NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
The Continental Group, Inc. and Local 11, Service Employees International
The Continental Group, Inc. and Sunset Harbour
South Condominium Association, Inc., Joint Employers and Local 11, Service Employees International
The Continental Group, Inc. and The Executive Condominium
Association, Inc., Joint Employers and
Local 11, Service Employees International
Sunset Harbour South Condominium Association,
Inc. and Local 11, Service Employees
International
September 30, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On March 15, 2006, Administrative Law Judge George Carson
II issued the attached decision. Respondent
The Continental Group (Continental) filed exceptions and a supporting brief, as
did Respondent Sunset Harbour South Condominium Association (
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,[1] and conclusions only to the extent consistent with this Decision and Order.[2]
i. joint
employer findings
We affirm the judge’s finding that Respondents Continental
and
ii. surveillance allegations
On October 28, 2004, Local 11 (the Union) conducted a “mock
election” outside the
In addition, we find that
iii. allegations relating to phillip gonzalez
A. Background
Phillip Gonzalez was employed as a front-desk concierge at
On August 16, Gonzalez was served with papers seeking an
injunction against him for domestic violence.
Gonzalez showed the papers to Property Manager Claudia Sculthorpe. The vice president of the Sunset Harbour
Board and another
Due to a combination of advanced vacation time, scheduled vacation time, and scheduled days off, Gonzalez was off duty from the afternoon of August 16 through 28. On August 18, Gonzalez came to the facility to inform Sculthorpe that he had retained an attorney and was looking for somewhere to stay. Sculthorpe’s superior, Sunset Harbour Director of Front Desk Services David Miller, was present and informed Gonzalez that he had been told that Gonzalez was “hanging around the facility” and “loitering in the building.” Miller further informed Gonzalez that it had been reported that Gonzalez had been sleeping in a common area of the condominium and living out of his car. Miller told Gonzalez that he could not come to the condominium when he was on vacation, and that he could not loiter in the building when he was not on duty. Miller also told Gonzalez that he should not be discussing his personal affairs with condominium residents.
When Gonzalez reported for work on August 31, Miller
informed him that it had been reported that he was continuing to talk about his
personal problems and that he had been loitering on the property. Gonzalez admitted that he had been on the
property over the preceding weekend and that he had spoken with residents about
his personal problems Miller told
Gonzalez that he was being removed from
On September 1, Gonzalez went to the
Due to the volatile nature of Mr. Gonzalez’s domestic situation, [which] he [personally] has made residents of the property aware of, Mr. Gonzalez has been [counseled] (on 08/18/04) to keep his personal matters private and refrain from frequenting the property while . . . off duty. Mr. Gonzalez ignored those warnings, because it was reported that he was seen loitering on the property on 8/21/04 & 8/22/04 (his vacation days). That’s in conflict with Company policy.
The second warning cited Gonzalez for having become “very negative toward Continental,” for giving “false information” to residents regarding Continental’s treatment of its employees,[4] and for “continuing to tell residents of his personal problems.” The warning stated that “this refusal to keep his personal problems to himself was an act of insubordination.”
After Gonzalez signed both warnings, Miller offered
Gonzalez a position as a floater.
Gonzalez rejected that position and indicated that he wanted to remain
at
B. The No-Access Rule
Continental maintains the following rule in the front desk
manual at
Employees are only permitted to be on property while on duty unless you are picking up a paycheck or otherwise advised by the property manager or the Front Desk Coordinator. If you are coming on property while off duty, we expect that you will still follow guidelines and dress neatly. Once again, remember you represent the building and the company. Employees who violate this policy are subject to disciplinary action.
We agree with the judge that under Tri-County Medical Center, 222 NLRB 1089 (1976), this rule is unlawfully overbroad, both as written and as stated by Miller when he told Gonzalez he could not “go to the condominium” while on vacation. Under Tri-County, a no-access rule for off-duty employees will be considered valid only if it
(1)
limits access solely with respect to the interior of the plant and other
working areas; (2) is clearly disseminated to all employees; and (3) applies to
off-duty employees seeking access to the plant for any purpose and not just to
those employees engaging in union activity.
Finally, except where justified by business reasons, a rule which denies
off-duty employees entry to parking lots, gates, and other outside nonworking
areas will be found invalid.
C. September 1, 2004 first written warning
The
first written discipline issued to Gonzalez on September 1 cited him for “loitering
on the property” and “frequenting the property while being off duty,” which was
“in conflict with Company policy.”
Citing Double Eagle Hotel & Casino,
341 NLRB 112, 112 fn. 3 (2004),[6] for the rule that “[d]iscipline
imposed pursuant to an unlawful rule violates the Act,” the judge found that
this warning was unlawful because it was issued pursuant to Continental’s
unlawful no-access rule. For the
following reasons, we reverse.
We
find the circumstances of the instant case distinguishable from those in Double Eagle and related cases in which
the Board has found discipline imposed pursuant to an unlawful rule to be
unlawful. In Double Eagle, three employees were disciplined for violating an
unlawfully overbroad rule prohibiting employees from discussing tips and the
employer’s tip distribution policy anywhere on the employer’s property. This activity, discussing tips and tip
distribution, was protected under Section 7 of the Act. Similarly, in the other cases in which the
Board has applied the Double Eagle
principle, the underlying conduct leading to the discipline has been protected
by Section 7. See, e.g., Saia Motor Freight Line, 333 NLRB 784,
785 (2001) (discipline for distributing union literature in violation of
overbroad no-solicitation/no-distribution rule); Opryland Hotel, 323 NLRB 723 (1997) (discipline for discussing the
union in violation of overbroad no-solicitation rule); A.T. & S.F. Memorial Hospitals, 234 NLRB 436 (1978) (discipline
for distributing union literature in violation of overbroad
no-solicitation/no-distribution rule).
In
contrast, the activities for which Gonzalez was disciplined were not protected
by Section 7. Gonzalez’s first written
warning cites him for “frequenting the property” while off duty and “loitering
on the property” on his vacation days.
Management had received reports from residents that Gonzalez had been
sleeping in a common area of the building, living out of his car, and “hanging
around” the facility, both inside and outside the building, and Gonzales did
not deny these reports.
Under
these circumstances, we find the judge’s application of Double Eagle to be inappropriate.
Section 8(a)(1) is violated by employer acts and statements reasonably
tending to interfere with, restrain, or coerce employees in the exercise of
their Section 7 rights. Here,
the conduct that Continental disciplined Gonzalez for was loitering in its
facility while off-duty. As such, the conduct was clearly not protected.
That the Respondent cited an unlawfully overbroad no-access rule in the disciplinary
notice is insufficient in this context to create a reasonable tendency to
interfere with Section 7 rights and to make the discipline itself
unlawful. Nothing in the notice would have reasonably caused Gonzalez (or
some other employee contemplating the exercise of Section 7 rights) to believe
that Gonzalez was being disciplined for engaging in protected activity. Thus, we reverse the judge’s findings on this
issue and dismiss the allegation.
Because we find that Continental did not violate Section 8(a)(1) in this
instance, we also dismiss the allegation as to
D.
Alleged Discharge of Gonzalez
We
find that Gonzalez was not unlawfully discharged. We do so without passing on Continental’s
contention that Gonzalez was not discharged, but rather resigned his
position. Even assuming Gonzalez’ resignation
was a constructive discharge, that discharge did not violate the Act.
