Sellgman & Associates, Inc.

National Labor Relations Board - Board Decisions

Jan 24, 1979

240 N.L.R.B. 110 (N.L.R.B. 1979)

I10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seligman & Associates, Inc., and its Wholly Owned
Division, Scott Management Company and Local
79, Service Employees International Union, AFIR
CIO and David Younce. Cases 7 CA-13576, 7
CA-13752(1-4), 7-CA-13948, and 7-CA-14086
January 24, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On August 15, 1978, Administrative Law Judge
Almira A. Stevenson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, General Counsel filed
cross-exceptions and a supporting brief, and Respon-
dent filed a brief in opposition to General Counsel's
cross-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 her recommended Order.
In the absence of a formal section entitled "Con-
clusions of Law" in the Administrative Law Judge's
Decision, and upon the basis of her findings and con-
clusions and the entire record, we make the following
formal:
CONC(I.USIONS OF ILAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
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 credihilit 5
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dro Wall Products. Inc.. 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 19511. We have carefull 5
examined the record and find no basis for reversing her findings.
The Administrative Law Judge's D)ecision contains several inadvertent
errors which, however, do not affect the conclusions herein. as follows:
(I) "7 (CA 13752(1 4)" instead of "17 (A 13752( 1 4)" is the correct case
number in the statement of the case: (2) in the statement of the case, the
date of filing and serving of the charge in Case 7 CA 13948 is reflected as
April 8, 1977 whereas the record establishes that the correct date is April 7,
1977 (3) the last sentence in sec. Ill. B,5(a) and the last sentence in sec. Ill
B. 5(b) are both followed by a reference to In. 28 the text of fn. 28 clearly
refers to the subject matter discussed in the latter section: (4) the first sen-
tence of fn. 28 refers to Phyllis Davis: the record does not reveal any cor-
roborative testimony of Phyllis Davis on the particular point: however. the
record does reveal that the testimony of Ricky I)avis corroborates the testi-
mony of Larry Davis on that point.
240 NLRB No. 10
2. Local 79, Service Employees International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent interfered with, restrained, and
coerced employees in the exercise of their rights un-
der Section 7 of the Act, and thereby violated Section
8(a)(1) of the Act by:
(a) Discharging David and Susan Younce on ac-
count of their concerted activity in meeting together
with other employees to discuss their complaints
about working conditions.
(b) Threatening employees with being replaced
because of their union activities.
(c) Coercively interrogating employees about their
union activities.
(d) Imposing upon employees proscriptions
against their talking about the Union.
(e) Threatening to discharge employees for testify-
ing at Board-conducted hearings.
(f) Threatening to use unlawful means to prevent
union organization.
4. Respondent violated Section 8(a)(3) and (1) of
the Act by discriminatorily discharging Clarence
Goold because of his leadership in the union move-
ment.
5. Respondent violated Section 8(a)(4)., (3), and
(1), of the Act by:
(a) Discharging Mark Rushing because he had
been subpenaed to testify on behalf of the Union at a
Board-conducted hearing.
(b) Discharging Madeline Dodson because she
had been subpenaed to testify on behalf of the Union
at a Board-conducted hearing.
(c) Discharging Harold Dodson because he had
testified contrary to Respondent's interests at a
Board-conducted hearing.
6. Respondent violated Section 8(a)( ) of the Act
by promoting Lysle Davis, Larry Davis. and Rodney
Johnson to assistant managers. in an attempt to ger-
rymander the bargaining unit to defeat the Union's
organizational efforts.
7. Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Larry Davis. Ricky Davis,
and Charles Davis because of their known or sus-
pected support of the Union.
8. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
9. Respondent has not committed any other un-
fair labor practices alleged in the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
SELIGMAN &r ASSOCIATES, INC. III
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Seligman & Associates,
Inc., and its Wholly Owned Division, Scott Manage-
ment Company, Southfield, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the Ad-
ministrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
WE wi I. NOT interfere with our employees'
rights under Section 7 of the National Labor Re-
lations Act, as amended, or discourage member-
ship in Local 79, Service Employees Internation-
al Union, AFL-CIO, or any other labor
organization, by discharging or otherwise dis-
criminating against our employees in regard to
hire or tenure of employment or any other term
or condition of employment.
WE WILI. NOT coercively interrogate or threat-
en our employees, or prohibit you from talking
to new employees about the Union.
WE WILL Nor transfer, promote, or reclassify
our employees in an attempt to gerrymander the
unit in an NLRB election.
WE WILL NOT threaten to discharge our em-
ployees for testifying at an NLRB hearing.
WE WILL. NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed in Section 7 of the
Act.
WE WILL offer David Younce, Susan Younce,
Clarence Goold, Larry Davis, Ricky Davis,
Charles Davis, Mark Rushing, Harold Dodson,
and Madeline Dodson full, immediate, and un-
conditional reinstatement to their former jobs
or, if their jobs no longer exist, to substantially
equivalent jobs, without prejudice to seniority or
other rights and privileges previously enjoyed;
and WE WIL L make them whole for any loss of
pay suffered by reason of the discrimination
against them, with interest.
SF I(;MAN & ASSO(clAIF:S INC(., AND) IS
Wl()l I ()WNEI) )IVISIO(N. Sol r M XNA( -
\LN1 ()MP: N'~
DECISION
STATEMENT OF THE CASE
AL.MIRA ABBOT STEVENSON, Administrative Law Judge:
This consolidated proceeding was heard in Detroit, Michi-
gan, July 11-15, 19-21, August 2-3, and November Ii,
1977. The original charge in Case 7-CA-13576 was filed
December 8 and served December 9, 1976; the first
amended charge was filed December 13, and served De-
cember 14, 1976. The charges in Cases 17-CA 13752 (1-4)
were filed February 8 and served February 9, 1977. The
charge in Case 7-CA-13948 was filed and served April 8,
1977. The charge in Case 7-CA-14086 was filed May 31
and served June 3, 1977. An order consolidating cases,
amended consolidated complaint, and notice of hearing
was issued June 20, 1977, and duly answered by Respon-
dent, Seligman & Associates, Inc., and its Wholly Owned
Division, Scott Management Company.
On October 7, 1976, David and Susan Younce were ter-
minated from their jobs at Eureka Townhouses after meet-
ing with other employees to discuss common complaints
about working conditions and trying to bring complaints to
management's attention as more fully described below.
Some weeks later, in mid-November 1976, Clarence "Sam"
Goold, an employee of the Utica Green Apartment com-
plex, contacted the Union, and a campaign to organize the
employees of apartment projects managed by Respondent
got underway. Meetings of employees with union represen-
tatives were held at the union hall and other locations
throughout December 1976 and in January and April 1977.
On December 8, 1976, the Union filed a petition in Case 7
RC 14011 requesting an election in a unit of all mainte-
nance, custodians, caretakers, and grounds men employed
at various apartment complexes managed by Respondent.
On January 10, 1977, employees Margaret Lewis and Dar-
rel Ezmerlian were terminated from their jobs at Wood-
brook Apartments. On January 14, 1977, Clarence Goold
was terminated. A Board hearing was held on various dates
from January 20 through March 10, 1977, on the petition
filed in Case 7-RC-14011. On January 24, 1977, Mark
Rushing's employment at Apple Grove Apartments was
terminated. On February 16, 1977, Harold and Madeline
Dodson were discharged from the Grosvenor North Apart-
ment complex. In March 1977 employees Lysle Davis and
Rodney Johnson were promoted to assistant managers at
Fox Lane Apartments, and Larry Davis was promoted to
assistant manager at Utica Green. On May 3, 1977, the
Regional Director issued a Decision and Direction of Elec-
tion in Case 7-RC-14011 directing an election in a unit
which he found appropriate.' On May 9 Larry Davis and
The Regional Director found appropriate the following unit:
All full-time and regular part-time assistant managers, assistants to
the managers, caretakers, custodians, maintenance personnel, and
grounds personnel employed by the Employer at the following loca-
tions: Apple Grove Apts.. 1905 Dequindre. Utica. Michigan; Belmont
Manor Apts.. 250 Church, Belleville, Michigan; Century Sq. Town-
houses. 22459 Century Dr.. Taylor. Michigan: Congress Hills Apts 212
Steven Dr.. Ypsilanti, Michigan; Eureka Garden Townhouses (Phase I
& 2), 15007 Aubary Ln., Taylor. Michigan: Fox Lane Apts., 45635 Fox
Continued
SELIGMAN & SSOCIATES, NC. III
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ricky Davis were discharged from Utica Green, and
Charles Davis was fired from Foxlane. Larry, Charles, and
Ricky Davis are sons of Lysle Davis. All the employees
named above, except the Younces, were advocates of the
Union. The complaint alleges that the Younces were dis-
charged October 7, 1976, for engaging in concerted pro-
tected activity; Lewis and Ezmerlian were discharged on
January 10, 1977, and Goold on January 9, 1977, because
of their union advocacy and in an attempt to gerrymander
the unit in the Board election to defeat the Union; that
Rushing was discharged January 24, 1977, and the Dod-
sons February 16, 1977, because they supported the Union,
attended the hearing in the RC case, and to gerrymander
the unit; that the promotions of Lysle Davis, Larry Davis,
and Rodney Johnson to assistant managers in March 1977
were further attempts to gerrymander the unit; and that
Larry and Phyllis Davis, Charles Davis, and Ricky Davis
were discharged May 9, 1977, because of their union advo-
cacy. The complaint also alleges various instances of inter-
ference, restraint, and coercion of employees, and requests
a Gissel remedy 2 ordering Respondent to bargain with the
Union in an appropriate unit of employees of 21 apartment
house complexes managed by Respondent. Respondent as-
serts it is not the employer of these employees; denies the
commission of any unfair labor practices; contends that a
Gissel remedy is not justified; and that the overall unit is
inappropriate.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the brief filed by Respondent, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
Respondent admits, and I find, that it is a Michigan
corporation, whose only office and place of business is lo-
cated at 24315 Northwestern Highway, Southfield, Michi-
gan; that it is a property management company retained
by the owners of apartment and condominium projects in,
among other places, Belleville, Flatrock, Taylor, Ypsilanti,
Wayne, Utica, and Pontiac, Michigan; and that during the
year ending December 31, 1976, a representative period,
Respondent derived gross revenue in excess of $500,000
and received revenues of $6,000 for services performed for
customers located outside Michigan. It is clear, and I find,
that Respondent meets the Board's standards for assertion
of jurisdiction over the apartment house industry.3 Respon-
Lane E.. Utica, Michigan: Grosvenor North Apts.. 94 Stegman Lane,
Pontiac, Michigan; Grosvenor East Apts., 30711 Quinkert, Utica,
Michigan; Oxford Place Townhouses, 12555 Pine. Taylor, Michigan:
Park Hills Apts.. 3300 Park Hill Blvd., Wayne, Michigan: Roanoke
Apts., (address not in record): Mayfair Apts., 24949 Mayfair Dr.. Flat-
rock. Michigan: Rush More Apts.. 15150 Rush More Dr., Taylor,
Michigan; San Dee Apts., 16167 Weddel Rd.. Taylor Michigan; South-
land Apts. (Phase I & 2), 15030 Scott Dr., Taylor, Michigan: Utica
Green Apts.. 45725 Utica Dr.. Utica, Michigan: Utica Plaza Apts..
