Sun City Center Corp.

National Labor Relations Board - Board Decisions

Aug 23, 1990

299 N.L.R.B. 549 (N.L.R.B. 1990)

SUN CITY CENTER CORP

549
Sun City Center Corporation and Beverly K.
Parker and Gertrude M. Coleman and Virginia
L. Dermon. Cases 12-CA-13433-1, 12-CA-
13433-2, and 12-CA-13433-3
August 23, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
, DEVANEY AND OVIATT
On February 6, 1990, Administrative Law Judge
Lowell Goerlich issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions, and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Sun City
Center Corporation, Sun City, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order
'In adopting the judge's findings that the Parker, Coleman, and
Dermon discharges violated Sec 8(a)(I), we find it unnecessary to rely
on the judge's charactenzation of this case as one involving "employer
conduct Inherently destructive of employees' protected nghts "
Michael R Mauna'', Esq , for the General Counsel
Mark E Levitt, Esq (Hogg, Allen, Norton & Blue), of
Tampa, Florida, for the Respondent
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge The
original charge in Case 12-CA-13433-1 filed by Beverly
K Parker, an individual, on June 16, 1989, was served
on Sun City Corporation on the same date by certified
mail The original charge in Case 12-CA-13433-2 filed
by Gertrude M Coleman, an individual, on June 16,
1989, was served on the Respondent on the same date by
certified mail The original charge in Case 12-CA-
13433-3 filed by Virgima L Dermon, an individual, on
June 16, 1989, was served on the Respondent on the
same date by certified mail A complaint and notice of
hearing was issued on July 25, 1989 In the complaint,
among other things, it is alleged that the Respondent dis-
charged its employees, Parker, Coleman, and Dermon on
April 12, 1989, because they engaged in concerted activi-
ties for the purpose of mutual aid and protection and in
order to discourage employees from engaging in such ac-
299 NLRB No 84
tivities or other concerted activities for the purpose of
collective bargaining or other mutual aid and protection
in violation of Section 8(a)(1) of the National Labor Re-
lations Act (the Act) The Respondent filed a timely
answer denying that it had engaged in the unfair prac-
tices alleged
The matter was heard on November 1, 1989, at
Tampa, Florida Each party was afforded a full opportu-
nity to be heard, to call, to examine and cross-exanime
witnesses, to argue orally on the record, to submit pro-
posed findings of fact and conclusions, and to file briefs
All briefs have been carefully considered
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
I THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent, a Delaware cor-
poration with an office and place of business in Sun City,
Florida (the Respondent's facility), has been engaged in
the sale and management of real estate
During the past 12 months Respondent, in the course
and conduct of its business operations described above,
derived gross revenue in excess of $500,000, and pur-
chased and received at its Sun City, Florida facility
goods, products, and materials valued in excess of
$50,000, which were either shipped directly from suppli-
ers located outside the State of Florida, or were shipped
by suppliers within the State of Florida, who, in turn, re-
ceived these goods, products, and materials directly from
outside the State of Florida
The Respondent is now, and has been at all times ma-
terial, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
II THE UNFAIR LABOR PRACTICES INVOLVED
\
Facts
During the period in which the events detailed here
occurred, Jerry Starkey was the Respondent's vice presi-
dent and chief operating officer and Richard Vander-
meer was Respondent's vice president of sales The three
dischargees, Beverly K Parker, Gertrude M Coleman,
and Virginia L Dermon, until their separations from em-
ployment, were sales associates working "strictly on
commission" They were responsible for selling newly
constructed houses 1 Coleman was the top salesperson
for the third quarter of 1988 According to Starkey
"Trudy has championed new sales associates She's
helped train them" Coleman commenced employment in
1972 Starkey referred to both Coleman and Parker as
"top producers They were leaders They
were respected by their peers "At the meeting of
April 12, 1988 (see infra), Starkey testified, "I opened up
1 Parker descnbed the job as follows "I sold homes to retired people
We would show our models, send out literature, make telephone calls
and, hopefully, sell them the retirement home"
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the meeting by telling them that they were very valued
employees, that they had always been top producers"
Parker was first employed in February 1986
On April 3, 1989, sales associates were assembled in a
special meeting at which Vandermeer announced a new
commission structure Parker testified that by the new
structure commissions were cut "about 40 percent" Ac-
cording to Vandermeer after the announcement of the
commission structure change the general reaction of all
the employees was "Disappointment most people
didn't consider it to be a positive move"
