B&A Associates, LLC

National Labor Relations Board - Administrative Judge Opinions

May 28, 2003

13-CA-040124 (N.L.R.B. May. 28, 2003)

JD–61-03
Chicago, IL

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

B & A ASSOCIATES, LLC

and Case 13–CA–40124–1

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1, AFL–CIO, CLC

Daniel E. Murphy, Esq., for the General Counsel.
Bruce F. Mills, Esq., of Milwaukee, Wisconsin, for the Respondent.
Joseph E. Gumina, Esq., of St. Charles, Illinois, for the Respondent.
Librado Arreola, Esq., of Chicago, Illinois, for the Charging Party.

DECISION

Statement of the Case

Joseph Gontram, Administrative Law Judge. This case was tried in Chicago, Illinois on
February 3 through February 5, 2003. The charge was filed April 17, 2002, was amended
August 8, 2002, and the complaint was issued August 8, 2002. The complaint alleges that the
Respondent violated Section 8(a)(1) by (1) interrogating its employees about their union
activities, (2) making threats regarding the futility of union activity, (3) threatening to make
changes in its employees’ terms and conditions of employment, (4) threatening to subcontract
its employees’ work and to reduce its employees’ hours of work if they selected a union, and (4)
creating the impression that its employees’ union activities were under surveillance. The
complaint also alleges that the Respondent violated Section 8(a)(3) by terminating its employee,
Gregory Mauer, because of his union activities.

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, and the Union, I
make the following

Findings of Fact

I. Jurisdiction

B & A Associates, LLC (the Respondent) is an Illinois limited liability corporation with
offices in Schaumburg, Illinois. During the past calendar year, the Respondent derived gross
revenues in excess of $500,000, and purchased and received at its Schaumburg facility goods
valued in excess of $50,000 from points located outside the State of Illinois. The Respondent
admits and I find that it is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. The Respondent also admits and I find that the Service Employees
International Union, Local 1, AFL-CIO, CLC (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.

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II. Alleged Unfair Labor Practices

The Respondent is engaged in the business of providing management services to
apartment buildings in the Chicago, Illinois area. These management services include leasing
the apartments, collection of rents, providing maintenance, customer service, and other matters
related to the operation of apartment buildings. Among the buildings managed by the
Respondent is an apartment building located at 1400 Lake Shore Drive, Chicago, Illinois. In
March 2002, the Union began a campaign to organize the maintenance workers at various
buildings in the Chicago area, including two buildings managed by the Respondent in downtown
Chicago. These buildings are located at 1400 Lake Shore Drive (the Building) and at 14 West
Elm Street. Gregory Mauer was the first maintenance worker at the Building to whom the Union
organizer spoke on March 21, 2002. After the union organizers came to the Building on March
21, 2002, the Respondent held several meetings with its maintenance workers concerning the
Union. On April 15, 2002,1 the Respondent discharged Mauer.

A. Meetings with Maintenance Workers

At all times material to the events in this case, Nancy Farrell was the human resource
manager of the Respondent, Cheryl Metz was the property manager for the Building,2 Cindy
Biogetti was the general manager of the Respondent, Sharon Sharpe was the service manager
at the Building,3 and Art Barajas was the lead mechanic at the Building. Human Resource
Manager Nancy Farrell is responsible for the complete personnel policies and practices of the
Respondent, including hiring, training, insuring adherence to company policies, benefit and
safety programs, and firing. Her responsibilities extend to 10 different properties of the
Respondent. Property Manager Cheryl Metz was responsible for maintaining the investment for
the owner of the Building, overseeing all resident matters, including complaints, marketing and
sales, public relations, and direct hands-on management of the Building. General Manager
Cindy Biogetti was responsible for overseeing the portfolio of real estate investments for the
Respondent, and she was also responsible for making and approving hiring decisions. Service
Manager Sharon Sharpe was responsible for overseeing the work performed by the
maintenance mechanics, the work orders and purchase orders at the Building, together with bill
approval and paying. Lead Mechanic Art Barajas provided assistance to Sharpe, he had some
supervisory responsibilities, and he provided assistance to the other mechanics. The rest of the
maintenance staff was composed of the maintenance technicians or mechanics. The
maintenance technicians received orders from and reported directly to Cheryl Metz and Sharon
Sharpe.

Cindy Biogetti is the sister of Cheryl Metz and the aunt of Sharon Sharpe. Sharon
Sharpe is the daughter of Cheryl Metz.

In the morning of March 21, Dan Schlademan, the director of organizing for the Union,
together with another union organizer, came to the Building to initiate their effort to organize the
1 All dates are in 2002 unless otherwise indicated.
2 Cheryl Metz received a promotion to regional manager in approximately February 2002.
However, she remained the general manager of the Building until June 2002. (Tr. 396.)
References to the transcript of the hearing are designated “Tr.”
3 Sharon Sharpe has also been promoted by the Respondent and is currently the regional
service manager. However, through April 15, 2002, she was the service manager at 1400 Lake
Shore Drive.

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maintenance workers at the Building. Schlademan talked to Mauer at the front desk in the main
lobby of the Building. Mauer showed interest and support for the Union and its goals, and
volunteered to help the Union in its organizing campaign. Mauer agreed to talk to his co-workers
and to ask them to sign authorization cards. Mauer filled out an authorization card at the front
desk and handed it back to Schlademan.

As Schlademan and Mauer were discussing these matters at the front desk, Art Barajas
and Sharon Sharpe entered the lobby and observed them. The manager’s office is directly
behind the front desk, and Sharpe entered that office. As she passed Mauer, she said “good
morning” to him. Mauer said to Schlademan that he wanted to keep their conversation quiet
because he (Mauer) did not want to get into “trouble.” Schlademan then departed, but he first
gave Mauer approximately 10 blank copies of authorization cards so that he could attempt to
sign up his coworkers. Thereafter, and up through April 14, Mauer did talk with his coworkers
about joining the Union.

The next week, on March 27, the Respondent’s managers advised the maintenance
mechanics at the Building that management wanted to speak to every maintenance mechanic in
separate, individual meetings in the Building’s conference room. The conference room is on the
first floor of the Building and often served as the location of meetings called by management.
For example, Mauer had been called to a meeting in the conference room when Metz handed
him the warning notice concerning his alleged absenteeism. Also, the conference room was
where Farrell and Metz notified Mauer that he was being terminated.

Farrell and Sharpe conducted the March 27 individual meeting with Mauer. Farrell was
present at all of the individual meetings, and Metz was present for some of the individual
meetings. Farrell told Mauer that she knew the Union had been in the building and that the
Union had already obtained the signatures of 50 percent of the maintenance staff. She asked
Mauer whether he had talked to the union, and he acknowledged that he had spoken to the
Union at the front desk. Farrell stated that the union was guilty of trespassing on the property
and that the owner of B & A did not like or want the union and would not allow it on his property.
She added that if the Union were to get into the Building, “then management and the partners
would have to look at their options.”4 Farrell then asked Mauer whether he had signed anything.
Mauer replied that he had not.5 She then asked if he knew if anyone else had signed anything,
and Mauer replied that he did not know. Farrell said that Mauer could talk to the union, as long
as it was not on “company time.”6 She also asked Mauer what he thought of unions. He replied
only that he had seen a few different unions over his working career.

After Farrell had talked to each of the maintenance workers individually, she called a
4 Tr. 142.
5 Maintenance mechanic Gzzim Bardic corroborates the fact that Farrell inquired about
signing authorization cards for the Union, although Farrell’s technique with Bardic was more
subtle than it was with Mauer. Bardic states that in his individual meeting with Farrell and Metz,
he was asked if he had been approached by the Union, and he responded, “yes.” Farrell and
Metz stated that they were not going to ask him if he had signed for the union, “but that was up
to him.” (GC Exh. 19.) Such a statement, although perhaps not formally a question, was in
substance an inquiry and was clearly coercive because if Bardic elected not to tell them, he
would reasonably fear incurring management’s displeasure. In the face of this coercive
atmosphere, Bardic responded that he had not signed a union card, even though he had signed
one.
6 Tr. 599.

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meeting of the entire maintenance staff, which numbered approximately 6 maintenance
mechanics. This meeting was also held in the conference room and was attended by Farrell,
Metz, and Sharpe on behalf of management. Farrell again stated the Respondent’s opposition
to unions. She said that the employees could talk to the Union, as long as it was not on
“company time.” She said the Respondent “does not like unions, does not want unions, [and]
will not allow unions in the building.” She told the employees that they had the right to support
the union, but that “the minute you guys go out to picket . . . we’re going to be hiring other
people to take your place.” She also stated that she had knowledge that half of the employees
had signed union authorization cards. As the employees shook their heads to indicate that they
had not signed such cards, she said, “Well, if it’s not you guys, then who is it?”7 No one
responded.8

Farrell testified that she called the meetings with the maintenance staff, at the request of
Metz and Sharpe, in order to “put rumors to rest and put gossip to rest.” Sharon Sharpe
described it as “the guys would rumor and gossip . . . like high school girls about each other and
they start rumors, and nothing in particular” or about “each other,”9 as if the Respondent’s
Human Resource Manager were being called in to have individual meetings with all of the
maintenance employees to address gossiping by such employees having nothing to do with
work, much less the union. Farrell, however, acknowledged that Sharpe had called her
concerning union discussions among the maintenance technicians. Sharpe “didn’t like the
rumors.” Farrell stated that she did not have much concern about the union organizers. “I just
thought I’d go down there and talk to our employees. My concern was not that high.”10

The testimony by Farrell regarding her lack of concern about the union’s activities, and
by Sharpe regarding unspecified rumors being the reason for the scheduled meetings, are not
credible.11 Farrell made a special trip to the Building the next week after the union organizers
were at the Building. She made this trip at the request of the two management persons that
were at the property. She held individual meetings with every maintenance worker, as well as a
general meeting with the maintenance staff. The timing and number of meetings demonstrate
7 All of the quoted statements in this paragraph are found at Tr. 144. See also the affidavit of
Gzzim Bardic, GC Exh. 19.
8 Bardic corroborates this statement and inquiry by Farrell in the general meeting. Bardic
states that “I think that it was Nancy who stated [to] the group that they had been told that more
than 50 percent of the employees had signed for the union, yet none of the employees
acknowledged having signed for the union.” (GC Exh. 19.) Bardic confirmed at the hearing, after
failing to recall much of what occurred at the meetings, that the information contained in his
affidavit was correct. (Tr. 295-96.)
9 Tr. 598, 600, 610-611.
10 The remaining quotations in this paragraph are found at Tr. 314-315.
11 All facts found here are based on the record as a whole and on my observation of the
witnesses. The credibility resolutions have been made from a review of the entire testimonial
record and exhibits with due regard for logic and probability, the demeanor of the witnesses,
and the teaching of NLRB v. Walton Mfg. Co., 369 U.S. 404 (1962). As to those witnesses
testifying in contradiction of the findings, their testimony has been discredited, either as having
been in conflict with the testimony of reliable witnesses or because it was incredible and
unworthy of belief or as more fully explained in the text. With respect to the testimony regarding
what occurred at the meetings called by management, I have also taken into account the
economic dependence of employees on employers, with awareness of an employee’s
attentiveness to intended implications of his employer’s statements which might be more readily
dismissed by a disinterested party. See NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).

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that the union’s organizing effort was a matter of substantial concern to the Respondent,
contrary to Farrell’s testimony. With respect to Sharpe’s testimony, to claim that the meetings
were held because of unidentified rumor and gossip about “nothing in particular”12 demeans
Farrell’s responsibilities and her position as the human resource manager and is belied by the
timing and method of the meetings.13 Moreover, Sharpe’s testimony is contradicted by Metz’
admission that Metz was aware of the Union’s organizing campaign and by Farrell’s admission
that she was requested by Metz and Sharpe to schedule the meeting because of the union
activity.

Farrell further testified that the only question she asked Mauer in her individual meeting
with him, and the only matter she was concerned about, was whether he knew of any union
member coming into the Building and talking to the maintenance employees when they were
working. According to Farrell, Mauer replied that he knew nothing. She asserts that nothing else
was stated in that meeting. Sharpe, on the other hand, added that Farrell discussed with Mauer
the union authorization cards that were going around, that if he had any questions regarding the
Union he was free to contact Farrell, and that he could talk to the Union at any time “as long as
it wasn’t on company time.” By “company time,” Sharpe testified that she meant all time that the
employees are punched in on a timeclock, including breaktime and lunchtime.

It is not credible that Farrell would have scheduled individual meetings with every
maintenance employee at the Building so that she could ask each of them the single question of
whether they knew of any union member coming into the building and talking to an employee
who was working. Surely, this is a question that she could just as easily have asked in the
general meeting with the maintenance staff, at least if that were the only question she was going
to ask. Rather, as Mauer testified, Farrell also asked whether he had talked to the Union,
whether he had signed an authorization card, whether any other employee had signed an
authorization card, and, in general, what he thought of unions. Moreover, these are the very
type of questions (i.e., questions tending to prove violations of the Act) that, if they were going to
be asked at all, would more likely be asked in individual meetings without the presence of other
witnesses. In addition, individual meetings would tend to be a more effective way to determine
the employees who supported the Union versus the employees who did not. Indeed, neither
Farrell nor the Respondent provided any explanation for why she felt it necessary to have
individual meetings with every maintenance worker, as well as a general meeting with all of the
12 Sharpe also testified that the rumors and gossip had been “on-going,” Tr. 600-601, further
undermining any credibility in her testimony, because the timing of the meetings, within days of
the Union’s organizing presence at the Building, is too coincidental for one to accept that Farrell
came to the Building to address some previous and on-going “rumors” about anything other
than the Union’s organizing campaign. Moreover, Farrell contradicts Sharpe’s testimony in this
regard since Farrell admits that Sharpe had called her about the Union having been at the
Building and having talked to the maintenance technicians. Without regard to the legality of what
occurred in the meetings and the manner in which they were conducted, Sharpe’s evasiveness
and persistent failure and refusal to acknowledge why the meetings were held (see, e.g., Tr.
598-601, 610-611) adversely affects her credibility as a witness.
13 My conclusion here is also supported by the only other instance in which Farrell was
called upon to address “gossip” amongst the maintenance staff. This occurred after Mauer had
been fired, and he came back to the Building with union staff the next day. As a result, there
was much “gossip,” and Farrell, as well as Cindy Biogetti, came to the Building to meet with the
maintenance staff. (Tr. 406-409.) Accordingly, and in spite of Sharpe’s denials (see, e.g., Tr.
610-611), “gossip” appears to be Respondent’s shorthand for talk amongst the staff of union
matters.

