River West Development

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 591 (N.L.R.B. 1993)

591
311 NLRB No. 62
RIVER WEST DEVELOPMENT
1 In agreeing with the judge that a bargaining order is warranted,
we rely solely on the reasoning of NLRB v. Gissel Packing Co., 395
U.S. 575 (1969), and not on the Respondent’s lack of good faith.
Contrary to our dissenting colleague, we find that terminating one
of the three unit employees for discriminatory reasons immediately
following an explicit and unlawful threat to do precisely that and an
unlawful interrogation, is sufficient to warrant issuance of a bar-
gaining order. See Soil Engineering & Exploration, 269 NLRB 55,
79 (1984). Swiftly responding to the Union’s recognition demand,
the Respondent’s co-general partner discharged the leading union ad-
herent, the employee who had contacted the Union for authorization
cards which he and another coworker signed. Particularly in a small
unit, the impact of discharging one-third of the unit has a greater
effect and is likely to chill Sec. 7 rights in the entire unit. See East-
ern Steel Co., 253 NLRB 1230, 1241 (1981), enfd. 671 F.2d 104
(3d Cir. 1982). We do not think that top management’s unlawful
conduct will be dissipated over time or be lost on the replacements
for the unit employees. In our experience, where an employer dis-
charges one-third of the unit for union activity, the unit employees,
both new and old, will know about it, and the powerful underlying
message—that this employer will not readily suffer its employees to
join the union—cannot be canceled by reinstating the dischargee
with backpay after the fact. This is particularly so where, as here,
the manager who committed the unfair labor practices is still in con-
trol of the labor relations of the unit employees. In these cir-
cumstances, the possibility of erasing the effects of the Respondent’s
unfair labor practices is slight and a bargaining order is thus the only
means of restoring the status quo ante.
River West Development Limited Partnership and
Service Employees Local No. 1, Service Em-
ployees International Union, AFL–CIO. Case
13–CA–30048
May 28, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On May 21, 1992, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, River West Development
Limited Partnership, Chicago, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
MEMBER OVIATT, dissenting in part.
I agree that the Respondent violated Section 8(a)(1)
when it coercively interrogated employee Pavlovic and
threatened him with discharge because he engaged in
union activity, and Section 8(a)(3) when it subse-
quently discharged Pavlovic because of his union ac-
tivity. I would not, however, issue a bargaining order.
In my opinion the evidence is insufficient to establish
a propensity on the part of the Respondent to violate
the Act. I find that one violation of Section 8(a)(3) is
unlikely to convey to the other employees that the
same action will happen to them. Further, any anxiety
the employees may harbor over the Respondent’s in-
tentions will be ameliorated by the Board’s order rein-
stating Pavlovic and its notice posting requirement. I
would therefore not issue the bargaining order and
would dismiss the 8(a)(5) allegation.
Aaron Karsh, Esq., for the General Counsel.
Ralph A. Morris and Mark Fishman, Esqs., for River West
Development Limited Partnership (Respondent).
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was litigated before me at Chicago, Illinois, on
March 2 and 3, 1992, pursuant to charges filed by Service
Employees Local No. 1, Service Employees International
Union, AFL–CIO (the Union), on February 2, 1991, and
served on February 27, 1991, and complaint issued Sep-
tember 30, 1991, alleging Respondent threatened and interro-
gated employees in violation of Section 8(a)(1) of the Na-
tional Labor Relations Act (the Act); terminated and failed
to reinstate Paul Pavlovic on February 21, 1991, in violation
of Section 8(a)(1) and (3) of the Act; and refused to bargain
with the Union in violation of Section 8(a)(1) and (5). The
Respondent denies the commission of unfair labor practices.
On the entire record, the testimonial demeanor of the wit-
nesses testifying before me, and the able posttrial briefs of
the parties, I make the following
FINDINGS AND CONCLUSIONS
I. BUSINESS OF RESPONDENT
Respondent is an Illinois partnership engaged in the busi-
ness of ownership of apartments with an office at 925 West
Huron Street, Chicago, Illinois. During the calendar year pre-
ceding the issuance of the complaint in this proceeding, Re-
spondent derived gross revenues in excess of $500,000 from
the operation of the business, and purchased and received
products, goods, and materials from companies located in the
State of Illinois who purchased and received products, goods,
and materials valued in excess of $5000 directly from points
outside the State of Illinois. Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See, e.g., Staco, Inc., 244 NLRB 461 (1979).
