Lincoln Property Co. C & S, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1976

224 N.L.R.B. 494 (N.L.R.B. 1976)

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lincoln Property Company C & S, Inc , Managing
Agent for Lincoln Colony Associates, Lincoln Gate-
house Associates, Lincoln Property Partners I and
Willow Road Associates and Janitors Union, Local
No. 1 of the Service Employees International
Union , AFL-CIO. Cases 13-CA-14393, 13-RC-
13672, 13-RC-13673, and 13-RC-13674
June 8, 1976
DECISION, ORDER, AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On January 27, 1976, Administrative Law Judge
Paul L Harper issued the attached Decision in this
proceeding Thereafter, Respondent filed exceptions
and a supporting brief, and the Union filed a brief in
answer to the Respondent's exceptions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified below
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Lincoln Property Com-
pany C. & S, Inc, Managing Agent for Lincoln Colo-
ny Associates, Lincoln Gatehouse Associates, Lin-
coln Property Partners I and Willow Road
Associates, Arlington Heights, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as modi-
fied below
I Add the following as paragraph 1(c)
"(c) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed them in Section 7 of the Act, as
amended "
2 Substitute the attached notice for that of the
Administrative Law Judge
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge s resolutions with respect to credibility
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Janitors Union Local No
1 of the Service Employees International Union,
AFL-CIO, and that, pursuant to Section 9(a) of the
National Labor Relations Act, as amended, the said
labor organization is the exclusive representative of
all the employees in the following appropriate unit
found appropriate herein for the purposes of collec-
tive bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employ-
ment
All janitorial employees employed by the Em-
ployer at its apartment communities now locat-
ed at 475 East Enterprise Drive, Mount Pros-
pect, Illinois, 2134 South Goebert Road,
Arlington Heights, Illinois, and 806 Willow
Road, Wheeling, Illinois but excluding office
clerical employees, head maintenance men,
guards and supervisors as defined in the Act
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products Inc 91
NLRB 544 (1950), enfd 188 F 2d 362 (CA 3 1951) We have carefully
examined the record and find no basis for reversing his findings
The Administrative Law Judge 's Decision contains a number of inadver-
tent errors in chronology which are corrected as follows ( 1) In the fifth
paragraph of the discussion of "The Announcement of the benefit package"
he states that employee Joswiak was first employed by Respondent in No-
vember 1975, the correct date is November 1974 (2) In the sixth paragraph
of the same discussion he states that employee Jones admitted he was put on
a salary basis sometime in November 1975 the correct date is November
1974 (3) In the paragraph captioned The discharge of James Bryon Shul-
tis' he states that Shultis was employed to June 4 , 1975, as a janitorial
employee, the correct date is June 3, 1975
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any of our employees because of
their membership in or activity on behalf of Jan-
itors Union, Local No 1 of the Service Employ-
ees International Union, AFL-CIO, or any
other labor organization
WE WILL NOT grant, expedite, or announce
new and/or additional benefits to our employ-
ees for the purpose of discouraging their interest
in or support of the aforesaid labor organiza-
tion
224 NLRB No 81
LINCOLN PROPERTY COMPANY C & S, INC
WE WILL offer James Bryon Shultis immedi-
ate and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent job, without prejudice to seniority or
other rights and privileges, and WE WILL make
him whole for any loss of pay suffered by reason
of his discharge
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them in Section 7
of the Act, as amended
LINCOLN PROPERTY COMPANY C & S, INC,
MANAGING AGENT FOR LINCOLN COLONY
ASSOCIATES, LINCOLN GATEHOUSE Asso
CIATES, LINCOLN PROPERTY PARTNERS I AND
WILLOW ROAD ASSOCIATES
DECISION
STATEMENT OF THE CASE
PAUL L HARPER, Administrative Law Judge Hearing in
this consolidated proceeding was conducted in Chicago,
Illinois, on November 10, 11, and 12, 1975
Complaint in 13-CA-14393 was issued August 19, 1975,
alleging violations of Section 8(a)(1) and (3) of the Act
Report on objections in 13-RC-13672, 13-RC-13673, and
13-RC-13674, order consolidating cases with 13-CA-
14393, and notice of consolidated hearing were issued Au-
gust 19, 1975 1
In its answer to the complaint the Respondent conceded
certain facts with respect to its business operations, but
denied all allegations that it had committed unfair labor
practices
All parties were represented by counsel, given full oppor-
tunity to examine and cross-examine witnesses, and to file
briefs The parties waived oral argument General Counsel
and the Union filed briefs 2 Upon the entire record and
from observation of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent, a Texas corporation with its principal
office in Dallas, Texas, and with an office and place of
business in Arlington Heights, Illinois, is engaged at the
latter location in furnishing management and janitorial
services to residential buildings in the State of Illinois Re-
spondent, during the past year, received gross revenue in
excess of $500,000 from such services The apartment com-
plexes involved herein are known by their short title of
Colony, Gatehouse, and Willow Bend 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
Objections were filed by the Employer
2 Employer filed brief in support of objections
II LABOR ORGANIZATION INVOLVED
495
Janitors Union, Local No 1 of the Service Employees
International Union, AFL-CIO, is a labor organization
