American Gardens Management Co.

National Labor Relations Board - Board Decisions

Nov 22, 2002

338 N.L.R.B. 644 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644
American Gardens Management Company and Bai-
ley Gardens Realty Corporation and Local 32E,
Service Employees International Union, AFL–
CIO. Cases 2–CA–33475 and 2–CA–33605
November 22, 2002
DECISION AND ORDER REMANDING
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On March 6, 2002, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief, and
the Respondents filed a brief in opposition to the General
Counsel’s exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to remand these cases to the judge
for further findings, analysis, and conclusions consistent
with this decision.
These cases involve the alleged discriminatory dis-
charges of three maintenance employees by joint em-
ployer Respondents, American Gardens Management
Company and Bailey Gardens Realty Corporation. The
Respondents rent residential real estate in the New York
City area, managed by Thomas Matthews. The amended
complaint alleges that the Respondents discharged em-
ployees Roberts and Rosales in violation of Section
8(a)(1), (3), and (4) because they testified at a representa-
tion hearing.1 The complaint also alleges that the Re-
spondents discharged employee Frias in violation of Sec-
tion 8(a)(1) and (3) because he assisted the Union and
engaged in concerted activities. The Respondents argued
that Roberts and Rosales were discharged for lack of
work and that Frias was discharged for his insubordinate
and volatile attitude.
The judge recommended dismissing the complaint,
concluding that the Respondents had presented substan-
tial evidence that Roberts and Rosales were discharged
because of lack of work, and that there was insufficient
evidence to establish that Frias’ discharge was motivated
by antiunion considerations. In recommending dis-
missal, however, the judge did not refer to potentially
relevant testimony of certain witnesses, so that it is un-
clear whether he implicitly (but affirmatively) discredited
them, or merely ignored certain portions of the record.2

1 In the representation proceeding, the Respondents had challenged
Roberts’ and Rosales’ inclusion in the proposed unit, alleging alterna-
tively that: (1) they were temporary employees, or (2) they did not
share a community of interest with the remainder of the bargaining unit.
2 For example, the judge never specifically mentions the testimony
of Jose Acevedo (Bailey Garden’s current superintendent, who opposed
the Union) or Thomas John (president and owner of American Gar-
Neither did the judge fully delineate the elements of his
legal analysis, or clearly state which facts he relied on in
reaching his conclusions. Ultimately, and without case
citation, the judge recommended that the complaint be
dismissed.
The General Counsel excepts, arguing that the judge erred
in failing to find that Roberts and Rosales were discrimina-
torily discharged.3 The General Counsel argues that, apply-
ing Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp., 462
U.S. 393, 399–403 (1983), it has met its burden of showing
that protected conduct was a motivating factor in the Re-
spondents’ decision to discharge Roberts and Rosales, and
that the Respondents’ proffered reason for the discharges,
lack of work, is pretextual. In its exceptions, the General
Counsel emphasizes the following factors as demonstrating
pretext: the timing of the discharges (a little over 1 week
after the Regional Director’s decision in the representation
proceeding to include Roberts and Rosales in the bargaining
unit); Matthews’ testimony in the representation case that,
after the renovation work was complete at Bailey Gardens,
he would transfer Roberts and Rosales to another location;
and vacancy reports showing a steady turnover of apart-
ments. Moreover, the General Counsel claims that the
judge made a critical factual error in finding that the renova-
tion project ended in 1999, rather than in 1998.4 Accord-
ing to the General Counsel, the judge’s erroneous finding
that the renovation ended in 1999 led to the judge’s erro-
neous acceptance of the Respondents’ lack of work de-
fense.

dens). The latter testimony, if credited, would arguably support the
Respondents’ “lack of work” defense, while the former testimony sug-
gests both a lack of work and, at the same time, arguably indicates that
other maintenance employees who lack work have not been discharged.
The judge should give more explicit attention to this testimony and
make the necessary credibility findings.
Further, Member Liebman finds that the judge did not make a clear
credibility determination regarding certain testimony by employee Frias
which the judge concluded did not, even if credited, support a finding
of animus. Because views may differ on whether the comments re-
ported by Frias can be evidence of animus, a credibility determination
by the judge would aid the Board.