We
affirm the judge’s finding that the Respondents did not violate Section 8(a)(3)
of the Act by discharging or constructively discharging Gonzalez for engaging
in union activity. Although Gonzalez did
engage in some union activity prior to his time off in August, the General
Counsel failed to establish that the Respondents were aware of this
activity. Therefore, the General Counsel
has not established an initial case of discrimination in this instance under Wright Line.[7] Further, we find that, even assuming that the
General Counsel sustained his initial burden, the Respondents showed that they
would have taken the same action even in the absence of Gonzalez’ union
activities. The evidence indicates that
Gonzalez’s transfer was based on the Respondents’ reasonable belief that he had
continued to discuss his personal problems with residents and had been
loitering in and around the building.
This belief constituted a valid, nondiscriminatory basis for the
transfer. We therefore dismiss this
allegation.
We
also find that the Respondents’ conduct in this regard did not violate Section
8(a)(1) of the Act. Although the alleged
discharge was based in part on the first written warning issued to Gonzalez, we
have declined to find that warning unlawful.[8] Therefore, we also decline to find the
further action that followed from that discipline unlawful.
ORDER
The National Labor Relations Board orders that
A. The Respondent,
Sunset Harbour South Condominium Association, Inc.,
1. Cease and desist from
(a) Promulgating or maintaining an overbroad rule
prohibiting access to all
(b) Engaging in surveillance of employees’ union and other protected concerted activities.
(c) In any like or related manner interfering with, restraining, 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) Rescind the overbroad rule described in paragraph 1(a), and notify employees in writing that this has been done and that the rule is no longer in force.
(b) Within 14 days after service by the Region, post at
its facility in
(c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
It is further
ordered that the complaints are dismissed insofar as they allege
violations of the Act by
B. The Respondent,
The Continental Group, Inc.,
1. Cease and desist from
(a) Promulgating or maintaining an overbroad rule
prohibiting access to all
(b) Engaging in surveillance of employees’ union and other protected concerted activities.
(c) Coercively interrogating any employee about union support or union activities.
(d) Threatening employees with unspecified reprisals for engaging in union activities.
(e) Discharging employees for engaging in union activities or protected concerted activities.
(f) In any like or related manner interfering with, restraining, 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) Rescind the overbroad rule described in paragraph 1(a), and notify employees in writing that this has been done and that the rule is no longer in force.
(b) Within 14 days from the date of this Order, offer Marvin White and Leydis Borrero full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
(c) Make Marvin White and Leydis Borrero whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the judge’s decision.
(d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharges of Marvin White and Leydis Borrero and, within 3 days thereafter, notify them in writing that this has been done and that the discharges will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to determine the amount of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its offices in
(g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
It is further ordered that the complaints are dismissed insofar as they allege violations of the Act by The Continental Group not specifically found.
Dated,
Peter C. Schaumber, Chairman
Wilma
B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX A
Notice to Employees
Posted By Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not
promulgate or maintain an overbroad rule prohibiting access to all
We will not engage in surveillance of employees’ union and other protected concerted activities.
We will not in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
We will rescind the overbroad rule prohibiting access to all
APPENDIX B
Notice to Employees
Posted By Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not promulgate
or maintain an overbroad rule prohibiting access to all
We will not engage in surveillance of employees’ union and other protected concerted activities.
We will not coercively interrogate employees regarding their union activities.
We will not threaten employees with unspecified reprisals for engaging in union activities.
We will not discharge employees for engaging in union activities or protected concerted activities.
We will notin any like or related
manner interfere with, restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
We will rescind the overbroad rule prohibiting access
to all
We will, within 14 days from the date of the Board’s Order,
offer Marvin White and Leydis Borrero full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent jobs, without
prejudice to their seniority or any other rights or privileges previously
enjoyed.
We will make Marvin White and Leydis Borrero whole for any loss of earnings and other benefits suffered as a result of our discrimination against them, less any net interim earnings, plus interest.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharges of Marvin White and Leydis Borrero, and we will, within 3 days thereafter, notify them in writing that this has been done and that the discharges will not be used against them in any way.
The Continental Group, Inc.
Shelley B. Plass
and Marinelly Maldonado, Esqs., for the
General Counsel.
Joan M. Canny, Esq., for the Respondent (The Continental Group, Inc.).
Michael L. Hyman and
Kathleen M. Phillips and Katchen Locke, Esqs., for
the Charging Party.
DECISION
Statement of the Case
George Carson II, Administrative Law Judge. This case was
tried for 11 days in
On the entire record, including my observation of the demeanor
of the witnesses, and after considering the briefs filed by the General
Counsel, the Respondent Continental, and the
Findings of Fact
i. jurisdiction
The Respondent The Continental Group, Continental, a Florida
corporation with offices in Hollywood, Florida, is engaged in the business of
managing property for condominium associations including various associations
located in Miami Beach, Florida. In conducting its business, Continental annually
derives gross revenues in excess of $500,000 and purchases and receives goods
and materials valued in excess of $50,000 directly from points located outside
the State of
The Respondent Sunset Harbour South Condominium Association,
ii. alleged unfair labor practices
A. Overview and Procedural Matters
This case arises in the context of efforts by the Service
Employees International Union, the SEIU, to organize condominium workers in
The arrangements by which management services are provided to condominiums differ among the companies providing those services and, even with the same company, differ with the contractual agreements into which the parties enter. With regard to Continental, in some instances, Continental is the employer of some or all of the employees. In other instances, some or all of the employees are employed by the condominium but supervised by a Continental Property Manager. The foregoing arrangements lead to joint employer issues, of which there are two in this proceeding.
Counsel for Continental argues that the complaint allegation in Case 12-CA-24070 relating to a written no-access rule at Sunset Harbour is predicated upon an amended charge that the General Counsel impermissibly solicited and that the second amended charge in Case 12-CA-24448, which alleges the termination of an employee at Sands Pointe Ocean Beach Resort Condominium pursuant to a rule prohibiting discussions with residents, was solicited.
Longstanding Board precedent establishes that “it is the duty of the General Counsel, in discharging his responsibilities as a public official charged with enforcing public rights, to take proper measures calculated to effectively remedy all of the unfair labor practices . . . revealed by the investigation.” Petersen Construction Corp., 128 NLRB 969, 972 (1960). See also Marbro Co., 284 NLRB 1303 (1987). Section 10062.5 of the current National Labor Relations Board Casehandling Manual (Part One) Unfair Labor Practice Proceedings, in pertinent part, provides:
Where the investigation uncovers evidence of unfair labor practices not specified in a charge, Board agents, with appropriate supervision, must determine whether the charge is sufficient to support complaint allegations covering the apparent unfair labor practices found. . . . If the allegations of the charge are too narrow, not sufficiently specific or otherwise flawed, the charging party or its representative should be apprised of the potential deficiency . . . and given the opportunity to file an amended charge.
Counsel asserts that the amendment of the charge in Case 12–CA–24070 establishes that the General Counsel violated the assurance of confidentiality given to a witness with regard to his affidavit. The assurance of confidentiality that “this affidavit will be considered confidential” relates to the affidavit, not the facts disclosed by the investigation. Board precedent and procedures require that Board agents bring the facts disclosed in an investigation to the attention of Charged Parties and Charging Parties. Furthermore, neither of the foregoing amendments has any bearing upon the resolution of this case. The complaint in Case 12–CA–24070 alleges, in addition to a written no-access rule, that, on August 18, David Miller, a Continental supervisor, “denied off duty employees access to the Sunset [Harbour] facility,” thus any remedy would encompass all such prohibitions. In Case 12–CA–24448, I find that the alleged unlawful rule, as clarified, did not violate the Act.
