Triad Management Corp.

National Labor Relations Board - Board Decisions

Feb 25, 1988

287 N.L.R.B. 1239 (N.L.R.B. 1988)

TRIAD MANAGEMENT CORP 1239
Triad Management Corporation and Peggy Aeber-
sold. Case 7-CA-26191
25 February 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On 14 April 1987 Administrative Law Judge
James L. Rose issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and
a brief in support of the cross-exceptions and in
answer to the Respondent's exceptions
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,' to modify his remedy,2 and to adopt
the recommended Order as modified .3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Triad Management Corporation, Ann
Arbor, Michigan, its officers, agents, successors,
' In adopting the judge's conclusion that the object and manner of pro-
test of the work stoppage staged by employees White, Clark, and Aeber-
sold were within the perimeter of Sec 7, we find a direct nexus between
their complaint regarding a wage increase offered coworker Elizabeth St
James and the protesters' own wages, hours, and terms and conditions of
employment Thus, the protesters complained about the inequity of the
raise because it had been awarded at a time other employees were being
subjected to "belt- tightening" measures Only 2 days before the increase
to St James, White had been denied a wage increase on the anniversary
of her sixth year with the Company, and Clark had also been denied a
wage increase Also, project coordinators such as Aebersold were no
longer attending the same number of project meetings, which had in-
creased their monthly earnings by as much as $150 In addition, employ-
ees had begun paying for coffee, office supplies were more scarce, and
employees had faced the possibility of having their parking passes re-
voked
Though we agree with the judge's finding that St James was not a
managerial employee, we find that even if she were a managerial employ-
ee the activities of the three employees were sufficiently related to their
own wages and terms and conditions of employment to find that they
were engaged in protected, concerted activity
2 We deny as unnecessary the General Counsel's request for a visita-
tonal clause See Cherokee Marine Terminal , 287 NLRB 1080 (1988)
In accordance with our decision in New Horizons for the Retarded, 283
NLRB 1173 (1987), interest on and after 1 January 1987 shall be comput-
ed at the "short-term Federal rate" for the underpayment of taxes as set
out in the 1986 amendment to 26 U S C § 6621 Interest on amounts ac-
crued prior to 1 January 1987 (the effective date of the 1986 amendment
to 26 U S C § 6621) shall be computed in accordance with Florida Steel
Corp, 231 NLRB 651 (1977)
3 The judge included a broad cease-and -desist provision in his recom-
mended Order We believe a narrow provision is appropriate under the
standards of Hickmott Foods, 242 NLRB 1357 (1979), and we have modi-
fied his recommended Order accordingly
and assigns, shall take the action set forth in the
Order as modified.
1 Substitute the following for paragraph 1(b).
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act "
2. Substitute the attached notice for that of the
administrative law judge
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 ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against you because you engage in concerted
activity protected by Section 7 of the National
Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer immediate and full reinstatement
to Sandra White, Kimberly Clark, and Peggy Ae-
bersold to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions of
employment and make them whole for any loss of
wages or other rights and benefits they may have
suffered as a result of the discrimination against
them, with interest.
WE WILL remove from our files any reference to
the discharges of Sandra White, Kimberly Clark,
and Peggy Aebersold and WE WILL notify them in
writing that this has been done and that the dis-
charges will not be used against them in any way.
TRIAD MANAGEMENT CORPORATION
287 NLRB No. 132
1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Denis Boren, Esq, for the General Counsel
J. Michael Guenther, Esq., of Ann Arbor, Michigan, for
the Respondent.
Peggy A. Aebersold, of Tecumeseh, Michigan, pro se.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This
matter was tried before me at Detroit, Michigan, on 27
January 1987, on the General Counsel's complaint'
which alleged that about 18 August 1986 (and dates
thereafter) the Respondent discharged three of its em-
ployees in violation of Section 8(a)(1) of the National
Labor Relations Act, 29 U.S.C. § 151 et seq
The Respondent generally denied that it engaged in
any activity violative of the Act; and affirmatively con-
tends that Sandra White was a managerial employee and
therefore not entitled to protection of the Act, and in
any event none of the employees engaged in concerted
activity protected by Section 7
On the record as a whole, including briefs and argu-
ments of counsel, and my observation of the witnesses, I
make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
The Respondent is a Michigan corporation engaged in
the management and related services of apartment com-
plexes and condominiums. In connection with its business
the Respondent annually performs services valued in
excess of $50,000 directly for Geddes Lake Cooperative
Homes, a residential complex in Ann Arbor, Michigan,
which in turn receives gross revenues in excess of $1
million annually and purchases directly from points out-
side the State of Michigan goods and materials valued in
excess of $2500.
