Sun City Center Corp.

SUN CITY CENTER CORP 549 Sun City Center Corporation and Beverly K. Parker and Gertrude M. Coleman and Virginia L. Dermon. Cases 12-CA-13433-1, 12-CA- 13433-2, and 12-CA-13433-3 August 23, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS , DEVANEY AND OVIATT On February 6, 1990, Administrative Law Judge Lowell Goerlich issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions, and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Sun City Center Corporation, Sun City, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Order 'In adopting the judge's findings that the Parker, Coleman, and Dermon discharges violated Sec 8(a)(I), we find it unnecessary to rely on the judge's charactenzation of this case as one involving "employer conduct Inherently destructive of employees' protected nghts " Michael R Mauna'', Esq , for the General Counsel Mark E Levitt, Esq (Hogg, Allen, Norton & Blue), of Tampa, Florida, for the Respondent DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge The original charge in Case 12-CA-13433-1 filed by Beverly K Parker, an individual, on June 16, 1989, was served on Sun City Corporation on the same date by certified mail The original charge in Case 12-CA-13433-2 filed by Gertrude M Coleman, an individual, on June 16, 1989, was served on the Respondent on the same date by certified mail The original charge in Case 12-CA- 13433-3 filed by Virgima L Dermon, an individual, on June 16, 1989, was served on the Respondent on the same date by certified mail A complaint and notice of hearing was issued on July 25, 1989 In the complaint, among other things, it is alleged that the Respondent dis- charged its employees, Parker, Coleman, and Dermon on April 12, 1989, because they engaged in concerted activi- ties for the purpose of mutual aid and protection and in order to discourage employees from engaging in such ac- 299 NLRB No 84 tivities or other concerted activities for the purpose of collective bargaining or other mutual aid and protection in violation of Section 8(a)(1) of the National Labor Re- lations Act (the Act) The Respondent filed a timely answer denying that it had engaged in the unfair prac- tices alleged The matter was heard on November 1, 1989, at Tampa, Florida Each party was afforded a full opportu- nity to be heard, to call, to examine and cross-exanime witnesses, to argue orally on the record, to submit pro- posed findings of fact and conclusions, and to file briefs All briefs have been carefully considered On the entire record in this case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR I THE BUSINESS OF THE RESPONDENT At all times material, the Respondent, a Delaware cor- poration with an office and place of business in Sun City, Florida (the Respondent's facility), has been engaged in the sale and management of real estate During the past 12 months Respondent, in the course and conduct of its business operations described above, derived gross revenue in excess of $500,000, and pur- chased and received at its Sun City, Florida facility goods, products, and materials valued in excess of $50,000, which were either shipped directly from suppli- ers located outside the State of Florida, or were shipped by suppliers within the State of Florida, who, in turn, re- ceived these goods, products, and materials directly from outside the State of Florida The Respondent is now, and has been at all times ma- terial, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE UNFAIR LABOR PRACTICES INVOLVED \ Facts During the period in which the events detailed here occurred, Jerry Starkey was the Respondent's vice presi- dent and chief operating officer and Richard Vander- meer was Respondent's vice president of sales The three dischargees, Beverly K Parker, Gertrude M Coleman, and Virginia L Dermon, until their separations from em- ployment, were sales associates working "strictly on commission" They were responsible for selling newly constructed houses 1 Coleman was the top salesperson for the third quarter of 1988 According to Starkey "Trudy has championed new sales associates She's helped train them" Coleman commenced employment in 1972 Starkey referred to both Coleman and Parker as "top producers They were leaders They were respected by their peers "At the meeting of April 12, 1988 (see infra), Starkey testified, "I opened up 1 Parker descnbed the job as follows "I sold homes to retired people We would show our models, send out literature, make telephone calls and, hopefully, sell them the retirement home" 550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the meeting by telling them that they were very valued employees, that they had always been top producers" Parker was first employed in February 1986 On April 3, 1989, sales associates were assembled in a special meeting at which Vandermeer announced a new commission structure Parker testified that by the new structure commissions were cut "about 40 percent" Ac- cording to Vandermeer after the announcement of the commission structure change the general reaction of all the employees was "Disappointment most people didn't consider it