B. The Labor Organization Issue
The answers of both Continental and
Pursuant to authority set out in Article XIV of the SEIU International Constitution, the International President charted Local 11 on January 15, and issued a temporary constitution and bylaws. The constitution and bylaws, in article I state:
In order to form a strong and democratic structure in
which to organize and represent building service workers in the state of
The purpose of this Union is to work to improve the lives
of our members and their families by organizing and representing all building
service workers in the state of
The purpose of this Temporary Constitution and Bylaws is to provide a governing structure for Provisional Organizing SEIU Local 11 until such time as the members of Provisional Organizing SEIU Local 11 can adopt their own permanent Constitution and Bylaws.
Robin Schuler was appointed President of the newly formed
local union. Various union employees, including Organizing Director Eric
Brakken, who was at that time employed by the International Union, were
assigned to the organizational campaign. Union representatives contacted
condominium workers and sought to have them support Local 11 in its
organizational objectives. Employees participated in Local 11, as explained by
Brakken, through meetings with organizers to “discuss strategies in terms of
building support among condominium workers in
The evidence establishes that Local 11 is an organization
in which employees participate and that exists for the purpose, “in whole or in
part, of dealing with employers concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work.” I find that at all
times material herein, the
The foregoing finding is immaterial to the disposition of the allegations framed by the complaint. There are no representational issues in this case. Insofar as the Respondents believed that they were opposing the organizational efforts of a union, the actual status of Local 11 is immaterial. In Electrical Contractors, Inc. v. NLRB, 245 F.3d 109 (2d Cir. 2001), the court of appeals affirmed the Board’s finding that the entity therein was a labor organization and also pointed out that the foregoing finding was immaterial in view of “[t]he antiunion letters that ECI [the respondent] circulated to its employees [which] make clear that ECI itself believed that CLMCC [the entity in question] had strong connections to some union.”
Both Continental and
In this case, as in Electrical Contractors, Inc.,
the documents of Continental and
C. The Joint Employer Issues
Continental denies that it was, at the times relevant
herein, a joint employer with Executive, which has entered into a settlement
with regard to the allegations against it. At the times relevant to the
complaint, Continental provided a property manager to executive who oversaw the
work of housekeeping and maintenance employees, employees of Continental, as
well as the work of the valet employees who were employees of Executive. Schedule
I of the contract between Continental and Executive provided that terminations,
new hires, and salary adjustments had to be approved by Executive’s Board of
Directors. The Board, in Riverdale Nursing Home, Inc., 317 NLRB 881 (1995),
held that in determining whether two entities are joint employers, the appropriate
inquiry is whether “the two employers ‘share or codetermine those matters
governing the essential terms and conditions of employment.’ TLI, Inc., 271 NLRB 798 (1984), citing NLRB v. Browning-Ferris Industries, 691 F.2d 1117 (3d Cir. 1982).
The employer in question must meaningfully affect ‘matters relating to the
employment relationship such as hiring, firing, discipline, supervision, and
direction.’ TLI, supra.”
The answers of Continental and
D. The Surveillance Allegations
1. August 19, 2004
In late 2003 and early 2004,
At the conference, Mandenbloom sat with Roses, Madeline Perl, Continental’s director of human resources, and two of Continental’s public relations employees. An individual whom he did not know photographed those Continental officials. Mandenbloom, who carries a cellular telephone that also takes photographs, reacted and used his cellular telephone “to pretend I was taking their picture.” He acknowledges that this occurred “two or three times.” Mandenbloom denied that he actually took any photographs at the press conference.
Howard Williams, an employee of Continental, is a front
desk concierge at the
Following the presentations at the conference, Williams
waited with others for their vehicles to be brought from the parking area.
Because of the number of people, the valets at the Wyndham were quite busy. The
wait was 15 or 20 minutes. While waiting,
Although Williams recalled that the individual he now
knows to be Mandenbloom appeared to be taking pictures,
Mandenbloom confirms that, while waiting for a ride, he was writing notes to himself on “little cards.” Holly Hutchinson had been introduced at the press conference. Mandenbloom testified that, while writing notes, he was confronted by an individual who he had seen “talking with Union people, like Ms. Hutchinson.” The individual asked if he was “getting tag numbers” and then asked if he “would like me to help you get ta[g] numbers.” Mandenbloom, who did not deny telling the individual not to “mess with him,” testified that, to avoid an altercation, he began walking down the ramp. The individual called to him and, when he turned, he observed that the individual had a camera. Mandenbloom then raised his cellular telephone as if to take a picture, but “I never took any pictures.”
Moronto did not testify. Mandenbloom, consistent with the
testimony of
The complaint alleges that Continental engaged in surveillance by photographing employees and writing down license plate numbers. Williams, the only employee of Continental identified as being at the conference, observed that Mandenbloom, whom he did not know, appeared to be taking pictures of guests following the conference. Williams did not claim that Mandenbloom ever appeared to photograph him. The evidence establishes that Mandenbloom appeared to be writing down the license tag number of a vehicle driven by a union organizer. The predicate for unlawful surveillance is coercion or interference with the Section 7 rights of employees. The foregoing actions by an individual whom employee Williams did not know did not impinge upon the rights of employees. I shall recommend that this allegation be dismissed.
2. September 29
On the evening of September 29, the Union sought signatures
on a petition seeking the reinstatement of two employees, Mercedes Medina and
Phillip Gonzalez, to their positions at
It is not unlawful for employers to photograph union activity in order to document that the participants are trespassing or blocking ingress and egress. Chariot Marine Fabricators, 335 NLRB 339, 348 (2001). I shall recommend that this allegation be dismissed.
3. October 28
About a month after the circulation of the petition on September
29, the Union conducted a mock election outside the
At dusk, Continental District Manager Karen Dubose and
Claudia Sculthorpe, Continental’s property manager at
The Board, in F. W. Woolworth Co., 310 NLRB 1197 (1993), reaffirmed
longstanding precedent that “absent proper justification, the photographing of
employees engaged in protected concerted activities violates the Act because it
has a tendency to intimidate.” Unlike the situation on September 29, there is
no claim that the employees were blocking the sidewalk. The Respondent
Continental characterizes the actions of the two Continental managers as “limited
attempted phototaking” and points out that the only Continental employees present,
4. February 17, 23, and March 17, 2005
On the foregoing three dates the Union engaged in demonstrations
on the sidewalk across from the
The complaint concerning these allegations alleges that
In Washington Fruit and Produce Co., 343 NLRB 1215, 1217 (2005), the Board sets out the standard upon which surveillance allegations are evaluated as follows:
[T]he fundamental principles governing employer surveillance of protected employee activity are set forth in F. W. Woolworth Co., 310 NLRB 1197 (1993). The Board in Woolworth reaffirmed the principle that an employer’s mere observation of open, public union activity on or near its property does not constitute unlawful surveillance. Photographing and videotaping such activity clearly constitute more than mere observation, however, because such pictorial record keeping tends to create fear among employees of future reprisals. … The inquiry is whether the photographing or videotaping has a reasonable tendency to interfere with protected activity under the circumstances in each case.” [Citations omitted.]
The General Counsel, citing Holly Farms Poultry Industries, Inc., 186 NLRB 210 (1970), argues
that the photographing herein “occurred in the presence of employees.”