45220 Keding. Utica, Michigan; Woodbrook Apts.. (Phase I & 2).
15569 Southland Dr., Taylor, Michigan, but excluding guards and sup-
ervisors as defined in the Act.
The Employer's request for review is still pending before the Board.
N.L.R B. v. Gissel Packing Co., Inc. 395 U.S. 575 (1969).
dent contends, however, that it is not the employer of the
employees employed at the projects involved herein or, in
the alternative, that it is a joint employer with the owners
of each project separately. Seligman & Associates, Inc., is a
Delaware corporation whose stock is traded on the New
York Stock Exchange. Irving Seligman was president and
chief operating officer at the time of the RC case hearing,
and chairman of the board, treasurer, and chief operating
officer at the time of the hearing in this proceeding at
which he was Respondent's only witness. Irving Seligman's
son, Scott, is a vice president of Seligman & Associates,
Inc., and president of Scott Management Company divi-
sion. He is directly responsible to Irving Seligman and the
board of directors of Seligman & Associates, Inc.
Seligman & Associates, Inc., is the owner of two of the
apartment complexes involved in this case. Each of the
other apartment complexes is owned by a separate partner-
ship. Thirteen of these are limited partnerships, Irving Sel-
igman being the general partner in seven and Seligman &
Associates, Inc., being the general partner in six of them.
Eight are copartnerships in which Irving Seligman is a co-
partner; and in three, Scott Seligman is another copartner.
All of the apartment complex owners have contracted
with Respondent to manage ttheir complexes. The owners
have retained no veto power nor any control, even in a
nominal sense, over Respondent with respect to wages,
hours, or working conditions of the employees employed at
their complexes. In accord with these contracts and its con-
tracts with the Department of Housing and Urban Devel-
opment for the complexes financed by HUD (all but four
of those involved herein), Respondent hires, pays, supervis-
es, and discharges the employees of the complexes. Re-
spondent establishes employee classifications which are
uniform throughout, and sets salary and wage ranges with-
in which they are paid; it also determines which classifica-
tions are to be compensated in part by occupying an apart-
ment. It provides a medical plan and determines eligibility
to participate in it. Respondent also inspects the physical
assets of the complex to make sure the employees are
working in a manner prescribed, that the units are in renta-
ble condition when there is a vacancy, and that the rents
are collected, or court or other necessary action is taken to
procure the rents or evict tenants. Respondent also handles
all accounting and bookkeeping, and "generally supervises
and does all the jobs that an owner would do" including
advertising vacancies under the name of the complex con-
cerned, purchasing all supplies and insurance and hiring
subcontractors; preparing information for use by a tax ac-
countant in making out the owners' tax returns and paying
taxes; and preparing reports to HUD. When asked at the
hearing herein if Respondent handles inquiries from unem-
ployment authorities, Irving Seligman replied,
It would be routinely part of the job. Who else would
they talk to? The owner . . . has given us the rights to
handle all legal matters for him.
Respondent maintains a common payroll and account-
ing system for these projects, other divisions of Seligman &
Associates, Inc., and other customers. It pays employees of
Karl Gerber et a d b a ParkvieP Garden. 166 NLRB 697 (1967).
SELIGMAN &r ASSOCIATES, INC. 113
the complexes with checks drawn on Seligman & Associ-
ates, Inc., and provides each employee with a single unca-
tegorized W 2 form for all work performed at any of the
apartment complexes. It, however, keeps strict separate ac-
count of revenues and expenditures for each complex,
which are entered into ledgers and computerized in detail;
and it reports monthly and yearly to each partnership on
the financial status of its apartment complex. All profits
and losses adhere to the partnership owners who are solely
liable for wages and other costs of operating the projects.
For these services, the owners pay Respondent a certain
percentage of their gross income, regardless of the profits
or losses of their complexes, 5 to 8 percent for HUD-sup-
ported complexes depending on the nature of the project.
Respondent employs a staff of about 12 employees who are
paid out of its percentage earnings. Its staff includes, in
addition to its president and office and clerical personnel,
rental agents who work full time or part time depending on
the size of the complex to which they are assigned (onsite
managers do the renting at the smaller complexes) and four
property managers. Rental agents use office space at the
complexes to which they are assigned. Each property man-
ager is assigned to a group of complexes and he or she,
along with Scott Seligman, is responsible for hiring and
determining the salaries of the onsite managers for his or
her complexes. They also transfer managers from one
apartment complex to another, fire managers they lose
confidence in, and at times promote and transfer employ-
ees. Applicants for jobs at all complexes fill out Scott Man-
agement Company application forms purchased by Re-
spondent at lower cost based on volume ordered.
Property managers supervise their projects closely, train
and supervise their onsite managers, and visit complexes
once a week to check the physical maintenance of the
property, review office procedure, and consult with manag-
ers on day-to-day operations. It is the property manager's
responsibility, using his discretion as to whether to consult
his manager, to establish a budget for each of the complex-
es he supervises. Each complex is separately budgeted, and
the budgets vary considerably according to size and kind
of project, history of the plant, and type of tenant. Each
budget specifies salary and wage ranges as well as all antic-
ipated expenditures.
Scott Seligman visits each complex once a month to pep
up the managers, discuss their problems with office effi-
ciency and delivery of supplies, inspect the office, apart-
ments, storage, and laundry rooms for cleanliness and
neatness, inspect the inventory, and, sometimes, discuss
problems with tenants. He also calls monthly meetings of
property managers and onsite managers of all complexes
together, where "Every conceivable thing that occurs" is
discussed, including how to avoid rent-payment delinquen-
cies, security-deposit law, legal actions against tenants, and
report forms. At one such session Scott Seligman explained
various laws regarding hiring and firing employees, and at
another, an attorney discussed ways of defeating the union
organizing campaign. Scott Seligman also sends occasional
policy memos to onsite managers which they keep in a the
form of a manual. Some of these memos are suggestions,
such as uniforms and a 4-day week for onsite employees,
which managers are free to adopt or disregard. Examples
of purported mandatory policies and instructions issued by
Scott Seligman were a proscription against hiring a former
employee of another complex without a recommendation
from the manager of the complex where the employee for-
merly worked; employment of relations of other employees
or managers; and banning the exchange of work or sup-
plies between complexes. Scott Seligman also periodically
addresses newsletters to employees of the complexes, and
on December 6, 1976, he addressed a letter to all caretakers
on Scott Management Company letterhead notifying them
that Respondent would eliminate their positions and retain
independent contractors to perform their work.
Most of the complexes have their own manager in
charge of their operations only, although there are several
instances where a single manager is in charge of two com-
plexes which are separately owned. The managers and em-
ployees of each complex are paid from revenues of the
complex where they work. The manager supervises all as-
pects of his or her complex including all employees work-
ing there. As a rule, the manager determines how many
employees to hire, who is hired, and at what salary or
wage; he or she must, however, stay within the complement
and wage and salary ranges specified in the budget for the
complex. The manager also assigns work, adjusts griev-
ances, grants increases (within the budget range), and disci-
plines employees. The manager usually is the one who dis-
charges employees, on occasion even rejecting a property
manager's suggestion that an employee be discharged, al-
though property managers also hire and terminate employ-
ees. Similarly, there are transfers of employees from one
complex to another arranged by property managers which
are treated as a termination from one complex and a subse-
quent hire by another without any continuity of wages or
benefits adhering to the employee. Moreover, despite Scott
Seligman's direction to the contrary, managers assign em-
ployees to work at other complexes and exchange equip-
ment and supplies on occasion.
Based on the facts set forth above, I find that Respon-
dent "exercises full control over the persons employed at"
these apartment complexes and, accordingly, "an em-
ployer-employee relationship exists between [Seligman &
Associates, Inc., and its wholly owned division, Scott Man-
agement Company] and these employees." 4 In the exercise
of this authority, Respondent, among other things, de-
termines the nature of employee complement, establishes
budgets containing salary and wage ranges, selects and de-
fines eligibility for medical plan coverage, requires recom-
mendations for the hiring of those previously employed by
other complexes, decides to replace caretakers with sub-
contractors, and provides advice and instructions to man-
agers regarding the union organizing campaign. In addi-
tion, as found below, the president and project managers
on Respondent's own payroll took a direct part in the com-
mission of unfair labor practices.
In these circumstances, it does not avail Respondent that
(1) the HUD manual under which it operates the HUD-
financed complexes provides that onsite personnel will be
4J. J. Gumherg (Co. and Pennlev Park South, Inc., 189 NLRB 889 (1971).
See also Oil, Chemical ,4tomic Worker~ International Union, AFL CIO
(We.rtern Industrial Maintenance, Inc.). 213 NLRB 527 (1974).
SELIGMAN & ASSOCIATES, INC. 113
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of the project owners; (2) that onsite managers,
whose salaries are paid out of the owners' receipts, exercise
substantial authority over hiring, firing, wages, and work-
ing conditions of employees; or (3) that the authority exer-
cised by Respondent is characteristic of the inherent nature
of the property management industry and is based on
sound business practice. As to (1), the NLRB, in exercising
its responsibility to administer the NLRA, and in effectuat-
ing the policies of that statute, need not be governed by
requirements and regulations of other agencies of the gov-
ernment; accordingly, I have considered the applicable
provision of the HUD manual but I have concluded that it
does not dictate a conclusion contrary to that required by
the facts and Board law.5 As to (2), the onsite managers
derive the authority they exercise over the employees from
Respondent and not from the owners, as the owners have
relinquished their authority to Respondent; even though
the managers are paid out of their owners' receipts and not
out of Respondent's percentage fee, there is no evidence
that they have ever received any instructions, supervision,
or communication from their owners, all directives having
come from Respondent, which hired them and exercises
full control over their performance through its power to
fire them, and to which they are solely responsible. As to
(3), this case must turn on its relevant facts and not on
whether or not Respondent's methods of operations are
characteristic of the industry of which it is a part or that
they are based on sound business practice.
