Centre Property Management

190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Centre Property Management and Carl Westley Tanner. Case 15-CA-8135 21 February 1985 DECISION AND ORDER REMANDING PROCEEDING BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 18 October 1982 Administrative Law Judge Lawrence W. Cullen issued the attached decision. The Respondent filed exceptions and a brief in sup- port of exceptions. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions only to the extent consistent with this Decision and Order and to remand part of this pro- ceeding to the administrative law judge for recon- sideration under Meyers Industries, 268 NLRB 493 (1984). The Respondent manages apartment complexes at various locations including the facility involved in the instant case. In February 1981 the Respond- ent hired Carl W. Tanner to perform maintenance work. Shortly after he commenced working Tanner discussed the formation of a union with other employees. To this end Tanner informed the employees that they were entitled to an election if 30 percent of the employees signed a petition so re- questing. As set forth in detail in the judge's deci- sion the employees began talking about this idea, the Respondent's manager became involved, and Tanner was subsequently discharged. The judge found that the Respondent discharged Tanner for his protected concerted activity in re- porting plumbing violations at the Respondent's fa- cility to the local authorities and thereby violated Section 8(a)(1) of the Act. The judge further found that the Respondent discharged Tanner for engag- ing in union activities and thereby violated Section 8(a)(3) of the Act. In finding that Tanner's conduct of reporting plumbing code violations to local authorities con- stituted protected concerted activity, the judge relied on Alleluia Cushion Co.,2 and analyzed the 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and, to the extent consistent with this decision, find no basis for reversing the findings Additionally, the Respondent excepts to the judge crediting witnesses ' testimony on some matters and not on others However , "nothing is more common than to believe some and not all" of what a witness says NLRB v Universal Camera Corp, 179 F 2d 749, 754 (2d Cir 1950) 2 221 NLRB 999 (1975) record evidence consistent with that decision. The Board has since overruled Alleluia and adopted the following definition of concerted activity: "[A]n employee's activity [is] `concerted' . . . [when] . . . engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself."3 We shall order that the judge review the record to determine whether Tanner engaged in concerted activity within the Meyers definition, including whether Tanner contacted local authorities concerning plumbing code viola- tions "with or on the authority of other employ- ees." The judge also found that Tanner's discharge was motivated in part by his union activities. A finding that Tanner's act of contacting local au- thorities concerning plumbing violations was not concerted would thus require a mixed-motive anal- ysis under Wright Line.4 We shall accordingly order the judge to reanalyze the case under Wright Line consistent with his ultimate findings. We shall therefore remand the 8(a)(1) and (3) al- legations concerning the discharge of Charging Party Tanner to the judge for analysis, decision, and recommended Order consistent with Meyers Industries, Wright Line, and our other findings and conclusions in this Decision and Order. The judge also concluded that the Respondent, through its supervisor Linda K. Jackson, unlawful- ly interrogated employee Gerald P. Lemoine by asking him if he had signed the petition being cir- culated by Tanner and unlawfully threatened Le- moine by stating, "You better not have signed it." In so doing, one of the factors relied on by the judge was timing: this alleged unlawful interroga- tion and threat occurred "immediately following" Tanner's discharge. As all the relevant circum- stances surrounding the interrogation must be con- sidered, we shall defer ruling on this aspect of the case until the judge reanalyzes Tanner's discharge as set forth above. Rossmore House, 269 NLRB 1176 (1984). ORDER It is further ordered that the administrative law judge shall prepare and serve on the parties a sup- plemental decision containing credibility resolu- tions, findings of fact upon the entire record, con- clusions of law, and a recommended Order, con- sistent with the remand, concerning those sections of the complaint alleging that the discharge of Carl Westley Tanner violated Section 8(a)(3) and (1) of s Meyers Industries, above at 497 4 See Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transporta- tion Management Corp, 462 U S 393 (1983) 274 NLRB No. 29 CENTRE PROPERTY MANAGEMENT the Act. Following service of the supplemental de- cision on the parties, the provisions of Section 102.46 of the Board 's Rules and Regulations shall apply. IT IS FURTHER ORDERED that the remaining alle- gations of the complaint are dismissed. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on May 11 , 1982, at Baton Rouge, Louisiana. The hearing was held pursuant to a complaint issued by the Regional Director for Region 15 of the National Labor Relations Board on June 2, 1981. The complaint is based on a charge filed by Carl Westley Tanner, an individual , on behalf of himself on April 23, 1981. The complaint alleges that Centre Property Management , a partnership (the Respondent) has violated Section 8(a)(1) of the National Labor Rela- tions Act (the Act) by unlawfully interrogating employ- ees concerning their "union activities, sympathies and de- sires" and has violated Section 8(a)(3) and ( 1) of the Act by its February 23, 19811 discharge of Carl Westley Tanner and its failure to reinstate him "because of his membeship in, and activities on behalf of the Union,2 and to discourage union and other concerted activities of its employees " The complaint is joined by the answer of the Respondent wherein it denies the commission of any unfair labor practices . The Respondent also