within the meaning of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Complaint Allegations
The complaint alleges two counts of alleged 8(a)(1) vio-
lations and one count of an alleged 8(a)(3) violation with
respect to the discharge of James Bryon Shultis
B Issues
Whether or not Respondent violated Section 8(a)(1) of
the Act by announcing new and/or additional fringe bene-
fits to employees at the June 5 and 6, 1975, meetings at
each of the apartment premises involved herein just a few
days before the election on June 9, 1975
Whether Respondent, at the June 5 and 6 employee
meetings, told its employees, in effect, it would be futile for
them to continue to support the Union at the upcoming
election
Whether or not Respondent violated Section 8(a)(3) of
the Act in the discharge of James Bryon Shultis
C The Announcement of the Benefit Package
The complaint alleges, at paragraph VI(a), in substance,
that Respondent , during employee meetings on June 5 and
6, 1975,3 at each of the three apartment complexes involved
herein, "announced new and /or additional fringe bene-
fits", that it did so in an effort to discourage employees
from supporting the Union and, inferentially , to vote
against the Union in the upcoming election on June 9
The General Counsel contends that the benefits outlined
at the June employee meetings were actually new and/or
additional benefits insofar as the employees were con-
cerned , that the employees , even if entitled to certain bene-
fits, were unaware of such entitlement since they had never
been so informed prior to the June meetings, and further,
as a matter of fact , had never received many of the bene-
fits, for example, nonhospitalization sick leave, personal
leave, paid vacations to the extent announced, and were
unaware and did not understand the announced retirement
and profit sharing plan, etc Moreover the General Counsel
contends such benefits "can be added to and subtracted
from at the discretion of Yelvington or sometimes by resi-
dent managers " The General Counsel further contends
that "parading and granting unknown benefits before
employees prior to an election is unfair labor practice
11
The alleged announced new and/or additional fringe
benefits were presented to the employee groups by Vice
President Yelvington displaying them on a large card-
board The benefits are set forth in General Counsel's Ex-
hibit 7 as follows
3 Unless otherwise indicated all dates refer to 1975
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Free LPC Benefits-I Holidays-seven days, II Va-
cations-two (2) weeks, III Sick Leave-six (6) days
per year, IV Personal Time-four (4) days per year,
V Maternity-Child covered from birth, VI Retire-
ment-profit sharing, VII Reviews, promotions and
transfers based on individual merit, VIII Health and
medical insurance-100% company paid for you and
dependents-50/yr deductible-twenty-four hour
coverage-disability benefits-pays 100% up to $1000
and 80% after initial $1000-$2000 of life insurance,
IX Life insurance-for you and dependents-mini-
mum of $12,000 (plus double indemmty)-value al-
ways exceeds annual salary, X All benefits are FREE
Employee Joswiak testified that when hired, she was in-
formed about certain fringe benefits including hospitaliza-
tion, life insurance, and paid vacations, but nothing about
other benefits enumerated in the June employee meeting
She testified the employee meeting took place Thursday or
Friday before the election on Monday, June 9, that James
Court and she were the only employees eligible to vote in
the election present at this particular meeting, that Mr
Yelvington displayed a large cardboard (G C Exh 7) from
which he read and explained the benefits Yelvington, ac-
cording to Joswiak, stated further that even though em-
ployees had signed union cards they still had the opportu-
nity to vote "no" in the election, that if the Union came in
employees would not be able to transfer from one property
to another, that if the employees went on strike they would
not be paid while on strike, and that he asked "for our vote
against the Union because he wanted us to give his
company a chance to prove itself " On May 20, Joswiak
received an identification card from the bookkeeper at
Willow Bend relating to certain insurance benefits Noth-
ing was said to her at the time by way of explanation of
such insurance benefits On cross-examination she ac-
knowledged filling out some forms, apparently relating to
insurance benefits, but testified she did not read or under-
stand what she had signed She further testified that she
had been off sick intermittently for a period of about 10
days, that she was not docked but had to make up such
time by working Saturdays except for 5 days, 3 of which
she had spent in the hospital and 2 convalescing at home
Also she testified she was off work an entire week in July
1975 apparently to be with her daughter after the birth of a
grandchild, that she was paid for this time by coming in to
work "an hour earlier or stay an hour later " It was later
brought out her hospital stay had resulted from injuries
received at work
Joswiak's testimony is substantially corroborated by that
of employee Anderson who testified that when hired he
was informed of practically no fringe benefits He recalled,
after several months of employment, being informed by a
resident manager about certain insurance benefits and of
filling out certain insurance forms on May 19 He was first
employed in November 1975 He attended the meeting
conducted by Yelvington on June 6 at the Colony complex
along with employees Green and Stewart Anderson testi-
fied that Yelvington discussed the various benefits set forth
on a large cardboard item by item, that of the 10 benefits
displayed and discussed he was aware of being entitled to
only 1 and that was the one listed at paragraph VII entitled
"Reviews, promotions and transfers-based on individual