to be a positive move" On the night of April 3, 1988, 13 or 14 sales associates met at Parker's house where the Respondent's restructur- ing of the employees' commission was considered by the employees present According to Parker, whom I credit, the employees decided "to do three different things One was to be silent in our regular sales meetings The other was to send a letter to Rich Vandermeer with copies to Jerry Starkey and Mr Hoffman [sic], owner of the com- pany And the third was to all boycott the sales award banquet "2 The purpose of the employees' action in this regard was to protest the commission cut After the employees had discussed what the proposed letter should contain, Parker prepared it and circulated it among the employees for their signatures the next morn- ing Fourteen employees signed the letter, which read as follows Date Apnl 4, 1989 To Mr Rich Vandermeer From The Undersigned The intent of this letter is to put Sun City Center Corporation on notice that the undersigned do not agree with the new commission reduction presented at your meeting of April 3, 1989 Due to the unique style of selling in Sun City Center and the be-back client ratio, a sales person can not survive on the new scale We propose that the commission per- centage remain 2 1/2% Starkey received the letter about April 5, 1989 At the regular sales meeting on April 6, 1989, at which attendance was mandatory, the sales associates did not fully participate, Starkey referred to it as "a freezeout " On April 10, 1989, the three dischargees received their invitations to the "Annual Sales Award Banquet & Murder Mystery Party "3 All alleged dischargees an- swered the RSVP on the invitation in the negative 4 The sales banquet and party had never been billed as a condition of employment attendance to which was man- datonly required nor had it been so administered Parker 2 The program of the "sales award banquet," which was to occur on Apnl 15, 1989, referred to this event as "Annual Sales Award & Murder Mystery Party" (0 C Exh 4) On the invitation to the party appeared, You'll be both a detective and a suspect as you witness a murder, search for clues, and track down rouges and deceivers in an effort to solve the come"t" 3 The Sales Award Banquet and Murder Mystery Party is sometimes in the record and here referred to as the sales party or sales banquet or both * The mvitation contained this language "R S V P immediately (or else) " (GC Exh 4) credibly testified that she had failed to attend a banquet in 1987 without reprisal or discipline Coleman testified that employees "assumed" that they were expected to attend unless they had some legitimate excuse Indeed one employee skipped the 1989 banquet without repri- mand because he preferred being with a customer Starkey testified that employees were "expected" to attend the banquet "It's a normal part of business" "[R]easonable excuses" were allowed Vandermeer testified of attendance at the banquet, "I would consider it mandatory It was expected that people—the invited people would attend, especially the sales counsellors, yes" However, he indicated there could be excused absences Vacation was one, illness an- other, or "tied up on business of some sort" According to Vandermeer the purpose of the sales banquet was "[t]o honor the top sales performers, to pro- mote morale, to give peers goals to set or to shoot for, people that they can copy, follow" Starkey testified that "there's no writings that I'm aware of that require them to attend the sales banquet" According to Starkey between April 3 and 12 Vander- meer contacted the sales associates individually "doing somewhat of a sales job on the company's behalf that this new structure was really not a devil, if you will, not so bad, and that the individuals needed to sign on to the new structure and that they needed to continue to con- duct themselves in the way that they had done m the past, each of the individual sales people" After "10 days of caucussmg" with the sales associates Vandermeer re- ceived a "commitment" 5 from all the sales associates except Carmen Alfonso, Parker, Coleman, and Dermon On April 12, 1988, a memorandum was sent by Van- dermeer to the four mentioned employees notifying them that they were required to attend a "mandatory meeting" (G C Exh 5) at Starkey's office Parker, Coleman, and Dermon appeared as directed Alfonso capitulated At the meeting Starkey insisted that the three employ- ees accept a full commitment to the Respondent, which must include attendance at the sales party All three em- ployees refused to accept the commitment as defined by Starkey He further testified that the employees could not have given "a full commitment" without going to the party "I was asking them to be a team member and make a total commitment to achieving the company goals The corporation sets a set of goals at the top they could not achieve that goal unless 'they went to the party PP Starkey expressed the purpose of the meeting with Coleman, Parker, and Dermon as follows The purpose of the meeting was to call the four individuals that were named on the memorandum from