2 Dorothy Shamrock Coal Co., 279 NLRB 1298, 1299 (1986).
3 Hereafter all dates are 1991 unless otherwise specified.
4 The card authorizes the Union to represent the signer ‘‘for the
purpose of collective bargaining with my employer, and to negotiate
and conclude all agreements respecting wages, hours, and other
terms and conditions of employment. I understand that this card can
be used by the Union to obtain recognition from my employer with-
out an election.’’
III. SUPERVISORS AND AGENTS
Marc Berger is a cogeneral partner of Respondent and an
admitted agent of Respondent within the meaning of Section
2(13) of the Act.
Tina Partipilo is alleged to have been, at times material to
this proceeding, a property manager and statutory supervisor
and agent of Respondent. The parties stipulated that Partipilo
was Respondent’s employee at its 925 West Huron Street,
Chicago, Illinois facility, where Paul Pavlovic worked from
January 1 through March 1, 1991. Partipilo’s employment by
Respondent continued until her discharge on or about No-
vember 15. She did not testify.
Respondent denies Tina Partipilo was its supervisor or
agent within the meaning of Section 2(11) and (13) of the
Act, points out General Counsel has the burden of proving
such status,1 and relies on the testimony of Marc Berger that
Partipilo’s primary responsibility was to ‘‘be involved in
resident relations, collecting rents and to coordinate with the
assistant manager of the leasing of the apartments.’’
General Counsel argues, and I agree, that the evidence
supports a finding Tina Partipilo was a 2(11) supervisor of
Respondent at the times material to this proceeding because
she issued daily work assignments to the mainte-
nance/janitorial employees, issued written warnings to em-
ployees, and granted time off, all without any prior consulta-
tion with Marc Berger or any other supervisor, management
official, or agent of Respondent. Partipilo was, as Section
2(11) prescribes, an individual with authority to exercise
independent judgment in the interest of Respondent to, at the
very least, assign, discipline, and responsibly direct employ-
ees. Add to this that she granted Pavlovic leave on his re-
quest without checking with superior authority, recommended
the discharge of Keith Jones to Berger who effected the dis-
charge without further investigation, and there is no persua-
sive evidence of any direct supervision of Pavlovic and the
janitors from anyone but Partipilo, and the evidence clearly
preponderates in favor of a finding Partipilo was a 2(11) su-
pervisor whose conduct may be imputed to Respondent.2
With respect to Respondent’s argument in its brief that
Partipilo’s duties were only administrative as of February 11,
there is no evidence other than Marc Berger’s ipse dixit to
that effect to support this contention that her duties and au-
thority changed by that date. Accordingly, the contention is
rejected as unsupported by credible probative evidence.
IV. ALLEGED UNFAIR LABOR PRACTICES
The conduct described took place at River West Lofts
(Lofts), an apartment building owned by Respondent at 925
West Huron Street, Chicago, Illinois. Respondent contracted
with Draper and Kramer, Incorporated to be the managing
agent for the Lofts facility in the late 1980s. Thereafter,
Draper and Kramer managed the property, including mainte-
nance and janitorial functions even though the employees
doing this were employees of Respondent. By letter dated
January 23, 1991,3 Draper and Kramer notified Respondent
it was terminating its management agreement on February
21. On or about January 28, Draper and Kramer turned over
the tenants’ security deposits to Respondent and ceased its
management function. Respondent’s partners then formed
River West Management, Inc. (Management, Inc.) with Marc
Berger as its president to manage Lofts. Tina Partipilo, Paul
Pavlovic, Keith Jones, and Barbara Dukala remained Re-
spondent’s employees after the management corporation was
formed.
Paul Pavlovic became the maintenance engineer at the
Lofts in March 1990. He was hired by Draper and Kramer
but was on Respondent’s payroll and was its employee until
his dismissal here at issue. Late in December 1990, Pavlovic
estimates during the last 5 workdays, he told Partipilo he was
going to visit a union to ascertain how union benefits com-
pared to those received by Respondent’s employees. Partipilo
told him he could go to the Union, but there was no dif-
ference in benefits. Pavlovic said he did not believe that and
was going to find out what the truth was.
On January 11, Pavlovic visited the union offices, talked
to Carl Rocconi, a union representative, about joining the
Union, secured two union authorization cards and other lit-
erature, and returned to work. He signed an authorization
card4 on January 11 and mailed it to the Union. There is no
evidence it was not received in the normal course of the
mail, and I conclude it was so received.
When he returned from visiting Rocconi on January 11,
Pavlovic, either that day or the next workday, told Partipilo
what he had done. She asked why he did not find another
job and leave Respondent if he wanted to be in the Union.