The complaint allegations regarding these three incidents
in 2005 relate only to
E. The Discharge of Marvin White
1. Facts
Marvin White was hired as a valet at the Executive in early July by Property Manager David Keller, a supervisor of Continental. He was discharged less than 2 months later, on August 24, purportedly because the Board of Directors of the Executive eliminated the key control position. When hired, White’s duties included parking cars and assisting residents with their packages. He also served as a front desk concierge and, on occasion, was responsible for cleaning the pool. About 2weeks after he began working at the Executive, Keller assigned White the job of key control. This duty required White to escort crews who were remodeling the building to the locations at which their work was to be performed. On those occasions that construction crews needed access to locations inside the facility, White would go to the manager’s office and obtain the master key for the particular unit to which the crew needed access from secretary Cheryl Moore.
In 2004, before he left as property manager, Keller distributed a 2 page document on Continental letterhead signed by President Richard Strunin and addressed “To our employees and their families.” The letter notes that “union organizers are trying to get our employees to attend union meetings, and sign union cards or union petitions” and that Continental is “100% AGAINST A UNION GETTING INTO OUR COMPANY.” [Emphasis in the original.] Keller distributed a second document informing employees that if they had signed a union authorization card they could “write the union and ask them to cancel the card.”
Keller ceased to serve as property manager in late July. After a 2 week hiatus, Angela Arrango became the property manager on August 9.
During that hiatus, White had his first contact with the
White brought some of the pledge cards back to the
facility. He spoke about the
During the hiatus between Keller and Arrango, White informed former Property Manager Keller, who called a couple of times to assure that there were no problems, that he had talked with a union representative and asked whether Keller knew if the Board of the Executive was going to give the employees better benefits and pay raises, “because those were the things that the workers. . . were always talking about.” Keller informed White that the Board’s annual meeting was in September and that it had been discussed that the employees might receive benefits and a pay raise.
After White was hired, a new employee, Mark, “an older guy,” was hired as a valet. White believed that he was hired part time. Arrango did not dispute that testimony.
In mid-August, shortly after Arrango became property manger,
Lloyd Stephens, another valet, was present at the front desk. Dr. Merry Haber, secretary
of the Executive board of Directors, drove up and observed White speaking to
Lauria outside of the building. When Dr. Haber entered the building, she came
to the front desk and asked Stephens who White was speaking with. Stephens, who
had previously spoken with Lauria, informed Dr. Haber that he was talking to
the lady “from the
Shortly after this, White and Stephens were both at the
front desk. White recalls that Arrango came to the desk, looked at it, and
stated “this will not do.” She began picking up business cards, fast food
menus, and other papers that were spread out upon it. As she was picking up the
various papers, she picked up the union pledge cards that White had brought to
the facility. Stephens recalled that the union document was a pamphlet. I
credit White’s recollection since he brought the cards to the facility. White
credibly testified that, when Arrango saw the pledge cards, he “thought she was
going to have a heart attack,” that she “became very red and she became very,
very upset.” She asked, “What are these? How did these get here? Who do these
belong to?” White did not respond. Stephens answered, “I don’t know.” He recalls
that Arrango stated that she did not want anything involving the
. . . [s]he doesn’t want it around,” and that whoever is found with it is “going
to be in big trouble.” White, whom I credit, recalls that Arrango stated that “somebody’s
been helping the
Arrango agreed that she had cleaned up the front desk, but
testified that Legros was present when she did so and that she simply “put the
stuff in boxes” and took it to the office. Legros did not corroborate that
testimony. Arrango claims that the first time that she was aware of any
activity involving the
On the Friday following Arrango’s discovery of the pledge
cards, she held a meeting of the employees. Although differing with regard to
exactly what was said, White, Stephens, and employee Kolson Brutus confirm that
Arrango stated that she was aware that representatives of the
The board of the Executive met on Monday, August 23. On Tuesday, August 24, Arrango called White to her office when he reported to work. Dr. Haber, secretary of the board, was present. Arrango told White, “[W]e’re going to have to let you go.” Dr. Haber informed White that “they could no longer afford the key control position. The budget did not allow it.” White recalled that Dr. Haber stated that he was one of their best employees and that “they’re not eliminating the man, but they are eliminating the position.” White responded that he was not hired for key control, that key control was an added duty that he was “hired as a valet and key control was something that I did in addition to my other duties.” He stated that he had not done key control since Arrango arrived and that another valet had been hired after him and “he still had a job.” He asked why they did not let that person go. Dr. Haber did not respond. White stated that he knew why he was being fired but that he was “not going to sit here and get into it now.” Dr. Haber did not testify.
Property Manager Arrango purports to have initiated the discharge of White because of financial considerations. Arrango had assumed the position of property manger on August 9, and had, therefore, only been at the facility for 2 weeks when the Board met on August 23. In the week prior to the meeting, Arrango individually called the members of the Board and recommended terminating White. I do not credit her denial that she was aware of White’s union activities at that time, nor do I credit her claim that she did not apprise the board members of White’s union activities when she called them. Her recommendation to discharge White was effectuated by the Board of Directors pursuant to a motion by Dr. Haber. When asked whether she recalled what Dr. Haber told White when he was discharged, Arrango answered, “Not exactly. She mentioned due to the financial restraints on the building, the position, key control position was terminated.” Arrango did not deny that White pointed out that he was a valet, that key control was an additional duty, and that another valet had been hired after him.
Although White informed Dr. Haber that he had not performed
key control work since Arrango became the property manager, he testified that
he had performed the job after her arrival on perhaps two occasions. He
explained that Arrango brought her own secretary with her, demoted Cheryl Moore
to part time, changed the lock on the door to the closet in which the keys were
kept, and informed the employees that if they need keys, “then you come to me.”
Arrango did not deny changing the lock, but denied that she kept the keys,
testifying that they “were in the outside office with a box.” She did not deny
bringing her own secretary and reducing
Former employee Kolson Brutus confirmed that Arrango made various changes. Formerly he had worked a regular shift from 4 p.m. to midnight. After Arrango became property manager, there were new procedures, “[w]e had to switch with people, work in the pool, and also the front desk.” Brutus testified that his schedule was “changed every week.” Arrango did not dispute the foregoing testimony
George Legros confirmed that a schedule prepared by Keller prior to his departure showed White as responsible for key control, but it does not show how often it was necessary for White actually to perform that assignment. White recalled that he performed it about seven times when contractors had to be escorted to condominium units. Legros and Stephens agree that, in addition to performing key control work, White worked as a valet, at the front desk, and at the pool. Stephens recalled that, when no one was covering the pool, White would “take his tie and shirt off” and perform that duty. After White was discharged, Legros performed key control work. Brutus recalled working up to 16 hours and that his work included cleaning the elevator used by the contractors, that White “used to take care of the elevator, to take off all the stuff” after the contractors’ work was completed.
Arrango testified that White was terminated pursuant to her recommendation “to terminate the key control position.” In a pretrial affidavit signed by Arrango, she initially stated that Georges Legros informed her that White “was used for the key control position.” Arrango struck that line from the affidavit so that it stated that Legros told her that White “helped him, did the same thing Georges [Legros] did . . . .” At the hearing, Arrango asserted that she observed White “sitting with George Legros at the front desk doing nothing.” When asked whether “he sat there and did nothing and you paid him?” Arrango answered, “Until his position was terminated, yes.” I find the foregoing assertion to be incredible.
2. Analysis and concluding findings
The complaint alleges that the Respondent Continental and Executive, on August 17, interrogated employees regarding their activities on behalf of the union, threatened unspecified reprisals for engaging in union activities, and issued a directive prohibiting employees from speaking with union representatives, and, on August 20, prohibited employees from bringing union paraphernalia to work and threatened discharge for engaging in union activities.
