Lake Development Management Co.

LAKE DEVELOPMENT MANAGEMENT CO. 791 Lake Development Management Co. and the Greater Administrative Law Judge and to adopt his recom- New Orleans Maintenance Employees Associ- mended Order, as modified herein. ation (GNOMEA). Cases 15-CA-7751-4, 15- 1. The Administrative Law Judge concluded that CA-7915, and 15-RC-66501 Respondent violated Section 8(a)(l) of the Act by December 21, 1981 announcing and granting a change in its vacation benefits on August 1, 1980, for its maintenance em- DECISION, ORDER, AND DIRECTION ployees. While we agree with his conclusion, we BY MEMBERS FANNIN , J , A D do so only for the following reasons. BY MEMBERS FANNING, JENKINS, AND 'ZIMMERMAN Before March 1, 1980, both full-time mainte- ZIMMERMAN nance employees and salaried personnel received 5 On Tune 5, 1981, Administrative Law Judge days of vacation after 1 year of employment and 10 James L. Rose issued the attached Decision in this days after 2 years. On March 1, prior to the onset proceeding. Thereafter, the General Counsel and of union activity, Respondent issued two separate the Charging Party filed exceptions and supporting notices which granted salaried personnel 10 days of briefs and Respondent filed cross-exceptions and a vacation after 1 year but reaffirmed its prior policy brief in support thereof and in response to the Gen- with respect to the maintenance employees. On eral Counsel's and the Charging Party's exceptions. August 1, 1980, prior to the August 20 representa- Pursuant to the provisions of Section 3(b) of the tion election but after the beginning of the organi- National Labor Relations Act, as amended, the Na- zational campaign, Respondent issued a new notice tional Labor Relations Board has delegated its au- regarding the maintenance employees' vacation thority in this proceeding to a three-member panel. policy. This notice read, in part, as follows: The Board has considered the record and the at- - tached Decision in light of the exceptions ande thi new poly on p d a n briefs and has decided to affirm the rulings, find- plies tonew hourlyfull time mantenance per- ings, 2 recommendations, 3 and conclusions 4 of the sonnel hired as of 3/1/80: After 1 year employment-10 days paid va- 'The Administrative Law Judge inadvertently omitted the numbers of cation and each year thereafter. Cases 15-CA-7915 and 15-RC-6650 from the caption of his Decision. ' The General Counsel, the Charging Party, and Respondent have ex-* * * * * cepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administra- tive law judge's resolutions with respect to credibility unless the clear Note-prior to this date of 3/1/80, full time preponderance of all of the relevant evidence convinces us that the reso- hourl maintenance personnel vacation policy lutions are incorrect. Standard Dry Wall Products. Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined stays as such: the record and find no basis for reversing his findings. After year employment-5 days paid vaca- In sec. II, A, of his Decision, the Administrative Law Judge refers to Supervisor Allen Barry as Joseph Alfred Barry. He also states that a con- tion. sent agreement was reached in the representation proceeding herein, After 2 years employment-10 days paid va- whereas the election was conducted pursuant to the Acting Regional Di- t d e h threafter rector's Decision and Direction of Election. These inadvertent errors areon an eac year insufficient to affect our decision. 'In the absence of exceptions thereto, we adopt, pro forma, the Admin- Thus, employees hired after March 1 received 10 istrative Law Judge's recommendations that the challenges to the ballots acation after ear but those hired before of employees Roberson, Capretto, Johnson, David, Carroll, Giroux,acaion aer year, ose ire ore Gossen, and Hurlbert be overruled. In the absence of exceptions thereto, we adopt, pro forma, the Admin- spondent could lawfully discharge them. John S Swfi Company. Inc., 124 istrative Law Judge's conclusion that Respondent did not violate the Act NLRB 394, 397 (1959). in unilaterally changing its health, accident, and life insurance plan by as- We agree with the Administrative Law Judge's conclusion that Re- suming the entire cost of the premiums. spondent violated Sec. 8(aXl) of the Act by President Artigues' threat to We adopt the Administrative Law Judge's conclusion that Respondent discharge employees for their union activity during her discussion with did not violate Sec. 8(aX3) and (1) of the Act by discharging employees employee Gilbert concerning a union meeting. In so doing, we find with- Gilbert, Bennett, and Toups for refusing to accept overtime assignments out merit Respondent's contention that no such violation should be found in the form of "beeper duty" on June 23, 1980. In so doing, we empha- because Anigues' threat was effectively retracted. Thus, even accepting size that it appears that beeper duty was mandatory in the past, as is evi- the record testimony that Maintenance Manager Solari, at Artigues' in- denced by employee Melanta's admission that he was once told he was struction, subsequently told the employees they could attend union meet- "going to need to take [the beeper]" and that he did so even though he ings without fear of termination, we conclude that such statement did not originally was not interested in volunteering. We further find that, even amount to an effective repudiation of unlawful conduct and therefore did assuming, arguendo, that beeper duty previously had been voluntary, it is not relieve Respondent of liability for its unlawful conduct. In this clear that on June 23 it was mandatory, and that Respondent fully ap- regard, Solari's statement did not disavow Artigues' threat as unlawful, prised the employees that it was mandatory. Furthermore, we note that disavow her other contemporaneous unlawful conduct of interrogating there is no allegation or evidence that the imposition of mandatory Gilbert, or give assurance to employees that Respondent in the future beeper duty was for discriminatory reasons, that it has not been shown would not interfere with their exercise of Sec. 7 rights. Additionally, Re- that Gilbert, Bennett, and Toups were selected for beeper duty on a dis- spondent subsequently violated Sec. 8(aXI) of the Act by threatening em- criminatory basis, and that the employees intended their refusal to accept ployees with reprisals for engaging in union activity and by changing its beeper duty to be on a continuing basis. Accordingly, we conclude that vacation policy. See, eg., United States Postal Service, 253 NLRB 1203 the employees were engaged in an intermittent partial strike and that Re- (1981); Passavant MemorialArea Hospital, 237 NLRB 138 (1978). 259 NLRB No. 69 LAKE DEVELOPMENT MANAGEMENT CO. 791 Lake Development Management Co. and the Greater Administrative Law Judge and to adopt his recom- New Orleans Maintenance Employees Associ- mended Order, as modified herein. ation (GNOMEA). Cases 15-CA- 7 7 5 1 -4, 1 5 - 1. T h e Administrative Law Judge concluded that CA-7915, and 15-RC-66501 Respondent violated Section 8(a)(l) of the Act by December 21, 1981 announcing and granting a change in its vacation benefits on August 1, 1980, for its maintenance em- DECISION, ORDER, AND DIRECTION ployees. While we agree with his conclusion, we BY MEMBER, FANNING, JENKINS, AND.do so only for the following reasons. BY MEMBERS FANNING, JENKINS, AND„ -- ZIMMERMAN ',Before March 1, 1980, both full-time mainte- Z.IMMERMAN, nance employees and salaried personnel received 5 On June 5, 1981, Administrative Law Judge days of vacation after 1 year of employment and 10 James L. Rose issued the attached Decision in this days after 2 years. On March 1, prior to the onset proceeding. Thereafter, the General Counsel and of union activity, Respondent issued two separate the Charging Party filed exceptions and supporting notices which granted salaried personnel 10 days of briefs and Respondent filed cross-exceptions and a vacation after 1 year but reaffirmed its prior policy brief in support thereof and in response to the Gen- with respect to the maintenance employees. On eral Counsel's and the Charging Party's exceptions. August 1, 1980, prior to the August 20 representa- Pursuant to the provisions of Section 3(b) of the tion election but after the beginning of the organi- National Labor Relations Act, as amended, the Na- zational campaign, Respondent issued a new notice tional Labor Relations Board has delegated its au- regarding the maintenance employees' vacation thority in this proceeding to a three-member panel,. policy. This notice read, in part, as follows: The Board has considered the record and the at-- na tached Decision in light of the exceptions andpNote-s this new policy on paid vacation ap- briefs and has decided to affirm the rulings, find-p 11^ to ne w ho ur l y ful l tl m e m al n te na nc e p"- ings,2 recommendations, 3 and conclusions' of the so n n e l h ire d a s o f 3/ 1/ 8 0 : After 1 year employment-10 days paid va- The Administrative Law Judge inadvertently omitted the numbers of cation and each year thereafter. Cases 15-CA-7915 and 15-RC-6650 from the caption of his Decision. ' The General Couinsel, the Charging Party, and Respondent have ex- a * * * cepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administra- tive law judge's resolutions with respect to credibility unless the clear Note-prior to this date of 3/1/80, full time preponderance of all of the relevant evidence convinces us that the reso-hnnrlv maintpnnc ncrsinnnl vararinn nnlicv lutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544houry maintenance personnel Vacation policy (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined stays as such: the record and find no basis for reversing his findings. After 1 year employment-5 days paid vaca- In sec. Ill, A, of his Decision, the Administrative Law Judge refers to Supervisor Alien Barry as Joseph Alfred Barry. He also states that a con- tion. sent agreement was reached in the representation proceeding herein, After 2 years employment-10 days paid va- whereas the election was conducted pursuant to the Acting Regional Di- , , , .1, , f,_, rector's Decision and Direction of Election. These inadvertent errors areCation and each year thereafter. insufficient to affect our decision. 'In the absence of exceptions thereto, we adopt, pro forma, the Admin- Thus, employees hired after March 1 received 10 istralive Law Judge's recommendations that the challenges to the ballots , vacation after 1 vear but those hired before of employees Roberson, Capretto, Johnson, David, Carroll, Giroux, dys vacation after I year, but those hired before Gossen, and Hurlbert be overruled. In the absence of exceptions thereto, we adopt, pro forma, the Admin- spondent could lawfully discharge them. John S. Swtff Company. Inc, 124 istrative Law Judge's conclusion that Respondent did not violate the Act NLRB 394, 397 (1959). in unilaterally changing its health, accident, and life insurance plan by as- We agree with the Administrative Law Judge's conclusion that Re- suming the entire cost of the premiums. spondent violated Sec. 8(aXl) of the Act by President Anigues' threat to We adopt the Administrative Law Judge's conclusion that Respondent discharge employees for their union activity during her discussion with did not violate Sec. 8(aX3) and (1) of the Act by discharging employees employee Gilbert concerning a union meeting. In so doing, we find with- Gilbert, Bennett, and Toups for refusing to accept overtime assignments out merit Respondent's contention that no such violation should be found in the form of "beeper duty" on June 23, 1980. In so doing, we empha- because Anigues' threat was effectively retracted. Thus, even accepting size that it appears that beeper duly was mandatory in the past, as is evi- the record testimony that Maintenance Manager Solari, at Artigues' in- denced by employee Melanta's admission that he was once told he was struction, subsequently told the employees they could attend union meet- "going to need to take [the beeper]" and that he did so even though he ings without fear of termination, we conclude that such statement did not originally was not interested in volunteering. We further rind that, even amount to an effective repudiation of unlawful conduct and therefore did assuming, arguendo, that beeper duty previously had been voluntary, it is not relieve Respondent of liability for its unlawful conduct. In this clear that on June 23 it was mandatory, and that Respondent fully ap- regard, Solar-'s statement did not disavow Artigues' threat as unlawful, prised the employees that it was mandatory. Furthermore, we note that disavow her other contemporaneous unlawful conduct of interrogating there is no allegation or evidence that the imposition of mandatory Gilbert, or give assurance to employees that Respondent in the future beeper duty was for discriminatory reasons, that it has not been shown would not interfere with their exercise of Sec. 7 rights. Additionally, Re- that Gilbert, Bennett, and Toups were selected for beeper duty on a dis- spondent subsequently violated Sec. 8<aXI) of the Act by threatening em- criminatory basis, and that the employees intended their refusal to accept ployees with reprisals for engaging in union activity and by changing its beeper duty to be on a continuing basis. Accordingly, we conclude that vacation policy. See, e.g., United States Postal Service, 253 NLRB 1203 the employees were engaged in an intermittent partial strike and that Re- (1981); Passavant Memorial Area Hospital, 237 NLRB 138 (1978). 259 NLRB No. 69 LAKE DEVELOPMENT MANAGEMENT CO. 791 Lake Development Management Co. and the Greater Administrative Law Judge and to adopt his recom- New Orleans Maintenance Employees Associ- mended Order, as modified herein. ation (GNOMEA). Cases 15-CA- 7 7 5 1 -4, 1 5 - 1. T h e Administrative Law Judge concluded that CA-7915, and 15-RC-66501 Respondent violated Section 8(a)(l) of the Act by December 21, 1981 announcing and granting a change in its vacation benefits on August 1, 1980, for its maintenance em- DECISION, ORDER, AND DIRECTION ployees. While we agree with his conclusion, we BY MEMBER, FANNING, JENKINS, AND.do so only for the following reasons. BY MEMBERS FANNING, JENKINS, AND„ -- ZIMMERMAN ',Before March 1, 1980, both full-time mainte- Z.IMMERMAN, nance employees and salaried personnel received 5 On June 5, 1981, Administrative Law Judge days of vacation after 1 year of employment and 10 James L. Rose issued the attached Decision in this days after 2 years. On March 1, prior to the onset proceeding. Thereafter, the General Counsel and of union activity, Respondent issued two separate the Charging Party filed exceptions and supporting notices which granted salaried personnel 10 days of briefs and Respondent filed cross-exceptions and a vacation after 1 year but reaffirmed its prior policy brief in support thereof and in response to the Gen- with respect to the maintenance employees. On eral Counsel's and the Charging Party's exceptions. August 1, 1980, prior to the August 20 representa- Pursuant to the provisions of Section 3(b) of the tion election but after the beginning of the organi- National Labor Relations Act, as amended, the Na- zational campaign, Respondent issued a new notice tional Labor Relations Board has delegated its au- regarding the maintenance employees' vacation thority in this proceeding to a three-member panel,. policy. This notice read, in part, as follows: The Board has considered the record and the at-- na tached Decision in light of the exceptions andpNote-s this new policy on paid vacation ap- briefs and has decided to affirm the rulings, find-p 11^ to ne w ho ur l y ful l tl m e m al n te na nc e p"- ings,2 recommendations, 3 and conclusions' of the so n n e l h ire d a s o f 3/ 1/ 8 0 : After 1 year employment-10 days paid va- The Administrative Law Judge inadvertently omitted the numbers of cation and each year thereafter. Cases 15-CA-7915 and 15-RC-6650 from the caption of his Decision. ' The General Cotinsel, the Charging Party, and Respondent have ex- a * * * cepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administra- tive law judge's resolutions with respect to credibility unless the clear Note-prior to this date of 3/1/80, full time preponderance of all of the relevant evidence convinces us that the reso-hnnrlv maintpnnc ncrsinnnl vararinn nnlicv lutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544houry maintenance personnel Vacation policy (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined stays as such: the record and find no basis for reversing his findings. After 1 year employment-5 days paid vaca- In sec. Ill, A, of his Decision, the Administrative Law Judge refers to Supervisor Alien Barry as Joseph Alfred Barry. He also states that a con- tion. sent agreement was reached in the representation proceeding herein, After 2 years employment-10 days paid va- whereas the election was conducted pursuant to the Acting Regional Di- , , , .1, , f,_, rector's Decision and Direction of Election. These inadvertent errors areCation and each year thereafter. insufficient to affect our decision. 'In the absence of exceptions thereto, we adopt, pro forma, the Admin- Thus, employees hired after March 1 received 10 istralive Law Judge's recommendations that the challenges to the ballots , vacation after 1 vear but those hired before of employees Roberson, Capretto, Johnson, David, Carroll, Giroux, dys vacation after I year, but those hired before Gossen, and Hurlbert be overruled. In the absence of exceptions thereto, we adopt, pro forma, the Admin- spondent could lawfully discharge them. John S. Swtff Company. Inc, 124 istrative Law Judge's conclusion that Respondent did not violate the Act NLRB 394, 397 (1959). in unilaterally changing its health, accident, and life insurance plan by as- We agree with the Administrative Law Judge's conclusion that Re- suming the entire cost of the premiums. spondent violated Sec. 8(a)l) of the Act by President Anigues' threat to We adopt the Administrative Law Judge's conclusion that Respondent discharge employees for their union activity during her discussion with did not violate Sec. 8(aX3) and (1) of the Act by discharging employees employee Gilbert concerning a union meeting. In so doing, we find with- Gilbert, Bennett, and Toups for refusing to accept overtime assignments out merit Respondent's contention that no such violation should be found in the form of "beeper duty" on June 23, 1980. In so doing, we empha- because Anigues' threat was effectively retracted. Thus, even accepting size that it appears that beeper duly was mandatory in the past, as is evi- the record testimony that Maintenance Manager Solari, at Artigues' in- denced by employee Melanta's admission that he was once told he was struction, subsequently told the employees they could attend union meet- "going to need to take [the beeper]" and that he did so even though he ings without fear of termination, we conclude that such statement did not originally was not interested in volunteering. We further rind that, even amount to an effective repudiation of unlawful conduct and therefore did assuming, arguendo, that beeper duty previously had been voluntary, it is not relieve Respondent of liability for its unlawful conduct. In this clear that on June 23 it was mandatory, and that Respondent fully ap- regard, Solar-'s statement did not disavow Artigues' threat as unlawful, prised the employees that it was mandatory. Furthermore, we note that disavow her other contemporaneous unlawful conduct of interrogating there is no allegation or evidence that the imposition of mandatory Gilbert, or give assurance to employees that Respondent in the future beeper duty was for discriminatory reasons, that it has not been shown would not interfere with their exercise of Sec. 7 rights. Additionally, Re- that Gilbert, Bennett, and Toups were selected for beeper duty on a dis- spondent subsequently violated Sec. 8<aXO) of the Act by threatening em- criminatory basis, and that the employees intended their refusal to accept ployees with reprisals for engaging in union activity and by changing its beeper duty to be on a continuing basis. Accordingly, we conclude that vacation policy. See, e.g., United States Postal Service, 253 NLRB 1203 the employees were engaged in an intermittent partial strike and that Re- (1981); Passavant Memorial Area Hospital, 237 NLRB 138 (1978). 259 NLRB No. 69 LAKE DEVELOPMENT MANAGEMENT CO. 791 Lake Development Management Co. and the Greater Administrative Law Judge and to adopt his recom- New Orleans Maintenance Employees Associ- mended Order, as modified herein. ation (GNOMEA). Cases 15-CA- 7 7 5 1 -4, 1 5 - 1. T h e Administrative Law Judge concluded that CA-7915, and 15-RC-66501 Respondent violated Section 8(a)(l) of the Act by December 21, 1981 announcing and granting a change in its vacation benefits on August 1, 1980, for its maintenance em- DECISION, ORDER, AND DIRECTION ployees. While we agree with his conclusion, we BY MEMBER, FANNING, JENKINS, AND.do so only for the following reasons. BY MEMBERS FANNING, JENKINS, AND„ -- ZIMMERMAN ',Before March 1, 1980, both full-time mainte- Z.IMMERMAN, nance employees and salaried personnel received 5 On June 5, 1981, Administrative Law Judge days of vacation after 1 year of employment and 10 James L. Rose issued the attached Decision in this days after 2 years. On March 1, prior to the onset proceeding. Thereafter, the General Counsel and of union activity, Respondent issued two separate the Charging Party filed exceptions and supporting notices which granted salaried personnel 10 days of briefs and Respondent filed cross-exceptions and a vacation after 1 year but reaffirmed its prior policy brief in support thereof and in response to the Gen- with respect to the maintenance employees. On eral Counsel's and the Charging Party's exceptions. August 1, 1980, prior to the August 20 representa- Pursuant to the provisions of Section 3(b) of the tion election but after the beginning of the organi- National Labor Relations Act, as amended, the Na- zational campaign, Respondent issued a new notice tional Labor Relations Board has delegated its au- regarding the maintenance employees' vacation thority in this proceeding to a three-member panel,. policy. This notice read, in part, as follows: The Board has considered the record and the at-- na tached Decision in light of the exceptions andpNote-s this new policy on paid vacation ap- briefs and has decided to affirm the rulings, find-p 11^ to ne w ho ur l y ful l tl m e m al n te na nc e p"- ings,2 recommendations, 3 and conclusions' of the so n n e l h ire d a s o f 3/ 1/ 8 0 : After 1 year employment-10 days paid va- The Administrative Law Judge inadvertently omitted the numbers of cation and each year thereafter. Cases 15-CA-7915 and 15-RC-6650 from the caption of his Decision. ' The General Couinsel, the Charging Party, and Respondent have ex- a * * * cepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administra- tive law judge's resolutions with respect to credibility unless the clear Note-prior to this date of 3/1/80, full time preponderance of all of the relevant evidence convinces us that the reso-hnnrlv maintpnnc ncrsinnnl vararinn nnlicv lutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544houry maintenance personnel Vacation policy (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined stays as such: the record and find no basis for reversing his findings. After 1 year employment-5 days paid vaca- In sec. Ill, A, of his Decision, the Administrative Law Judge refers to Supervisor Alien Barry as Joseph Alfred Barry. He also states that a con- tion. sent agreement was reached in the representation proceeding herein, After 2 years employment-10 days paid va- whereas the election was conducted pursuant to the Acting Regional Di- , , , .1, , f,_, rector's Decision and Direction of Election. These inadvertent errors areCation and each year thereafter. insufficient to affect our decision. 'In the absence of exceptions thereto, we adopt, pro forma, the Admin- Thus, employees hired after March 1 received 10 istralive Law Judge's recommendations that the challenges to the ballots , vacation after 1 vear but those hired before of employees Roberson, Capretto, Johnson, David, Carroll, Giroux, dys vacation after I year, but those hired before Gossen, and Hurlbert be overruled. In the absence of exceptions thereto, we adopt, pro forma, the Admin- spondent could lawfully discharge them. John S. Swtff Company. Inc, 124 istrative Law Judge's conclusion that Respondent did not violate the Act NLRB 394, 397 (1959). in unilaterally changing its health, accident, and life insurance plan by as- We agree with the Administrative Law Judge's conclusion that Re- suming the entire cost of the premiums. spondent violated Sec. 8(aXl) of the Act by President Anigues' threat to We adopt the Administrative Law Judge's conclusion that Respondent discharge employees for their union activity during her discussion with did not violate Sec. 8(aX3) and (1) of the Act by discharging employees employee Gilbert concerning a union meeting. In so doing, we find with- Gilbert, Bennett, and Toups for refusing to accept overtime assignments out merit Respondent's contention that no such violation should be found in the form of "beeper duty" on June 23, 1980. In so doing, we empha- because Artigues' threat was effectively retracted. Thus, even accepting size that it appears that beeper duly was mandatory in the past, as is evi- the record testimony that Maintenance Manager Solari, at Artigues' in- denced by employee Melanta's admission that he was once told he was struction, subsequently told the employees they could attend union meet- "going to need to take [the beeper]" and that he did so even though he ings without fear of termination, we conclude that such statement did not originally was not interested in volunteering. We further rind that, even amount to an effective repudiation of unlawful conduct and therefore did assuming, arguendo, that beeper duty previously had been voluntary, it is not relieve Respondent of liability for its unlawful conduct. In this clear that on June 23 it was mandatory, and that Respondent fully ap- regard, Solar-'s statement did not disavow Artigues' threat as unlawful, prised the employees that it was mandatory. Furthermore, we note that disavow her other contemporaneous unlawful conduct of interrogating there is no allegation or evidence that the imposition of mandatory Gilbert, or give assurance to employees that Respondent in the future beeper duty was for discriminatory reasons, that it has not been shown would not interfere with their exercise of Sec. 7 rights. Additionally, Re- that Gilbert, Bennett, and Toups were selected for beeper duty on a dis- spondent subsequently violated Sec. 8<aXO) of the Act by threatening em- criminatory basis, and that the employees intended their refusal to accept ployees with reprisals for engaging in union activity and by changing its beeper duty to be on a continuing basis. Accordingly, we conclude that vacation policy. See, e.g., United States Postal Service, 253 NLRB 1203 the employees were engaged in an intermittent partial strike and that Re- (1981); Passavant Memorial Area Hospital, 237 NLRB 138 (1978). 259 NLRB No. 69 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 1 received 10 days' vacation only after 2 In light of the above factors, we find that Re- years. 