He replied that he wanted to stay with Respondent and re-
ceive everything that janitors who were union members re-
ceived. Between that date and February 11, Pavlovic repeat-
edly asked Partipilo why the Respondent would not put its
employees in the Union. Her standard reply was that he
could not be in the Union there, why did he want to be, and
he should find an employer who wants him to be in the
Union. During this period, Pavlovic secured a signed union
authorization card from janitor Keith Jones on January 21.
The Union’s counsel dispatched a letter on February 7, re-
ceived by Respondent on February 11, reading, in relevant
part, as follows:
River West Lofts
925 W. Huron St.
Chicago, Illinois 60622
Re: Draper & Kramer d/b/a
River West Lofts
925 W. Huron St.
Dear Sir or Madam:
This office represents Service Employees Local No.
1. On behalf of the Union, we hereby request recogni-
tion of the unit consisting of your janitorial and mainte-
nance employees performing such services at River
West Lofts, 925 W. Huron St. in Chicago. Upon the re-
quest of your janitorial and maintenance employees that
the Union represent them as their collective bargaining
agent, the Union is today filing a Petition for Certifi-
593RIVER WEST DEVELOPMENT
5 Rossmore House, 269 NLRB 1176 (1984), overruled cases hold-
ing employer questioning of open and active union supporters about
their union sentiments necessarily interferes with, restrains, and co-
erces employees in the exercise of Sec. 7 rights in the absence of
threats or promises.
cation of the unit with the National Labor Relations
Board.
In the event that you are prepared to recognize the
Union and negotiate a Labor Agreement containing the
terms and conditions of employment of your employ-
ees, please call this office at the earliest possible time
to arrange for a meeting with representatives of the
Union.
We look forward to hearing from you.
The letter clearly confirmed the knowledge to Berger that
Respondent’s employees were involved in union activity.
The parties stipulated that from January 14 to February 20
a unit appropriate for purposes of collective bargaining with-
in the meaning of Section 9(b) of the Act was
All full-time and regular part-time janitorial, mainte-
nance, and cleaning employees employed at Respondent
River West Development Limited Partnership’s facility
at 925 W. Huron Street, Chicago, Illinois; but excluding
office clericals, guards and supervisors as defined in the
Act, and all other employees.
The parties also stipulated that Paul Pavlovic, Keith Jones,
and Barbara Dukala were the only employees in this unit
during the period described and Respondent has not recog-
nized or bargained with the Union as the exclusive bargain-
ing representative of the unit employees since February 11.
Partipilo received the Union’s letter and called Pavlovic
into her office, on February 11 or 12, showed him the letter,
and asked if he knew anything about it. Pavlovic’s testimony
concerning what else was said is confused. Some of this is
due, I believe, to language difficulty of Pavlovic making his
testimony almost impossible to decipher in some instances.
For instance, he states Partipilo, after showing him the letter,
responded as follows: ‘‘She showed me why you out, why
you bullshit with the union. She said no time to blame to
do now.’’ All one can say with any degree of certainty from
this testimony is that Partipilo asked him why he ‘‘bullshit’’
with the Union. At this point, Pavlovic’s recollection seemed
to fail. Over objection, General Counsel was permitted to at-
tempt to adduce further testimony on the meeting. Asked if
he remembered anything else he said, Pavlovic recollected
saying he always wanted to be in the Union, joined it, and
they were responding to his wish. This, he says, caused
Partipilo to say the Union is bullshit and its pension plan was
only $200, to which he replied that was fine if he got $200
more in pension. At this point, recalls Pavlovic, Partipilo re-
minded him she had said he would not be in the Union there
and he should first find another job and not give her any
more headache. He then again testified he remembered no
more, but, in response to a leading question over objection,
says Partipilo said, ‘‘I know you know you can be fired too
because of this.’’
Keith Jones testified that he was at the facility on February
12 at 9 a.m. when he saw Pavlovic standing in the doorway
of Partipilo’s office and heard her say to Pavlovic ‘‘what was
he trying to do get fired. That he was bring trouble to the
job,’’ which drew Pavlovic’s statement to the effect he was
trying to get better benefits. Shown his pretrial affidavit
dated March 12, 1991, and stating he overheard Partipilo and
Pavlovic at about 2 p.m. on February 12, Jones changed his
testimony to be that he now believes it happened at 2 p.m.
Standing alone, this shift of time from 2 p.m. pretrial, 9 a.m.
at trial, and then back to 2 p.m. would raise a question of
testimonial accuracy, but more serious is the inconsistency in
testimony posed by Pavlovic’s testimony his conversation
was behind closed doors rather than as Jones describes it.