The Respondent admits, and I find, that it is an em-
ployer engaged in interstate commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Background
The operative facts in this matter are essentially undis-
puted. As indicated, the Respondent is engaged, among
other things, in the management of apartment complexes
and condominiums. It has a president, Ronald Duprey, a
treasurer, William Cretney, and other corporate officers.
Of the employees working out of its Ann Arbor facility,
those involved in this matter include Jan Vliet, the office
manager , whom the parties agree is a supervisor within
the meaning of Section 2(11) of the Act; Sandra White,
who during the time material was "corporate financial
manager"; project coordinators Peggy Aebersold and
Cynthia Ross; maintenance coordinator Kimberly Clark,
' The charge was filed be Sandra A White on 8 September 1986, and
the complaint issued on 30 October 1986
and project manager Elizabeth St James.2 The Respond-
ent also had employees performing maintenance and
other functions.
In mid to late 1985 and January 1986, the Respondent
had made a series of wage adjustments such that Vliet
and White were raised to $9 86 per hour or $20,500 an-
nually, Clark and Aebersold to $8.50 and hour or
$17,600 annually, and Ross to $7.75 per hour or $16,120
annually
To pay for the wage adjustments there was some "belt
tightening" (which included project coordinators not
being required to attend monthly meetings of specific
projects, which had allowed them to earn an additional
$150 per month).
About 13 August Duprey told Vliet that he had given
a large wage increase to Elizabeth St. James, to which
Vliet objected contending that St. James was not deserv-
ing, was not a very hard worker, and in any event had
only been employed about a year. Vliet told Duprey that
she thought it was unfair in light of the cutbacks and
other attempts the employees had participated in to save
money. Duprey told her that nevertheless the increase
was in place and he felt it was necessary.
That day Vliet had lunch with White during which
this was discussed. White stated that she knew about the
increase inasmuch as she had been told to make the nec-
essary payroll adjustments. White, too, was "upset"
about the increase to St. James, particularly inasmuch as
only 2 days before she had asked for an increase for her-
self on the occasion of her sixth anniversary with the
Company, and had been denied. Vliet and White then
talked to employees Clark, Aebersold, and Ross about
this matter, and at least Clark and Aebersold were simi-
larly upset about the increase given St. James and all
were of a mind to take some action, including engaging
in a work stoppage.
After consultation among these employees, it was de-
termined that they would refuse to come to work the
following Monday, 18 August.
Vliet gave a note to Ross to be left on Duprey's desk
Friday evening, though dated Monday, 18 August-
Ron:
There are reasons for the fact that there are no em-
ployees here today. If you would care to discuss
these you can reach me at 434-5304 or 973-6039
after 100 I hope you find this situation serious
enough to warrant your attention.
/s/ Jan
To this note Ross attached a note in an envelope, on the
outside of which was: "Ron- Please read first." It was
dated 16 August (though the 6 appears to have been
marked over an 8), and reads:
2 The Respondent asserts that St James, as a property manager, was a
managerial employee, however, there was no indication at the hearing
that St James' status was a substantive issue and it was not fully litigated
Though her status appears immaterial to the issues here, there is insuffi-
cient evidence to support the conclusion that she is managerial See dis-
cussion of White's status, infra There is no evidence of her salary or that
she exercised independent discretion on behalf of the Respondent
TRIAD MANAGEMENT CORP 1241
Ron,
Before you read this letter, I would like you to
know that I am not a part of the matter enclosed
nor do I agree with the issue & the people involved
Sincerely,
/s/ Cindy Ross
On 18 August Vliet, White, Aebersold, and Clark did
not report to work, nor did a secretary who was in-
structed to report by Vhet and who is not involved in
this matter
Although the parties differ somewhat in detail con-
cerning what was said thereafter and when Duprey (who
was out of town) and then Cretney contacted the em-
ployees concerning the matter. There is no question that
Duprey got Vliet's note (through Cretney) and that there
was a management decision to terminate the four em-
ployees Thus, Duprey testified on examination by his
counsel:
So again , I reinforced my feelings that Jan had
enticed Peggy and Kim to walk out. I did say that I
felt that the issues were overshadowed by the
action . The fact that they didn't show up for work.
