Douglas Emmett Management, LLC

National Labor Relations Board - Administrative Judge Opinions

Aug 27, 2019

31-CA-206052 (N.L.R.B. Aug. 27, 2019)

JD(SF)–27–19
Los Angeles, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DOUGLAS EMMETT MANAGEMENT, LLC
and Cases 31–CA–206052
31–CA–211448
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 501, AFL-CIO
Yerrik Moy, Nayla Wren, and Jake Yocham, Esqs.,
for the General Counsel.
David A. Adlong and Harrison C. Kuntz, Esqs. (Ogletree Deakins),
for the Respondent Company.
Adam Stern, Esq. (The Myers Law Group),
for the Charging Party Union.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. In early 2017, Operating
Engineers Local 501 began an organizing campaign to represent the approximately 20 engineers
employed at eight commercial buildings owned and maintained by Douglas Emmett
Management in Woodland Hills, California. Several months later, on July 28, the Union filed a
petition for an NLRB-conducted representation election. Over the next 4 weeks, several
company managers and a hired antiunion consultant conducted a series of mandatory large,
small, and one-on-one meetings with the engineers to persuade them to vote against the Union.
Nevertheless, a majority voted for the Union at the August 25 election and it was certified as the
collective-bargaining representative on September 5. The Company and the Union began
negotiating over an initial contract the following month, in late October 2017. However, they
did not reach an agreement by the end of the year (or thereafter).
The complaint alleges that the company managers and consultant interrogated or made
various other coercive statements or threats to the engineers during the organizing campaign and
preelection period in violation of Section 8(a)(1) of the National Labor Relations Act. It further
alleges that a few months after the Union’s certification, in December 2017, the Company
carried out the unlawful threats by giving the engineers substantially lower annual wage
increases and bonuses than had been awarded in previous years. The General Counsel concedes
that the Company complied with its obligations under Section 8(a)(5) of the Act by providing the
Union with notice and an opportunity to bargain over the wage-increase and bonus amounts
before implementing them at the end of the year. However, the General Counsel alleges that the
Company’s implementation of the lower amounts was nevertheless unlawful under Section
8(a)(3) of the Act because the Company did so to retaliate against the engineers for voting in
favor of the Union in the election.
The Company disputes all of the 8(a)(1) and 8(a)(3) allegations. It contends that the
evidence fails to establish that the alleged 8(a)(1) preelection statements were actually made or
JD(SF)–27–19
2
that they were unlawful under the Act and Board precedent. As for the 2017 annual wage
increases and bonuses, the Company contends that the evidence fails to establish that it had a
past practice of granting higher wage increases and bonuses or that it harbored union animus or
had a retaliatory or discriminatory motive in implementing the 2017 amounts. Further, the
Company argues that the General Counsel’s concession that it complied with its bargaining 5
obligations under Section 8(a)(5) of the Act before implementing the raises and bonuses
precludes a finding that their implementation violated Section 8(a)(3) of the Act.1
The hearing was held on April 23–26, 2019 in Los Angeles.2 The General Counsel and
the Company subsequently filed initial briefs on May 31 and reply briefs on July 29.3 As 10
discussed below, the evidence and the law support most of the alleged preelection violations but
not the alleged postcertfication violations.4
I. ALLEGED PREELECTION VIOLATIONS
15
The complaint alleges that the following admitted supervisors or agents committed
preelection unfair labor practices in violation of Section 8(a)(1) of the Act: President/Chief
Executive Officer Jordan Kaplan, Chief Operating Officer Ken Panzer, Director of Engineering
Robert Lutes, Regional Engineer Don Hermanson, and Labor Consultant Simon Jara.
Specifically, the complaint alleges that one or more of these supervisors or agents unlawfully 20
interrogated employees about their union activities, solicited their grievances, promised them
better terms and conditions of employment if they rejected the Union, threatened them with
discharge or other reprisals if they supported the Union, and told them that supporting the Union

1 The Company does not contest, and the admitted facts establish, that the Board has
jurisdiction.
2 The Union filed the charges and amended charges on various dates between September 8,
2017 and February 26, 2018. The NLRB Regional Office issued the consolidated complaint on
April 30, 2018, and the Company filed its answer on May 14, 2018. Although the hearing was
originally scheduled for July 10, 2018, the Regional Director postponed the hearing indefinitely
to investigate a new unfair labor practice charge filed by the Company against the Union (31–
CB–222459). That charge was dismissed by the Regional Director on September 26, 2018, and
the General Counsel denied the Company’s appeal on December 27, 2018.
3 By order dated July 18, 2019, I granted the parties leave to file reply briefs. See also Tr.
586. As noted in that order, in the absence of objection page 606, line 19 of the transcript is
corrected to read, “It’s not offered for the truth of the matter.”
4 Citations to the record are included to aid review and are not necessarily exclusive or
exhaustive. In making credibility findings, all relevant factors have been considered, including
the interests and demeanor of the witnesses; whether their testimony is corroborated or consistent
with the documentary evidence and/or the established or admitted facts; inherent probabilities;
and reasonable inferences that may be drawn from the record as a whole. See, e.g., Daikichi
Corp., 335 NLRB 622, 623 (2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003); and New Breed
Leasing Corp. v. NLRB, 111 F.3d 1460, 1465 (9th Cir.), cert. denied 522 U.S. 948 (1997).
Consideration has also been given to the passage of time since the relevant events and the
likelihood that the employees would have imperfect memories regarding the multiple meetings
they had with multiple company supervisors or agents during the August 2017 preelection
period.
JD(SF)–27–19
3
would be futile as the Company would never negotiate or sign a contract with the Union or
provide certain benefits.