asserts as an affirmative defense in its answer that Tanner was dis- charged because he made unfounded and unwarranted threats and accu- sations against respondent concerning alleged viola- tions of City code provisions and threats of reports of same to Government Officials, among other acts and conduct not related to any membership in, ac- tivities on behalf of or sympathies concerning any union, and that any union activity on the part of the said Carl W. Tanner was purely coincidental with the activities for which he was terminated and were not . . . re- lated to his termination, and that Tanner deliberately provoked his own termination and sought to insulate himself from the adverse con- sequences of same by raising the spectre of union activities and the suggestion that the timing of his discharge must have been related to his union ac- tivities which suggestion is false. Upon the entire record in this proceeding, including my observations of the witnesses who testified herein, and after due consideration of the positions of the par- ties, and memorandums filed by the parties, I make the following 1 All dates are in 1981 unless otherwise stated 2 The Union refers to Local 103 of the United Federation of Independ- ent Unions (the Union or Local 103) FINDINGS OF FACT AND ANALYSIS3 I JURISDICTION 191 The complaint alleges, the Respondent admits, and I find that at the time of the alleged unfair labor practices, the Respondent was at all times material herein an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act4 having during the 12 months preceding the filing of the complaint, a repre- sentative period, derived gross revenues in excess of $1 million and having also purchased and received goods and materials valued in excess of $40,000 from various suppliers located in Baton Rouge, Louisiana, who in turn received said goods and materials from points located di- rectly outside the State of Louisiana. II. THE LABOR ORGANIZATION The Respondent denied in its answer that Local 103 was a labor organization within the meaning of Section 2(5) of the Act and argued at the hearing and in its post- trial memorandum that Local 103 consisted only of Tanner. However, Tanner's unrebutted testimony, as supported by documentation of the Union's constitution (G.C. Exh. 6) and its filings under the Labor Manage- ment Reporting and Disclosure Act (R. Exh. 5), showed that Local 103 was formed by Tanner and other individ- uals in 1977 to represent employees, that it previously engaged in an unsuccessful organizing campaign of an- other employer, collected dues and obtained authoriza- tion cards of employees, and that although it had been "more or less dormant" prior to February 23, it had not been dissolved and Tanner, then an employee of the Re- spondent, was attempting to organize the Respondent's employees to be represented by Local 103. Under these circumstances, I find that Local 103 of the United Feder- ation of Independent Unions is a labor organization within the meaning of Section 2(5) of the Act. See Legal Services For The Elderly Poor, 236 NLRB 485 (1978), wherein the Board held that the definition of a labor or- ganization is sufficiently broad to include an individual representative. III. THE ALLEGED UNFAIR LABOR PRACTICES The Respondent is engaged in the business of manag- ing apartment complexes at various locations in the States of Texas, Mississippi, and Louisiana, including a 620-unit apartment complex, Sherwood Acres I and II in Baton Rouge, Louisiana, which is the only facility in- volved in the instant case. The Charging Party, Carl Westley Tanner, was hired by the Respondent as a maintenance man and com- menced work on February 18, following an interview by the Respondent's resident apartment manager Liz Cla- verie and Respondent's property manager Linda K. Jack- 3 The following includes a composite of the testimony of the witnesses at the hearing which testimony is credited, except insofar, as specific credibility resolutions are made 4 The Respondent's counsel advised at the hearing that Respondent is a partnership rather than a corporation as originally pleaded in the com- plaint 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son.5 Claverie was responsible for the management of the Sherwood Acres I and II apartment complex, a posi- tion she held from June 1980 until March 5, 1981 when she left to assume a position at another apartment com- plex. Jackson was responsible for the property manage- ment of several properties for the Respondent including the Sherwood Acres Complex where Jackson also re- sided Claverie reported to Jackson who assisted Cla- verie as required. Tanner testified as follows: Tanner was shown around the apartment complex by another maintenance man At that time he noted a number of open and missing sewer plugs with toilet paper and waste matter on the ground and was told by the other maintenance man not to re- place the plugs. Tanner said nothing, but he intended to replace the plugs as this is a serious health hazard as the open drains emit waste and sewer gas. Tanner testified he was a member of the Pipefitter Plumbing Union and had also worked as a plumbing inspector for the parish government of Baton Rouge. Tanner worked on Febru- ary 18, 19, and 20 (Wednesday through Friday) and he discussed the formation of a union with Mary Ellen Fer- guson, a housemaid assigned to the complex, and her brother, Major Schaefer, and informed them that the em- ployees could seek an election if 30 percent of the em- ployees signed a petition to do so. Tanner testified further. He did not work the interven- ing Saturday and Sunday but next reported to work on Monday, February 23, at approximately 7:40 a.m. and at that time he gathered with other employees in the lounge facility of the Unit I offices as is the custom of the employees to gather and drink coffee made in an ad- joining kitchen prior to the assignment of their work at 8 a in. Tanner proceeded to discuss the organization of a union among the Respondent's employees with employ- ees Mary Ella Ferguson and Major Schaefer and with an "air conditioning