Both cannot be correct, nor can both be correct concerning
what Partipilo said. Her absence as a witness makes the
question more difficult, but no adverse inference is drawn
from Respondent’s failure to call her as a witness because
the evidence is that Partipilo was discharged for cause. Al-
though it is troubling that Pavlovic had considerable dif-
ficulty in recalling what Partipilo said, I do not believe this
is enough to defeat his recollection, tardy and prompted
though it was. Pavlovic was a more impressive witness than
Jones in terms of testimonial conviction and believability and
his version is credited for that reason and the further reason
it is consistent with the tenor of the conversations he earlier
had with Partipilo. Pavlovic did not impress me as one who
would deliberately put words in Partipilo’s mouth that she
did not speak, although those words may well have suffered
in the transition due to Pavlovic’s occasional language prob-
lems. Accordingly, I conclude that Partipilo did violate Sec-
tion 8(a)(1) of the Act by advising him he could be fired
‘‘because of this,’’ which I find was a reference to the
Union’s letter. Such a statement clearly implied his union ac-
tivity might cause his discharge, a chilling message reason-
ably tending to interfere with, restrain, and coerce him in the
exercise of his Section 7 right to seek union representation.
Furthermore, even though he was the known union organizer
at the facility and often engaged Partipilo in conversation
wherein he advised her of his quest for union representation
and fully explained the extent of his activity, I do not believe
her interrogation concerning what he knew about the Union’s
letter was of a type permissible under Rossmore.5 Here it
was accompanied by a plain threat which cast a coercive pall
over her other statements, and it was not confined to a ques-
tion of Pavlovic’s sentiments as in Rossmore. Accordingly,
I conclude and find Partipilo here coercively interrogated
Pavlovic in violation of Section 8(a)(1) of the Act.
Paul Pavlovic was discharged by Marc Berger at about
7:30 a.m. on February 21. According to Berger, when ques-
tioned by counsel for the General Counsel as an adverse wit-
ness, he told Pavlovic that although he appreciated
Pavlovic’s past efforts on Respondent’s behalf it was in the
best interest of Management, Inc. to put its own new team
in place. Berger further stated he told Pavlovic that from his
observation of the condition of the building and the lack of
maintenance he believed someone must be held accountable
in the future and, ‘‘I did not want to have the inner play that
my superiors, the other management company were aware of
certain things.’’ This cryptic remark is unexplained. Pressed,
Berger added that he expressed displeasure with Pavlovic’s
conduct in calling outside contractors to perform what
Pavlovic should have been able to do, and also told Pavlovic
he did not believe Pavlovic had control over supplies located
on the premises because he, Berger, had discovered light
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The record should probably read ‘‘circumstances.’’
7 Pinkerton’s, Inc., 295 NLRB 538 (1989); Dorothy Shamrock,
supra; NLRB v. Elliott-Williams Co., 345 F.2d 460 (7th Cir. 1965),
enfg. 143 NLRB 811 (1963).
bulbs in a storage room after Pavlovic told him there were
none in the building. Called as a witness by Respondent on
the following day, Berger testified that he now recalled he
told Pavlovic, ‘‘Paul, the partnership appreciates what you
have done on its behalf, but going forward we feel we need
somebody who can take the building out from where it is
and get it to a more stronger individual,’’ and mentioned the
light bulb incident as one of the straws that broke the cam-
el’s back. He then told Pavlovic that he would try to help
him get another position and might need his cooperation in
a possible future lawsuit with Draper and Kramer.
Pavlovic testified that Berger handed him his pay and va-
cation checks and said it was Pavlovic’s last day to work
there. This, says Pavlovic, shocked him, and he asked why
he had not been given prior notice, which drew no answer.
He continues that Berger told him the dismissal was not
Pavlovic’s fault, he was a victim of ‘‘some transactions,’’6
Berger had to do it, and Berger would find him a job
through friends Berger had at another company. Pavlovic
states Berger gave him no other reasons for the termination,
and denies that he ever discussed burnt out light bulbs in or
near elevators with Berger, or ever talked to Berger about
outside contractors, discussed the organization of stockrooms,
or talked to Berger about air filters, fan belts, or exhaust ris-
ers. He also denies ever running out of light bulbs.