Rich to the meeting As I said earlier, Carmen Alfonso had called in sick that morning, and stated that she was going to make a commit- ment to the new organization, the new structure, and that she would be coming to the sales banquet The "commitment" included an agreement to attend the sales ban- quet SUN CITY CENTER CORP 551 So I had the meeting at about 9 15 with Beverly, Trudy and Ginger The purpose of that meeting was for me to reiter- ate to them that they were very valuable employees of the company, particularly Beverly and Trudy, because they had been top producers since I had been with the company and, as I had been told, for several years in the past, particularly Trudy I wanted to bring them in because it was so impor- tant to the company to explain to them once again that the commission structure had been based upon our purview of the industry, that I needed a full commitment from them, that they were very valua- ble And I opened it, I made probably a ten minute statement at the beginning of the meeting I called those three employees in because I had been told that they were not planning to come to the sales meeting and that they had failed to turn in some reports, and that they had had a different change in morale than what they had had in the past As I had said earlier, Trudy and Beverly had been top producers, top producers at that point As a manager, as Chief Operation Officer, as I said ear- lier, portions of my compensation is based upon how well the company does I have no motivation to single out a top producer, or two top producers, or anyone who's a member of a team, and say "Leave" My objective was to bring them in my office and explain the changes, explain—Trudy, on more than one occasion, had said that she felt be- trayed, that she felt like the company wasn't giving any weight to what she had done in the past And my purpose of the meeting was to call them in and explain to them that they were very valuable, but they had to make a full commitment And a full commitment means that they would behave in the way that they had always behaved in the past So what I was doing in the meeting was asking them to continue with the behavior that they had in the past, and I phrased that I needed a full commit- ment out of them And a full commitment would be, like, if you put together a pie chart, and selling houses is very important There are minimum quotas that have to be met But that's just one part of it You have to be able to motivate JUDGE GERLICK [SIC] your position was that they couldn't have given you a full commitment without going to the party? THE WITNESS Yes sir, that's correct According to Vandermeer, at the meeting Starkey de- fined commitment as "continued sales efforts, working with company policies, procedures, attendance to meet- ings and events, including a banquet " Vandermeer testified that Coleman did not accept the commitment because she "had a problem with the feeling of being in- sulted by the new policy She didn't feel comfortable with a commitment" Derman "felt like the rules had changed from when she was hired, therefore she didn't feel like she needed to make a commitment" According to Starkey, Dermon felt that she had been hired under the commission structure and the change was "a breach of contract" Coleman felt as if she had been "betrayed" "She felt like it was a major betrayal that the company had no respect for her past production and that [they] were giving no credence to what she had done in the past" Parker was "concerned that the fol- lowing year after she'd went through the year and had a great year, that she would have to go back and start at one and a half percent" After about an hour's discussion, according to Starkey he "just didn't get the impression that [he] got a full commitment from these people," so they took a break When the employees returned to the meeting again, ac- cording to Starkey, he said that he assumed they had had a chance to talk it over among themselves He testified, "I wanted to reiterate that they were very valuable em- ployees, that they had contributed in the past greatly to the company, that they were doing a great job and that I needed to know if they could make a commitment "6 Parker, whom I credit, 7 testified, "I asked, what dif- ference does it make if we went to the party or not I said, we wouldn't even be missed And Mr Starkey said, you have set yourself up as group leaders and by not going to this party, you are making a statement that you do not agree with the company policy of commission" Stanley testified, "you're sending out a message that you're not making a full commitment by not going to the party" Conclusion and Reasons Therefor By concertedly protestmg the Respondent's commis- sion cuts by refusing to attend the sales banquet or party the dischargees were engaging in concerted activity 9 While Respondent admits in its brief "that charging par- ties were engaged in protected, concerted activity in ex- pressing their protest over the change m the commission structure," nevertheless, it claims that the dischargees en- gaged in an illegal partial strike' s and "were discharged for failing to perform a job requirement" The Respondent's contentions do not conform with the credible evidence, for the dischargees were dis- charged not because they refused to perform a job re- quirement or engaged in a partial strike" but because 6 The employees refused to meet the Respondent's terms According to Starkey, "they were told their services were no longer needed" "I had the Vice President of Personnel or Human Resources waiting and I told him to go with them and clean out their desk" 7 The following testimony was not controverted During the April 12, 1989 meeting, Parker said to Starkey, "We do not agree with this new commission cut" 9 See Myers Industries, 281 NLRB 882 (1986), reaffg 268 NLRB 493 (1984) See also Landgrebe Motor Transport, 295 NLRB 1040 (1989) 79 By insisting that the dischargees engaged in a partial stnke the Re- spondent must concede that they were engaged in concerted activity I I Prior to Starkey's insistence that the three employees attend the sales banquet and party, there had been no job requirement or term or condition of employment that required mandatory attendance Indeed the invitation Included the letters RSVP, which anticipated that some invi- tees might decline to attend Moreover, in the past employees had not Continued 552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Respondent was bent on thwarting concerted activity on the part of its employees directed against the Re- spondent's commission cut The Respondent commenced this adventure after its employees sent their letter of pro- test by individually meeting with its employees to dissi- pate and extinguish their concerted effort to oppose the commission cut All except three—Parker, Coleman, and Dermon—finally capitulated These three were sum- moned in a seemingly star chamber session and given an ultimatum, the main requirement of which was coerced attendance at the sales party This prerequisite for con- tinuing employment was obviously chosen by the Re- spondent because the absence of Parker, Coleman, and Dermon from the sales party as a protest against the Re- spondent's commission cut would have an infectious effect on other employees, which would, in all probabili- ty, have caused a renewal of their concerted protest against the Respondent's commission cut That Starkey believed this is evident in his remark, "you have set yourselve[s] up as group leaders and by not going to this party, you are making a statement that you do not agree with the company policy of commission" The Respond- ent referred to Coleman and Parker as role models, top producers, leaders, very valuable employees, and respect- ed by their peers I am convinced that the real reason and motive" was to interfere with, restrain, or coerce employees in the ex- ercise of the nghts guaranteed m Section 7 of the Act, that is, the nght to engage in concerted activities for mutual aid and protection 13 Nevertheless, the Respondent maintains, "The evi- dence establishes that Respondent would have terminat- ed the Charging Parties for permissible reasons even in the absence of their protected conduct because Charging Parties were terminated for engaging in an unprotected partial stnke for refusing to perform a job requirement of attending an annual sales banquet" This contention fails because it is not grounded on credible facts The credible record establishes that had the discharg- ees failed or refused to attend the sales party and banquet for any other reason than in conjunction with their pro- been disciplined or censured for falling to attend the party nor was there a written or oral work rule requiring attendance or establishing the con- sequences of not attending Vandermeer testified that while there were sanctions imposed on employees who did not attend the sales meetings none were provided for failure to attend a sales banquet or party Refusal to attend the sales banquet and party for the first time took on the es- sence of a mandatory job condition when the reason for not attending the sales banquet and party was the concerted protest against the Respond- ent's reduction of employees' sales commissions 12 ' [T]he 'real motive' of the employer in an alleged § 8(a)(3) violation is decisive" NLRB v Brown Food Store, 380 U S 278, 287 (1965) "It is the 'true purpose' or 'real motive' in hiring or firing that constitutes the test" Teamsters Local 357 (Los Angeles-Seattle Motor Express) v NLRB, 365 U S 667, 675 (1961) "Section 8(a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership It has long been established that a finding of violation under this section will normally turn on the employer's motivation" American Ship Building Co v NLRB, 380 US 300, 311 (1965) 13 The natural and foreseeable consequence of the Respondent's action was to chill its employees' zest for a concerted protest against its com- mission reduction policy Such employer conduct is Inherently destruc- tive of employees' protected rights, the consequences of which the Re- spondent must have intended Cf NLRB v Erie Resistor, 373 U S 221, 227, 228 (1963) See also NLRB v Great Dane Trailers, 