They essentially walked out on the job, and let ev-
erybody know it, and had tried to get other people
to go out with them. The word was all over the
corporation, and everybody knew what was going
on, and I honestly felt that we were left with no
choice but to discharge them
I had talked to Bill and he said that he couldn't-
none of us had been able to get a hold of Kim
There was either no answer, the line was busy, we
hadn 't been able to get a hold of her all during that
week, as a matter of fact
So Peggy and I ended the discussion I said, I
don't feel we have any choice in the matter but to
terminate you She said, then we're all fired, and I
said , well, yes
B Analysis and Concluding Findings
On these facts the General Counsel contends that the
Respondent discharged White, Abersold, and Clark for
engaging in a protected concerted work stoppage and
thereby violated Section 8(a)(1) of the Act
The Respondent contends that (1) the individuals were
not discharged, (2) they had not engaged in any activity
protected by the Act, (3) even if their activity was pro-
tected and concerted it was unknown to the Respondent,
and (4) White was a managerial employee and not enti-
tled to the protection of the Act
It is clear from the undisputed evidence in this matter
that the four employees acted in concert and engaged in
a work stoppage on 18 August It is further clear that
the Respondent knew they were acting in concert and
discharged them for having engaged in the work stop-
page. Indeed, Duprey so testified in his direct examina-
tion . Thus, the only questions of substance in this matter
are (1) whether the work stoppage was protected activi-
ty, and (2) whether, if protected, White is entitled to the
protection.
1 The work stoppage was protected concerted
activity
The Respondent basically contends that the employees
engaged in the work stoppage on 18 August to protest
the management decision of giving a wage increase to
Elizabeth St James Inasmuch as wage increases to em-
ployees are strictly a management decision having no
bearing on wages, hours, and terms or conditions of
other employees, the protest is outside the scope of pro-
tected activity
As the Respondent argues, there are limits to the pro-
tection of employee activity. Thus, the Supreme Court
has said.
It is true, of course, that some concerted activity
bears a less immediate relationship to employees' in-
terests as employees than other such activity We
may assume that at some point the relationship be-
comes to attenuated that an activity cannot fairly be
deemed to come within the "mutual aid or protec-
tion" clause. [Eastex, Inc. v. NLRB, 437 U S. 556,
567-568 (1978) ]
And the Court went on to state in a footnote
In addition, even when concerted activity comes
within the scope of the "mutual aid or protection"
clause, the forms such activity permissibly may take
well depend on the object of the activity. [437 U S
at 568 fn 18 ]
Thus, the issue here is whether the object of the pro-
test and the manner of protesting were within the perim-
eter of Section 7. In Koch Supplies, 249 NLRB 1144
(1980), enf. denied 646 F.2d 1257 (8th Cir. 1981), em-
ployees complained about a new hire's wage package
and vacation benefits that were allegedly contrary to
company policy The Board held it was protected for
them to protest this. The protest was concerted, thus the
discharges were violative of Section 8(a)(1) The Eighth
Circuit denied enforcement on finding that the employ-
ees had not acted in concert
Here, as in Koch, the object of the protest by employ-
ees was the wage package given another employee
While such may involve less a relationship to their own
wages, hours, and terms or conditions of employment,
such was not held by the Board to be so attenuated as to
lose protection of the Act.
Here the protesting employees, although having re-
ceived wage increases themselves within the previous
year, nevertheless had agreed to some "belt tightening"
that involved a reduction in earnings for the project co-
ordinators. They testified without contradiction they felt
that the wage increase to St. James was unfair
In such circumstances it is certainly not unreasonable
to conclude that the wage increase to one of a small
number of employees could adversely affect the potential
for wage increases to others
In the total context of this situation, I conclude there
was a sufficient nexus between the wage increase given
to St. James and the concerns of other employees to
make protesting the wage increase protected under the
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act Indeed, to conclude otherwise would require em-
ployees to act at their peril in protesting matters arising
out of their employment situation. My review of the
Board cases suggest that such is not the appropriate
standard and that where the matter under protest arises
out of the employment situation and arguably involves
their own terms and conditions as employees, then the
act is protected
Although there may be an issue, as indicted by the Su-
preme Court in Eastex, of weighing the employees' act
against the matter of their concern, I conclude here that
a 1-day work stoppage is not so unreasonable as to viti-
ate otherwise protected activity Accordingly, I con-
clude that by engaging in the work stoppage on 18
August 1986, the employees were acting in concert
under the protection of Section 7 of the Act The Re-
spondent's discharge of them for having done so violated
Section 8(a)(1). The fact that the Respondent may have
intended that Aebersold and Clark could reapply does
not make lawful their discharges
2. The status of Sandra White
At the time material, Sandra White's title was corpo-
rate financial manager. According to the written employ-
ment agreement with her dated 22 July 1985, she basical-
ly was in charge of preparing financial statements for the
various Triad corporations, preparing financial state-
ments and reports for various condominium and apart-
ment associations, and doing the Respondent's payroll
As of 22 July 1985, her compensation in this position
was $19,500 a year which was increased to $20,500 a
year on 2 December 1985.