A. Alleged Interrogation (Hermanson)
5
In June 2017, several months after the union campaign began but before the election
petition was filed, Regional Engineer Hermanson approached Fernando Salazar, an engineer at
one of the buildings (Trillium), and asked if he had heard or talked to any member of the Union.
Salazar replied that he had not, and the conversation ended.5
10
The Board applies a “totality of the circumstances” test in evaluating alleged
interrogations; that is, the Board examines all the circumstances to determine if the questioning
would have reasonably tended to restrain or coerce an employee in the exercise of union activity.
See Rossmore House, 269 NLRB 1176, 1178 (1984), affd. sub. nom. Hotel & Restaurant
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Relevant factors include the 15
identity of the questioner, the nature of the relationship between the questioner and the
employee, the place and method of the questioning, the nature of the information sought and
whether it would reveal previously undisclosed union sympathies or activities, whether the
questioner offered any legitimate explanation for the question or assurance against reprisal, and
whether there is a history of employer hostility to union activity,. See id. at 1178 and n. 20; 20
Shamrock Foods Co., 366 NLRB No. 117, slip op. at 16–17 (2018), enfd. --- Fed. Appx. ---,
2019 WL 3229142 (D.C. Cir. July 12, 2019); and Intertape Polymer Corp., 360 NLRB 957,
957–958 (2014), enfd in relevant part 801 F.3d 224 (4th Cir. 2015), and cases cited there. See
also Novato Healthcare Center v. NLRB, 916 F.3d 1095, 1106 (D.C. Cir. 2019).6
25
As indicated by the General Counsel, Hermanson’s questioning of Salazar would have
reasonably had a chilling effect on union activity under the circumstances. Hermanson was the
regional engineer responsible for all eight of the Woodland Hills buildings and had direct
supervisory authority over Salazar.7 Further, although Salazar is a current union member, there
is no evidence that he was an open union supporter at the time (indeed, Hermanson’s question 30
would make little sense if he was) and Salazar testified that he had never spoken with
Hermanson about the Union before. Moreover, the question sought information about Salazar’s
union-related activity—whether he had talked to any union member. And the question was not
asked during a casual encounter or conversation; Hermanson approached Salazar outside the
building for the sole purpose of asking him about the Union and offered no legitimate 35
explanation for doing so or assurance against reprisal. Finally, although the Company had not
yet begun its antiunion campaign at the time, it did so several weeks later and, as discussed

5 See Salazar’s uncontroverted testimony, Tr. 278–279. Hermanson retired in early 2019 and
did not testify.
6 The Board also considers the truthfulness of the employee’s reply to the employer’s
question. Here, however, the record is unclear whether Salazar truthfully or falsely denied
speaking to any union member.
7 Jt. Exh. 1; Tr. 105–106, 111, 132, 211, 277–278, 297–298, 312, 323, 350–351.
JD(SF)–27–19
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below, the antiunion campaign included unlawful threats of retaliation for supporting the Union.8
Accordingly, Hermanson’s questioning of Salazar violated Section 8(a)(1) of the Act as alleged.
Cf. Park N Fly, Inc., 349 NLRB 132, 133 (2007).9
B. Alleged Solicitation of Grievances (Lutes, Jara, and Hermanson)5
On July 31, the Monday after the union election petition was filed, Director of
Engineering Lutes held a series of mandatory meetings with the engineers to address the petition.
He met with five to seven engineers at a time in one of the building conference rooms. At each
of the meetings, he introduced Labor Consultant Jara and said the Company had retained him to 10
help them respond to the union campaign. He then gave a speech to them from a prepared script.
He said that the Company had obviously screwed up in some ways; that those who signed union
cards had done so for a reason and must be very upset with the Company; and that the Company
didn’t want to guess what was wrong. He said the Company was therefore having the meetings
to listen to them, so they could tell the Company anything they want. He cautioned, however, 15
that the Company was legally prohibited from promising to fix things. He then gave the
engineers time to respond.10 And at least some of them voiced various complaints, including
inadequate pay, medical benefits, and training, and lack of respect. Lutes thanked them for
“opening up” and “sharing” the information, stating that it had been “invaluable.” He repeated
that he could not legally make promises “right now,” but said “we heard you loud and clear” and 20
that “we will respond the next time we meet as best we can.”11
Shortly thereafter, Jara also began holding separate mandatory meetings with the
engineers in the building conference rooms. The meetings varied in size; typically they were
with two to six engineers at a time, but sometimes with just one. Lutes also attended and spoke 25
at some of the meetings. Jara told the engineers that he was meeting with them to “follow up”
and learn more about their complaints or concerns. He said they should feel free to talk, as
anything they told him would go straight to the “big guys at the top” or “top guys.” The
engineers told Jara basically what they told Lutes; that they wanted better pay and medical
benefits, more training, and respect. One of them also said he was upset that the Company had30