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same workers; much less, schedule and conduct individual meetings with all maintenance staff
in order to ask this one question.

Accordingly, I credit the testimony of Farrell that the individual and general meetings on
March 27 were held because of the union activity the previous week. I also credit the testimony
of Mauer,14 and find that in the individual meeting with Mauer, Farrell questioned him about
whether he had signed a union authorization card, whether other maintenance workers had
signed authorization cards, and what he thought about the Union. I further credit Sharpe’s
testimony that Farrell told Mauer he could talk to the Union at any time “as long as it wasn’t on
company time.”

In describing what occurred in the general meeting with the maintenance workers,
Farrell testified that she told the group she did not know what would happen to the Respondent
if the Union were to come in, that she hoped they were happy with the Respondent, and she
hoped they would feel that they did not want the Union. She testified that she told the
maintenance workers that the decision regarding unionization rested with them. Farrell testified
that none of the workers said anything after she gave her speech—“they were very quiet.”15

In resolving the question as to what occurred in the individual meetings and at the
general meeting, I have also relied on the mannerisms and demeanor of the witnesses. By tone
of voice, eye contact, and overall demeanor, the Respondent’s managers demonstrated hostility
to the Union. Sharpe, in particular, displayed an aversion or hostility to the Union that was
palpable.

I accept Farrell’s recitation of matters she claims to have told the maintenance workers
in the general meeting. However, I also accept Mauer’s testimony, supported by the statements
of Bardic, regarding Farrell’s additional statements and questions at the meeting. I also accept
Sharpe’s testimony that Farrell told the maintenance staff that they could not talk to the Union
on company time. To the extent, if at all, that Mauer’s testimony may conflict with the testimony
of Farrell or Sharpe regarding what was said at the general meeting, I accept the testimony of
Mauer. For the same reasons that I have credited Mauer’s recollection of what occurred in the
individual meeting, I also credit his recollection of what occurred at the general meeting.

On April 8, Sharon Sharpe and Cheryl Metz, on behalf of management, called a meeting
for the maintenance staff at the Building. There were approximately six maintenance mechanics
and two management persons at the meeting. During the meeting, Metz reiterated the
Respondent’s position on unions. She stated that unions were not wanted and were not liked,
there was no need for unions, and they would not be allowed back into the Building. Metz stated
14 In crediting the testimony of Mauer, I have not relied and do not rely on Mauer’s affidavit
for the truth of the matters asserted therein. (R Exh. 30.) Respondent’s counsel used portions of
the affidavit to cross-examine Mauer. During the hearing, the General Counsel sought to have
the affidavit admitted for the truth of the matters set forth in the affidavit. At the conclusion of the
hearing, I invited counsel to address in their respective Briefs whether the affidavit could be
considered for this purpose. Neither General Counsel nor the Union addressed the question in
their briefs. The Respondent did address the question, arguing that the affidavit should not be
considered for the truth of any matter contained therein. I conclude that the General Counsel
has abandoned its claim that the affidavit should be considered for the truth of the matters
asserted therein, and I grant Respondent’s request that Mauer’s affidavit only be considered for
impeachment purposes.
15 Tr. 319.

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that unions are no good, and that a union would do nothing for the workers except take their
money. She then gave an example of a former employee who was a member of the Union. This
employee was fired, but Metz claimed that the Union did nothing to help him. She stated that the
Union would just take the workers’ money without doing anything in return. Metz also said that if
the Union came in, the Building would be considered overstaffed according to union rules.
Therefore, management would have to determine which maintenance staff to keep and which
employees would no longer work in the Building. She said that the Respondent would keep one
engineer and two maintenance mechanics, and the rest of the work would be contracted out.16

Metz described her comments to the employees about the consequences of a union in
more general terms. She said that she told the employees:

A lot of the reasons that we’re there is because we need to better service the
resident. And I have mentioned to them [i.e., the maintenance staff] that in the
beginning everything was contracted [out] . . . . I went to the company and I felt
that I could improve on our productivity and I could improve on our service to the
residents if I could have my own team. If I could have more staff. And they [the
company] listened to me. I increased the payroll almost four times. So I sort of let
them [the maintenance staff] know that, you know, I sort of, it was me that went
to bat to put this whole team together and to build on a team instead of
contracting things out. And this wasn’t going to look very good for me.17

This description is not necessarily inconsistent with the statements attributed to Metz by
Mauer. Accordingly, I credit Mauer’s and Metz’ recollection of statements made by Metz at the
April 8, 2002 meeting.

B. Discharge of Gregory Mauer

1. Events prior to March 28, 2002

In approximately mid-October 2000, Mauer applied for a maintenance position with the
Respondent. He interviewed with General Manager Cindy Biogetti. During the interview, Mauer
explained to Biogetti, after she had reviewed his resume, that he had received all his schooling
from a union and that his experience was exclusively in union buildings. Mauer’s resume also
disclosed that he had received his schooling and qualifications for the job from a union. Biogetti
then advised Mauer that the Respondent was “not a union company.” He replied, “That’s fine.”18
Biogetti did not recall what was said during her interview of Mauer, but she does not recall ever
asking a prospective employee about his or her union affiliation. Nevertheless, she did not deny
making the statement attributed to her by Mauer. The testimony of Mauer and of Biogetti is not
necessarily inconsistent. Accordingly, I accept Biogetti’s statement that she does not remember
ever asking prospective employees about their union affiliation (Mauer does not claim that
Biogetti asked him about his union affiliation), and I also accept Mauer’s specific recollection
that during his interview with Biogetti he told her that he had received his schooling and
qualifications for the job from a union,19 and that Biogetti responded by stating the Respondent
Continued
16 This description of the April 8 meeting is taken primarily from the testimony of Mauer.
However, Sharpe also testified that Metz talked about previous subcontracting of maintenance
work, which resulted in the Building having only two maintenance staff. Tr. 604.
17 Tr. 404-405.
18 Tr. 94.
19 The Respondent argues that Mauer’s testimony that he acknowledged receiving his

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_________________________
was “not a union company.”

On approximately October 15, 2000, Gregory Mauer was hired as a maintenance
technician at the Building. About 1 month after Mauer started working, management provided
him with the Respondent’s employee handbook, which sets forth the Respondent’s rules,
regulations and policies regarding employees. Human Resource Manager Farrell has used the
handbook since she started with the Respondent in 2000. She uses the handbook as a guide,
and she uses it in a variety of circumstances including misconduct, productivity problems,
absenteeism, and in discharge situations.

Mauer successfully completed his 90-day probationary period with the Respondent,
which is a procedure set out in the employee handbook. After his first full year of employment,
Mauer’s job performance was evaluated. Cheryl Metz evaluated Mauer’s job performance in
October 2001, a procedure that is also set out in the employee handbook, and she judged his
performance to be satisfactory. The acceptability of Gregory Mauer’s job performance as of
October 2001, at least insofar as his expected continued employment with the Respondent is
concerned, is further shown by Metz’ comments on his job evaluation that she expected to see
a “4 next time” in the evaluation of Mauer’s “overall hands on skills.”20

In approximately October 2001, Sharpe assigned Mauer to perform “preoccupancy”
work. Preoccupancy work is work that is performed in vacated apartments in order to fix any
problems and prepare the apartment for another rental. Before October 2001, the preoccupancy
work was performed by several different mechanics. However, in approximately October 2001,
Mauer was summoned by Sharpe who told him that she liked the way he did the preoccupancy
work, she liked the way the apartments looked after he completed his work, and that he had a
great eye for detail.21 Accordingly, Sharpe appointed Mauer to do all the preoccupancy
inspections and work in the Building. Although Sharpe and Metz testified that Sharpe appointed
Mauer as the sole mechanic to do preoccupancy work as a result of complaints Sharpe had
received from other residents about how he left their apartments after performing repairs,22 this
testimony is not credible.

Preoccupancy work comprises much of the Respondent’s business. “It's our first
impression with the customer and it's maintaining the asset.”23 Preoccupancy work even
implicated the Respondent’s compliance with the code provisions of the City of Chicago. It is not
credible that the Respondent would assign Mauer as the only mechanic to perform such
singularly important work in reaction to complaints about his performance. Indeed, just the
opposite is more likely. If the Respondent had received complaints about Mauer’s work, such as
his work was messy or he was unable to do the work, he would not be assigned to do work in
schooling for the job from the union, and that Biogetti responded by saying that the Respondent
was not a union company, is not credible. The Respondent also argues, in reference to later
testimony by Mauer concerning what occurred during his discussion with union organizers in the
lobby of the Building on March 21, 2002, that Mauer had no reason to believe that he would get
into trouble if management saw him talking about union matters, and therefore that the contrary
testimony by Mauer is also incredible. (Respondent’s Posthearing Br., pp. 14-15.) However, if
one accepts that the former occurred, as I do, then the latter is both more likely and more
credible.
20 GC Exhibit 12, p. 6; Tr. 114-115.
21 Tr. 118.
22 Tr. 595.
23 Tr. 444.

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apartments for new tenants, but rather would be assigned to do work in other apartments where
a “first impression” was not so crucial. Or, he may have been warned, counseled, or disciplined
if his work had been poor or if complaints had been received, but there is no evidence of any
such warning, counseling, or discipline prior to his being assigned to do preoccupancy work. In
short, if there had been complaints about or concern about Mauer’s work, it is reasonable to
believe, first, that there would be some documentation of such performance problems, and
second, that Mauer would have been assigned to perform less important work rather than the
more important work he was actually assigned.

In addition, when Sharpe was asked if she had told Mauer that she liked the way he did
preoccupancy work, she responded that “I don’t recall that, no,”24 leaving open, at least, the
possibility that she did tell this to Mauer. I am inclined under all of these circumstances to accept
the specific recollection of a witness (Mauer) concerning the occurrence of an event over the
testimony of another witness (Sharpe) who does not recall, but does not deny, the same event.
Accordingly, and for all of the above reasons, I accept Mauer’s testimony that when he was
summoned by Sharpe, she assigned preoccupancy work to him after telling him that she liked
the way he did this work, she liked the way the apartments looked after he completed his work,
and that he had a great eye for detail.

On February 28, Mauer received, for the first and only time during his employment with
the Respondent, an employee warning notice relating to his work performance.25 The notice
cited five apartments in which Mauer had allegedly failed to perform proper work, and stated
that the time frame of Mauer’s poor work was February 5 through 20. The notice does not give
any description of the alleged complaints or the alleged performance problems other than in one
instance.

The Respondent produced documents that it claims support the employee warning
notice given to Mauer. However, none of these allegedly supporting documents were attached
to the warning notice that the Respondent maintained in its files. Instead, the allegedly
supporting and pertinent documents were obtained by and reconstructed by the Respondent in
preparation for the hearing in this case. Also, the Respondent did not produce any witness who
had direct knowledge of the work performed by Mauer in these instances.26

The residences at which Mauer allegedly did the poor work cited in the warning notice
were 10T, 3E, 6E, 17J, and 7B. The documents offered by the Respondent to support the
reference to apartments 10T, 3E, 17J, all refer to work that was done outside the timeframe
listed in the warning notice.27 The Respondent offered no documents to support the reference to
apartment 7B. Accordingly, I find that of the five instances cited in the warning notice, the
evidence supports only one such instance of allegedly poor performance by Mauer.

Moreover, the Respondent employs a preoccupancy inspector, a person who inspects
the apartments before a new resident moves into an apartment. This person is John Mockridge,
who is the service coordinator. One of Mockridge’s duties is to inspect the apartments after the
24 Tr. 595.
25 GC Exh. 13; R Exh. 32; Tr. 123-128. Because GC Exh. 13 is the same document as R.
Exh. 32, I will hereafter refer only to GC Exh. 13.
26 The work tickets that were offered into evidence by the Respondent were all documents
that Metz had instructed another employee, Bill Brown, to gather after the charges in the
present case had been filed.
27 See R. Exhs. 5, 6, 7.

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preoccupancy maintenance is done to make sure that the work was properly done and the
apartment is ready for occupancy.28 In addition, Sharon Sharpe also inspects apartments after
preoccupancy maintenance work is done. The lack of any evidence from Mockridge, who was
not called as a witness, or Sharpe, that Mauer’s preoccupancy work in the matters listed in the
warning notice was defective casts additional doubt on the Respondent’s claim that Mauer
performed his job poorly.

On March 19, Gregory Mauer received an employee warning notice relating to
absenteeism. This was the first and only written warning given to Mauer concerning
absenteeism. The notice stated that Mauer had been absent 12 days over the last fiscal year.29
The notice does not state that any of these missed days were unexcused. Rather, the notice
reflects that these absences were sick days. Mauer told Metz, who handed him the warning
notice, that he had been sick all of those days, and she replied that she believed him. Metz told
Mauer that Farrell had asked her to take this action, and that if Mauer called in sick for the next
6 to 8 months there would be disciplinary action. There is no evidence that Mauer was absent
from work after March 19, except for March 29. However, as I have found herein and as the
Respondent has admitted in its Position Statement,30 this absence was approved.

The first time that Metz ever talked to Farrell about performance was in February or
March 2002. Farrell’s immediate response to this report was to tell Metz to find out what was
wrong and to determine if the problem could be rectified. There is no evidence that Metz ever
attempted to make these determinations.

Mauer received no other warning notices other than the two previously described
notices, one for performance and one for absenteeism, during his time of employment with the
Respondent.

2. Events on and after March 28, 2002

On March 28, Mauer was working on-call. At approximately 6 p.m., he received a call
from the front desk concerning the resident in apartment 6M who had complained about a water
leak in her bedroom. Mauer responded, and after a preliminary investigation, determined that
the leak was originating from the resident’s bathroom area.

