and remanded on other grounds 417 U.S. 1 (1974). 3s The objectional period extends from the filing of the representation petition on December II, 1975, to the election held on January 30, 1976. 476 FIRST LAKEWOOD ASSOCIATES, ET AL. Union; on December 17, 1975, Maintenance Supervisor Mehrholz promised Curt Snelten that Respondents would pay for the maternity expenses of his pregnant wife; and on December 18, 1975, Maintenance Supervisor Mehrholz promised Glenn Stahl that Respondents would pay for the maternity expenses of his pregnant wife and on January 27, 1976, they paid certain maternity expenses incurred by Stahl's wife.39 This conduct was sufficient to have interfered with the election and to warrant setting the election aside.40 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, found to constitute unfair labor practices, occurring in connection with the operations of the Respondents described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW I. Respondents are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Janitors Local I of the Service Employees Interna- tional Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees concerning their union activities and those of other employees; by coercively interrogating employees concerning attendances at union meetings and about their feelings towards tne Union or about joining the Union; by impliedly threaten- ing an employee with discharge for refusing to reveal the :19 Although the evidence establishes that on January 22. 1976. Vice President Allen impliedly promised Curt Snelten and Gregory Tomek that Respondents would pay future maternity expenses, this allegation in the amended consolidated amended complaint was not covered by the order directing the hearing on objections. identities of employees who had attended a union meeting; by threatening an employee if the Union came in the Company would take away the apartments from the janitor helpers and charge the head janitors for the second bedroom; and by promising to pay and paying employees for miscarriage and maternity medical expenses to discour- age them from supporting the Union, Respondents have interfered with, restrained, and coerced their employees in the exercise of their rights guaranteed in Section 7 of the Act and have engaged in unfair labor practices in violation of Section 8(aX1) of the Act. 4. Respondents did not violate Section 8(aX1), (3), and (5) of the Act by discriminating against Andrew Hogue in his employment or by refusing to recognize and bargain with the Union or by making unilateral changes, as alleged. 5. Certain of the additional objections set forth supra have been sustained by the evidence and Respondents have thereby interfered with and illegally affected the results of the Board election held on January 30, 1976. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices within the meaning of Section 8(aXl) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Further, having found that portions of the additional objections to the election in Case 13-RC-13902 were sustained by the evidence, I shall recommend that the election held on January 30, 1976, be set aside and that case be remanded to the Regional Director for Region 13 for the purpose of conducting a new election. [Recommended Order omitted from publication.] 40 The Union's Objection II is not supported by the evidence, and should be dismissed. 477