8 See Westwood Health Care Center, 330 NLRB 935, 940 and n. 17 (2000) (“[A] question
that might seem innocuous in its immediate context may, in the light of later events, acquire a
more ominous tone. . . . An employee may reasonably come to realize only after the fact, in light
of subsequent statements or events, that seemingly benign questions were actually efforts to
ferret out his union sentiments by an employer hostile to union activity.”)
9 Although the complaint alleges that Hermanson interrogated “employees,” the General
Counsel only presented evidence that Hermanson interrogated Salazar. The complaint also
alleges that Labor Consultant Jara interrogated employees, but the General Counsel withdrew
that allegation. See GC Exhs. 1(v) and 2.
10 Lutes’ script specifically noted at this point that he should “get your flip chart or white
board ready to write down the issues and hopefully employees will start talking . . . Be patient
and accept the uncomfortable silence” (R. Exh. 6).
11 See R. Exh. 6; and Tr. 96–98 (John Hall), 214–216, 255 (Juan Avina), 280–282 (Salazar),
329–332 (Alejandro Montenegro), 410 – 411, 428, 467, 471 (Lutes).
JD(SF)–27–19
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demoted one of the other engineers. Jara replied that the Union just wanted their money and
would not be able to deliver what it was promising them.12
Regional Engineer Hermanson also visited the engineers in their own offices every few
days during the same period. He spoke to one or two of them at a time, depending on who was 5
in the office. As he had occasionally in the past (approximately twice a year), he asked how they
were doing and whether there was anything they needed. However, during at least some of the
meetings he also mentioned or referenced the pending union election, said that the Company was
trying to see if there were any changes it could make, and asked if there was anything he could
do for them.13 10
Lutes also held a second series of meetings with the engineers during the last week before
the August 25 election. As on July 31, he spoke from a prepared script. He told them that Jara
had informed him that they were very upset and many felt let down by management. He said he
was sorry for any problems he caused them. He said they had both his and the Company’s 15
attention and that he wanted them to give him “another chance.” As on July 31, he said he could
not legally make them any promises. However, he asked for “another opportunity to work
directly” with them. He said he wanted to “make sure each and every one of you is happy,” and
that he was “committed to making this a great place to work.”14
20
An employer's solicitation of employee grievances during a union campaign inherently
includes an implied promise to remedy them and is therefore unlawful unless the employer has a
past policy and practice of soliciting grievances and did not significantly alter its past manner
and method of doing so. See, e.g., Shamrock Foods Co., above, 366 NLRB No. 117, slip op. at
10, and cases cited there. Here, as indicated above, Lutes, Jara, and Hermanson all solicited the 25
engineers’ grievances during the preelection period. Moreover, all three augmented and
reinforced the implicit promise to remedy those grievances with additional statements indicating
that the Company would in fact do so if they did not support the Union. Cf. St. Francis Medical

12 See Tr. 98–101, 118–122 (Hall), 146, 152–156, 185–186 (Jose Antonio), 216, 222–226,
258, 272–274 (Avina), 284–287 (Salazar), 299–305, 314–315 (Douglas Vaught), and 477, 481
(Lutes). (Jara is apparently no longer a labor consultant for the Company and did not testify.)
Antonio testified that Jara also said that “a lot of good changes” would be coming to them if they
voted no in the election. However, this testimony was not corroborated by Montenegro, who
worked in the same building with him, or any of the other engineers who were at the same or
other meetings with Jara. Thus, given the passage of time since the alleged events, Antonio’s
testimony was likely his subjective interpretation of what Jara said rather than what he actually
said. Accordingly, it has not been credited. See fn. 4, above.
13 See Tr. 146–150 (Antonio), 226–229 (Avina), and 325–329 (Montenegro). Antonio
testified that Hermanson also said that “good changes” could come for all of them if they voted
no in the election. However, this testimony has not been credited for essentially the same
reasons noted above.
14 See R. Exh. 7 (the script); and Tr. 146, 157–160, 186–188 (Antonio), 217–221, 256–257
(Avina), 290–291 (Salazar), 329 –332 (Montenegro), 427–428, 485 (Lutes). Antonio testified
that Lutes also said that “good changes” would be coming for all of them if they voted no in the
election. However, again, this testimony has not been credited for essentially the same reasons
noted above.
JD(SF)–27–19
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Center, 340 NLRB 1380, 1381 (2003) (manager unlawfully solicited grievances by telling a
union supporter, “Apparently you have some problems” and asking, “What is it that we can do
for you?”); Majestic Star Casino, LLC, 335 NLRB 407, 408 n. 4 (2001) (HR director unlawfully
solicited grievances by asking employees about their problems and concerns and, after they told
her what they were, telling them that she would “look into these things”); Coronet Foods, Inc., 5
305 NLRB 79, 85 (1991) (vice-president unlawfully solicited grievances by asking employees
what their three wishes would be and telling them he would present them to the owner); and
Fisher-Haynes Corp. of Georgia, 262 NLRB 1274, 1275 (1982) (plant manager unlawfully
solicited grievances by telling employees that “if they gave him a chance, he would straighten it
out . . . [that they] would all be made happy.”). See also Evergreen America Corp., 348 NLRB 10
178, 217 (2006), enfd. 531 F.3d 321 (4th Cir. 2008). Further, there is no evidence that the
Company had a past policy or practice of soliciting the engineers’ complaints in the same
manner.15
The Company nevertheless argues that no violation occurred because Lutes repeatedly 15
stated during his meetings with the engineers that he or the Company could not legally make any
promises during the preelection period. However, such statements are sufficient to negate an
implied promise to remedy grievances only in the absence of other inconsistent statements or
conduct. George L. Mee Hospital, 348 NLRB 327, 329 (2006), citing Uarco, Inc., 216 NLRB 1
(1974). As discussed above, notwithstanding his statements that he could not legally make any 20
promises, Lutes indicated by various other statements that he and the Company would, in fact,
look into and respond to their complaints in a positive way. Cf. Wake Electric Membership
Corp., 338 NLRB 298, 306–307 (2002) (manager’s statement that he was not making any
promises “was mere verbiage, in light of his request that the employees give the Company
‘another chance,’ and averment that the Company would ‘work with’ the employees”); and25
Noah’s New York Bagels, Inc., 324 NLRB 266, 270–271 (1997) (president unlawfully solicited
grievances by asking a prounion employee what her problems were with the company and saying
he would think about them and do his best to try and solve them, notwithstanding that he also
said he couldn’t make any promises). So did Jara and Hermanson in their separate meetings with
the engineers during the same period. And there is no evidence that they said no promises could 30
be made, legally or otherwise. Accordingly, the Company violated Section 8(a)(1) of the Act as
alleged.
C. Alleged Statements of Futility (Lutes and Kaplan)
35
As indicated above, Lutes sometimes attended the follow-up meetings Jara held with
engineers during the preelection period. Two of those meetings, in early and mid-August, were
with just one of the engineers, Douglas Vaught, who works the 3 pm–midnight shift at the
Trillium building. Vaught was a longtime union member and had told the Company so when he
was interviewed and hired in 2015. At both meetings, Jara and Lutes began by making various 40
disparaging comments about the Union. Vaught disputed their comments based on his own
personal experience and knowledge of the Union. Indeed, at the second meeting, he said that the
Union could actually benefit the Company. This was apparently too much for Lutes, who
responded that the engineers were “stupid” and needed to get the Union “out of [their] mind.”