5 spondent has not affirmatively shown legitimate Absent an affirmative showing of some legiti- business reasons for its actions. Accordingly, we mate business reason for the timing, an inference of conclude that, by issuing the August 1 notice an- improper motivation and improper interference nouncing and granting improved vacation benefits with employee rights may be drawn from a grant to the maintenance employees shortly before the of benefits which coincides with employee union election, Respondent interfered with the employ- activity. J. P. Stevens and Company, Inc., 247 ees' rights in violation of Section 8(a)(l) of the Act. NLRB 420, 431-433 (1980); The May Department 2. Based on his finding that Artigues asked Gil- Stores Company, 191 NLRB 928 (1971). Respond- bert what his grievances were and that Gilbert an- ent, in arguing that it has made such a showing, swered that Respondent had failed to give him a contends that the August 1 notice was not an an- 50-cent-per-hour pay increase, the Administrative nouncement of increased benefits but rather a cor- Law Judge concluded that Respondent violated rected statement of the policy then in effect. It Section 8(a)(l) of the Act by soliciting employee therefore contends that prior to March it had de- complaints and grievances. Although we agree cided to give all its employees 10 days' vacation with the Administrative Law Judge's finding that after 1 year, that due to an administrative error the Artigues questioned Gilbert on June 18 regarding notice to maintenance employees did not reflect his grievances, we do not agree that this question this change, and that it was not aware of the error constituted an unlawful solicitation of grievances. until unidentified employees pointed it out to Presi- While the solicitation of grievances raises an infer- dent Artigues in July, at which time she directed ence that the employer is promising to correct the preparation and posting of the August 1 notice. those inequities it discovers as a result of its inquir- We find Respondent's contentions unpersuasive. ies, this inference is rebuttable by the employer. Thus, despite Artigues' testimony that prior to tting, Incorporated, 255 NLRB 5 (1981); Uarco March Respondent decided to grant all its employ- Incorporated, 216 NLRB 1 (1974). We find that the March Respondent decided to grant all its employ- ees 10 days' vacation after 1 year, there is no docu- nference of such a promise has been rebutted here mentary evidence to support her bald assertion Thus, Artigues testified without contradiction that, mentary evidence to support her bald assertion. after Gilbert told her he was unhappy with his Furthermore, there is no showing Respondent had at i t t a consistent past practice of granting all employees salary ncrease, she told him that Maitenance the same benefits; to the contrary, prior to May Manager Solari gave the salary increases and that, the same benefits; to the contrary, prior to May if that were the decision, he would stand behind it. 1978, after 2 years salaried employees received 10 i statement that she would not take cor- days of vacation, but maintenance employees re- This express statement that she would not take cor- days of vacation, but maintenance employees re- rective action regarding Gilbert's grievances negat- ceived only 5 days. Additionally, although she tes- ed any possible inference of a promise to cure his tified that she did not see the March 1 notice grievances. Accordingly, we conclude that Re- before it issued, she also testified that she generally spondent did not violate Section 8(a)(l) of the Act reviewed notices issuing from her office. We also y soliciting employee complaints and grievances. note that although according to Artigues no em- However, we conclude that Artigues, by question- ployee pointed out the alleged error to her until ing Gilbert about his grievances, sought to deter- sometime in July, nearly 5 months later, she also mine his reasons for supporting the Union, and that testified that the employees would normally have Respondent thereby engaged in unlawful interroga- received the March 1 notice in their pay envelopes. tion in violation of Section 8(a)(l) of the Act. Finally, we note that the August 1 notice failed to 3. Respondent excepts to the Administrative correct the alleged error, as it limited maintenance Law Judge's recommendation that the challenge to employees hired before March 1 to only 5 days of the ballot of Willie Clark be overruled. We find vacation after their first year of employment. It is merit in this exception. unlikely that, after issuing an allegedly erroneous Artigues testified that Clark was employed for statement of its new vacation policy on March 1, approximately 1 week prior to the beginning of the Respondent would fail to remedy fully the alleged strike on June 23, 1980, and that he did not return error in the August 1 notice. Member Jenkins agrees that Artigues' questioning of Gilbert consti- 5 Following the election, on August 29, Respondent issued a revised tuted unlawful interrogation in violation of Sec. 8(a(1) of the Act. How- version of the August I notice which granted all maintenance employees ever, he adheres to his view, as fully set forth in his dissent in Uarco In- 10 days' vacation after I year. The Administrative Law Judge, in con- corporated, supra, that the mere solicitation of grievances is itself coercive eluding that Respondent violated the Act by announcing a change in its conduct violative of Sec. 8(aXI) of the Act. See also his separate position vacation benefits on August 1, relied on the August 29 notice, which he in Cutting, Incorporated, supra. Accordingly, Member Jenkins additionally incorrectly stated was issued August I and which was not alleged to be would find that Respondent coerced Gilbert in violation of Sec. 8(aX1) of unlawful. the Act by its solicitation of employee grievances. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 1 received 10 days' vacation only after 2 In light of the above factors, we find that Re- years. 5 spondent has not affirmatively shown legitimate Absent an affirmative showing of some legiti- business reasons for its actions. Accordingly, we mate business reason for the timing, an inference of conclude that, by issuing the August 1 notice an- improper motivation and improper interference nouncing and granting improved vacation benefits with employee rights may be drawn from a grant to the maintenance employees shortly before the of benefits which coincides with employee union election, Respondent interfered with the employ- activity. J. P. Stevens and Company, Inc., 247 ees' rights in violation of Section 8(a)(l) of the Act. NLRB 420, 431-433 (1980); The May Department 2. Based on his finding that Artigues asked Gil- Stores Company, 191 NLRB 928 (1971). Respond- bert what his grievances were and that Gilbert an- ent, in arguing that it has made such a showing,' swered that Respondent had failed to give him a contends that the August 1 notice was not an an- 50-cent-per-hour pay increase, the Administrative nouncement of increased benefits but rather a cor- Law Judge concluded that Respondent violated rected statement of the policy then in effect. It Section 8(a)(l) of the Act by soliciting employee therefore contends that prior to March it had de- complaints and grievances. Although we agree cided to give all its employees 10 days' vacation with the Administrative Law Judge's finding that after 1 year, that due to an administrative error the Artigues questioned Gilbert on June 18 regarding notice to maintenance employees did not reflect h is grievances, we do not agree that this question this change, and that it was not aware of the error constituted an unlawful solicitation of grievances. until unidentified employees pointed it out to Presi- Whi le t h e solicitation of grievances raises an infer- dent Artigues in July, at which time she directed e n c e th a t th e employer is promising to correct the preparation and posting of the August 1 notice,. those inequities it discovers as a result of its inquir- We find Respondent's contentions unpersuasive. ies, this inference is rebuttable by the employer. Thus, despite Artigues' testimony that prior to c orporatedP55NR 53 ( 1 8 1 aro .,,-,* , - ., , , , „ .. ,Incorporated, 216 NLRB 1 (1974). We find that the March Respondent decided to grant all its employ- I r a 2 N 1 1 We f ees 10 days' vacation after 1 year, there is no docu- i pm ha bon t ed hat, mentry eidene tosuport er bld aserton. Thus, Artigues testified without contradiction that, mentary evidence to support her bald assertion. afte Gibr tol he he wa unap ^t Furthermore, there is no showing Respondent had a t h h w Ma ithnanc a consistent past practice of granting all employees salary increase, se told him that Mai tenan the same benefits; to the contrary, prior to May Ma naere Sag decision, he would stand behind it. 1978, after 2 years salaried employees received 10 statement that she would not take cor- days of vacation, but maintenance employees re- This expresss regarding Gilbert's grievances negat- ceived only 5 days. Additionally, although she tes- recivy pacsiboe inference of a promise to cure his tified that she did not see the March I notice e n osbeifrneo rms ocr i beforeitiuedh she ao ntestied that Mrhe genoter grievances. Accordingly, we conclude that Re- before it issued, she also testified that she generally spondent did not violate Section 8(a)(l) of the Act reviewed notices issuing from her office. We also by soliciting employee complaints and grievances. note that although according to Artigues no em- However, we conclude that Artigues, by question- ployee pointed out the alleged error to her until ing Gilbert about his grievances, sought to deter- sometime in July, nearly 5 months later, she also mine his reasons for supporting the Union, and that testified that the employees would normally have Respondent thereby engaged in unlawful interroga- received the March 1 notice in their pay envelopes. tion in violation of Section 8(a)(l) of the Act.' Finally, we note that the August 1 notice failed to 3. Respondent excepts to the Administrative correct the alleged error, as it limited maintenance Law Judge's recommendation that the challenge to employees hired before March 1 to only 5 days of the ballot of Willie Clark be overruled. We find vacation after their first year of employment. It is merit in this exception. unlikely that, after issuing an allegedly erroneous Artigues testified that Clark was employed for statement of its new vacation policy on March 1, approximately 1 week prior to the beginning of the Respondent would fail to remedy fully the alleged strike on June 23, 1980, and that he did not return error in the August 1 notice. -Member Jenkins agrees that Artigues' questioning of Gilbert consti- " Following the election, on August 29, Respondent issued a revised luted unlawful interrogation in violation of Sec. 8(aX1) of the Act. How- version of the August I notice which granted all maintenance employees ever, he adheres to his view, as fully set forth in his dissent in Uarco In- 10 days' vacation after I year. The Administrative Law Judge, in con- corporated, supra, that the mere solicitation of grievances is itself coercive eluding that Respondent violated the Act by announcing a change in its conduct violative of Sec. 8(a)(l) of the Act. See also his separate position vacation benefits on August 1, relied on the August 29 notice, which he in Cutting, Incorporated, supra. Accordingly, Member Jenkins additionally incorrectly stated was issued August I and which was not alleged to be would find that Respondent coerced Gilbert in violation of Sec. 8(aXl) of unlawful. the Act by its solicitation of employee grievances. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 1 received 10 days' vacation only after 2 In light of the above factors, we find that Re- years. 5 spondent has not affirmatively shown legitimate Absent an affirmative showing of some legiti- business reasons for its actions. Accordingly, we mate business reason for the timing, an inference of conclude that, by issuing the August 1 notice an- improper motivation and improper interference nouncing and granting improved vacation benefits with employee rights may be drawn from a grant to the maintenance employees shortly before the of benefits which coincides with employee union election, Respondent interfered with the employ- activity. J. P. Stevens and Company, Inc., 247 ees' rights in violation of Section 8(a)(l) of the Act. NLRB 420, 431-433 (1980); The May Department 2. Based on his finding that Artigues asked Gil- Stores Company, 191 NLRB 928 (1971). Respond- bert what his grievances were and that Gilbert an- ent, in arguing that it has made such a showing,' swered that Respondent had failed to give him a contends that the August 1 notice was not an an- 50-cent-per-hour pay increase, the Administrative nouncement of increased benefits but rather a cor- Law Judge concluded that Respondent violated rected statement of the policy then in effect. It Section 8(a)(l) of the Act by soliciting employee therefore contends that prior to March it had de- complaints and grievances. Although we agree cided to give all its employees 10 days' vacation with the Administrative Law Judge's finding that after 1 year, that due to an administrative error the Artigues questioned Gilbert on June 18 regarding notice to maintenance employees did not reflect h is grievances, we do not agree that this question this change, and that it was not aware of the error constituted an unlawful solicitation of grievances. until unidentified employees pointed it out to Presi- Whi le t h e solicitation of grievances raises an infer- dent Artigues in July, at which time she directed e n c e th a t th e employer is promising to correct the preparation and posting of the August 1 notice,. those inequities it discovers as a result of its inquir- We find Respondent's contentions unpersuasive. ies, this inference is rebuttable by the employer. Thus, despite Artigues' testimony that prior to c orporatedT25 LR 53 ( 1 8 1 aro .,,-,* , - ., , , , „ .. ,Incorporated, 216 NLRB 1 (1974). We find that the March Respondent decided to grant all its employ- I r a 2 N 1 1 We f ees 10 days' vacation after 1 year, there is no docu- i pm ha bon t ed hat, mentry eidene tosuport er bld aserton. Thus, Artigues testified without contradiction that, mentary evidence to support her bald assertion. afte Gibr tol he he wa unap ^t Furthermore, there is no showing Respondent had a t h h w Ma ithnanc a consistent past practice of granting all employees salary increase, se told him that Mai tenan the same benefits; to the contrary, prior to May Ma naere Sag decision, he would stand behind it. 1978, after 2 years salaried employees received 10 statement that she would not take cor- days of vacation, but maintenance employees re- Thisxprestion regarding Gilbert's grievances negat- ceived only 5 days. Additionally, although she tes- recivy pacsiboe inference of a promise to cure his tified that she did not see the March I notice e n osbeifrneo rms ocr i beforeittuedt she ao ntestied that Mrhe genoter grievances. Accordingly, we conclude that Re- before it issued, she also testified that she generally spondent did not violate Section 8(a)(l) of the Act reviewed notices issuing from her office. We also by soliciting employee complaints and grievances. note that although according to Artigues no em- However, we conclude that Artigues, by question- ployee pointed out the alleged error to her until ing Gilbert about his grievances, sought to deter- sometime in July, nearly 5 months later, she also mine his reasons for supporting the Union, and that testified that the employees would normally have Respondent thereby engaged in unlawful interroga- received the March 1 notice in their pay envelopes. tion in violation of Section 8(a)(l) of the Act.' Finally, we note that the August 1 notice failed to 3. Respondent excepts to the Administrative correct the alleged error, as it limited maintenance Law Judge's recommendation that the challenge to employees hired before March 1 to only 5 days of the ballot of Willie Clark be overruled. We find vacation after their first year of employment. It is merit in this exception. unlikely that, after issuing an allegedly erroneous Artigues testified that Clark was employed for statement of its new vacation policy on March 1, approximately 1 week prior to the beginning of the Respondent would fail to remedy fully the alleged strike on June 23, 1980, and that he did not return error in the August 1 notice. -Member Jenkins agrees that Artigues' questioning of Gilbert consti- " Following the election, on August 29, Respondent issued a revised luted unlawful interrogation in violation of Sec. 8(aX1) of the Act. How- version of the August I notice which granted all maintenance employees ever, he adheres to his view, as fully set forth in his dissent in Uarco In- 10 days' vacation after I year. The Administrative Law Judge, in con- corporated, supra, that the mere solicitation of grievances is itself coercive eluding that Respondent violated the Act by announcing a change in its conduct violative of Sec. 8(a)(l) of the Act. See also his separate position vacation benefits on August 1, relied on the August 29 notice, which he in Cutting, Incorporated, supra. Accordingly, Member Jenkins additionally incorrectly stated was issued August I and which was not alleged to be would find that Respondent coerced Gilbert in violation of Sec. 8(aXl) of unlawful. the Act by its solicitation of employee grievances. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 1 received 10 days' vacation only after 2 In light of the above factors, we find that Re- years. 5 spondent has not affirmatively shown legitimate Absent an affirmative showing of some legiti- business reasons for its actions. Accordingly, we mate business reason for the timing, an inference of conclude that, by issuing the August 1 notice an- improper motivation and improper interference nouncing and granting improved vacation benefits with employee rights may be drawn from a grant to the maintenance employees shortly before the of benefits which coincides with employee union election, Respondent interfered with the employ- activity. J. P. Stevens and Company, Inc., 247 ees' rights in violation of Section 8(a)(l) of the Act. NLRB 420, 431-433 (1980); The May Department 2. Based on his finding that Artigues asked Gil- Stores Company, 191 NLRB 928 (1971). Respond- bert what his grievances were and that Gilbert an- ent, in arguing that it has made such a showing,' swered that Respondent had failed to give him a contends that the August 1 notice was not an an- 50-cent-per-hour pay increase, the Administrative nouncement of increased benefits but rather a cor- Law Judge concluded that Respondent violated rected statement of the policy then in effect. It Section 8(a)(l) of the Act by soliciting employee therefore contends that prior to March it had de- complaints and grievances. Although we agree cided to give all its employees 10 days' vacation with the Administrative Law Judge's finding that after 1 year, that due to an administrative error the Artigues questioned Gilbert on June 18 regarding notice to maintenance employees did not reflect h is grievances, we do not agree that this question this change, and that it was not aware of the error constituted an unlawful solicitation of grievances. until unidentified employees pointed it out to Presi- Whi le t h e solicitation of grievances raises an infer- dent Artigues in July, at which time she directed e n c e th a t th e employer is promising to correct the preparation and posting of the August 1 notice,. those inequities it discovers as a result of its inquir- We find Respondent's contentions unpersuasive. ies, this inference is rebuttable by the employer. Thus, despite Artigues' testimony that prior to c orporatedP55NR 53 ( 1 8 1 aro .,,-,* , - ., , , , „ .. ,Incorporated, 216 NLRB 1 (1974). We find that the March Respondent decided to grant all its employ- I r a 2 N 1 1 We f ees 10 days' vacation after 1 year, there is no docu- i pm ha bon t ed hat, mentry eidene tosuport er bld aserton. Thus, Artigues testified without contradiction that, mentary evidence to support her bald assertion. afte Gibr tol he he wa unap ^t Furthermore, there is no showing Respondent had a t h h w Ma ithnanc a consistent past practice of granting all employees salary increase, se told him that Mai tenan the same benefits; to the contrary, prior to May Ma naere Sag decision, he would stand behind it. 1978, after 2 years salaried employees received 10 statement that she would not take cor- days of vacation, but maintenance employees re- Thisxprestion regarding Gilbert's grievances negat- ceived only 5 days. Additionally, although she tes- recivy pacsiboe inference of a promise to cure his tified that she did not see the March I notice e n osbeifrneo rms ocr i beforeittuedt she ao ntestied that Mrhe genoter grievances. Accordingly, we conclude that Re- before it issued, she also testified that she generally spondent did not violate Section 8(a)(l) of the Act reviewed notices issuing from her office. We also by soliciting employee complaints and grievances. note that although according to Artigues no em- However, we conclude that Artigues, by question- ployee pointed out the alleged error to her until ing Gilbert about his grievances, sought to deter- sometime in July, nearly 5 months later, she also mine his reasons for supporting the Union, and that testified that the employees would normally have Respondent thereby engaged in unlawful interroga- received the March 1 notice in their pay envelopes. tion in violation of Section 8(a)(l) of the Act.' Finally, we note that the August 1 notice failed to 3. Respondent excepts to the Administrative correct the alleged error, as it limited maintenance Law Judge's recommendation that the challenge to employees hired before March 1 to only 5 days of the ballot of Willie Clark be overruled. We find vacation after their first year of employment. It is merit in this exception. unlikely that, after issuing an allegedly erroneous Artigues testified that Clark was employed for statement of its new vacation policy on March 1, approximately 1 week prior to the beginning of the Respondent would fail to remedy fully the alleged strike on June 23, 1980, and that he did not return error in the August 1 notice. -Member Jenkins agrees that Artigues' questioning of Gilbert consti- " Following the election, on August 29, Respondent issued a revised luted unlawful interrogation in violation of Sec. 8(aX1) of the Act. How- version of the August I notice which granted all maintenance employees ever, he adheres to his view, as fully set forth in his dissent in Uarco In- 10 days' vacation after I year. The Administrative Law Judge, in con- corporated, supra, that the mere solicitation of grievances is itself coercive eluding that Respondent violated the Act by announcing a change in its conduct violative of Sec. 8(a)(l) of the Act. See also his separate position vacation benefits on August 1, relied on the August 29 notice, which he in Cutting, Incorporated, supra. Accordingly, Member Jenkins additionally incorrectly stated was issued August I and which was not alleged to be would find that Respondent coerced Gilbert in violation of Sec. 8(aXl) of unlawful. the Act by its solicitation of employee grievances. LAKE DEVELOPMENT MANAGEMENT CO. 793 to work with the other employees following the IT IS FURTHER ORDERED with respect to the end of the strike. Clark testified that he was em- election conducted in Case 15-RC-6650 on August ployed by Respondent as a maintenance man for 2 20, 1981, that the challenges to the ballots cast by to 3 weeks before he went out on strike, that on Gaylord Baham, Jr., Lionel Boudreaux, Whitfield August 1 he obtained employment elsewhere as a Clark, Dennis Chun, Mario Garetano, Randall maintenance man, and that since obtaining that em- Kowalewski, Lance Lanier, George Lara, Stephen ployment he had never had any intention of return- Martin, Edward Montz, Jr., Kent Murphy, Joseph ing to work for Respondent. He also testified that West, Richard Williams, James Roberson, David in September the Union's consultant informed him Capretto, Jeff Johnson, Paul David, Frank Carroll, that Respondent had offered him reinstatement, Mike Giroux, Robert Gossen, and Lloyd Hurlbert and that he advised the consultant that he had de- be, and they hereby are, overruled, and that the cided not to return to Respondent. challenges to the ballots cast by Willie Clark, The Administrative Law Judge noted that there Henry Gonzales, Ronald Bennett, Robert Gilbert, is a presumption of continued eligibility for an eco- and Allen Toups be, and they hereby are, sus- nomic striker, and that such presumption is not re- tained. butted by the mere fact that the striker takes a job DIRECTION elsewhere. Pacific Tile and Porcelain Company, 137 NLRB 1358 (1962). He found that apart from It is hereby directed that the Regional Director Clark's having obtained another job there was no for Region 15 shall, within 10 days from the date evidence that Clark had abandoned his employ- of this Decision, Order, and Direction, open and ment with Respondent. Accordingly, he recom- count the ballots cast by Gaylord Baham, Jr., mended the challenge to Clark's ballot be over- Lionel Boudreaux, Whitfield Clark, Dennis Chun, ruled. Mario Garetano, Randall Kowalewski, Lance Contrary to the Administrative Law Judge, we Lanier, George Lara, Stephen Martin, Edward find that Respondent has presented evidence rebut- Montz, Jr., Kent Murphy, Joseph West, Richard ting the presumption of continued eligibility. Thus, Williams, James Roberson, David Capretto, Jeff Clark testified not only that he obtained other em- Johnson, Paul David, Fank Carroll, Mike Giroux, ployment before the election, but also that he at no Robert Gossen, and Lloyd Hurlbert in the election time thereafter had any intention of returning to conducted in Case 15-RC-6650 on August 20 work for Respondent. The conclusion that Clark in 1980, and thereafter prepare and cause to be served fact never had any intention of returning to work on the parties a revsed tally of ballots upon the for Respondent is further supported by the absence basis of which he shall issue the appropriate certifi- for Respondent is further supported by the absence - * of any evidence that after obtaining new employ- ment he manifested any interest in the affairs of APPENDIX Respondent and by his failure to accept Respond- ent's offer of reinstatement. Accordingly, we con- NOTICE To EMPLOYEES elude that by and before the August 20 election POSTED BY ORDER OF THE Clark had abandoned any interest in employment NATIONAL LABOR RELATIONS BOARD by Respondent and that the challenge to his ballot An Agency of the United States Government should be sustained. After a hearing at which all sides had an opportu- ORDER nity to present evidence and state their positions, Pursuant to Section 10(c) of the National Labor the National Labor Relations Board found that we Relations Act, as amended, the National Labor Re- have violated the National Labor Relations Act, as lations Board adopts as its Order the recommended amended, and has ordered us to post this notice. Order of the Administrative Law Judge, as modi- WE WILL NOT threaten employees with dis- fled below, and hereby orders that the Respondent, charge or other reprisals should they engage in Lake Development Management Co., Metairie, union or other activity for their mutual aid or Louisiana, its officers, agents, successors, and as- protection. signs, shall take the action set forth in the said rec- WE WILL NOT interrogate our employees ommended Order, as so modified: concerning their interest in or activity on 1. Delete paragraph l(c) and reletter the subse- behalf of Greater New Orleans Maintenance quent paragraphs accordingly. Employees Association (GNOMEA). 2. Substitute the attached notice for that of the WE WILL NOT interfere with employee free- Administrative Law Judge. dom of choice by instituting or announcing the LAKE DEVELOPMENT MANAGEMENT CO. 793 to work with the other employees following the IT IS FURTHER ORDERED with respect to the end of the strike. Clark testified that he was em- election conducted in Case 15-RC-6650 on August ployed by Respondent as a maintenance man for 2 20, 1981, that the challenges to the ballots cast by to 3 weeks before he went out on strike, that on Gaylord Baham, Jr., Lionel Boudreaux, Whitfield August 1 he obtained employment elsewhere as a Clark, Dennis Chun, Mario Garetano, Randall maintenance man, and that since obtaining that em- Kowalewski, Lance Lanier, George Lara, Stephen ployment he had never had any intention of return- Martin, Edward Montz, Jr., Kent Murphy, Joseph ing to work for Respondent. He also testified that West, Richard Williams, James Roberson, David in September the Union's consultant informed him Capretto, Jeff Johnson, Paul David, Frank Carroll, that Respondent had offered him reinstatement, Mike Giroux, Robert Gossen, and Lloyd Hurlbert and that he advised the consultant that he had de- be, and they hereby are, overruled, and that the cided not to return to Respondent. challenges to the ballots cast by Willie Clark, The Administrative Law Judge noted that there Henry Gonzales, Ronald Bennett, Robert Gilbert, is a presumption of continued eligibility for an eco- an d A l l e n T o u ps b e , a n d they hereby are, sus- nomic striker, and that such presumption is not re- tained. butted by the mere fact that the striker takes a job DIRECTION elsewhere. Pacific Tile and Porcelain Company, 137 NLRB 1358 (1962). He found that apart from It is hereby directed that the Regional Director Clark's having obtained another job there was no for Region 15 shall, within 10 days from the date evidence that Clark had abandoned his employ- of this Decision, Order, and Direction, open and ment with Respondent. Accordingly, he recom- count the ballots cast by Gaylord Baham, Jr., mended the challenge to Clark's ballot be over- Li o n el Boudreaux, Whitfield Clark, Dennis Chun, ruled. Mario Garetano, Randall Kowalewski, Lance Contrary to the Administrative Law Judge, we L a n ie r , G e o r ge L a ra, Stephen Martin, Edward find that Respondent has presented evidence rebut- Montz, J r., K e n t Murphy, Joseph West, Richard ting the presumption of continued eligibility. Thus, Williams, James Roberson, David Capretto, Jeff Clark testified not only that he obtained other em- Johnson, Paul David, Fank Carroll, Mike Giroux, ployment before the election, but also that he at no R o b e rt Gossen, and Lloyd Hurlbert in the election time thereafter had any intention of returning to c o n d u c t e d in C ase 15- R C - 66 5 0 o n Augus 2 0, work for Respondent. The conclusion that Clark in 1980, and thereafter prepare and cause to be served fact never had any intention of returning to work o n tepa a r e v is ed tlo b a l l o t s, upon the for Respondent -isfurther supported by the absence basis of which he shall issue the appropriate certifi- for Respondent is further supported by the absence, - *on of any evidence that after obtaining new employ- ment he manifested any interest in the affairs of APPENDIX Respondent and by his failure to accept Respond- ent's offer of reinstatement. Accordingly, we con- NOTICE To EMPLOYEES elude that by and before the August 20 election POSTED BY ORDER OF THE Clark had abandoned any interest in employment NATIONAL LABOR RELATIONS BOARD by Respondent and that the challenge to his ballot An Agency of the United States Government should be sustained. After a hearing at which all sides had an opportu- ORDER nity to present evidence and state their positions, Pursuant to Section 10(c) of the National Labor t h e National Labor Relations Board found that we Relations Act, as amended, the National Labor Re- h a v e violated the National Labor Relations Act, as lations Board adopts as its Order the recommended amended, and has ordered us to post this notice. Order of the Administrative Law Judge, as modi- WE WILL NOT threaten employees with dis- fied below, and hereby orders that the Respondent, charge or other reprisals should they engage in Lake Development Management Co., Metairie, union or other activity for their mutual aid or Louisiana, its officers, agents, successors, and as- protection. signs, shall take the action set forth in the said rec- WE WILL NOT interrogate our employees ommended Order, as so modified: concerning their interest in or activity on 1. Delete paragraph l(c) and reletter the subse- behalf of Greater New Orleans Maintenance quent paragraphs accordingly. Employees Association (GNOMEA). 