Member Liebman also finds that the judge, in disregarding certain
evidence, may have overlooked its implications bearing on the Respon-
dents’ “lack of work” defense—specifically, the Respondents’ use of
floater maintenance employees at Bailey Gardens in the week prior to
the discharges and thereafter, and their attempts to hire an additional
handyman after the discharges.
3 The General Counsel did not except as to employee Frias.
4 The General Counsel excepts both to the judge’s findings that: (1)
most of the contractor’s 20 workers “left in the summer of 1999,” and
(2) Roberts “was put back on Bailey’s payroll” in 1999. See sec. II,(a),
last sentence in par. 5 and second sentence in par. 7, of judge’s deci-
sion. In both instances, the General Counsel argues that the correct
date is 1998. While there is some conflict on the record as to the “end”
date of the “big project,” there may be merit in these two exceptions.
338 NLRB No. 76
AMERICAN GARDENS MANAGEMENT CO. 645
We agree with the General Counsel that a Wright Line
analysis, as explained more fully below, must be applied
in these cases to determine whether Roberts and Rosales
were discriminatorily discharged. Because the judge did
not clearly undertake a Wright Line analysis, or, indeed,
address all of the relevant record evidence, we remand
these cases to the judge for further consideration.
Wright Line is premised on the legal principle that an
employer’s unlawful motivation must be established as a
precondition to finding an 8(a)(3) violation. In Wright
Line, the Board set forth the causation test it would
henceforth employ in all cases alleging violations of Sec-
tion 8(a)(3). The Board stated that it would, first, require
the General Counsel to make an initial “showing suffi-
cient to support the inference that protected conduct was
a ‘motivating factor’ in the employer’s decision. If the
General Counsel makes that showing, the burden would
then shift to the employer to demonstrate that the same
action would have taken place even in the absence of the
protected conduct.” 251 NLRB at 1089. The ultimate
burden remains, however, with the General Counsel. Id.
at 1088 fn. 11. The Board also applies this Wright Line
analysis to 8(a)(4) claims. Taylor & Gaskin, Inc., 277
NLRB 563 fn. 2 (1985).
To establish his initial burden under Wright Line, the
General Counsel must establish four elements by a pre-
ponderance of the evidence. First, the General Counsel
must show the existence of activity protected by the Act.
Second, the General Counsel must prove that the respon-
dent was aware that the employee had engaged in such
activity. Third, the General Counsel must show that the
alleged discriminatee suffered an adverse employment
action. Fourth, the General Counsel must establish a
motivational link, or nexus, between the employee’s pro-
tected activity and the adverse employment action.
Tracker Marine, L.L.C., 337 NLRB 644, 646 (2002).
If, after considering all of the relevant evidence,5 the
General Counsel has sustained his burden of proving
each of these four elements by a preponderance of the
evidence, such proof warrants at least an inference that
the employee’s protected conduct was a motivating fac-
tor in the adverse employment action and creates a rebut-
table presumption that a violation of the Act has oc-
curred. Id. Under Wright Line the burden then shifts to

5 Of course, the employer may submit evidence to undermine the
General Counsel’s showing regarding any of the four elements, and this
evidence must also be considered in determining whether the General
Counsel has established these four elements by a preponderance of the
evidence.
the employer to demonstrate that the same action would
have taken place even in the absence of the protected
conduct.6 Id.
Here, there does not appear to be any genuine contro-
versy over the first three elements necessary to establish
the General Counsel’s initial burden under Wright Line.
Both Roberts and Rosales engaged in the protected activ-
ity of testifying in the representation case;7 the Respon-
dents had knowledge of that activity by virtue of their
presence at that hearing; and the Respondents subse-
quently took adverse employment action against both
employees. Thus, the controversy in these cases revolves
around the fourth element.