man" at which time he showed them pamphlets issued by the National Labor Relations Board, advised them that he was the president of Local 103, and informed them of their right to organize Shortly before 8 a.m. Resident Manager Claverie arrived and asked what was going on and he told her "Those are pam- phlets of the Labor Union, for when we form the union" and Claverie then walked into her office and Tanner then "picked up all the papers and walked out and put them in the van." Tanner then put en his tool belt and walked into Claverie's office to pick up his work orders and also told Claverie that replacements were needed for missing sewer plugs as he had replaced several he had found near the sewer and he had offered to buy the re- placements the previous Friday but had been told by Claverie that a requisition for these plugs must be issued by "the main office." He then told Claverie that the open sewers were a health hazard and that the City Parish (Baton Rouge) Board of Health could "shut us down" and "have the utilities cut off" and that he knew this because he was a former plumbing inspector. He then inquired how long it would take for a requisition to 5 The complaint alleges, the answer admits, and I find that at all times material herein Jackson and Claverie were supervisors and/or agents of the Respondent within the meaning of Sec 2(11) and (13) of the Act be issued and Claverie replied she did not know as she was not familiar with the new requisition system and she was leaving for a new job on Friday at another apart- ment complex Tanner then stated it was a coincidence that he had formerly worked at the apartment complex at which Claverie was to be employed, she was em- ployed as a result of her phone call to a management of- ficial of the complex to check on Tanner's reference. He then went to count the missing plugs in accordance with his request and circled the buildings to do so, performed two or three small repairs, found that he required a large wrench for a repair and went to his van parked outside the Unit I office. While he was at the van, Property Manager Jackson knocked on the office window and mo- tioned for him to come in the office Tanner did so and at that time found that house maid Ferguson, security guard Maranto,6 Claverie, and Candy7 were also in the office Jackson told Tanner to close the door of the front office (the office of the assistant resident manager who was on vacation on this date). Tanner closed the door. Jackson asked him his reason for requesting the plugs; he told her that the sewers fill up with water when it rains and Jackson said, "Oh; well, we'll take care of that." Jackson then asked about his reference to the "phone call" and he explained this concerned the phone call to a management official by Claverie concerning his job ap- plication and Jackson replied, "Oh." Jackson then asked Tanner, "Do you belong to a union?" Tanner said, "Yes, I do " Jackson asked whether he had a union card and Tanner replied that he did, whereupon Jackson asked him to show it to her and he replied that it was in his van and went out to his van and brought in the "pam- phlets" as part of the union, and opened them up. I was kidding, I told her-they was in an enve- lope, and I said, I've got enough for all your employees, I said, Membership cards for all your employees, She (Jackson) said, You're fired You're fired Oh, she got excited, You're fired And what-it didn't do any good to close the door; everybody down in the lobby could hear her. And she turned to her employees, and she said she'd fire anybody that wanted to join the Union; she wasn't going to have no union men working there; and she told me to turn in my keys and get off the property. Tanner then gave Jackson the keys and asked Jackson whether she was "going to give me a pink slip or reason for firing me?" and Jackson picked up a termination slip (G.C Exh. 4) from the typewriter on the desk and handed it to him Tanner did not look at it but rather folded it and put it in his pocket and he then mentioned the plugs and Jackson told him to "get off her property" c Paul Frank Maranto Jr is a detective sergeant with the Baton Rouge Parish Sheriffs office who also worked as a security guard for the Re- spondent and occupied an apartment in the Respondent 's apartment com- plex as his residence r Candice (Vaughn) Berry was then a leasing agent and was scheduled to assume Claverie's position at the end of the week CENTRE PROPERTY MANAGEMENT and security guard Maranto also did so and "started get- ting in close and kind of pushing me to the door " Tanner then said, "Okay, I says, I am going straight to the phone, and I'm calling the inspection department, and I'm going to report those-those clean-up plugs." Tanner then left and called the plumbing inspector's de- partment and reported the plugs were missing from the sewer openings on the Respondent's property. Tanner then went home, read the termination form which listed "threatened extortion" as the reason for his discharge, discussed this with his attorney, who advised him to call Jackson He contacted Jackson by telephone and in- quired what the term referred to and she replied, "Well, anytime anybody threatens me with a union for more money, that's threatened extortion." Tanner then told Jackson, he would "file charges on you," and Jackson replied she had nothing to worry about as she had "talked to the attorneys" and Tanner "hung up" the tele- phone. Tanner testified he was concerned with the sewer plugs as children could injure themselves by stepping in the holes and as a result of the sewer gas and open sewage Mary Ella Ferguson was also called as a witness in the General Counsel's case. Ferguson worked as a house- keeping maid for the Respondent from February 1980 until May 1981 when she was terminated by the Re- spondent for absenteeism. Ferguson essentially corrobo- rated Tanner's testimony concerning the events of the morning of Feburary 23 and testified as follows: Fergu- son arrived at approximately 7:35 a in. in the lounge. She was sitting at the table having coffee with her brother