Accordingly, I find that even though the partnership
owners of the apartment projects are also employers of the
employees of their respective projects by virtue of their
voluntary entry into contract commitments with HUD,
and acknowledging such status and their liability for the
employees' salaries and wages, Respondent is the agent of
the partnerships for purposes of controlling the wages,
hours, and working conditions of the employees employed
at the apartment complexes owned by the partnerships,
and an employer of these employees within the meaning of
the Act.6 It will effectuate the policies of the Act to assert
jurisdiction in this proceeding.
II. LABOR ORGANIZATION
The Charging Party Union, Local 79, Service Employees
International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
See Port Richmond Elevaor Co.. Inc. and South Atlantic, 170 NLRB 1352
(1968); The Sun (ompany of San Bernardino, California, 105 NLRB 515
(1953); Earl McMillian Company, 81 NLRB 639 (1949).
American Geriatric Enterprises, Inc., et al., 235 NLRB 1532, fn 2 1978):
J. J. Gumberg Co. et al.. supra. Sec. 2(2) of the NLRA, as amended, provides
that, "The term 'employer' includes any person acting as an agent of an
employer, directly or indirectly .... " Greenhoot, Inc. 205 NLRB 250
(1973), and Shannon & Luchs and Andrews Manor Associates, 166 NLRB
1009 (1967), relied on by Respondent. are not apposite because the building
owners in those cases, unlike the owners in this case, retained and exercised
effective control over wages, hours, and working conditions of employees.
Respondent's comparison of its function with regard to the employees of the
apartment projects to the functions normally provided employers by law-
yers and accountants is not a valid one because, among other reasons, law-
yers and accountants usually do not have or exercise complete control over
the wages, hours, and working conditions of their clients' employees.
Ill UNFAIR LABOR PRACTICES
A. The 8(a)(l) Violations
I. Susan and David Younce: The complaint alleges that
Lincoln "Ozzie" LaFrance, comanager and admitted sup-
ervisor of Eureka Townhouses, 8 discharged the Younces on
or about October 7, 1976, before the union campaign, be-
cause they acted together with other employees to bring
employee complaints about working conditions to the at-
tention of management, in violation of Section 8(a)(l). Re-
spondent contends that () this allegation is barred by Sec-
tion 10(b) of the Act, (2) the Younces have waived any
claim they may have had against Respondent, and (3) the
violation was not proved.
As to Respondent's first defense, the record shows, and I
find, that Manager Lincoln LaFrance terminated David
and Susan Younce from their employment at Eureka
Townhouses on October 7, 1976. The charge in Case 7-
CA 13948, on which this allegation of the complaint is
based, was filed by David Younce April 7, 1977, which the
parties agree was the last day before the expiration of the
10(b) period. The complaint alleges, and I find,9 that this
charge was personally served on Manager Lincoln La-
France, Respondent's agent, at his office located at Eureka
Townhouses, Taylor, Michigan, by Susan Younce on April
7, 1977. It is Respondent's position that this service was
defective because it was not made at Respondent's "princi-
pal office or place of business" as required by Section
11(4), which is alleged in the complaint to be, and is, locat-
ed at 24315 Northwestern Highway, Southfield, Michigan.
In affirming the Board's conclusion that such a conten-
tion is without merit, the U.S. Court of Appeals for the
Fifth Circuit said, in N.L.R.B. v. Clark, Owner, Pierce, Les-
see of the Ashville- Whitney Nursing Home, 468 F.2d 459, at
463 (1972):
. . . the statute does not imply, as the respondents
suggest, that if process is to be served upon an em-
ployer engaged in several enterprises, the server must
determine the employer's most important or "princi-
pal" site of financial endeavor. Such a determination
would be exceedingly precarious and far more techni-
cal than fair notice requires. Rather, service is appro-
priate at the principal place of business of thatparticu-
lar business giving rise to the labor dispute with the
person required to be served.
7 In making credibility findings with respect to the unfair labor practices
alleged in the complaint, I have taken into consideration the demeanor of
the witnesses, and the fact that Respondent failed without explanation or
claim of unavailability to call any of its supervisors to contradict the testli-
mony of the General Counsel's witnesses. In all instances save one, which is
referred to below. I infer that such testimon would hase been unfavorable
to Respondent. Martin Luther King, Sr.. Nursing C(ener. 231 NLRB 15, fn.
I 1977).
The name of Eureka Townhouses has apparently now been changed to
Pine Ridge.
It was the corroborative, credited testimon) of Susan and David Younce
that on the afternoon of April 7, 1977. they drove together from the NLRB
Regional Office to LaFrance's office in Eureka Townhouses: Susan Younce
carried a cop)y of the charge into LaFrance's office: as she entered the
office, LaFrance went out and closed the door, after waiting a few minutes
Susan Younce gave the charge to LaFrance's secretary and asked her to give
it to Manager LaFrance: and the secretary said she would do so.
SELIGMAN &r ASSOCIATES, INC. 11i5
Under that ruling, even though Scott Management Compa-
ny is engaged in many other enterprises, for the purposes
of Section 11(4), it could be served at the principal place of
business of its Eureka Townhouses operation inasmuch as
the paper served related to labor relations of its Eureka
Townhouses operation.
Nor is there merit to Respondent's second defense,
which is based on the fact that Susan Younce on October
28, 1976, filed, and on November 11, 1977, withdrew, a
prior charge containing essentially the same allegations as
those in the charge herein filed by David Younce on April
7, 1976. Respondent cites no case, and I have found none,
in which the Board has held the withdrawal of a charge to
constitute a waiver of rights guaranteed by the Act. On the
contrary, the Board has refused to dismiss a complaint on
such a ground).
The facts with regard to the alleged unfair labor prac-
tices are as follows: David and Susan Younce were hired in
June 1976 by Charles Gaunt, then manager, to work as a
caretaker couple at Eureka Townhouses, a 400-apartment
complex. David did maintenance work on the grounds and
Susan did clerical work in the office. After a week, David
was offered a transfer to Scott Security Company as a
guard because of his husky size, and Susan began training
as a security dispatcher working an 18-hour week. Al-
though they both began these jobs working the day shift,
they were changed to working different shifts at their re-
quest to reduce the cost of babysitters. In early August,
Susan was increased to 22 hours, and David asked to be
transferred back to maintenance because they could not
afford the additional babysitter costs. In September, there-
fore, Property Manager John Mahaney offered to transfer
them back to Eureka Townhouses as a caretaker couple
with the duty of cleaning and restoring vacant units. Lin-
coln LaFrance and his wife Kathy LaFrance had become
comanagers of Eureka Townhouses which employed a staff
of about 10 employees.
Right off, the Younces encountered difficulty finding
babysitters which led to an argument between Susan and
Kathy LaFrance over Susan's taking the baby to work with
them, culminating in Kathy's firing Susan and Susan's
quitting. With David as mediator, the falling out was
patched up, Susan apologized, and Kathy suggested they
start over.
In late September, the staff began to discuss among
themselves their complaints about working conditions, in-
cluding management's alleged failure to supply them with
enough tools and materials to do their work and at the
same time threatening their jobs. On the evening of Sep-
tember 27 or thereabouts, a group of six or so employees,
including the Younces, met together at the apartment of
Michaleen Novak. They dispatched David Younce and an-
other employee to ask Lincoln LaFrance to discuss their
complaints with them. LaFrance told the emissaries he
could not leave his apartment at the time. The two men
outlined the employees' problems of not having enough
tools and cleaning materials and being threatened with dis-
charge if they did not perform more work. LaFrance in-
' Terminal Equipmenz In-c. 219 NlRB 261, 262 (1975).
formed them that Scott Management Company had put
him on a limited budget and he could not keep up with the
pace employees were using materials. Younce also inquired
about layoff rumors he had heard, and LaFrance assured
him no layoffs were planned, and that LaFrance was satis-
fied with Younce's work and would promote him to main-
tenance man soon. LaFrance promised that he and his wife
Kathy would meet with the staff, hear their complaints,
and work everything out. The conversation was reported to
the employees at Novak's apartment. Thereafter, the La-
Frances' scheduled, and then canceled a meeting with the
staff for October I.
Susan Younce, Michaleen Novak, and another employee
then decided to try to get Scott Seligman to meet with the
employees. Susan Younce was delegated to telephone him,
and she called the Scott Management Company main of-
fice at Northwestern Highway in Southfield, Michigan. A
secretary informed Younce that Scott Seligman was out of
town and put her in touch with Vice President Jerry Melt-
zer. Younce identified herself and told Meltzer she was
calling for the employees at Eureka Townhouses, that there
were problems for which nothing was being done, people's
jobs were being threatened, and employees would like him
to attend a meeting with them and LaFrance. Meltzer said
he could not come but promised to send Property Manager
John Mehaney. Although Mahaney visited LaFrance's of-
fice on the morning of October 4. the day LaFrance had
rescheduled the employee meeting, Mahaney did not at-
tend the meeting.
At the LaFrances' October 4 meeting with the staff, Lin-
coln LaFrance told the employees, among other things,
that they were not to hold meetings after working hours
behind the LaFrances' backs or try to tell the LaFrances
how to run their jobs.
On October 7, David Younce stayed home sick but Su-
san Younce went to work, cleaning Lincoln LaFrance's
office. About I 11 a.m. LaFrance told Susan, as she credibly
testified,
. . .that he had received a call from the main office,
and that there were troublemakers working for the
company, that had to be fired, and he told me that I
was the one that made the phone call and I was a
trouble maker. He said he knew about it, but he want-
ed me to come back after lunch with my husband.
After lunch Susan Younce returned alone to LaFrance's
office. She testified:
[LaFrance] told me that he would have to let me and
my husband go because they did not need trouble
makers working for the company.
When Susan Younce reported these events to David
Younce, he instructed her to go back and get a reason for
their termination. Instead, she telephoned Lincoln La-
France and told him she wanted to know why she was
fired. LaFrance responded she was fired "for conspiracy
. . . trying to run the company." He added that David was
fired also as they were hired as a couple and had to be fired
as a couple.
At or about that same time LaFrance instructed Dennis
Calhoun to bring Michaleen Novak to his office as he was
SELIGMAN & ASSOCIATES, INC. 15
,
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to lay her off. At their interview, LaFrance said that
Property Manager John Mahaney was the one who was
supposed to let the Younces go and that they were termi-
nated "because . .. they were causing trouble for the com-
pany." l
The facts establish that management had no complaints
about the Younces' work other than the one dispute, 2
months before their termination, about bringing their baby
to work, which was immediately resolved. On the contrary,
management commended the Younces for their work,
granted their requests for jobs and shifts convenient for
them, and promised to promote David. A preponderance
of the credible evidence set forth above clearly establishes
that the only reason for the termination of the Younces
was their concerted activity, beginning approximately a
week before, in meeting together with other employees to
discuss their complaints about their working conditions
"behind the LaFrances' backs," and bringing such com-
plaints to the LaFrances and to top management, thereby
becoming "troublemakers" and "trying to run the compa-
ny." I conclude that the termination of David and Susan
Younce on October 7, 1976, interfered with, restraied, and
coerced employees in the exercise of their rights under Sec-
tion 7 to engage in concerted activity for their mutual aid
and protection, and violated Section 8(a)(l) of the Act as
alleged in the complaint.