As stated previously, the judge did not cite Wright
Line, nor did he expressly address the four elements nec-
essary to satisfy the General Counsel’s initial burden
under Wright Line. While the framework of the judge’s
decision suggests a Wright Line type of analysis, his
analysis is problematic in two important respects. First,
it cannot be decisively determined from the judge’s deci-
sion whether he concluded that the General Counsel has
not carried his initial burden, or concluded instead that
the Respondents have established their affirmative de-
fense that they would have terminated Roberts and
Rosales due to lack of work absent any protected activ-
ity. This is a critical distinction, because the judge need
not reach the affirmative defense if the General Counsel
has not carried his initial burden. Second, if it is neces-
sary to rule on the affirmative defense (i.e., because the
General Counsel has established his initial burden by a
preponderance of the evidence), the judge’s reference to
“substantial evidence” suggests that the judge applied the
wrong standards under Wright Line.8 Specifically,
Wright Line utilizes a “preponderance of the evidence”
standard, rather than a “substantial evidence” standard.
NLRB v. Transportation Management Corp., 462 U.S. at
399–400.
In view of the above, we believe that it is premature
for us to now rule on the substance of the General Coun-
sel’s exceptions. Instead, we remand these cases to the
judge for analysis under Wright Line. The judge is di-
rected to consider all of the evidence relevant to such an
6 This shifting of burdens “does not undermine the established con-
cept that the General Counsel must establish an unfair labor practice by
a preponderance of the evidence”; it merely requires the employer to
make out an affirmative defense to overcome the prima face case of
wrongful motive. Wright Line, supra at 1088 fn. 11.
7 In light of this, we would apply Wright Line to the 8(a)(4) allega-
tions as well.
8 The judge states that the Respondents “presented substantial evi-
dence that the work available . . . had so diminished by December 2000
that their services no longer made any economic sense” (emphasis
added). See sec. III, third sentence in par. 8, of judge’s decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646
analysis, making any additional findings of fact and
credibility determinations which might be required; to
apply the applicable Wright Line elements and standards
to the facts as then found; and to issue a supplemental
decision setting forth his findings, analysis, and conclu-
sions.
ORDER
It is ordered that this proceeding be remanded to Ad-
ministrative Law Judge Raymond P. Green for further
action consistent with this decision.

Karen Newman, Esq., for the General Counsel.
Jeffrey D. Pollack, Esq. and Jerald M. Stein, Esq., for the Re-
spondents.
Katchen Locke, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried before me in New York City on December 11 to 13,
2001. The charge in Case 2–CA–33475 was filed on December
14, 2000, and the charge in Case 2–CA–33605 was filed on
February 22, 2001. An order amending complaint, amended
consolidated complaint and notice of hearing was issued by the
Regional Director on October 31, 2001. It alleged as follows:
1. That on or about December 8, 2000, the Respondents dis-
charged employees Mathew Roberts and Alfredo Rosales be-
cause of their union activities and because they gave testimony
in Case 2–RC–22297.
2. That on or about December 12, 2000, the Respondents
discharged employee Fidencio Frias because of his union mem-
bership and/or activities.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS OF FACT
I. JURISDICTION
It is admitted that the two companies are joint employers and
that they are engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. It also is admitted that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Mathew Roberts and Alfredo Rosales
Bailey Gardens is an apartment house complex located in the
Bronx, New York. The owner is Bailey Gardens Realty Corpo-
ration and it is managed by American Gardens Management
Company.
The day-to-day management of Bailey Gardens is handled
by Thomas Mathews. He is also responsible for managing two
other properties, Audubon Gardens and another two apartment
buildings in New Jersey. The employees of Audubon Gardens
are represented by Local 32E and are covered by a collective-
bargaining agreement.
Bailey Gardens consists of three buildings with a total of 219
apartments. They are located at 3138, 3150, and 3300 Bailey
Avenue, in the Bronx and were acquired at a foreclosure sale in
1996. At that time, the buildings, and especially 3300 Bailey
Avenue were run down and had a very high occupancy rate. At
the time of the purchase, there were about 60 to 70 vacant
apartments. There also were a large number of department of
housing code violations.
After purchasing the buildings, the Respondents began a ma-
jor project to renovate the buildings and the apartments within
them. This involved plumbing and electrical repairs to the
buildings and complete refurbishing of apartments that were in
serious disrepair.