388 U S 26, 34 (1967) test against the Respondent's cut in commission their dis- charges would have been unlikely As noted these em- ployees were role models, top producers, leaders, and valued employees, whom the employer indicated it was anxious to retain These were not the kind of employees who normally would have been fired for skipping a sales party and banquet Thus there must have been another motive I am convinced that this motive was unlawful These employees would not have been discharged had the discharges not been linked with their protest against the commission cut Moreover, the Respondent has pointed to no employee who was discharged or disci- plined for not attending a sales banquet or party or any established cntenon in respect to required attendance Finally, based on the credited facts in this case, it fol- lows that Coleman, Parker, and Dermon would not have been discharged had they not been engaged in protected concerted activities See Wright Line, 251 NLRB 1083 (1980) I do not believe the Respondent when it cites any other reason for the discharges Accordingly I find that by discharging Coleman, Parker, and Dermon on April 12, 1989, the Respondent violated Section 8(a)(1) of the Act 14 CONCLUSIONS OF LAW 1 The Respondent is engaged in commerce within the meanmg of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction 2 By unlawfully discharging Beverly K Parker, Ger- trude M Coleman, and Virginia L Dermon on Apnl 12, 1988, for engaging in protected concerted activities for mutual aid and protection, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act 3 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act It having been found that the Respondent unlawfully dis- charged Beverly K Parker, Gertrude M Coleman, and Virgima L Dermon and has since failed and refused to reinstate them to their former or equivalent positions in violation of Section 8(a)(1) of the Act, it is recommended that the Respondent be ordered to remedy such unlawful conduct In accordance with the Board policy, it is recommend- ed that the Respondent be ordered to offer the above- named employees immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without preju- dice to their semonty or other rights and privileges pre- viously enjoyed, dismissing, if necessary, any employees hired on the date of their discharges to fill the positions, 14 I have examined the cases relied on by the Respondent and find them inapposite SUN CITY CENTER CORP 553 and make them whole for any loss of earnings they may have suffered by reason of the Respondent's acts detailed here, by payment to them of a sum of money equal to the amount they would have earned from the date of their unlawful discharges to the date of valid offers of re- instatement, less any net interim earnings during such pe- riods, with interest thereon, to be computed on a quar- terly basis in the manner established by the Board in F W Woolworth Go, 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Hori- zons for the Retarded, 283 NLRB 1173 (1987) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ec115 ORDER The Respondent, Sun City Center Corporation, Sun City, Florida, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discouraging lawful concerted activities of its em- ployees in violation of Section 8(a)(1) of the Act by dis- charging its employees for engaging in concerted activi- ties for their mutual aid and protection (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Beverly K Parker, Gertrude M Coleman, and Virginia L Dermon immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privileges previously enjoyed, discharging, if necessary, any em- ployees hired to replace them, and make them whole for any loss of pay they may have suffered by reason of the Respondent's unlawful discharge of them, in accordance with the recommendation set forth in the remedy section of this decision (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- 15 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 3 essary to analyze the amount of backpay due under the terms of this Order (d) Post at its facility in Sun City, Florida, copies of the attached notice marked "Appendix " 16 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply " If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice WE WILL NOT discourage concerted activities of our employees in violation of Section 8(a)(1) of the National Labor Relations Act by discharging them for engaging in lawful concerted activities for mutual aid and protec- tion WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Beverly K Parker, Gertrude M Cole- man, and Virginia L Dermon immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, dischargmg, if nec- essary, any employees hired to replace them, WE WILL restore their seniority and other rights and privileges pre- viously enjoyed, and WE WILL pay them backpay they lost because we discnmmatonly discharged them, with interest WE WILL notify each of them that we have removed from our files any reference to her discharge and that the discharge will not be used against her in any way SUN CITY CENTER CORPORATION