2. Manager Marjorie Wrobel: The complaint alleges that
on or about December 18, 1976, the manager of the Bel-
mont Manor Apartments threatened caretakers with re-
placement by independent contractors because of their
union activities. Margaret Lewis testified, in support of this
allegation, that shortly before December 8, 1976, while she
was employed as a caretaker at Woodbrook Apartments,
Wrobel told Lewis and her cousin Mark Trustkowski, a
maintenance man at Belmont Manor, that "we were all
going to get these letters in the mail and that they were
trying to scare us into stopping the union." (The record
shows that Lewis and other employees received copies of a
form letter dated December 8, 1976, over the apparent sig-
nature of Scott Seligman, president of Scott Management
Company, advising them that the Company was "eliminat-
ing the caretaker system for the preparation of most apart-
ment units" and that caretakers would be replaced with
outside contractors for that work.) 12
Despite the fact that Wrobel signed a union authoriza-
tion card on December 7, 1976, and that Wrobel and
I The facts with regard to the Younces' termination are based on the
mutually corroborative testimony of David and Susan Younce, Michaleen
Novak, and Dennis Calhoun. I have considered the factors on which Re-
spondent grounds its contention that Susan Younce should be discredited
with regard to her termination interview with Lincoln LaFrance, but I find
the contention to be unjustified. Other aspects of Susan Younce's testimony
were corroborated, and Respondent, in the discussion of the Younces' ter-
minations in its brief, concedes that "Ultimately, the manager [LaFrancel
was upset because one employee called the management company rather
than presenting grievances to him."
There is no reliable testimony to support the allegations that Lincoln
LaFrance threatened and interrogated employees in December 1976, and
these allegations will be dismissed.
12 Based on the credited testimony of Margaret Lewis. Although Lewis'
memory may have been dimmed with respect to certain other events. it
seemed quite clear in this respect. The record does not clearly show whether
or not the subcontracting plan was ever fully carried out.
Trustkowski were married to each other a month or two
after this conversation, and that Lewis and Wrobel were
friends (all of which might be considered to increase the
force of Wrobel's remarks), I find that Manager Wrobel's
remarks to these two employees constituted threats which
coerced and restrained employees in the exercise of their
Section 7 rights. I therefore conclude that Section 8(a)(l)
was violated, as alleged. 3
3. Comanager Bruce Saunders. It is alleged that on vari-
ous dates throughout the period December 1976 to March
1977, Saunders, comanager with his wife Betsy of the Utica
Green Apartments, interrogated employees, threatened
them, discriminatorily enforced a too broad no-solicitation
rule, and told employees their union activities were futile.
The following testimony was presented by the General
Counsel in support of these allegations:
Lysle Davis, a caretaker at Utica Green at the time, testi-
fied that shortly after he had attended a union meeting at
the home of maintenance man Clarence Goold during an
evening in December 1976, Saunders asked him "what
kind of a party we were having at Goold's house." At a
Christmas Eve party at the Utica Green clubhouse attend-
ed by most of the staff, Saunders told the employees, "He
knew about the Union and he said that it would never get
in; that if it did it would take eight to ten years to get in
.... " Sometime in February 1977 just after a new man
had been hired, Saunders told the employees, gathered in
the clubhouse, "he didn't want us talking union to the new
employee . . . He said if anyone got caught talking to him
they would be fired." Saunders added he would be "glad
when it was all over with" because he was losing too much
time having only Larry Davis there to do all the work while
the other employees were under subpena.
Larry Davis, caretaker at Utica Green, testified that dur-
ing the latter part of November Saunders asked employee
Rodney Johnson and him "if there had been a union meet-
ing at Mr. Goold's house, because he had seen [employee]
Harold Dodson's truck there." In early January 1977 Saun-
ders told the employees in the clubhouse "we could get
fired for representing the union or talking about the
union," or something to that effect. On an afternoon in
mid-January Saunders asked Larry and Johnson to come
into his office where "he said he had been hearing things
about the union-that we had been talking about the union
. . .He said that if he ever heard a word about the union
to anybody that comes in or out, he would have us in the
street." In late January or early February in the clubhouse
Saunders told a group of employees, "that it would take
seven to ten years before the union got in. Then he said the
union would not come in." Toward the end of February
Saunders told all the employees in the clubhouse, "Because
of the Union, they are going to start contracting the work
[of maintenance-caretaker people] out." In early or mid-
March Saunders again called Larry and Johnson into his
office after lunch where "he said he would fire us if we
talked to anybody about the union. He said he did not
want to hear the union mentioned again."
3 The only testimony in support of an allegation that John Gauthier.
manager of the Apple Grose Apartments, interrogated employees was that
of Mark Rushing whose memory on this point was too poor for reliability.
I conclude that this allegation should be dismissed.
SELIGMAN ASSOCIATES, INC. 117
Phyllis Davis, caretaker wife of Larry Davis of Utica
Green, testified that in early January 1977, Saunders
"asked me if I had anything to do with the union, if I had
ever attended a meeting or anything like that and I told
him yes I had. Well, he asked me if I thought that we
needed one, and I said yes, I think we definitely need
one'; 14 on March 4, 1977, Phyllis Davis continued, Bruce
and his comanager wife Betsy called an employee meeting
at the clubhouse where Bruce Saunders announced that
Phyllis and Larry Davis, the Johnsons, and Lysle and Myrl
(Merrill in the transcript) Davis were promoted to assistant
managers and then told them "he didn't want to hear any-
thing else about the union, and that was done and over
with." On another occasion in March 1977 Phyllis went to
the office after lunch with Mary Johnson, caretaker wife of
Rodney Johnson, where Saunders "started talking about
the union and he said that if it ever did get in, it wouldn't
get in for seven to ten years . . . and then said that he felt
that Scott Seligman was confident that it wouldn't get in at
all." On March 10, 1977, the day Saunders was scheduled
to testify at the RC-case hearing,
. . he looked at everybody and he said you might as
well go home and he looked at Mary and Rodney
Johnson because he was also supposed to testify that
day and he told them that they might as well go home
and [pack] their bags, and then he just patted Rodney
on the back and left.
Phyllis testified that, on several occasions during the Janu-
ary-March 1977 period, Saunders attributed the subcon-
tracting of caretakers' work to the advent of the Union.
Ricky Davis, grounds keeper at Utica Green, testified
that on an occasion in January at the clubhouse, Saunders
commented that [the union] would never come in, and
that Seligman & Associates would contract out the
work and that that would take care of the caretakers
and stuff, and they would have to be let go ....
Clarence Goold, caretaker at Utica Green who initiated
the union campaign, testified that during the period in Jan-
uary 1977 while the RC-case hearing was in progress,
Saunders visited Goold's apartment to order him to vacate
the apartment and, noticing union material on a table, said
"I can't understand why anybody wants a union." When
Goold gave several reasons why he wanted the Union,
Saunders remarked, "Well, hey, it will never come in any-
way." s
I find, based on the credited testimony of Larry Davis,
Lysle Davis, and Phyllis Davis, that Saunders coercively
interrogated employees about their union activities in No-
vember and December 1976 and in January 1977. On the
basis of credited testimony of Ricky Davis, Larry Davis
and Phyllis Davis, find that Saunders threatened the care-
takers with replacement by independent contractors be-
cause of their union activities during the early months of
1977. 1 find that Saunders' statements, as credibly testified
4 This testimony was corroborated by Ricky Davis.
51 credit the testimony of these witnesses regarding these remarks of the
Saunderses as none of them was impeached or contradicted with respect to
this testimony, all of which forms a consistent pattern of hostility toward
unionism by the Saunderses and Respondent.
to by Larry Davis, Lysle Davis, and Phyllis Davis, to the
effect that employees could or would be fired for talking
about the Union, and that employees were not to talk to
new employees about the Union, in January, February,
and March, were in effect a proscription against employ-
ees' exercise of their Section 7 rights. 6 Based on the credit-
ed testimony of Phyllis Davis, I find that Saunders' re-
marks to his staff on March 10, 1977, constituted an
implied threat of discharge for testifying at a Board hear-
ing. With regard to Saunders' statements, credibly testified
to by Lyle Davis, Clarence Goold, Larry Davis, and Phyllis
Davis at the Christmas Eve party, in January, in late Janu-
ary or early February, and in March, to the effect that the
Union would not get in for 7 to 10 years, or would never
get in, when considered in light of the other unfair labor
practices, particularly Saunders' remark recounted by
Ricky Davis tying such a statement to an alleged plan by
Seligman and Associates, Inc. "to take care of the caretak-
ers" by contracting out the work performed by them, were
more than mere expressions of opinion and were designed
and could reasonably be understood as implied threats to
use unlawful means to prevent union organization. 7 I con-
clude that by Manager Saunders' aforelisted statements,
Respondent interfered with, restrained, and coerced its em-
ployees in violation of Section 8(a)(1) of the Act.'8
B. The 8(a)(1), (3), and (4) Violations
1. Margaret Lewis and Darrel Ezmerlian. Lewis was first
employed February 2, 1976, at Eureka Townhouses with
her cousin Mark Trustkowski as a caretaker couple. They
were transferred to the Rush More complex, back to Eure-
ka, and then permanently to Woodbrook Townhouses
where Howard and Lucy Morrow were comanagers. How-
ard Morrow fired them both in May when Lewis reported
to Morrow that Trustkowski was taking a half day off to
get some X-rays because he was in an automobile accident.