2. Substitute the attached notice for that of the WE WILL NOT interfere with employee free- Administrative Law Judge. dom of choice by instituting or announcing the LAKE DEVELOPMENT MANAGEMENT CO. 793 to work with the other employees following the IT IS FURTHER ORDERED with respect to the end of the strike. Clark testified that he was em- election conducted in Case 15-RC-6650 on August ployed by Respondent as a maintenance man for 2 20, 1981, that the challenges to the ballots cast by to 3 weeks before he went out on strike, that on Gaylord Baham, Jr., Lionel Boudreaux, Whitfield August 1 he obtained employment elsewhere as a Clark, Dennis Chun, Mario Garetano, Randall maintenance man, and that since obtaining that em- Kowalewski, Lance Lanier, George Lara, Stephen ployment he had never had any intention of return- Martin, Edward Montz, Jr., Kent Murphy, Joseph ing to work for Respondent. He also testified that West, Richard Williams, James Roberson, David in September the Union's consultant informed him Capretto, Jeff Johnson, Paul David, Frank Carroll, that Respondent had offered him reinstatement, Mike Giroux, Robert Gossen, and Lloyd Hurlbert and that he advised the consultant that he had de- be, and they hereby are, overruled, and that the cided not to return to Respondent. challenges to the ballots cast by Willie Clark, The Administrative Law Judge noted that there Henry Gonzales, Ronald Bennett, Robert Gilbert, is a presumption of continued eligibility for an eco- an d A l l e n T o u ps b e , a n d they hereby are, sus- nomic striker, and that such presumption is not re- tained. butted by the mere fact that the striker takes a job DIRECTION elsewhere. Pacific Tile and Porcelain Company, 137 NLRB 1358 (1962). He found that apart from It is hereby directed that the Regional Director Clark's having obtained another job there was no for Region 15 shall, within 10 days from the date evidence that Clark had abandoned his employ- of this Decision, Order, and Direction, open and ment with Respondent. Accordingly, he recom- count the ballots cast by Gaylord Baham, Jr., mended the challenge to Clark's ballot be over- Li o n el Boudreaux, Whitfield Clark, Dennis Chun, ruled. Mario Garetano, Randall Kowalewski, Lance Contrary to the Administrative Law Judge, we L a n ie r , G e o r ge L a ra, Stephen Martin, Edward find that Respondent has presented evidence rebut- Montz, Jr., Kent Murphy, Joseph West, Richard ting the presumption of continued eligibility. Thus, Williams, James Roberson, David Capretto, Jeff Clark testified not only that he obtained other em- Johnson, Paul David, Fank Carroll, Mike Giroux, ployment before the election, but also that he at no R o b e rt Gossen, and Lloyd Hurlbert in the election time thereafter had any intention of returning to c o n d u c t e d in C ase 15- R C - 66 5 0 o n Augus 2 0, work for Respondent. The conclusion that Clark in 1980, and thereafter prepare and cause to be served fact never had any intention of returning to work o n tepa a r e v is ed tlo b a l l o t s, upon the for Respondent -isfurther supported by the absence basis of which he shall issue the appropriate certifi- for Respondent is further supported by the absence, - *on of any evidence that after obtaining new employ- ment he manifested any interest in the affairs of APPENDIX Respondent and by his failure to accept Respond- ent's offer of reinstatement. Accordingly, we con- NOTICE To EMPLOYEES elude that by and before the August 20 election POSTED BY ORDER OF THE Clark had abandoned any interest in employment NATIONAL LABOR RELATIONS BOARD by Respondent and that the challenge to his ballot An Agency of the United States Government should be sustained. After a hearing at which all sides had an opportu- ORDER nity to present evidence and state their positions, Pursuant to Section 10(c) of the National Labor t h e National Labor Relations Board found that we Relations Act, as amended, the National Labor Re- have violated the National Labor Relations Act, as lations Board adopts as its Order the recommended amended, and has ordered us to post this notice. Order of the Administrative Law Judge, as modi- WE WILL NOT threaten employees with dis- fied below, and hereby orders that the Respondent, charge or other reprisals should they engage in Lake Development Management Co., Metairie, union or other activity for their mutual aid or Louisiana, its officers, agents, successors, and as- protection. signs, shall take the action set forth in the said rec- WE WILL NOT interrogate our employees ommended Order, as so modified: concerning their interest in or activity on 1. Delete paragraph l(c) and reletter the subse- behalf of Greater New Orleans Maintenance quent paragraphs accordingly. Employees Association (GNOMEA). 2. Substitute the attached notice for that of the WE WILL NOT interfere with employee free- Administrative Law Judge. dom of choice by instituting or announcing the LAKE DEVELOPMENT MANAGEMENT CO. 793 to work with the other employees following the IT IS FURTHER ORDERED with respect to the end of the strike. Clark testified that he was em- election conducted in Case 15-RC-6650 on August ployed by Respondent as a maintenance man for 2 20, 1981, that the challenges to the ballots cast by to 3 weeks before he went out on strike, that on Gaylord Baham, Jr., Lionel Boudreaux, Whitfield August 1 he obtained employment elsewhere as a Clark, Dennis Chun, Mario Garetano, Randall maintenance man, and that since obtaining that em- Kowalewski, Lance Lanier, George Lara, Stephen ployment he had never had any intention of return- Martin, Edward Montz, Jr., Kent Murphy, Joseph ing to work for Respondent. He also testified that West, Richard Williams, James Roberson, David in September the Union's consultant informed him Capretto, Jeff Johnson, Paul David, Frank Carroll, that Respondent had offered him reinstatement, Mike Giroux, Robert Gossen, and Lloyd Hurlbert and that he advised the consultant that he had de- be, and they hereby are, overruled, and that the cided not to return to Respondent. challenges to the ballots cast by Willie Clark, The Administrative Law Judge noted that there Henry Gonzales, Ronald Bennett, Robert Gilbert, is a presumption of continued eligibility for an eco- an d A l l e n T o u ps b e , a n d they hereby a r e , s u s- nomic striker, and that such presumption is not re- tained. butted by the mere fact that the striker takes a job DIRECTION elsewhere. Pacific Tile and Porcelain Company, 137 NLRB 1358 (1962). He found that apart from It is hereby directed that the Regional Director Clark's having obtained another job there was no for Region 15 shall, within 10 days from the date evidence that Clark had abandoned his employ- of this Decision, Order, and Direction, open and ment with Respondent. Accordingly, he recom- count the ballots cast by Gaylord Baham, Jr., mended the challenge to Clark's ballot be over- Li o n el Boudreaux, Whitfield Clark, Dennis Chun, ruled. Mario Garetano, Randall Kowalewski, Lance Contrary to the Administrative Law Judge, we L a n ie r , G e o r ge L a ra, Stephen Martin, Edward find that Respondent has presented evidence rebut- Montz, Jr., Kent Murphy, Joseph West, Richard ting the presumption of continued eligibility. Thus, Williams, James Roberson, David Capretto, Jeff Clark testified not only that he obtained other em- Johnson, Paul David, Fank Carroll, Mike Giroux, ployment before the election, but also that he at no R o b e rt Gossen, and Lloyd Hurlbert in the election time thereafter had any intention of returning to c o n d u c t e d in C ase 1-RC 66 50 o n Augus 2 0, work for Respondent. The conclusion that Clark in 1980, and thereafter prepare and cause to be served fact never had any intention of returning to work o n tepa a r e v is ed t o f b a l l o t s, upon the for Respondent -isfurther supported by the absence basis of which he shall issue the appropriate certifi- for Respondent is further supported by the absence, - *on of any evidence that after obtaining new employ- ment he manifested any interest in the affairs of APPENDIX Respondent and by his failure to accept Respond- ent's offer of reinstatement. Accordingly, we con- NOTICE To EMPLOYEES elude that by and before the August 20 election POSTED BY ORDER OF THE Clark had abandoned any interest in employment NATIONAL LABOR RELATIONS BOARD by Respondent and that the challenge to his ballot An Agency of the United States Government should be sustained. After a hearing at which all sides had an opportu- ORDER nity to present evidence and state their positions, Pursuant to Section 10(c) of the National Labor t h e National Labor Relations Board found that we Relations Act, as amended, the National Labor Re- have violated the National Labor Relations Act, as lations Board adopts as its Order the recommended amended, and has ordered us to post this notice. Order of the Administrative Law Judge, as modi- WE WILL NOT threaten employees with dis- fied below, and hereby orders that the Respondent, charge or other reprisals should they engage in Lake Development Management Co., Metairie, union or other activity for their mutual aid or Louisiana, its officers, agents, successors, and as- protection. signs, shall take the action set forth in the said rec- WE WILL NOT interrogate our employees ommended Order, as so modified: concerning their interest in or activity on 1. Delete paragraph l(c) and reletter the subse- behalf of Greater New Orleans Maintenance quent paragraphs accordingly. Employees Association (GNOMEA). 2. Substitute the attached notice for that of the WE WILL NOT interfere with employee free- Administrative Law Judge. dom of choice by instituting or announcing the 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD institution of benefits to employees during the In the course and conduct of its business, the Respond- course of a union organizational campaign. ent annually receives goods and revenues in excess of WE WILL NOT in any like or related manner $500,000 and annually purchases and receives goods di- interfere with, restrain, or coerce our employ- rectly from points outside the State of Louisiana valued ees in the exercise of the rights guaranteed in excess of $50,000. The Respondent admits, and I find, teesim h e xctis e7 of theAc. rgt gathat it is an employer engaged in commerce within the them by Section 7 of the Act.^ meaning of Section 2(2), (6), and (7) of the Act. LAKE DEVELOPMENT MANAGEMENT 11. THE LABOR ORGANIZATION INVOLVED ~~~~~~~Co~~. ~Greater New Orleans Maintenance Employees Associ- DECISION ation (herein the Union) was formed on or about June 16 by employees Robert Gilbert and Ronald Bennett, with STATEMENT OF THE CASE assistance from Richard Allen Neville, who styles him- JAMES L. ROS.E, Administrative Law Jd self a labor relations consultant and so appeared at the Jmatter wa eard before me on February 1 0 Judge This hearing of this matter. However, there is testimony that matter was heard before me on February 18-20, 1981, at he advised employees that he is an attorney licensed to N OlsL sn uCses he advised employees that he is an attorney licensed to New Orleans, Louisiana, upon the General Counsel's ractice in New En land. complaint which alleged principally that on June 23, prace New England. 1980,' the Respondent discharged three employees in The Respondent admits, and I find, that the Union is a violation of Section 8(a)(l) and (3) of the National Labor abor organzatlon within the meaning of Section 2(5) of Relations Act, as amended, 29 U.S.C. §151, et seq. The General Counsel further alleges that this unfair labor 1II. THE ALLEGED UNFAIR LABOR PRACTICES practice precipitated a strike of other employees; that the Respondent engaged in several violations of Section A. Principal Facts 8(a)(l); and that the Respondent by its unilateral institu- tion of certain employee benefits on or about November During the times material there were nine central I violated Section 8(a)(5) of the Act, should the Union maintenance employees supervised by Joseph Alfred be certified as the employees' collective-bargaining rep- Barry and Clarence Thomas Johnson and more remotely resentative. by Alvin F. Solari, the general property manager. These The Respondent generally denied that it committed employees worked Monday through Friday from 8 a.m. any unfair labor practices and specifically alleges that the until 5 p.m. and earned from $6 to $7, or so, per hour. In three employees were discharged for cause on June 23- addition these employees were occasionally allowed to for refusing, in effect, an overtime assignment. The Re- do specific maintenance jobs on a contract basis after spondent further contends that the strike was economic; hours and were given the opportunity to carry a beeper. that its supervisors did not threaten or interrogate em- The Respondent's beeper system is the core of this ployees; and that, even if the Union should be certified controversy. Beepers are used by the Respondent pri- as the employees' collective-bargaining representative, it marily as a means of contacting maintenance employees had the right, during the pendency of these proceedings, for after-hours emergency service, although some main- to change the insurance benefits program. tenance employees carry beepers throughout the normal Consolidated with the unfair labor practice allegations workday. The beepers are fixed channel radio receivers is the hearing on challenged ballots in Case 15-RC-6650. which one can carry and through which one can be Upon the record as a whole, including my observation reached by telephone for short messages. Usually the of the witnesses and excellent briefs submitted by counsel beeper carrier then follows up by placing a telephone for the General Counsel and the Respondent, I hereby call. make the following: Until about April the Respondent had two beepers. Then two more were added. Thus during the time mate- FINDINGS OF FACT AND CONCLUSIONS OF LAW rial here, the Respondent used four beepers, each of which was for certain designated apartments. 1. THE BUSINESS OF THE RESPONDENT The pay week, and hence beeper duty, runs from Lake Development Management Co. (herein the Re- Thursday through Wednesday. Each Thursday morning spondent, the Company, or the Employer) is a partner- the four beepers would be on a table in the central main- ship engaged in the business of managing about 5,000 tenance area for employees to take and keep for I week. apartment units in 40 complexes in the greater New Or- An employee carrying a beeper would be compensated leans area. The Respondent has about 200 employees of $75 for the week. He would be expected to answer any whom about 75 are hourly paid. Most of the hourly em- calls and if necessary physically go to the appropriate ployees are maintenance men divided generally into two apartment and perform the necessary maintenance serv- groups. Specifically there are one or two onsite mainte- ice- Employees sometimes carried more than one beeper, nance men at the larger complexes and the others work substituting for the one originally on duty. out of a central location. The central maintenance group The number of messages one would receive, and after- are the principals involved in this matter. hours calls one would have to make, varied substantially. The evidence on this is far from conclusive, although it 'All dates are in 1980 unless otherwise indicated, is clear that most employees carrying the beepers were 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD institution of benefits to employees during the In the course and conduct of its business, the Respond- course of a union organizational campaign. ent annually receives goods and revenues in excess of WE WILL NOT in any like or related manner $500,000 and annually purchases and receives goods di- interfere with, restrain, or coerce our employ- re c tly from points outside t h e S t a t e o f L o u i si a n a valued ees in the exercise of the rights guaranteed in e x c e ss o f $ 5 0 ,0 0 0 . T h e Respondent admits, and I find, them by Sction7 of the *.Act. t h a t it is a n employer engaged in commerce within the them by Section 7 of the Act.^meaning of Section 2(2), (6), and (7) of the Act. LAKE DEVELOPMENT MANAGEMENT II. THE LABOR ORGANIZATION INVOLVED Greater New Orleans Maintenance Employees Associ- DECISION ation (herein the Union) was formed on or about June 16 by employees Robert Gilbert and Ronald Bennett, with STATEMENT OF THE CASE assistance from Richard Alien Neville, who styles him- JAMES L. ROSE, Administrative Law Jde This . r s elf a labor relations consultant and so appeared at the JAMES L. ROSE, Administrative Law Judge _ This hearing of this matter. However, there is testimony that matter was heard before me on February 18-20, 1981, at hearingd employees that he is an attorney licensed to New Orleans, Louisiana, upon the General Counsel's headvised e le that. h at. eyln t complaint which alleged principally that on June 23, n j . j *, pra c tice in New Enga n 1980,/ the Respondent discharged three employees in T h e Rpondent admits, and I find, that the Union is a violation of Section 8(a)(l) and (3) of the National Labor a b o r o rg ani z a t io n w ithi n t h e m e aning of Section 2(5) of Relations Act, as amended, 29 U.S.C. §151, et seq. The General Counsel further alleges that this unfair labor 111. THE ALLEGED UNFAIR LABOR PRACTICES practice precipitated a strike of other employees; that the Respondent engaged in several violations of Section A. Principal Facts 8(a)(l); and that the Respondent by its unilateral institu- tion of certain employee benefits on or about November During the times material there were nine central 1 violated Section 8(a)(5) of the Act, should the Union maintenance employees supervised by Joseph Alfred be certified as the employees' collective-bargaining rep- Bar" and Clarence Thomas Johnson and more remotely resentative. by Alvin F. Solari, the general property manager. These The Respondent generally denied that it committed employees worked Monday through Friday from 8 a.m. any unfair labor practices and specifically alleges that the u n t il 5 p.m. and earned from $6 to $7, or so, per hour. In three employees were discharged for cause on June 23- addition these employees were occasionally allowed to for refusing, in effect, an overtime assignment. The Re- d o specific maintenance jobs on a contract basis after spondent further contends that the strike was economic; h o u r s and w e r e given the opportunity to carry a beeper. that its supervisors did not threaten or interrogate em- The Respondent's beeper system is the core of this ployees; and that, even if the Union should be certified controversy. Beepers are used by the Respondent pri- as the employees' collective-bargaining representative, it marily as a means of contacting maintenance employees had the right, during the pendency of these proceedings, f o r after-hours emergency service, although some main- to change the insurance benefits program. tenance employees carry beepers throughout the normal Consolidated with the unfair labor practice allegations workday. The beepers are fixed channel radio receivers is the hearing on challenged ballots in Case 15-RC-6650. which one can carry and through which one can be Upon the record as a whole, including my observation reached by telephone for short messages. Usually the of the witnesses and excellent briefs submitted by counsel beeper carrier then follows up by placing a telephone for the General Counsel and the Respondent, I hereby c a ll. make the following: Until about April the Respondent had two beepers. Then two more were added. Thus during the time mate- FINDINGS OF FACT AND CONCLUSIONS OF LAW rial here, the Respondent used four beepers, each of which was for certain designated apartments. 1. THE BUSINESS OF THE RESPONDENT The pay week, and hence beeper duty, runs from Lake Development Management Co. (herein the Re- Thursday through Wednesday. Each Thursday morning spondent, the Company, or the Employer) is a partner- the four beepers would be on a table in the central main- ship engaged in the business of managing about 5,000 tenance area for employees to take and keep for 1 week. apartment units in 40 complexes in the greater New Or- A n employee carrying a beeper would be compensated leans area. The Respondent has about 200 employees of $75 for the week. He would be expected to answer any whom about 75 are hourly paid. Most of the hourly em- c a ll s and if necessary physically go to the appropriate ployees are maintenance men divided generally into two apartment and perform the necessary maintenance serv- groups. Specifically there are one or two onsite mainte- ic e. Employees sometimes carried more than one beeper, nance men at the larger complexes and the others work substituting for the one originally on duty. out of a central location. The central maintenance group The number of messages one would receive, and after- are the principals involved in this matter. hours calls one would have to make, varied substantially. The evidence on this is far from conclusive, although it 'All dates are in 1980 unless otherwise indicated,.is clear that most employees carrying the beepers were 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD institution of benefits to employees during the In the course and conduct of its business, the Respond- course of a union organizational campaign. ent annually receives goods and revenues in excess of WE WILL NOT in any like or related manner $500,000 and annually purchases and receives goods di- interfere with, restrain, or coerce our employ- re c tly from points outside t h e S t a t e o f L o u isi a na valued ees in the exercise of the rights guaranteed in e x c e ss o f $50 ,0 00 . T h e Respondent admits, and I find, them by Sction7 of the *.Act. t h a t it is an employer engaged in commerce within the them by Section 7 of the Act.^meaning of Section 2(2), (6), and (7) of the Act. LAKE DEVELOPMENT MANAGEMENT II. THE LABOR ORGANIZATION INVOLVED Greater New Orleans Maintenance Employees Associ- DECISION ation (herein the Union) was formed on or about June 16 by employees Robert Gilbert and Ronald Bennett, with STATEMENT OF THE CASE assistance from Richard Alien Neville, who styles him- JAMES L. ROSE, Administrative Law Jde This . r s elf a labor relations consultant and so appeared at the JAMES L. ROSE, Administrative Law Judge _ This hearing of this matter. However, there is testimony that matter was heard before me on February 18-20, 1981, at hearingd employees that he is an attorney licensed to New Orleans, Louisiana, upon the General Counsel's headvised e le that. h at. eyln t complaint which alleged principally that on June 23, praie no New i -i g an d I i r. -i i- i- , 1980,/ the Respondent discharged three employees in T h e Rpondent admits, and I find, that the Union is a violation of Section 8(a)(l) and (3) of the National Labor ab o r organization within the meaning of Section 2(5) of Relations Act, as amended, 29 U.S.C. §151, et seq. The General Counsel further alleges that this unfair labor 111. THE ALLEGED UNFAIR LABOR PRACTICES practice precipitated a strike of other employees; that the Respondent engaged in several violations of Section A. Principal Facts 8(a)(l); and that the Respondent by its unilateral institu- tion of certain employee benefits on or about November During the times material there were nine central 1 violated Section 8(a)(5) of the Act, should the Union maintenance employees supervised by Joseph Alfred be certified as the employees' collective-bargaining rep- Bar" and Clarence Thomas Johnson and more remotely resentative. by Alvin F. Solari, the general property manager. These The Respondent generally denied that it committed employees worked Monday through Friday from 8 a.m. any unfair labor practices and specifically alleges that the u n t il 5 p.m. and earned from $6 to $7, or so, per hour. In three employees were discharged for cause on June 23- addition these employees were occasionally allowed to for refusing, in effect, an overtime assignment. The Re- d o specific maintenance jobs on a contract basis after spondent further contends that the strike was economic; h o u r s and were given the opportunity to carry a beeper. that its supervisors did not threaten or interrogate em- The Respondent's beeper system is the core of this ployees; and that, even if the Union should be certified controversy. Beepers are used by the Respondent pri- as the employees' collective-bargaining representative, it marily as a means of contacting maintenance employees had the right, during the pendency of these proceedings, f o r after-hours emergency service, although some main- to change the insurance benefits program. tenance employees carry beepers throughout the normal Consolidated with the unfair labor practice allegations workday. The beepers are fixed channel radio receivers is the hearing on challenged ballots in Case 15-RC-6650. which one can carry and through which one can be Upon the record as a whole, including my observation reached by telephone for short messages. Usually the of the witnesses and excellent briefs submitted by counsel beeper carrier then follows up by placing a telephone for the General Counsel and the Respondent, I hereby c a ll. make the following: Until about April the Respondent had two beepers. Then two more were added. Thus during the time mate- FINDINGS OF FACT AND CONCLUSIONS OF LAW rial here, the Respondent used four beepers, each of which was for certain designated apartments. 1. THE BUSINESS OF THE RESPONDENT The pay week, and hence beeper duty, runs from Lake Development Management Co. (herein the Re- Thursday through Wednesday. Each Thursday morning spondent, the Company, or the Employer) is a partner- the four beepers would be on a table in the central main- ship engaged in the business of managing about 5,000 tenance area for employees to take and keep for 1 week. apartment units in 40 complexes in the greater New Or- A n employee carrying a beeper would be compensated leans area. The Respondent has about 200 employees of $75 for the week. He would be expected to answer any whom about 75 are hourly paid. Most of the hourly em- calls and if necessary physically go to the appropriate ployees are maintenance men divided generally into two apartment and perform the necessary maintenance serv- groups. Specifically there are one or two onsite mainte- ic e. Employees sometimes carried more than one beeper, nance men at the larger complexes and the others work substituting for the one originally on duty. out of a central location. The central maintenance group The number of messages one would receive, and after- are the principals involved in this matter. hours calls one would have to make, varied substantially. The evidence on this is far from conclusive, although it 'All dates are in 1980 unless otherwise indicated,.is clear that most employees carrying the beepers were 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD institution of benefits to employees during the In the course and conduct of its business, the Respond- course of a union organizational campaign. ent annually receives goods and revenues in excess of WE WILL NOT in any like or related manner $500,000 and annually purchases and receives goods di- interfere with, restrain, or coerce our employ- re c tly from points outside t h e S t a t e o f L o u isi a na valued ees in the exercise of the rights guaranteed in e x c e ss o f $50 ,0 00 . T h e Respondent admits, and I find, them by Sction7 of the *.Act. t h a t it is an employer engaged in commerce within the them by Section 7 of the Act.