There is no credible evidence that Arrango, on August 20, when informing the employees that nonemployee union representatives were not permitted on the property, ever specifically threatened discharge or directed employees not to bring union paraphernalia to work. I shall recommend that the allegations relating to August 20, be dismissed.
Arrango’s questioning of White and Stephens regarding how the union pledge cards had gotten onto the front desk and to whom they belonged was coercive. It followed her direction to Stephens to have Lauria leave the property and preceded her stated intention to “get to the bottom of this.” Arrango’s informing White, who unlike Stephens had not said that he did not know to whom the documents belonged, that she was holding him responsible threatened an unstated reprisal. The threat of reprisal is confirmed by Stephens’ recollection of Arrango’s remarks which he interpreted as threatening “big trouble.” If the possession of union pledge cards was of no concern to Arrango, there would be no need to “get to the bottom of this” or to hold anyone responsible. I find that the Respondent Continental coercively interrogated employees regarding their union activities and threatened unspecified reprisals for engaging in union activities in violation of Section 8(a)(1) of the Act.
Although Arrango directed that union representatives not be permitted on the property, there is no evidence that she issued a prohibition against speaking with union representatives. I shall recommend that the allegation in that regard be dismissed.
In assessing the evidence concerning the discharge of
White under the analytical framework of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), I find that White did engage in
union activity and that the Respondent Continental and Executive were aware
that he engaged in union activity. The Respondent Continental, by the coercive
interrogation and threat by Property Manager Arrango, expressed animus towards
employee union activity. The discharge of White was an adverse personnel
action. The General Counsel established that White’s activities on behalf of
the
Property Manger Arrango initially testified that she recommended that “the key control position” be eliminated. The record establishes that there was no key control position. Key control was an additional duty. Arrango struck from her pretrial affidavit the line that stated that Legros informed her that White “was used for the key control position.” Thereafter, she incredibly claimed that she observed White “sitting . . . doing nothing.” Despite this, she did not assign him to do anything or send him home for lack of work. White, front desk manager Legros, Brutus, and Stephens confirm that White performed various tasks, including working as a valet, at the front desk, and at the pool.
The discharge of White was initiated by Arrango. Although purportedly acting because of financial restraints, no financial analysis performed by Arrango was offered into evidence. The agreement pursuant to which Continental managed the Executive provides that all new hires must be approved by the Board of Directors. Thus, notwithstanding any alleged budget restraints, Property Manger Keller had been authorized to hire a valet, and he hired White in early July. Thereafter, he assigned him the additional duty of key control, a function that White performed when construction personnel were present. Keller did not testify.
When White informed Keller that he had spoken with a union representative and that employees were talking about better benefits and pay raises, Keller responded that the Board’s annual meeting was in September and that benefits and a pay raise had been discussed. Notwithstanding alleged budget restraints, after White was hired as a valet, an older individual, Mark, was hired as a valet. When Property Manager Arrango assumed her duties on August 9, she brought her own secretary with her, but retained Cheryl Moore, albeit on a part-time basis.
The foregoing facts compel the conclusion that alleged financial
constraints were a pretext. Neither Dr. Haber nor any other member of the
Executive Board of Directors testified. There is no explanation for hiring
White in early July and, thereafter, hiring Mark despite alleged financial constraints.
Nor is there any explanation for permitting Arrango to bring her own secretary
with her while retaining
I have not credited Arrango’s denial that she was aware of White’s union activities or her claim that she did not apprise the members of the Board of those activities. No Board member testified in corroboration of Arrango’s denial that White’s union activity was mentioned when she called each of them prior to the Board meeting. The approval of her recommendation to discharge White was effectuated pursuant to a motion by Dr. Haber. White’s testimony that he told Dr. Haber that key control was an additional duty and that a valet had been hired after him is uncontradicted. The failure of Dr. Haber give an explanation for the action of the Board confirms that any explanation would confirm that the asserted reasons for White’s termination, financial constraints and the elimination of a position that was simply an additional duty, was pretextual and that any explanation would have related to White’s union activity. When the asserted reason for the adverse personnel action is either false, or does not exist, the Respondent has not rebutted General Counsel’s prima facie case. Limestone Apparel Corp., 255 NLRB 722 (1981).
The Respondent Continental has not established that White would have been discharged in the absence of his union activity. Case 12-CA-24097, insofar as it relates to the joint employer Executive, has been settled; therefore, no finding shall be made with regard to Executive. I find that the Respondent Continental discharged employee Marvin White because of his union activities in violation of Section 8(a)(3) of the Act.
F. The Allegations Relating to Phillip Gonzalez
1. Facts
Phillip Gonzalez began working at the
Prior to April 1, the Continental property manager at
About April 1, Claudia Sculthorpe became Continental’s property
manager at
Gonzalez spoke with Sculthorpe after he learned that
Gonzalez testified that he had gone by the office of the Union
prior to the transfer of
On August 16, Gonzalez had been served with a document seeking an injunction against him for domestic violence. His wife was the petitioner. There was no criminal complaint. Gonzalez was not arrested. Gonzalez was scheduled for 1 week of vacation the following week. His direct supervisor, James Vilson, arranged for vacation to be advanced to Gonzalez. He took off the remainder of August 16, and was on leave from August 17—26. August 27 and 28 were his scheduled days off. Gonzalez returned to work on August 29.
On August 16, Gonzalez showed the papers with which he had been served to Property Manager Sculthorpe. Vice President of the Sunset Harbour Board Winston Lett was also present. Gonzalez recalls that a resident, Alan Fine, came into the room at some point when he was discussing his situation with Sculthorpe. Gonzalez admits speaking about his personal problem with one resident, Bonnie Cutler, who recommended the attorney who thereafter represented Gonzalez.
Continental maintains the following rule in the front desk
manual at
Employees are only permitted to be on property while on duty unless you are picking up a paycheck or otherwise advised by the property manager or the Front Desk Coordinator. If you are coming on property while off duty, we expect that you will still follow guidelines and dress neatly. Once again, remember you represent the building and the company. Employees who violate this policy are subject to disciplinary action.
On August 17, Gonzalez came to the facility and informed
Property Manger Sculthorpe that he had an attorney and was looking for
somewhere to stay. Sculthorpe’s superior, Director of Front Desk Services David
Miller, was present. Miller told him that he had heard that Gonzalez had been “hanging
around the facility” and “loitering in the building.” Although Gonzalez denied
having done so, Miller told him that he could not “go to the condominium” while
he was on vacation. Miller recalled that he told Gonzalez that it had been reported
that Gonzalez had been sleeping in a common area of
Miller also informed Gonzalez that he should not be sharing his personal problems regarding domestic violence with residents because it upset them. Gonzalez testified that he had not done that, but he did not testify that he denied having done so to Miller. His response to Miller was, “I told him I understood.”
Gonzalez recalled that on one day, he did not remember the date, he came to the facility to keep Sculthorpe updated. President of the Sunset Harbour Board, Juan Duarte, called Sculthorpe’s office and spoke with him, stating that he had heard that Gonzalez had been speaking to residents, that it was not his concern what happened to Medina, that it had been reported that he had been loitering in the building, and that he should keep his mouth shut because it was none of his concern.