On the night of April 3, 1988, 13 or 14 sales associates
met at Parker's house where the Respondent's restructur-
ing of the employees' commission was considered by the
employees present According to Parker, whom I credit,
the employees decided "to do three different things One
was to be silent in our regular sales meetings The other
was to send a letter to Rich Vandermeer with copies to
Jerry Starkey and Mr Hoffman [sic], owner of the com-
pany And the third was to all boycott the sales award
banquet "2 The purpose of the employees' action in this
regard was to protest the commission cut
After the employees had discussed what the proposed
letter should contain, Parker prepared it and circulated it
among the employees for their signatures the next morn-
ing Fourteen employees signed the letter, which read as
follows
Date Apnl 4, 1989
To Mr Rich Vandermeer
From The Undersigned
The intent of this letter is to put Sun City Center
Corporation on notice that the undersigned do not
agree with the new commission reduction presented
at your meeting of April 3, 1989 Due to the unique
style of selling in Sun City Center and the be-back
client ratio, a sales person can not survive on the
new scale We propose that the commission per-
centage remain 2 1/2%
Starkey received the letter about April 5, 1989
At the regular sales meeting on April 6, 1989, at which
attendance was mandatory, the sales associates did not
fully participate, Starkey referred to it as "a freezeout "
On April 10, 1989, the three dischargees received their
invitations to the "Annual Sales Award Banquet &
Murder Mystery Party "3 All alleged dischargees an-
swered the RSVP on the invitation in the negative 4
The sales banquet and party had never been billed as a
condition of employment attendance to which was man-
datonly required nor had it been so administered Parker
2 The program of the "sales award banquet," which was to occur on
Apnl 15, 1989, referred to this event as "Annual Sales Award & Murder
Mystery Party" (0 C Exh 4) On the invitation to the party appeared,
You'll be both a detective and a suspect as you witness a murder, search
for clues, and track down rouges and deceivers in an effort to solve the
come"t"
3 The Sales Award Banquet and Murder Mystery Party is sometimes in
the record and here referred to as the sales party or sales banquet or
both
* The mvitation contained this language "R S V P immediately (or
else) " (GC Exh 4)
credibly testified that she had failed to attend a banquet
in 1987 without reprisal or discipline Coleman testified
that employees "assumed" that they were expected to
attend unless they had some legitimate excuse Indeed
one employee skipped the 1989 banquet without repri-
mand because he preferred being with a customer
Starkey testified that employees were "expected" to
attend the banquet "It's a normal part of business"
"[R]easonable excuses" were allowed
Vandermeer testified of attendance at the banquet, "I
would consider it mandatory It was expected that
people—the invited people would attend, especially the
sales counsellors, yes" However, he indicated there
could be excused absences Vacation was one, illness an-
other, or "tied up on business of some sort"
According to Vandermeer the purpose of the sales
banquet was "[t]o honor the top sales performers, to pro-
mote morale, to give peers goals to set or to shoot for,
people that they can copy, follow"
Starkey testified that "there's no writings that I'm
aware of that require them to attend the sales banquet"
According to Starkey between April 3 and 12 Vander-
meer contacted the sales associates individually "doing
somewhat of a sales job on the company's behalf that
this new structure was really not a devil, if you will, not
so bad, and that the individuals needed to sign on to the
new structure and that they needed to continue to con-
duct themselves in the way that they had done m the
past, each of the individual sales people" After "10 days
of caucussmg" with the sales associates Vandermeer re-
ceived a "commitment" 5 from all the sales associates
except Carmen Alfonso, Parker, Coleman, and Dermon
On April 12, 1988, a memorandum was sent by Van-
dermeer to the four mentioned employees notifying them
that they were required to attend a "mandatory meeting"
(G C Exh 5) at Starkey's office Parker, Coleman, and
Dermon appeared as directed Alfonso capitulated
At the meeting Starkey insisted that the three employ-
ees accept a full commitment to the Respondent, which
must include attendance at the sales party All three em-
ployees refused to accept the commitment as defined by
Starkey He further testified that the employees could
not have given "a full commitment" without going to
the party "I was asking them to be a team member and
make a total commitment to achieving the company
goals The corporation sets a set of goals at the
top they could not achieve that goal unless 'they
went to the party PP
Starkey expressed the purpose of the meeting with
Coleman, Parker, and Dermon as follows
The purpose of the meeting was to call the four
individuals that were named on the memorandum
from Rich to the meeting As I said earlier,
Carmen Alfonso had called in sick that morning,