15 Indeed, the record indicates that Lutes had never held such meetings with the engineers
before. See Tr. 161 (Antonio), 221 (Avina), 290–291 (Salazar), and 334 (Montenegro).
JD(SF)–27–19
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Lutes said that he was going to be the negotiator for the Company and that he wasn’t going to
sign the Union contract. He said the Company could not afford to pay the union rates; that the
only option they would have would be to go on strike; and that the moment they did so he would
fire everyone.16
5
The General Counsel alleges that Lutes’s statement that he wouldn’t sign the Union
contract constituted an unlawful statement of futility. However, it is clear from the record as a
whole that Lutes was not saying that he would refuse to sign any contract with the Union, but
only that he would not sign the BOMA (Building Owners and Management Association)
standard area union contract, and that Vaught knew this.17 Further, as indicated above, he 10
explained that the Company would not do so because it could not afford the union rates.
Accordingly, the statement was not an unlawful statement of futility. See Pilot Freight Carriers,
223 NLRB 286, 293 (1978).18
The following week, a day or two before the election, President/CEO Kaplan also held 15
mandatory antiunion group meetings with the engineers. Like Lutes at his prior mandatory
group meetings, Kaplan used a prepared script. He talked about the history of the Company and
how well it had treated its employees during the recession. He asked the engineers to give him
and the Company another chance. He also told them that if they voted for the Union the
Company would bargain with it in good faith but would never agree to anything that was not in 20
its best interests.
However, as the meetings wore on Kaplan departed from the script and spoke
extemporaneously. He became angry, raised his voice, and pounded the podium or table with his
fist. He told the engineers that there had never been a union in the Company and he would do 25

16 See Vaught’s testimony, Tr. 299–306, 314–317. Vaught’s testimony was detailed and
otherwise credible on its face. It was also circumstantially or indirectly corroborated by the
Union’s business representative, Patrick Murphy, who confirmed that Vaught called him right
after and told him about Lutes’s above-described comments to him at the second meeting (Tr.
38). Further, although Lutes denied making any such statements at his own scripted meetings
(Tr. 412–413, 428–429), he did not deny that he did so when Jara and he met with Vaught alone.
Nor did he offer an alternative version of what he said. Moreover, he was not a particularly
credible or reliable witness generally. For example, he denied that he asked the engineers to tell
him what their problems were and claimed he could not recall if anyone did so at the meetings
(Tr. 412, 471). See also fn 19, below (discussing his testimony about Kaplan’s subsequent
meetings).
17 See Tr. 24–25, 51–56 (Murphy), and 316–317 (Vaught).
18 The General Counsel also alleges that Lutes unlawfully indicated at one of his July 31
group meetings that it would be futile for the engineers to vote in favor of the Union, citing
Hall’s testimony that Lutes said “the Company’s not going to go union and they’re not going to
negotiate” at the meeting he attended (Tr. 98). However, no such statement appears in the script
used by Lutes at the July 31 group meetings. Further, Hall’s testimony was not corroborated by
Salazar, who attended and testified about the same meeting, or any of the other engineers. Thus,
for essentially the same reasons previously discussed regarding Antonio’s testimony, Hall’s
testimony in this regard has not been credited.
JD(SF)–27–19
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anything and everything he could to the fullest extent of the law to stop the Union from getting
in. He also told them that if they voted for the Union in the election, he would never agree to or
sign the BOMA contract or any union contract that provided better health or other benefits to
them than what the Company provided to its nonunion employees.19
5
An employer’s statement that it will never agree to provide unionized employees with
better wages or benefits than its nonunion workforce constitutes an unlawful statement of futility.
See Heartland of Lansing Nursing Home, 307 NLRB 152, 158 (1992) and cases cited there. As
indicated above, this is precisely what Kaplan said. Further, unlike Lutes at his meeting with
Vaught, he offered no explanation, other than the vague statement that the Company would not 10
agree to anything that was not in its “best interests.” Accordingly, his statement violated Section
8(a)(1) of the Act as alleged.
The General Counsel also alleges that Kaplan unlawfully indicated that supporting the
union was futile by stating that he would do anything and everything he could to stop the Union 15
from getting in. However, as indicated above, Kaplan stated that he would do so within the
bounds of the law. Accordingly, the statement was not unlawful. See generally Ross Stores, Inc.,
329 NLRB 573, 575 (1999).
D. Alleged Threat of Discharge (Lutes)20
As indicated above, Lutes also told Vaught at the mid-August meeting that the engineers’
only option would be to strike and that the moment they did so he would fire everyone. Such
employer statements are unlawful because former economic strikers are entitled to reinstatement
if their positions have not been filled by permanent replacements or upon departure of the 25
replacements. See Ingredion, 366 NLRB No. 74, slip op. at 21 (2018), enfd. --- F.3d ---, 2019
WL 3242548, at *5 (D.C. Cir. July 19, 2019); Pier Sixty, LLC, 362 NLRB 505, 524 (2015), enfd.
855 F.3d 115 (2d Cir. 2017); and Care One at Madison Ave., LLC v. NLRB, 832 F.3d 351, 360–
361 (D.C. Cir. 2016), and cases cited there. Accordingly, Lutes’ statement that he would fire
everyone when they went on strike violated Section 8(a)(1) of the Act as alleged.2030