Mauer tried to find the valve to shut the water off to that apartment, but was unable to
locate the valve.31 He telephoned Lead Mechanic Barajas, several times to try to locate the
valve and to obtain assistance. Barajas first responded, “Why are you calling me? You’re the
one that’s on call.”32 Later, Barajas told Mauer to call Bardic, who might know where the valves
Continued
28 Tr. 119-121, 221.
29 Tr. 130; GC Exhibit 14.
30 GC Exh. 2, p. 5.
31 There are pipes and valves throughout the entire area of the basement. Most of the
valves are not marked nor is there a chart designating the locations of the pipes controlled by
such valves, with the result that the apartment number or other location of the water pipe to
which the valve is attached is not readily or easily known.
32 Tr. 151. Barajas testified that he told Mauer in this telephone conversation that the shutoff
valves for the M tier were located either on the 21st or 22nd floor. (Tr. 572.) This testimony is
not credible, in spite of Barajas’ admitted ignorance of the exact location of the shutoff valves for
the M tier. Barajas admits that Mauer called him a couple hours after the first telephone call and
said that he would have to shut off the main water. (Tr. 573.) Barajas’ response to this was “if he

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_________________________
were located, and to call Matica, Mauer’s backup, and tell him to come to the Building.

Finally, Mauer telephoned Art Barajas to obtain his approval for shutting off the hot water
in the entire building. Barajas approved this action, but cautioned Mauer to obtain Sharon
Sharpe’s approval before shutting off the hot water, and to shut off the pump for the hot water
because if the pump were to run dry, it would cause the seals to leak and require the
replacement of the pump. Mauer telephoned Sharpe who approved shutting off the hot water.
Mauer then shut off the water and proceeded to drain the water that remained in the pipes.
However, he did not shut off the pump.33 At about this point, Matica showed up, and Matica and
Mauer put a valve on the broken pipe to stop the leak.

After the hot water was shut off and the leak was stopped, Mauer telephoned Sharon
Sharpe to advise her of the situation and to tell her that the resident in 6M would be unable to
use the bathroom in that apartment until it was cleaned and fixed. Sharpe advised that the
resident could use one of the corporate suites in the Building. Mauer advised the resident of
this, but the resident declined.

Mauer and Matica cleaned the areas of the Building that had been damaged by the leak.
These areas included apartment 6M, where holes had been cut in the bathroom and hallway
walls in order to obtain access to the leaking pipe, and an area on the ground floor where the
leak had caused the ceiling to collapse. However, the cleaning was by no means complete.
Moreover, water continued to drip from the ceiling on the ground floor further exacerbating the
mess caused by the leak. Mauer and Matica quit cleaning at approximately 6:30 a.m. on March
29. They did not report to work the next day because of the virtually continuous work, for Mauer,
but less for Matica, that they had done over the previous 18 hours. Mauer telephoned Art
Barajas at about 8 a.m., explained what had occurred since they last spoke, and asked Barajas
if it was alright if he did not come into work. Barajas said, “That’s fine.”

The next day, March 29, Fred Gist, a maintenance mechanic, was assigned to fix the
leak in apartment 6M. Gist spent several hours at this and other jobs. However, he did not fix
the leak nor was he disciplined for failing to repair the leak.34 On March 30, Bardic was also
assigned to fix the leak in apartment 6M.35 He failed to fix the leak, but he was not disciplined
for failing to fix it. Metz explained that these mechanics were not disciplined because they were
simply trying to repair leaks that had been caused by Mauer. But this reason hardly justifies
differential treatment if the treatment is supposedly based on the failure to fix a leak. Moreover,
had to, he had to, but he had to make sure that the hot water tanks were off and the pumps
were off.” It is simply not credible that the lead mechanic would authorize the shut off of hot
water in the entire building if he had already instructed Mauer as to the location, even the
general location, of the shutoff valve for the particular tier. At a minimum, Barajas would have
asked Mauer why he did not shut off the M tier, and why he did not do what Barajas claims to
have told Mauer in the first conversation. I find the reason for this incongruity is that Barajas did
not tell Mauer or discuss with Mauer what Barajas claims.
33 Because Mauer failed to shut off the pump before shutting off the water, the pump was
damaged and the Respondent was required to purchase a new pump, which was installed on
April 11, 2002. Metz testified that she signed the purchase order for a new pump, and that the
cost of the pump was approximately $1800. (Tr. 501.) However, the Respondent, in its Position
Statement, asserted that the cost of the new pump was $1076.98. (GC Exh. 2, p. 6.) I accept
the more precise, latter figure.
34 GC Exh. 31; Tr. 534.
35 GC Exh. 20.

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it is simply not true that Mauer had caused the leak. Mauer, Gist and Bardic were each faced
with the task of trying to fix a leak. None of them succeeded. None of the Respondent’s
maintenance mechanics, other than Mauer, received any discipline regarding their failure to fix
the leak in apartment 6M over a 2-week period. Mauer was fired, allegedly for his failure to fix
the leak over the course of one hectic evening. The disparate treatment, if indeed the failure to
fix the leak was the basis for the Respondent’s firing of Mauer, is striking.

It was not until April 11, approximately 2 weeks after the leak occurred, that Lead
Mechanic Barajas, together with the help of the lead mechanic from another of Respondent’s
properties, repaired the pipe in apartment 6M. No one from management ever spoke to Mauer
about his performance in dealing with the leak on March 28 or about his failing to report for his
regular shift on March 29.

On April 8, Sharon Sharpe and Cheryl Metz called a meeting for the entire staff at the
Building. This meeting is described above. After the April 8 meeting and after the maintenance
staff had returned to their work, Metz came down to the basement to talk with Gregory Mauer.
She appeared to be agitated. She said to Mauer, “I want you to look at me and swear to me that
you did not give personal information about my employees to that skunk Union.”36 Mauer denied
doing so, and told her that he did not even have access to that information. Not content, Metz
asked him the same question again, and again Mauer denied doing so. Five minutes later, while
she was standing outside another person’s office, Metz again asked Mauer the same question,
and he again denied her accusation.37

Metz denies using the language attributed to her by Mauer. However, she testified that
she was very concerned about the Union telephoning her employees at home. She even
suggested to at least one employee to call the police if the employee were “frightened or
worried”38 about a telephone call from the Union. Notwithstanding this testimony, the
Respondent now claims that “[t]here is no evidence that Metz was concerned or had any
knowledge that anyone was giving such information to the Union.” (Respondent’s Posthearing
Br., p. 16). In light of Mauer’s and Metz’ testimony, this contention is rejected.

On April 12, Metz prepared a memorandum to Nancy Farrell in which she recommended
that Mauer be terminated “with expediency.”39 Metz’ memorandum states that work tickets
relating to the March 28 events were attached to the memorandum; however, no such work
tickets were attached to the memorandum at the time of the hearing, and Farrell did not know
where these work tickets were or what particular matters they described. Metz stated that the
work tickets related to the March 28 events, but she also did not know where the tickets were.

In Metz’ memorandum, she identifies the two mechanics that had dealt with and
responded to the March 28 leak—Mauer and Matica. She recommended Mauer’s discharge.
However, she only recommended a “warning notice” for Matica. She explained in the
memorandum that this disparate treatment was due to Matica’s minimum time working in the
36 Tr. 177.
37 I do not decide, and am not called upon to decide, whether or not Mauer gave “personal”
information relating to coworkers, such as home addresses, to the Union. Nor am I called upon
to decide, if Mauer had done so, whether such action would otherwise be proper or whether it
would constitute protected activity. The statement and actions of Metz are noted because of
their bearing on her attitude about the Union.
38 Tr. 399.
39 R Exh. 19.

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Building. Nevertheless, and in spite of Metz’ recommendation, there is no evidence in Matica’s
personnel file that a warning was ever issued to him.

On April 15, the next business day after Metz wrote her memorandum, Mauer reported
for work at approximately 9 a.m. At about 2 p.m., Cheryl Metz called him on the radio and asked
him to come to the conference room. When he arrived, Cheryl Metz and Nancy Farrell were in
the conference room. They told him that he was being terminated. He asked why. They told him
that it was because of his absenteeism and his job performance. They gave no other reason or
explanation. Mauer gave them his keys and radio. He was accompanied upstairs for his
personal tools, which he put into his locker so that he could retrieve them another day. He was
accompanied to his locker for his shoes and coat, and he left.

Nancy Farrell testified that she did not give Mauer a reason why he was being
terminated, and he did not ask. She claims that she simply and directly told Mauer that he was
no longer working for the Respondent, and Mauer said nothing. However, Metz testified that
Mauer did ask why, and that Farrell responded that it was based on performance and
absenteeism. The unlikelihood of Farrell’s extraordinary scenario is striking. For a person, any
person, who has worked for an employer for over 18 months, to be suddenly told that he is
being terminated, but to ask no questions, such as “why?” is, to say the least, an unusual and
unlikely proposition. I find that Mauer’s and Metz’ testimony is credible, while Farrell’s is not, and
that Mauer did ask and Farrell told him that the reason he was being fired was because of his
absenteeism and job performance.

Although Farrell, with Metz, told Mauer on April 15 that he was being terminated
because of absenteeism and job performance, Farrell testified at the hearing that the reason he
was fired was only because of job performance. The only example of alleged poor performance
she identified were the events of March 28. She also added, “just general performance of some
of his job duties that had been occurring in the months previous to that.”40 At the hearing, Farrell
did not know how many warnings Mauer had received concerning his performance, although
she testified that at the time he was fired she did know.

Farrell testified that prior to March, Metz had talked to her about terminating Mauer.
There is no documentation in Mauer’s personnel file, or in any other file, that Metz or Farrell
wanted to terminate Mauer before March. If Metz, the manager of the Building, wanted to fire
Mauer, and if she told her intention to Farrell, surely Farrell would have taken some action, and
just as surely there would have been some documentation in the file to reflect either the intent to
fire Mauer or the justification for such firing. There is none.

Farrell testified that after Metz told her that Metz wanted to fire Mauer she told Metz to
document the file. Farrell stated that this instruction explains the single warning notice, dated
February 28, 2002, that Mauer received concerning his performance.41 However, there is no
documentation in the file to explain or justify Metz’ alleged intent to fire Mauer before that
warning notice, in spite of Farrell’s statement that Metz had already formed this intent prior to
Mauer having received any warning notice concerning his performance. Moreover, Farrell’s
statement that Metz sought her authorization to fire Mauer conflicts with Metz’ testimony that
Metz had the authority to hire and fire.

Metz testified that the first time she had knowledge that Mauer had any association with
40 Tr. 309.
41 Tr. 364; GC Exh. 13.

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the Union was the day after he was terminated. In view of Farrell’s testimony that it was Farrell’s
decision to fire Mauer, it may not be necessary that I resolve the question of Metz’ credibility
regarding her statement of lack of knowledge. Nevertheless, considering Metz’ involvement in
Mauer’s firing, the fact that she recommended that Mauer be fired “with expediency,” and Metz’
own testimony that the discharge of Mauer was her decision,42 I will address the question of
Metz’ credibility concerning what she knew.

I find that Metz is not credible when she stated that she did not discover that Mauer was
associated with the Union until after he had been fired. I make this finding based on all the
evidence in this case, including, in particular, (1) the demeanor of the witnesses, (2) Mauer’s
disclosure of his union affiliation to Cindy Biogetti when he interviewed for the maintenance
technician position, see infra, (3) Mauer’s continual attempts to sign up coworkers after the
Union’s March 21 appearance at the Building, (4) Sharon Sharpe’s observation of Mauer with
the union organizers on March 21, (5) the fact that Biogetti is the sister of Metz and Sharpe is
the daughter of Metz, (6) the interrogations of Mauer on March 27 (by Farrell), and on April 8 (by
Metz), (7) the small number of maintenance technicians, approximately 6, who work at the
Building, (8) the overriding concern of Metz and the Respondent’s management about the
union’s organizing efforts, (9) my previous and subsequent findings regarding various aspects of
Metz’ testimony that lack credibility, and (10) the disparate manner in which Mauer was treated
in Metz’ and Farrell’s decision to terminate his employment. No one of these factors is
determinative and the absence of any factor would not change my finding.

Metz testified to the reasons that she fired Mauer. She said that Mauer went from
average to poor to “downright destructive.” She also said that Mauer had been given every
chance, but that his absenteeism and incomplete job tickets were regular. “The simplest of
things, such as putting a screen in a window, that’s a simple thing. I can put a screen together
and put it in your window.”43 These statements are deceptively not true—deceptive because
they have a modicum of truth that conceals their essential and overall fallacy. Moreover, neither
absenteeism nor incomplete job tickets were mentioned in Metz’ April 12 memorandum to
Nancy Farrell in which Metz set forth the reasons, at that time, for her recommendation that
Mauer be terminated “with expediency.”

Mauer had received a single warning notice concerning his job performance and a single
notice concerning his absenteeism prior to being fired. These warnings were issued before the
Union came to the Building on March 21. Mauer did not receive any warnings concerning job
performance or anything else after the Union appeared on March 21. Even if the two prior
warnings were accepted as justified, the reasons given by Metz would still constitute but a
modicum of truth. Mauer, in fact, had not been given every chance. There is no evidence that
incomplete work tickets by Mauer were a regular occurrence. And, Mauer’s absenteeism, even
if it could be considered to be “regular,” was still less than another employee who was not
connected with the union and who was not fired in spite of that employee’s substantially greater
absenteeism.44 And Metz’ disingenuous statement that she can make a screen and put it in a
window is irrelevant to whether Mauer could or should have known how to make a frame for a
42 Tr. 413. Metz was inconsistent on the question of her authority to fire Mauer, saying at
one point that she had “the authority to terminate people unilaterally at 1400 Lake Shore Drive”
(Tr. 503), and later saying that she only made recommendations on firing someone, and that the
final approval came from Nancy Farrell. (Tr. 505.)
43 Tr. 414.
44 See infra regarding James Campbell.

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screen to be placed in the window of the resident’s apartment.45 Indeed, when Mauer advised
his lead technician of this problem, the lead technician’s “answer” was wait until spring. There is
no evidence that any of Respondent’s maintenance technicians knew how to make a frame for a
screen.