The repair and refurbishing project took place over a part of
1998 and largely finished in or about August 1999. The work
of refurbishing vacant apartments was undertaken by a contrac-
tor named JAJ Construction Corp., and for at least a time, al-
leged discriminatee Mathew Roberts, who previously was em-
ployed at Bailey Gardens, was put on the payroll of that con-
tractor. Electrical and plumbing replacement or repairs were
done by other contractors. It appears that during the period
when the major portion of the work was being done, there were
about 20 workers at Bailey Gardens performing work of one
sort or another. Most of these people left in the summer of
1999 and Mathews went back on the payroll of Bailey Gardens.
After the contractors left, Bailey Gardens, at any given time
up to December 2000, had one superintendent, one porter, usu-
ally one handyman, and two general workers. The superinten-
dent does a variety of tasks including painting, plastering, sim-
ple plumbing, and simple electrical work. In addition, he is
responsible for maintaining the boiler, a job which requires a
New York City license. The porter’s job involves taking out
the trash and cleaning the buildings. The handyman’s job is
essentially the same as the superintendent’s job and he is sup-
posed to be able to do simple plumbing and electrical work in
addition to having a license to take care of the boiler. Part of
the handyman’s responsibility is to take over from the superin-
tendent when the latter is not present.
Mathew Roberts was hired to be a general maintenance em-
ployee at Bailey Gardens and as noted above, he was put on the
payroll of a contractor while the major refurbishing project was
undertaken. After the contractor left, he was put back on Bai-
ley’s payroll and in 1999, Alfredo Rosales was hired to be his
helper. The difference between Mathews and Rosales and the
people who were handymen, is that although their job functions
overlap, Mathews and Rosales did not do plumbing or electrical
work and were not licensed to deal with boilers. Thus, al-
though the superintendent and a handyman could do all the
things that Mathews and Rosales did, the opposite was not true.
(All also did repairs to occupied apartments when tenants had
complaints.)
The evidence is that notwithstanding the fact that many of
the apartments, particularly in 3300 Bailey Ave., had been
completely refurbished by the summer of 1999, there were
others that had not yet been refurbished because they were
occupied at the time. Thus, even after the contractors left,
AMERICAN GARDENS MANAGEMENT CO. 647
when apartments because vacant, they would require, to a
greater or lesser degree, painting, plastering, floor work, tiling,
and sheet rock work to make an apartment habitable for the
next tenant. These tasks were done by Roberts and Rosales.
But as people vacated apartments and new tenants came in, the
number of apartments requiring substantial refurbishing work,
not already done during the 1998–1999 period, began to be less
and less. The Employer asserts that by November 2000, it was
clear that the amount of work available for Roberts and Rosales
had declined to such an extent that the superintendent and one
handyman could do all of the work that all four had done previ-
ously. General Counsel’s Exhibit 8 contains a record of apart-
ments that were vacant and available for rent during a period in
2000 and 2001. It indicates a steady rate of turnover but would
not by itself indicate the amount of repair any of the apartments
listed would require before being re-rented. That would depend
on the condition of the apartment when vacated.1
In August 2000, Roberts called the Union and this resulted in
two meetings held at the apartment of Gilberto Cardona, the
porter.
These union meetings were held on August 30 and Septem-
ber 11, 2000. Four of the employees were at these meetings
and at least three and possibly all of them signed union authori-
zation and dues-checkoff authorization cards. The employees
who attended the meetings were Mathew Roberts, his helper
Alfredo Rosales, Gilberto Cardona, the porter, and Fidencio
Frias, who at that time was a handyman. The superintendent at
the time, Fernando Robles, was not in attendance albeit there
was testimony that after the September meeting, the employees
asked if he wanted to join the Union and he refused. Also not
attending was Jose Acevado, who at the time was a handyman
but who became the superintendent when Robles was dis-
charged on December 15, 2000.
Cardona testified that on or about September 11 (the same
day as the meeting in his apartment) Thomas Mathews asked
him why he signed for the Union. He testified that he told
Mathews that he signed to get various benefits. According to
Cardona, Mathews said that he should have talked to him first.