19 See Tr. 101–103, 119–120, 125–129 (Hall), 147, 161–166, 188–191 (Antonio), 229–234,
261–264, 270 (Avina), 287–289, 291–292 (Salazar), 431–433 (Lutes), and 499–508, 517
(Engineer Cary Johnson). To the extent the testimony of one or more of these witnesses
conflicts with the above findings, it has not been credited. See fn. 4, above. For example, Lutes
testified that Kaplan did not bang or pound his fist on the table at the meetings. However, every
other witness, including Johnson, who was also a Company witness, testified otherwise.
Similarly, Johnson testified that Kaplan did not say anything about a contract or giving certain
benefits to employees, but the other witnesses, including Lutes, testified to the contrary.
20 The General Counsel does not allege that Lutes’s statement unlawfully indicated that a
strike was inevitable. Compare Sysco Grand Rapids, LLC, 367 NLRB No. 111, slip op. at 18, 24
(2019); and Heartland of Lansing Nursing Home, 307 NLRB 152, 158 (1992) and cases cited
there. Accordingly, this decision does not address that issue.
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E. Alleged Threat of Unspecified Reprisals (Panzer)
On August 25, the day of the election, Hermanson called Juan Avina, an engineer in
another one of the buildings (Warner Center Tower 1), and told him to come down to the lobby.
When Avina arrived, Hermanson, Lutes, and Jara were there along with COO Panzer. However, 5
Panzer immediately took Avina aside, away from the group, to speak to him privately. Panzer
told Avina that the Company needed his vote, needed him to vote no. Panzer asked Avina to
give the Company another opportunity and reminded him, “I make payroll.” Avina said, “I
know you do,” and tried to step away. But Panzer followed him and repeated several more times
that he made payroll and really needed his vote. Avina eventually responded that he considered 10
himself lucky to be working for the Company and appreciated what it had done for him, and the
conversation ended.21
The Company argues that Panzer’s repeated “I make payroll” statements were ambiguous
and therefore lawful. See Br. at 37 (“Ambiguity dooms the General Counsel’s allegation 15
because the lack of clarity precludes it from overcoming the burden of proof.”). However, as
indicated by the General Counsel, a threat need not be explicit to be unlawful. The test is
whether, considering all the circumstances, it would reasonably be construed by an employee as
a threat of adverse consequences for supporting the union. See Con-Way Freight, 366 NLRB No.
183, slip op. at 5–6, and 21 (2018); and NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 20
1970), and cases cited there. Here, Panzer did not make repeated references to his authority over
the employee payroll during a conversation about his job responsibilities. Rather, he did so while
trying to persuade Avina to vote against the Union in the election. In this context, Avina would
not have reasonably construed Panzer’s statements as mere vague or innocuous comments about
his authority over the payroll, but as veiled or implied threats of reduced pay or other adverse 25
employment consequences if he didn’t vote the way Panzer and the Company wanted him to in
the union election. Accordingly, the statement violated Section 8(a)(1) of the Act as alleged.
II. ALLEGED POSTCERTIFICATION VIOLATIONS
30
As previously discussed, notwithstanding the Company’s antiunion campaign, the Union
won the August 25 election and was certified by the Board as the engineers’ bargaining
representative on September 5, 2017. The parties began bargaining for their first contract the
following month. Lutes and Attorney David Adlong represented the Company; Business
Representative Patrick Murphy and Organizing Director Jose Soto represented the Union. 35
Both the Company and the Union initially focused on noneconomic items and
proposals.22 The Company, however, had a practice of granting the engineers merit wage
increases and bonuses at the end of each year. The amounts of each varied depending primarily
on an engineer’s performance during the year. If an engineer received an overall rating of at 40
least 3 (“meets requirements”) out of 5 on his evaluation—which almost everyone did in each of

21 See Avina’s testimony, Tr. 234–237, 264–265. Avina’s testimony was corroborated by
Union Business Representative Murphy, who testified that Avina called and told him about what
Panzer said (Tr. 35–36). Further, it was not controverted by Panzer, who was not called to
testify by the Company.
22 Tr. 39–40, 61–62 (Murphy), 396–397 (Lutes).
JD(SF)–27–19
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the four years prior to 2017—he would typically be given a 3 percent wage increase and a 5
percent bonus, prorated or reduced to account for periods during the year when he was not
working at the facilities (e.g., where an engineer was hired in the middle of the year, took an
extended leave of absence, or was transferred or promoted). In a very few instances, the
percentages would be higher or lower, but 3/5 was the general standard for the wage increases 5
and bonuses during those years.23
In mid-November, Adlong sent a letter to Murphy addressing the matter. Adlong stated
that the Company currently planned to give each of the unit engineers a 2017 bonus of 2 percent
on December 8. As for wage increases, he stated that the Company did not currently plan to 10
implement any wage increases for the unit engineers as of January 1, 2018, but planned to
bargain over them as part of an overall economic package in order to avoid piecemeal
negotiations over economic issues. However, he stated that the Company was willing to discuss
any topic regarding the bonuses or wages and asked the Union to advise whether it wanted to do
so.24 15
In response, the Union requested historical wage information from the Company. After
reviewing that information, the Union concluded that the engineers had historically received an
average wage increase of 4.94 percent and that the failure to implement the same average wage
increase for 2017 would be contrary to the Company’s past practice and constitute a unilateral 20
change. Murphy informed Adlong that this was the Union’s position by email dated November
29. He further stated that the Union would consider such a unilateral change “to be retaliatory
and a progression from previous threatening conduct made by Douglas Emmett personnel,
including Chief Operating Officer Kenneth Panzer, during the Union election, as well as bad
faith Company conduct immediately following our previous negotiation session.” Murphy did 25
not, however, address the Company’s planned 2 percent bonus for 2017.25
Adlong replied by email later that evening, stating that Murphy had misread his letter.
Adlong stated that the letter was an attempt to give the Union “notice and an opportunity to
bargain” about the Company’s plans in accordance with its duty to bargain. He further stated30
that he interpreted the Union’s response as expressing a desire to discuss the wage increases