Respondent, as well as the General Counsel, offered examples of other employees who
were terminated. I have considered these examples or comparables for their bearing, if any, on
whether the Respondent unlawfully discriminated against Mauer when it fired him, and, if so,
whether the Respondent would have taken the same action in the absence of such motivation.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983);
Sonoma Mission Inn & Spa, 322 NLRB 898, 905 (1997) (treatment of similarly situated
employees who were not involved in protected activity is relevant in determining motive).

Respondent offered as an example Billy Holloway, a maintenance technician, who was
terminated on April 6, 2001.46 The only explanation for Holloway’s termination on the
Respondent’s termination form is “not working when asked and not calling in (3-18-01).
Insubordination to a superior—Low performance of duties.” Holloway’s personnel file also
reflects several instances of improper job performance, insubordination, and unauthorized
absences.47 Holloway’s personnel file also contains documentation of a meeting he had with
Nancy Farrell regarding the proper procedure for using his time card. This procedure is set forth
in the Respondent’s employee handbook. Farrell stated that she had similar meetings with all
hourly employees. On the other hand, Farrell did not meet with Gregory Mauer before firing him
to explain any problems in his performance or attendance.

The second example offered by Respondent is Joseph Meyer. The only document
pertaining to Joseph Meyer is an employee discipline form, which reflects that he was warned,
not terminated, concerning his failure to complete work for “move-ins,” i.e., preoccupancy work.
There is no date for this warning. The third alleged comparable is Daryl Carpenter. Carpenter
worked at the front desk. He was fired on July 12, 2000 for absenteeism. The reason given is
that the “employee [was] scheduled for 1 AM—9 AM shift on 7/11—never showed-never called.
This is the 2nd offense.” The fourth example is Janette Long, from the leasing department, who
was fired on October 19, 2000. The reason given was that she “was verbally warned yesterday
not to be late anymore. She didn’t come in today until 9:30.” “Cheryl Sharpe” signed this
termination form, and favorably recommended the rehiring of Janette Long. The fifth and last
alleged “comparable” is Darrell Thomas, a carpenter. He was fired on July 17, 2001. No reason
is given for this termination, and Farrell did not know about or remember this individual, as she
did not know about or remember any of the other firings. None of these examples are
sufficiently comparable to the facts in the present case as to be helpful in evaluating the
consistency or propriety of the Respondent’s action in discharging Mauer.

The General Counsel also offered evidence of the Respondent’s treatment of other
employees. Matica’s personnel file shows that in 1999 (before the Respondent assumed control
45 The maintenance shop did not have frames to fit the window in the job that had been
assigned to Mauer. (Tr. 125.) Metz did not mention this fact when she made her statement that
she was able to put a screen in a window.
46 R. Exh. 22A. The following disciplinary examples are contained in succeeding letter
exhibits, for example R. Exhs. 22B, 22C, etc.
47 GC Exh. 21.

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of the Building) his work performance was poor.48 Later, on October 29, 2001, Matica was
suspended for 3 days after he left work without permission. In imposing this discipline, the
Respondent specifically cited the provisions in the employee handbook relating to the policy on
sick leaves and personal days, and disciplinary offenses.49 The file also shows that in February
2002, Matica had refused to do work that the property manager at the 1936 N. Clark property
had assigned to him. He was, as Farrell acknowledged, insubordinate, and immediate
termination would have been justified and would have been consistent with the employee
handbook.50 He was told to leave by the property manager, and he subsequently claimed that
he had been fired. However, Farrell treated it as a resignation, and further advised Matica that if
he desired to continue working for the Respondent, he would be allowed and that he should
report to Sharon Sharpe at 1400 North Lake Shore Drive on February 27, 2002.

Matica was Mauer’s backup mechanic on March 28. He had been a mechanic at the
Building for a period of 1 month before the events of March 28. Also, he had been the lead
technician in his previous building. Matica, of course, had a history of insubordination
immediately prior to starting work at 1400 Lake Shore Drive. Matica arrived in the evening of
March 28 at about the time when Mauer had shut off the hot water in the building. He and
Mauer then worked together in containing the damage and cleaning up the mess that had been
made by the leak and the containment of the leak.

The personnel file of Henry McJunkins, an electrician at the Building, shows that on
different occasions he had been insubordinate, he failed to complete his work assignments, he
had acted rudely and improperly to staff, he swore at his supervisor, he had not been working
full 8-hour days, and his work was substandard.51 As a result of these infractions and this poor
performance, Farrell and the lead technician held a meeting with McJunkins on June 20, 2001 in
which they discussed and tried to work through these issues. This discussion was consistent
with the policies and procedures in the employee handbook for employees whose performance
is poor.52 McJunkins was not terminated, but rather was given a 14-day probationary period.
This probationary period is also consistent with the policies and procedures of the employee
handbook for employees who are having performance problems.

Farrell explained the difference in the way the Respondent treated McJunkins, as
opposed to Mauer, by stating that McJunkins’ infractions included insubordination, i.e.,
deliberate misconduct, whereas Mauer’s problems were solely performance. She explained
that, in her opinion, deliberate misconduct and attitude problems can be more easily handled
and rectified by working with the employee and instructing the employee, as distinguished from
an employee’s (alleged) inability to perform the job for which, again in her opinion, the employee
cannot be instructed. Farrell was not a credible witness and this explanation is simply another
example of her lack of credibility. First, the explanation fails to account for the fact that
McJunkins’ infractions included performance, as well as misconduct and attitude problems. To
add insubordination and attitude problems to his already existing performance infractions would
reasonably and normally tend to exacerbate the need for and propriety of discipline. But Farrell
apparently believes just the opposite. If one were to accept her testimony, a poorly performing
employee increases his chances of remaining on the job and of not being fired if he were also to
engage in insubordination or other deliberate misconduct. Second, her testimony is contrary to
48 GC Exh. 25.
49 GC Exh. 11, pp. 7 and 26,
50 Tr. 330.
51 GC Exh. 22.
52 GC Exh. 11, p. 20,

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the provisions of the Respondent’s employee handbook, which specifically directs and provides
for ways in which an employee’s performance can be addressed and improved. The
Respondent’s employee handbook recognizes that poor performance problems can and should
be addressed, and it lists some of the ways in which poor performance can be addressed.
Indeed, the employee handbook recognizes that performance issues, above all and certainly
above misconduct issues, should be addressed with the employee.53

This handbook, which Farrell acknowledges following in matters involving employees
other than Mauer, provides that a poorly performing employee should be made aware of the
problem, suggestions should be put in writing as to how the problems can be eliminated, and
the employee should be given sufficient time and help in which to remedy the problem. These
procedures were not followed in the Respondent’s treatment of Mauer, but they were followed,
as Farrell acknowledges, in the Respondent’s treatment of McJunkins. The handbook also
provides that

In keeping with the company’s concern for all employees, termination of
employment on the initiative of the company under circumstances generally
related to the quality of the employee’s job performance deserves special
consideration. The company would like to insure that every reasonable step has
been taken to help the employee continue in productive capacity.54

This written policy is contrary to the stated policy of Nancy Farrell, the human resource manager
and the person charged with implementing and enforcing the Respondent’s personnel policies.

Farrell’s alleged personal policy regarding the relative importance of performance and
misconduct/attitude issues is further belied by the pamphlet that was issued to all maintenance
staff employees in the meeting scheduled by Metz and Sharpe on April 8.55 The pamphlet,
utilizing a true-false approach, stated:

When it comes to your maintenance staff technical skills are more important than
customer service skills.

FALSE. Although actually fixing the problem IS important, their ability to
communicate information and gain the customer’s trust is what the customer
remembers.

After Farrell testified that Mauer was fired because of performance problems, she was
asked to identify the provision in the employee handbook under which his discharge was made.
In response, however, she identified a section of the handbook dealing with misconduct
offenses, not performance problems. The “offense” she identified was the catchall phrase in the
misconduct section of the Booklet, “other offenses that are in the Managers [sic] judgment
seriously threaten the well being of the company, it’s [sic] employees or the residents.”56
Nevertheless, Farrell had already and inconsistently testified that Mauer was fired because of
performance, not misconduct. In addition, misconduct like this vague “offense” cited by Farrell,
even deliberate misconduct, is something that Farrell had already stated could be handled by
discussing the matter with and instructing the employee, something that neither she nor the
53 See, e.g., GC Exh. 11, p. 20.
54 Id.
55 R. Exh. 23C.
56 GC Exh. 11, p. 26.

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Respondent had done or offered to Mauer.

D. Analysis

1. Section 8(a)(1)

Section 8(a)(1) of the Act provides that it shall be an unfair labor practice for an
employer “to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7” of the Act. Section 7 guarantees to employees the right to form, join, or
assist labor organizations. A violation of Section 8(a)(1) does not depend on the employer’s
motivation or on the subjective reaction of the employees or on whether the coercion succeeded
or failed. Rather, the Board’s test is “whether the supervisor’s conduct reasonably tended to
interfere with the free exercise of the employee’s rights under the Act.” Whirlpool Corp., 337
NLRB No. 117 (2002), citing American Freightways Co., 124 NLRB 146, 147 (1959). In making
this determination, all of the circumstances, including the context in which the alleged unlawful
statement or action occurred, are considered. NLRB v. Gissel Packing Co., 395 U.S. 575
(1969).

a. Was Sharon Sharpe a supervisor?

Before addressing the charges of unfair labor practices set forth in the complaint, a
preliminary question is the status of Sharon Sharpe who, during the relevant period, was the
service manager at the Building. In this position she was responsible for overseeing the work
orders and purchase orders at the Building, together with bill approval and paying. Her
responsibilities also included the assignment and direction of maintenance mechanics, and the
inspection of work performed pursuant to her direction.

Section 2(11) of the Act defines a “supervisor” as follows:

The term “supervisor” means any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if in connection with
the foregoing the exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.

The functions listed in Section 2(11) are read in the disjunctive. NLRB v. McEver
Engineering, 784 F.2d 634, 642 (5th Cir. 1986); Amperage Electric, 301 NLRB 5 (1991). Thus, if
an employee possesses any one of the 13 kinds of authority set out in Section 2(11), she is a
“supervisor” for purposes of the Act, but only if she holds her authority in the interest of the
employer and the exercise of her authority requires the use of “independent judgment.” NLRB v.
Kentucky River Community Care, 532 U.S. 706 (2001). If a person actually possesses the
statutory authority, then she does not lose it by exercising it infrequently or even not at all.
Babcock & Wilcox Construction Co., 288 NLRB 620 621 fn.3 (1988).

Sharon Sharpe, as the service manager for the Building, possessed the authority to
transfer, assign, and responsibly to direct the maintenance mechanics at the Building.
Moreover, this authority required the use of independent judgment, as is clearly shown by her
assignment of Gregory Mauer to do preoccupation work. Accordingly, I find that Sharon Sharpe
is a statutory “supervisor.”

b. Meeting on March 27, 2002

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(1) Preliminary question of whether to make an adverse inference against the General Counsel

With respect to my credibility determinations in deciding what occurred at the individual
and group meetings, Respondent argues that an adverse inference should be drawn against the
General Counsel for its failure to call other maintenance workers who were present at the
meetings. Torbitt & Castleman, Inc., 320 NLRB 907, 910 fn.6 (1996), affd. 123 F.3d 899, 907
(6th Cir. 1997). However, the present circumstances are inappropriate for the drawing of an
adverse inference against the General Counsel. As was made clear in Torbitt & Castleman, an
adverse inference is only proper when the missing witness is available to and is expected to
favor the party that failed to call him. There is no evidence in the present case that any of the
other mechanics would be expected to favor the General Counsel. To take one example, the
General Counsel called maintenance mechanic Bardic as a witness. Bardic was obviously
hostile to the General Counsel when he was on the witness stand, and he acknowledged that
he did not want to be at the hearing. The General Counsel was permitted to examine Bardic as
on cross-examination. F.R.Ev. 611(c). Bardic is still employed by the Respondent and is
currently receiving worker’s compensation benefits for an injury he suffered on the job. Torbitt &
Castleman supports my declination to impose an adverse inference under the present
circumstances. In that case, an adverse inference was not drawn when the General Counsel
failed to call a second employee who was present at the time an alleged threat of retaliation was
made by the employer. The judge stated that “the absent witness was an employee, who could
not reasonably be expected to favor one party over the other.” 320 NLRB at 910 fn.6.
Accordingly, I do not draw an adverse inference against the General Counsel under these
circumstances.

(2) Interrogation of employees

The test of whether an unlawful interrogation has occurred is whether, under all the
circumstances, the alleged interrogation reasonably tends to restrain, coerce, or interfere with
the employees in the exercise of rights guaranteed by the Act. Rossmore House, 269 NLRB
1176 (1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
In making this determination, all of the surrounding circumstances must be considered. Either
the words themselves or the context in which they are used must suggest an element of
coercion or interference. Id. Relevant circumstances include the time and place of the
interrogation, the method used, the personnel involved, the nature of the information sought, the
known position of the employer, whether the employee was given assurances that there would
be no reprisals, whether a valid purpose for the interrogation was communicated to the
employee, the truthfulness of the employee’s response, and whether the person being
questioned is an open union adherent. Performance Friction Corp., 335 NLRB 1117 (2001),
citing Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964); Rossmore House, supra; Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985).

The individual interrogations by Nancy Farrell and Sharon Sharpe on March 27 were
conducted in the Respondent’s conference room, away from the employees’ work place. Farrell
came to the Building that day specifically to conduct the interrogations. See Garney Morris, Inc.,
313 NLRB 101, 103 (1993) (“The participation of a high-level manager in unlawful conduct
exacerbates the natural fear of employees that they would lose employment if they persisted in
their union activities.”) The interrogations (or as Respondent would characterize them, the
meetings) were held individually with each maintenance mechanic, and, when these private
interrogations were concluded, a meeting was held with the entire maintenance staff. The
individual meetings were held with each individual maintenance mechanic and two management
persons. In consideration of the coercive circumstances in the interrogation of Mauer, Farrell’s

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question to Mauer as to what he thought of unions also constitutes a violation of the Act.
Rossmore House, supra; Paceco, 237 NLRB 399, 400 (1978).