Mathews denies this and testified that he can’t even talk to
Cardona without a translator. Cardona speaks Spanish and very
little English. Mathews speaks English but with an Indian ac-
cent. There is, to my mind, a serious question as to whether
these two men could speak to each other about anything other
than the simplest of matters.
On October 13, 2000, the Union filed a petition for an elec-
tion in Case 2–RC–22297 and a hearing was held on October
23, 2000. At the hearing, the Employer took the position that
Frias had only been temporarily employed at Bailey Gardens;
that he had been transferred from another property called

1 According to alleged discriminatee Mathew Roberts, if an apart-
ment had already been renovated, the amount of work required when a
tenant left would take about 2 or 3 days. On the other hand, he testified
that the amount of work that would be required to renovate an apart-
ment when a tenant left, if the apartment had not yet been renovated,
could take about 4 weeks of work for two people. Obviously, as the
number of fully renovated apartments increased over time, the amount
of work needed to be done for any particular apartment when a tenant
vacated, became drastically reduced.
Hollis Gardens and was currently working at still another loca-
tion known as Audubon Gardens. The Employer also argued
that Mathew Roberts and Alfredo Rosales, as general workers,
would soon be terminated from Bailey Gardens because the
work that they had been doing was soon going to be completed.
Thomas Mathews who testified for the employer, asserted that
Roberts and Rosales would be transferred within a matter of a
month to another property managed by the Respondents. Both
Roberts and Rosales testified at the representation hearing in
support of the Union’s contention that they were permanent
employees and therefore eligible voters.
On November 27, 2000, the Regional Director issued a Deci-
sion and Direction of Election. She concluded that an appropri-
ate unit consisted of all full-time and regular part-time mainte-
nance employees including porters, handymen, janitors, super-
intendent and maintenance workers employed at Bailey Gar-
dens, excluding all other employees, guards, professional em-
ployees, and supervisors as defined in the Act. The Regional
Director further concluded that Roberts and Rosales were eligi-
ble to vote because the evidence to support the contention that
they would be let go within 1 month “was unsubstantiated and
insufficient” and therefore did not establish that they would be
laid off on a date certain.
Frias testified that sometime in November 2000, as he was
driving back from New Jersey with Thomas Mathews,
Mathews said, “why did you sign for Union?” Frias also testi-
fied that during this conversation, Thomas Mathews mentioned
Mathew Roberts, but his testimony in this respect is not all that
clear. He testified that “during the conversation he said that
Robert Matthews—that the company could pay him— the com-
pany could pay the compensation and fire him and that’s it.”
On December 8, 2000, the Employer laid off Roberts and
Rosales. Although Thomas Mathews asserted at the representa-
tion hearing that he had intended to transfer these two employ-
ees to another location, this did not happen and neither em-
ployee has been offered employment at any other location.
On December 12, 2000, Thomas Mathews discharged Frias.
At this time, Frias had been away from Bailey Gardens for at
least a month, having been transferred to Audubon where the
employees were already covered by a collective-bargaining
agreement. (Frias also did some work in New Jersey.) The
Company contends that Frias was discharged for insubordina-
tion.
On December 20, 2000, the Board issued, in the representa-
tion case, an order denying the Employer’s request for review
and on December 22, 2000, an election was conducted. There
was one vote for the Union and one against. There also were
four challenged ballots. On December 28, 2000, the Employer
filed objections and on January 10, 2001, the parties agreed to
set the election aside. A second election was held on January
26, 2000. There was one vote for the Union, zero votes against,
and four challenged ballots. On February 1, 2001, the Employer
again filed objections and by agreement, the parties agreed to
set this election aside as well.
Cardona testified to the effect that sometime after the elec-
tion, Thomas Mathews told him that he was not working on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648
apartments until the case with the Union was finished.2
Mathews denies this assertion. In this regard, I note that the
apartments rent from about $500 to $700 per month and hold-
ing them off the market for an indefinite period could cost the
Company a fair amount of income.