The hearing regarding the domestic violence matter was held on January 19. Following the hearing, on January 19, the attorney who represented Gonzalez wrote him confirming that the case was civil, not criminal, that he was to have no contact with his wife, that the judge had made no finding, and that “nothing negative has happened to you.” Gonzalez testified that he showed that letter to Property Manager Claudia Sculthorpe “when I returned to work” and that she made a copy of it and “was happy the case was over with and my name was cleared.” Gonzalez’ days off were Friday and Saturday. The office was closed on Saturday and Sunday. I find it doubtful that Gonzalez would have returned to work on Sunday, the 29th, without having coordinated with Sculthorpe. Since the office is closed on weekends, it would appear that Gonzalez showed the letter to Sculthorpe prior to his actual return to work.
Gonzalez returned to work on August 29. Several residents,
observing that
On the morning of August 31, when Gonzalez reported to
work, he saw that Supervisor James Vilson, Director David Miller, and an
employee, whose last name was
The following morning, September 1, Gonzalez drove to the
Continental offices in
The first warning cites Gonzalez for “loitering on the property
on 8/21 and 8/22.” Gonzalez admits reading the warning sometime after he signed
it. He did not deny, either to Continental or at the hearing, coming onto
The second warning, prepared by Miller, states that, on August 30, Miller was informed that Gonzalez “had become very negative toward Continental” and was falsely informing residents that two front desk managers had been fired when, in fact they had been transferred. The warning states that on August 31, Miller was informed that Gonzalez was “continuing to tell residents of his personal problems.” Gonzalez’s admission that he stated that that Progressive had treated employees like family implied that Continental did not treat employees like family, and he did not deny that he informed residents that two front desk managers had been fired rather than transferred. At the hearing, Gonzalez denied having shared his personal problems with the exception of his conversation with Sculthorpe that was overheard by Vice President Lett and resident Fine and his conversation with resident Bonnie Cutler who assisted him in obtaining an attorney. He did not, however, ever deny to Miller that he had spoken to residents about his personal problems. Gonzalez did not deny informing residents that two front desk managers had been fired instead of transferred.
Miller claims that he offered Gonzalez the opportunity to
transfer to another property, but he did not identify the property. Mandenbloom
recalls that Miller offered Gonzalez a position as a floater “for a short time
until we could find him a property,” and that Gonzalez rejected that offer and
stated that he wanted to remain at Sunset Harbour. As a floater, Gonzalez would
have no regular schedule or fixed location at which he would be working. Mandenbloom
recalled that Miller told Gonzalez that remaining at
Gonzalez returned to the vehicle. Union Representative Perez examined the documents that Gonzalez had been given and told him that he should not have signed them, to go back. Gonzalez did so. He spoke with Miller and Mandenbloom, telling them, “I refuse all this.” Miller suggested that Gonzalez speak with Vilson who had arrived. Gonzalez told Vilson, “I don’t accept this. I refuse this.” According to Gonzalez, Vilson stated that he didn’t know what to tell him and that was the end of their conversation. Vilson recalled that Gonzalez had questions regarding the options that he had been given, that he informed him that he was working on a transfer, that Gonzalez should consider what he was doing and to come back the following day.
Gonzales returned to
I do not credit the testimony that Gonzalez was offered a full-time position at any time. Mandenbloom confirms that he was offered a position as a floater “for a short time until we could find him a property,” that Gonzalez rejected that offer and resigned. No document reflecting the offer of a full-time position was offered into evidence. Whether Gonzalez was offered a position as a floater on both September 1 and 2, or only on September 2 is immaterial. He acknowledges rejecting the offer of a floater position on September 2.
A memorandum from Supervisor Vilson to the
2. Analysis and Concluding Findings
The complaint alleges that the rule limiting the access of off-duty employees at Sunset Harbour violates the Act, that the Respondents, by Miller, “denied off duty employees access to the Sunset [Harbour] facility” on August 18, that Sculthorpe and Duarte prohibited employees “from discussing their terms and conditions of employment,” and, on September 1, in writing, denied off-duty employees access to the Sunset [Harbour] facility and prohibited them from discussing terms and conditions of employment.
There is no evidence that Gonzalez was ever directed not
to discuss terms and conditions of employment. The General Counsel’s brief sets
out no such rule but argues that the prohibition occurred when Duarte forbade
Gonzalez to speak about Medina’s transfer and when Gonzalez was issued the
second warning on September 1 that referred to his falsely telling residents
that front desk employees had been terminated rather than transferred. I have
found that
On August 18, Miller told Gonzalez that he could not “go
to the condominium” while he was on the vacation leave that he had been given.
The foregoing prohibition is consistent with the rule in the front desk manual
that prohibits off-duty employees from coming onto the property except to pick
up a paycheck or with authorization. Tri-County Medical Center, 222 NLRB 1089 (1976),
holds that a no-access rule concerning off-duty employees is valid only if it
(1) limits access solely with respect to the interior of the plant and other
working areas; (2) is clearly disseminated to all employees; and (3) applies to
off-duty employees seeking access to the plant for any purpose and not just to
those employees engaging in union activity, and that except where justified by
business reasons, a rule which denies off-duty employees entry to parking lots,
gates, and other outside nonworking areas will be found invalid. Although
The Respondents offered no business justification for denying
Gonzalez access to
The complaint alleges that the Respondents, on September 1, issued two disciplinary actions to Gonzalez and “discharged or constructively discharged” him because he engaged in union activities, protected concerted activities, and “based upon the rules described above.”
In assessing the evidence under the analytical framework of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), notwithstanding the Respondents’ animus towards employee union activity, there is no evidence that the Respondents were aware that Gonzalez had engaged in any union activity and there is no evidence that he engaged in protected concerted activity.
Regarding union activity, Gonzalez testified that he had a
feeling that he was going to be the next to be transferred before allegedly
engaging in any union activity. He signed the union pledge card given to him by
There is no evidence that Gonzalez engaged in any protected
concerted activity unrelated to the
The Respondents’ no-access rule violates Section 8(a)(1)
of the Act. The first warning issued to Gonzalez on September 1, cites him for “loitering
on the property on 8/21 and 8/22” after being told not to be on the property
when off duty. Director Miller testified that he issued that warning based upon
a report that he had received. He testified that, when Gonzalez was removed
from
The warning of September 1, was a first written warning in
Respondent Continental’s progressive discipline system. There is no probative
evidence that he was removed from
The second warning refers to Gonzalez having “become very
negative toward Continental” and cites him for falsely informing residents that
two front desk managers had been fired rather than transferred and “continuing
to tell residents of his personal problems.” The General Counsel points out
that the Act’s protection extends to statements that are not knowingly false;
however, Gonzalez knew that Ponton and
The Respondent Continental offered Gonzalez a position as
a floater notwithstanding the fact that he had made comments about Continental
that it perceived as critical and its belief that he had continued to discuss
his personal situation with residents at
G. The Discharge of Leydis Borrero
1. Facts
The complaint alleges that Continental discharged employee Leydis Borerro for engaging in protected concerted activity. Borrero worked for Continental from 1995 until her termination on January 28, 2005. For over 2 years she had worked at the Sands Pointe Ocean Beach Resort Condominium, Sands Pointe. She was assigned to housekeeping and was responsible for the lobby and the gymnasium. On January 9, 2004, Emilia Nabais became the property manager at Sands Pointe.