In the group meeting, Farrell asked the employees questions only after she advised the
employees of the antiunion position of the owner. Neither Farrell nor Sharpe gave assurances of
no reprisals in the individual or group meetings, and neither Farrell nor Sharpe explained the
purpose for their interrogations. When Farrell asked Mauer if he had signed a union
authorization card, he falsely denied doing so, just as Bardic falsely denied signing a union card
in his individual meeting with Farrell. When Farrell asked the staff in the general meeting as to
who had signed union cards, no one responded, even though the evidence shows that at least
Bardic and Mauer had signed such cards and Farrell had just stated that she knew that 50
percent of the workers had signed such cards.57 This inquiry, as to who had signed
authorization cards, after Farrell had just told the employees of the owner’s dislike of unions and
her stated knowledge that half of them had signed such cards, was clearly coercive and in
violation of Section 8(a)(1) of the Act.

The Respondent produced no evidence to explain why its management conducted
individual meetings as well as a general meeting. Nor has the Respondent given any legitimate
business reason for inquiring into whether Mauer had been approached by the union, whether
he had talked to the union, what he thought of unions, and whether Mauer, Bardic and all the
other maintenance mechanics had signed union authorization cards. In addition, Mauer had
tried to keep his union activity hidden, and accordingly, he was not an open union adherent.

I find that each and every factor set forth in Performance Friction, Rossmore House and
Bourne supports and directs the conclusion that the interrogations conducted by Farrell on
March 27 were coercive, they interfered with employees’ rights under Section 7, and were in
violation of section 8(a)(1) of the Act.58 The interrogations were held during the regular workday
and in offices used by management. The individual interrogations were all 2 on 1, that is, two
management persons for each individual employee. The way the interrogations were conducted
was also intimidating and threatening. For example, in the interrogation of Bardic, Farrell did not
directly ask him if he had signed a union card, but she made it clear that he should tell her. No
assurances against reprisals or explanations for the questions were given. In both the individual
and the group meetings, Farrell mentioned the owner’s antiunion sentiment, thus making the
interrogation even more threatening. All statements and questions after Farrell disclosed the
owner’s antiunion sentiment would be affected by that disclosure. Mauer’s and Bardic’s false
responses to Farrell’s question regarding the signing of a union card is further evidence of the
intimidating and coercive nature of the interrogations. Rossmore House, supra.

In addition to the foregoing factors demonstrating and supporting the coerciveness of the
interrogations, an overriding factor is whether the employer has a valid purpose for obtaining the
information sought. NLRB v. Camco, 340 F.2d 803 (5th Cir. 1965). As noted, the Respondent
did not communicate its purpose to Mauer or the employees, and has failed to articulate a valid
purpose during the present proceedings. Moreover, Farrell’s question to Mauer concerning what
57 Even if Farrell’s question to the employees at the general meeting, “Well, if it’s not you
guys, then who is it?” were treated as a rhetorical question, a contention not advanced by the
Respondent, the result would be the same since such questions may be as threatening as any
other type of inquiry or statement. See K-Mart Corp., 336 NLRB No. 37 (2001), 2001 WL
1227140, *2-3.
58 Of course, it is not necessary that all, or indeed any, of these factors be proven before
unlawful interrogation may be found. Southwestern of Dallas Optical Co., 153 NLRB 33 (1965).

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he thought of unions, under the circumstances of this case, is inherently coercive and a violation
of the Act. Multi-Ad Services, 331 NLRB 1226, 1227 (2000), enfd. 255 F.3d 363 (7th Cir. 2001).

Respondent contends that even if Farrell had questioned Mauer about whether he had
signed a union card and whether he knew of any other employee who did the same, these
questions would not constitute violations of the Act. Respondent cites Pony Express Courier
Corp., 283 NLRB 868 (1987) for the proposition that a single question as to whether the
employee has been approached by the union does not violate the Act. However, in Pony
Express, there was only a single question, and the question involved was whether the union had
approached the employee, not the question asked in the present case of whether the employee
had signed a union authorization card. Moreover, the Board in Pony Express found that the
context of the question was not such that the question could be deemed threatening or coercive.
The circumstances in the present case are quite different. Indeed, in the present case, all of the
relevant factors to be examined in determining whether an interrogation was unlawfully coercive
are present. The Board has held, under circumstances more closely similar to the present case
than Pony Express, but still involving the less threatening question of whether the employee had
been approached by the union rather than whether the employee had signed a union card, that
such an interrogation violated Section 8(a)(1) of the Act. A/Z Electric, 282 NLRB 356 (1986).

Respondent also argues that Bardic did not state that Farrell had asked in his individual
meeting with her as to whether he had signed a union card. Respondent contends that this
“difference” makes Mauer’s testimony that Mauer was asked such a question incredible. This
contention is rejected. First, there is nothing particularly incredible over the fact that different
individual interrogations might be conducted differently. See A/Z Electric, supra. Indeed, Farrell
admitted that the individual meetings were handled differently for each employee.59 Second, the
difference cited by the Respondent is only in form, not substance. Farrell did “ask” Bardic
whether he had signed a union card, but she did it in a much more subtle, if not more
threatening, fashion than the direct question she posed to Mauer.

For all of the foregoing reasons, I conclude that the Respondent violated Section 8(a)(1)
of the Act in the interrogations conducted by Farrell on March 27, which were coercive and
which interfered with the employees’ rights under Section 7.

(3) Threats regarding the futility of union activity during the March 27, 2002 meeting

The Board has consistently held that employers who threaten the futility of selecting a
bargaining representative violate Section 8(a)(1) of the Act. K-Mart Corp., supra; Trane Co., 137
NLRB 1506 (1962).

During the meeting with the Respondent’s maintenance mechanics on March 27, Farrell
stated that the owner of B & A did not like the Union, did not want the Union, and would not
allow it on his property. These are strong statements of antiunion animus. Moreover, the threat
that the Union would not be allowed on the property would reasonably convey to the
maintenance mechanics that any attempt by them to organize would be frustrated by the
Respondent, thereby informing them of the futility of engaging in such organizing activities.
Wellstream Corp., 313 NLRB 698 (1994); K-Mart Corp., supra. The coerciveness of this threat
was exacerbated by the other 8(a)(1) violations during the March 27 meetings and the
intimidating and threatening circumstances in which the threat was made.

59 Tr. 354.

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For all of the foregoing reasons, I find that Farrell unlawfully threatened the futility of
union activity in her statements to the Respondent’s maintenance mechanics on March 27, and
in doing so violated Section 8(a)(1) of the Act.

(4) Threat to make changes in the employees’ terms and conditions
of employment if they selected a union to represent them

The General Counsel maintains that Farrell’s statement in the March 27 meeting -- that if
the Union were to get into the building then management and the owner would have to look at
their options -- when considered in conjunction with Farrell’s statements regarding the futility of
union activity, constitute a threat to make changes in the employees’ terms and conditions of
employment if they selected a union to represent them. This is a close question, but on balance
I conclude that the General Counsel did not sustain his burden of proof.

The statement itself does not threaten any reprisals. Indeed, it is much like a truism.
Whenever a change of almost any nature is made in the workplace, management must or would
always consider its options. The question is, of course, what are those options that
management would consider? One must examine the context in which the statement is made in
order to determine whether there is an unlawfully coercive aspect to it. That is, was the
statement that management would have to look at its options reasonably understood by the
employees, under all the circumstances, to be another way of saying that a likely option is the
loss of work or the subcontracting out of work.60

The only authority cited by General Counsel in support of its contention that the
statement by Farrell constituted a threat to make changes in the employees’ terms and
conditions of employment if they selected the Union to represent them is Exceptional
Professional, Inc., 336 NLRB No. 16, slip op. at 19 (2001). This case is inapposite. In
Exceptional Professional, the employer was found to have made an unlawful threat of a layoff
when its supervisor told an employee that he (the supervisor) could not talk about the union or
he would be laid off. This statement is unlike any statement made by Farrell on March 27.

The Respondent argues that this charge should be dismissed because there is no
supporting evidence. I disagree. The statement that management would consider its options if
the Union were to become the representative of the employees is a statement that, under
different circumstances, could be found to be coercive and in violation of the Act. Indeed, the
circumstances of the present case demonstrate that the meetings and interrogations during
which these alleged threats occurred were coercive. As noted, whether the statement
constitutes an unlawful threat to change the terms and conditions of employment of the
maintenance mechanics if they selected a union to represent them is a close question.

Nevertheless, under the present circumstances, I find that the statement is not coercive
and would not be reasonably understood by the employees as being coercive. Farrell did not list
what options management would consider, and without more61, without some listing or
intimation of the options management would consider, either expressly or by implication or from
60 I mention subcontracting here, not because that is a necessary or reasonable inference
from Farrell’s statement, but because that issue arises in a statement by Cheryl Metz at the later
meeting on April 8, 2002.
61 See Garney Morris, Inc., supra at 115 (where the Respondent’s president told the workers
that one of his options was to close down the business, “a threat of this nature was a clear
violation of Section 8(a)(1) of the Act.”)

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the circumstances, one would be forced to speculate on whether this was a threat, and if so,
what action by management was reasonably contemplated by the threat.62 The evidence does
not establish these crucial elements of this 8(a)(1) charge, and accordingly, I conclude that
Farrell’s March 27 statement that management would consider its options if the Union were to
become the representative of the employees did not violate the Act.

(5) Creating the impression that employees’ union activities were under surveillance

The General Counsel alleges that Farrell’s statement in the March 27 meeting that she
knew that 50 percent of the maintenance staff had signed union cards created an impression of
unlawful surveillance because it indicated that the Respondent was closely monitoring the
degree of the employees’ union involvement.

When an employer creates the impression among its employees that their union
activities are being watched or spied on, employees’ future union activities and the exercise of
their Section 7 rights tend to be inhibited. Accordingly, the creation of the impression of
surveillance of union or organizing activities is a violation of Section 8(a)(1) of the Act. Link Mfg.
Co., 281 NLRB 294 (1986), enfd. mem. 840 F.2d 17 (6th Cir. 1988), cert. denied 488 U.S. 854
(1988).

The test in determining whether a respondent has created an impression of surveillance
is whether the employees would reasonably assume from the statement in question that their
union activities had been placed under surveillance. Schrementi Bros., Inc., 179 NLRB 853
(1969). The smallness of the employer’s workplace does not preclude a finding that the
employer created an impression of surveillance and the Board does not require that the words
used by the employer reveal that it acquired its knowledge by unlawful means. United Charter
Service, 306 NLRB 150 (1992).

Farrell told the maintenance mechanics, in management’s first meeting with the
employees after the Union had been at the Building in its initial organizing effort, that she knew
that 50 percent of them had signed union cards. She did not explain how she acquired this
knowledge or whether it had been obtained voluntarily. United Charter Service, supra at 151.
There was no evidence that the union cards were signed in public. Indeed, the two employees
who presented evidence on this issue stated that they denied that they had signed cards when
Farrell had asked them in their individual interrogations, when in fact they had signed such
cards. Accordingly, Farrell’s statements on their face reasonably suggested to the employees
that the Respondent was closely monitoring their union activities. Id.

62 I note that Amptech, Inc., 2002 WL 1988126 (NLRB Div. of Judges) involved, inter alia, an
alleged violation of 8(a)(1) in a speech given by the Respondent’s vice president whose family
owned the company. In the speech the vice president stated that his family felt that the workers’
attempt to organize was a personal attack on them, and that the “management would consider
their options.” In finding a violation of 8(a)(1), the judge only relied on the personal attack
statement, saying, “it equated the employees’ support of the Union to being disloyal to the
Company.” The judge did not refer to the “management options” statement in his finding of an
8(a)(1) violation. In Wal-Mart Stores, Inc., 2002 WL 1667274 (NLRB Div. of Judges), the
Respondent’s manager gave speeches to employees in which she used notes that she closely
followed and which read that in the event of a strike “the company would certainly have to
consider its options in keeping the store running and serving our customers.” Although several
8(a)(1) violations were charged, no such charge was made regarding the “options” statement.

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The Respondent argues that Farrell’s statement cannot be considered as an implication
of surveillance. In support if its contention, the Respondent relies on Regal Recycling, Inc., 329
NLRB 355 (1999), United Charter Service, supra, and Star Trek: The Experience, 334 NLRB
246 (2001). These decisions do not support the Respondent’s argument.

In Regal Recycling, the Respondent’s supervisor told two employees that he knew who
had signed cards for the union. However, immediately after making that statement, the
supervisor asked the employees whether they had signed cards. Since the General Counsel
was required to prove that the employee would reasonably assume from the statement that
surveillance had taken place, the judge found no violation because the “it must have been
obvious to the employees that Respondent could not know who signed cards.” 329 NLRB at
365. In the present case, Farrell also asked the employees, after she made her statement, to
name the employees that had signed the union cards. But Farrell, unlike the supervisor in Regal
Recycling, never said that she knew who had signed the union cards. Rather, she said she
knew that 50% of them had signed cards. Thus, there would be no reason for the employees to
doubt the veracity of Farrell’s statement simply because she continued to ask, in committing
another violation of the Act, who had signed the cards.

In Star Trek: The Experience, the judge considered an allegation that the Respondent
had created an unlawful impression of surveillance, and although he did not issue a ruling on
the allegation, his discussion makes clear that he would dismiss that allegation. See Star Trek:
The Experience, supra. The Board did not address the surveillance issue in its decision. The
surveillance allegation arose from a statement by the Respondent’s director of operations to a
worker that “he had been made aware that [the worker] was distributing union cards on Star
Trek premises and asked that [the worker] refrain from doing so as it was not company policy to
disseminate union material on the premises.” In considering this issue, the judge noted that
mere knowledge of employees’ union activity is not sufficient to establish the impression of
surveillance. “Thus to tell an employee that the Respondent had heard he was passing out
cards, particularly where that activity took place on company property, does not without more
make out a violation of the Act. South Shore Hospital, 229 NLRB 363 (1977).” While this
statement of how the law applies in a particular factual situation is not disputed, I have no
occasion to apply it since the facts of the present case regarding the creation of the impression
of surveillance have nothing in common with the facts of Star Trek: The Experience.