^meaning of Section 2(2), (6), and (7) of the Act. LAKE DEVELOPMENT MANAGEMENT II. THE LABOR ORGANIZATION INVOLVED Greater New Orleans Maintenance Employees Associ- DECISION ation (herein the Union) was formed on or about June 16 by employees Robert Gilbert and Ronald Bennett, with STATEMENT OF THE CASE assistance from Richard Alien Neville, who styles him- JAME, L. ROSE, Administrative Law Judge: Ths r s elf a labor relations consultant and so appeared at the JAMES L. ROSE, Administrative Law Judge _ This hearing of this matter. However, there is testimony that matter was heard before me on February 18-20, 1981, at hearingd employees that he is an attorney licensed to New Orleans, Louisiana, upon the General Counsel's headvised e le that. h at. eyln t complaint which alleged principally that on June 23, praie no New i -i g an d I i r. -i i- i- , 1980,/ the Respondent discharged three employees in T h e Rpondent admits, and I find, that the Union is a violation of Section 8(a)(l) and (3) of the National Labor ab o r organization within the meaning of Section 2(5) of Relations Act, as amended, 29 U.S.C. §151, et seq. The General Counsel further alleges that this unfair labor 111. THE ALLEGED UNFAIR LABOR PRACTICES practice precipitated a strike of other employees; that the Respondent engaged in several violations of Section A. Principal Facts 8(a)(l); and that the Respondent by its unilateral institu- tion of certain employee benefits on or about November During the times material there were nine central 1 violated Section 8(a)(5) of the Act, should the Union maintenance employees supervised by Joseph Alfred be certified as the employees' collective-bargaining rep- Bar" and Clarence Thomas Johnson and more remotely resentative. by Alvin F. Solari, the general property manager. These The Respondent generally denied that it committed employees worked Monday through Friday from 8 a.m. any unfair labor practices and specifically alleges that the u n t il 5 p.m. and earned from $6 to $7, or so, per hour. In three employees were discharged for cause on June 23- addition these employees were occasionally allowed to for refusing, in effect, an overtime assignment. The Re- d o specific maintenance jobs on a contract basis after spondent further contends that the strike was economic; h o u r s and were given the opportunity to carry a beeper. that its supervisors did not threaten or interrogate em- The Respondent's beeper system is the core of this ployees; and that, even if the Union should be certified controversy. Beepers are used by the Respondent pri- as the employees' collective-bargaining representative, it marily as a means of contacting maintenance employees had the right, during the pendency of these proceedings, f o r after-hours emergency service, although some main- to change the insurance benefits program. tenance employees carry beepers throughout the normal Consolidated with the unfair labor practice allegations workday. The beepers are fixed channel radio receivers is the hearing on challenged ballots in Case 15-RC-6650. which one can carry and through which one can be Upon the record as a whole, including my observation reached by telephone for short messages. Usually the of the witnesses and excellent briefs submitted by counsel beeper carrier then follows up by placing a telephone for the General Counsel and the Respondent, I hereby call. make the following: Until about April the Respondent had two beepers. Then two more were added. Thus during the time mate- FINDINGS OF FACT AND CONCLUSIONS OF LAW rial here, the Respondent used four beepers, each of which was for certain designated apartments. 1. THE BUSINESS OF THE RESPONDENT The pay week, and hence beeper duty, runs from Lake Development Management Co. (herein the Re- Thursday through Wednesday. Each Thursday morning spondent, the Company, or the Employer) is a partner- the four beepers would be on a table in the central main- ship engaged in the business of managing about 5,000 tenance area for employees to take and keep for 1 week. apartment units in 40 complexes in the greater New Or- A n employee carrying a beeper would be compensated leans area. The Respondent has about 200 employees of $75 for the week. He would be expected to answer any whom about 75 are hourly paid. Most of the hourly em- calls and if necessary physically go to the appropriate ployees are maintenance men divided generally into two apartment and perform the necessary maintenance serv- groups. Specifically there are one or two onsite mainte- ic e. Employees sometimes carried more than one beeper, nance men at the larger complexes and the others work substituting for the one originally on duty. out of a central location. The central maintenance group The number of messages one would receive, and after- are the principals involved in this matter. hours calls one would have to make, varied substantially. The evidence on this is far from conclusive, although it 'All dates are in 1980 unless otherwise indicated,.is clear that most employees carrying the beepers were 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD institution of benefits to employees during the In the course and conduct of its business, the Respond- course of a union organizational campaign. ent annually receives goods and revenues in excess of WE WILL NOT in any like or related manner $500,000 and annually purchases and receives goods di- interfere with, restrain, or coerce our employ- re c tly from points outside t h e S t a t e o f L o u isi a na valued ees in the exercise of the rights guaranteed in e x c e ss o f $50 ,0 00 . T h e Respondent admits, and I find, them by Sction7 of the *.Act. t h a t it is an employer engaged in commerce within the them by Section 7 of the Act.^meaning of Section 2(2), (6), and (7) of the Act. LAKE DEVELOPMENT MANAGEMENT II. THE LABOR ORGANIZATION INVOLVED Greater New Orleans Maintenance Employees Associ- DECISION ation (herein the Union) was formed on or about June 16 by employees Robert Gilbert and Ronald Bennett, with STATEMENT OF THE CASE assistance from Richard Alien Neville, who styles him- JAME, L. ROSE, Administrative Law Judge: Ths r s elf a labor relations consultant and so appeared at the JAMES L. ROSE, Administrative Law Judge _ This hearing of this matter. However, there is testimony that matter was heard before me on February 18-20, 1981, at hearingd employees that he is an attorney licensed to New Orleans, Louisiana, upon the General Counsel's headvised e le that. h at. eyln t complaint which alleged principally that on June 23, praie no New i -i g an d I i r. -i i- i- , 1980,/ the Respondent discharged three employees in T h e Rpondent admits, and I find, that the Union is a violation of Section 8(a)(l) and (3) of the National Labor a b o r organization within the meaning of Section 2(5) of Relations Act, as amended, 29 U.S.C. §151, et seq. The General Counsel further alleges that this unfair labor 111. THE ALLEGED UNFAIR LABOR PRACTICES practice precipitated a strike of other employees; that the Respondent engaged in several violations of Section A. Principal Facts 8(a)(l); and that the Respondent by its unilateral institu- tion of certain employee benefits on or about November During the times material there were nine central 1 violated Section 8(a)(5) of the Act, should the Union maintenance employees supervised by Joseph Alfred be certified as the employees' collective-bargaining rep- Bar" and Clarence Thomas Johnson and more remotely resentative. by Alvin F. Solari, the general property manager. These The Respondent generally denied that it committed employees worked Monday through Friday from 8 a.m. any unfair labor practices and specifically alleges that the u n t il 5 p.m. and earned from $6 to $7, or so, per hour. In three employees were discharged for cause on June 23- addition these employees were occasionally allowed to for refusing, in effect, an overtime assignment. The Re- d o specific maintenance jobs on a contract basis after spondent further contends that the strike was economic; h o u r s and were given the opportunity to carry a beeper. that its supervisors did not threaten or interrogate em- The Respondent's beeper system is the core of this ployees; and that, even if the Union should be certified controversy. Beepers are used by the Respondent pri- as the employees' collective-bargaining representative, it marily as a means of contacting maintenance employees had the right, during the pendency of these proceedings, f o r after-hours emergency service, although some main- to change the insurance benefits program. tenance employees carry beepers throughout the normal Consolidated with the unfair labor practice allegations workday. The beepers are fixed channel radio receivers is the hearing on challenged ballots in Case 15-RC-6650. which one can carry and through which one can be Upon the record as a whole, including my observation reached by telephone for short messages. Usually the of the witnesses and excellent briefs submitted by counsel beeper carrier then follows up by placing a telephone for the General Counsel and the Respondent, I hereby call. make the following: Until about April the Respondent had two beepers. Then two more were added. Thus during the time mate- FINDINGS OF FACT AND CONCLUSIONS OF LAW rial here, the Respondent used four beepers, each of which was for certain designated apartments. 1. THE BUSINESS OF THE RESPONDENT The pay week, and hence beeper duty, runs from Lake Development Management Co. (herein the Re- Thursday through Wednesday. Each Thursday morning spondent, the Company, or the Employer) is a partner- the four beepers would be on a table in the central main- ship engaged in the business of managing about 5,000 tenance area for employees to take and keep for 1 week. apartment units in 40 complexes in the greater New Or- A n employee carrying a beeper would be compensated leans area. The Respondent has about 200 employees of $75 for the week. He would be expected to answer any whom about 75 are hourly paid. Most of the hourly em- calls and if necessary physically go to the appropriate ployees are maintenance men divided generally into two apartment and perform the necessary maintenance serv- groups. Specifically there are one or two onsite mainte- ic e. Employees sometimes carried more than one beeper, nance men at the larger complexes and the others work substituting for the one originally on duty. out of a central location. The central maintenance group The number of messages one would receive, and after- are the principals involved in this matter. hours calls one would have to make, varied substantially. The evidence on this is far from conclusive, although it 'All dates are in 1980 unless otherwise indicated,.is clear that most employees carrying the beepers were 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD institution of benefits to employees during the In the course and conduct of its business, the Respond- course of a union organizational campaign. ent annually receives goods and revenues in excess of WE WILL NOT in any like or related manner $500,000 and annually purchases and receives goods di- interfere with, restrain, or coerce our employ- re c tly from points outside t h e S t a t e o f L o u isi a na valued ees in the exercise of the rights guaranteed in e x c e ss o f $50 ,0 00 . T h e Respondent admits, and I find, them by Sction7 of the *.Act. t h a t it is an employer engaged in commerce within the them by Section 7 of the Act.^meaning of Section 2(2), (6), and (7) of the Act. LAKE DEVELOPMENT MANAGEMENT II. THE LABOR ORGANIZATION INVOLVED Greater New Orleans Maintenance Employees Associ- DECISION ation (herein the Union) was formed on or about June 16 by employees Robert Gilbert and Ronald Bennett, with STATEMENT OF THE CASE assistance from Richard Alien Neville, who styles him- JAME, L. ROSE, Administrative Law Judge: Ths r s elf a labor relations consultant and so appeared at the JAMES L. ROSE, Administrative Law Judge _ This hearing of this matter. However, there is testimony that matter was heard before me on February 18-20, 1981, at hearingd employees that he is an attorney licensed to New Orleans, Louisiana, upon the General Counsel's headvised e le that. h at. eyln t complaint which alleged principally that on June 23, praie no New i -i g an d I i r. -i i- i- , 1980,/ the Respondent discharged three employees in T h e Rpondent admits, and I find, that the Union is a violation of Section 8(a)(l) and (3) of the National Labor a b o r organization within the meaning of Section 2(5) of Relations Act, as amended, 29 U.S.C. §151, et seq. The General Counsel further alleges that this unfair labor 111. THE ALLEGED UNFAIR LABOR PRACTICES practice precipitated a strike of other employees; that the Respondent engaged in several violations of Section A. Principal Facts 8(a)(l); and that the Respondent by its unilateral institu- tion of certain employee benefits on or about November During the times material there were nine central 1 violated Section 8(a)(5) of the Act, should the Union maintenance employees supervised by Joseph Alfred be certified as the employees' collective-bargaining rep- Bar" and Clarence Thomas Johnson and more remotely resentative. by Alvin F. Solari, the general property manager. These The Respondent generally denied that it committed employees worked Monday through Friday from 8 a.m. any unfair labor practices and specifically alleges that the u n t il 5 p.m. and earned from $6 to $7, or so, per hour. In three employees were discharged for cause on June 23- addition these employees were occasionally allowed to for refusing, in effect, an overtime assignment. The Re- d o specific maintenance jobs on a contract basis after spondent further contends that the strike was economic; h o u r s and were given the opportunity to carry a beeper. that its supervisors did not threaten or interrogate em- The Respondent's beeper system is the core of this ployees; and that, even if the Union should be certified controversy. Beepers are used by the Respondent pri- as the employees' collective-bargaining representative, it marily as a means of contacting maintenance employees had the right, during the pendency of these proceedings, f o r after-hours emergency service, although some main- to change the insurance benefits program. tenance employees carry beepers throughout the normal Consolidated with the unfair labor practice allegations workday. The beepers are fixed channel radio receivers is the hearing on challenged ballots in Case 15-RC-6650. which one can carry and through which one can be Upon the record as a whole, including my observation reached by telephone for short messages. Usually the of the witnesses and excellent briefs submitted by counsel beeper carrier then follows up by placing a telephone for the General Counsel and the Respondent, I hereby call. make the following: Until about April the Respondent had two beepers. Then two more were added. Thus during the time mate- FINDINGS OF FACT AND CONCLUSIONS OF LAW rial here, the Respondent used four beepers, each of which was for certain designated apartments. 1. THE BUSINESS OF THE RESPONDENT The pay week, and hence beeper duty, runs from Lake Development Management Co. (herein the Re- Thursday through Wednesday. Each Thursday morning spondent, the Company, or the Employer) is a partner- the four beepers would be on a table in the central main- ship engaged in the business of managing about 5,000 tenance area for employees to take and keep for 1 week. apartment units in 40 complexes in the greater New Or- A n employee carrying a beeper would be compensated leans area. The Respondent has about 200 employees of $75 for the week. He would be expected to answer any whom about 75 are hourly paid. Most of the hourly em- calls and if necessary physically go to the appropriate ployees are maintenance men divided generally into two apartment and perform the necessary maintenance serv- groups. Specifically there are one or two onsite mainte- ic e. Employees sometimes carried more than one beeper, nance men at the larger complexes and the others work substituting for the one originally on duty. out of a central location. The central maintenance group The number of messages one would receive, and after- are the principals involved in this matter. hours calls one would have to make, varied substantially. The evidence on this is far from conclusive, although it 'All dates are in 1980 unless otherwise indicated,.is clear that most employees carrying the beepers were LAKE DEVELOPMENT MANAGEMENT CO. 795 simply oncall. Most hours they neither responded to failure to carry a beeper the others would go on strike. messages nor performed any kind of maintenance func- They agreed to "stick together." tion. On Monday, June 23, the maintenance employees were For reasons unstated in the record, on June 16 Robert called together again, were asked to take the beepers and Gilbert decided to form a union. He and Ronald Bennett were told by Barry that if they refused, beepers would met with Neville and they determined to have an organi- be assigned to individuals and if those individuals refused zational meeting in Neville's apartment on the evening of to take them they would be discharged. They continued June 18. That morning Gilbert posted a notice to this to refuse. effect on the bulletin board of the maintenance lounge. Then Bennett, Gilbert, and Allen Toups were selected At this time he had a discussion with Barry about the for specific assignment because, according to Barry, in Union, infra, and later that day was called into the office the previous 3 months these individuals had beeper duty of the Respondent's president, Patricia Artigues, infra. the least of any then active employee. Each refused to At the employees' meeting on June 18, among other take the beeper and each was discharged. Bennett testi- things Neville told them that the Company was in viola- fled, for instance, tion of the Fair Labor Standards Act with regard to the beeper system. He told them, or at least led them to be- When I refused to take the beeper, Al Barry told lieve, that when carrying a beeper they were entitled to me that refusing to take the beeper-he's to be ter- be paid at the rate of one and one half-times their hourly minated for refusing to take the beeper. Then, Mr. rate for each hour. Gilbert, for instance, testified that he Solari said, "Ron, read this paper first." was then earning $7.25 an hour and was advised that Q. Okay. when carrying the beeper he would be entitled to one A. And I read the paper. and one-half times that amount for 128 hours each week Q. And then, you were asked again weren't you? (5 p.m. to 8 a.m. Monday through Saturday plus 48 A. Yes. hours from 8 a.m. Saturday to 8 a.m. Monday). Gilbert Q. And you still refused, didn't you? testified that he was led to believe, and presumably so A. Yes. were the others, that the Company should be paying him some $1,300 a week extra for carrying the beeper. Most of the remaining maintenance employees, pursu- Neville further advised these employees that inasmuch ant to their agreement among themselves, then went on as the Company was in violation of the Fair Labor strike to protest the Respondent's alleged unfair labor Standards Act, if they continued the practice of taking practice. the beepers for $75 a week that they too would be in On June 19, Neville filed a petition for representation violation of the Federal law.2 on behalf of the Union. A consent agreement was After being advised by Neville that they should have reached. The Union waived blocking by the unfair labor been paid substantially more for carrying the beeper, all practice charge, and an election was held on August 20. those at the June 18 meeting determined that they would There were 3 votes cast for the Union and 4 cast against not carry the beeper until the Respondent agreed to pay it, with 26 challenged ballots. Generally, the ballots chal- them their due. lenged by the Union were cast by individuals who re- Thus on Thursday, June 19, the beepers were set out placed the striking employees. Generally, the ballots as usual but none was taken. Barry asked if anyone was challenged by the Respondent were of those individuals going to take a beeper but they all declined, telling him the Respondent contends were terminated for cause or that they would not carry the beepers unless the Compa- had abandoned their employment. ny paid them what they were entitled. About 5 o'clock that afternoon and again about 4:45 p.m. on Friday, B. Contentions of the Parties Barry asked each of the maintenance employees if he The General Counsel alleges that the discharges of would take a beeper and each refused. He told them that Bennett, Gilbert, and Toups were violative of Section their continued refusal to take the beepers could result in 8(a)(3) because they were discharged for having engaged their discharges. in protected concerted activity, namely, refusing to carry Sometime after the employees first announced that the beepers without being appropriately compensated they would refuse to carry the beepers, and were threat- under the Fair Labor Standards Act; and, alternatively, ened with possible discharge for failure to do so, they all because they had engaged in activity on behalf of the agreed that should any one of them be discharged for Union. The General Counsel further contends that the strike I The General Counsel offered to prove that employees carrying the The General Counsel further contends that the strike beepers averaged from 10 to 20 hours of work a week, and sought t of employees was precipitated by the Respondent's litigate here the issue of whether or not they were appropriately compen- unfair labor practice of discharging these individuals. sated under the Fair Labor Standards Act. I conclude that the Board is It is also alleged that the Respondent engaged in viola- not the appropriate forum to decide that issue. However, notice is taken tions of Section 8(a)(1) when Barry and then Artigues of 29 C.F.R. 785.17 which provides that employees oncall away from the employer's premises are not entitled to pay for that time. Inasmuch as the confronted Gilbert on June 18 and that the Respondent facts demonstrate that these employees were oncall and did not actually violated Section 8(a)(1) on August 1 by posting new va- do any work more than a few hours each week (even assuming the Gen- cation holiday rules which applied to strike replace- eral Counsel's offer), it is clear that the Respondent was not liable to pay ments them anything remotely close to time and one-half their hourly rate for m 128 hours a week. Whether the $75 a week was sufficient under the Fair Finally, the General Counsel contends that, f the Labor Standards Act is for another tribunal to decide. Union is certified as the collective-bargaining representa- LAKE DEVELOPMENT MANAGEMENT CO. 795 simply oncall. Most hours they neither responded to failure to carry a beeper the others would go on strike. messages nor performed any kind of maintenance func- They agreed to "stick together." tion. On Monday, June 23, the maintenance employees were For reasons unstated in the record, on June 16 Robert called together again, were asked to take the beepers and Gilbert decided to form a union. He and Ronald Bennett were told by Barry that if they refused, beepers would met with Neville and they determined to have an organi- be assigned to individuals and if those individuals refused zational meeting in Neville's apartment on the evening of to take them they would be discharged. They continued June 18. That morning Gilbert posted a notice to this to refuse. effect on the bulletin board of the maintenance lounge. Then Bennett, Gilbert, and Alien Toups were selected At this time he had a discussion with Barry about the for specific assignment because, according to Barry, in Union, infra, and later that day was called into the office the previous 3 months these individuals had beeper duty of the Respondent's president, Patricia Artigues, infra. the least of any then active employee. Each refused to At the employees' meeting on June 18, among other take the beeper and each was discharged. Bennett testi- things Neville told them that the Company was in viola- fled, for instance, tion of the Fair Labor Standards Act with regard to the beeper system. He told them, or at least led them to be- When I refused to take the beeper, Al Barry told lieve, that when carrying a beeper they were entitled to me that refusing to take the beeper-he's to be ter- be paid at the rate of one and one half-times their hourly minated for refusing to take the beeper. Then, Mr. rate for each hour. Gilbert, for instance, testified that he Solari said, "Ron, read this paper first." was then earning $7.25 an hour and was advised that Q. Okay. when carrying the beeper he would be entitled to one A. And I read the paper. and one-half times that amount for 128 hours each week Q. And then, you were asked again weren't you? (5 p.m. to 8 a.m. Monday through Saturday plus 48 A. Yes. hours from 8 a.m. Saturday to 8 a.m. Monday). Gilbert Q. And you still refused, didn't you? testified that he was led to believe, and presumably so A. Yes. were the others, that the Company should be paying him some $1,300 a week extra for carrying the beeper. Most of the remaining maintenance employees, pursu- Neville further advised these employees that inasmuch ant to their agreement among themselves, then went on as the Company was in violation of the Fair Labor strike to protest the Respondent's alleged unfair labor Standards Act, if they continued the practice of taking practice. the beepers for $75 a week that they too would be in On June 19, Neville filed a petition for representation violation of the Federal law.2'on behalf of the Union. A consent agreement was After being advised by Neville that they should have reached. The Union waived blocking by the unfair labor been paid substantially more for carrying the beeper, all practice charge, and an election was held on August 20. those at the June 18 meeting determined that they would There were 3 votes cast for the Union and 4 cast against not carry the beeper until the Respondent agreed to pay it, with 26 challenged ballots. Generally, the ballots chal- them their due. lenged by the Union were cast by individuals who re- Thus on Thursday, June 19, the beepers were set out placed the striking employees. Generally, the ballots as usual but none was taken. Barry asked if anyone was challenged by the Respondent were of those individuals going to take a beeper but they all declined, telling him the Respondent contends were terminated for cause or that they would not carry the beepers unless the Compa- had abandoned their employment. ny paid them what they were entitled. About 5 o'clock that afternoon and again about 4:45 p.m. on Friday, B. Contentions of the Parties Barry asked each of the maintenance employees if he The General Counsel alleges that the discharges of would take a beeper and each refused. He told them that Bennett, Gilbert, and Toups were violative of Section their continued refusal to take the beepers could result in 8(a)(3) because they were discharged for having engaged their discharges. in protected concerted activity, namely, refusing to carry Sometime after the employees first announced that the beepers without being appropriately compensated they would refuse to carry the beepers, and were threat- under the Fair Labor Standards Act; and, alternatively, ened with possible discharge for failure to do so, they all because they had engaged in activity on behalf of the agreed that should any one of them be discharged for Union. ------- ~~~~~~~~~~~~The General Counsel further contends that the strike I The General Counsel offered to prove that employees carrying the The GenealiCounsl furthe contend tha the str1 ike beepers averaged from 10 to 20 hours of work a week, and sought t0 "f employees was precipitated by the Respondent's litigate here the issue of whether or not they were appropriately compen- unfair labor practice of discharging these individuals. sated under the Fair Labor Standards Act. I conclude that the Board is It is also alleged that the Respondent engaged in viola- not the appropriate forum to dec ide that issue. However, notice is taken tions of Section 8(a)(l) when Barry and then Artigues of 29 C.F.R. 785.17 which provides that employees oncall away from the employer's premises are not entitled