and stated that she was going to make a commit-
ment to the new organization, the new structure,
and that she would be coming to the sales banquet
The "commitment" included an agreement to attend the sales ban-
quet
SUN CITY CENTER CORP

551
So I had the meeting at about 9 15 with Beverly,
Trudy and Ginger
The purpose of that meeting was for me to reiter-
ate to them that they were very valuable employees
of the company, particularly Beverly and Trudy,
because they had been top producers since I had
been with the company and, as I had been told, for
several years in the past, particularly Trudy I
wanted to bring them in because it was so impor-
tant to the company to explain to them once again
that the commission structure had been based upon
our purview of the industry, that I needed a full
commitment from them, that they were very valua-
ble And I opened it, I made probably a ten minute
statement at the beginning of the meeting
I called those three employees in because I had
been told that they were not planning to come to
the sales meeting and that they had failed to turn in
some reports, and that they had had a different
change in morale than what they had had in the
past
As I had said earlier, Trudy and Beverly had
been top producers, top producers at that point As
a manager, as Chief Operation Officer, as I said ear-
lier, portions of my compensation is based upon
how well the company does I have no motivation
to single out a top producer, or two top producers,
or anyone who's a member of a team, and say
"Leave" My objective was to bring them in my
office and explain the changes, explain—Trudy, on
more than one occasion, had said that she felt be-
trayed, that she felt like the company wasn't giving
any weight to what she had done in the past And
my purpose of the meeting was to call them in and
explain to them that they were very valuable, but
they had to make a full commitment And a full
commitment means that they would behave in the
way that they had always behaved in the past
So what I was doing in the meeting was asking
them to continue with the behavior that they had in
the past, and I phrased that I needed a full commit-
ment out of them And a full commitment would
be, like, if you put together a pie chart, and selling
houses is very important There are minimum
quotas that have to be met But that's just one part
of it You have to be able to motivate
JUDGE GERLICK [SIC] your position was that
they couldn't have given you a full commitment
without going to the party?
THE WITNESS Yes sir, that's correct
According to Vandermeer, at the meeting Starkey de-
fined commitment as "continued sales efforts, working
with company policies, procedures, attendance to meet-
ings and events, including a banquet " Vandermeer
testified that Coleman did not accept the commitment
because she "had a problem with the feeling of being in-
sulted by the new policy She didn't feel comfortable
with a commitment" Derman "felt like the rules had
changed from when she was hired, therefore she didn't
feel like she needed to make a commitment"
According to Starkey, Dermon felt that she had been
hired under the commission structure and the change
was "a breach of contract" Coleman felt as if she had
been "betrayed" "She felt like it was a major betrayal
that the company had no respect for her past production
and that [they] were giving no credence to what she had
done in the past" Parker was "concerned that the fol-
lowing year after she'd went through the year and had a
great year, that she would have to go back and start at
one and a half percent"
After about an hour's discussion, according to Starkey
he "just didn't get the impression that [he] got a full
commitment from these people," so they took a break
When the employees returned to the meeting again, ac-
cording to Starkey, he said that he assumed they had had
a chance to talk it over among themselves He testified,
"I wanted to reiterate that they were very valuable em-
ployees, that they had contributed in the past greatly to
the company, that they were doing a great job and that I
needed to know if they could make a commitment "6
Parker, whom I credit, 7 testified, "I asked, what dif-
ference does it make if we went to the party or not I
said, we wouldn't even be missed And Mr Starkey said,
you have set yourself up as group leaders and by not
going to this party, you are making a statement that you
do not agree with the company policy of commission"
Stanley testified, "you're sending out a message that
you're not making a full commitment by not going to the
party"
Conclusion and Reasons Therefor
By concertedly protestmg the Respondent's commis-
sion cuts by refusing to attend the sales banquet or party
the dischargees were engaging in concerted activity 9
While Respondent admits in its brief "that charging par-
ties were engaged in protected, concerted activity in ex-
pressing their protest over the change m the commission
structure," nevertheless, it claims that the dischargees en-
gaged in an illegal partial strike' s and "were discharged
for failing to perform a job requirement"
The Respondent's contentions do not conform with
the credible evidence, for the dischargees were dis-