merit " Anderson testified that during the meeting he told
Mr Yelvington he had been required to make up time for
a holiday and that Mr Yelvington replied he was "un-
aware of it and it wouldn't happen again " He also told
Yelvington about not having a company insurance policy
Anderson testified that Yelvington "told everybody in the
room we had these benefits" set forth on the cardboard
and displayed to the employees at the meeting He later
acknowledged receiving an insurance identification card
along with an explanatory booklet on May 19, about 2
weeks before the June 6 meeting Anderson also testified
that he recalled one or two occasions being off sick and
that he was not paid for such sick leave
A similar meeting took place at the Gatehouse apart-
ment complex Again Yelvington presided with Supervisors
Hester and Holmes in attendance Employee Gerald Jones
testified he and about three other employees attended the
meeting Yelvington, according to Jones, displayed the
large cardboard exhibit and discussed "all the benefits and
explained them out and we learned exactly what we had
', that Yelvington went on "talking about why we
were voting the union in and why they didn't want it in "
On cross-examination Jones admitted that he was put on a
salary basis sometime in November 1975, about a month
after he was hired, that Supervisor Hester explained that
he would have life insurance, health insurance, 2 weeks'
vacation, and paid holidays, and that he read about having
6 paid sick leave days on a contract Mr Hester had him
sign regarding maintaining a 50-hour workweek at this
same time He further testified that prior to the June 6
employee meeting he was unaware of such benefits as time
off for certain personal reasons, retirement, and profit-
sharing
Employee Riha testified that at the time he was hired
sometime in November 1974 he was told nothing about
fringe benefits, that when he was put on a salary basis
sometime in February 1975 he was informed of certain
benefits including 2 weeks' paid vacation, hospitalization,
health and life insurance, but no "specifics" regarding such
benefits, further that he attended the meeting on June 6
along with several other employees during which Mr Yelv-
ington explained the benefits described above from the
document identified in the record as General Counsel's Ex-
hibit 7 Riha also testified that he was unaware of any of
the other benefits shown on this exhibit, and that whenever
he was off sick such time off was deducted from credited
time off due to work in excess of 40 hours in any given
week It was standard procedure for employees to be com-
pensated for work in excess of 40 hours a week by granting
them future time off
Respondent's Vice President Yelvington testified that
the employee benefit package was incorporated in a com-
pany personnel manual which was "normally" maintained
on the "properties," at his office and "almost every office
we do business with in the United States", that the manual
was updated from time to time with inserts, that it was his
job to check to see that all inserts were put in the manuals
but that after instructions were forwarded to the various
managers he did not follow up to check on whether the
LINCOLN PROPERTY COMPANY C & S, INC
inserts had actually been filed in the manuals He testified
thus "To follow up, to go check it, I don't ever remember
doing that specifically " He further testified , on cross-ex-
amination, that he had the authority to modify the provi-
sions of the manual by granting "more" but not "less" ben-
efits set out in the manual Also, in regard to vacation
benefits relating to hourly employees , Yelvington said he
did not notify his resident managers of the change from I
week provided in the manual to 2 weeks announced during
the June meetings with the various employee groups Fur-
ther that the only time he personally informed employees
of their benefits was at the June meetings Additionally,
Yelvington testified that with respect to sick leave he as
well as resident managers could deviate from the manual
and in fact "it was done "
Concluding Findings
Yelvington 's testimony does not substantially refute in
any material respect the testimony of General Counsel's
witnesses in regard to what was said during the June meet-
ings with the various employee groups The composite tes-
timony of all witnesses clearly reveals a lack of communi-
cation from top management through intermediate
management to the rank -and-file employees The testimo-
ny clearly establishes that none of the employees were
aware, or had been informed before the June meetings, of
all benefits to which they were, or may have been, entitled
All of the employees were aware , or had been informed, of
only some of the benefit package Some of the employees
had either been off sick or worked on holidays and had not
received the alleged benefits
There is no question that the Respondent announced
such benefits in the context of an upcoming election The
June 5 and 6 group meetings Respondent conducted with
its employees flowed directly from its election strategy
meeting on June 2 There is likewise no question that Re-
spondent , by the timing and announcement of said bene-
fits, was attempting to influence its employees to vote
against the Union The Respondent had the right, of
course, to express its opinion about the relative benefits or
nonbenefits of unionization on the part of its employees so
long as it made no threats of reprisals or promises of bene-
fits
Based on all the above considerations , I find that the
Respondent did, in fact , announce to its employees on the
eve of the June 9 election new and/or additional benefits
for the admitted purpose of influencing their vote against
the Union This finding is based primarily on the fact, es-
tablished by credible record testimony , that employees not
only were not aware of most of the announced benefits but
