University Townhouses Cooperative

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1381 (N.L.R.B. 1982)

UNIVERSI FY TOWNHOUSES COOPFRATIVE
University Townhouses Cooperative and Local 79,
Service Employees International Union, AFL-
CIO. Case 7-CA-17652
March 31, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMI-RMAN
On March 2, 1981, Administrative Law Judge
Lowell Goerlich issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs, and Respondent filed a brief in opposition to
the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, I and conclusions of the Administrative Law
Judge only to the extent consistent herewith and to
adopt his recommended Order as modified herein.
The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(l) of
the Act by imposing harsher work rules on its em-
ployees in retaliation for the employees' support of
the Charging Party Union2 and further violated
Section 8(a)(1) by encouraging the employees to
abandon their union activities in exchange for re-
scission of the harsher work rules originally im-
posed in violation of the Act. The Administrative
Law Judge also correctly found that Respondent
terminated Hershell Hugh Darnell in violation of
Section 8(a)(3) and (1). Further, we agree with the
Administrative Law Judge that employee Manith
Armstrong was not an agent of Respondent and,
therefore, any statements made by Armstrong that
might be construed as threats of reprisal are not at-
tributable to Respondent.
The Administrative Law Judge also found, how-
ever, that Respondent's discharge of Charles E.
Brown and Michael D. McPeake did not violate
the Act. In so finding he concluded that "the Gen-
eral Counsel had failed in his proof," inasmuch as
any animosity harbored by Respondent against
Brown and McPeake for their union activities
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings
' Hereinafter referred to as the Union
"must be deemed to have been erased" after
Brown and McPeake abandoned the union organi-
zational campaign and joined Respondent's proper-
ty manager in celebration of that event. We find
that the Administrative Law Judge erred in both
his analysis and his conclusion.
Our review of the record reveals that the Gener-
al Counsel presented ample evidence to support the
inference that a motivating factor in Respondent's
discharge of Brown and McPeake was their union
activities. In this regard, the record is replete with
evidence of the union animus of Respondent, as ex-
pressed through the actions and statements of its
property manager, Restrepo. Thus, within 4 days
of the employees' first formal meeting to discuss
unionization, 3 Restrepo called the employees to a
meeting during which he unlawfully imposed a
number of harsher working conditions. When
asked by Brown whether he (Restrepo) thought
this action was "a little harsh," Restrepo replied,
"Don't you think I know what's going on around
here? Do you think I am blind as to what's going
around here? Under the circumstances I don't think
this is hard."
Approximately I week later, a group of employ-
ees, including Brown and McPeake, met with a
representative of the Union and obtained and
signed authorization cards. The next day Brown
gave cards to Manith Armstrong and Hershell Dar-
nell. (As discussed below in more detail, Darnell
was terminated in violation of Sec. 8(a)(3) of the
Act 4 days after signing an authorization card.)
Armstrong then informed Restrepo that all of the
service employees had signed authorization cards.
Three days later, Restrepo called another employee
meeting imposing still another series of harsher
working conditions and designating Manith Arm-
strong as being in charge of shop keys and inven-
tory as part of the newly instituted regimen.4 When
asked why these steps had beer taken, Restrepo re-
plied that Armstrong was the only employee he
could trust and that he felt like he had been
stabbed in the back.
On the same day, Restrepo terminated Hershell
Darnell. The facts surrounding Darnell's termina-
tion are fully set forth by the Administrative Law
Judge and need not be repeated here except to note
' The first firmal meeting among employees to discuss the formation
of a union took place on January 27, 1980, and not in late December 1979
as stated by the Administrative Laws Judge We do note, however, that
uncontradicted testimony of Brown and McPeake provides that the em-
ployees did begin discussing the formation of a union on an informal basis
in December 1979
Although we reject the General Counsel's assertion that Armstrong
acted as an agent of Respondent, we believe that the Administrative Law
Judge properly inferred that Armstrong did serve as a liaison between
the employees and Restrepo, keeping the latter informed of any nes de-
velopmenlts on the Ulnion and related matters
260 NLRB No. 187
1381
DECISIONS OF NATIO()NAL LABOR RELATIONS BOARD
that, when Darnell pressed Restrepo for a reason
for his termination, Restrepo stated that he
"couldn't have people working there that wasn't
[sic] loyal to him," and "couldn't have people he
couldn't trust."