Subsequent to the layoffs of Roberts and Rosales, the Em-
ployer utilized the services of two people named Jesus and
Abraham to do work that had been done by Roberts and
Rosales But Jesus and Abraham are handymen who were long
standing employees of the Company and who are used at vari-
ous locations as needed and go from one location to another.
Also, after the layoffs, there have been three separate handy-
men who have been hired and fired over a period of time at
Bailey Gardens. Thomas Mathews testified that he is still look-
ing to hire a handyman for that complex because the superin-
tendent needs a break. Mathews testified that he has not re-
hired Roberts and Rosales because the only position that he
needs is for a handyman and neither has all of the skills or li-
censes required to be a handyman.
B. The discharge of Fidencio Frias
Frias was originally employed at Hollis Gardens where he
had an encounter with a tenant. That led to his arrest and Frias
pleaded guilty to assault. This resulted in a $500 fine and a
year’s probation. Frias had to leave the Hollis Gardens location
as long as the tenant remained and he was transferred to Bailey
Gardens. At Bailey Gardens, Frias was the second handyman
and worked there from about the end of September 2000 to
November 2000. Thereafter, he was transferred by Thomas
Mathews to Audubon Gardens where he worked as a handyman
until he was discharged on December 13, 2000. Frias also had
a run in with the law back in 1993 when he first came to the
United States. That resulted in a 5-year probation for some type
of criminal activity. Based on his prior history and also based
on my observation of his demeanor, I would say that Frias has a
somewhat volatile temperament.
Because Frias was transferred to Bailey Gardens in Septem-
ber 2000, he arrived in time to be involved in the union
organizing campaign. But as he was transferred to Audubon in
late November 2000, where there was already a union contract,
Frias had no further involvement in the election situation that
evolved at Bailey Gardens. (As noted above, the Regional Di-
rector issued her Decision and Direction of Election on No-
vember 27, 2000.)
Frias essentially admits that he was late to work on Decem-
ber 11, 2000, and that when Thomas Mathews spoke to him
about it on the phone he (Frias) said shit or something like that.
Frias testified that when Mathews came down to Audubon to

2 His actual testimony, taken through an interpreter was:
Q. Now did there come a time sometime after this conversa-
tion, after Mr. Matthew Roberts and Alfredo Rosales had been
discharged, did you have another conversation with Matthew
Roberts with regard to apartments—Thomas Matthews? Did you
have a conversation with Thomas Matthews with regard to apart-
ments?
A. He told me that the apartments—no more working, the
paint, the tile until not leaving the union—until the case with the
union would be finished.
talk to him about his lateness, they got into an argument. Ac-
cording to Frias, his wallet fell to the ground whereupon
Mathews said, “do you want to hit me.”
On December 13, Mathews tendered a letter to Frias and
asked him to sign it. Frias claims that General Counsel’s Ex-
hibit 2 is not the tendered letter but he agrees that some of the
things in the exhibit are correct. In any event, Frias says he
never got a chance to apologize and that after some more argu-
ing, Mathews told him that he couldn’t work there anymore.
The Company’s position is that Frias was not discharged for
lateness, but rather because of the insubordinate and aggressive
way that he acted toward Thomas Mathews on December 12
and 13, 2000. In this respect, Mathews testified that on De-
cember 12 when he confronted Frias about his lateness, Frias
became angry and threw his wallet to the ground. He also testi-
fied that when he attempted to present a warning letter to Frias
on December 13, Frias again became enraged and refused to
sign it. With respect to these incidents, the Company produced
witnesses who corroborated Mathews’ version of the events.
III. DISCUSSION
The evidence shows that the normal complement of workers
at a building complex like Bailey Gardens would be one super-
intendent, one janitor, and either one or two handymen. The
evidence also establishes that during the time that Mathew
Roberts and Alfredo Rosales were employed at these buildings
(either as employees of a subcontractor or as direct employees
of the Respondent), they were there principally to participate in
a project to renovate the buildings and the apartments therein
after the Company purchased the complex in a foreclosure sale.