Shortly thereafter, Vliet's salary was increased also to
$20,500 per year Both were paid $3000 per annum more
than the next highest paid employee.
The Respondent contends that White was a managerial
employee and not entitled to protection of the Act, given
her duties and salary, that she executed at least one con-
tract on behalf of the Respondent, and she served on a
management committee studying the salary structure and
organization of employees
There is no contention that she supervised any em-
ployees or ever exercised any of the authority set forth
in Section 2(11) of the Act.
Managerial employees are not entitled to protection of
the Act NLRB v Bell Aerospace Co, 416 U S 267
(1974) There the United States Supreme Court quoted
with approval from Palace Laundry Dry Cleaning Corp,
75 NLRB 320, 323 fn 4 (1947), in which the Board
stated that management employees are those who "for-
mulate and effectuate management policies by expressing
and making operative the decisions of their employer"
The Board and the courts have also focused on the inde-
pendence with which they exercise "discretion" See,
e g, Simplex Industries, 243 NLRB 111 (1979).
Although the evidence shows that White is relatively
high paid among the Respondent's employees-indeed is
on the same level as an admitted supervisor-she was a
relatively long-term employee with 6 years. She had
worked in various positions with the Company, and had
been in her current job, as defined by the contract,
slightly over a year.
There is nothing in her employment agreement that
would indicate that White had the authority to exercise
discretion on the part of the Respondent in any matter.
Rather, it appears that her job was essentially ministerial.
The independent financial decisions were made by Wil-
liam Cretney, the treasurer, who shared an office with
White.
Counsel offered into evidence a contract signed by
White on behalf of the Respondent, however, there is no
indication that she negotiated any of its terms Indeed, it
is not apparent who drafted the contract or who gave
authorization for it to be entered into by the Respondent.
Although it appears that White executed a contract bind-
ing the Respondent, such does not imply exercise or
management discretion
Inasmuch as White does not supervise any employee,
and inasmuch as the evidence is essentially nonexistent
that she had or exercised independent discretion on the
part of management, I conclude that she was not a man-
agement employee. I conclude that White was entitled to
protection of the Act as a rank-and-file employee
III THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices found above, occurring in
connection with the Respondent's business, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof within the meaning of Section 2(6)
and (7) of the Act
IV. THE REMEDY
Having concluded that the Respondent discharged
three of its employees on 18 August 1986 in violation of
the National Labor Relations Act, I shall order that it
cease and desist therefrom and take certain affirmative
action, including offering immediate and full reinstate-
ment to Sandra White, Peggy Aebersold, and Kimberly
Clark to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions of employment,
and make them whole for any loss or other rights and
benefits they may have suffered as a result of its discrimi-
nation against them, with interest as provided for in
F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp, 231 NLRB 651 (1977) 3
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, Triad Management Corporation,
Ann Arbor, Michigan , its officers, agents, successors, and
assigns, shall
9 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
" 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
TRIAD MANAGEMENT CORP
I Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they engaged in concerted activity
protected by Section 7 of the Act
(b) In any other manner interfering with, restraining,
or' coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate `the policies of the Act.
(a) Offer immediate and full reinstatement to Sandra
White, Peggy Aebersold, and Kimberly Clark their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously en-
joyed, and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy sec-
tion of the decision.
(b) Remove from their personnel records any refer-
ence to the discharges of Sandra White, Peggy Aeber-
sold, and Kimberly Clark and notify them 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-
1243
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its Ann Arbor, Michigan facility copies of
the attached notice marked "Appendix."5 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive 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
5 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 "