They appealed to Property Manager Moss Jacobs who in-
structed them to get a doctor's certificate and when they
did, rehired them at Oxford Place. They were subsequently
transferred to permanent employment at Belmont Manor
where Marjorie Wrobel was manager. In June 1976 Wrobel
laid off Lewis but kept Trustkowski on as maintenance
man. A month or so later, Lewis applied to Jacobs with a
6 Somerset Shirt d Pajama Company. 232 NLRB 1103, I (1977).
I Cf. Valiant Moving and Storage, Inc.. 204 NLRB 1058, 1066 (1973), and
Unimasco, Inc., 196 NLRB 400, 402 (1972), relied on by Respondent, which
are distinguishable inasmuch as the similar remarks in those cases were
made in a noncoercive context.
l8 Contrary to Respondent, testimony by certain employees to the effect
that they were not inhibited by Saunders' remarks is irrelevant. as the test of
interference, restraint, and coercion is not the subjective state of mind of
employees. but, rather whether an employer's conduct may reasonably be
said to tend to interfere with the free exercise of rights under the Act. Bon-R
Reproductions, Inc., 134 NLRB 429. fn. 1 1961); The Rein Company, 114
NLRB 694. 698 (1955). 1 recommend that the allegations in the complaint
that Saunders threatened employees with the imposition of more onerous
working conditions if the union organizing drive was successful be dis-
missed for lack of evidence. I do not credit Ricky Davis' testimony that
Saunders threatened to break Larry Davis' leg if he testified at the Board
hearing. Larry Davis did not corroborate this testimony. and there is no
other evidence which would tend to support the likelihood that Saunders
made a threat of this kind. I therefore also recommend that this allegation
be dismissed
SELIGMAN & ASSOCIATES, INC.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new partner named Joe Workman, and Jacobs hired them
to work at the San Dee complex as a caretaker couple.
After a week at San Dee, Lewis took a week's vacation
with permission of the manager; when she returned, Work-
man had been terminated. Without giving her a reason for
Workman's termination, the manager offered to keep
Lewis on if she could find another partner. She could not
find one, and was terminated. In August, Howard Morrow
hired Lewis and Darrel Ezmerlian as a caretaker couple at
Woodbrook Townhouses.
Between August and the time the union activities start-
ed, Lewis testified, the Morrows terminated close to 20
caretaker couples for one reason or another, and fired one
couple because they could not work the afternoon before
Christmas 1976 for lack of a babysitter.
On November 20, 1976, Lewis and Ezmerlian signed
union authorization cards. Lewis attended union meetings
and was one of a group of Woodbrook employees consist-
ing of Craig and Debbie Feebish and Mark Rushing, who
actively solicited cards at various apartment complexes of
Respondent. Lewis testified that on Saturday, December 4
or Monday, December 6, Lucy Morrow handed her two
union authorization cards signed by other employees
which Lewis had inadvertently left in the office on Decem-
ber 4. On several occasions Lucy Morrow told Lewis the
Union would be a good thing as did Marjorie Wrobel who
signed a union authorization card at Lewis' request.
On Monday, January 10, 1977, Lewis reported for work
without Ezmerlian, who had spent the weekend out of
town and because of a heavy snowfall the night before and
unclear roads could not make it to work. Ezmerlain tele-
phoned Lewis about 11 a.m. or 12 noon to say he would be
at work by I p.m., and Lewis told him that had been fired.
He arrived at work between I and 4 p.m. and asked How-
ard Morrow why they were terminated. Morrow replied,
"There is no excuse not to call in, and to miss a day with-
out calling in." Although Ezmerlian explained he was
stranded by snow, Morrow said, "no, no way. He said they
had to let us go." It seems agreed that caretakers usually
are hired and fired as couples.' 9
The evidence shows that both Lewis and Ezmerlian
signed union authorization cards and that Lewis was one
of the more active organizers that management had reason
to know. In the absence of evidence that Ezmerlian's union
advocacy consisted of anything more than signing a union
card or that management had any reason to suspect him
(other than the fact that he lived with Lewis), the General
Counsel's theory doubtless is that Respondent seized on
Ezmerlian's lateness as a pretext to rid itself of Lewis in
order to discourage union activity. Although I have care-
fully considered this possibility in light of all the evidence,
including the other unfair labor practices committed by
Respondent, I cannot agree that the theory is supported.
Thus, while it seems harsh that these employees were fired
for such seemingly excusable conduct, Lewis' own testi-
mony regarding the Morrows' past conduct demonstrates
them to be quick to discharge employees and even-handed-
ly hard on absenteeism whether seemingly excusable or
19 Lewis' work history is based on her own testimony. Where her account
of their termination differs from Ezmerlian's, I credit Ezmerlian.
not. It is also clear that it is Respondent's general practice
to hire and fire caretaker couples together and that Lewis
had been on the receiving end of this policy by other man-
agers of Respondent before the advent of the Union. As
Ezmerlian was guilty of the infraction given as the reason
for the discharges, and as the record fails to show disparate
treatment of Lewis and her partners before and after
knowledge of her union activities or between Lewis and
Ezmerlian and employees not known to be union advo-
cates, I find that this allegation is not supported by a pre-
ponderance of the evidence and I conclude that it should
be dismissed.
2. Clarence "Sam" Goold: Goold was hired in August
1975 as caretaker at Utica Green Apartments where Bruce
Saunders was comanager. In September 1976 Scott Selig-
man complimented his performance. His relationship with
Saunders became strained shortly after that because their
wives could not get along and Saunders once criticized his
work. However, Goold was promoted to maintenance man
and given a $25 increase in his monthly salary. 20 He there-
after became distraught and began to miss work because
his wife left him, and Saunders assigned him to do painting
work in order, he explained, for Goold "just to be alone to
get [his] thoughts together," assigning Lysle Davis to catch
up on the maintenance work.
As stated, it was Goold who made the first contact with
the Union on November 10, 1976. He obtained authoriza-
tion cards from the Union on November 15 and thereafter
handed out cards and union literature to 80 to 85 employ-
ees, driving from complex to complex. He attended all but
one of the six meetings between Respondent's employees
and union representatives. In early December, Property
Manager Dave Whitman (or Wickman) expressed satisfac-
tion with Goold's work. Then, on December 18, 1976, a
union meeting was held in Goold's home at the Utica
Green Apartments, and, as found above, Saunders had
knowledge of it.
The next day, on December 19, 1976, 2' Goold was in an
automobile accident while driving a friend's car to pick up
a snake needed to unplug a toilet in a Utica Green apart-
ment. Although he was paid through December 1976,
Goold has not worked for Respondent since then. He gave
a doctor's slip for indefinite medical leave to Bruce Saun-
ders as well as to Sharon Campbell who apparently was the
rental agent at the time. 2 Goold was paid through Decem-
ber, but when Saunders gave Goold his last paycheck on
January 14, 1977 (representing the Employer's hold back
for the employee's first week of work) he told Goold that
would be his last check, that he was being laid off indefi-
nitely, and that he wanted Goold out of his apartment. 23
Goold said he would vacate the apartment when his doctor
said he could move. Saunders responded, "Oh, ya, the doc-
2[ Saunders told Goold that only he and one other employee. a security
guard, received increases at the time.
21 Although the date of Goold's accident is given as December 9 at one
place in the transcript, the weight of the testimony places the date as De-
cember 19, 1976.
22 Lvsle Dasvis corroborated in part Goold's testimony to this effect.
2' No reliance is placed on Saunders' testimony at the RC-case hearing
that he told Goold on December 20 or 21 that he was terminated, since
Respondent failed without explanation or claim of unavailability to produce
Saunders as a witness in this proceeding.
SELIGMAN &r ASSOCIATES, INC. 119
tor can write anything." Goold said Saunders could call his
doctor and verify the medical slip he had given Saunders.
On approximately January 22, 1977, Goold telephoned Jeff
Adler, an officer of the Company, who told him he had not
been laid off but had been terminated for unsatisfactory
work. He has not received either workmen's or unemploy-
ment compensation.
Larry Davis testified that aithough Saunders told the
employees around Christmas that "that Goold was no lon-
ger with us" because Goold was not doing his work and
had been taking a lot of time off, Saunders later, in early
January, told him and employee Rodney Johnson that
Goold "wasn't through with the Union . ..he [was] still
trying to get Rodney Johnson and Lysle Davis to go to a
hearing." Lysle Davis testified that Saunders told the em-
ployees on one occasion that Goold was being laid off per-
manently and then later said Goold was going to be indefi-
nitely on medical leave. In late February, Phyllis Davis
overheard Comanager Betsy Saunders tell someone over
the telephone that Sam Goold "was no longer working for
the company, but it was all his fault because of the
union."
The evidence above shows that it was Goold who initiat-
ed the union campaign among Respondent's employees
and that he was among the most active in the campaign. It
also shows that although Goold's otherwise friendly rela-
tionship with Saunders and acceptable work record suf-
fered during a period in October and November because of
family problems, Saunders did not discharge him but gave
him another job assignment so that he could pull himself
together, and thereafter he was complimented by the proj-
ect manager.
Goold's next problem arose, however, after a union
meeting was held at his home, and although Goold suf-
fered a disability through no fault of his own, as far as the
record shows in the performance of his employment duties,
Respondent was unforgiving. Although provided with veri-
fication, Saunders expressed skepticism about Goold's in-
jury at the same time declining Goold's invitation that he
check with the doctor. The vastly different treatment ac-
corded Goold under somewhat similar circumstances be-
fore and after his known union activity, when considered
with the conflicting statements given by management as to
Goold's employment status thereafter, lead to the inevita-
ble conclusion that the reasons advanced by Respondent
for Goold's termination were a pretext to conceal the real
reason which was his leadership in the union movement, as
Saunders subsequently revealed to three employees. In this
state of affairs and in view of the other unfair labor prac-
tices committed, including those by Manager Saunders
himself, I find that the termination of Goold on January
14, 1977, was discriminatorily motivated to discourage em-
ployees' union activity, in violation of Section 8(a)(3) and
(I) of the Act.
3. Mark Rushing: Rushing had apparently worked for
24 I credit the above testimony by the General Counsel's witnesses which
is essentially mutually corroborative. Although Goold's teatimony with re-
spect to obtaining signatures on union authorization cards was not always
clear, there is no reason to believe that he was not truthful about the events
set forth here.
Scott Management at its Century Square complex some-
time in the past as an assistant manager; he quit that job
because of a dispute with the manager. On April 6, 1976,
he was hired as a caretaker at Woodbrook II, where, he
testified, he did not see eye to eye with the manager on
"personal matters" and "I guess he was going to fire me,"
so Rushing transferred to the Apple Grove complex where
John Gauthier was manager.
On November 20, 1976, Rushing met with other employ-
ees to discuss complaints against the Company, and Mar-
garet Lewis gave him a union authorization card. He
signed the card December 7, 1976, and subsequently gave
out cards to other employees.
Around the middle of January 1977 while Rushing was
driving a company jeep to remove snow at the complex, the
transmission failed, and when Gauthier took the jeep for
repair he was told that a driver would have to hit some-
thing awfully hard to cause such a failure.
Rushing was among the group of employees who helped
the Union prepare for the RC case hearing. He was subpe-
naed to appear in that matter January 20, 1977, and he told
Manager Gauthier that he was subpenaed to go to court.