some of the employees who had been off sick, or off on
holidays, or off for personal reasons , failed to receive and/
or were denied such benefits The announced benefits were
clearly advantages the employees not only did not know
about but in some instances noted above did not have prior
to the announcements on June 5 and 6 Furthermore, some
of the benefits listed on General Counsel's Exhibit 7 and
presumably actually enjoyed by the employees were of un-
certain nature Moreover , admittedly some of the benefits
could be altered at the will and whim of the Respondent
497
Thus, as far as the employees were concerned , the an-
nouncements at the June 5 and 6 meetings were tanta-
mount to receiving new or additional benefits and it would
be unrealistic to conclude that such announcement would
have no impact in the coming election Accordingly, I find
Respondent 's conduct described above to constitute a vio-
lation of Section 8(a)(1) of the Act
D The Alleged Futility Statements
In support of paragraph VI(b) of the complaint the Gen-
eral Counsel contends that certain statements made by Re-
spondent Vice President Yelvington to employees at the
June group meetings contained the unlawful threat that it
would be futile for the employees to continue their support
of the Union since they would gain nothing by voting for
the Union at the June 9 election The General Counsel
relies primarily on the testimony of employees Gerald E
Jones and Joseph Riha
In this connection Jones testified that during the group
meeting he attended on June 5 he asked Yelvington why a
big company like the Respondent couldn't pay more to its
maintenance employees Yelvington , according to Jones,
replied "(Yelvington) told me they were paying all they
could afford to pay " Yelvington , in response to further
interrogation , repeated this response several times, in sub-
stantially the same manner Jones' testimony is corroborat-
ed by that of Riha
Yelvington, with respect to this allegation, testified that
he "told these groups separately that if the Union was vot-
ed in, it did not necessarily mean that they would get any
additional benefit or higher pay "
Concluding Findings
It is essential to consider Yelvington's statements in
proper context Admittedly, even according to General
Counsel's witnesses , Yelvington made his remarks in re-
sponse to a question asked by employee Jones Jones, after
asking Yelvington why such a big company as the Respon-
dent couldn't pay more to its employees and getting
Yelvington's alleged reply to the effect that the Company
couldn't afford any pay increases, went on to say to Yelv-
ington that if Respondent "couldn't afford to pay us more,
why they couldn't afford to give us an apartment and
the wages we already had, which would make it almost
more than fair to work there And he said he couldn't give
me an answer because it was against the law He couldn't
make any promises " (Emphasis supplied ) Moreover, on
cross-examination Jones testified that after Yelvington had
responded to his question about more pay and benefits
that Yelvington went on to say he would negotiate with the
Union if it was voted in He testified as follows
Q Isn't it a fact Mr Yelvington discussed the pos-
sibility of negotiating a contract with the union'
A Yes, if it was voted in
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q Did he not say that they would negotiate fairly
with the umon9
A Yes
Although I have no reason to doubt the testimony of
Jones or Riha both seemed inclined to elaborate somewhat
as counsel continued his interrogation, as if to give a more
complete interpretation of their impression of what Yelv-
ington meant by his statements In this connection it is
important to note that on direct examination Jones testi-
fied that after asking Yelvington about more pay, or a free
apartment with the same pay, that Yelvmgton replied he
couldn't "make any promises " It was not until cross-exam-
ination that Jones testified Yelvington definitely stated the
Company couldn't afford to pay any more than it was cur-
rently paying its employees
Based on all the above considerations, especially Jones'
admission that Yelvington, immediately following his re-
marks about more pay and benefits, went on to say he
would negotiate with the Union if the employees selected
the Union as their representative, I conclude and find that
the record evidence is insufficient to sustain the allegations
contained in paragraph VI(b) of the complaint According-
ly, I recommend this allegation be dismissed
E The Discharge of James Bryon Shultis
Shultis was employed by Respondent from February 19,
1975, to June 4, 1975, as a janitorial employee He was at
various times under the immediate supervision of Supervi-
sors Toth, Lyman, and Hester, in that order
F Contention of the Parties
It is the contention of the General Counsel and Union
that Respondent discharged Shultis just a few days before
the June 9 representation election on the pretext of malin-
gering in order to rid itself of a potential vote for the
Union Both the General Counsel and Union admit that
Shultis was a "less than ideal" employee but rely heavily on
the pretextual nature of the discharge and the events which
led to it at a so-called election strategy meeting of
Respondent's officials on the day before Shultis' discharge
Respondent at the hearing asserted several reasons for
its discharge of Shultis, including the need of Shultis for
more than average supervision, tardiness, absenteeism, and
malingering Ultimately, Respondent took the position that
Shultis primarily was discharged because of malingering or
pretending to be off sick the day before his discharge when
in fact he was not sick
G The Evidence
1 Shultis' union activity and Respondent's knowledge of
same
Shultis, along with several other of Respondent's em-
ployees, attended a union meeting the latter part of March
1975 at a restaurant in the metropolitan area of Chicago