23 See Jt. Exhs. 7–9, and the summary charts and analyses of the 2013–2016 data set forth in
the General Counsel’s posthearing briefs (which the Company’s posthearing briefs fail to
directly or adequately address or refute). See also the testimony of engineers Hall (Tr. 104–106,
110–111), Antonio (Tr. 173–181), Avina (Tr. 238–247, 266–268), and Vaught (Tr. 308–313).
To the extent certain company witnesses such as Property Manager Dianne Walton testified to
the contrary, their testimony is discredited because they lacked personal knowledge of how the
Company determined the wage increases and bonuses and because their testimony is inconsistent
with the weight of the evidence. Accordingly, it is unnecessary to address the General Counsel’s
request (Br. 68) for an adverse inference against the Company regarding its past practice because
of its failure to call CEO Kaplan, COO Panzer or any other managers who have such personal
knowledge.
24 Jt. Exh. 12(a). The letter did not indicate whether the planned 2 percent bonus for 2017
would be conditioned on getting a particular performance rating.
25 Jt. Exh. 12(b); Tr. 41, 46–47, 65–67, 83–85 (Murphy).
JD(SF)–27–19
11
immediately, rather than as part of the total economic package, and that he would consider 4.94
percent to be the Union’s proposed wage increase for 2018.
Murphy responded about a week later, on December 5. He stated that Adlong had read
his prior email wrong; that the Union’s intention was to “protect the status quo environment” and 5
that 4.94 percent was not the Union’s proposed wage increase for 2018.26
Adlong replied to Murphy by email the next day, following a phone conversation. He
stated that the he and Murphy “obviously have different views on what does and does not
constitute the status quo.” However, he said he would speak to his client and respond in 1–2 10
business days with further discussion regarding the proposed wage increase. He said that the
Company was trying to negotiate the discrete wage increase immediately in order to allow it to
go into effect on January 1, 2018.
The following week, on December 11, Adlong emailed Murphy and informed him that 15
the Company was proposing a 1 percent wage increase. He invited Murphy to let the Company
know if he had “a counter or would like to discuss,” noting that the Company had to input the
data by December 20 for the increase to take effect on January 1.27
Organizing Director Soto, who had been copied on Murphy’s prior emails, responded for 20
the Union by email the following day. He stated that “the Company’s actions on compensation”
represented “a unilateral change and a status quo violation” and that the Union interpreted it to
be part of the Company’s “retaliatory, discriminatory and disparate treatment against the
bargaining unit for its decision to vote for union representation.”
25
Adlong replied to Soto by email the next day. He denied that the Company had retaliated
against the unit employees or made any inappropriate statements to them. He further stated that
the Union’s allegations that the Company’s actions constituted unilateral changes were “simply
baseless.” He reminded Soto that the Union had been given notice and an opportunity to bargain
about “the variable and discretionary issues of compensation,” and that it had “an inbound offer 30
to consider and respond to.” He invited Soto to respond to the proposal rather than “merely send
emails alleging violations of the Act.”28
Neither Murphy nor Soto responded to this email. Accordingly, on December 21,
Adlong notified Murphy by email that the Company would implement the 1 percent wage 35
increase on January 1.
Soto replied to Adlong’s December 21 email the next day. He told Adlong that the
Union “continu[ed] to insist that the company’s actions with regard to wages and bonuses”
constituted a violation of the status quo and an illegal unilateral change and could only be 40
interpreted as retaliatory given the Company’s past conduct. He informed Adlong that the Union
had therefore filed unfair labor practice charges against the Company.29

26 Jt. Exh. 12(c), (d).
27 Jt. Exh. 12(e), (f). See also Tr. 43–44, 72, 75–78, 85–86 (Murphy).
28 Jt. Exh. 12(g), (h).
29 Jt. Exh. 12(i), (j).
JD(SF)–27–19
12
Nevertheless, the Company implemented both the 1 percent wage increase and the 2
percent bonus. As usual, it informed the engineers about these amounts during their December
performance reviews. The reviews typically occurred in early December but were held a few
weeks later this time due to the foregoing back and forth with the Union. In addition, unlike in 5
past years, Lutes attended each of the reviews along with Hermanson and the property manager
to answer any questions the engineers might have about the bonus and wage increase amounts
and the collective-bargaining negotiations with the Union. Although few of the engineers asked
any questions or protested the unusually low bonuses and wage increases, Lutes told those who
did so that the amounts had been discussed with the Union, that the negotiations were ongoing, 10
and that the amounts could change if everything got resolved before January.30
As promised, the Union subsequently filed unfair labor practice charges with the NLRB
Regional Office. The charges alleged that the Company’s actions constituted unilateral changes
in past practice in violation of Section 8(a)(5) of the Act and were also retaliatory/discriminatory 15
in violation of Section 8(a)(3) of the Act.31
Following an investigation, the Regional Director decided not to issue a complaint on the
charge’s 8(a)(5) allegation. Although agreeing with the Union that the Company had a past
practice of awarding substantially higher merit wage increases and bonuses to the engineers, the 20
Regional Director concluded that the Company fully satisfied its obligations under Section
8(a)(5) of the Act before implementing the lower 2017 amounts. Accordingly, the Regional
Director dismissed that allegation.
However, the Regional Director found sufficient merit to the charge’s 8(a)(3) 25
discrimination allegation to issue a complaint on that allegation. As explained by the General
Counsel at the hearing and in the initial posthearing brief, the theory of the complaint is that,
although the Company complied with its 8(a)(5) bargaining obligations, its implementation of
the lower wage increase and bonus amounts nevertheless violated 8(a)(3) because the evidence—
including the Company’s unlawful preelection statements and threats, Lutes’s subsequent 30
statements to the engineers during the December performance reviews, and the Company’s
failure to explain why the lower amounts were given—shows that the decision to do so was
unlawfully motivated by union animus and therefore inherently destructive of the engineers’
rights under the Act.32