Pavlovic and Berger agree that Berger was nervous during
this meeting, due to his inexperience at terminating employ-
ees according to Berger. Considering that Berger was admit-
tedly not at ease in his role as the carrier of bad news, and
Berger’s testimony that he solicited Pavlovic’s cooperation if
a legal confrontation with Draper and Kramer ensued, it is
likely that Berger did make an effort to maintain good rela-
tions with Pavlovic by placing the blame for the discharge
primarily on business necessity. While he may not have, as
Pavlovic testified, expressly assured Pavlovic his faults were
not the reason for the discharge, his tack in alluding to a
need for change for the future while at the same time ex-
pressing his appreciation for Pavlovic’s efforts plainly con-
veyed, especially when linked with personal assurances of
assistance in gaining other employment, the message that
Pavlovic’s performance was not the reason for the separation.
This, I believe, is the message Pavlovic heard, even though
perhaps not in those exact terms. The combination of the
message of appreciation for Pavlovic’s work, which fairly
implies satisfactory performance because one does not give
appreciation for poor performance, the emphasis on business
necessity, and the assurance of employment help, all nerv-
ously delivered by a man uncomfortable with his task, is in-
compatible with the statements of displeasure Berger claims
to have made concerning the light bulbs and the subcon-
tracting. Pavlovic was the more believable in reciting the
conversation between the two and is credited that he was not
confronted by Berger with any criticism of his work per-
formance. In this latter connection it is noteworthy that
Pavlovic never received any criticism, warnings, or discipline
concerning his work performance during his tenure of em-
ployment which commenced in early 1990 and, the day after
his discharge, Tina Partipilo, then working directly for Marc
Berger who had taken over management of the premises,
issued Pavlovic a letter of recommendation on Respondent’s
letterhead noting that he had been ‘‘conscientious, willing
and extremely capable as the Building Engineer for River
West Lofts’’ and that she would not hesitate to hire him
again.
Pavlovic’s enthusiastic efforts to secure union representa-
tion were repeatedly made known to his supervisor, Tina
Partipilo, commencing with his visit to the Union and the
signing of a union authorization card on January 11. She re-
peatedly tried to discourage his efforts in that direction by
telling him he could not be represented by a union while in
Respondent’s employ, should look for work with a unionized
employer if he seriously wanted such representation, and,
with the Union’s request for recognition before her, that he
could be fired for his involvement. In addition to the well-
established principal that Partipilo’s knowledge of and hos-
tility toward Pavlovic’s union activism is imputable to Re-
spondent as a matter of law,7 Respondent maintains an office
in the Lofts and the probability that a supervisor located in
that office and possessing the knowledge of union activity
that Partipilo had would not have discussed within that office
or reported such activity to her employer at all is minimal.
She was aware of, irritated by, and attempted to discourage
Pavlovic’s union activity a full month before the union letter
was received, and I do not believe she held her tongue for
a full month before reporting Pavlovic’s conduct to an em-
ployer she knew, as her statements to Pavlovic show, was
not favorably inclined toward union representation of its em-
ployees. Berger’s denial of any awareness of Pavlovic’s
union activity, or any union activity, prior to February 11 is
not credited. I find he individually and Respondent as an en-
tity were both aware of Pavlovic’s union activity probably
commencing on or about January 11 and certainly well be-
fore February 11.
When Respondent formed its own management company
with Marc Berger as its president he admittedly knew little
about the details of building maintenance. Suddenly he was
responsible for the management work force put in place by
Draper and Kramer. According to Berger he focused on
Pavlovic because he wanted employees he could hold ac-
countable for their responsibilities. By so doing he ignored
Partipilo, the very person whose job, among other things,
was to assign and monitor the performance of Pavlovic and
the janitors. It does not appear he consulted with Partipilo or
made any particular effort to find out just exactly how she
and those she supervised scheduled or performed their duties.
An obvious example is his effort to blame Pavlovic for ex-
cessive subcontracting when Pavlovic’s uncontroverted and
credited testimony is that Partipilo authorized each sub-
contract as it occurred. Logic dictates it would be the man-
ager not the minion who would be responsible for so obligat-
ing Respondent’s funds. Similarly, Berger lays the fault for
using fixtures and parts from one apartment to repair another
on Pavlovic, but here again Pavlovic is uncontroverted and
credited that Partipilo instructed him to so do. In this connec-
tion I must note that I do not believe Pavlovic was credible
when he remembered on the second day of trial what he had
denied the day before, i.e., that he in fact did savage apart-
ment 111 for parts and appliances, albeit at Partipilo’s in-
595RIVER WEST DEVELOPMENT
8 A videotape made on February 12 confirms that as of that date
apartment 111 was missing cabinet and closet doors, shelving, the
sink door, the toilet, pieces of the stove, light fixtures and was, gen-
erously, a wreck. The maintenance and hot water rooms were in dis-
array with supplies and other items scattered around the floor.