United Charter Service does not support the Respondent’s position since the Board held
in that case that the supervisor’s statements created an unlawful impression of surveillance.
The Board also noted in that case that neither the Respondent nor the manager disclosed how
he had obtained his knowledge nor did they offer any legitimate ground for making the
statements. Similarly, in the present case, neither the Respondent nor Farrell disclosed how she
had obtained her knowledge nor did they offer any legitimate ground for the statement made by
Farrell. Like the Board in United Charter Service, I find that Farrell’s “statements on their face
reasonably suggested to the employees that the Respondent was closely monitoring the degree
and extent of their organizing efforts and activities.” 306 NLRB at 151.

Accordingly, I conclude that the Respondent violated Section 8(a)(1) of the Act in the
statements made by Farrell on March 27, which unlawfully created the impression of
surveillance of the workers’ organizing activities and which interfered with the employees’ rights
under Section 7.

c. Meeting on April 8, 2002

(1) Threat to subcontract the employees’ work if they selected a union to represent them

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Section 8(c) of the Act protects the expression of views, argument or opinion as long as
“such expression contains no threat of reprisal or force or promise of benefit.” Thus, an
employer’s right to free speech must be balanced against the employees’ right to organize free
from coercion, restraint and interference. In determining whether an employer’s prediction
concerning the closing, partial closing, or transferring of its business is a permissible prediction
protected by Section 8(c) or is an unlawful threat in violation of the employees’ Section 7 rights,
the Supreme Court provided the following guidance in NLRB v. Gissel Packing Co., 395 U.S.
575, 618 (1969):

[A]n employer is free to communicate to his employees any of his general
views about unionism or any of his specific views about a particular union, so
long as the communications do not contain a ‘threat of reprisal or force or
promise of benefit.’ He may even make a prediction as to the precise effects
he believes unionization will have on his company. In such a case, however,
the prediction must be carefully phrased on the basis of objective fact to
convey an employer’s belief as to demonstrably probable consequences
beyond his control or to convey a management decision already arrived at to
close the plant in the case of unionization. [Citation omitted.] If there is any
implication that an employer may or may not take action solely on his own
initiative for reasons unrelated to economic necessities and known only to
him, the statement is no longer a reasonable prediction based on available
facts but a threat of retaliation based on misrepresentation and coercion…

On April 8, Metz told the maintenance staff that if the Union came in, the Building would
be considered overstaffed according to union rules. Therefore, management would have to
determine the maintenance staff to keep and the maintenance staff that would no longer work in
the Building. She said that the owner would keep one engineer and two maintenance
mechanics, and the rest of the work would be contracted out.

This statement by Metz is a direct prediction and threat that if the employees were to
select the Union as their representative, jobs would be lost and maintenance mechanics would
be laid off. When the statement is considered against the background of the antiunion
statements previously made by Farrell as well as the antiunion statements made by Metz at the
April 8 meeting, the conclusion that the statement constitutes a direct and unlawful threat is
even more clear and compelling.

The Respondent makes no legal argument regarding this direct threat because it claims
that Mauer’s testimony is “incredible” and that Metz “simply stated that she had put herself
personally on the line by eliminating subcontracting.” (Respondent’s Posthearing Br., pp. 62-63).
Since I have credited Mauer’s testimony in this regard, and since Metz’ testimony is partially
consistent with Mauer’s, Respondent’s factual argument is rejected. In any event, and
alternatively, the Respondent’s own characterization of Metz’ statement also results in that
statement being a violation of the Act because her statement equates adherence to the Union
with disloyalty to Metz and the employer. House Calls, Inc., 304 NLRB 311, 313 (1991).

Accordingly, I conclude that Metz threatened to subcontract the employees’ work if they
selected a union to represent them, and that this threat violated Section 8(a)(1) of the Act.

(2) Threat to reduce employees’ hours of work if they selected a union to represent them

The General Counsel contends that the same statements made by Metz on April 8, as

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described above, also constitute a threat to reduce the employees’ hours of work if they
selected a union to represent them. These statements include the threat that the owner would
keep one engineer and two maintenance mechanics, and the rest of the maintenance work at
the Building would be contracted out. The Respondent, again discounting Mauer’s testimony
and the extent to which it was corroborated by Metz, claims that there was no evidence to
support this allegation.

I find that Metz’ statement that the owner would keep just three maintenance workers
(essentially reducing the maintenance staff by more than half), and would subcontract out the
remaining work, could and would be reasonably understood by the workers that, in addition to
losing jobs, the workers’ hours would also be reduced. The Respondent has offered no defense
to this threat except to claim that the words constituting the threat were never spoken.
Nevertheless, as noted above, I have found that Metz made the statement constituting the
threat. Metz stated at the meeting that the Respondent’s reason for reducing the workers’ hours
would be that the Respondent would be considered overstaffed according to union rules. The
Respondent made no attempt to explain or to prove the accuracy of this statement at the
hearing or at any other time. The threat implied that the Respondent may or may not take action
solely on its own initiative or pursuant to the unexplained union rules that apparently only Metz
or the Respondent knew about. Accordingly, the threat “is no longer a reasonable prediction
based on available facts but a threat of retaliation based on misrepresentation and coercion.”
NLRB v. Gissel Packing Co., supra.

For all of these reasons, and for the reasons found in concluding that the Respondent
violated Section 8(a)(1) in threatening to subcontract work if the employees should elect to be
represented by the Union, I find that the Respondent violated Section 8(a)(1) in threatening to
reduce its employees’ hours of work if they elected to be represented by the Union.

(3) Interrogation of employees about their union activities

In its posthearing Brief, the General Counsel ignores this allegation of the complaint. The
Respondent does address this allegation and argues that there is no evidence that Metz
interrogated the maintenance mechanics during the April 8 meeting. I agree with the
Respondent. There is no evidence that Metz or any other member of management conducted
an interrogation of the employees at the meeting on April 8. Accordingly, this allegation should
be dismissed.

d. Meeting of April 19, 2002 - Interrogation of employees about their union activities

The complaint alleges that Cindy Biogetti, Respondent’s general manager, held a
meeting at the Building on April 19, during which she unlawfully interrogated the employees.
Biogetti testified at the hearing and stated that she did not ask any questions of the employees
during the meeting. The General Counsel did not challenge Biogetti on this testimony. Nor did
the General Counsel address this allegation in its posthearing brief. Accordingly, I find that
Biogetti did not unlawfully interrogate the Respondent’s employees in the meeting held on April
19.

2. Section 8(a)(3) - The discharge of Gregory Mauer

(a). Wright Line analysis. Under the test set forth in Wright Line, supra, the General
Counsel has the burden of proving by a preponderance of the evidence that antiunion sentiment
was a substantial or motivating factor in the challenged employer decision. To meet this burden,
the General Counsel must generally establish four elements. First, the existence of activity

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protected by the Act. Second, that the Respondent was aware that the employee had engaged
in such activity. Third, that the alleged discriminatee suffered an adverse employment action.
Fourth, a motivational link, or nexus, between the employee’s protected activity and the adverse
employment action. American Gardens Management Co., 338 NLRB No. 76 (2002).

The employer’s knowledge of the protected activity, step two, may be established
through circumstantial evidence. Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd.
mem. 97 F.3d 1448 (4th Cir. 1996); Greco & Haines, Inc., 306 NLRB 634 (1992). Among the
circumstances from which knowledge may be inferred are the timing of the discriminatory
action, the employer’s general knowledge of union activities, animus, disparate treatment, and
when the reasons given for the adverse employment action are false or pretextual. Montgomery
Ward & Co., supra; Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).
Although knowledge may be inferred from any one of these factors, two or more of them
frequently conjoin. North Atlantic Medical Services, 329 NLRB 85 (1999).

Similarly, antiunion motivation, or the motivational link, may be established indirectly.
Indeed, indirect evidence is often the only way in which motivation can be proven since an
employer will rarely, if ever, openly acknowledge that an employee was or was being fired
because of some reason that the law forbids. Sahara Las Vegas Corp., 284 NLRB 337, 347
(1987). In recognition of this plain and pervasive fact, courts have devised alternative methods
for a party to prove motivation. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Wright Line, supra. Accordingly, and to list just some examples, antiunion motivation
may reasonably be inferred from disparate treatment of the alleged discriminatee and other
employees, Holiday Inn East, 281 NLRB 573, 575 (1986), the timing of the employment action
in relation to the protected activity, Taylor & Gaskin, Inc., 277 NLRB 563 fn.2 (1985),
inconsistent or shifting explanations by the employer for the employment action, Star Trek; The
Experience, supra; Master Security Services, 270 NLRB 543, 552 (1984), the employer’s own
response to the charges, Southwest Merchandising Corp., v. NLRB, 53 F.3d 1334 (D.C. Cir.
1995), and the unexplained failure to produce critical evidence or testimony which would be
supportive of the employer’s claims, Cedar Falls Health Care Center, 276 NLRB 1300, 1303
fn.20 (1985). As this listing demonstrates, motive may be inferred from the total circumstances
of the case. Fluor Daniel, Inc., 304 NLRB 970 (1991).

Proof of the motivational link may also be established by proof of animus. E.g., Robert F.
Kennedy Medical Center, 332 NLRB 1536 (2000). Union animus demonstrated by 8(a)(1)
violations is a “highly significant factor” in determining motive. Lemon Drop Inn, 269 NLRB 1007
(1984). Moreover, it should be kept in mind that this last “factor” of nexus is essentially
coterminous with the ultimate question presented, which is whether antiunion sentiment was a
substantial or motivating factor in the challenged employer decision.

If the General Counsel satisfies his initial burden under Wright Line, the burden then
shifts to the employer, in the nature of an affirmative defense, to demonstrate that the same
action would have taken place even in the absence of the protected conduct. In meeting this
burden, the employer cannot simply state a legitimate reason for the action taken, but rather
must persuade by a preponderance of the evidence that it would have taken the same action in
the absence of the protected activity. T & J Trucking Co., 316 NLRB 771 (1995). Nevertheless,
the employer’s defense does not fail simply because not all of the evidence supports it, or even
because some evidence tends to negate it. Merrilat Industries, 307 NLRB 1301, 1303 (1992).
The ultimate burden of proving discrimination always remains with the General Counsel. Wright
Line, supra.

The evidence presented to satisfy the General Counsel’s initial burden must be analyzed

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separately from the evidence presented in the Respondent’s defense. Pace Industrial, 320
NLRB 661 (1996), enfd. 118 F.3d 585 (8th Cir. 1997). Nevertheless, the employer’s stated
reasons for the adverse employment action against an employee can be considered as a part of
the General Counsel’s initial burden, and if those reasons are pretextual, they can support an
inference that the employer had an unlawful motive. Black Entertainment Television, 324 NLRB
1161 (1997). The entire record may be examined to ascertain whether the adverse employment
action was motivated by union activity. Thus, in determining whether the evidence presented
has satisfied the General Counsel’s initial burden, the evidence is not limited to the evidence
introduced by the General Counsel, but can also include the reasons advanced by the employer
for the discharge and any additional evidence offered at the hearing by the Respondent.
American Gardens Management Co., supra at fn.5; Williams Contracting, 309 NLRB 433
(1992). With these principles in mind, I will now consider the facts of the present case under the
separate elements of the Wright Line analysis.

(1) Adverse employment action and protected activity. The Respondent does not dispute
that Gregory Mauer suffered an adverse employment action. The Respondent does dispute that
Mauer engaged in protected activity, claiming that there is no evidence to support this allegation
other than Mauer’s testimony. If this observation were accurate, I would still find that Mauer
engaged in protected activity because I have found Mauer to be a credible witness. However,
the observation is not accurate since Dan Schlademan, the director of organizing for the Union,
also testified about Mauer’s protected activities. Schlademan confirmed that he had a
discussion with Mauer at the front desk in the Building on March 21 about the Union’s
organizing campaign, he testified that Mauer signed an authorization card at the front desk, that
Art Barajas and Sharon Sharpe saw him and Mauer at the front desk, that he gave additional
authorization cards to Mauer in order for him to try to obtain the signatures of other maintenance
workers, and that Mauer continued to have dealings with Union officials and to assist the Union
after March 21 in conjunction with the Union’s efforts to organize the maintenance workers.
Clearly, and at a minimum, all of Mauer’s actions at the front desk on March 21 were protected
activities.63

The Respondent argues that a recent Board decision, The Earthgrains Co., 338 NLRB
No. 118 (2003), supports the proposition that uncorroborated evidence of alleged protected
activity does not meet the standards of proving protected activity as required in step one in the
Wright Line analysis. This argument has no merit. First, Wright Line does not address the
quantum of evidence that is required to meet the respective burdens of proof in its analysis,
63 The Respondent argues that because no coworkers were called to corroborate Mauer’s
testimony regarding his additional efforts to solicit them for the union, an adverse inference
should be drawn against Mauer’s testimony in this regard. As noted, the facts of this case do not
meet the criteria for making such an adverse inference. However, even if I were to make such
an inference, the Respondent’s position, that there is no evidence that Mauer engaged in
protected activity, would still fail. Mauer’s testimony as to what occurred in the lobby of the
Respondent’s building, which was corroborated by Schlademan, establishes that Mauer did
engage in such activity.
The Respondent also argues that “[a]s far as Sharpe knew, Schlademan could have been
any stranger who happened to be in the lobby.” (Respondent’s Posthearing Br., p. 14.) This
disingenuous argument fails to explain why Sharpe and Metz called Farrell and asked her to
come to the Building the next week after Schlademan was there. Moreover, Metz testified that
she asked Farrell to come to the Building because of the Union’s activities. Clearly, Metz and
Sharpe knew that Schlademan was associated with the Union, in spite of Sharpe’s, but not
Metz’s, failure to claim any knowledge of union activity.