The renovation work was extensive and required at least 20
workers to do the job. Most of this work was completed by
August 1999, but some additional renovation work remained
after that date that could be done by a much reduced crew of
people. Accordingly, after most or all of the code violations
had been cleared and most apartments refurbished, Roberts and
Rosales (hired as Robert’s helper) remained on to do some of
the remaining apartment refurbishing work and also general
maintenance work. But as apartments were vacated and reno-
vated (to greater or lesser degrees depending upon condition),
the amount of this type of work became less and less. Thus,
although some of the work done by Roberts and Rosales over-
lapped with the work ordinarily done by handymen, it should
be noted that neither had the boiler license required of a
handyman and neither did the types of electrical or plumbing
work that a handyman was supposed to be capable of doing.
At the representation hearing, the Employer’s agent, Thomas
Mathews, testified that the work of Roberts and Rosales was
just about completed and that they did not have much expecta-
tion of future employment at this location. He did, however,
testify that when the work on Bailey Gardens was completed,
he expected to assign them to one of the Company’s other
properties. Because Mathews could not say definitively when
Roberts and Rosales would likely become redundant at Bailey
Gardens, the Regional Director concluded that they should be
considered to be eligible voters.
According to Thomas Mathews, by December 2000, there
simply was not enough work for Roberts and Rosales to do in a
AMERICAN GARDENS MANAGEMENT CO. 649
normal working day and he decided to lay them off. Mathews
acknowledged his testimony in the representation case to the
effect that he expected to place them elsewhere, but he testified
that he had no place to put them.
Although the evidence shows that Thomas Mathews has
used two other workers to do some of the same work that Rob-
erts and Rosales did, the evidence shows that these people were
long time employees of the Company who were utilized to do
work at all of the Company’s properties and were assigned to
go from place to place as needed. Both of these employees had
greater seniority than Roberts or Rosales and their utilization in
this way, was not out of the ordinary.
Similarly, although there was evidence that Thomas
Mathews has hired and attempted to retain (without success), a
series of handymen after the layoffs of Roberts and Rosales, the
evidence is that the Company needs to have someone with a
boiler license and the ability to do plumbing and electrical work
in order to allow the superintendent at the building complex to
take a day off or go on vacation. Unfortunately, neither Rob-
erts nor Rosales have the required license or the necessary ex-
perience.
The General Counsel contends that there is evidence of anti-
union animus indicated by the testimony of Cardona and Frias
concerning several conversations they allegedly had with Tho-
mas Mathews. However, my impression was that Cardona’s
understanding of English was so limited that I have substantial
doubts as to what if anything he understood. Therefore, I can-
not credit his testimony as to these alleged conversations which
were denied by Mathews. Further, the single conversation
reported by Frias where he allegedly was asked why he signed
for the Union, does not, even if credited, amount to evidence of
animus.
There is no question but that the timing of the layoffs is sus-
picious, inasmuch as they occurred shortly after the Regional
Director issued her Decision and Direction of Election. More-
over, that suspicion is somewhat enhanced by the Employer’s
assertion, in the representation case, that it intended to place
Roberts and Rosales elsewhere but has failed to do so. Never-
theless, on balance, I think that the Employer has presented
substantial evidence that the work available to these two em-
ployees at Bailey Gardens had so diminished by December
2000 that their services no longer made any economic sense.
Further, the Employer has demonstrated that there were rational
considerations for its inability to place them at other apartment
complexes and for its subsequent attempts to replace them with
people who had boiler licenses and work experiences possessed
by neither Roberts nor Rosales.
Similarly, the evidence with respect to Frias does not, in my
opinion, add up to sufficient proof that his discharge was moti-
vated by antiunion considerations. For one thing, at the time of
his discharge he was not even assigned to the location where
the election was being held, but rather was employed at Audu-
bon Gardens where the Employer had a labor contract. In any
event, the credible evidence supports the Employer’s conten-
tion that Frias, who has a somewhat volatile temperament, was
in Mathew Robert’s eyes, guilty of aggressive conduct to him
when he tried to admonish Frias for being late. It may be that
Frias had no intention of engaging in any type of physical con-
duct. But from Robert’s point of view, he viewed Frias’ con-
duct as menacing and I can’t say that his view of the events was
unreasonable.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The complaint is dismissed.

3 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.