9 It is not uncommon nor improper to credit a witness on some
matters but not on others. NLRB v. Universal Camera Corp., 179
F.2d 749 (2d Cir. 1950).
10 Wright Line, 251 NLRB 1083 (1980); NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
11 NLRB v. Gissel Packing Co., 395 U.S. 575, 614–615 (1969).
struction.8 Similarly, he had suspicious difficulty in recol-
lecting whether the apartment keys were located in one or
more cases or whether there was a master key in a key cabi-
net. Notwithstanding these deficiencies in his testimony,
Pavlovic is credited on those matters where he appears cer-
tain and candid and is not contradicted by credible testimony
or other relevant evidence.9
Returning to events prior to the dismissal of Pavlovic,
Berger embarked on a walk through the Lofts premises, on
or about February 1, with Stanley Panocha, a building engi-
neer then employed by a firm managing another of Respond-
ent’s properties. They found dirty corridors, carpets, and
stairways as well as missing light bulbs and door knobs and
door stops. The storage areas were disorganized and the box
housing keys to apartments left open. Additionally, as pre-
viously mentioned, apartment 111 had been denuded of fix-
tures and parts taken to repair other locations. After this
walkthrough, Berger asked Panocha to recommend a quali-
fied person to replace Pavlovic. Panocha recommended Rene
Rivera who was interviewed by Berger on February 9, and
who accepted Berger’s offer of the position of chief mainte-
nance engineer at the Lofts and became Respondent’s em-
ployee on February 23. Prior to the interview with Rivera,
Berger had, on February 7, interviewed Lenny Carrao, also
recommended by Panocha, and hired him as an independent
contractor to do maintenance work. Carrao commenced
working on February 11. For a time, Mrs. Panocha was em-
ployed as an outside contractor to do cleaning. Respondent
also hired Helena Byisewicz to do cleaning for a couple of
months.
Panocha became an employee of River West Management,
Inc. on August 17. Tina Partipilo was discharged on or about
November 15 from her position as building manager and was
told she did not reflect what the management company need-
ed.
Conclusions re Pavlovic’s Discharge
Respondent was aware of Pavlovic’s prounion activity, ad-
vised him it would do him no good, threatened him with
possible discharge because of these activities. Ten days
thereafter he was discharged by Berger without any inquiry
of his superior Partipilo concerning where responsibility for
his perceived failure to satisfactorily perform lay, or other in-
vestigation. There is no evidence Partipilo was, even though
much later discharged, taken to task or even questioned
about the extreme shortcomings in maintenance which were
her ultimate responsibility as the building manager. Pavlovic
received no prior warning concerning his performance, was
not asked about perceived deficiencies in his work, and was
not confronted on discharge with his alleged failings. The
message delivered by Berger on Pavlovic’s discharge did, as
Pavlovic perceived, in effect exonerate Pavlovic of blame
and vaguely focused on the need for better management.
These items taken together are enough to support an infer-
ence that Pavlovic’s enthusiastic union activity was a moti-
vating factor in the decision to dismiss him. That being the
case, Respondent is obliged to show by a preponderance of
the evidence that Pavlovic would have been dismissed in the
absence of union activity.10 This is a close issue. Respondent
has shown that maintenance in the building was generally
haphazard and slipshod, and that it certainly had good reason
to take steps to correct this situation, but the singling out of
Pavlovic as the sole party at fault is not convincing. Al-
though it is not my prerogative to substitute my business
judgment for that of the Respondent, the failure to inves-
tigate who was in fact responsible for conduct imputed to
Pavlovic, the dismissal of Pavlovic while retaining Partipilo
who had overall responsibility for the building’s condition,
the assurances given to Pavlovic that he was an appreciated
employee and Berger would assist him in securing other em-
ployment, and the absence of prior warnings or correctional
instruction seriously erodes Berger’s professed reasons for
the separation of Pavlovic to the extent it cannot fairly be
said Respondent has clearly shown it would have dismissed
Pavlovic in the absence of his union activities. Accordingly,
I find General Counsel has proved by a preponderance of the
credible evidence that Respondent discharged Pavlovic in an
effort to discourage union membership and thereby violated
Section 8(a)(3) and (1) of the Act.