Gauthier replied that Rushing was taking too much time
off from work. When Rushing came to work the next day,
January 21, 1977, Gauthier told him to go home, that Gau-
thier would call and talk to him later as Gauthier had to
speak to Herb Collins, the property manager. Rushing re-
ported on the morning of January 22, but Gauthier sent
him home again, saying he would call later as he still had
to talk with Collins. On Monday morning, January 24,
Rushing once more reported for work and this time Gau-
thier said, "That he is going to have to terminate me . . .
that Herb Collins told him to terminate me and he said he
was going to lay me off," and that Rushing would get paid
through the week he did not work. Rushing had never been
disciplined, and he never received an explanation for his
termination.25
Rushing was active in the union campaign, signing a
card and soliciting signatures of other employees, and help-
ing the Union prepare for the RC case hearing. Although
there is no indication of Employer knowledge of those ac-
tivities, I infer and find that when he revealed on January
20, the first day of the RC case hearing, that he had been
subpenaed to go to court, management immediately cor-
rectly concluded that he was scheduled to testify on behalf
of the Union in that proceeding. Manager Gauthier there-
upon charged him with excessive absenteeism although
there is no information of absenteeism or prior accusations
of absenteeism. Moreover, even though Rushing had con-
flicts with two other Scott Management Company manag-
ers in the past, there is no evidence of a conflict with Gau-
thier and Rushing's one transgression-damaging the
jeep-had been passed over without remonstrance. These
facts, along with Gauthier's effectively barring Rushing
from the premises until he could convey the new intelli-
gence to his property manager and his failure to give any
reason for Rushing's termination, require the conclusion
that the real reason for Rushing's termination was his sub-
25 Based on testimony of Rushing. I do not credit his testimony that Gau-
thier told him on one occasion that the Union was no good, as that testi-
mony was considerably undermined on cross-examination
SELIGMAN & SSOCIATES, INC.
..
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pena to testify at an NLRB hearing in support of the
Union's cause. I conclude that the termination was a viola-
tion of Section 8(a)(4) and as the intent and effect was to
discourage activity in support of the Union, a violation of
Section 8(a)(3) and (1) as well.
4. Harold and Madeline Dodson. The Dodsons were
hired by Manager Bruce Saunders October 5, 1976, to
work as a caretaker couple at Utica Green Apartments.
The Dodsons voiced many complaints about the working
conditions, including the lack of tools to get the job done,
not getting training they were promised, the Company's
refusal to pay utility bills on their apartment, and not feel-
ing accepted by, and being incompatible with, the younger
employees.
Beginning on November 17, 1976, Sam Goold paid sev-
eral visits to the Dodsons advocating the Union. On No-
vember 19, 1976, they signed union authorization cards.
Two days after they attended the first union meeting at the
union hall in Detroit (they attended two or three more
meetings after that), Saunders read to the staff of the com-
plex the letter signed by Scott Seligman that the Company
planned to do away with the caretaker system and contract
help from the outside. Madeline Dodson asked if the Com-
pany would not have to hire unionized help, but Saunders
responded. "No, we can get around that." Betsy Saunders
added that she and her husband would try to place all of
their caretakers as assistant managers in other complexes
as they were good workers.2 6
Three days later, on December 9, 1976, at 5:30 p.m.
Saunders ordered the Dodsons to report to the Grosvenor
North complex the next morning as assistant managers.
Although Saunders had told Property Manager Neilson
that the Dodsons were slow workers and constant com-
plainers, they were greeted on arrival at Grosvenor North
by Managers Frank and Mary Ann Slanda and by Neilson
who told them they had been promoted and they could
disregard the Seligman letter about being replaced by a
subcontractor. The Dodsons nevertheless performed the
same caretaker duties they had performed at Utica Green
with no increase in pay or moving expenses. They com-
plained to the Slandas about these matters and about not
having the tools to do their work. Frank Slanda once told
Harold Dodson he hoped the Company did not call in
outside help as he preferred caretakers. Thereafter Frank
Slanda remonstrated several times with both Dodsons for
being slow. Around midnight on January 19, Slanda tele-
phoned Harold Dodson and told him to go out and snow-
blow the sidewalks. Dodson protested that it wasn't snow-
ing enough and the wind was still blowing. After accusing
Dodson of crying about his job, Slanda agreed to let Dod-
son use his own judgment as to when to clear the walks.
Harold Dodson attended the first two sessions of the
RC-case hearing beginning January 20, 1977, under a
union subpena. He testified at the third session, held on
February 8, 1977. The next day when he gave Frank Slan-
da the future hearing schedule and informed him that
26 According to Phyllis Davis, Betsy Saunders told her and Mary Anne
Johnson in late December that if they were transferred, she would see that
it was to a nice place and added that if everybody was transferred, maybe it
would break the Union up.
Madeline Dodson had also been subpenaed, Frank in-
formed Harold that their attending the hearing would
count as their days off.
The Dodsons were terminated February 16, 1977, 8 days
after Harold Dodson testified contrary to the Company's
interests in the RC-case hearing. They were summoned to
the office where they found the Slandas and Neilson, who
informed them of their termination. They asked the reason,
and Neilson said they would get the reason in a letter. They
never received the letter. Later, Neilson told them they
were terminated "due to paperwork" and they "didn't
complete the job." The only paperwork Dodson knew of
was the service reports he was required to make out every
day by listing on a sheet posted in a closet requests for
parts he needed and the jobs he had done that day. Dod-
son testified that he made the required reports every day
the sheet was posted but that sometimes no sheet was post-
ed in the closet. Dodson testified he never refused to do
anything Slanda told him to do, except once in January
when he had been assigned duties after quitting time on
three occasions in a week, without extra pay, and he told
Slanda he was not going on doing that night after night.
The Dodsons were never disciplined or warned that their
jobs were in danger at either Utica Green or Grosvenor
North.27
Although the Dodsons were fairly active union adher-
ents, the evidence as I see it fails to establish that Respon-
dent was aware of it until January 20, 1977, when Harold
Dodson attended the RC-case hearing. Although two on-
site managers considered them slow workers, and although
it is clear that they were constant complainers at both sites,
these faults were tolerated, and apparently played no part
in the decision to terminate them. Indeed, the reasons giv-
en for their discharge do not make much sense. To the
extent they were meant to convey failure to perform or
properly perform required paperwork, Harold Dodson ex-
plained its falsity, and there is no basis for the accusation
of failure to complete any job to which either was assigned.
As the reasons given by Respondent for the discharges do
not stand up, I infer and find on the basis of the timing of
the discharges shortly after Harold Dodson testified con-
trary to Respondent's interests at the RC-case hearing and
notified management of the future RC-case hearing sched-
ule at which Madeline Dodson was also subpenaed to testi-
fy on behalf of the Union, and in the absence of any other
triggering event, that the Dodsons were terminated because
of Harold Dodson's testimony and in anticipation of his
and Madeline Dodson's future testimony for the Union at
the RC-case hearing. I conclude that these discharges, on
February 16, 1977, were also violative of Section 8(a)(4),
(3), and (1) of the Act.
5. The Davises and Johnsons: (a) Lysle Davis and Rodney
Johnson: Lysle and Myrl Davis were hired by Manager
Bruce Saunders as a caretaker couple at Utica Green in
I7 credit the above mutually corroborative testimony of Harold and
Madeline Dodson. I do not credit Harold Dodson that Bruce Saunders told
him in January. in Madeline Dodson's presence. that Saunders had seen
Dodson's car at Sam Goold's home and asked if they were attending a
union meeting there. as the testimony was not corroborated by Madeline
Dodson and was inconsistent with a statement in Harold Dodson's pretrial
affidavit that Saunders never said anything to him personally about the
Union.
SELIGMAN &r ASSOCIATES, INC. 121
June 1976. Rodney and Mary Johnson were another care-
taker couple at Utica Green. The Davises began discussing
the Union with Sam Goold early in November. On No-
vember 17, Lysle signed a union authorization card at
Goold's behest. Thereafter, Myrl signed a card, and the
two of them accompanied Goold when he obtained the
signatures of Larry and Phyllis Davis and Rodney Johnson
on November 17 and 18. The Davises attended two union
meetings, one at the union hall and one at Goold's home.
Manager Saunders made Lysle a maintenance man at
the time Goold was switched to painting, and Saunders
implied that he was going to make the Davises assistant
managers at Utica Green, but I construe Lysle Davis' testi-
mony as indicating that they never were made assistant
managers there.
Lysle Davis and Rodney Johnson attended the RC case
hearing, under subpena, and Saunders asked Johnson after
every session what happened there. On a date in February,
Scott Seligman asked Lysle to meet him in the rental office
of the Fox Lane complex which was under construction
across the street from Utica Green. At the meeting Bruce
Saunders, who was also acting as manager of Fox Lane
temporarily, was also present. Seligman informed Davis
that he and his wife would be transferred to Fox Lane as
assistant managers. Early in March, Saunders announced
to the Utica Green staff that Lysle Davis was assistant
manager of Fox Lane; the Johnsons assistant managers
there under Davis; and that Larry and Phyllis Davis were
assistant managers at Utica Green.
Lysle Davis testified that in his opinion both he and the
Johnsons earned their promotions to assistant manager
and deserved them. Lysle Davis subsequently became
manager of Fox Lane.28
(b) Larry and Phyllis Davis: On August 24, 1976, Bruce
Saunders hired the Davises as a caretaker couple at Utica
Green. As stated above, Lysle and Myrl visited them on
November 17 or 18 with Clarence Goold to discuss union-
ization, and both signed union authorization cards. Larry
thereafter accompanied Goold to several of the other Scott
Management Company apartment complexes passing
union cards among employees. Larry and Phyllis Davis
also attended union meetings at the union hall in Detroit
and at Goold's home, and advocated the Union in conver-
sations with employees.
As found above, Saunders made the Larry Davises assis-
tant managers at Utica Green in early March at the same
time the Lysle Davises and the Johnsons were made assis-
tant managers at Fox Lane. Subsequently, on April 5,
1977, Scott Seligman and Property Manager Dave Whit-
man informed Larry and Phyllis that the Saunderses had
resigned and they were managers in charge of Utica Green.
Joanne Patterson succeeded Whitman as property manag-
er, and on May I, Larry Davis notified her he wished to
return to maintenance work. After checking with Scott Sel-
igman, Patterson agreed. Larry Davis was transferred to
28I credit the corroborative testimony of Larry and Phyllis Davis. No
reliance is placed on the testimony of Phyllis Davis as to a subsequent
conversation she had with Property Manager Patterson about the reasons
for the discharges of Larry. Ricky. and Charles Davis as that testimony was
ambiguous.
maintenance and given a pay increase bringing his salary
alone to more than he and Phyllis had been making togeth-
er. Patterson informed Phyllis (who was pregnant) she
would not have to work any more; Phyllis asked if that
meant she was laid off; Patterson said she preferred her to
resign and promised a letter of recommendation. Phyllis
Davis did not work after that.