charged not because they refused to perform a job re-
quirement or engaged in a partial strike" but because
6 The employees refused to meet the Respondent's terms According to
Starkey, "they were told their services were no longer needed" "I
had the Vice President of Personnel or Human Resources waiting
and I told him to go with them and clean out their desk"
7 The following testimony was not controverted
During the April 12, 1989 meeting, Parker said to Starkey, "We do
not agree with this new commission cut"
9 See Myers Industries, 281 NLRB 882 (1986), reaffg 268 NLRB 493
(1984) See also Landgrebe Motor Transport, 295 NLRB 1040 (1989)
79 By insisting that the dischargees engaged in a partial stnke the Re-
spondent must concede that they were engaged in concerted activity
I I Prior to Starkey's insistence that the three employees attend the
sales banquet and party, there had been no job requirement or term or
condition of employment that required mandatory attendance Indeed the
invitation Included the letters RSVP, which anticipated that some invi-
tees might decline to attend Moreover, in the past employees had not
Continued
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Respondent was bent on thwarting concerted activity
on the part of its employees directed against the Re-
spondent's commission cut The Respondent commenced
this adventure after its employees sent their letter of pro-
test by individually meeting with its employees to dissi-
pate and extinguish their concerted effort to oppose the
commission cut All except three—Parker, Coleman, and
Dermon—finally capitulated These three were sum-
moned in a seemingly star chamber session and given an
ultimatum, the main requirement of which was coerced
attendance at the sales party This prerequisite for con-
tinuing employment was obviously chosen by the Re-
spondent because the absence of Parker, Coleman, and
Dermon from the sales party as a protest against the Re-
spondent's commission cut would have an infectious
effect on other employees, which would, in all probabili-
ty, have caused a renewal of their concerted protest
against the Respondent's commission cut That Starkey
believed this is evident in his remark, "you have set
yourselve[s] up as group leaders and by not going to this
party, you are making a statement that you do not agree
with the company policy of commission" The Respond-
ent referred to Coleman and Parker as role models, top
producers, leaders, very valuable employees, and respect-
ed by their peers
I am convinced that the real reason and motive" was
to interfere with, restrain, or coerce employees in the ex-
ercise of the nghts guaranteed m Section 7 of the Act,
that is, the nght to engage in concerted activities for
mutual aid and protection 13
Nevertheless, the Respondent maintains, "The evi-
dence establishes that Respondent would have terminat-
ed the Charging Parties for permissible reasons even in
the absence of their protected conduct because Charging
Parties were terminated for engaging in an unprotected
partial stnke for refusing to perform a job requirement of
attending an annual sales banquet" This contention fails
because it is not grounded on credible facts
The credible record establishes that had the discharg-
ees failed or refused to attend the sales party and banquet
for any other reason than in conjunction with their pro-
been disciplined or censured for falling to attend the party nor was there
a written or oral work rule requiring attendance or establishing the con-
sequences of not attending Vandermeer testified that while there were
sanctions imposed on employees who did not attend the sales meetings
none were provided for failure to attend a sales banquet or party Refusal
to attend the sales banquet and party for the first time took on the es-
sence of a mandatory job condition when the reason for not attending the
sales banquet and party was the concerted protest against the Respond-
ent's reduction of employees' sales commissions
12 ' [T]he 'real motive' of the employer in an alleged § 8(a)(3) violation
is decisive" NLRB v Brown Food Store, 380 U S 278, 287 (1965) "It is
the 'true purpose' or 'real motive' in hiring or firing that constitutes the
test" Teamsters Local 357 (Los Angeles-Seattle Motor Express) v NLRB,
365 U S 667, 675 (1961) "Section 8(a)(3) prohibits discrimination in
regard to tenure or other conditions of employment to discourage union
membership It has long been established that a finding of violation
under this section will normally turn on the employer's motivation"
American Ship Building Co v NLRB, 380 US 300, 311 (1965)
13 The natural and foreseeable consequence of the Respondent's action
was to chill its employees' zest for a concerted protest against its com-
mission reduction policy Such employer conduct is Inherently destruc-
tive of employees' protected rights, the consequences of which the Re-
spondent must have intended Cf NLRB v Erie Resistor, 373 U S 221,
227, 228 (1963) See also NLRB v Great Dane Trailers, 388 U S 26, 34
(1967)
test against the Respondent's cut in commission their dis-
charges would have been unlikely As noted these em-
ployees were role models, top producers, leaders, and
valued employees, whom the employer indicated it was