Major Schaefer, Tanner, Richard (an air conditioning re- pairman), and Paul Lemoine (a painter). Tanner was dis- cussing the organization of a union (Local 103) by the employees and distributed pamphlets concerning it Cla- verie came in and told the employees it was time to go to work which they did. Ferguson received her assign- ments and when she arrived at the apartment she was to clean, she discovered she had the mailbox key instead of the apartment key. She then returned to the office to obtain the correct key and overheard Claverie in a con- versation with Jackson wherein Claverie told Jackson to come to the office and told Jackson there was trouble and said, "Our maintenance man [Tanner] . . . turned out to be a union man " Shortly thereafter security guard Maranto arrived. At that time Tanner was standing out- side of the office building and Jackson arrived and knocked on the office window and asked him to come inside. Jackson then asked Tanner "if he was a union man" and he replied, "Yes, I am." Jackson then asked Tanner "to show her his identification." Tanner then went out to his van and came "back in with a bunch of papers" and showed them to Jackson, and said, "I have enough for all of you" whereupon Jackson yelled, "You're fired " Jackson then told Tanner to return the Respondent's keys and material Tanner went to his van and returned with the requested items and Jackson then told Tanner to leave the Respondent's premises. As he was leaving Tanner told Jackson he would report her to the city Ferguson also testified that there was "filth and mess" running on the grounds from the sewers in several 193 places, that the condition persisted until her termination, and that she complained to management concerning it. The General Counsel also called Lester Mut, the chief plumbing inspector for the city and parish of East Baton Rouge Mut testified that the drainage of surface water and other objects into sewer lines, as a result of the fail- ure to cap or plug the sewer cleanout drains, can cause backups of raw sewage into the surrounding areas. Addi- tionally, harmful sewer gas can escape through sewer cleanout drains if they are not capped or plugged The worksheet for his office for February 23 (the, date of Tanner's discharge) shows that an inspection of the Re- spondent's apartment complex (Sherwood Acres, Conway Boulevard) was canceled. Mut also testified that an inspection was requested by Tanner in April 1982 pt the Sherwood Acres complex but no violations were found There had been no other reports to his office of any violations by the Respondent of the plumbing code. The Respondent called on its behalf the Respondent's former Resident Apartment Manager Claverie, security guard Paul Frank Maranto Jr., former Resident Apart- ment Manager (Candice Vaughn) Berry, its former paint- er Gerard Paul Lemoine, and Property Manager Jackson as witnesses. Claverie testified as follows: She was Respondent's resident manager from June 1980 to March 1981. On the day of Tanner's termination by the Respondent, she ar- rived at the office after 8 a.m. and Tanner was sitting at a table in the office. The other employees approached her and told her that Tanner wanted them to sign papers, she inquired whether they had signed anything, they replied they had not, and she then told them, "Well, good, don't sign anything." At that point Tanner told her "he didn't think they [the employees] made enough money." Claverie then said: Carl [Tanner], we discussed your salary, and you said everything was fine . . And that's when he told me that he had reported us to the Baton Rouge City Parish inspectors, or whatever, and that they were scheduled to come out, he said they should have been here by now, which would mean they were supposed to show up on our property around 8 am or around 9 am That we had improper sewer drainage, or whatever, system. And I said "Carl [Tanner], you're going to get into trouble. Why did you do this9 I can't believe you are doing it, you know, why not talk to us about it first, you know?" Claverie testified she then telephoned Jackson and told her there was a problem as Tanner had "reported us to the City Parish." Claverie talked to Tanner and said, "Carl, you're going to lose your job," "I wish you hadn't done this," and Tanner then said, "I hope she fires me." "You know, this is easier than I thought it would be " When she told Tanner he would lose his job, she was re- ferring to Tanner's "disrupting the employees, and also upsetting us by calling the outside men, the City Parish on us." 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Claverie testified that Jackson then arrived and con- sulted an attorney and told him that Tanner had reported the Respondent "to the city inspectors, and he's also here with a petition without-you know, asking prior warning," and that Jackson asked the attorney how she could terminate Tanner After Jackson concluded her conversation with the attorney, she directed Claverie to sign a termination form for Tanner Jackson then sum- moned Tanner who had gone to his van outside the office and Jackson then terminated Tanner. At the time of her initial conversation with Tanner, Tanner . . . talked like real, real strict, like his mind was al- ready made up Just that, here like a list, "You have this and this and this, and there's going to be a large fine because you all are going to be in a lot of trou- ble," and . . I said, "Well, what can we do about it? . . ," and he said, "Well it's too late, I've al- ready reported it and someone's on their way out." Claverie testified that during this conversation , Tanner told her "he wanted to get the employees to sign up for the Union , and that was all ." She testified that when she called Jackson she told Jackson that "Tanner was in her office and had threatened us that the City Parish inspec- tors were out about our sewer system And I don't re- member if I mentioned anything-I may have said-I'm not sure, but I may have said something about a peti- tion." "He's trying to get the employees to sign a peti- tion. That was my words ." She testified that