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other than the general, preponderance of the evidence standard applicable to both sides of the
controversy. See American Gardens Management Co., supra. Second, The Earthgrains Co.
simply does not support the proposition argued by the Respondent. It is true that the
Administrative Law Judge did not accept, under the circumstances of that case, the
uncorroborated testimony of a union adherent, named Jenkins, concerning his alleged protected
activity. However, this was simply a credibility determination that the judge was particularly
qualified to make, similar to credibility determinations made by judges in virtually every case.
There are many cases where a judge finds uncorroborated testimony to be credible, and other
cases where the opposite is found. To translate the accidental findings in that case into a
proposition of law, as Respondent argues, would be no different from arguing that the case also
stands for the proposition that all testimony from persons named Jenkins must, as a matter of
law, be found to be incredible. The Respondent’s argument is rejected.

For the reasons discussed above, including the credited testimony of Mauer and
Schlademan, I find that Mauer did engage in protected activity.

(2) Knowledge. The Respondent next argues that there “is no direct or circumstantial
evidence” that the Respondent was aware that Mauer had engaged in protected activities. This
argument, although recognizing that circumstantial evidence is sufficient to prove knowledge,
fails to address the plethora of circumstantial evidence of knowledge that exists in this case,
including the following:

(A) Timing. Mauer, who had been an employee for over 18 months, was fired
approximately three weeks after the Union appeared at the Building in its organizing campaign.
This coincidence supports an inference that the Respondent knew of the Union’s organizing
efforts and Mauer’s involvement in, or sympathies for, such efforts. U.S. Soil Conditioning Co.,
235 NLRB 762, 764 (1978).

(B) Respondent’s general knowledge of union activities. An employer’s general
knowledge of union activities is at least a factor from which the more specific knowledge
element in the Wright Line analysis may be inferred. Montgomery Ward & Co., supra. Moreover,
in appropriate circumstances, such as where there is significant evidence of union animus, an
employer’s general knowledge of union activities on its property will itself satisfy the knowledge
element in the analysis. Food Cart Market, 286 NLRB 1016 (1987); General Iron Corp., 218
NLRB 770 (1975). The Respondent certainly knew that the Union was engaging in a campaign
to organize its maintenance workers. Management saw union officials talking with Mauer in the
front lobby of the Building on March 21. Moreover, the Respondent’s management held
meetings with the maintenance mechanics the next week after this on-site effort by the Union.
The Respondent clearly knew about, and was concerned about, the Union’s organizing
campaign in its Building.

(C) Animus. Animus may be demonstrated solely by the commission of Section
8(a)(1) violations. Greyston Bakery, 327 NLRB 433 (1999). In the present case, the Respondent
committed Section 8(a)(1) violations by coercively interrogating its employees, creating the
impression of surveillance of its employees’ union activities, threatening the futility of union
activities, threatening to subcontract maintenance work, and threatening to reduce the hours of
work of its maintenance workers.

Animus may also be found in statements by a supervisor that she felt betrayed by the
employees’ protected activity. Robert F. Kennedy Medical Center, supra. In Robert F. Kennedy
Medical Center, the Board affirmed the finding that the Respondent violated Section 8(a)(1) of
the Act in firing three employees where the only evidence of animus was a statement by the

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Respondent’s director that she felt betrayed by the employees’ protected activity. In the present
case, the Respondent’s supervisor, Metz, made a similar statement in which she equated
adherence to the Union with disloyalty to her and the employer.

Moreover, there is direct evidence of the Respondent’s antiunion animus. At the
meetings held in March and April, both Farrell and Metz told the maintenance mechanics that
the owner of the Building did not like unions, did not want unions, and would not allow unions
onto the Building’s property. Accordingly, I conclude that the Respondent harbored an antiunion
animus.

(D) Pretext. The reasons offered by the Respondent to explain why Mauer was
fired were pretextual. Moreover, evidence of pretext is alone sufficient to establish knowledge.
Montgomery Ward & Co., supra. My analysis and explanation of pretext is set forth below in the
discussion of the fourth step in the Wright Line analysis. For the present, I simply note that the
Respondent’s reasons were pretextual. Accordingly, this is another basis on which to support
my conclusion that the Respondent had knowledge of Mauer’s union activities or sympathies.

(E) Direct evidence. The Respondent knew from Mauer’s resume and his
employment interview conducted by Biogetti that Mauer was and had been a union worker, and
had received all of his schooling for the maintenance job at the Building job through the union.64
This knowledge prompted Biogetti’s warning to Mauer, when he was hired, that the Respondent
was not a union company, to which Mauer responded, “That’s fine.” Accordingly, there is direct
evidence to show that the Respondent knew of Mauer’s sympathies for the Union.

(F) Small plant doctrine. The Respondent argues that knowledge of Mauer’s
protected activities cannot be inferred under the Board’s small plant doctrine. The Respondent
cites Friendly Markets, Inc., 224 NLRB 967 (1976) for the proposition that there are two
elements to the small plant doctrine: (1) the small size of the employer’s facility, and (2)
evidence showing that the union activities were carried on in an open manner. The Respondent
argues that the second element has not been proven. The Respondent is correct in citing the
elements to the small plant doctrine, but the Respondent again fails to account for all of the
evidence in the present case.

This evidence demonstrates that Mauer’s union activities, at least initially on the day the
Union came to the Building, were carried out openly. The mere fact that Mauer wanted to keep
quiet his conversation with Schlademan does not alter the openness of their meeting nor of
Mauer’s sympathies with and interest in the Union. In other words, simply because some union
activities were intended to be hidden does not mean that all union activities were hidden. The
64 The Respondent claims that Mauer’s testimony, that he had received all his schooling for
the job from the union, is contradicted by Mauer’s resume. The Respondent cites Mauer’s
Associates Degree in Agricultural Management from the Wilmar Vocational Tech. as an
example of schooling that was “not Union training facilities.” (Respondent’s Posthearing Br., p.
15; GC Exh. 9.) The Respondent’s factual argument is misplaced. The Respondent confounds
“all schooling” with “all schooling for the job.” The fact that Mauer may have received some
schooling in his life that would not help him to qualify for the maintenance job with the
Respondent does not contradict his testimony. Indeed, Mauer may have received much
schooling of this nature. Social studies in elementary and high school come immediately to
mind. In any event, the import of Mauer‘s testimony was that all of the schooling he had
received relating to the job he was seeking with the Respondent was received from the union.
His resume does not contradict this testimony.

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evidence shows that at least some union activities were done openly and in the presence of
management.

In La Gloria Oil and Gas Co., 337 NLRB No. 177, 2002 WL 1881217 (2002), a driver told
his supervisor that the other drivers had a meeting with a union representative, and that they
had decided to “go union.” However, the drivers who were at the meeting were not identified to
the supervisor. In applying the small plant doctrine, the Board stated that

Given the small size of the work force (consisting of approximately 14
drivers), it can reasonably be inferred that Fuller [the supervisor] was
aware of the identity of the employees involved in the union activity.

2002 WL 1881217, *6. The size of the Respondent’s work force in the present case is
approximately half the size of the work force in La Gloria. Moreover, there is direct evidence in
the present case of management’s knowledge of Mauer’s sympathies and of his open
discussion with the Union’s organizer in the Building’s front lobby. In accordance with the small
plant doctrine, and consistent with the Board’s holding in La Gloria Oil and Gas Co., supra, I
also infer that the Respondent had knowledge of Mauer’s additional efforts to have coworkers
sign union cards.65

(G) Credibility. As noted above, I have found that Metz was not credible when she stated
that she did not discover that Mauer was associated with the Union until after he had been fired.
I found that this testimony was not credible on various grounds, including the demeanor of Metz.

This credibility determination also permits an inference that the opposite of Metz’
testimony is the truth. As the Supreme Court observed in NLRB v. Walton Mfg. Co., supra at
408 (1962), quoting from Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir. 1952), the demeanor
of a witness

may satisfy the tribunal, not only that the witness’ testimony is not true, but
that the truth is the opposite of his story; for the denial of one, who has a
motive to deny, may be uttered with such hesitation, discomfort, arrogance
or defiance, as to give assurance that he is fabricating, and that, if he is,
there is no alternative but to assume the truth of what he denies.

Based on all of the foregoing reasons and evidence, including timing, general knowledge
of union activity, animus, pretext, direct evidence, and inferences from the size and number of
workers at the Building, I conclude that the Respondent had knowledge of Mauer’s union
activities as well as his union sympathies. Moreover, because Metz’ denial of knowledge of
Mauer’s union activities convinces me that the opposite is the truth, I find that the Respondent
knew that Mauer was associated with the union at the time the Respondent fired him.

(3) Motivational link or nexus. The Respondent also disputes the fourth and last step in
the Wright Line analysis, which is a motivational link, or nexus, between the employee’s
protected activity and the adverse employment action. My analysis of whether the General
Counsel has proven a motivational link or nexus is part and parcel of my analysis of pretext
65 Of course, this specific knowledge is not a prerequisite to my conclusion that the
Respondent had knowledge of Mauer’s union activity and sympathies. However, it does
constitute an additional and an independent reason in support of this conclusion.

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because of the symbiotic and synergistic relationship between those elements.66

Evidence that permits an inference of knowledge is often the same evidence allowing an
inference that the company was motivated by antiunion animus. NLRB v. Health Care Logistics,
784 F.2d 232 (6th Cir. 1986). Thus, the Board has held that “[t]he same set of circumstances
may be relied on to support both an inference of knowledge and an inference of discrimination.”
North Atlantic Medical Services, supra at fn. 9, quoting Coca-Cola Bottling Co. of Miami, 237
NLRB 936, 944 (1978). However, because knowledge is a different mental and emotional trait
than motivation, the same evidence that is used to establish these factors may have a different
impact in such proof. For example, while timing may not be sufficient, alone, to establish
knowledge, see Amber Foods, Inc., 338 NLRB No. 84 (2002); Metro Networks, Inc., 336 NLRB
No. 3 (2001), it may, alone, support a finding of antiunion animus as a motivating factor in an
employer’s action. NLRB v. Rainware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984). Moreover,
evidence that could have been, but was not, previously considered with respect to the
knowledge element may be evaluated here in determining the Respondent’s motivation. Such
evidence includes disparate treatment of the discharged employee compared to other
employees with similar work records or offenses, NLRB v. E. I. Du Pont, 750 F.2d 524, 528-529
(6th Cir. 1984), as well as the reasons given by the Respondent for the discharge and whether
those reasons were the true reasons for the Respondent’s action. Lemon Drop Inn, supra at
1018; Darbar Indian Restaurant, 288 NLRB 545 (1988).

The first indication of the Respondent’s intent to fire Mauer is found in the memorandum
prepared by Metz on April 12 and sent to Nancy Farrell. In this memorandum, Metz proposes
that Mauer be fired “with expediency” even though he had not previously been threatened with
discharge or warned that discharge was even being contemplated. Metz bases her intent to fire
Mauer, in part, on his alleged poor performance in the past. She states in the memorandum that
Mauer “is unable and unwilling to complete work assignments, he is unwilling to follow direction,
and has failed to reach reasonable expectations for this position.” The evidence does not
support the truthfulness of these statements. The Respondent did not even try to prove at the
hearing that Mauer was “unwilling” to complete work assignments or to follow direction.
Moreover, even if the Respondent had attempted to prove these allegations, such an “attitude”
problem would not have warranted firing, at least under Farrell’s stated method of dealing with
employees with attitude problems. In addition, Mauer had achieved reasonable expectations for
his position, and this achievement is reflected in the only management evaluation of Mauer’s
performance, which was done by Metz in October 2001, before the Union embarked on its
organizing campaign at the Respondent’s buildings. Accordingly, I find that the reasons listed by
Metz as the cause, at least in part, for her recommendation that Mauer be fired are false.

Metz also states in her memorandum that work tickets relating to the March 28 situation
were attached to the memorandum. However, the memorandum offered by the Respondent and
received into evidence at the hearing had no work tickets attached to it, and neither Farrell nor
Metz was able to identify what those tickets were. In addition, there were no work tickets or any
other documentation or specification in or attached to the memorandum delineating any
previous instances of poor performance by Mauer.

Metz acknowledges in the memorandum that Matica was with Mauer while they tried to
66 Symbiotic, because proof of a motivational link may constitute part of the proof of pretext,
and vice versa. Black Entertainment Television, supra. Synergistic, because the combined
effect of proving both elements may constitute proof of the ultimate issue to be decided, i.e.,
whether the Respondent discriminatorily fired Mauer in violation of Section 8(a)(3).

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fix the leak and associated problems during the evening of March 28, but that she will only give
a warning notice to Matica “because of his minimum time working in the building.” However,
Matica’s personnel file does not reflect that he was even given a warning notice.

Metz claims that she allegedly had two areas of concern regarding Mauer’s performance
on March 28: the resident’s apartment was left a mess (a lack of respect for the apartment), and
the inability to control and limit the leak. Metz also testified that she decided to only give Matica
a warning notice because he was merely a back-up to Mauer that evening, and because he had
not been working at the building for very long. In fact, these “reasons” provide no basis on which
to differentiate between Mauer and Matica for purposes of discipline.

If, in fact, the resident’s apartment was left a mess, it should not matter at all whether
Matica had been working in the Building for several weeks or several years. Surely, Matica
should be able to recognize a mess without regard to how long he worked at the Building. And
just as surely, Matica should be just as qualified to clean up a mess without regard to how long
he had been working at the Building. Therefore, if there was a mess, and if any discipline was
appropriate because some of the mess remained after Mauer and Matica had finished that
evening, there is no basis on which to distinguish the discipline to be given to Mauer or Matica.
With respect to Metz’ second alleged concern regarding Mauer’s performance -- the inability to
control the leak -- Matica had just previously been the Lead Mechanic at another of
Respondent’s buildings, and had worked at the Respondent’s buildings longer than Mauer had.
Nevertheless, and in spite of this experience and responsibility, Matica failed to take any
measures to contain or control the leak. Moreover, another maintenance mechanic, Freddy Gist,
was assigned to fix the leak the next day, March 29, but he failed to do so. Gist did not receive
any discipline for his failure to fix the leak. On March 30, another maintenance mechanic,
Bardic, was assigned to fix the leak, and he was unable to fix it. Bardic also received no
discipline for his failure to fix the leak.