Also in attendance at this meeting was head maintenance
man Richard Denner, an admitted supervisor There is evi-
dence in the record that Shultis spoke to Denner about the
Union on several occasions, Shultis speaking in favor of
union representation Denner did not testify From this evi-
dence alone I find that Respondent knew of Shultis' union
interest and support Additionally, however, Respondent's
knowledge of Shultis' union interest and support becomes
clearly manifest at the election strategy meeting the day
before Shultis' discharge discussed more fully below
2 Respondent' s defense
As noted above the General Counsel and Union ac-
knowledge that Shultis was "less than an ideal employee "
Thus, there is evidence unrebutted that all of Shultis' su-
pervisors at one time or another complained about his
work habits and attitude towards his job Toth, according
to Yelvington's testimony, about mid-March 1975, com-
plained to Yelvington she was having trouble with Shultis
in getting "conditions of the hallways and the property in
general," corrected At that time Yelvington told Toth if
she had "somebody who will not work (she) should get rid
of them " Yelvington testified Toth complained about
Shultis between the date Shultis was hired until about April
3, 1975, on at least three separate occasions Nevertheless
Toth, on or about March 23, 1975, recommended in writ-
ing that Shultis be granted a 50-cent-an-hour increase in
pay Her recommendation included the statement "J B
(Shultis) has done a good job, is very cooperative "
Yelvington testified that he personally repeatedly ob-
served Shultis at work and that "he moved slowly, that he
nad a lackadaisical attitude, that he in fact had to be in-
structed repeatedly to do his everyday tasks " Nevertheless
Yelvington testified "it was (his) policy to leave it to the
resident managers to directly supervise their employees,
and that included the hiring and firing, and I felt like that
with the past record of Mr Shultis that I had knowledge of,
that I had had enough of Mr Shultrs " This testimony fol-
lowed a question as to what influence, if any, did
Yelvington's observations of Shultis have upon his instruc-
tions to Mr Hester on June 2, the day before Shultis' dis-
charge
Resident Manager Lynam testified that while Shultis
was under her immediate direction she complained to Mr
Hester on several occasions about Shultis' poor work per-
formance, that she spoke to Hester about Shultis "two or
three times a week for the three weeks I was there " Also
that she complained to Yelvington about Shultis "on a few
occasions " Lynam also testified Shultis was tardy quite
often and she talked to him about this "2 to 3 days" during
the first week of his employment Further, that on at least
two occasions he used "slangy" words in her presence such
as "Don't worry, Toots, I will take care of it "
The testimony of Hester regarding Shultis' work perfor-
mance substantially corroborates that of Yelvington and
Lynam In respect to Toth's recommendation on March 23
that Shultis be granted a raise, and her laudatory com-
ments, Hester testified he disagreed with Toth's statements
but that he was "attempting to try to get the man more
money in hopes that he would try to perform (his) job in a
much more professional manner "
LINCOLN PROPERTY COMPANY C & S, INC 499
3 The election strategy meeting of June 2, 1975
The facts surrounding this meeting of Respondent's offi-
cials, supervisors, and legal counsel are not in dispute Vice
President and General Manager Yelvington and Resident
Managers Hester, Holmes, and Lynam, along with
Respondent's attorney Berman, attended Also, it is not
disputed that the purpose of the meeting was to discuss the
upcoming election on June 9 and to talk about a plan to
"sell" each employee on the idea of voting against the
Union Hester's testimony is the most explanatory of those
testifying He testified "We just went over our rules
and our benefit package, how we were to try to sell each of
the employees to vote against the Union, and that was ba-
sically it Just to sell our company, how we could sell our
company in place of the union " The June 5 and 6 employ-
ee group meetings at the three apartment complexes result-
ed directly from this strategy meeting on June 2
4 Shultis is discussed at the June 2 meeting
About mid-way through the meeting, according to
Hester's testimony and not disputed by others present,
Hester brought up the fact that Shultis had reported in sick
that very morning and would not be in for work that day
The meeting lasted about 3 hours and began about 1 p in
Yelvington, according to Hester, responded by telling Hes-
ter to "Go in there (apparently an adjacent office) and call
the employee and find out if he is in fact sick " Hester went
in another room, made the phone call, and reported back
to Yelvington that Shultis' phone didn't answer Yelving-
ton told Hester "to continue to try and get in touch with
the man " According to Hester's notes the first call was
made about 2 30 p in About 3 30 p in, according to Hes-
ter, he made a second attempt to reach Shultis by phone,
again without success, and again reporting these results to
Yelvington At the conclusion of the meeting about 3 45
p in Yelvmgton again instructed Hester to "call Shultis
and make sure and find out whether he is sick or not "
After reporting back to Yelvington that he still had been
unable to reach Shultis, Yelvington, according to Hester,
stated "we can't continue to tolerate this kind of behavior
find out tomorrow when Shultis gets in whether he
was ill or not "
It is thus noted that all three phone calls encompassed
no more than about an hour and fifteen minutes ranging
from the first call about 2 30 p in to the third call about
3 45 p in On cross-examination Hester testified as follows
Q Between 2 30 and 3 15 (first and second phone
call) did you continue to discuss the Union?