The basic facts are not in dispute. Employee Mario Cifuentes
worked as a maintenance employee of Continental at Sands Pointe. In late
November, he sought a leave of absence in order to return, for personal
reasons, to his native country,
Cifuentes remained on the property and, at lunch, spoke with employee Leydis Borrero. He explained to her that Nabais had informed him that “they did not have my position ready any more.” Borrero informed Cifuentes that a board member she knew as Peter had been asking about him and that, if Cifuentes wanted to, she would “go up to his penthouse” with him. Cifuentes recalled that Borrero said that she would talk to a person on the board of the condominium “to see if they could help me in something so that I could start working again.” Borrero, accompanied by Cifuentes, went to the unit of Board Member Spiro Colivas, the individual who Borrero knew as Peter.
According to Cifuentes, Borrero did most of the talking, in Spanish and “a little bit of English.” Board Member Colivas, according to Cifuentes, speaks English and a “very little Spanish.” Borrero informed him of Cifuentes’ situation, contenting that “they had taken me out of the condominium without any just cause.” Coliovas stated that he would speak to Nabais “to see what happened with my position.”
Borrero recalled that she explained to Colivas that they had come to see him because Nabais did “not want to give him his position.” According to Borrero, Cifuentes asked why they were not giving him his position, “what was going on.” Cifuentes and Colivas were speaking in English “because Mario [Cifuentes] speaks a little bit of English, a little more than me.” Cifuentes began to try to say that he worked harder than other employees, but Borrero interrupted and stated that they were not there “to talk about who works and who doesn’t work,” that they were there “to try to get his own job back.” Borrero recalls that Colivas and Cifuentes exchanged telephone numbers.
Board Member Colivas sent an e-mail to Nabais at 4:06 p.m. on January 27, 2005, identifying Cifuentes as “Mario” who “used to work in receiving” and explaining that Borrero had approached him when she saw him walking in the facility about Cieuntes “not being allowed to come back,” that he explained that he did not have any power to hire or fire people, but that he agreed “to talk with you [Nabais] to see what the circumstances were and if he was eligible to come back . . . . “ The e-mail continues, stating that, shortly after that conversation, Borrero and Cifuentes appeared at his apartment. He stated that he repeated his commitment “to connect with you [Nabais] . . . by phone or e-mail to discuss the matter,” and that Cifuentes gave him his telephone number. The e-mail concludes, “When you get a chance, please let me know when we can get together discuss Mario and what the situation is or was. Thanks for your time.”
Nabais sent the e-mail to her supervisor, Ophelia De La Torre, a Continental district manager responsible for eight to ten condominiums including Sands Pointe. De La Torre testified that she called Colivas who she claims was dumbfounded that Borrero had approached him and stated that he did not want “anyone coming to my home and disturbing my peace to talk about a friend and trying to get their friend hired.” De La Torre says she also received a call from Board President Isaac Alian, “about this situation,” but she did not place a date or time upon that conversation.
I do not credit De La Torre. Neither Colivas nor Alian testified. The e-mail from Colivas reveals that he knew that Mario, who he identified by name, had worked at Sands Pointe in receiving and that the issue was his “not being allowed to come back.” The e-mail confirms that, although informing Borrero that he had no authority to hire or fire, Colivas committed himself to contact Nabais to see “if he was eligible to come back.” I find it incredible that Colivas, having contacted Nabais and requested a meeting with her regarding “Mario’s” eligibility to “come back” would, as asserted in De La Torre’s hearsay testimony, claim that Borrero was “disturbing his peace” by trying to get her “friend” hired. If that had been his attitude, he would, after informing Borrero that he had no authority, told her to take the problem to Nabais or to her superior.
The following day, around 4 p.m., Borrero was called to Nabais’s office. The secretary was present and a supervisor, Frank, was in and out of the room during the short meeting. Nabais and Borerro spoke in Spanish. Nabais informed Borrero that she was fired, to turn in her keys and radio. Borrero asked why she was being terminated and Nabais replied “because I had gone to help Mario to speak to the Board.” Borrero answered that if that was a problem, “I accept it.” Nabais commented that Borrero had thrown away her time with Continental. Borrero answered that she was not going to change, “that is my way of being by helping other people.” Nabais asked why she had “gone to speak with the Board,” and Borrero replied, “[N]o, what I did was accompany Mario to the penthouse.”
The termination document signed by Nabais and dated January 28, 2005, states:
Employee has been individually coached several times. She does not care nor take pride in her work. Finally addressed directly a board member to intervene on behalf of another employee that has requested for a leave of absence. Documents attached.
The termination document does not reflect that addressing a member of the Board violated any rule or instruction or that any board member complained about being contacted.
On February 27, 2004, Nabais issued a memorandum to employees relating to conversations that, inter alia, stated, “Employees are not allowed to converse with the Residents unless to greet them. . . . Conversation among the employees is to be kept to a minimum unless on break in the employees lounge. ‘Gossip’ between employees and/or residents will be subject to termination of the employee involved.”
On March 9, the memorandum was revised to provide, “Employees are not allowed during work hours to converse the Residents unless to greet them. . . . Conversation among the employees is to be kept to a minimum unless on break in the employees lounge. ‘Gossip’ between employees and/or residents will be subject to termination of the employee involved.”
District Manager De La Torre testified that the policy published by Nabais did not accurately reflect the policy that she stated to the employees in a meeting early in 2004. That policy, according to De La Torre, was that employees should not “be speaking either with residents, Board members, or among themselves during working hours” but that there was no problem “with them speaking with anyone about anything during their breaks or their lunch hour, or even afterward.” De La Torre noted that the employees at Sands Pointe did not read English so they would not have understood the memorandum published by Nabais.
According to De La Torre, she held that meeting after Supervisor Nabais reported that Borrero was spending time away from her work speaking with residents. She acknowledges that she did not single out Borrero, but addressed all the employees. Borrero recalled that, shortly after Nabais became the property manager, she informed the employees that she did not want them to talk to people from the Board, but that “we had it understood that it was with the old Board.” Borrero, on cross-examination, acknowledged that after October of 2004, when the new Board was elected, the employees were not told that they “were prohibited from talking to residents or Board members.”
De La Torre testified that when a board member complains about an employee, it is Continental’s policy to see if the employee has any write-ups and that, if they have been in compliance with their work, “we definitely try to relocate them.” That effort was not made in Borrero’s case because, according to De La Torre, Nabais “faxed me over some write ups” and “based on her latest thing” that she did not “feel comfortable in relocating” Borrero. I do not credit that testimony. The document prepared and signed by Nabais relating to the termination of Borrero is dated January 28, 2005. It does not state any complaint by a Board member. It cites her conduct, including the action that she took with and on behalf of Cifuentes. De La Torre signed the termination document as well as a written warning that had been issued to Borrero on September 28 on February 7, 2005, 10 days after Borrero was terminated. Nabais did not testify.
2. Analysis and Concluding Findings
The complaint alleges that Respondent has maintained and on or about February 4, 2005, enforced “a rule prohibiting employees from discussing their terms and conditions of employment with residents and Board members.” The rule, as revised by Nabais in March, limits the prohibition upon conversation with residents to “work hours” and De La Torre told the employees that lunch period is not work hours, that there was no problem “with them speaking with anyone about anything during . . . their lunch hour.” Any presumptive invalidity in the English written rule was corrected when De La Torre informed employees that the rule did not apply during breaks or lunch period. There is no evidence that Borrero or any other employee understood that there was any restriction when they were not working. Borrero and Cifuentes approached Board Member Colivas during her lunch hour. Thus they were not in violation of the rule. I shall, therefore, recommend that this allegation be dismissed.5
The complaint alleges that Borrero was discharged for engaging in the protected concerted activity of “attempting to assist another employee in resolving a dispute about his employment at Sands Pointe” or, alternatively, pursuant to the foregoing rule that I have found does not unlawfully prohibit nonwork time conversations with residents and which Borrero did not violate. Respondent Continental argues that Cifunetes was not an employee and that “Borrero’s activity had nothing whatsoever to do with terms and conditions of employees” of Continental.