she did not recall whether she mentioned the Union to Jackson. Cla- verie disclaimed knowledge of the Union or having heard anyone state that there would not be any union people on the property . Claverie acknowledged that there had been plumbing problems with backup of sewage on the property and that she had signed an order for sewer cleanout work by a private company for Unit I and Unit II on February 16 although she did not recall a specific problem at Unit II. She testified she was in- formed by the private company that the problem was in the City's (Baton Rouge) sewer lines rather than in the Respondent's and that the sewer plugs were removed in Unit Ito prevent the sewage from backing up into apart- ments and that there was "water and some paper" on the ground, and she had ordered maintenance man Schaefer to take care of the matter. Paul Frank Maranto Jr. testified as follows 8 At 9 a m. on February 23, a Monday, he went to the Respondent's office to check if there had been any problems in the complex and while he was there he heard Tanner tell Jackson that he was an "official of Local 103; that he was a plumbing inspector ; and that the maintenance per- sonnel , as well as herself, were underpaid," and that the complex had several plumbing violations, "particularly the sewer," and "that he had notified the City Parish plumbing inspection division of the violations." Maranto testified that during much of the discussion between Jackson and Tanner , Tanner was talking and that Jackson "couldn't get a word in edgewise " Maranto 8 A typographical error on L 19 of p 181 of the transcript is hereby corrected to read "pullover shirt is Mr Carl Tanner " told Tanner to leave the premises after the termination of Tanner by Jackson. Candice (Vaughn) Berry testified as follows She is currently a registered nurse having been employed by the Respondent from November 1979 to April 1982 as a leasing agent until she was promoted to manager in Feb- ruary 1981, when she replaced Claverie in this position. On the date of Tanner's termination she entered the office and went to a small inner office and sat down She was then approached by Tanner who introduced himself and told her "he wanted to talk to the workers about or- ganizing a union " She "didn't take him seriously," and he then said, " I guess I need to speak to the big boss about this," and she agreed that he should Tanner then left the room and Jackson walked in and told the em- ployees to go to work Tanner approached Jackson, they talked, and Jackson told Tanner to go to work; Tanner told Jackson he had called the city inspectors because "a lot of things that were not up to code as far as the plumbing and electrical goes, and that he had called the city inspectors out." Jackson then told Tanner to go to work and he went out to his van which was parked out- side. Berry heard Jackson tell the attorney over the tele- phone that Tanner had called the city inspectors and asked how Jackson should handle the situation When Tanner returned to the office Jackson told him that she was terminating him for "threatened extortion." Gerard Paul Lemoine, formerly employed as a painter by the Respondent, testified that when he arrived at the office for work on the day of this incident, Tanner told him that he was president of Local 103 and was organiz- ing a union to attempt to get "better wages" and asked whether Lemoine would join Lemoine declined and re- ferred him to another employee who also declined and referred him to Claverie Lemoine heard just portions of the conversation Prior to this he had advised Tanner that he would be fired to which Tanner replied that he hoped the Respondent did terminate him because he had previously "made good money out of it." Lemoine, on review of his affidavit, testified that Jackson told Tanner he was being terminated on "grounds of extortion." Le- moine testified that shortly after Tanner left, Jackson asked Lemoine whether he had signed the petition. He replied in the affirmative, as a joke, although he had not done so and Jackson told him, "You better not have signed it, you know, but she was a friend " Linda K Jackson testified as follows: Prior to Febru- ary she had little or no knowledge of union organization- al activities and had not received any instructions or bul- letins from the Respondent' s management concerning labor organizations. She is the property manager for sev- eral properties owned by the Respondent including Sher- wood Acres I and II which is a well maintained apart- ment complex with certain amenities such as swimming pools, washer and dryer connections, and fireplaces. The Respondent has an ongoing maintenance program to maintain the property. Resident managers are employed and reside on the property and are contacted as com- plaints are made even during nonoffice hours for emer- gency repairs and problems The resident managers are responsible for hiring and firing but discuss salaries with CENTRE PROPERTY MANAGEMENT Jackson and any large financial commitments must be ap- proved by her She was not aware of any raw sewage on the ground in February. However, there was a problem with a city (Baton Rouge) pumping station which was causing a backup on Sherwood Forest Boulevard. She did not regard the problem as serious or note any debris herself Nor had the complex received any complaint from the residents Jackson testified further- She initially met Tanner on February 17 when Claverie asked her to meet Tanner for an interview. Jackson did so and Tanner told her he had substantial plumbing experience Tanner was hired and commenced work on February 18 On Monday, Febru- ary 23, she was contacted by telephone at her apartment by Claverie who informed her that Tanner had "all the employees in an uproar here, I can't get any of them to go to work " Claverie then asked Jackson to come to the office. Jackson asked Claverie what the problem was and Claverie told her that Tanner had called the city inspec- tors; had accused the Respondent of being in violation of city codes, had threatened to have the Respondent's op- eration "closed down today"; and