The Refusal to Bargain
When the Respondent received the Union’s recognition re-
quest on February 11, two of the three employees in the stip-
ulated appropriate unit had signed valid authorization cards
designating the Union as their agent for purposes of collec-
tive bargaining. Respondent has stipulated that it has not rec-
ognized or bargained with the Union since February 11, the
date it received the Union’s letter and commenced its unfair
labor practices. I agree with General Counsel that the viola-
tions of Section 8(a)(1) and (3) found warrant a finding, that
Respondent’s failure to recognize and bargain with the Union
was not in good faith, and therefore violated Section 8(a)(5)
and (1) of the Act as of February 11, 1991. See Trading
Port, 219 NLRB 298, 301 (1975). The remaining question is
whether a bargaining order is warranted. It is well estab-
lished that the Board should issue a bargaining order where
it finds ‘‘the possibility of erasing the effects of past prac-
tices and of ensuring a fair election—by the use of traditional
remedies, though present, is slight and that employee senti-
ment once expressed through cards would, on balance, be
better protected by a bargaining order.’’11
The situation before me is somewhat unusual in that, apart
from Pavlovic, who is entitled to reinstatement and remains
a unit employee, Respondent currently has no employees
who were members of the unit at the time the Union enjoyed
majority status on the basis of authorization cards. At the
time of the hearing before me there were, according to
Berger, two maintenance employees and one janitorial em-
ployee.
Partipilo and Pavlovic were Respondent’s employees at the
time of Pavlovic’s discharge. Partipilo continued in Respond-
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Cf. Tube Craft, Inc., 289 NLRB 862 fn. 3 (1988), as recent tan-
gential support for the proposition a complete change in employees
resulting in a possible change in majority status does not by itself
destroy an existing obligation to bargain.
ent’s employ until she was discharged on or about November
15, 1991. Management, Inc. was never their employer even
though it was activated immediately on the departure of
Draper and Kramer. There is no evidence that Respondent’s
pattern of hiring individuals as its employees but leaving
their direction to a management agent ever changed. More-
over, it is clear that Management, Inc. is but an agency of
Respondent erected to conduct the managing of Respondent’s
Lofts facility. There is no showing whatsoever that Manage-
ment, Inc. has any other function, any de facto existence
other than as Respondent’s designated agent, or any employ-
ees of its own. I therefore conclude those persons now per-
forming maintenance and janitorial functions at the Lofts are
Respondent’s employees. That being so, the fact remains that
all the current employees falling within the description set
forth in the stipulated bargaining unit are newly hired and
none has been shown to be a union supporter. This is, how-
ever, not an impediment to a bargaining order because the
obligation to bargain arose and was rejected at a time the
Union did enjoy majority status and was entitled to bargain
on the unit employees’ behalf for a reasonable time12 and
that opportunity was unlawfully denied it.
As the Board noted in Phillips Industries, 295 NLRB 717,
718 (1989), a case relied on by Respondent as a basis for
withholding a bargaining order, a discharge in violation of
Section 8(a)(3) of the Act is a ‘‘hallmark’’ violation likely
to have a longlasting and substantially inhibiting effect on
employees. Although so noting, the Board withheld a bar-
gaining order in Phillips, where there were two 8(a)(3) dis-
charges, because the bargaining unit was large (90), the like-
lihood of repeated unfair labor practices was small, top man-
agement committed no 8(a)(1) violations, employees could
not necessarily view the violations as a reflection of com-
pany policy, and traditional remedies could, in those cir-
cumstances, create an atmosphere conducive to a free and
fair election. The situation in Phillips is patently distinguish-
able from that before me. Here, we have a three-person unit,
one-third of which was discriminated against, the violations
were committed by top management, there is no reason to
believe the likelihood of repeated unfair labor practices is
small or the illegal conduct of Marc Berger and Tina
Partipilo, the top managers, would not be viewed by employ-
ees as reflecting Respondent’s policy concerning employee
union activity. Recognizing that the current unit members are
not known union supporters, and there is no indication of un-
fair labor practices directed at them personally, I believe that
the unlawful discharge of Pavlovic will have a lasting and
inhibiting effect on current employees who may wish to se-
cure union representation and the likelihood that traditional
remedies will erase the lingering effects of Respondent’s un-
lawful actions on such a small unit of employees and thus
ensure a fair election is slight and a bargaining order should
issue. Accordingly, I conclude and find Respondent violated
Section 8(a)(5) and (1) of the Act on and after February 11,
1991, by failing and refusing to recognize and bargain with
the Union as the duly authorized collective-bargaining rep-
resentative of the employees in the unit hereinabove found
appropriate for purposes of collective bargaining, and a bar-
gaining order should issue.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following unit is appropriate for collective bar-
gaining:
All full-time and regular part-time janitorial, mainte-
nance, and cleaning employees employed at River West
Development Limited Partnership’s facility located at
925 W. Huron Street, Chicago, Illinois; but excluding
office clericals, guards and supervisors as defined in the
Act, and all other employees.