30 See Jt. Exh. 1; and Tr. 48 (Murphy), 307 (Vaught), 338–340 (Montenegro), 353–360, 363–
365 (Interiano), 405, 409–410, 459–460, 490–492 (Lutes), 532–538 (Property Manager Monica
Santiago) and 655–659, 673 (Property Manager Walton). To the extent the testimony of these or
other witnesses is inconsistent with the above findings, it has not been credited. See fn. 4, above.
For example, engineer Antonio testified that when he received his bonus and wage information
from Lutes, he said, “That’s fine. I mean, that’s—that’s what it is,” and that Lutes then said,
“You know what, Jose, I took this personal and it really hurt me,” which Antonio assumed
referred to the union vote (Tr. 172). However, this testimony is inconsistent with a statement
Antonio gave to the NLRB Regional Office in February 2018 (see Tr. 193) and was controverted
by both Lutes (Tr. 406–407) and Property Manager Santiago (Tr. 533–535).
31 See GC Exh. 1(m), (p), and (s).
32 See the consolidated complaint (GC Exh. 1(v)); the General Counsel’s statements at the
JD(SF)–27–19
13
As indicated by the Company, however, there are several problems with this theory.
First, the General Counsel’s concession that the Company did not violate Section 8(a)(5) of the
Act necessarily means: (a) that the amounts of the annual raises and bonuses were discretionary
rather than fixed and therefore the Company did not have an obligation to maintain the status quo
by awarding the same amounts for 2017 as it had in prior years, i.e., the Company’s failure to do 5
so was not an unlawful “unilateral change” as asserted by the Union; (b) that the annual raises
and bonuses were discrete recurring events and therefore the Company could lawfully modify
their amounts during contract negotiations without an overall impasse provided it gave the Union
reasonable notice and an opportunity to bargain over the intended modifications; and (c) that the
Company did, in fact, give the Union sufficient notice and an opportunity to bargain over the 10
2017 amounts before implementing them. See Covanta Energy Corporation, 356 NLRB 706,
719–720 (2011) (summarizing Board precedent regarding an employer’s legal obligations and
rights with respect to such discrete recurring events that arise during contract negotiations).
Second, it is neither abnormal nor necessarily bad faith for an employer to open with a 15
low wage and benefit offer or proposal. As stated in American Express Reservations, Inc., 209
NLRB 1105, 1118 (1974):
[I]t is the nature of collective bargaining or any other bargaining and negotiating
by people of experience, that, according to their respective positions, one party 20
starts high and the other low. If a union is prepared to settle for a 20- or 25-cent
increase, it may initially demand 80. The employer, although [it] may be willing
to ultimately agree to 15 or 20 cents, may initially offer 5 cents. They then
bargain out their differences.
25
See also Merck, Sharp & Dohme Corp., 367 NLRB No. 122, slip op. at 4 (May 7, 2019) (“The
[collective-bargaining] process, by its nature, may involve hard negotiation, posturing,
brinkmanship, and horse trading over a long period of time.”). And, as indicated above, the
General Counsel has effectively conceded that the Company’s initial proposal for a 1 percent
raise and 2 percent bonus did not constitute bad faith bargaining.3330
Third, given the Union’s failure to test the Company’s good faith by making any counter-
proposals, it would be speculative to conclude that the Company would not have moved off its