On May 9, 1977, Acting Manager Sharon Campbell
called Larry and his brother Ricky Davis into the office
and told them, according to Larry, "it was not her decision,
but. . . you guys are terminated" adding that "she had no
reason" and was only following Joanne Patterson's or-
ders. 28
(c) Ricky Davis: Manager Saunders hired Ricky Davis
July 12, 1976, as a grounds keeper at Utica Green where
his father and mother Lysle and Myrl Davis worked as a
caretaker couple. Ricky was present when Clarence Goold
solicited Lysle and Myrl Davis to sign union authorization
cards, and Ricky also signed a card, on November 18,
1976. Thereafter Ricky attended five or six of the union
meetings. Saunders was told of Ricky's union involvement
at the Christmas or New Year's party.
In April 1977, when the Saunderses left Utica Green and
Ly,:e and Myrl Davis were placed in charge, Ricky was
mcved up to caretaker. As found above, on May 9, after
the elder Davises had been transferred to Fox Lane, Ricky
wa; terminated along with Larry Davis by Sharon Camp-
bell without being given any reason.29
(d) Charles Davis: In late March or early April 1977
Pruperty Manager Dave Whitman and Manager Bruce
Saunders told Lysle Davis to get a maintenance man for
Fox Lane. They agreed to Lysle's suggestion that he could
persuade his son Charles to quit the job he had to come to
work there. After three or four weeks, Charles agreed and
was hired April 18, 1977, as maintenance man at Fox Lane.
Three weeks later, on May 9, after Saunders had resigned
and Joanne Patterson had succeeded Whitman as property
manager, Patterson told Lysle Davis she understood he
had his son working there, and "we have a policy of not
hiring relation[s] and that I want him discharged as of
now." Lysle protested that Charles' employment had been
okayed by Whitman and Saunders, but Patterson respond-
ed, "They are not with us any more." Lysle informed
Charles of his discharge that same day, giving as the reason
that Patterson said, "they didn't want relations working
there." Lysle Davis, to Respondent's knowledge, had
worked with his sons Larry and Ricky at Utica Green and
he was aware of no rule against it until this incident. Larry
Davis testified, however, that he asked Bruce Saunders sev-
eral times in March 1977 for a transfer to Fox Lane after
his father was made assistant manager there, and Saunders
refused on the ground that, "they do not want relations
working together." Clarence Goold credibly testified that
David Harris, the brother of Kathy LaFrance, comanager
of Eureka Townhouses was employed as a maintenance
man at Oxford Place.30
Based on the credited testimony of Rickv Davis. corroborated in part
bs Larr, Dails
I credit the above mutually corroborative testimonv of Charles and
Lisle Davis and Clarence Goold The General Counsel failed in his efforts
Continued
SELIGMAN & SSOCIATES. INC. 121
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Conclusions: Johnson and all the Davises except
Charles, who was not hired until March or April 1977, were
among the original union advocates and active supporters
of the union campaign. That this was known to manage-
ment was revealed by the interrogation and threats to
which they were subjected by Comanager Bruce Saunders
as found above.
I agree with the General Counsel that Respondent in-
tended to convey the impression, and the employees under-
stood, that the announced reclassifications of Lysle and
Larry Davis and Rodney Johnson from caretakers to assis-
tant managers were promotions whether or not Respon-
dent meant to or ever did give them increased responsibil-
ity or pay which might be expected to result therefrom. In
determining why Respondent decided to make these
changes it is not relevant that Lysle Davis was of the opin-
ion that both he and Johnson deserved to be promoted
because he had no part in the decision. The evidence in this
record clearly shows that it would have been out of charac-
ter for Respondent to promote or transfer known union
advocates on the basis of merit at that time. Thus, in
March 1977 Respondent was virgcrously contending in the
RC-case proceeding (as it is herein) that assistant managers
are supervisors and not includible in any utit found appro-
priate or eligible to vote in an election. Moreover, although
Comanager Betsy Saunders at one point attempted to
create the impression that good caretakers would be reclas-
sified as assistant managers to save them from replacement
by subcontractors, the true reason was revealed by the
threats to replace the caretakers with subcontractors be-
cause of their union activity, by Betsy Saunders' telling
Phyllis Davis and Mary Ann Johnson it might break up the
Union if everybody was transferred, and by Bruce Saun-
ders' telling his staff, when he announced these reclassifica-
tions, that he, "didn't want to hear anything else about the
Union," and that that now "was done and over with," and
by the other unfair labor practices found above.
I therefore find that Respondent made Lysle Davis, Lar-
ry Davis, and Rodney Johnson assistant managers on
March 4, 1977, in an attempt to gerrymander the unit to
defeat the organizational efforts of the Union, and I con-
clude that it thereby violated Section 8(a)(1) as alleged in
the complaint.
With regard to the discharges, I agree with Respondent
that Phyllis Davis was not discharged along with the others
on May 9, 1977, as she was no longer on Respondent's
payroll at that time, and her May I termination is not al-
leged and the evidence does not show it to be unlawful. As
to the three Davis brothers who were all discharged May 9,
1977, Respondent argues that Charles was terminated "be-
cause of a Scott Management Company policy that a man-
ager could not hire relations to work under him." It con-
tends that Larry and Ricky were fired for unsatisfactory
to establish through the testimony of Goold that Harris is now employed at
Eureka Townhouses.
31 In my opinion, the record fails to substantiate the contentions that any
of the other unfair labor practices found herein were motivated by an at-
tempt to gerrymander the unit.
work; it concedes that the record does not reflect the un-
derlying basis for this conclusion but insists that if it were
going to fire them for union activity, it would have done so
back in December 1976 when their union activity became
known.
Regarding Charles Davis, the evidence shows that the
reason given by Property Manager Patterson for Charles'
discharge was not that there was a policy against a
manager's hiring a relation to work under him, but that,
"We have a policy of not hiring relation[s]." Nor had Larry
Davis been told by Saunders that there was a policy
against a manager's having a relation working under him;
he was told there was a policy against relations working
together. That there was no such policy as that voiced by
Patterson is shown by management's approval of the hiring
of Lysle Davis' son Charles only 3 weeks before Lysle was
told to discharge him, and by the employment of Kathy
LaFrance's brother. That there was no such policy as that
voiced by Saunders is shown by the concurrent employ-
ment of Lysle, Larry, and Ricky at Utica Green during the
summer of 1976.
None of these purported policies about employment of
relations are advanced as the reason for the discharges of
Larry and Ricky Davis. Moreover, there is no credible evi-
derce that their terminations were for unsatisfactory work
as Respondent contends. Indeed, Larry had recently been
prcmoted and Respondent concedes there is no evidence
to support any such charge against either Larry or Ricky.
No truth having been found in the reasons advanced for
these three discharges, and in view of the timing thereof 6
days after the Regional Director issued his decision and
direction of election under which all three would have been
eligible to vote, Respondent's knowledge that two of them
and their father were union advocates, and the justified
inference that Charles was suspected of being of like mind
to the rest of the family, and the other unfair labor prac-
tices committed by Respondent, I find that Respondent
discharged Larry, Ricky, and Charles Davis on May 9,
1977, because of their known or suspected support of the
Union, in violation of Section 8(a)(3) and (I) as alleged in
the complaint.
IV. REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(l), (3), and (4)
of the Act, I shall recommend that it cease and desist there-
from, and in view of the nature and extent of the viola-
tions, from any interference with the rights of its employees
guaranteed by Section 7 of the Act, and that it take certain
affirmative action designed to effectuate the policies of the
Act. Nothing in my recommendation Order shall be taken
as justification for the reduction of benefits presently en-
joyed by any of Respondent's employees. Inasmuch as Re-
spondent's unfair labor practices directly affected many
employees at seven of its apartment complexes, in view of
the nature and extent of the unfair labor practices found,
and as they were committed by Respondent's managers,
project managers, and president, I find no merit in Re-
spondent's contention that notices should be required only
in those complexes where unfair labor practices were com-
SELIGMAN ASSOCIATES, INC. 123
mitted, and find that the policies of the Act will best be
effectuated by requiring that notices be posted in all 21
complexes employing unit employees.
Having found that Respondent violated Section 8(a)(1)
by discharging David and Susan Younce, Section 8(a)(3)
and (1) by discharging Clarence Goold, Larry Davis, Ricky
Davis, and Charles Davis, and Section 8(a)(3), (4), and (1)
by discharging Mark Rushing, Harold Dodson, and Made-
line Dodson, I shall recommend that it offer them immedi-
ate, full, and unconditional reinstatement to their former
jobs or, if their jobs no longer exist, to substantially equiva-
lent jobs, without prejudice to their seniority or other rights
and privileges; and make them whole for any loss of pay
suffered by reason of the discrimination against them, in
the manner described by F. W. Woolworth Company, 90
NLRB 289 (1950). Interest will be paid as provided in Flor-
ida Steel Corporation, 231 NLRB 651 (1977); see, generally.
Isis Plumbing & Heating Company, 138 NLRB 716 (1962).
Whether or not Respondent has made adequate offers of
reinstatement to some of the discriminatees as it claims,
had best be left to the compliance stage as this matter was
not fully litigated.
The General Counsel requests that as part of the remedy
for the unfair labor practices committed, Respondent be
ordered to bargain with the Union as the exclusive repre-
sentative of the employees in the unit found appropriate by
the Regional Director in his Decision and Direction of
Election in Case 7-RC-1401 1. Respondent contends that
that unit is not appropriate, that in any event the Union
does not represent a majority of employees in that unit,
and that a bargaining order is not justified.
I have carefully reviewed the entire record in this pro-
ceeding as well as in Case 7-RC-1401 1 including Respon-
dent's contentions that the apartment projects where these
employees work are owned by separate legal entities; some
are located as far as 60 miles from others; the projects are
of various sizes and rentals, and cater to tenants of varying
economic status; some are HUD regulated and some are
not; Respondent keeps strict account of the income and
expenditures of each complex separately; a substantial
amount of the hiring and firing is done by the onsite man-
agers who determine specific wages and are the employees'
immediate supervisors. However, based on Respondent's
centralized method of operating, its central control of labor
policy including wage and salary ranges, benefits, replace-
ment of classifications of employees by subcontractors,
and its authority to require recommendations before hir-
ing, its coordinating of operations through monthly man-
ager meetings, directives, and recommendations, the over-
all supervision of employees exercised by Scott Seligman
and the property managers, the authority of some onsite
managers over more than one complex and the transfer of
managers, the borrowing and sharing of work, supplies,
and equipment, the similarity of employee duties, classifi-
cations, and their wages, salaries, and benefits, and the in-
terchange in transfer of employees, 1 find that the employ-
ees employed at the 21 apartment complexes managed by
Respondent in the metropolitan area of Detroit share com-
mon interests in their wages, salaries, and working condi-
tions, and therefore comprise an appropriate unit, as found
by the Regional Director and alleged in the complaint. 32
The relevant credible evidence establishes, and I find,
that the assistant managers and assistants to managers are
at most leadmen or straw bosses, and fails to support Re-
spondent's contention that they are supervisors within the
meaning of Section 2(11) of the Act. They are therefore
properly included in the unit.