4. At all times since January 21, 1991, and continuing to
date, the Union has been the exclusive representative of all
the employees within the appropriate unit for purposes of
collective bargaining.
5. By coercively interrogating an employee concerning the
Union’s letter of February 7, 1991, Respondent violated Sec-
tion 8(a)(1) of the Act.
6. By threatening an employee with discharge because he
engaged in protected union activities, Respondent violated
Section 8(a)(1) of the Act.
7. By discharging Paul Pavlovic in order to discourage
union membership, Respondent violated Section 8(a)(3) and
(1) of the Act.
8. By refusing to bargain with the Union as the designated
collective-bargaining representative of its employees in the
unit hereinabove found appropriate, and by engaging in the
above-described violations of Section 8(a)(3) and (1) for the
purpose of undermining and destroying the Union’s majority
status, Respondent violated Section 8(a)(5) and (1) of the
Act.
9. The violations of the Act set forth above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
10. The unfair labor practices found are sufficiently seri-
ous and pervasive as to warrant a remedial order requiring
Respondent to recognize and bargain with the Union as the
exclusive collective-bargaining representative of Respond-
ent’s employees in the unit hereinabove found appropriate.
THE REMEDY
In addition to the usual cease and desist and notice posting
requirements, my recommended Order will require Respond-
ent to offer unconditional reinstatement to Paul Pavlovic and
make him whole for wages lost as a result of his unlawful
discharge, backpay to be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987); Respondent will also be required to remove
from its records any reference to the discharge of Paul
Pavlovic and notify him that this has been done and that evi-
dence of this unlawful action will not be used against him
in any way in the future. My recommended Order will also
require Respondent to recognize and bargain in good faith
597RIVER WEST DEVELOPMENT
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
14 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.’’
with the Union on request and reduce any understanding
reached to a written, signed agreement.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, River West Development Limited Part-
nership, Chicago, Illinois, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning union
activities.
(b) Threatening employees with discharge because they
engage in protected union activities.
(c) Discharging employees in order to discourage union
membership.
(d) Refusing to recognize and bargain with the Union as
the exclusive collective-bargaining representative of the em-
ployees in the bargaining unit hereinabove found appropriate.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, recognize and bargain with the Union as
the exclusive representative of all employees in the above-
described appropriate unit and, if an agreement is reached,
embody such understanding in a written signed agreement.
(b) Offer Paul Pavlovic immediate and full reinstatement
to his former job, or if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for any
loss of earnings suffered by reason of Respondent’s unfair
labor practices in the manner set forth in the remedy section
of this decision.
(c) Remove from the record of Paul Pavlovic any ref-
erence to his discharge, and notify him in writing that this
has been done and that the evidence of his unlawful dis-
charge will not be used against him in any way.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its 925 West Huron Street, Chicago, Illinois fa-
cility copies of the attached notice marked ‘‘Appendix.’’14
Copies of the notices on forms provided by the Regional Di-
rector for Region 13 after being signed by Respondent’s au-
thorized representative, shall be posted by it immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
We hereby notify our employees that:
WE WILL NOT attempt to discourage membership in Serv-
ice Employees Local No. 1, Service Employees International
Union, AFL–CIO or any other labor organization, by dis-
charging our employees or in any other manner discrimi-
nating against them in regard to their tenure of employment
or any term or condition of employment.
WE WILL NOT refuse to recognize and bargain with Serv-
ice Employees Local No. 1, Service Employees International
Union, AFL–CIO as the exclusive bargaining representative
of the employees in the following bargaining unit:
All full-time and regular part-time janitorial, mainte-
nance, and cleaning employees employed at our 925
West Huron Street, Chicago, Illinois, facility; but ex-
cluding office clericals, guards and supervisors as de-
fined in the Act, and all other employees.
WE WILL NOT threaten our employees with discharge be-
cause they engage in protected union activity and WE WILL
NOT coercively interrogate them concerning such activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain collectively
with Service Employees Local No. 1, Service Employees
International Union, AFL–CIO as the exclusive bargaining
representative of all the employees in the bargaining unit de-
scribed above with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment,
and, if an agreement is reached, embody that understanding
in a written, signed agreement.
WE WILL offer Paul Pavlovic immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or other rights and privileges, and make him whole
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for any loss of earnings suffered by reason of our discrimina-
tion against him, with interest thereon.
WE WILL remove from the record of Paul Pavlovic any
reference to his discharge, and notify him in writing that this
has been done and that the evidence of the unlawful dis-
charge will not be used as a basis for any future disciplinary
action against him.
RIVER WEST DEVELOPMENT LIMITED PART-
NERSHIP