to pay for that time. Inasmuch as the confronted Gilbert on June 18 and that the Respondent facts demonstrate that these employees were oncall and did not actually violated Section 8(a)(l) on August 1 by posting new va- do any work more than a few hours each week (even assuming the Gen- cation holiday rules which applied to Strike replace- eral Counsel's offer), it is clear that the Respondent was not liable to pay ments. them anything remotely close to time and one-half their hourly rate for 128 hours a week. Whether the $75 a week was sufficient under the Fair Finally, the General Counsel Contends that, if the Labor Standards Act is for another tribunal to decide. Union is certified as the collective-bargaining representa- LAKE DEVELOPMENT MANAGEMENT CO. 795 simply oncall. Most hours they neither responded to failure to carry a beeper the others would go on strike. messages nor performed any kind of maintenance func- They agreed to "stick together." tion. On Monday, June 23, the maintenance employees were For reasons unstated in the record, on June 16 Robert called together again, were asked to take the beepers and Gilbert decided to form a union. He and Ronald Bennett were told by Barry that if they refused, beepers would met with Neville and they determined to have an organi- be assigned to individuals and if those individuals refused zational meeting in Neville's apartment on the evening of to take them they would be discharged. They continued June 18. That morning Gilbert posted a notice to this to refuse. effect on the bulletin board of the maintenance lounge. Then Bennett, Gilbert, and Alien Toups were selected At this time he had a discussion with Barry about the for specific assignment because, according to Barry, in Union, infra, and later that day was called into the office the previous 3 months these individuals had beeper duty of the Respondent's president, Patricia Artigues, infra. the least of any then active employee. Each refused to At the employees' meeting on June 18, among other take the beeper and each was discharged. Bennett testi- things Neville told them that the Company was in viola- fled, for instance, tion of the Fair Labor Standards Act with regard to the beeper system. He told them, or at least led them to be- When I refused to take the beeper, Al Barry told lieve, that when carrying a beeper they were entitled to me that refusing to take the beeper-he's to be ter- be paid at the rate of one and one half-times their hourly minated for refusing to take the beeper. Then, Mr. rate for each hour. Gilbert, for instance, testified that he Solari said, "Ron, read this paper first." was then earning $7.25 an hour and was advised that Q. Okay. when carrying the beeper he would be entitled to one A. And I read the paper. and one-half times that amount for 128 hours each week Q. And then, you were asked again weren't you? (5 p.m. to 8 a.m. Monday through Saturday plus 48 A. Yes. hours from 8 a.m. Saturday to 8 a.m. Monday). Gilbert Q. And you still refused, didn't you? testified that he was led to believe, and presumably so A. Yes. were the others, that the Company should be paying him some $1,300 a week extra for carrying the beeper. Most of the remaining maintenance employees, pursu- Neville further advised these employees that inasmuch ant to their agreement among themselves, then went on as the Company was in violation of the Fair Labor strike to protest the Respondent's alleged unfair labor Standards Act, if they continued the practice of taking practice. the beepers for $75 a week that they too would be in On June 19, Neville filed a petition for representation violation of the Federal law.2'on behalf of the Union. A consent agreement was After being advised by Neville that they should have reached. The Union waived blocking by the unfair labor been paid substantially more for carrying the beeper, all practice charge, and an election was held on August 20. those at the June 18 meeting determined that they would There were 3 votes cast for the Union and 4 cast against not carry the beeper until the Respondent agreed to pay it, with 26 challenged ballots. Generally, the ballots chal- them their due. lenged by the Union were cast by individuals who re- Thus on Thursday, June 19, the beepers were set out placed the striking employees. Generally, the ballots as usual but none was taken. Barry asked if anyone was challenged by the Respondent were of those individuals going to take a beeper but they all declined, telling him the Respondent contends were terminated for cause or that they would not carry the beepers unless the Compa- had abandoned their employment. ny paid them what they were entitled. About 5 o'clock that afternoon and again about 4:45 p.m. on Friday, B. Contentions of the Parties Barry asked each of the maintenance employees if he The General Counsel alleges that the discharges of would take a beeper and each refused. He told them that Bennett, Gilbert, and Toups were violative of Section their continued refusal to take the beepers could result in 8(a)(3) because they were discharged for having engaged their discharges. in protected concerted activity, namely, refusing to carry Sometime after the employees first announced that the beepers without being appropriately compensated they would refuse to carry the beepers, and were threat- under the Fair Labor Standards Act; and, alternatively, ened with possible discharge for failure to do so, they all because they had engaged in activity on behalf of the agreed that should any one of them be discharged for Union. ------- ~~~~~~~~~~~~The General Counsel further contends that the strike I The General Counsel offered to prove that employees carrying the The GenealiCounsl furthe contend tha the str1 ike beepers averaged from 10 to 20 hours of work a week, and sought t0 "f employees was precipitated by the Respondent's litigate here the issue of whether or not they were appropriately compen- unfair labor practice of discharging these individuals. sated under the Fair Labor Standards Act. I conclude that the Board is It is also alleged that the Respondent engaged in viola- not the appropriate forum to dec ide that issue. However, notice is taken tions of Section 8(a)(l) when Barry and then Artigues of 29 C.F.R. 785.17 which provides that employees oncall away from the employer's premises are not entitled to pay for that time. Inasmuch as the confronted Gilbert on June 18 and that the Respondent facts demonstrate that these employees were oncall and did not actually violated Section 8(a)(l) on August 1 by posting new va- do any work more than a few hours each week (even assuming the Gen- cation holiday rules which applied to Strike replace- eral Counsel's offer), it is clear that the Respondent was not liable to pay ments. them anything remotely close to time and one-half their hourly rate for 128 hours a week. Whether the $75 a week was sufficient under the Fair Finally, the General Counsel Contends that, if the Labor Standards Act is for another tribunal to decide. Union is certified as the collective-bargaining representa- LAKE DEVELOPMENT MANAGEMENT CO. 795 simply oncall. Most hours they neither responded to failure to carry a beeper the others would go on strike. messages nor performed any kind of maintenance func- They agreed to "stick together." tion. On Monday, June 23, the maintenance employees were For reasons unstated in the record, on June 16 Robert called together again, were asked to take the beepers and Gilbert decided to form a union. He and Ronald Bennett were told by Barry that if they refused, beepers would met with Neville and they determined to have an organi- be assigned to individuals and if those individuals refused zational meeting in Neville's apartment on the evening of to take them they would be discharged. They continued June 18. That morning Gilbert posted a notice to this to refuse. effect on the bulletin board of the maintenance lounge. Then Bennett, Gilbert, and Alien Toups were selected At this time he had a discussion with Barry about the for specific assignment because, according to Barry, in Union, infra, and later that day was called into the office the previous 3 months these individuals had beeper duty of the Respondent's president, Patricia Artigues, infra. the least of any then active employee. Each refused to At the employees' meeting on June 18, among other take the beeper and each was discharged. Bennett testi- things Neville told them that the Company was in viola- fled, for instance, tion of the Fair Labor Standards Act with regard to the beeper system. He told them, or at least led them to be- When I refused to take the beeper, Al Barry told lieve, that when carrying a beeper they were entitled to me that refusing to take the beeper-he's to be ter- be paid at the rate of one and one half-times their hourly minated for refusing to take the beeper. Then, Mr. rate for each hour. Gilbert, for instance, testified that he Solari said, "Ron, read this paper first." was then earning $7.25 an hour and was advised that Q. Okay. when carrying the beeper he would be entitled to one A. And I read the paper. and one-half times that amount for 128 hours each week Q. And then, you were asked again weren't you? (5 p.m. to 8 a.m. Monday through Saturday plus 48 A. Yes. hours from 8 a.m. Saturday to 8 a.m. Monday). Gilbert Q. And you still refused, didn't you? testified that he was led to believe, and presumably so A. Yes. were the others, that the Company should be paying him some $1,300 a week extra for carrying the beeper. Most of the remaining maintenance employees, pursu- Neville further advised these employees that inasmuch ant to their agreement among themselves, then went on as the Company was in violation of the Fair Labor strike to protest the Respondent's alleged unfair labor Standards Act, if they continued the practice of taking practice. the beepers for $75 a week that they too would be in On June 19, Neville filed a petition for representation violation of the Federal law.2'on behalf of the Union. A consent agreement was After being advised by Neville that they should have reached. The Union waived blocking by the unfair labor been paid substantially more for carrying the beeper, all practice charge, and an election was held on August 20. those at the June 18 meeting determined that they would There were 3 votes cast for the Union and 4 cast against not carry the beeper until the Respondent agreed to pay it, with 26 challenged ballots. Generally, the ballots chal- them their due. lenged by the Union were cast by individuals who re- Thus on Thursday, June 19, the beepers were set out placed the striking employees. Generally, the ballots as usual but none was taken. Barry asked if anyone was challenged by the Respondent were of those individuals going to take a beeper but they all declined, telling him the Respondent contends were terminated for cause or that they would not carry the beepers unless the Compa- had abandoned their employment. ny paid them what they were entitled. About 5 o'clock that afternoon and again about 4:45 p.m. on Friday, B. Contentions of the Parties Barry asked each of the maintenance employees if he The General Counsel alleges that the discharges of would take a beeper and each refused. He told them that Bennett, Gilbert, and Toups were violative of Section their continued refusal to take the beepers could result in 8(a)(3) because they were discharged for having engaged their discharges. in protected concerted activity, namely, refusing to carry Sometime after the employees first announced that the beepers without being appropriately compensated they would refuse to carry the beepers, and were threat- under the Fair Labor Standards Act; and, alternatively, ened with possible discharge for failure to do so, they all because they had engaged in activity on behalf of the agreed that should any one of them be discharged for Union. ------- ~~~~~~~~~~~~The General Counsel further contends that the strike I The General Counsel offered to prove that employees carrying the The GenealiCounsl furthe contend tha the str1 ike beepers averaged from 10 to 20 hours of work a week, and sought t0 "f employees was precipitated by the Respondent's litigate here the issue of whether or not they were appropriately compen- unfair labor practice of discharging these individuals. sated under the Fair Labor Standards Act. I conclude that the Board is It is also alleged that the Respondent engaged in viola- not the appropriate forum to dec ide that issue. However, notice is taken tions of Section 8(a)(l) when Barry and then Artigues of 29 C.F.R. 785.17 which provides that employees oncall away from the employer's premises are not entitled to pay for that time. Inasmuch as the confronted Gilbert on June 18 and that the Respondent facts demonstrate that these employees were oncall and did not actually violated Section 8(a)(l) on August 1 by posting new va- do any work more than a few hours each week (even assuming the Gen- cation holiday rules which applied to Strike replace- eral Counsel's offer), it is clear that the Respondent was not liable to pay ments. them anything remotely close to time and one-half their hourly rate for 128 hours a week. Whether the $75 a week was sufficient under the Fair Finally, the General Counsel Contends that, if the Labor Standards Act is for another tribunal to decide. Union is certified as the collective-bargaining representa- 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive of the employees, the Respondent violated Section Graphic Arts International Union (Western Publishing Co., 8(a)(5) of the Act by unilaterally instituting changes in Inc.), 252 NLRB 936, 938 (1980): insurance coverage effective November 1. In addition to the matters alleged by the General It is also clear that the repeated refusal of em- Counsel, the Union contends that its challenges to cer- ployees to perform mandatory assigned overtime tain ballots should be sustained and those of the Re- work is unprotected by the Act because it consti- spondent should be overruled. tutes a recurring or intermittent partial strike. The Respondent argues that Gilbert, Bennett, and Toups were discharged for having engaged in the unpro- In The Dow Chemical Company, 152 NLRB 1150 tected act of a partial work stoppage-refusing an over- (1965), weekend overtime was voluntary; hence to refuse time assignment. The Respondent argues that the follow- it was protected activity. And more recently in Jasta ing strike was economic and therefore replacements were Manufacturing Company, Inc., 246 NLRB 48 (1979) eligible to vote in the election. (Member Penello dissenting), 2 hours a day overtime had The Respondent further contends that the conversa- always been voluntary. The company intended to change tions Barry and Artigues had with Gilbert on June 18 this but did not tell employees the voluntary nature of did not contain threats or interrogation in violation of the overtime had been changed nor that they would be Section 8(a)(l). disciplined if they refused. Then without warning, four The Respondent claims that the announcement of va- employees were discharged. The Board refused to con- cation and holiday benefits on August 1 was simply a lude that by not working an hour on three occasions correction of a plan put into effect in March and there- "they lost protection of the Act because they sought to fore was not violative of Section 8(a)(l). impose on Respondent their own terms and conditions of And, finally, the Respondent argues that, even though employment." it unilaterally implemented a change in insurance cover- In John S. Swift Company, Inc., supra at 397, the Board age, it had the right to do so pending resolution of the rejected a semantic argument similar to that made here challenged ballots to the election. Thus, even if the by the General Counsel: Union is certified, it should not be held to have violated Section 8(a)(5). We find no basis in this record for the distinction The Respondent also suggests that its challenges drawn by the Trial Examiner that the employees should be sustained and those of the Union should be were not "ordered," but were merely requested, to overruled. work overtime. It is quite clear that the Respond- ent's intention was to order them, under pain of dis- C. Analysis and Concluding Findings charge, to work overtime, and the employees could not have understood it otherwise .... 1. The discharges Principally the General Counsel contends that the em- The General Counsel places substantial emphasis on ployees had the protected right to refuse to take the testimony that when hired none of the maintenance men beepers (a) because accepting a beeper assignment was were told that taking a beeper would be mandatory. voluntary and (b) because the Company was in violation However, what one remembers he was not told a year or of the Fair Labor Standards Act in its compensation to more before a hearing is not as probative as an analysis employees who carried the beepers. I disagree on both of the work itself accounts. The Respondent had 5,000 apartment units. Without The General Counsel concedes that beeper assignment question it needed some method of providing emergency was overtime and that the employees acted in concert in maintenance service on a regular basis. The beeper refusing. And the General Counsel recognizes the gener- system filled this need. al proposition that refusal to work overtime is unprotect- Beyond this, the record is clear that prior to the ed activity since such is an attempt by employees to pre- events here neither the Respondent nor the employees scribe for themselves their terms of work. "The Board thought in terms of whether beeper duty was mandatory. and the courts have squarely held that such a refusal to It was available for those who wanted to make some work provides the employer with valid ground for dis- extra money. The duty was sufficiently desirable so that charge." John S. Swift Company, Inc., 124 NLRB 394, there was no lack of volunteers-except one time. 397 (1959). In early June, according to Barry, he could not get The General Counsel's argument is founded on the as- enough volunteers for the beeper and thus told employee sertion that beeper assignment had been voluntary and Joseph C. Melanta (Milano in Barry's testimony) to take therefore did not constitute a routine part of the mainte- it. Melanta testified that the beeper was never assigned to nance employees' duties. Refusal to do the work, there- him and it was "all voluntary." However, on cross-exam- fore, was protected strike activity, citing Polytech Incor- ination he testified to a time when Barry told him he porated, 195 NLRB 695 (1972); N.L.R.B. v. Washington would have to take a beeper, whereupon, "I decided I'd Aluminum Company, Inc., 370 U.S. 9 (1962); and First go ahead and take it because I could use the extra National Bank of Omaha, 171 NLRB 1145 (1968). money." In analyzing whether a particular act of refusing over- There is no question that having maintenance employ- time is protected or not the Board often focuses on ees on call was important to the Respondent's business; whether it is mandatory. Thus, in GAIU Local 13-B, that emergency service was a job function required to be 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive of the employees, the Respondent violated Section Graphic Arts International Union (Western Publishing Co., 8(a)(5) of the Act by unilaterally instituting changes in Inc.), 252 NLRB 936, 938 (1980): insurance coverage effective November 1. In addition to the matters alleged by the General It is also clear that the repeated refusal of em- Counsel, the Union contends that its challenges to cer- ployees to perform mandatory assigned overtime tain ballots should be sustained and those of the Re- work is unprotected by the Act because it consti- spondent should be overruled. tutes a recurring or intermittent partial strike. The Respondent argues that Gilbert, Bennett, and Toups were discharged for having engaged in the unpro- In T h e D o w Chemical Company, 152 NLRB 1150 tected act of a partial work stoppage-refusing an over- (1965), weekend overtime was voluntary; hence to refuse time assignment. The Respondent argues that the follow- it was protected activity. And more recently in Jasta ing strike was economic and therefore replacements were Manufacturing Company, Inc., 246 NLRB 48 (1979) eligible to vote in the election. (Member Penello dissenting), 2 hours a day overtime had The Respondent further contends that the conversa- always been voluntary. The company intended to change tions Barry and Artigues had with Gilbert on June 18 this but did not tell employees the voluntary nature of did not contain threats or interrogation in violation of the overtime had been changed nor that they would be Section 8(a)(l). disciplined if they refused. Then without warning, four The Respondent claims that the announcement of va- employees were discharged. The Board refused to con- cation and holiday benefits on August 1 was simply a elude that by not working an hour on three occasions correction of a plan put into effect in March and there- "they lost protection of the Act because they sought to fore was not violative of Section 8(a)(l). impose on Respondent their own terms and conditions of And, finally, the Respondent argues that, even though employment." it unilaterally implemented a change in insurance cover- In John S. Swift Company, Inc., supra at 397, the Board age, it had the right to do so pending resolution of the rejected a semantic argument similar to that made here challenged ballots to the election. Thus, even if the by the General Counsel: Union is certified, it should not be held to have violated Section 8(a)(5). We find no basis in this record for the distinction The Respondent also suggests that its challenges drawn by the Trial Examiner that the employees should be sustained and those of the Union should be were not "ordered," but were merely requested, to overruled. work overtime. It is quite clear that the Respond- ent's intention was to order them, under pain of dis- C. Analysis and Concluding Findings charge, to work overtime, and the employees could not have understood it otherwise .... 1. The discharges Principally the General Counsel contends that the em- T h e G e ne r a l C o un s el places substantial emphasis on ployees had the protected right to refuse to take the testimony that when hired none of the maintenance men beepers (a) because accepting a beeper assignment was were told that taking a beeper would be mandatory. voluntary and (b) because the Company was in violation However, what one remembers he was not told a year or of the Fair Labor Standards Act in its compensation to m o r e before a hearing is not as probative as an analysis employees who carried the beepers. I disagree on both o f t h e w o r k it se lf. accounts. Th e Respondent had 5,000 apartment units. Without The General Counsel concedes that beeper assignment question it needed some method of providing emergency was overtime and that the employees acted in concert in maintenance service on a regular basis. The beeper refusing. And the General Counsel recognizes the gener- system filled this need. al proposition that refusal to work overtime is unprotect- Beyond this, the record is clear that prior to the ed activity since such is an attempt by employees to pre- events here neither the Respondent nor the employees scribe for themselves their terms of work. "The Board thought in terms of whether beeper duty was mandatory. and the courts have squarely held that such a refusal to It was available for those who wanted to make some work provides the employer with valid ground for dis- extra money. The duty was sufficiently desirable so that charge." John S. Swift Company, Inc., 124 NLRB 394, there was no lack of volunteers-except one time. 397 (1959). In early June, according to Barry, he could not get The General Counsel's argument is founded on the as- enough volunteers for the beeper and thus told employee sertion that beeper assignment had been voluntary and Joseph C. Melanta (Milano in Barry's testimony) to take therefore did not constitute a routine part of the mainte- it. Melanta testified that the beeper was never assigned to nance employees' duties. Refusal to do the work, there- him and it was "all voluntary." However, on cross-exam- fore, was protected strike activity, citing Polytech Incor- ination he testified to a time when Barry told him he porated, 195 NLRB 695 (1972); N.L.R.B. v. Washington would have to take a beeper, whereupon, "I decided I'd Aluminum Company, Inc., 370 U.S. 9 (1962); and First go ahead and take it because I could use the extra National Bank of Omaha, 171 NLRB 1145 (1968). money." In analyzing whether a particular act of refusing over- There is no question that having maintenance employ- time is protected or not the Board often focuses on ees on call was important to the Respondent's business; whether it is mandatory. Thus, in GAIU Local 13-B, that emergency service was a job function required to be 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive of the employees, the Respondent violated Section Graphic Arts International Union (Western Publishing Co., 8(a)(5) of the Act by unilaterally instituting changes in Inc.), 252 NLRB 936, 938 (1980): insurance coverage effective November 1. In addition to the matters alleged by the General It is also clear that the repeated refusal of em- Counsel, the Union contends that its challenges to cer- ployees to perform mandatory assigned overtime tain ballots should be sustained and those of the Re- work is unprotected by the Act because it consti- spondent should be overruled. tutes a recurring or intermittent partial strike. The Respondent argues that Gilbert, Bennett, and Toups were discharged for having engaged in the unpro- In T h e D o w Chemical Company, 152 NLRB 1150 tected act of a partial work stoppage-refusing an over- (1965), weekend overtime was voluntary; hence to refuse time assignment. The Respondent argues that the follow- it was protected activity. And more recently in Jasta ing strike was economic and therefore replacements were Manufacturing Company, Inc., 246 NLRB 48 (1979) eligible to vote in the election. (Member Penello dissenting), 2 hours a day overtime had The Respondent further contends that the conversa- always been voluntary. The company intended to change tions Barry and Artigues had with Gilbert on June 18 this but did not tell employees the voluntary nature of did not contain threats or interrogation in violation of the overtime had been changed nor that they would be Section 8(a)(l). disciplined if they refused. Then without warning, four The Respondent claims that the announcement of va- employees were discharged. The Board refused to con- cation and holiday benefits on August 1 was simply a elude that by not working an hour on three occasions correction of a plan put into effect in March and there- "they lost protection of the Act because they sought to fore was not violative of Section 8(a)(l). impose on Respondent their own terms and conditions of And, finally, the Respondent argues that, even though employment." it unilaterally implemented a change in insurance cover- In John S. Swift Company, Inc., supra at 397, the Board age, it had the right to do so pending resolution of the rejected a semantic argument similar to that made here challenged ballots to the election. Thus, even if the by the General Counsel: Union is certified, it should not be held to have violated Section 8(a)(5). We find no basis in this record for the distinction The Respondent also suggests that its challenges drawn by the Trial Examiner that the employees should be sustained and those of the Union should be were not "ordered," but were merely requested, to overruled. work overtime. It is quite clear that the Respond- ent's intention was to order them, under pain of dis- C. Analysis and Concluding Findings charge, to work overtime, and the employees could not have understood it otherwise .... 