hearing (Tr. 19–21, 388–394); and the General Counsel’s initial posthearing brief (pp. 64–65).
The Regional Director’s dismissal of the 8(a)(5) charge allegation is not reviewable by the Board
or its administrative law judges. See NLRB v. Commercial Workers Local 23, 484 U.S. 112,
124–127 (1987).
33 Lutes testified at the hearing that the Company did, in fact, propose only a 1 percent raise
and 2 percent bonus because it anticipated that the Union would ask for 5–6 percent or more and
the Company wanted to leave itself room to move in negotiations (Tr. 401–403). However, the
foundation or basis for this testimony was never adequately established. Although Lutes was on
the company bargaining team, he admitted that he has never been involved in deciding the wage
increase and bonus amounts (Tr. 400, 446, 453, 493) and it is therefore unlikely he would have
decided on his own how much to propose to the Union. In any event, it doesn’t matter given the
General Counsel’s concession that the Company’s proposal did not constitute bad faith
bargaining.
JD(SF)–27–19
14
initial proposal and increased the amounts to past levels. See PSAV Presentation Services, 367
NLRB No. 103, slip op. at 6 (2019) (“The Board will not find that an employer failed to bargain
in good faith if the union failed to test the employer’s willingness to bargain.”), citing Captain’s
Table, 289 NLRB 22 (1988) (employer’s conduct during contract negotiations could not be
found unlawful under Section 8(a)(5) of the Act given that the union failed to test the employer’s 5
willingness to bargain by offering counterproposals and timely providing requested information
before filing its unfair labor practice charge).
Fourth, under Board law, an employer is prohibited from implementing amounts
substantially different from its pre-impasse proposals to the union. See FirstEnergy Generation, 10
LLC, 366 NLRB No. 87, slip op. at 11 (2018), enfd. in relevant part 929 F.3d 321, 329–332 (6th
Cir. 2019), and cases cited there (employer’s changes must be “reasonably comprehended”
within its prior proposals). Thus, the Company would have violated Section 8(a)(5) of the Act if
it had not implemented raises and bonuses in December 2017 that were consistent with its prior
proposals to the Union.15
In sum, the General Counsel’s 8(a)(3) discrimination allegation regarding the 2017 wage
increases and bonuses is inconsistent and legally incompatible with the General Counsel’s
concession that the Company complied with its 8(a)(5) bargaining obligations with respect to
those wage increases and bonuses. Cf. Voca Corp., 329 NLRB 591, 593 (1999) (judge’s finding 20
that the employer violated Section 8(a)(3) of the Act by requesting the union’s permission to
give a corporate-wide bonus to the bargaining unit employees notwithstanding their ineligibility
for such bonuses under the extant contract was “inconsistent” with his finding that the
employer’s request constituted a request for bargaining and was “legally incompatible” with the
employer’s continuing obligation under Section 8(a)(5) to bargain with the union pending the 25
Board’s ruling on the union’s objections to the recent decertification election). Accordingly, the
allegation will be dismissed.
Finally, the General Counsel also alleges that Lutes’s statements to the engineers during
the December 2017 performance reviews about the lower wage-increase and bonus amounts and 30
the negotiations with the Union independently violated Section 8(a)(1) of the Act. The theory of
this alleged violation is that Lutes unlawfully blamed the Union for the lower amounts.
However, the cases cited by the General Counsel in support of this theory are distinguishable
because they involved situations where the employer had an obligation under the Act but failed
to maintain the status quo with respect to the subject terms. See Salvation Army Williams 35
Memorial Residence, 293 NLRB 944, 969 (1989); Larid Printing, 264 NLRB 369 (1982); and
Halo Lighting Division of McGraw Edison Co., 259 NLRB 702, 703–704 (1981). See also
Richfield Hospitality, 368 NLRB No. 44, slip op. at 2 n. 4, and 21 (2019); and More Truck Lines,
Inc., 336 NLRB 772 (2001), enfd. 324 F.3d 735 (D.C. Cir. 2003). As discussed above, the
General Counsel does not allege that the Company had such an obligation or violated it here with 40
respect to the wage-increase and bonus amounts. Further, Lutes’s statements were essentially
accurate. Accordingly, this allegation will be dismissed as well.
45
JD(SF)–27–19
15
CONCLUSIONS OF LAW
1. The Company committed unfair labor practices in violation of Section 8(a)(1) of the
Act by:
5
a. Interrogating an employee about his union activities during the union organizing
campaign in June 2017.
b. Soliciting grievances from employees and impliedly or expressly promising to
remedy them during preelection antiunion meetings on July 31 and in August 2017.10
c. Threatening employees with discharge if they voted for the Union by telling an
employee at a preelection antiunion meeting in mid-August 2017 that the employees’ only option
would be to strike and that the moment they did so it would fire them.
15
d. Informing employees at antiunion meetings a day or two before the August 25, 2017
election that it would be futile to vote in favor of the Union by telling them that the Company
would never agree to or sign the BOMA standard area union contract or any union contract that
provided better health or other benefits to them than what the Company provided to its nonunion
employees. 20
e. Threatening an employee on the day of the election with loss of pay or other
unspecified reprisals if he voted in favor of the Union.
2. The foregoing unfair labor practices affect commerce within the meaning of Section 25
2(6) and (7) of the Act.
3. The Company did not otherwise violate Sections 8(a)(1) and 8(a)(3) of the Act as
alleged in the complaint.
30
ORDER34
The Respondent, Douglas Emmett Management, LLC, Woodland Hills, California, its
officers, agents, successors, and assigns, shall
35
1. Cease and desist from
(a) Coercively interrogating employees about their union activities or the union
activities of others.
40
(b) Soliciting complaints or grievances from employees and impliedly or expressly
promising to remedy them in order to discourage union support or activity.

34 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.
JD(SF)–27–19
16
(c) Informing employees that it is futile to support Operating Engineers Local 501 or
any other union.
(d) Threatening employees with discharge for engaging in union activities.
5
(e) Threatening employees with loss of pay or other unspecified reprisals to discourage
union support or activities.
(f) In any like or related manner restraining or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.10
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facilities in Woodland Hills,
California copies of the attached notice marked “Appendix.”35 Copies of the notice, on forms 15
provided by the Regional Director for Region 31, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic 20
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current 25
employees and former employees employed by the Respondent at those facilities at any time
since June 1, 2017.
(b) 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 30
the Respondent has taken to comply.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the
Act not specifically found.
35
Dated, Washington, D.C., August 27, 2019

Jeffrey D. Wedekind
Administrative Law Judge 40

35 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the 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.”
c c ----A-4
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.
WE WILL NOT coercively interrogate you about your union activities or the union activities of
others.
WE WILL NOT solicit your complaints and grievances and impliedly or expressly promise to
remedy them in order to discourage union support or activity.
WE WILL NOT inform you that it is futile to support Operating Engineers Local 501 or any
other union.
WE WILL NOT threaten you with discharge for engaging in union activities.
WE WILL NOT threaten you with loss of pay or other unspecified reprisals to discourage union
support or activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights described above.
DOUGLAS EMMETT MANAGEMENT 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.
11150 West Olympic Boulevard, Suite 700, Los Angeles, CA 90064-1824
(310) 235-7352, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/31-CA-206052 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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, (310) 235-7424.