A Yes, sir, we did
Q And you continued to discuss in fact who you
thought was a swing vote and who you thought would
be influenced9
A Who I could sell, yes
Q By "sell" you mean sell in terms of voting
against the Union9
A That is correct
Hester was further interrogated as follows
Q And do you recall in what category J B Shultis
fell
A Oh, I amjust guessing I believe we felt he would
be a tough vote to win over to our side
In regard to the exact timing of the decision to discharge
Shultis and some of the events leading thereto there is some
discrepancy in the testimony of Yelvington and Hester
For example Yelvington testified that Hester notified him
during the morning of June 2 that Shultis had called in sick,
that he then and there asked Hester if he thought Shultis
was really sick and Hester said "no," whereupon Yelving-
ton instructed Hester "to get on the phone and call
Shultis all day long until you reach him on that phone
Then I want you to determine from his explanation of why
he is sick if, in fact, he is sick, and if he is not sick, then I
want you to counsel with that young man " Hester on the
other hand testified that although he was notified about
Shultis' absence that morning that he made no attempt to
phone Shultis until that afternoon after he had mentioned
Shultis' absence to Yelvington during the afternoon meet-
ing Hester testified it was Yelvington who, after the third
unsuccessful phone call to reach Shultis, told him if Shultis
did not have a good excuse for his absence when he report-
ed the next day to fire him Hester testified as follows
Q Did Mr Yelvington tell you that if he didn't
have a good excuse (to) fire him9
A Yes
Yelvington, contrary to Hester, testified that "in the af-
ternoon on the 2nd (June) when Bob had tried unsuccess-
fully to reach him (Shultis) and told me what he wanted to
do, and I told him that is what I thought he should do "
Further that Hester said to him at this meeting "Brownie,
(Yelvington) I want to fire this guy but I am afraid to
because of what Herb Berman (Respondent's attorney of
record) said, that you must be very cautious about firing
somebody during an election " Yelvington testified he ex-
plained to Hester his right to fire Shultis "if he is not doing
his job we have got enough background on this guy,
we just don't have to put up with it anymore " Lynam
testified that the decision to discharge Shultis was dis-
cussed at the meeting but she didn't recall whether it was
Yelvington or Hester who made the decision
Concluding Findings
Based on the above considerations, the entire record in
the case, and the more specific considerations noted below,
I am persuaded, and find, that in discharging Shultis on
June 3, just a few days before the scheduled representation
election on June 9, Respondent's overriding concern was
Shultis' known interest in and support of the Union Ad-
mittedly, at its election strategy meeting on June 2
Respondent's officials and supervisors discussed the possi-
bility of a close vote in the election in which one or two
votes might make the difference in the outcome Moreover,
the participants at this meeting discussed and weighed the
potential vote of each eligible employee for or against the
Union Admittedly all agreed that Shultis' vote would be
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Union In these circumstances I find the conclusion
inescapable that Respondent was motivated, at least in
part, to rid itself of a known union supporter and thus
enhance its chances of preventing the Union from winning
the election and becoming the certified bargaining repre-
sentative of its employees
Although Respondent may have had reason enough to
discharge Shultis in the past for any or all of the reasons
asserted at the hearing, it is impossible, in view of all the
circumstances already described, to accept Respondent's
assertion that Shultis' absence on June 2, and his alleged
malingering on that date, was the real reason for his dis-
charge on June 3 I attach significance to the fact that
Hester, upon learning early in the morning of June 2 that
Shultis had reported in sick, made no effort to contact
Shultis until the election strategy meeting that afternoon
Moreover, although Hester was unsuccessful in his at-
tempts to reach Shultis by phone during the meeting and
therefore could not have ascertained whether or not Shultis
was or was not actually sick, it was decided then and there
by Yelvington and/or Hester to discharge Shultis the fol-
lowing day if Shultis "did not have a good excuse " The
next day, June 3, Hester approached Shultis at his work
station to obtain an explanation for his absence the day
before, all as planned by Yelvington and Hester at the
meeting the day before When Shultis told Hester he had
been sick, Hester said to Shultis that he had tried unsuc-
cessfully to reach him three times by phone Shultis replied
that he may have been out of hearing distance of the phone
at the time "either down in the basement washing my
clothes or out back feeding the dog " To this Hester retort-
ed "That is a very flimsy excuse," whereupon Shultis re-
sponded "Well, that is the truth " Hester then stated to
Shultis"`Well, I don't want it to ever happen again " Thus
Hester apparently accepted, at least momentarily, Shultis'
statement that he had been sick and also was aware, from
Shultis' explanation, that his illness was of a mild nature
In any event Hester apparently was not then and there sure
enough that Shultis' explanations were not valid since he
permitted Shultis to go back to work with the warning that
he didn't want this sort of thing to happen again There is
no other explanation from the record testimony for
Hester's hesitation in firing Shultis when he first ap-
proached him at work According to Hester, after leaving
Shultis he returned to his office, began to think about "all
the additional problems I had at that property," returned
to Shultis and told Shultis he could no longer "continue to
tolerate his actions" and then terminated Shultis' employ-
ment Whether Hester needed time to reflect, or sought
further advice and counseling, cannot be ascertained from
this record What is clear is that Hester did not fire Shultis
because Shultis' explanations concerning his illness were
not valid-or even that Hester believed such explanations
invalid At no time did Hester challenge Shultis' statement
that he had in fact been sick, although mildly, to the extent
he was able to perform certain household duties It is also
clear from Hester's own testimony that Shultis would not