1. The discharges Principally the General Counsel contends that the em- T h e G e ne r a l C o un s el places substantial emphasis on ployees had the protected right to refuse to take the testimony that when hired none of the maintenance men beepers (a) because accepting a beeper assignment was were told that taking a beeper would be mandatory. voluntary and (b) because the Company was in violation However, what one remembers he was not told a year or of the Fair Labor Standards Act in its compensation to m o r e before a hearing is not as probative as an analysis employees who carried the beepers. I disagree on both o f t h e w o r k it se lf. accounts. The Respondent had 5,000 apartment units. Without The General Counsel concedes that beeper assignment question it needed some method of providing emergency was overtime and that the employees acted in concert in maintenance service on a regular basis. The beeper refusing. And the General Counsel recognizes the gener- system filled this need. al proposition that refusal to work overtime is unprotect- Beyond this, the record is clear that prior to the ed activity since such is an attempt by employees to pre- events here neither the Respondent nor the employees scribe for themselves their terms of work. "The Board thought in terms of whether beeper duty was mandatory. and the courts have squarely held that such a refusal to It was available for those who wanted to make some work provides the employer with valid ground for dis- extra money. The duty was sufficiently desirable so that charge." John S. Swift Company, Inc., 124 NLRB 394, there was no lack of volunteers-except one time. 397 (1959). In early June, according to Barry, he could not get The General Counsel's argument is founded on the as- enough volunteers for the beeper and thus told employee sertion that beeper assignment had been voluntary and Joseph C. Melanta (Milano in Barry's testimony) to take therefore did not constitute a routine part of the mainte- it. Melanta testified that the beeper was never assigned to nance employees' duties. Refusal to do the work, there- him and it was "all voluntary." However, on cross-exam- fore, was protected strike activity, citing Polytech Incor- ination he testified to a time when Barry told him he porated, 195 NLRB 695 (1972); N.L.R.B. v. Washington would have to take a beeper, whereupon, "I decided I'd Aluminum Company, Inc., 370 U.S. 9 (1962); and First go ahead and take it because I could use the extra National Bank of Omaha, 171 NLRB 1145 (1968). money." In analyzing whether a particular act of refusing over- There is no question that having maintenance employ- time is protected or not the Board often focuses on ees on call was important to the Respondent's business; whether it is mandatory. Thus, in GAIU Local 13-B, that emergency service was a job function required to be 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive of the employees, the Respondent violated Section Graphic Arts International Union (Western Publishing Co., 8(a)(5) of the Act by unilaterally instituting changes in Inc.), 252 NLRB 936, 938 (1980): insurance coverage effective November 1. In addition to the matters alleged by the General It is also clear that the repeated refusal of em- Counsel, the Union contends that its challenges to cer- ployees to perform mandatory assigned overtime tain ballots should be sustained and those of the Re- work is unprotected by the Act because it consti- spondent should be overruled. tutes a recurring or intermittent partial strike. The Respondent argues that Gilbert, Bennett, and Toups were discharged for having engaged in the unpro- In T h e D o w Chemical Company, 152 NLRB 1150 tected act of a partial work stoppage-refusing an over- (1965), weekend overtime was voluntary; hence to refuse time assignment. The Respondent argues that the follow- it was protected activity. And more recently in Jasta ing strike was economic and therefore replacements were Manufacturing Company, Inc., 246 NLRB 48 (1979) eligible to vote in the election. (Member Penello dissenting), 2 hours a day overtime had The Respondent further contends that the conversa- always been voluntary. The company intended to change tions Barry and Artigues had with Gilbert on June 18 this but did not tell employees the voluntary nature of did not contain threats or interrogation in violation of the overtime had been changed nor that they would be Section 8(a)(l). disciplined if they refused. Then without warning, four The Respondent claims that the announcement of va- employees were discharged. The Board refused to con- cation and holiday benefits on August 1 was simply a elude that by not working an hour on three occasions correction of a plan put into effect in March and there- "they lost protection of the Act because they sought to fore was not violative of Section 8(a)(l). impose on Respondent their own terms and conditions of And, finally, the Respondent argues that, even though employment." it unilaterally implemented a change in insurance cover- In John S. Swift Company, Inc., supra at 397, the Board age, it had the right to do so pending resolution of the rejected a semantic argument similar to that made here challenged ballots to the election. Thus, even if the by the General Counsel: Union is certified, it should not be held to have violated Section 8(a)(5). We find no basis in this record for the distinction The Respondent also suggests that its challenges drawn by the Trial Examiner that the employees should be sustained and those of the Union should be were not "ordered," but were merely requested, to overruled. work overtime. It is quite clear that the Respond- ent's intention was to order them, under pain of dis- C. Analysis and Concluding Findings charge, to work overtime, and the employees could not have understood it otherwise .... 1. The discharges Principally the General Counsel contends that the em- T h e G e ne r a l C o un s el places substantial emphasis on ployees had the protected right to refuse to take the testimony that when hired none of the maintenance men beepers (a) because accepting a beeper assignment was were told that taking a beeper would be mandatory. voluntary and (b) because the Company was in violation However, what one remembers he was not told a year or of the Fair Labor Standards Act in its compensation to m o r e before a hearing is not as probative as an analysis employees who carried the beepers. I disagree on both o f t h e w o r k it se lf. accounts. The Respondent had 5,000 apartment units. Without The General Counsel concedes that beeper assignment question it needed some method of providing emergency was overtime and that the employees acted in concert in maintenance service on a regular basis. The beeper refusing. And the General Counsel recognizes the gener- system filled this need. al proposition that refusal to work overtime is unprotect- Beyond this, the record is clear that prior to the ed activity since such is an attempt by employees to pre- events here neither the Respondent nor the employees scribe for themselves their terms of work. "The Board thought in terms of whether beeper duty was mandatory. and the courts have squarely held that such a refusal to It was available for those who wanted to make some work provides the employer with valid ground for dis- extra money. The duty was sufficiently desirable so that charge." John S. Swift Company, Inc., 124 NLRB 394, there was no lack of volunteers-except one time. 397 (1959). In early June, according to Barry, he could not get The General Counsel's argument is founded on the as- enough volunteers for the beeper and thus told employee sertion that beeper assignment had been voluntary and Joseph C. Melanta (Milano in Barry's testimony) to take therefore did not constitute a routine part of the mainte- it. Melanta testified that the beeper was never assigned to nance employees' duties. Refusal to do the work, there- him and it was "all voluntary." However, on cross-exam- fore, was protected strike activity, citing Polytech Incor- ination he testified to a time when Barry told him he porated, 195 NLRB 695 (1972); N.L.R.B. v. Washington would have to take a beeper, whereupon, "I decided I'd Aluminum Company, Inc., 370 U.S. 9 (1962); and First go ahead and take it because I could use the extra National Bank of Omaha, 171 NLRB 1145 (1968). money." In analyzing whether a particular act of refusing over- There is no question that having maintenance employ- time is protected or not the Board often focuses on ees on call was important to the Respondent's business; whether it is mandatory. Thus, in GAIU Local 13-B, that emergency service was a job function required to be LAKE DEVELOPMENT MANAGEMENT CO. 797 performed by maintenance employees and had in fact determined that Gilbert, Bennett, and Toups had the been done by maintenance employees for many years. fewest weeks. 3 Although the Respondent had four And as the number of apartments increased so did the beepers to be used, it could not be determined who number of beepers. should be assigned the fourth one because two employ- That the Respondent was able to provide service by ees were tied. Thus, for purposes of assignment on June using supervisors from June 19 to June 23 is beside the 23, the Respondent decided to assign three beepers, and point. The Respondent had a right to require of its em- to terminate those employees who refused them. ployees that they be available for emergency service on There is simply no basis on this record to infer that a regular basis, and such is what they were refusing. Toups Bennett or Gilbert would have been discharged This work was not the kind of overtime which em- ' ' This work was not the kind of overtime which em- on June 23 absent their refusal to accept an assignment ployees could take or not, as in Dow Chemical or Jasta o ee. Idee, the ere re an and agan Manufacturing. Nor was the refusal a one-time matter as o f a b eep e f In d ee t were warned again and aga t in Polyrech. that refusal would mean discharge. Bennett was told They were refusing to take the beepers in order to before making his final decision to read the discharge force he Employer to meet their pay demand with letter. I believe, and conclude, that had any one of them regard to them. Their announced intention was to con- accepted the assignment he would not have been termi- tinue refusing the beepers. But they were as clearly un- nated. I therefore conclude that the General Counsel did willing to accept status as strikers. not establish by a preponderance of the credible evi- Certainly employees have a right to protest an em- dence, through reasonable inference or otherwise, that ployer's perceived violation of Federal law. If they do so the union activity of these three employees, or others, concertedly such acts are generally protected, even if played any part in their discharge other than that associ- they are wrong. But the issue is not whether the Em- ated with their decision to refuse beeper duty. The dis- ployer violated the Fair Labor Standards Act (as con- charges of Gilbert, Bennett, and Toups on June 23 were tended by the General Counsel) but whether the employ- not violative of Section 8(a)(1) or (3) of the Act. 4 ees' concerted activity lost its protected character be- cause of the means used. I conclude it did. 2. The strike Had the employees protested the alleged violation of lthough the Respondent through Barry and Artigues the Fair Labor Standards Act by a general strike, for in- did commit some violations of Section 8(a)() on June stance, such would have been protected. However, the stance, such would have been protected. However, the 18, infra, it is clear from the testimony of the General means chosen here was that of a partial work stoppage. C nls esesa thee tes layeno tn It may be that the method of compensating these indi- Counsel's witnesses that these matters played no part in It may be that the method of compensating these di- the strike. The sole basis of the strike was the employees' viduals for beeper duty was violative of the Fair Labor e s T e sol e b s he t k w e pl- Standards Act; however, that is far from obvious. What d e cision to "sti ck together. They struck because Gil- is obvious is that employees were not entitled to any- b er t B en n ett, a nd Toups w ere discharged. Inasmuch as I thing close to $1,300 a week for being on emergency concluded that the discharge of these individuals was not call. In any event, the employees did not have the pro- an unfair labor practice, I necessarily conclude that the tected right to press their contention by means of a par- strike was not an unfair labor practice strike. It was, and tial strike, remained, an economic strike, which is material only to Finally, a crucial fact found wanting in those cases eligibility of voters in the representation matter, infra. where the refusal to work overtime was held protected was present here. Here the Respondent warned the em- 3. The 8(a)(1) activity ployees of possible discharge, and continued to the time of the discharges to try to persuade them to accept the beepers. It is alleged that on June 18 after Gilbert posted the The General Counsel alternatively contends that Ben- notice of the union meeting Barry threatened employees nett, Gilbert, and Toups were discharged because they with more onerous working conditions, threatened em- engaged in union activity, in view of the timing of the ployees with discharge if they selected the Union, im- discharges, the Company's demonstrated animus, infra, pliedly promised employees increased benefits, and solic- and knowledge that Bennett and Gilbert were the ited employee complaints and grievances. Union's two leaders. It is generally undisputed that following the posting of While timing, knowledge, and animus are factors from the notice Barry made several comments to the assem- which an antiunion motive may be inferred, such an in- bled maintenance employees. While the testimony of the ference here is not warranted. The overwhelming evi- General Counsel's witnesses is somewhat conflicting, ba- dence is that these employees were discharged because, employees were going sically all agree that Barry said employees were "going and only because, they refused to take beepers when as- signed to do so on June 23. The employees initiated the ' To the extent that Bennett's testimony conflicts with Barry's list. I beeper confrontation when on Thursday they concerted- discredit Bennett. The list was made up, and seen, prior to any of the ly refused them. And this confrontation continued to events here. Monday when the Respondent decided to make specific In view of this conclusion, it is unnecessary to decide the Respond- assignments, and discharge employees if necessary. ent's assertion that Bennett and Gilbert, having been deemed uninsurable by their automobile insurance carrier, would not be entitled to reinstate- Barry kept a list of how often employees had had a ment or that Bennett engaged in sufficient post-discharge misconduct to beeper since April, when two beepers were added. He render him unemployable. LAKE DEVELOPMENT MANAGEMENT CO. 797 performed by maintenance employees and had in fact determined that Gilbert, Bennett, and Toups had the been done by maintenance employees for many years. fewest weeks. 3 Although the Respondent had four And as the number of apartments increased so did the beepers to be used, it could not be determined who number of beepers. should be assigned the fourth one because two employ- That the Respondent was able to provide service by ees were tied. Thus, for purposes of assignment on June using supervisors from June 19 to June 23 is beside the 23, the Respondent decided to assign three beepers, and point. The Respondent had a right to require of its em- to terminate those employees who refused them. ployees that they be available for emergency service on There is simply no basis on this record to infer that a regular basis, and such is what they were refusing.u Bennett, or Gilbert would have been discharged This work was not the kind of overtime which em- on June 23 absent their refusal to accept an assignment ployees could take or not, as in Dow Chemical or Jasta . Ie, t wr w a a a Manufacturing. Nor was the refusal a one-time matter as o f a b eep e fs I n d eed a l were warned again and again in Polytechrefusal would mean discharge. Bennett was told They were refusing to take the beepers in order to b e f o r e making h is f l n a l d e c i sio n t o r e a d t h e discharge force the Employer to meet their pay demand with le t te r . I b e lie v e, a n d conclude, that had any one of them regard to them. Their announced intention was to con- accepted the assignment he would not have been termi- tinue refusing the beepers. But they were as clearly un- n a t e d . I therefore conclude that the General Counsel did willing to accept status as strikers. n o t establish by a preponderance of the credible evi- Certainly employees have a right to protest an em- dence, through reasonable inference or otherwise, that ployer's perceived violation of Federal law. If they do so the union activity of these three employees, or others, concertedly such acts are generally protected, even if played any part in their discharge other than that associ- they are wrong. But the issue is not whether the Em- ated with their decision to refuse beeper duty. The dis- ployer violated the Fair Labor Standards Act (as con- charges of Gilbert, Bennett, and Toups on June 23 were tended by the General Counsel) but whether the employ- not violative of Section 8(a)(l) or (3) of the Act. 4 ees' concerted activity lost its protected character be- cause of the means used. I conclude it did. 2. The strike Had the employees protested the alleged violation of Although the Respondent through Barry and Artigues the Fair Labor Standards Act by a general strike, for in- di c s v o S o stance, such would have been protected. However, the ,„*i .. , e ... , , stane, sch wuld ave eenprotcted Howverthe 18, infra, it is clear from the testimony of the General means chosen here was that of a partial work stoppage. C nse l' swn e s that t h e t e s play e n o rti It may be that the method of compensating these indi- tC o u n se l T w e t n esse s t h a t t h ese m a t te rs pth em ploy e n viduals for beeper duty was violative of the Fair Labor t h e st r lk e. T h e so l e b asl s o f t h e < i ke w as t h e ^p 10 ^ Standards Act; however, that is far from obvious. What d ecisio n t o "sti ck together." They struck because Gil- is obvious is that employees were not entitled to any- b er t, Bennett, and Toups were discharged. Inasmuch as I thing close to $1,300 a week for being on emergency concluded that the discharge of these individuals was not call. In any event, the employees did not have the pro- an u n fa ir la bo r practice, I necessarily conclude that the tected right to press their contention by means of a par- s t rik e w as no t an unfair labor practice strike. It was, and tial strike,.remained, an economic strike, which is material only to Finally, a crucial fact found wanting in those cases eligibility of voters in the representation matter, infra. where the refusal to work overtime was held protected was present here. Here the Respondent warned the em- 3. T h e 8(a)(1) activity ployees of possible discharge, and continued to the time. A of the discharges to try to persuade them to accept the beepers. It is alleged that on June 18 after Gilbert posted the The General Counsel alternatively contends that Ben- notice of the union meeting Barry threatened employees nett, Gilbert, and Toups were discharged because they with more onerous working conditions, threatened em- engaged in union activity, in view of the timing of the ployees with discharge if they selected the Union, im- discharges, the Company's demonstrated animus, infra, pliedly promised employees increased benefits, and solic- and knowledge that Bennett and Gilbert were the ited employee complaints and grievances. Union' s two leaders. It is generally undisputed that following the posting of While timing, knowledge, and animus are factors from the notice Barry made several comments to the assem- which an antiunion motive may be inferred, such an in- bled maintenance employees. While the testimony of the ference here is not warranted. The overwhelming evi- counss witnesses is somewhat conflicting, ba- dence is that these employees were discharged because, s a a t B employees were "going and only because, they refused to take beepers when as-3 signed to do so on June 23. The employees initiated the , ~ . ,„ , signed to do so on June 23 . The employees initiated the To the extent that Bennett's testimony conflicts with Barry's list. I beeper Confrontation When on Thursday they concerted- discredit Bennett. The list was made up, and seen, prior to any of the ly refused them. And this confrontation continued to events here. Monday when the Respondent decided to make specific I n v ie w o f t h i s conclusion, it is unnecessary to decide the Respond. assignments, and discharge employees if necessary. ent's assertion that Bennett and Gilbert, having been deemed uninsurable by their automobile insurance carrier, would not be entitled to reinstate- Barry kept a list Of how Often employees had had a ment or that Bennett engaged in sufficient post-discharge misconduct to beeper since April, when two beepers were added. He render him unemployable. LAKE DEVELOPMENT MANAGEMENT CO. 797 performed by maintenance employees and had in fact determined that Gilbert, Bennett, and Toups had the been done by maintenance employees for many years. fewest weeks. 3 Although the Respondent had four And as the number of apartments increased so did the beepers to be used, it could not be determined who number of beepers. should be assigned the fourth one because two employ- That the Respondent was able to provide service by ees were tied. Thus, for purposes of assignment on June using supervisors from June 19 to June 23 is beside the 23, the Respondent decided to assign three beepers, and point. The Respondent had a right to require of its em- to terminate those employees who refused them. ployees that they be available for emergency service on There is simply no basis on this record to infer that a regular basis, and such is what they were refusing.u Bennett, or Gilbert would have been discharged This work was not the kind of overtime which em- on June 23 absent their refusal to accept an assignment ployees could take or not, as in Dow Chemical or Jasta . Ie, t wr w a a a Manufacturing. Nor was the refusal a one-time matter as o f a b eep e fs I n d eed a l were warned again and again in Polytechrefusal would mean discharge. Bennett was told They were refusing to take the beepers in order to b e f o r e making h is f l n a l d e c i sio n t o r e a d t h e discharge force the Employer to meet their pay demand with le t te r . I b e lie v e, a n d conclude, that had any one of them regard to them. Their announced intention was to con- accepted the assignment he would not have been termi- tinue refusing the beepers. But they were as clearly un- n a t e d . I therefore conclude that the General Counsel did willing to accept status as strikers. n o t establish by a preponderance of the credible evi- Certainly employees have a right to protest an em- dence, through reasonable inference or otherwise, that ployer's perceived violation of Federal law. If they do so the union activity of these three employees, or others, concertedly such acts are generally protected, even if played any part in their discharge other than that associ- they are wrong. But the issue is not whether the Em- ated with their decision to refuse beeper duty. The dis- ployer violated the Fair Labor Standards Act (as con- charges of Gilbert, Bennett, and Toups on June 23 were tended by the General Counsel) but whether the employ- not violative of Section 8(a)(l) or (3) of the Act. 4 ees' concerted activity lost its protected character be- cause of the means used. I conclude it did. 2. The strike Had the employees protested the alleged violation of Although the Respondent through Barry and Artigues the Fair Labor Standards Act by a general strike, for in- di c s v o S o stance, such would have been protected. However, the ,„*i .. , e ... , , stane, sch wuld ave eenprotcted Howverthe 18, infra, it is clear from the testimony of the General means chosen here was that of a partial work stoppage. C nse l' swn e s that t h e t e s play e n o rti It may be that the method of compensating these indi- C o u n se l s witnesses that these matters played no part in viduals for beeper duty was violative of the Fair Labor t h e st r lk e. T h e s o l e b a s l s o f t h e < i ke was the employees Standards Act; however, that is far from obvious. What d e cisio n t o "sti c k together." They struck because Gil- is obvious is that employees were not entitled to any- b e r t, Bennett, and Toups were discharged. Inasmuch as I thing close to $1,300 a week for being on emergency concluded that the discharge of these individuals was not call. In any event, the employees did not have the pro- an u n fa ir la b o r practice, I necessarily conclude that the tected right to press their contention by means of a par- s t rik e was not an unfair labor practice strike. It was, and tial strike,.remained, an economic strike, which is material only to Finally, a crucial fact found wanting in those cases eligibility of voters in the representation matter, infra. where the refusal to work overtime was held protected was present here. Here the Respondent warned the em- 3. T h e 8(a)(1) activity ployees of possible discharge, and continued to the time. A of the discharges to try to persuade them to accept the beepers. It is alleged that on June 18 after Gilbert posted the The General Counsel alternatively contends that Ben- notice of the union meeting Barry threatened employees nett, Gilbert, and Toups were discharged because they with more onerous working conditions, threatened em- engaged in union activity, in view of the timing of the ployees with discharge if they selected the Union, im- discharges, the Company's demonstrated animus, infra, pliedly promised employees increased benefits, and solic- and knowledge that Bennett and Gilbert were the ited employee complaints and grievances. Union' s two leaders. It is generally undisputed that following the posting of While timing, knowledge, and animus are factors from the notice Barry made several comments to the assem- which an antiunion motive may be inferred, such an in- bled maintenance employees. While the testimony of the ference here is not warranted. The overwhelming evi- counss witnesses is somewhat conflicting, ba- dence is that these employees were discharged because, s a a t B employees were "going and only because, they refused to take beepers when as-3 signed to do so on June 23. The employees initiated the , ~ . ,„ , signed to do so on June 23 . The employees initiated the To the extent that Bennett's testimony conflicts with Barry's list. I beeper Confrontation When on Thursday they concerted- discredit Bennett. The list was made up, and seen, prior to any of the ly refused them. And this confrontation continued to events here. Monday when the Respondent decided to make specific I n v ie w o f t h i s conclusion, it is unnecessary to decide the Respond. assignments, and discharge employees if necessary. ent's assertion that Bennett and Gilbert, having been deemed uninsurable by their automobile insurance carrier, would not be entitled to reinstate- Barry kept a list Of how Often employees had had a ment or that Bennett engaged in sufficient post-discharge misconduct to beeper since April, when two beepers were added. He render him unemployable. LAKE DEVELOPMENT MANAGEMENT CO. 797 performed by maintenance employees and had in fact determined that Gilbert, Bennett, and Toups had the been done by maintenance employees for many years. fewest weeks. 