that he was waiting for the city inspectors to arrive, and that Tanner was cir- culating a petition. When Jackson inquired as to what kind of petition, Claverie told her she did not know. Jackson then went to the office and saw all the employ- ees gathered asking what was "going on." She told the employees to go to work. Tanner refused and told her he was waiting for the city inspector to arrive. She asked Tanner, "What do you feel is wrong9" Tanner replied that the Respondent was in violation of city codes and mentioned drainage, sewer, and electrical problems Jackson went into the inner office and was followed there by Tanner Also present were Maranto, Claverie, and Berry Jackson then closed the door to the office. Tanner repeated that he was not going to work but was waiting for the city inspector to arrive. Tanner also stated that the employees were underpaid and informed her that "I do intend to unionize you" and that he in- tended to obtain the signatures of 30 percent of the Re- spondent's employees on a petition Jackson testified she had decided to terminate Tanner for his refusal to go to work and issuance of threats concerning the inspections and his manner in doing so by "screaming stuff at me about violations and city codes." Tanner told her to "speak pretty" and that "I have you on tape." Jackson then left and telephoned the Respondent's attorney who advised her to discharge Tanner for "threatened extor- tion" on the basis of his "threatening accusations " She then went back to the office and terminated Tanner for "threatened extortion " Tanner asked what she meant and reiterated that he "was going to unionize you." Tanner continued talking and Jackson was unable to speak often but asked Tanner to leave Maranto then told Tanner to leave. Tanner left Jackson denied saying anything to Tanner concerning his union activities Jackson admitted asking Lemome whether he had signed a petition to which he replied in the affirmative but contended that it was a joke between her and Lemome She denied threatening the employees with termination if they signed anything Several days later, Tanner telephoned Jackson and asked for reinstate- 195 ment and during that conversation also told her that she should "speak pretty" as he was taping the call Tanner subsequently contacted her to receive his paycheck and also subsequently reentered the office property in May When Jackson saw him and asked what he was going, Tanner initially said he was there to see his daughter and wanted to go to her apartment. When Jackson replied, after being apprised of the daughter's name by Tanner, that the daughter did not live there and asked Tanner to leave the premises, Tanner refused and stated that he was sent there by the National Labor Relations Board to contact witnesses. This occurred on the same day that a representative of the National Labor Relations Board was talking to Jackson and other employees concerning this case. Jackson then called the Sheriff's department and Tanner was arrested. Tanner admitted the postdis- charge incident where he gave a false reason to Jackson for being on the Respondent 's premises. He denied having told Lemome that he was attempting to make money from this incident but testified that, when told he might be terminated for his activities, he responded that if he were terminated, he hoped that it was for his en- gagement in union activities and mentioned another case wherein he had received a money settlement as an al- leged discriminatee in an unfair labor practice case Analysis The General Counsel contends that Tanner was en- gaged in concerted activities in an attempt to revive his dormant union organization by the organization of the Respondent's employees, that such activity was protect- ed by the Act, and that the Respondent unlawfully inter- rogated Tanner and interrogated and threatened Le- moine concerning union activity and discharged Tanner for his union activities, all in violation of the Act. Alter- natively, the General Counsel contends that Tanner's complaint regarding unplugged sewer drains and sewage waste on the Respondent's premises was protected activi- ty and that in the event it is found that the Respondent discharged Tanner for making such complaints, his dis- charge was unlawful under the holding by the Board in Alleluia Cushion Co, 221 NLRB 999 (1975), and cases following this holding that employees who "protest safety and/or health related conditions and seek the, as- sistance of governmental agencies to redress such com- plamts"9 are engaged in protected concerted activities. The Respondent contends that Tanner was not engaged in protected concerted activities in his attempt to orga- nize the Respondent's employees ; that Tanner initiated his own discharge (presumably to recover backpay from Respondent), that Tanner was not concerned with health or safety conditions on Respondent's premises for the mutual aid of other employees; that the true reason for Tanner's discharge was his insubordination in refusing to return to work and the issuance of threats by him as well as his belligerent conduct in this matter toward the Re- spondent's representatives, and that Tanner thereby lost the protection of the Act 9 G C memorandum p 9 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This case involves two substantially different versions of the events of February 23, 1981, which require the de- termination of credibility of the witnesses At the outset, I find that Tanner's efforts to organize the Respondent's employees were protected insofar as the manner in which they were conducted by Tanner did not cause his loss of the protection of the Act I have found supra herein that Local 103 of the United Federation of Inde- pendent Unions was a labor organization within the meaning of the Act. I also find that Tanner was attempt- ing to organize the Repsondent's employees as members of Local 103 and that such activity was protected by the Act Bighorn Beverage, 236 NLRB 736, 752-754 (1978), enfd. 614 F 2d 1238 (9th Cir 1980). With respect to the events leading up to Tanner's dis- charge and his