have been fired if Hester had believed Shultis in fact was
sick and not malingering Yet Hester testified he reached
the conclusion Shultis was malingering based solely on the
fact that he did not answer his phone when Hester tried to
reach him on the three occasions over a period of 1 hour
and 15 minutes during Respondent's election strategy
meeting Obviously Hester could not have determined
Shultis' state of health from the unsuccessful phone calls
Nothing thereafter occurred which disproved Shultis' state-
ments regarding his illness It is true of course that Hester
could have lawfully fired Shultis on his belief that Shultis
was guilty of malingering if Shultis' union interest and sup-
port was of no consideration I find however Hester's, and
therefore Respondent's, asserted reasons for discharging
Shultis to be pretextual of the more overriding reason al-
ready discussed above As Shultis' discharge was motivat-
ed, at least in part, because of Respondent's desire to rid
itself of a known union supporter and a potential vote for
the Union in the upcoming representation election, I find
Respondent's discharge of Shultis on June 3 to be in viola-
tion of Section 8(a)(3) of the Act
IV THE EMPLOYERS OBJECTION TO CONDUCT AFFECTING RESULTS
OF THE ELECTION
As noted above the election in this matter was conduct-
ed on June 9, with the Union receiving six votes for repre-
sentation, four against, and one challenged ballot On June
16, the Employer timely filed the subject objections, as fol-
lows
Objection to Conduct of Election
During the time the polls were open, in the polling place
and in the presence or earshot of other employees, a dis-
charged employee stated that he had been discharged be-
cause the Company did not want him to vote in the elec-
tion This statement has interfered with the conduct of the
election and has affected the results thereof in such a man-
ner as to render it a nullity
Objection to Conduct Affecting the Results of the
Election
1 On or about the middle of April 1975, after the peti-
tions herein were filed, the Umon, by its officers and
agents, threatened employees with physical harm should
they fail to engage in postelection union activities, and
such threats were intended to create an atmosphere of fear
should they fail to support the Umon and its activities
2 By these and other acts and conduct, the Union has
interfered with the holding of a free and fair election
On August 19, the Acting Regional Director of the
Board's Chicago Regional Office issued a report on objec-
tions and order consolidating cases and notice of consoli-
dated hearing in the subject proceeding In this report the
Acting Regional Director noted that the Employer had,
with his approval, withdrawn Objection 1
In support of Objection 2 the Employer presented the
testimony of two witnesses, Monfils and Gigstead, mother
and daughter respectively, both of whom were still em-
ployed by the Employer at the time of the hearing
The thrust of the objection is that the Union's Organizer
Joseph Quiring, on one occasion, during a union meeting
with several of the Employer's employees, threatened the
LINCOLN PROPERTY COMPANY C & S, INC 501
employees with physical harm should any of them attempt
to cross a picket line if such a picket line was established at
the Employer's place of business
Monfils testified that during a union meeting in mid-
April, Union Organizer Quiring, in response to a question
from an employee, stated that in the event of a strike, Re-
spondent could bring in replacements "he referred to them
as scabs He (Quinng) mentioned another complex that
had been on strike, and he said they had brought mgger-
scabs to work, and they had gotten the shit kicked out of
them, and he also said if anyone crossed the picket line
that they could get the shit kicked out of them "
Gigstead's testimony regarding Quiring's alleged remark
about picket line violence is almost word for word identical
to that of Monfils Gigstead testified as follows "He (Quir-
ing) said if anyone had tried to cross a picket line where
there was a strike going on they could get the shit kicked
out of them"
Quiring denied making the remarks attributed to him by
Monfils and Gigstead Quiring testified that the meeting
referred to by the two employees above was held the first
week in May at the Three Fountains project in the rental
office in Rolling Meadows, Illinois, that employees Urba-
nowisz, Riha, Beatty, Jones, Gigstead, Monfils, and Ander-
son attended The purpose of the meeting, according to
Quiring, "was to explain the position of having to go to an
election through NLRB", to explain about supervisors
being excluded from the bargaining unit, negotiation pro-
cedures, voting procedures, "dues, assessments, fines and
violations " With respect to strikes, Quiring testified he
told the employees "first of all it would not be a strike
unless you and the (other) employees elect not to accept
whatever negotiations were reached between management
and union " that "if you did vote for a strike they (the
Employer) could hire replacements " He testified he
made it clear "everybody" had the free choice to cross or
not cross a picket line Further, that as to a possible strike
he told the employees "You are the people that have the
say-so on that " He recalled hearing someone from the au-
dience using the word "breaking" while he was talking
about strikes and the rights of employees during strikes but
did not catch the whole sentence He recalled talking about
a recent strike at another employer's premises but denied
using the words "tugger" or "nigger scabs" but did recall
hearing these remarks from some of the employees in the
audience
Concluding Findings
Based on all the credible testimony I am persuaded and
find that Quirmg did not make the remarks attributed to
him by Monfils and Gigstead I base this finding almost
exclusively on credibility resolutions Based primarily on
their demeanor on the witness stand I discredit the entire
testimony of Monfils and Gigstead Both Monfils and Gig-
stead testified as if they had memorized their lines Both
had practically no recall of anything that was said at the
meeting except the one alleged remark by Quiring about
"tugger scabs" and that anyone crossing a picket line
"could get the shit kicked out of them " Thus Monfils
couldn't recall if she attended a union meeting subsequent
to the one she testified about, couldn't recall who attended
the meeting in question except one other employee besides
her daughter, and nothing else that Quiring said during the