3 Although the Respondent had four And as the number of apartments increased so did the beepers to be used, it could not be determined who number of beepers. should be assigned the fourth one because two employ- That the Respondent was able to provide service by ees were tied. Thus, for purposes of assignment on June using supervisors from June 19 to June 23 is beside the 23, the Respondent decided to assign three beepers, and point. The Respondent had a right to require of its em- to terminate those employees who refused them. ployees that they be available for emergency service on There is simply no basis on this record to infer that a regular basis, and such is what they were refusing. Toups, Bennett, or Gilbert would have been discharged This work was not the kind of overtime which em- on June 23 absent their refusal to accept an assignment ployees could take or not, as in Dow Chemical or Jasta . Ie, t wr w a a a Manufacturing. Nor was the refusal a one-time matter as o f a b eep e fs I n d eed a l were warned again and again in Polytechrefusal would mean discharge. Bennett was told They were refusing to take the beepers in order to b e f o r e making h is f l n a l d e c i sio n t o r e a d the discharge force the Employer to meet their pay demand with le t te r . I b e lie v e, a n d conclude, that had any one of them regard to them. Their announced intention was to con- accepted the assignment he would not have been termi- tinue refusing the beepers. But they were as clearly un- nated. I therefore conclude that the General Counsel did willing to accept status as strikers. not establish by a preponderance of the credible evi- Certainly employees have a right to protest an em- dence, through reasonable inference or otherwise, that ployer's perceived violation of Federal law. If they do so the union activity of these three employees, or others, concertedly such acts are generally protected, even if played any part in their discharge other than that associ- they are wrong. But the issue is not whether the Em- ated with their decision to refuse beeper duty. The dis- ployer violated the Fair Labor Standards Act (as con- charges of Gilbert, Bennett, and Toups on June 23 were tended by the General Counsel) but whether the employ- not violative of Section 8(a)(l) or (3) of the Act. 4 ees' concerted activity lost its protected character be- cause of the means used. I conclude it did. 2. The strike Had the employees protested the alleged violation of Although the Respondent through Barry and Artigues the Fair Labor Standards Act by a general strike, for in- di c s v o S o stance, such would have been protected. However, the ,„*i .. , e ... , , stane, sch wuld ave eenprotcted Howverthe 18, infra, it is clear from the testimony of the General means chosen here was that of a partial work stoppage. C nse l' swn e s that t h e t e s play e n o rti It may be that the method of compensating these indi- C o u n se l s witnesses that these matters played no part in viduals for beeper duty was violative of the Fair Labor t h e st r lk e. T h e s o l e b a s l s o f t h e < i ke was the employees Standards Act; however, that is far from obvious. What d e cisio n t o "sti c k together." They struck because Gil- is obvious is that employees were not entitled to any- b e r t, Bennett, and Toups were discharged. Inasmuch as I thing close to $1,300 a week for being on emergency concluded that the discharge of these individuals was not call. In any event, the employees did not have the pro- an u n fa ir la b o r practice, I necessarily conclude that the tected right to press their contention by means of a par- s t rik e was not an unfair labor practice strike. It was, and tial strike,.remained, an economic strike, which is material only to Finally, a crucial fact found wanting in those cases eligibility of voters in the representation matter, infra. where the refusal to work overtime was held protected was present here. Here the Respondent warned the em- 3. T h e 8(a)( 1) activity ployees of possible discharge, and continued to the time. A of the discharges to try to persuade them to accept the beepers. It is alleged that on June 18 after Gilbert posted the The General Counsel alternatively contends that Ben- notice of the union meeting Barry threatened employees nett, Gilbert, and Toups were discharged because they with more onerous working conditions, threatened em- engaged in union activity, in view of the timing of the ployees with discharge if they selected the Union, im- discharges, the Company's demonstrated animus, infra, pliedly promised employees increased benefits, and solic- and knowledge that Bennett and Gilbert were the ited employee complaints and grievances. Union' s two leaders. It is generally undisputed that following the posting of While timing, knowledge, and animus are factors from the notice Barry made several comments to the assem- which an antiunion motive may be inferred, such an in- bled maintenance employees. While the testimony of the ference here is not warranted. The overwhelming evi- counss witnesses is somewhat conflicting, ba- dence is that these employees were discharged because, s a a t B employees were "going and only because, they refused to take beepers when as-3 signed to do so on June 23. The employees initiated the , ~ . ,„ , signed to do so on June 23 . The employees initiated the To the extent that Bennett's testimony conflicts with Barry's list. I beeper Confrontation When on Thursday they concerted- discredit Bennett. The list was made up, and seen, prior to any of the ly refused them. And this confrontation continued to events here. Monday when the Respondent decided to make specific I n v ie w o f t h i s conclusion, it is unnecessary to decide the Respond. assignments, and discharge employees if necessary. ent's assertion that Bennett and Gilbert, having been deemed uninsurable by their automobile insurance carrier, would not be entitled to reinstate- Barry kept a list Of how Often employees had had a ment or that Bennett engaged in sufficient post-discharge misconduct to beeper since April, when two beepers were added. He render him unemployable. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to get hurt by attending meetings and stuff like this" and Even though there is the handwritten note "revised" by that "the Union would only get us in trouble." the date of "8/1/80," it is clear that the policy was From the generally credible testimony of the General posted on August 1 and did by its terms offer new em- Counsel's witnesses, I do conclude that on June 18 Barry ployees 2 weeks' vacation after 1 year rather than 1 did threaten employees with reprisals, including dis- week. charge, should they continue with their union activity. Although the Respondent contends that the change in There is nothing, however, in any of the witnesses' testi- policy occurred in March and it was through inadver- mony to indicate that Barry made any kind of implied tence that the change was incorrectly posted, I find that promise of increased benefits and improved working con- the policy was announced to employees following the ditions or solicited complaints and grievances. beginning of the organizational campaign, before the It is also alleged that on June 23 Barry threatened em- election and during the time when there were new em- ployees with unspecified reprisals if they selected the ployees as striker replacements. Accordingly, I conclude Union as their collective-bargaining representative. Ben- that this announcement of the change in vacation policy nett did testify that on that day Barry told several of the made particularly applicable to striker replacements nec- maintenance employees "the only thing y'all are going to essarily had an intimidating and coercive effect on the get out of this union shit is hurt." Inasmuch as this state- rights of employees to engage in protected concerted ac- ment was made to maintenance employees in the context tivity and was therefore violative of Section 8(a)(l). of the confrontation that they were then having with the Company concerning the matter of taking beeper assign- 4. The refusal to bargain ments, I conclude that in fact such amounted to a gener- alized threat. It was therefore violative of Section Undenably, on or about November 1 the Respondent 8(a)(l), notwithstanding that the ultimate issue over announced a change in its health, accident, and life insur- which the three employees were discharged was their ance plan to all employees, including those in the bar- having engaged in unprotected activity. gaining unit. The Respondent unilaterally and without negotiating with the Union changed the plan by assum- b. Patricia Artigues ing all of the premiums. The Union had not at the time demonstrated that it On the afternoon of June 18 Gilbert was called to thented a aoi the emoees in office of the Respondent's president. Their conversation, reprented ath matter of the eloee in as sti unre- she testified, lasted about an hour. Although she stated i ut ad te mae of t he alenges. Thus the Re- that their talk about the Union lasted only about 3 min- spondent contends the pendin g c allenges. Ts to barga utes, it is clear that the purpose of this meeting with Gil- spo t on bert related specifically to his posting the notice of the wit the Unon. union meeting. She did not deny that she told him that a Citing Allis-Chalmers Corporation, 234 NLRB 350 union meeting of employees was against company policy. (1978), the General Counsel contends that pending post- She admitted saying that employees could be terminated election challenges an employer may not with impunity if there was a "lack of communication." She also ad- institute unilateral changes. In Allis-Chalmers, however, mitted asking him which employees were involved, and the postelection issue involved the employer's objections then followed by asking him what his grievances were. to conduct affecting the results of the election which the His grievance then was the Respondent had failed to union had won. Challenged ballots were not determina- give him a 50-cent-an-hour pay increase. (This was tive. In Allis-Chalmers the employer knew the union had before Neville told employees that the Company was been designated by a majority of those voting and would violating the Fair Labor Standards Act.) be certified, absent the election being set aside. The em- Inasmuch as Gilbert's testimony was largely undisput- ployer raised the objection issue and therefore acted at ed by Artigues, although there are some differences in its peril should that issue be resolved against it. emphasis, I find that on June 18, as alleged, the Respond- uch is not the case here The vote here did not dem- ent through Artigues orally interrogated an employee onstrate the Union's majority status. Challenges are de- concerning his and others' union activity, orally threat- terminative, some of which were made by the Union. ened to discharge employees because of their union or Thus even if it is finally found that a majority voted for other protected activity, and solicited employee com- the Union, I conclude that the Respondent did not plaints and grievances. All of this, I conclude, was viola- commit an unfair labor practice by making the unilateral tive of Section 8(a)(1) of the Act. change. Cooks Markets, Inc., 159 NLRB 1182 (1966). c. The vacation and holiday notice Iv. THE CHALLENGES On August I the Respondent posted a notice on the As indicated above, the principal issue with regard to subject of vacation, sick leave, and holiday pay for both the challenged ballots concerns whether the strike of the salaried and full-time maintenance (hourly and June 23 was an economic or an unfair labor practice weekly) employees. The memorandum for maintenance strike. Having concluded that it was and continued to be employees has the following: an economic strike, it follows that the striking employees could be permanently replaced and those replacements Note-This new policy on paid vacation applies eligible to vote, absent a showing by the Union that they to hourly, full-time maintenance personnel who are were hired on a temporary basis. Kable Printing Compa- eligible for a vacation in 1980. ny, 238 NLRB 1092 (1978). There is no such evidence 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to get hurt by attending meetings and stuff like this" and Even though there is the handwritten note "revised" by that "the Union would only get us in trouble." the date of "8/1/80," it is clear that the policy was From the generally credible testimony of the General posted on August 1 and did by its terms offer new em- Counsel's witnesses, I do conclude that on June 18 Barry ployees 2 weeks' vacation after 1 year rather than 1 did threaten employees with reprisals, including dis- week. charge, should they continue with their union activity. Although the Respondent contends that the change in There is nothing, however, in any of the witnesses' testi- policy occurred in March and it was through inadver- mony to indicate that Barry made any kind of implied tence that the change was incorrectly posted, I find that promise of increased benefits and improved working con- the policy was announced to employees following the ditions or solicited complaints and grievances. beginning of the organizational campaign, before the It is also alleged that on June 23 Barry threatened em- election and during the time when there were new em- ployees with unspecified reprisals if they selected the ployees as striker replacements. Accordingly, I conclude Union as their collective-bargaining representative. Ben- that this announcement of the change in vacation policy nett did testify that on that day Barry told several of the made particularly applicable to striker replacements nec- maintenance employees "the only thing y'all are going to essarily had an intimidating and coercive effect on the get out of this union shit is hurt." Inasmuch as this state- rights of employees to engage in protected concerted ac- ment was made to maintenance employees in the context tivity and was therefore violative of Section 8(a)(l). of the confrontation that they were then having with the Company concerning the matter of taking beeper assign- 4. The refusal to bargain ments, I conclude that in fact such amounted to a gener- U o or ao Nvb I t p alized threat. It was therefore violative of SectionUndeniably, on or about November 1 the Respondent 8(a)(l), notwithstanding that the ultimate issue over announced a change in its health, accident, and life insur- which the three employees were discharged was their ance plan to all employees, including those in the bar- having engaged in unprotected activity. gaining unit. The Respondent unilaterally and without negotiating with the Union changed the plan by assum- b. Patricia Artigues ing all of the premiums. .- _.„ „ , , ~~The Union had not at the time demonstrated that it On the afternoon of June 18 Gilbert was called to the Tenion a not at the emeestrate batgit office of the Respondent's president. Their conversation, represented a majority of the employees in the bargain- she testified, lasted about an hour. Although she stated ing unit and the matte o challenges. Thus the Re- that their talk about the Union lasted only about 3 min- solved because of the pd challenges. Thus th Re- ^ utes, it is clear that the purpose of this meeting with Gil- sodn c onte bert related specifically to his Posting the notice of the wito the Union. union meeting. She did not deny that she told him that a Citing Al- Corporati 234 N 350 union meeting of employees was against company policy. s (1978), the General Counsel contends that pending post- She admitted saying that employees could be terminated e lec tio n challenges an employer may not with impunity if there was a "lack of communication." She also ad- in stit u t e unilateral c h an ge s. I n Allis-Chalmers, however, mitted asking him which employees were involved, and th e postelection issue involved the employer's objections then followed by asking him what his grievances were. to conduct affecting he results of the election which the His grievance then was the Respondent had failed to unio n had w o n . Challenged ballots were not determina- give him a 50-cent-an-hour pay increase. (This was tive. In Allis-Chalmers the employer knew the union had before Neville told employees that the Company was been designated by a majority of those voting and would violating the Fair Labor Standards Act.) b e certified, absent the election being set aside. The em- Inasmuch as Gilbert's testimony was largely undisput- ployer raised the objection issue and therefore acted at ed by Artigues, although there are some differences in it s peril s ho uld t h at issu e b e resol v ed ag ainst it. emphasis, I find that on June 18, as alleged, the Respond- Suc h is not the case here. The vote here did not dem- ent through Artigues orally interrogated an employee onstrate the Union's majority status. Challenges are de- concerning his and others' union activity, orally threat- terminative, some of which were made by the Union. ened to discharge employees because of their union or Thus even if it is finally found that a majority voted for other protected activity, and solicited employee com- the Union, I conclude that the Respondent did not plaints and grievances. All of this, I conclude, was viola- commit an unfair labor practice by making the unilateral tive of Section 8(a)(1) of the Act. change. Cooks Markets, Inc., 159 NLRB 1182 (1966). c. The vacation and holiday notice I v . T H E CHALLENGES On August I the Respondent posted a notice on the A s indicated above, the principal issue with regard to subject of vacation, sick leave, and holiday pay for both the challenged ballots concerns whether the strike of the salaried and full-time maintenance (hourly and Ju"e 23 was an economic or an unfair labor practice weekly) employees. The memorandum for maintenance strike. Having concluded that it was and continued to be employees has the following: an economic strike, it follows that the striking employees could be permanently replaced and those replacements Note-This new policy on paid vacation applies eligible to vote, absent a showing by the Union that they to hourly, full-time maintenance personnel who are were hired on a temporary basis. Kable Printing Compa- eligible for a vacation in 1980. ny, 238 NLRB 1092 (1978). There is no such evidence 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to get hurt by attending meetings and stuff like this" and Even though there is the handwritten note "revised" by that "the Union would only get us in trouble." the date of "8/1/80," it is clear that the policy was From the generally credible testimony of the General posted on August 1 and did by its terms offer new em- Counsel's witnesses, I do conclude that on June 18 Barry ployees 2 weeks' vacation after 1 year rather than 1 did threaten employees with reprisals, including dis- week. charge, should they continue with their union activity. Although the Respondent contends that the change in There is nothing, however, in any of the witnesses' testi- policy occurred in March and it was through inadver- mony to indicate that Barry made any kind of implied tence that the change was incorrectly posted, I find that promise of increased benefits and improved working con- the policy was announced to employees following the ditions or solicited complaints and grievances. beginning of the organizational campaign, before the It is also alleged that on June 23 Barry threatened em- election and during the time when there were new em- ployees with unspecified reprisals if they selected the ployees as striker replacements. Accordingly, I conclude Union as their collective-bargaining representative. Ben- that this announcement of the change in vacation policy nett did testify that on that day Barry told several of the made particularly applicable to striker replacements nec- maintenance employees "the only thing y'all are going to essarily had an intimidating and coercive effect on the get out of this union shit is hurt." Inasmuch as this state- rights of employees to engage in protected concerted ac- ment was made to maintenance employees in the context tivity and was therefore violative of Section 8(a)(l). of the confrontation that they were then having with the Company concerning the matter of taking beeper assign- 4. The refusal to bargain ments, I conclude that in fact such amounted to a gener- U o or ao Nvb I t p alized threat. It was therefore violative of SectionUndeniably, on or about November 1 the Respondent 8(a)(l), notwithstanding that the ultimate issue over announced a change in its health, accident, and life insur- which the three employees were discharged was their ance plan to all employees, including those in the bar- having engaged in unprotected activity. g aini n g unit. The Respondent unilaterally and without negotiating with the Union changed the plan by assum- b. Patricia Artigues ing all of the premiums. .- _.„ „ , , ~~The Union had not at the time demonstrated that it On the afternoon of June 18 Gilbert was called to the Tenion a not at the emeestrate batgit office of the Respondent's president. Their conversation, represented a majority of the employees in the bargain- she testified, lasted about an hour. Although she stated ing unit and the matte o challenges. Thus the Re- that their talk about the Union lasted only about 3 min- solved because of the pd challenges. Thus th Re- ^ utes, it is clear that the purpose of this meeting with Gil- sodn c onte bert related specifically to his Posting the notice of the wito the Union. union meeting. She did not deny that she told him that a Citing Al- Corporati 234 N 350 union meeting of employees was against company policy. s (1978), the General Counsel contends that pending post- She admitted saying that employees could be terminated e lec tio n challenges an employer may not with impunity if there was a "lack of communication." She also ad- in stit u t e unilateral c h an ge s. I n Allis-Chalmers, however, mitted asking him which employees were involved, and th e postelection issue involved the employer's objections then followed by asking him what his grievances were. to conduct affecting he results of the election which the His grievance then was the Respondent had failed to unio n had w o n . Challenged ballots were not determina- give him a 50-cent-an-hour pay increase. (This was tive. In Allis-Chalmers the employer knew the union had before Neville told employees that the Company was been designated by a majority of those voting and would violating the Fair Labor Standards Act.) b e certified, absent the election being set aside. The em- Inasmuch as Gilbert's testimony was largely undisput- ployer raised the objection issue and therefore acted at ed by Artigues, although there are some differences in it s peril should that issue be resolved against it. emphasis, I find that on June 18, as alleged, the Respond- Suc h is not the case here. The vote here did not dem- ent through Artigues orally interrogated an employee onstrate the Union's majority status. Challenges are de- concerning his and others' union activity, orally threat- terminative, some of which were made by the Union. ened to discharge employees because of their union or Thus even if it is finally found that a majority voted for other protected activity, and solicited employee com- the Union, I conclude that the Respondent did not plaints and grievances. All of this, I conclude, was viola- commit an unfair labor practice by making the unilateral tive of Section 8(a)(1) of the Act. change. Cooks Markets, Inc., 159 NLRB 1182 (1966). c. The vacation and holiday notice I v . T H E CHALLENGES On August I the Respondent posted a notice on the A s indicated above, the principal issue with regard to subject of vacation, sick leave, and holiday pay for both the challenged ballots concerns whether the strike of the salaried and full-time maintenance (hourly and Ju"e 23 was an economic or an unfair labor practice weekly) employees. The memorandum for maintenance strike. Having concluded that it was and continued to be employees has the following: an economic strike, it follows that the striking employees could be permanently replaced and those replacements Note-This new policy on paid vacation applies eligible to vote, absent a showing by the Union that they to hourly, full-time maintenance personnel who are were hired on a temporary basis. Kable Printing Compa- eligible for a vacation in 1980. ny, 238 NLRB 1092 (1978). There is no such evidence 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to get hurt by attending meetings and stuff like this" and Even though there is the handwritten note "revised" by that "the Union would only get us in trouble." the date of "8/1/80," it is clear that the policy was From the generally credible testimony of the General posted on August 1 and did by its terms offer new em- Counsel's witnesses, I do conclude that on June 18 Barry ployees 2 weeks' vacation after 1 year rather than 1 did threaten employees with reprisals, including dis- week. charge, should they continue with their union activity. Although the Respondent contends that the change in There is nothing, however, in any of the witnesses' testi- policy occurred in March and it was through inadver- mony to indicate that Barry made any kind of implied tence that the change was incorrectly posted, I find that promise of increased benefits and improved working con- the policy was announced to employees following the ditions or solicited complaints and grievances. beginning of the organizational campaign, before the It is also alleged that on June 23 Barry threatened em- election and during the time when there were new em- ployees with unspecified reprisals if they selected the ployees as striker replacements. Accordingly, I conclude Union as their collective-bargaining representative. Ben- that this announcement of the change in vacation policy nett did testify that on that day Barry told several of the made particularly applicable to striker replacements nec- maintenance employees "the only thing y'all are going to essarily had an intimidating and coercive effect on the get out of this union shit is hurt." Inasmuch as this state- rights of employees to engage in protected concerted ac- ment was made to maintenance employees in the context tivity and was therefore violative of Section 8(a)(l). of the confrontation that they were then having with the Company concerning the matter of taking beeper assign- 4. The refusal to bargain ments, I conclude that in fact such amounted to a gener- U o or ao Nvb I t p alized threat. It was therefore violative of SectionUndeniably, on or about November 1 the Respondent 8(a)(l), notwithstanding that the ultimate issue over announced a change in its health, accident, and life insur- which the three employees were discharged was their ance plan to all employees, including those in the bar- having engaged in unprotected activity. g aini n g unit. The Respondent unilaterally and without negotiating with the Union changed the plan by assum- b. Patricia Artigues ing all of the premiums. .- _.