conduct and statements made to Claverie and Jackson on February 23, 1 find the testimony of Jackson, Claverie, Berry, and Maranto concerning the statements made by Tanner and Jackson to be credible and credit their version over the version of Tanner and Ferguson In making this determination, I have consid- ered the interests of the witnesses, their demeanor on the stand, and the plausibility of their versions of the events. Tanner, as the alleged discriminatee, has an obvious stake in the outcome of this proceeding. Ferguson is a former employee terminated by the Respondent for ab- senteeism. Jackson, the Respondent's property manager, was directly involved in the termination of Tanner. Mar- anto remains employed as a security guard by the Re- spondent. Both Calverie and Berry are no longer em- ployed by the Respondent and Berry, who was essential- ly a bystander on February 23, is currently employed in an unrelated field Lemoine is also no longer employed by the Respondent In assessing the plausibility of the versions of the events of February 23, I find the version presented by the Respondent's witnesses regarding the statements of Tanner and Jackson to be reliable Thus, I conclude that Tanner did inform Claverie and Jackson that he had called the city inspectors concerning alleged violations of city plumbing codes and others Specifically, I found Claverie to be a credible witness who was candid about her inability to recall certain details of the incidents of February 23 but who was very positive concerning the statements made by Tanner to her concerning the alleged violations of city codes by the Respondent. I , also credit Jackson's testimony concerning the manner in which Tanner approached her I also credit Maranto's testimony in this regard. I also found Berry to be a credible witness. I also found Lemoine to be a cred- ible witness who attempted to recall the events of Febru- ary 23, however, his recall was admittedly poor and I do not rely solely on his testimony in determining the rea- sons for Tanner's discharge Conversely, I do not credit Tanner's version that he had not mentioned the plumbing code violations until after his termination nor do I credit Ferguson's corroborative testimony to this effect. I note that the termination form which listed "threatened extor- tion" as the reason for Tanner's termination was com- pleted and given to Tanner prior to his termination. I do not credit Tanner's testimony that, in a later telephone call, Jackson told him that the "threatened extortion" re- Corp, 245 NLRB 1215, 1229-30 (1979) ferred to his threat to organize the Respondent's employ- ees in order to obtain wage increases. Notwithstanding these credibility determinations, I find that the General Counsel has made a prima facie showing that Tanner's protected concerted activity in at- tempting to organize a union among the Respondent's employees was a motivating factor in the decision by the Repsondent to discharge him. In reaching this conclu- sion, I rely on the timing of the discharge shortly after Tanner announced his intention to organize a union and evidence of union animus on the part of the Respond- ent, 10 as found hereinafter, with respect to the interroga- tion of and threat issued to Lemoine by Jackson concern- ing his union sympathies and activity I also find that the statements of Tanner that he had contacted city authori- ties concerning alleged building code violations were an additional motivating factor in the Respondent's decision to discharge Tanner as contended by the Respondent However, I find that Tanner's statements in this regard did not cause Tanner's loss of the protection of the Act as the unrebutted testimony of Tanner and Ferguson es- tablished that there were emissions of waste matter and sewage and the potential for the emission of harmful sewer gas. I credit the testimony of Ferguson that she had complained of this condition to the Respondent's management. Resident Manager Claverie also testified that this situation had existed. Jackson also testified that there had been a problem with the city plumbing station although she disclaimed knowledge of a specific problem with respect to the Respondent's premises. I also credit Chief Plumbing Inspector Lester Mut who testified that unplugged sewer lines can constitute a health hazard. Accordingly, I find that Tanner's actions in notifying the Respondent that he had contacted city officials concern- ing violations of the city's plumbing code did not cause his loss of the protection of the Act as the condition of the unplugged sewer lines was obviously a matter of common concern to all employees working on the Re- spondent's premises Under these circumstances, I find the Respondent's reliance on Tanner's notification that he had reported the unplugged sewer lines to officials of the city of Baton Rouge does not meet its burden of es- tablishing that Tanner's discharge was based on lawful reasons. Rather, I find the discharge of Tanner for his activity in reporting safety and health violations of the city of Baton Rouge plumbing code was violative of the Act I find that the other reasons asserted by the Re- spondent for its discharge of Tanner were not the true cause for its actions and find that the Respondent has not met its burden of proof in establishing that it would have discharged Tanner in the absence of his protected con- duct. Wright Line, 251 NLRB 1083 (1980); Atlas Miner- als, 256 NLRB 91 (1981) In making this determination, I have reviewed the evidence presented by the Respond- ent. I find the testimony of Claverie and Lemoine pre- sented by the Respondent is insufficient to show that Tanner was attempting to provoke his own discharge in order to utilize the Board's processes to collect unwar- 10 Limestone Apparel Corp, 255 NLRB 72 (1981), M & B Contracting CENTRE PROPERTY MANAGEMENT ranted backpay from the Respondent I further find this unlikely in view of Tanner's unrebutted testimony con- cerning his need for employment The alleged statement by Tanner to Lemome was made after Lemoine told Tanner that he could be terminated for