meeting which she finally admitted lasted more than an
hour Gigstead on the other hand recalled the names of six
employees besides Monfils and Quiring, presumably all
who attended the meeting She estimated the meeting last-
ed about 2 hours Unlike Monfils, she recalled that other
employees talked about picket line violence, not just Quir-
ing Like Monfils, however, she could recall nothing specif-
ically being said at the meeting other than the one remark
about scabs getting beat up which she attributed solely to
Quiring After exhaustive interrogation Gigstead testified
she and Monfils, along with two other employees, went to
see Mr Yelvington in his office the day after the election to
let him know they were unhappy with the outcome of the
election, that Mr Yelvington was busy at the time and
suggested they return later, that 2 or 3 days later she and
Monfils returned to Mr Yelvington's office but that most
of her conversation was with the Employer's attorney who
was with Yelvington at the time, that again she and Mon-
fils wanted Respondent to know they were not "happy that
the union won the election " Once again, at this second
encounter with management, there is nothing in the testi-
mony of either witness that anything was said at the time
about their concern over Quiring's alleged remark regard-
ing picket line violence Their recollection of only the one
alleged remark by Quiring and almost complete lack of
recall of anything else occurring or being said at the union
meeting defies believability
Contrary to Monfils and Gigstead, Quiring testified in a
forthright and candid manner with excellent recall of what
went on and was said at the particular union meeting in
question He gave details of what occurred including his
instructions to those employees present about organiza-
tional procedures, election procedures, and his responses to
questions about strikes and picket lines He denied he used
the words "nigger scabs" and denied he made any such
remark that employees who crossed a picket line "could get
the shit kicked out of them " His testimony in this respect
was corroborated by at least one other employee present at
the meeting Moreover, Gerald Jones, an employee who
attended this same meeting, admitted it was he, not Quir-
ing, who made the remarks Monfils and Gigstead attribut-
ed to Quiring He testified he and another employee, Mark
Beatty, were in a somewhat playful mood at the meeting,
being fortified with several bottles of beer beforehand He
testified as follows
Q Do you recall anyone using the phrase "getting
the shit kicked out of them"
A Yes, I might have used it a couple of times I
know Mark did a couple of times
When asked if he recalled Quiring using the term "nigger
scab" he replied emphatically "never "
Based on all the above considerations I fully credit
Quiring's denial and find that he did not make the singular
remarks attributed to him by Monfils and Gigstead Ac-
cordingly I shall recommend that the Employer's Objec-
tion 2 be overruled Further, since the Union has obtained
a majority of the valid votes cast in the election, that the
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union be certified as the exclusive bargaining representa-
tive of the Employer's employees in the unit found to be
appropriate in the Stipulation for Certification Upon Con-
sent Election
CONCLUSIONS OF LAW
1 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 Respondent has violated Section 8(a)(1) of the Act by
promising employees benefits in order to influence their
vote in the June 9, 1975, representation election as alleged
in paragraph VI(a) of the complaint
4 Respondent has not violated Section (a)(1) of the Act
as alleged in paragraph VI(b) of the complaint
5 Respondent has violated Section 8(a)(3) of the Act as
alleged in paragraph VII of the complaint by discharging
James Bryon Shultis because of his interest in and support
of the Union
6 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
REMEDY
In order to remedy the unfair labor practices found here-
in my recommended Order will require Respondent to
cease and desist therefrom and take certain affirmative ac-
tion as set forth in the following Order
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, and pursuant to Section
10(c) of the Act, I hereby recommend the following
ORDER4
Lincoln Property Company C & S, Inc, Managing
Agent for Lincoln Colony Associates, Lincoln Gatehouse
Associates, Lincoln Property Partners I and Willow Road
Associates, Arlington Heights, Illinois , its officers , agents,
successors , and assigns, shall
1 Cease and desist from
4 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
(a) Granting, expediting, or announcing new and/or ad-
ditional benefits to its employees to discourage their inter-
est in or support of the Union
(b) Discharging or otherwise discriminating against any
of its employees for engaging in union or other protected
concerted activity
2 Take the following affirmative action necessary to ef-
fectuate the policies of the Act
(a) Offer James Bryon Shultis full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent job, without prejudice to seniority or other
rights and privileges, and make him whole for any loss of
pay suffered by reason of his discharge It is further or-
dered that such backpay be computed in the manner pre-
scribed in F W Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co, 138 NLRB 716
(1962)
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security records, timecards, personnel
records and reports, as well as all other records necessary
to analyze and compute the amount of backpay due here-
under
(c) Post at its apartment communities located at 475
East Enterprise Drive, Mount Prospect, Illinois, 2134
South Goebert Road, Arlington Heights, Illinois, and 806
Old Willow Road, Wheeling, Illinois, copies of the at-
tached notice marked "Appendix " 5 Copies of said notice,
on forms provided by the Regional Director for Region 13,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith
IT IS FURTHER ORDERED that the Employer's objections be
overruled and that Janitors Union, Local No 1 of the Ser-
vice Employees International Union, AFL-CIO, be certi-
fied as the exclusive bargaining representative of the
Employer's employees in an appropriate bargaining unit as
set forth in the Stipulation for Certification Upon Consent
Election dated April 25, 1975, and identified in this record
as Board Exhibit 1(a)
5 In the event the Boards 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