„ „ , , ~~The Union had not at the time demonstrated that it On the afternoon of June 18 Gilbert was called to theenion a not at the emeestrate batgit office of the Respondent's president. Their conversation, represented a majority of the employees in the bargain- she testified, lasted about an hour. Although she stated ing unit and the matte o challenges. Thus the Re- that their talk about the Union lasted only about 3 min- solved because of the pd challenges. Thus th Re- ^ utes, it is clear that the purpose of this meeting with Gil- sodn c onte bert related specifically to his Posting the notice of the wito the Union. union meeting. She did not deny that she told him that a Citing Al- Corporati 234 N 350 union meeting of employees was against company policy. s (1978), the General Counsel contends that pending post- She admitted saying that employees could be terminated e lec tio n challenges an employer may not with impunity if there was a "lack of communication." She also ad- in stit u t e unilateral c h an ge s. I n Allis-Chalmers, however, mitted asking him which employees were involved, and th e postelection issue involved the employer's objections then followed by asking him what his grievances were. to conduct affecting he results of the election which the His grievance then was the Respondent had failed to unio n had w o n . Challenged ballots were not determina- give him a 50-cent-an-hour pay increase. (This was tiv e. I n Allis-Chalmers the employer knew the union had before Neville told employees that the Company was been designated by a majority of those voting and would violating the Fair Labor Standards Act.) b e certified, absent the election being set aside. The em- Inasmuch as Gilbert's testimony was largely undisput- ployer raised the objection issue and therefore acted at ed by Artigues, although there are some differences in it s peril should that issue be resolved against it. emphasis, I find that on June 18, as alleged, the Respond- Suc h is not the case here. The vote here did not dem- ent through Artigues orally interrogated an employee onstrate the Union's majority status. Challenges are de- concerning his and others' union activity, orally threat- terminative, some of which were made by the Union. ened to discharge employees because of their union or Thus even if it is finally found that a majority voted for other protected activity, and solicited employee com- the Union, I conclude that the Respondent did not plaints and grievances. All of this, I conclude, was viola- commit an unfair labor practice by making the unilateral tive of Section 8(a)(1) of the Act. change. Cooks Markets, Inc., 159 NLRB 1182 (1966). c. The vacation and holiday notice I v . T H E CHALLENGES On August I the Respondent posted a notice on the A s indicated above, the principal issue with regard to subject of vacation, sick leave, and holiday pay for both the challenged ballots concerns whether the strike of the salaried and full-time maintenance (hourly and Ju"e 23 was an economic or an unfair labor practice weekly) employees. The memorandum for maintenance strike. Having concluded that it was and continued to be employees has the following: an economic strike, it follows that the striking employees could be permanently replaced and those replacements Note-This new policy on paid vacation applies eligible to vote, absent a showing by the Union that they to hourly, full-time maintenance personnel who are were hired on a temporary basis. Kable Printing Compa- eligible for a vacation in 1980. ny, 238 NLRB 1092 (1978). There is no such evidence LAKE DEVELOPMENT MANAGEMENT CO. 799 here, hence the union challenges to the votes of strike re- v. THE EFFECTS OF THE UNFAIR LABOR PRACTICES placements should be overruled, and the ballots of the UPON COMMERCE following employees counted: Gaylord Baham, Jr., The unfair labor practices found above occurring in Lionel Boudreaux, Whitfield Clark, Dennis Chun, Mario connection with the Respondent's business have a close, Garetano, Randall Kowalewski, Lance Lanier, George intimate, and substantial relationship to trade, traffic, and Lara, Stephen Martin, Edward Montz, Jr., Kent commerce among the several States and tend to lead to Murphy, Joseph West, and Richard Williams. labor disputes burdening and obstructing commerce and The Employer challenged the ballots of James Rober- the free flow thereof within the meaning of Section 2(6) son, David Capretto, Jeff Johnson, Paul David, Willie and (7) of the Act. Clark, Frank Carroll, and Mike Giroux because they were "employed elsewhere." There is a presumption of VI. THE REMEDY continued eligibility for economic strikers, which is not Having concluded that the Respondent has engaged in rebutted by the mere fact that one takes a job elsewhere. certain unfair labor practices, I shall recommend that it Pacific Tile and Porcelain Company, 137 NLRB 1358 cease and desist therefrom and take certain affirmative (1962). And here there is otherwise no evidence that action designed to effectuate the purposes of the Act. these employees abandoned their employment. Quite the Further having concluded that certain challenges be contrary, they all appeared at the polls and voted. Ac- overruled, I recommend that Case 15-RC-6650 be re- cordingly, I conclude that the challenges to these ballots manded to the Regional Director for purposes of open- should be overruled and the votes counted. ing and counting these ballots, issuing a revised tally of The Union also challenged the ballot of Robert ballots and certifying the results of the election or the Gossen because he is a supervisor. I find insufficient evi- Union as the bargaining representative, as the case may dence in the record to sustain the Union's position that be. he has the authority set forth in Section 2(11) of the Act. Upon the foregoing findings of fact, conclusions of On the other hand Gossen's testimony concerning his law, the entire record in this matter, and pursuant to the duties, as an onsite maintenance man, was credible. Ac- provisions of Section 10(c) of the Act, I hereby issue the cordingly, I recommend that the challenge to this ballot following recommended: be overruled. ORDER 5 The Union challenged the ballot of Henry Gonzales, Jr. Although he was challenged as a "permanent replace- The Respondent, Lake Development Management ment" the record supports the conclusion that he was, in Company, Metaire, Louisiana, its officers, agents, suc- fact, a security guard. Gonzales was a member of the cessors, and assigns, shall: New Orleans police department and was hired, accord- 1. Cease and desist from: ing to Artigues, as a security guard and also to do small (a) Threatenng employees wth discharge or other re- amounts of maintenance. While she testified that he went ativit s h o f d the y e n ga ge in u n io n o r o t he r c o n cer t ed activity for their mutual aid or protection. on full-time status in July, as a maintenance man, she did (b) Interrogating employees concerning heir interest not testify that he gave up his guard duties. Some days in or activity on behalf of the Union. before the election he escorted Gilbert off the Respond- (c) Soliciting grievances from employees to discourage ent's premises after flashing his badge. Thus even if Gon- their activity on behalf of the Union. zales began putting in more time as a maintenance em- (d)Instituting or announcing the institution of benefits ployee in July, the evidence reveals that he continued to to employees during the course of a union organizational work as a guard. Therefore he was ineligible to vote and campaign. the challenge to his ballot should be sustained. (e) In any like or related manner interfering with, re- And the Union challenged the ballot of Lloyd Hurl- straining, or coercing employees in the exercise of the bert because he said he was a porter. This, of itself, is an rights guaranteed them by Section 7 of the Act. 6 insufficient basis to deny a voting employee the right to 2. Take the following affirmative action: have his ballot counted. There is no evidence concerning (a) Post at its Metairie, Louisiana, facility copies of the his duties and only one hearsay statement that he was a attached notice marked "Appendix." 7 Copies of the porter-a job classification excluded from the bargaining unit. I recommend that the challenge to his ballot be ' In the event no exceptions are filed as provided by Sec. 102.46 of the unit. I recommend that the challeRules and Regulations of the National Labor Relations Board, the find- overruled. ings, conclusions, and recommended Order herein shall, as provided in Finally, having concluded that Bennett, Gilbert, and Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Toups were discharged for cause, I conclude that the become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. challenges to their ballots be sustained. f The unfair labor practices engaged in by the Respondent in this I recommend that Case 15-RC-6650 be remanded to matter are not so pervasive as to suggest a proclivity to violate the Act. the Regional Director for Region 15, that the challenges Therefore the narrow injunctive relief is appropriate. See Hickmoll Foods. Inc., 242 NLRB 1357 (1979). overruled be opened and counted, that a revised tally of In the event that this Order is enforced by a Judgment of a United ballots issue, and that the Regional Director issue the ap- States Court of Appeals, the words in the notice reading "Posted by propriate certification. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." LAKE DEVELOPMENT MANAGEMENT CO. 799 here, hence the union challenges to the votes of strike re- v. THE EFFECTS OF THE UNFAIR LABOR PRACTICES placements should be overruled, and the ballots of the UPON COMMERCE following employees counted: Gaylord Baham, Jr., The unfair labor practices found above occurring in Lionel Boudreaux, Whitfield Clark, Dennis Chun, Mario connection with the Respondent's business have a close, Garetano, Randall Kowalewski, Lance Lanier, George intimate, and substantial relationship to trade, traffic, and Lara, Stephen Martin, Edward Montz, Jr., Kent commerce among the several States and tend to lead to Murphy, Joseph West, and Richard Williams. labor disputes burdening and obstructing commerce and The Employer challenged the ballots of James Rober- the free flow thereof within the meaning of Section 2(6) son, David Capretto, Jeff Johnson, Paul David, Willie and (7) of the Act. Clark, Frank Carroll, and Mike Giroux because they were "employed elsewhere." There is a presumption of VI. THE REMEDY continued eligibility for economic strikers, which is not Having concluded that the Respondent has engaged in rebutted by the mere fact that one takes a job elsewhere. certain unfair labor practices, I shall recommend that it Pacific Tile and Porcelain Company, 137 NLRB 1358 cease and desist therefrom and take certain affirmative (1962). And here there is otherwise no evidence that action designed to effectuate the purposes of the Act. these employees abandoned their employment. Quite the Further having concluded that certain challenges be contrary, they all appeared at the polls and voted. Ac- overruled, I recommend that Case 15-RC-6650 be re- cordingly, I conclude that the challenges to these ballots manded to the Regional Director for purposes of open- should be overruled and the votes counted,.ing and counting these ballots, issuing a revised tally of The Union also challenged the ballot of Robert ballots and certifying the results of the election or the Gossen because he is a supervisor. I find insufficient evi- Union as the bargaining representative, as the case may dence in the record to sustain the Union's position that be. he has the authority set forth in Section 2(11) of the Act. UPOn t h e foregoing findings of fact, conclusions of On the other hand Gossen's testimony concerning his la w , t h e e n t ir e r e c o r d i n t h i s m a tte r, a n d pursuant to the duties, as an onsite maintenance man, was credible. Ac- provisions of Section 10(c) of the Act, I hereby issue the cordingly, I recommend that the challenge to this ballot following recommended: be overruled.ORDER 5 The Union challenged the ballot of Henry Gonzales, Jr. Although he was challenged as a "permanent replace- T h e Respondent, Lake Development Management ment" the record supports the conclusion that he was, in Company, Metairie, Louisiana, its officers, agents, suc- fact, a security guard. Gonzales was a member of the cessors, and assigns, shall: New Orleans police department and was hired, accord- 1. Cease and desist from: ing to Artigues, as a security guard and also to do small ( a ) T h r e a t e n in g employees w it h discharge or other re- amounts of maintenance. While she testified that he went prisals s h o uld t h e y e n g a g e in u n io n o r o t h e r c o n c e r t e d activity for their mutual aid or protection. on full-time status in July, as a maintenance man, she did b) Interrogating employees concerning their interest not testify that he gave up his guard duties. Some days in or activity on behalf of the Union. before the election he escorted Gilbert off the Respond- (c) Soliciting grievances from employees to discourage ent's premises after flashing his badge. Thus even if Gon- their activity on behalf of the Union. zales began putting in more time as a maintenance em- (d)Instituting or announcing the institution of benefits ployee in July, the evidence reveals that he continued to to employees during the course of a union organizational work as a guard. Therefore he was ineligible to vote and campaign. the challenge to his ballot should be sustained. (e) In any like or related manner interfering with, re- And the Union challenged the ballot of Lloyd Hurl- straining, or coercing employees in the exercise of the bert because he said he was a porter. This, of itself, is an rights guaranteed them by Section 7 of the Act. 6 insufficient basis to deny a voting employee the right to 2. Take the following affirmative action: have his ballot counted. There is no evidence concerning (a) Post at its Metairie, Louisiana, facility copies of the his duties and only one hearsay statement that he was a attached notice marked "Appendix." 7 Copies of the porter-a job classification excluded from the bargaining------- unit. I recommend that the challenge to his ballot be_ 1 " 'he event no exceptions are filed as provided by Sec. 102 46 of the unit. I-recommend that the challenge to his ballot be Rules and Regulations of the National Labor Relations Board, the find- overruled. ings, conclusions, and recommended Order herein shall, as provided in Finally, having concluded that Bennett, Gilbert, and Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Toups were discharged for cause, I conclude that the become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. Challenges to their ballots be sustained. f The unfair labor practices engaged in by the Respondent in this I recommend that Case 15-RC-6650 be remanded to matter are not so pervasive as to suggest a proclivity to violate the Act. the Regional Director for Region 15, that the challenges Therefore the narrow injunctive relief is appropriate. See Hickmoll Foods. Inc., 242 NLRB 1357 (1979). overruled be opened and counted, that a revised tally of ,In the event that this Order is enforced by a Judgment of a United ballots issue, and that the Regional Director issue the ap- Stales Court of Appeals, the words in the notice reading "Posted by propriate Certification. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United Slates Court of Appeals Enforcing an Order of the National Labor Relations Board." LAKE DEVELOPMENT MANAGEMENT CO. 799 here, hence the union challenges to the votes of strike re- v. THE EFFECTS OF THE UNFAIR LABOR PRACTICES placements should be overruled, and the ballots of the UPON COMMERCE following employees counted: Gaylord Baham, Jr., The unfair labor practices found above occurring in Lionel Boudreaux, Whitfield Clark, Dennis Chun, Mario connection with the Respondent's business have a close, Garetano, Randall Kowalewski, Lance Lanier, George intimate, and substantial relationship to trade, traffic, and Lara, Stephen Martin, Edward Montz, Jr., Kent commerce among the several States and tend to lead to Murphy, Joseph West, and Richard Williams. labor disputes burdening and obstructing commerce and The Employer challenged the ballots of James Rober- the free flow thereof within the meaning of Section 2(6) son, David Capretto, Jeff Johnson, Paul David, Willie and (7) of the Act. Clark, Frank Carroll, and Mike Giroux because they were "employed elsewhere." There is a presumption of VI. THE REMEDY continued eligibility for economic strikers, which is not Having concluded that the Respondent has engaged in rebutted by the mere fact that one takes a job elsewhere. certain unfair labor practices, I shall recommend that it Pacific Tile and Porcelain Company, 137 NLRB 1358 cease and desist therefrom and take certain affirmative (1962). And here there is otherwise no evidence that action designed to effectuate the purposes of the Act. these employees abandoned their employment. Quite the Further having concluded that certain challenges be contrary, they all appeared at the polls and voted. Ac- overruled, I recommend that Case 15-RC-6650 be re- cordingly, I conclude that the challenges to these ballots manded to the Regional Director for purposes of open- should be overruled and the votes counted,.ing and counting these ballots, issuing a revised tally of The Union also challenged the ballot of Robert ballots and certifying the results of the election or the Gossen because he is a supervisor. I find insufficient evi- Union as the bargaining representative, as the case may dence in the record to sustain the Union's position that be. he has the authority set forth in Section 2(11) of the Act. UPOn t h e foregoing findings of fact, conclusions of On the other hand Gossen's testimony concerning his la w , t h e e n t ir e r e c o rd i n t h i s m a tte r, a n d pursuant to the duties, as an onsite maintenance man, was credible. Ac- provisions of Section 10(c) of the Act, I hereby issue the cordingly, I recommend that the challenge to this ballot following recommended: be overruled.ORDER 5 The Union challenged the ballot of Henry Gonzales, Jr. Although he was challenged as a "permanent replace- T h e Respondent, Lake Development Management ment" the record supports the conclusion that he was, in Company, Metairie, Louisiana, its officers, agents, suc- fact, a security guard. Gonzales was a member of the cessors, and assigns, shall: New Orleans police department and was hired, accord- 1. Cease and desist from: ing to Artigues, as a security guard and also to do small ( a ) T h r e a t e n in g employees w it h discharge or other re- amounts of maintenance. While she testified that he went prisals s h o uld t h e y e n g a g e in u n io n o r o t h e r c o n c e r t e d activity for their mutual aid or protection. on full-time status in July, as a maintenance man, she did b) Interrogating employees concerning their interest not testify that he gave up his guard duties. Some days in or activity on behalf of the Union. before the election he escorted Gilbert off the Respond- (c) Soliciting grievances from employees to discourage ent's premises after flashing his badge. Thus even if Gon- their activity on behalf of the Union. zales began putting in more time as a maintenance em- (d)Instituting or announcing the institution of benefits ployee in July, the evidence reveals that he continued to to employees during the course of a union organizational work as a guard. Therefore he was ineligible to vote and campaign. the challenge to his ballot should be sustained. (e) In any like or related manner interfering with, re- And the Union challenged the ballot of Lloyd Hurl- straining, or coercing employees in the exercise of the bert because he said he was a porter. This, of itself, is an rights guaranteed them by Section 7 of the Act. 6 insufficient basis to deny a voting employee the right to 2. Take the following affirmative action: have his ballot counted. There is no evidence concerning (a) Post at its Metairie, Louisiana, facility copies of the his duties and only one hearsay statement that he was a attached notice marked "Appendix." 7 Copies of the porter-a job classification excluded from the bargaining------- unit. I recommend that the challenge to his ballot be_ 1 " 'he event no exceptions are filed as provided by Sec. 102 46 of the unit. I-recommend that the challenge to his ballot be Rules and Regulations of the National Labor Relations Board, the find- overruled. ings, conclusions, and recommended Order herein shall, as provided in Finally, having concluded that Bennett, Gilbert, and Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Toups were discharged for cause, I conclude that the become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. Challenges to their ballots be sustained. f The unfair labor practices engaged in by the Respondent in this I recommend that Case 15-RC-6650 be remanded to matter are not so pervasive as to suggest a proclivity to violate the Act. the Regional Director for Region 15, that the challenges Therefore the narrow injunctive relief is appropriate. See Hickmoll Foods. Inc., 242 NLRB 1357 (1979). overruled be opened and counted, that a revised tally of ,In the event that this Order is enforced by a Judgment of a United ballots issue, and that the Regional Director issue the ap- Slates Court of Appeals, the words in the notice reading "Posted by propriate Certification. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United Slates Court of Appeals Enforcing an Order of the National Labor Relations Board." LAKE DEVELOPMENT MANAGEMENT CO. 799 here, hence the union challenges to the votes of strike re- v. THE EFFECTS OF THE UNFAIR LABOR PRACTICES placements should be overruled, and the ballots of the UPON COMMERCE following employees counted: Gaylord Baham, Jr., The unfair labor practices found above occurring in Lionel Boudreaux, Whitfield Clark, Dennis Chun, Mario connection with the Respondent's business have a close, Garetano, Randall Kowalewski, Lance Lanier, George intimate, and substantial relationship to trade, traffic, and Lara, Stephen Martin, Edward Montz, Jr., Kent commerce among the several States and tend to lead to Murphy, Joseph West, and Richard Williams. labor disputes burdening and obstructing commerce and The Employer challenged the ballots of James Rober- the free flow thereof within the meaning of Section 2(6) son, David Capretto, Jeff Johnson, Paul David, Willie and (7) of the Act. Clark, Frank Carroll, and Mike Giroux because they were "employed elsewhere." There is a presumption of VI. THE REMEDY continued eligibility for economic strikers, which is not Having concluded that the Respondent has engaged in rebutted by the mere fact that one takes a job elsewhere. certain unfair labor practices, I shall recommend that it Pacific Tile and Porcelain Company, 137 NLRB 1358 cease and desist therefrom and take certain affirmative (1962). And here there is otherwise no evidence that action designed to effectuate the purposes of the Act. these employees abandoned their employment. Quite the Further having concluded that certain challenges be contrary, they all appeared at the polls and voted. Ac- overruled, I recommend that Case 15-RC-6650 be re- cordingly, I conclude that the challenges to these ballots manded to the Regional Director for purposes of open- should be overruled and the votes counted,.ing and counting these ballots, issuing a revised tally of The Union also challenged the ballot of Robert ballots and certifying the results of the election or the Gossen because he is a supervisor. I find insufficient evi- Union as the bargaining representative, as the case may dence in the record to sustain the Union's position that be. he has the authority set forth in Section 2(11) of the Act. UPOn t h e foregoing findings of fact, conclusions of On the other hand Gossen's testimony concerning his la w , t h e e n t ir e r e c o rd i n t h i s m a tte r, a n d pursuant to the duties, as an onsite maintenance man, was credible. Ac- provisions of Section 10(c) of the Act, I hereby issue the cordingly, I recommend that the challenge to this ballot following recommended: be overruled.ORDER 5 The Union challenged the ballot of Henry Gonzales, Jr. Although he was challenged as a "permanent replace- T h e Respondent, Lake Development Management ment" the record supports the conclusion that he was, in Company, Metairie, Louisiana, its officers, agents, suc- fact, a security guard. Gonzales was a member of the cessors, and assigns, shall: New Orleans police department and was hired, accord- 1. Cease and desist from: ing to Artigues, as a security guard and also to do small ( a ) T h r e a t e n in g employees w it h discharge or other re- amounts of maintenance. While she testified that he went prisals s h o uld t h e y e n g a g e in u n io n o r o t h e r c o n c e r t e d activity for their mutual aid or protection. on full-time status in July, as a maintenance man, she did b) Interrogating employees concerning their interest not testify that he gave up his guard duties. Some days in or activity on behalf of the Union. before the election he escorted Gilbert off the Respond- (c) Soliciting grievances from employees to discourage ent's premises after flashing his badge. Thus even if Gon- their activity on behalf of the Union. zales began putting in more time as a maintenance em- (d)Instituting or announcing the institution of benefits ployee in July, the evidence reveals that he continued to to employees during the course of a union organizational work as a guard. Therefore he was ineligible to vote and campaign. the challenge to his ballot should be sustained. (e) In any like or related manner interfering with, re- And the Union challenged the ballot of Lloyd Hurl- straining, or coercing employees in the exercise of the bert because he said he was a porter. This, of itself, is an rights guaranteed them by Section 7 of the Act. 6 insufficient basis to deny a voting employee the right to 2. Take the following affirmative action: have his ballot counted. There is no evidence concerning (a) Post at its Metairie, Louisiana, facility copies of the his duties and only one hearsay statement that he was a attached notice marked "Appendix." 7 Copies of the porter-a job classification excluded from the bargaining------- unit. I recommend that the challenge to his ballot be_ 1 " 'he event no exceptions are filed as provided by Sec. 102 46 of the unit. I-recommend that the challenge to his ballot be Rules and Regulations of the National Labor Relations Board, the find- overruled. ings, conclusions, and recommended Order herein shall, as provided in Finally, having concluded that Bennett, Gilbert, and Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Toups were discharged for cause, I conclude that the become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. Challenges to their ballots be sustained. f The unfair labor practices engaged in by the Respondent in this I recommend that Case 15-RC-6650 be remanded to matter are not so pervasive as to suggest a proclivity to violate the Act. the Regional Director for Region 15, that the challenges Therefore the narrow injunctive relief is appropriate. See Hickmoll Foods. Inc., 242 NLRB 1357 (1979). overruled be opened and counted, that a revised tally of ,In the event that this Order is enforced by a Judgment of a United ballots issue, and that the Regional Director issue the ap- Stales Court of Appeals, the words in the notice reading "Posted by propriate Certification. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United Slates Court of Appeals Enforcing an Order of the National Labor Relations Board." 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, on forms provided by the Regional Director for IT IS FURTHER ORDERED that Case 15-RC-6650 be re- Region 15, after being duly signed by Respondent's au- manded to the Regional Director for Region 15 to open thorized representative, shall be posted by the Respond- and count the following ballots: Gaylord Baham, Jr., ent immediately upon receipt thereof, and be maintained Lionel Boudreaux, David Capretto, Frank Carroll, by it for 60 consecutive days thereafter, in conspicuous Dennis Chun, Willie Clark, Paul David, Mario Garetano, places, including all places where notices to employees Mike Giroux, Robert Gossen, Lloyd Hurlbert, Jeff John- are customarily posted. Reasonable steps shall be taken son, Randall Kowalewski, Lance Lanier, George Lara, by the Respondent to insure that the notices are not al- Stephen Martin, Edward Montz, Jr., Kent Murphy, tered, defaced, or covered by any other material. James Roberson, Joseph West, Richard Williams, and (b) Notify the Regional Director for Region 15, in Whitfield Clark; and to issue a revised tally of ballots writing, within 20 days from the date of this Order, what and appropriate certification. steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint in all re- spects not found herein is dismissed. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, on forms provided by the Regional Director for IT Is FURTHER ORDERED that Case 15-RC-6650 be re- Region 15, after being duly signed by Respondent's au- manded to the Regional Director for Region 15 to open thorized representative, shall be posted by the Respond- and count the following ballots: Gaylord Baham, Jr., ent immediately upon receipt thereof, and be maintained Lionel Boudreaux, David Capretto, Frank Carroll, by it for 60 consecutive days thereafter, in conspicuous Dennis Chun, Willie Clark, Paul David, Mario Garetano, places, including all places where notices to employees Mike Giroux, Robert Gossen, Lloyd Hurlbert, Jeff John- are customarily posted. Reasonable steps shall be taken son, Randall Kowalewski, Lance Lanier, George Lara, by the Respondent to insure that the notices are not al- Stephen Martin, Edward Montz, Jr., Kent Murphy, tered, defaced, or covered by any other material. J a m e s Roberson, Joseph West, Richard Williams, and (b) Notify the Regional Director for Region 15, in Whitfield Clark; and to issue a revised tally of ballots writing, within 20 days from the date of this Order, what and appropriate certification. steps the Respondent has taken to comply herewith. I T I s FURTHER ORDERED that the complaint in all re- spects not found herein is dismissed. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, on forms provided by the Regional Director for IT Is FURTHER ORDERED that Case 15-RC-6650 be re- Region 15, after being duly signed by Respondent's au- manded to the Regional Director for Region 15 to open thorized representative, shall be posted by the Respond- and count the following ballots: Gaylord Baham, Jr., ent immediately upon receipt thereof, and be maintained Lionel Boudreaux, David Capretto, Frank Carroll, by it for 60 consecutive days thereafter, in conspicuous Dennis Chun, Willie Clark, Paul David, Mario Garetano, places, including all places where notices to employees Mike Giroux, Robert Gossen, Lloyd Hurlbert, Jeff John- are customarily posted. Reasonable steps shall be taken son, Randall Kowalewski, Lance Lanier, George Lara, by the Respondent to insure that the notices are not al- Stephen Martin, Edward Montz, Jr., Kent Murphy, tered, defaced, or covered by any other material. J a m e s Roberson, Joseph West, Richard Williams, and (b) Notify the Regional Director for Region 15, in Whitfield Clark; and to issue a revised tally of ballots writing, within 20 days from the date of this Order, what and appropriate certification. steps the Respondent has taken to comply herewith. I T I s FURTHER ORDERED that the complaint in all re- spects not found herein is dismissed. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, on forms provided by the Regional Director for IT Is FURTHER ORDERED that Case 15-RC-6650 be re- Region 15, after being duly signed by Respondent's au- manded to the Regional Director for Region 15 to open thorized representative, shall be posted by the Respond- and count the following ballots: Gaylord Baham, Jr., ent immediately upon receipt thereof, and be maintained Lionel Boudreaux, David Capretto, Frank Carroll, by it for 60 consecutive days thereafter, in conspicuous Dennis Chun, Willie Clark, Paul David, Mario Garetano, places, including all places where notices to employees Mike Giroux, Robert Gossen, Lloyd Hurlbert, Jeff John- are customarily posted. Reasonable steps shall be taken son, Randall Kowalewski, Lance Lanier, George Lara, by the Respondent to insure that the notices are not al- Stephen Martin, Edward Montz, Jr., Kent Murphy, tered, defaced, or covered by any other material. J a m e s Roberson, Joseph West, Richard Williams, and (b) Notify the Regional Director for Region 15, in Whitfield Clark; and to issue a revised tally of ballots writing, within 20 days from the date of this Order, what and appropriate certification. steps the Respondent has taken to comply herewith. I T I s FURTHER ORDERED that the complaint in all re- spects not found herein is dismissed.