Contrary to that argument, it is clear that Property Manager Nabais considered Cifuentes to be an employee because the termination document states that Borrero sought to intervene “on behalf of another employee.” There is no evidence that, as of January 27, Cifuentes had been terminated. Nabais told him that his position was no longer open and suggested that he “present himself at another condominium,” not that he apply for employment. Even if Cifuentes was not a current employee, employees are “members of the working class generally,” including “former employees of a particular employer.” Little Rock Crate & Basket Co., 227 NLRB 1406 (1977). Cifuentes’ effort to resume his former position made him at the least an applicant for employment and “[a] job applicant for employment is an employee under Section 2(3) of the Act. Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1951).” Labor Ready, Inc., 327 NLRB 1055, 1058 (1999).
The nature of the employment claim concertedly made by
Borrero and Cifuentes does not remove it from the protection of the Act. In S.M.K. Mining & Construction Co., 306 NLRB 718 (1992), the
administrative law judge, citing Cub Branch Mining, 300 NLRB 57, 58 (1990), pointed out that
“[t]he Board has consistently held that concerted employee action, when invoked
peaceably, to further an employment claim, such as a wrongful discharge, albeit
personal in nature, remains within the protective mantle of Section 7 of the
Act. See, e.g., Buck Brown Contracting Co., 283 NLRB 488, 489, and
cases cited at 513 (1987). . . .By this very process [workers making common
cause to reverse management’s judgment on a personnel matter] management was
put on notice, that its work force would not stand idly by in the face of
unfair treatment. . . .”
The concerted request by Borrero and Cifuentes to have a board member intervene on behalf of Cifuentes was protected. In Cleanpower, Inc., 316 NLRB 496 (1995), the Board affirmed the finding of the administrative law judge that a threat to have a third party intercede on behalf of employees pursuing a complaint regarding working conditions was protected. The judge concluded that the two employees “were reaching out to Gulden [the third party] to seek his assistance in helping to resolve a work dispute and this was protected activity.” Id. at 498. See also NC License Plate Agency, 346 NLRB 293 (2006). Leydis and Cifuentes sought to have Board Member Colivas intervene on behalf of Cifuentes. He agreed to do so and requested a meeting with Nabais. The termination document prepared by Property Manager Nabais establishes that Borrero was fired because, with Cifuentes, she “addressed directly a board member to intervene on behalf of another employee.” The termination of Leydis Borrero for engaging in protected concerted activity violated Section 8(a)(1) of the Act.
Conclusions of Law
1. Local 11, Service Employees International Union, the Charging Party, is a labor organization within the meaning of Section 2(5) of the Act.
2. The Respondent Continental and Executive were, at all relevant times herein, joint employers of the valet employees who worked at the Executive.
3. The Respondent Continental and the
4. By promulgating and maintaining an unlawfully broad rule prohibiting access to all Sunset Harbour property by off-duty employees except to pick up a paycheck or pursuant to authorization by the property manger or front desk coordinator, the Respondent Continental and the Respondent Sunset Harbour have engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
5. By engaging in surveillance of employee union activities, coercively interrogating employees regarding their union activities, and threatening employees with unspecified reprisals for engaging in union activities, the Respondent Continental has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
6. By warning Phillip Gonzalez for coming onto the property of Sunset Harbour while off duty, the Respondent Continental has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
7. By discharging Marvin White because of his union activities, the Respondent Continental has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
8. By discharging Leydis Borrero because she engaged in protected concerted activity, the Respondent Continental has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondents have engaged in certain unfair labor practices, I find that they must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
The Respondent Continental and the Respondent Sunset Harbour having promulgated and maintained an unlawfully broad rule prohibiting access to all Sunset Harbour property by off-duty employees except to pick up a paycheck or pursuant to authorization by the property manger or front desk coordinator, the Respondents must rescind that rule insofar as it prohibits access to outside nonwork areas of the facility, remove it from the front desk manual, and advise the employees in writing that the rule is no longer being maintained.
The Respondent Continent having unlawfully warned Phillip Gonzalez on September 1, 2004, it must rescind that warning.
The Respondent Continental, having discriminatorily discharged Marvin White on August 24, 2004, and Leydis Borrero on January 28, 2005, it must offer them reinstatement and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from the dates of their respective discharges to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondents must also post appropriate notices. In view of the diversity of the workforce, I recommend that the notices be translated into Spanish and posted in both English and Spanish.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended.6
ORDER
A. The Respondent Sunset Harbour South Condominium Association,
Inc.,
1. Cease and desist from
(a) Promulgating or maintaining any rule prohibiting
access to all
(b) In any like or related manner interfering with, restraining, 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) Rescind the rule prohibiting the access of off-duty employees
to
(b) Within 14 days after service by the Region, post at
its facility in
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible official on a form
provided by the Region attesting to the steps that the
It is further
ordered that the complaints are dismissed insofar as they allege
violations of the Act by
B. The Respondent, The Continental Group, Inc.,
1. Cease and desist from
(a) Promulgating or maintaining any rule prohibiting
access to all
(b) Disciplining employees for violating an unlawfully broad no-access rule.
(c) Engaging in surveillance of employees’ union and other protected concerted activities.
(d) Coercively interrogating employees regarding their union activities.
(e) Threatening employees with unspecified reprisals for engaging in union activities.
(f) Discharging employees for engaging in union activities or protected concerted activities.
(g) In any like or related manner interfering with, restraining, 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) Rescind the rule prohibiting the access of off-duty employees
to
(b) Within 14 days from the date of this order rescind the warning issued to Phillip Gonzalez on September 1, 2004, for loitering on Sunset Harbour property and within 3 days thereafter notify him, in writing, that this has been done and that the warning will not be used against him in any way.
(c) Within 14 days from the date of this Order, offer Marvin White and Leydis Borrero full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
(d) Make whole Marvin White and Leydis Borrero for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision.
(e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharges, and within 3 days thereafter, notify Marvin White and Leydis Borrero in writing that this has been done and that the discharges will not be used against them in any way.
(f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to determine the amount of backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its offices in
(h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
It is further ordered that the complaints are dismissed insofar as they allege violations of the Act by The Continental Group not specifically found.
Dated,
APPENDIX A
Notice to Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board had found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
We will not publish or
maintain any rule prohibiting your access to all
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 rescind our
rule prohibiting your access to
Sunset Harbour South Condominium Association, inc.
APPENDIX B
Notice to Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board had found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
We will not publish or
maintain any rule prohibiting your access to all
We will not discipline any of you for violating an unlawfully broad no-access rule.
We will not engage in surveillance of your union and other protected concerted activities.
We will not coercively interrogate you regarding your union activities.
We will not threaten you with unspecified reprisals for engaging in union activities.
We will not discharge you for engaging in union activities or protected concerted activities.
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 rescind our
rule prohibiting your access to
We will, within 14 days
from the date of the Board’s Order, rescind the warning issued to Phillip
Gonzalez on September 1, 2004, for loitering on
We will, within 14 days from the date of the Board’s Order, offer Marvin White and Leydis Borrero full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
We will make whole Marvin White and Leydis Borrero for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharges, and within 3 days thereafter, notify Marvin White and Leydis Borrero in writing that this has been done and that the discharges will not be used against them in any way.
The Continental Group, Inc.