These facts lead to two compelling conclusions. One, there was no legitimate basis on
which to substantially distinguish between Matica and Mauer in the discipline, if any, that should
have been imposed, yet there was a striking disparity in the discipline that in fact was imposed.
Two, Mauer was treated differently from other maintenance mechanics with respect to the
inability to fix the leak that occurred in Apartment 6M. None of these four maintenance
mechanics (Gist, Bardic, Matica and Mauer) were apparently able to fix the leak. Mauer was the
only mechanic to be disciplined, and he was fired.

Disparate treatment of similarly situated employees supports an inference of unlawful
motivation. Naomi Knitting Plant, 328 NLRB 1279 (1999). Although Mauer’s actions with respect
to the March 28 leak were somewhat different from those of Gist, Bardic and Matica, his alleged
failures were not so different as to warrant the extraordinary differences in treatment that the
Respondent imposed. Moreover, the difference asserted by Metz in her memorandum between
Matica and Mauer does not withstand analysis. Accordingly, I conclude that the Respondent
disparately treated Mauer as opposed to other maintenance mechanics, mechanics who had no
known connection with or sympathies for the Union, and that this disparate treatment supports
an inference of unlawful motivation by Respondent and that the Respondent discriminated
against Mauer on the basis of union sympathies and activity.

Evidence of a departure from past practices supports an inference of animus and
discriminatory motivation. Sunbelt Enterprises, 285 NLRB 1153 (1987). Similarly, actions by an
employer in derogation of its own employee handbook also support an inference of unlawful
motivation. Lampi LLC, 327 NLRB 222 (1998).

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The firing of Mauer and the way it was handled were contrary to the provisions of the
Respondent’s employee handbook. Assuming that Mauer was fired for previous performance
problems and for his failure to fix the leak and clean up the mess on March 28,67 such matters
would clearly constitute performance issues. Discharges on account of performance are
covered in the employee handbook under “Policy on Termination.” That policy states that
performance issues deserve “special consideration,” and that the Respondent “would like to
insure that every reasonable step has been taken to help the employee continue in productive
capacity.” Such steps include making the employee aware of the problem, making suggestions
in writing as to how those problems can be eliminated, a joint evaluation between the employee
and the manager, and giving the employee sufficient time to remedy the situation. The
handbook also recommends alternatives to discharge, including reassignment to a different job
and changing to a position of lesser responsibility. 68

After March 28, no one from management spoke to Mauer about any alleged
performance problem. No suggestions were made to him, whether in writing or orally, as to how
any problems could be eliminated. No joint evaluation between Mauer and Metz or Sharpe or
Barajas was made or attempted. No time was given to Mauer in which to remedy the situation.
No alternatives were offered to Mauer, such as reassigning him from his important duties of
doing the pre-occupancy work, work that Metz had claimed was so important to the
Respondent’s business. (An example of a reassignment or transfer of a different employee is
Matica’s transfer from Respondent’s building at 14 West Elm Street to Respondent’s 1400 Lake
Shore Drive building after Matica’s misconduct at that building.) In short, none of the provisions
or recommendations contained in the employee handbook was followed in the firing of Mauer.

In the handling of Gregory Mauer’s discharge, and based on the alleged reasons of
performance and absenteeism, the Respondent acted contrary to the provisions of, and
departed from its past practice of following, its employee handbook. Because of the
Respondent’s actions in derogation of its employee handbook and its departure from past
practices, together with the other circumstances set forth herein, I infer that the Respondent
discharged Mauer because of Mauer’s union activities and sympathies.

Other factors that support an inference of animus and discriminatory motivation are the
abruptness of the adverse action and the failure to conduct a full and fair investigation. Dynabil
Industries, 330 NLRB 360 (1999); Firestone Textile Co., 203 NLRB 89 (1975). In the present
case, Mauer’s discharge, at least as far as Mauer was concerned, was beyond abrupt. The
decision had been made before Mauer was even notified that the matter was under
consideration. Mauer was notified on April 15 that he was fired, and he was then escorted out of
the building. The Respondent made no attempt, even at that late time, to obtain any input or
defense or explanation from Mauer. The decision had already been made.

Moreover, the Respondent failed to conduct an investigation into the matter. It did not
seek or obtain statements from Mauer, Matica, the resident in apartment 6M,69 the front desk
Continued
67 The inability to know exactly the basis or bases for Mauer’s firing, because of shifting and
inconsistent explanations, is another, independent ground to support the conclusion that the
Respondent’s explanation is pretextual. See below.
68 GC Exh. 20, pp. 20-21.
69 Metz testified that the resident complained to her the next day, and she then put the
resident into another apartment. However, Mauer testified that after he was given the authority
from Sharon Sharpe in the evening of March 28, he advised the resident that another apartment
was available, but the resident declined. The apparent discrepancy between these assertions

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_________________________
person, or anyone else. By failing to conduct an investigation, the Respondent demonstrated
that it was not concerned with the propriety or fairness of its contemplated action, which was the
discharge of Mauer, but was concerned only with an excuse upon which it could rely in taking
the action it had already decided to take—to get rid of Mauer.

Unlawful motivation is also found when an employer makes shifting or inconsistent
statements to explain an adverse employment action. Black Entertainment Television, supra;
Atlantic Limousine, 316 NLRB 822 (1995). Farrell testified that Mauer did not ask and she did
not give an explanation why he was being discharged. On the other hand, Metz testified that
Farrell did tell Mauer why he was being fired. Metz testified that Mauer was fired because of
performance problems and absenteeism, in spite of the fact that the memorandum prepared by
Metz advocating Mauer’s discharge makes no mention of absenteeism. Farrell testified that
Mauer was discharged only for performance problems. However, when Farrell was asked to
identify the provision of the employee handbook under which Mauer was fired, she identified a
section of the handbook dealing with misconduct offenses, not performance problems. Another
example of inconsistent and shifting explanations is Metz’ testimony that she did not approve
Mauer’s absence from work on March 29.70 This denial is contradicted by the Respondent’s
acknowledgement in its Position Statement that Metz had approved Mauer’s absence from work
on March 29.71 All of the shifting and inconsistent explanations shown in this record are further
evidence of motive and of pretext. Atlantic Limousine, supra.

In concluding my analysis of the factors and reasons that demonstrate the Respondent
fired Mauer because of his union activities and the Respondent’s perception of his union
activities and sympathies, I also note the timing of the discharge and the Respondent’s animus,
both of which were discussed above. In addition, Mauer was fired during the same period when
the Respondent was committing other violations of the Act. As the Board stated in Electronic
Data Systems Corp., 305 NLRB 219 (1991):

Here the Respondent had knowledge of union activity and, concurrent with
the union activity, took action adverse to the employees involved.
Implementation of the new reporting procedure was not an isolated event
but, instead, occurred in an atmosphere of other unfair labor practices.
Even without direct evidence, the Board may infer animus from all the
circumstances. [Citations omitted]. Accordingly, we find sufficient evidence
to warrant an inference of the Respondent’s unlawful motive.”

Similarly, in the present case, the Respondent had knowledge of union activity, and
within three weeks of the Union’s initial organizing effort it fired the one mechanic who was most
sympathetic toward, and who had agreed to assist, the union. Moreover, the Respondent
accomplished that firing in the circumstances previously noted and in an atmosphere of other
unfair labor practices.

Accordingly, I find that the reasons asserted by the Respondent for its firing of Mauer are
not the true reasons for its action. From this and from all of the foregoing findings, I conclude
that the reason the Respondent fired Mauer was because of his union activities and sympathies.
Williams Contracting, Inc., supra; Shattuck Denn Mining Corp. v. NLRB, supra.
could have been resolved or at least addressed if the Respondent had conducted a full and fair
investigation.
70 Tr. 551.
71 GC Exh. 2, p. 5.

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My determination that the reasons advanced by the Respondent for its firing of Mauer
are a pretext for its actual motive in taking that action necessarily means that the asserted
reasons were not relied on. Accordingly, there is no need to further address these reasons
because a finding of pretext “leav[es] intact the inference of wrongful motive established by the
General Counsel.” Limestone Apparel Corp., 255 NLRB 722 (1981). However, because the
reasons advanced by the Respondent have a facial validity (and, of course, it would be the rare
case where the pretextual reason did not have a facial validity), I will briefly address an
outstanding question regarding Mauer’s job performance, viz., the broken boiler.

When Barajas authorized Mauer to shut off the water in the Building, Barajas also told
him to shut off the pumps. I credit Barajas’ testimony in this regard because it would have been
proper and natural for the lead mechanic to tell or remind Mauer of this safety factor with the
water about to be shut off. Barajas told Mauer to shut off the pumps because the pumps are not
supposed to run dry, i.e., damage results when water pumps are allowed to operate with no
water running through the pumps. Mauer, however, neglected to shut off the pumps with the
result that a new pump had to be purchased at a cost of $1076.98.

This neglect in failing to shut off the pumps is a reflection of poor performance by
Mauer. Nevertheless, it is not a matter that the Respondent in fact relied on in deciding to fire
Mauer. For all of the reasons noted above with respect to knowledge, pretext and animus, I
conclude that the Respondent would not have fired Mauer for this performance issue. In
reaching my conclusion, I also rely on the Respondent’s employee handbook, which the
Respondent follows as a general rule in dealing with its employees. The employee handbook
delineates a number of alternatives that the supervisor should consider and attempt before
deciding to terminate. Thus, assuming that Mauer’s performance in neglecting to shut off the
water pumps was a matter that management would have addressed, management would have
addressed it by discussing the matter with Mauer, offering suggestions, giving Mauer sufficient
time to remedy the situation, and all of the other steps recommended in the employee
handbook. Instead, management took none of the steps recommended in the handbook.

When an employer attempts to prove its affirmative defense to a charge of discrimination
under Section 8(a)(3), it must prove that it would have taken the same action in the absence of
protected activity, not that it could have taken such action or that it otherwise had a legitimate
reason for the action. T & J Trucking Co., supra; Dynabil Industries, supra; Roure Bertrand
Dupont, Inc., 271 NLRB 443 (1981). The evidence shows that the Respondent would not have
taken the same action in the absence of Mauer’s protected activities.

For all of the foregoing reasons, I conclude that the Respondent discriminated against
Gregory Mauer and violated Section 8(a)(3) and (1) of the Act when it fired Mauer because of
his protected activities.

Conclusions of Law

1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

3. The Respondent violated Section 8(a)(1) of the Act by unlawfully interrogating its
employees, threatening that its employees’ organizing activities were futile, creating the
impression that its employees’ union activities were under surveillance, threatening to

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subcontract the employees’ work if they selected a union to represent them, and threatening to
reduce their hours of work if they selected a union to represent them.

4. The Respondent violated Section 8(a)(1) and (3) by discharging its employee,
Gregory Mauer.

5. The foregoing violations constitute unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

Having found that the Respondent unlawfully discharged Gregory Mauer, I shall order
that the Respondent offer him reinstatement and make him whole for any loss of earnings and
other benefits, computed on a quarterly basis from the date of discharge to the date of a 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).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended72

ORDER

The Respondent, B & A Associates, LLC, Schaumburg, Illinois, its officers, agents,
successors, and assigns, shall

1. Cease and desist from

(a) Unlawfully interrogating its employees about their union activities or in any
other manner interrogating its employees in violation of the Act.

(b) Unlawfully threatening that its employees’ organizing activities would be futile.

(c) Unlawfully monitoring or creating the impression of surveillance of its
employees’ union activities.

(d) Unlawfully threatening to subcontract its employees’ work if they selected a
union to represent them.

(e) Unlawfully threatening to reduce its employees’ hours of work if they selected
a union to represent them.

72 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 purposes.

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(f) Discharging or otherwise discriminating against any employee for supporting
the Service Employees International Union, Local 1, AFL–CIO, or any other union.

(g) Or in any like or related manner interfering with, restraining, or coercing its
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) Within 14 days from the date of this Order, offer Gregory Mauer full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

(b) Make Gregory Mauer whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the manner set forth in the remedy
section of the decision.

(c) Within 14 days from the date of this Order, remove from its files any reference
to the unlawful discharge, and within 3 days thereafter notify Gregory Mauer in writing that this
has been done and that the discharge will not be used against him in any way.

(d) 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 analyze the amount of backpay due under the
terms of this Order.

(e) Within 14 days after service by the Region, post at its facility at 1400 Lake
Shore Drive, Chicago, Illinois copies of the attached notice marked “Appendix.”73 Copies of the
notice, on forms provided by the Regional Director for Region 13, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since March 27, 2002.

(f) 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.
73 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “Posted By Order Of The National Labor Relations Board” shall read
“Posted Pursuant To A Judgment Of The United States Court Of Appeals Enforcing An Order
Of The National Labor Relations Board.”

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It Is Further Ordered that the complaint is dismissed insofar as it alleges violations of the
Act not specifically found.

Dated, Washington, D.C. May 28, 2003

Joseph Gontram
Administrative Law Judge

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APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated 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

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

We Will Not discharge or otherwise discriminate against any of you for supporting the Service
Employees International Union, Local 1, AFL–CIO, or any other union.

We Will Not coercively question you about your union support or activities.

We Will Not monitor or create the impression of surveillance of your union activities.

We Will Not make threats regarding the futility of engaging in organizing or union activity.

We Will Not threaten to subcontract your work if you select a union to represent you.

We Will Not threaten to reduce your hours of work if you select a union to represent you.

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, within 14 days from the date of the Board’s Order, offer Gregory Mauer full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

We Will make Gregory Mauer whole for any loss of earnings and other benefits resulting from
his discharge, 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 discharge of Gregory Mauer, and WE WILL, within 3 days thereafter, notify him
in writing that this has been done and that the discharge will not be used against him in any
way.

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B & A Associates, LLC
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.

200 West Adams Street, Suite 800
Chicago, Illinois 60606-5208
Hours: 8:30 a.m. – 5 p.m.
Telephone: 312-353-7570

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.

THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE
ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER AT 200 WEST ADAMS STREET, SUITE 800,
CHICAGO, ILLINOIS 60606-5208, TELEPHONE 312-353-7570.