The General Counsel offered signed union authorization
cards 33 to establish the majority status of the Union on the
dates referred to below. There is in evidence an employee
list for the pay period ending December 3, 1976, which
shows that on that date Respondent employed 109 employ-
ees in the classifications specifically included in the appro-
priate unit of 21 complexes. 4 The General Counsel has
32 Roman Catholic Orphan Alum of San Francisco, d h a Mount St
Joseph', Home for Girls, 227 NLRB 404 1976): Chatham To*ing Company,
Inc. a Wholl/ Owned Subsidiary of Colonial Oil Industries, Inc. 226 NLRB
502 (1976); U-7Tone-Em Grocery Co., division of Malone & Hyde, Inc., 185
NLRB 52 (1970). Contrary to Respondent's contention, the multicomplex
unit would not be rendered inappropnate even if the complex owners are
separate joint employers, along with Respondent. of the employees of their
complexes. Archdiocese of Philadelphia, etc. 227 NLRB 1178 (1977). No
part) contends that the employees of Goddard ('ourt Apartments, or Du-
page Green or Woodbury Condominiums, excluded b Regional Director.
shculd he included In the unit.
Respondent's challenge to the following cards is without ment: Re-
sp ,dent challenged the card of Mark Trustkowski because it was signed at
the apartment and in the presence of Marjorie Wrobel, the manager of the
cotmplex where he worked and his supervisor, and because Wrobel herself
signed a card and told the four employees present that the Union was a
good idea and that she thought there should be a union at the Compan). As
Trustkowski's signature was solicited b his cousin, employee Margaret
Le.,is. and not by Wrobel, who did not take an active part in the Union
campaign, there is no hint that Trustkowski signed out of fear of repnsal by
Wrohel or Respondent for refusing to do so. I therefore find his card valid.
NL.R.B. v. WKRG TV, Inc., 470 F.2d 1302 (5th Cir. 1973): Independent
Sprinkler& Fire Protection Co.. 220 NL.RB 941 (1975). 1 have examined with
care Insular Chemical Corporation. etc., 128 NLRB 93 (1960): Raymond
Buick, Inc. 173 NLRB 1292 (1968): and other cases to which Respondent
has referred me and have concluded that they are distinguishable on their
facts. There is no probative evidence in support of Respondent's challenge
to the card of Michael Bodell. Although there is evidence which creates
some doubt about the cards of Frank and Dolores Thatch, on the whole I
credit Mark Rushing's testimony that he knows them and that they signed
their cards in his presence. As Craig Feebish, assistant manager, is not a
supervisor. I find his card valid, and the cards of Debbie Feebish, Margaret
Lewis. and Gordon Brown valid though signed in his presence with his
er :ouragement. That Terry Smith signed a card on February 14, 1977, too
late to be relevant, does not detract from the validity of the card she signed
earlier on December 7. 1976.
Challenges to the following cards were sustained at the hearing: A card
bearing the name Verna Porter dated December 7, 1976, because she was
not an employee of Respondent: cards bearing the names Micky Caldwell,
Debbie Williams. and Murray Young all dated December 7, 1976, were not
properly authenticated: cards signed by Janet Smith on February 14, 1977.
and Robert Drude on April 17, 1977. were too late. Challenges to the fol-
lowing cards are now sustained: The card of Charles Davis dated May 16.
1977, is too late: a card bearing the name Alice Ickes dated December 7.
1976. was not properly authenticated; Marorie Wrobel signed a card De-
cember 7, 1976, but is a supervisor: the cards of Frances and Dennis Wilk-
erson dated February 8. 1977. are too late: Cheryl Talkington signed a card
December 7, 1976. but was not an employee of Respondent; Sandra Lewis
was no longer employed when she signed a card November 22 or 23, 1976:
there is no evidence that the cards of Timoth) Taylor and Debra Taylor
were signed on December 19. 1976. or an) other relevant date: the record
shows that Robert Kaster was no longer employed on the date he signed a
card, December 6, 1976: Barbara Carter who signed a card on December
18, 1976. was on neither the December 3 nor the December 20, 1976, pay-
roll.
4 The name of Linda Smith. who was hired as a caretaker at Southland
Apartments December 2. 1976, and discharged December 7. 1976. is includ-
ed in this number.
SELIGMAN & ASSOCIATES, INC. 23
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
introduced only 27 valid union authorization cards dated
on or before December 3, 1976."
The only other period for which we have an accurate
reliable payroll list in evidence is that ending December 20,
1976, when the unit complement totaled 125 employees.36
The General Counsel presented only 44 valid cards signed
on or before December 20, 1976.37
35 These cards were signed by the following employees on the dates stat-
ed:
Michael Karpouskie
Theresa Bryan (Ryan)
Joe Gerwatowski
Mary Wendel
Kenneth Peer
Ginger Peer
Darrel Ezmerlian
Margaret Lewis
David Hughs
Craig Feebish
Debbie Feebish
Gordon Brown
Jim Schulz
Nellie Schulz
John Hodges
Dorothy Hodges
Clarence Goold
Lysle Davis
Myrl Davis
Harold Dodson
Madeline Dodson
Larry Davis
Phyllis Davis
Robert Kimberly
Ricky Davis
Rodney Johnson
Mary Johnson
11/21/76
11/21/76
11/22/76
11/22/76
12/03/76
12/4/76)
12/03/76
12/4/76)
11/20;76
11/20/76
11/20/76
11/20/76
11/20/76
11/20/76
11/2,1/76
11/2t,/76
11/22/76
11/22/76
11/20/76
11/17/76
11/18/76
11/19/76
11/19/76
11/18/76
11/18/76
1 1/17/76)
11/22/76
11/18/76
11/18/76
11/18/76
(erroneously
(erroneously
dated
dated
(erroneously dated
As the Board has never to my knowledge issued a bar-
gaining order where, as here, the Union is not shown to
have represented a majority of employees in the appropri-
ate unit, I conclude that such an order is not justified in
this case. In these circumstances, no determination is made
as to whether the unfair labor practices committed by Re-
spondent would have warranted a bargaining order under
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), if
majority status had been shown.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 38
The Respondent, Seligman & Associates, Inc., and its
Wholly Owned Division, Scott Management Company,
Southfield, Michigan, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interfering with employees' Section 7 rights or dis-
couraging membership in Local 79, Service Employees In-
ternational Union, AFL-CIO, or any other labor organiza-
tion, by discharging or otherwise discriminating against
enployees in regard to hire or tenure of employment or
any other term or condition of employment.
(b) Coercively interrogating or threatening employees,
or prohibiting them from talking to new employees about
the Union.
(c) Transferring, promoting, or reclassifying employees
in an attempt to gerrymander the unit in a Board election.
(d) Threatening to discharge employees for testifying at
a Board hearing.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer David Younce, Susan Younce, Clarence
Goold, Larry Davis, Ricky Davis, Charles Davis, Mark
Rushing, Harold Dodson, and Madeline Dodson full, im-
nmediate, and unconditional reinstatement, and make them
whole with interest, in the manner described in the remedy
section of this Decision.
Carter Baxpon 12/07/76
Terry Smith 12/07/76
Yolanda Reynolds 12/07/76
Robert Keating 12/07/76
James Shulz 11/20/76
Nellie Schulz 11/20/76
Emmett Ickes 12/07/76
Charles Reynolds 12/07/76
Vera Young 12/07/76
Elka Yanke 12/07/76
Daniel Marler 12/06/76
Elizabeth Wasilewski 12/07/76
Matthew Young 12/07/76
Dennis Wilkerson 12/04/76
38 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 be deemed
waived for all purposes.
36 Four card signers were terminated between the two payroll periods-
Theresa Bryan, Michael Karpouskie. John Hodges. and Dorothy Hodges.
ed These cards were signed by the following employees on the dates stat-
ed:
Ricky Davis
Phyllis Davis
Larry Davis
Clarence Goold
Madeline Dodson
Robert Kimberly
Myrl Davis
Lysle Davis
Mark Rushing
Rodney Johnson
Debra Feebish
Craig Feebish
Mike Bodell
Mary Johnson
Harold Dodson
Margaret Lewis
Gordon Brown
David Hughes
Joe Gerwatowski
Mary Wendel
Kenneth Peer
Ginger Peer
Sandra Miller
Richard Miller
Mark Trustkowski
Dewaine Brown
Darrel Ezmerlian
Pat Carter
Dolores Thatch
Frank Thatch
11/13/76
11/13/76
11/18/76
11/20/76
11/19/76
11/22/76
11/18/76
11/17/76
12/07/76
11/18/76
11/20/76
11/20/76
12/07/76
11/18/76
11/19/76
11/20/76
11/20/76
11/20/76
11/22/76
11/22/76
12/03/76
12/03/76
12/07/76
12/04/76
12/07/76
12/04/76
11/20/76
12/18/76
12/07'76
12/07 76
SELIGMAN & ASSOCIATES, INC. 125
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to determine the amount of backpay due under this
recommended Order.
(c) Post at the Apple Grove Apartments, Belmont
Manor Apartments, Century Square Townhouses, Con-
gress Hills Apartments, Eureka Garden Townhouses
(Phases I & 2), Fox Lane Apartments, Grosvenor North
Apartments, Grosvenor East Apartments, Oxford Place
Townhouses, Park Hills Apartments, Roanoke Apart-
ments, Mayfair Apartments, Rushmore Apartments, San
Dee Apartments, Southland Apartments (Phases I & 2),
Utica Green Apartments, Utica Plaza Apartments, and
Woodbrook Apartments (Phases I & 2) in the Detroit
Michigan Metropolitan Area copies of the attached no-
tice.39 Copies of said notice, on forms provided by the Re-
gional Director for Region 7, after being signed by an au-
thorized representative of Respondent, shall be posted by it
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 cus-
tomarily posted. Reasonable steps shall be taken to insure
that notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
1h IS FURTHER ORDERED that all allegations of the com-
plaint not specifically found herein be dismissed.
In the event that this Order is enforced by a judgment of a United
Slates 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."