engaging in union activities I find Tanner's explanation of his re- sponse to Lemome concerning his involvement in an- other unfair labor practice as logical and credible in view of this sequence of events. I also note that Lemoine, throughout his testimony, acknowledged his inability to clearly recall the events of Feburary 23 I further find Tanner's alleged statement to Claverie that "this is easy" after she told him he would be terminated is ambiguous and insufficient to prove that he provoked his discharge in order to collect unwarranted backpay from the Re- spondent I find that the Respondent has also failed to prove that Tanner was discharged by the Respondent be- cause he engaged in "threatened extortion ." There was no evidence that Tanner offered to withdraw or refrain from making charges of city code violations in return for the Respondent's acquiescence in his attempt to organize a union among the Respondent 's employees. I am also convinced that the Respondent did not discharge Tanner for his refusal to return to work This refusal was not specifically pleaded by the Respondent in its affirmative defense as the reason for its discharge of Tanner and there was no mention of it in the affidavits of Berry or Jackson, each of whom testified at the hearing that Tanner refused to return to work I credit the testimony of Berry and Jackson that Tanner did refuse to return to work at some point in his initial conversation with Jack- son However, I do not credit Jackson's testimony that she discharged Tanner for this reason Nor do I find that Tanner's conduct in his discussions with Claverie and Jackson was so outrageous as to cause his loss of the protection of the Act with respect to his concerted ac- tivities in promoting the Union and in reporting the health-and-safety hazard concerning the sewer lines to city government officials. Accordingly, I conclude that the Respondent violated Section 8(a)(3) and ( 1) of the Act by its discharge of Tanner because of his efforts to organize the Union among the Respondent 's employees and that the Respondent violated Section 8(a)(1) of the Act by its discharge of Tanner in retaliation for his pur- ported complaint to city of Baton Rouge officials con- cerning health -and-safety conditions with respect to the unplugged sewer caps on the Respondent 's premises Al- leluia Cushion Co, supra, Bighorn Beverage, supra, 752- 754. I find that Jackson's alleged interrogation of Tanner concerning whether he was a union representative was not violative of the Act as the inquiry followed the an- nouncement by Tanner that he was in fact such a repre- sentative and was attempting to organize the employees Under these circumstances , I find that a direct inquiry to Tanner by Jackson concerning his announcement was not violative of Section 8(a)(1) of the Act. I find that the inquiry by Jackson of Lemoine was vio- lative of the Act notwithstanding the disclaimers of Le- moine and Jackson that they were only joking Jackson's inquiry of Lemome as to whether he had signed a peti- tion constituted unlawful interrogation and the Respond- 197 ent thereby violated Section 8(a)(1) of the Act. Her fol- lowup statement to Lemome that he better not have signed the petition constituted an unlawful threat and the Respondent thereby violated Section 8(a)(1) of the Act Under the circumstances of this case I find that the inter- rogation and threat issued by Jackson to Lemome, imme- diately following her discharge of Tanner, tended to be coercive, notwithstanding whether Lemome was actually coerced thereby. TRW-United Greenfield Div., 245 NLRB 1135 (1975), enfg. 637 F.2d 410 (5th Cir 1981), See also Jax Mold & Machine, 255 NLRB 942 (1981). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent as found in section III, in connection with the Respondent 's oper- ations as found in section I, have a close, intimate, and substantial relationship to trade, traffic, and commeice among the several States and tend to lead to disputes burdening and obstructing the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondent, Centre Property Management, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. Local 103 of the United Federation of Independent Unions is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has established a prima facie case of violations of Section 8(a)(1) and (3) of the Act by the discharge of Carl Westley Tanner The Respondent has failed to rebut the prima facie case and I find that the Respondent violated Section 8(a)(1) and (3) of the Act by its discharge of Carl Westley Tanner. 4. The Respondent did not violate Section 8 (a)(1) of the Act by Jackson's alleged interrogation of Tanner concerning his union membership and activities. 5. The Respondent did violate Section 8(a)(1) of the Act by Jackson's interrogation of Gerard Paul Lemoine concerning his union activities and her issuance of -a threat to Lemoine if he engaged in union activities. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has violated Sec- tion 8(a)(1) and (3) of the Act, it shall be ordered to cease and desist therefrom and to take certain affirmative actions deemed necessary to effectuate the purposes and policies of the Act, including the posting of the appro- poriate notice. Having found that the Respondent discriminatorily dis- charged Carl Westley Tanner in violation of Sectioh 8(a)(1) and (3) of the Act, it shall be recommended that Respondent offer him immediate reinstatement and make him whole for any loss of earnings and benefits he may have sustained by reason of the unlawful discharge. It is also recommended that Respondent expunge from its files any reference to the discharge of Tanner and notify him in writing thereof All loss of earnings and benefits incurred by Tanner as a result of the Respondent's acts 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set out above shall be computed with interest in the 289 ( 1950), and Florida Steel Corp, 231 NLRB 651 manner prescribed in F. W. Woolworth Co., 90 NLRB (1977).11 [Recommended Order omitted from publication.] " See generally Isis Plumbing Co, 138 NLRB 716 (1962)