anxious to retain These were not the kind of employees
who normally would have been fired for skipping a sales
party and banquet Thus there must have been another
motive I am convinced that this motive was unlawful
These employees would not have been discharged had
the discharges not been linked with their protest against
the commission cut Moreover, the Respondent has
pointed to no employee who was discharged or disci-
plined for not attending a sales banquet or party or any
established cntenon in respect to required attendance
Finally, based on the credited facts in this case, it fol-
lows that Coleman, Parker, and Dermon would not have
been discharged had they not been engaged in protected
concerted activities See Wright Line, 251 NLRB 1083
(1980) I do not believe the Respondent when it cites any
other reason for the discharges
Accordingly I find that by discharging Coleman,
Parker, and Dermon on April 12, 1989, the Respondent
violated Section 8(a)(1) of the Act 14
CONCLUSIONS OF LAW
1 The Respondent is engaged in commerce within the
meanmg of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act to assert jurisdiction
2 By unlawfully discharging Beverly K Parker, Ger-
trude M Coleman, and Virginia L Dermon on Apnl 12,
1988, for engaging in protected concerted activities for
mutual aid and protection, the Respondent engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act
3 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that
it cease and desist therefrom and take certain affirmative
actions designed to effectuate the policies of the Act It
having been found that the Respondent unlawfully dis-
charged Beverly K Parker, Gertrude M Coleman, and
Virgima L Dermon and has since failed and refused to
reinstate them to their former or equivalent positions in
violation of Section 8(a)(1) of the Act, it is recommended
that the Respondent be ordered to remedy such unlawful
conduct
In accordance with the Board policy, it is recommend-
ed that the Respondent be ordered to offer the above-
named employees immediate and full reinstatement to
their former positions or, if such positions no longer
exist, to substantially equivalent positions, without preju-
dice to their semonty or other rights and privileges pre-
viously enjoyed, dismissing, if necessary, any employees
hired on the date of their discharges to fill the positions,
14 I have examined the cases relied on by the Respondent and find
them inapposite
SUN CITY CENTER CORP 553
and make them whole for any loss of earnings they may
have suffered by reason of the Respondent's acts detailed
here, by payment to them of a sum of money equal to
the amount they would have earned from the date of
their unlawful discharges to the date of valid offers of re-
instatement, less any net interim earnings during such pe-
riods, with interest thereon, to be computed on a quar-
terly basis in the manner established by the Board in
F W Woolworth Go, 90 NLRB 289 (1950), with interest
to be computed in the manner prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ec115
ORDER
The Respondent, Sun City Center Corporation, Sun
City, Florida, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Discouraging lawful concerted activities of its em-
ployees in violation of Section 8(a)(1) of the Act by dis-
charging its employees for engaging in concerted activi-
ties for their mutual aid and protection
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Beverly K Parker, Gertrude M Coleman,
and Virginia L Dermon immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed, discharging, if necessary, any em-
ployees hired to replace them, and make them whole for
any loss of pay they may have suffered by reason of the
Respondent's unlawful discharge of them, in accordance
with the recommendation set forth in the remedy section
of this decision
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way
(c) Preserve and, on 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 nec-
15 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
3
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its facility in Sun City, Florida, copies of
the attached notice marked "Appendix " 16 Copies of the
notice, on forms provided by the Regional Director for
Region 12, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
" If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT discourage concerted activities of our
employees in violation of Section 8(a)(1) of the National
Labor Relations Act by discharging them for engaging
in lawful concerted activities for mutual aid and protec-
tion
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Beverly K Parker, Gertrude M Cole-
man, and Virginia L Dermon immediate and full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs, dischargmg, if nec-
essary, any employees hired to replace them, WE WILL
restore their seniority and other rights and privileges pre-
viously enjoyed, and WE WILL pay them backpay they
lost because we discnmmatonly discharged them, with
interest
WE WILL notify each of them that we have removed
from our files any reference to her discharge and that the
discharge will not be used against her in any way
SUN CITY CENTER CORPORATION