On the next day, February 12, Restrepo by
memorandum modified the policy of employee
breaktime, requiring them to take breaks at speci-
fied times rather than at their convenience. Then,
on February 13, Brown and fellow employee Cum-
mings met with Restrepo. Restrepo told them that
if they could settle without the Union he would es-
tablish an open door policy whereby he (Restrepo)
could take care of any employee problems. He told
Brown and Cummings that even up to the day
before the election he would be receptive to the
idea of dropping the Union and, if this were done,
nothing would happen and they could go on from
there and "pick up the pieces." As found by the
Administrative Law Judge, Restrepo's statements
promising a return to the less onerous conditions in
exchange for abandonment of the Union plainly
violated Section 8(a)(1).
Following the February 13 conversation with
Restrepo, several of the employees decided to
abandon the union effort. Brown and McPeake met
with Restrepo on February 14 to so inform him.
Restrepo stated, inter alia, that he was incredibly
relieved the union matter was over and that things
could be back to normal. He stated further that he
had not wanted to fire anyone but he had to do
something, and that "[he] just couldn't sit back and
let it happen." When asked by Brown why he had
instituted the harsher working conditions, Restrepo
said, "Hey, you guys were doing your thing, and I
was doing my thing. If somebody does something
to me I do something back to them. If somebody
slaps me on the cheek, I don't believe in the Chris-
tian ethics, and I do not turn the other cheek."
Restrepo then suggested that he and the employees
celebrate. On the next night, Restrepo and the em-
ployees went out drinking together. Subsequently,
the employees did abandon the union campaign.
It is against this background that the discharge
of McPeake and Brown, which took place within 3
weeks after the employees abandoned the Union,
must be viewed. In this regard, Respondent's union
animus is manifest. From the very outset of the em-
ployees' campaign, Respondent, acting though Res-
trepo, embarked on a course of conduct aimed at
coercing, intimidating, and otherwise compelling
the employees to abandon their protected activities.
At each successive step in the organizing process,
Restrepo imposed harsher working conditions until
such time as the employees began to discuss a ces-
sation of their activities. At that point, Restrepo of-
fered to cease the ulawful coercion in exchange for
the employees' relinquishing their rights. Having
succeeded in defeating the union effort through dis-
crimination, coercion, and unlawful promises, Res-
trepo had good cause, from his perspective, to sug-
gest a celebration.
Of further significance is the fact that Brown and
McPeake were two of the most active union advo-
cates. Both attended the initial employee meeting
to discuss forming a union. Indeed, the meeting
took place at Brown's home. Brown was the
person who contacted the Union and distributed
cards. Also, at the meetings called by Restrepo to
impose harsher working conditions, Brown and
McPeake each raised questions as to the propriety
of such actions with Brown threatening to take up
the matter of the docking of paychecks with the
National Labor Relations Board.
In view of the foregoing, we cannot say, as did
the Administrative Law Judge, that the General
Counsel "failed in his proof' merely because Res-
trepo engaged in a drinking celebration with the
employees after they had ceased union activities. A
single act of pecuniary friendship hardly serves to
erase a calculated course of conduct aimed at sti-
fling employee rights. Union animus and unlawful
acts of discrimination and coercion are not
"erased" simply because an employer's effort to
thwart the union is successful. In short, the Gener-
al Counsel has plainly made out a prima facie case
sufficient to support the inference that a motivating
factor in the discharge of McPeake and Brown was
their union activities.
Because the Administrative Law Judge deter-
mined that the General Counsel failed in his proof,
he did not undertake to examine the validity of Re-
spondent's asserted reasons for the discharge of
Brown and McPeake. Our review of the evidence
leads us to conclude that such reasons cannot with-
stand close scrutiny, and that Respondent used the
drinking incident described below as a pretext to
discharge Brown and McPeake for their union ac-
tivities.
With regard to the discharge of Brown and
McPeake, the record reveals that on March 4,
1980, approximately 2-1/2 weeks after the employ-
ees had abandoned the union organizing efforts,
McPeake was authorized to work 2 hours of over-
time from 5 to 7 p.m. Brown, who had completed
his regular work at 5 p.m., was "on call." On-call
employees of Respondent were required to remain
at or near the complex ready to respond to any
emergency calls. McPeake completed his work
around 7:15 and began working with Brown on an
air gun Brown had brought to the shop.
1382
UNIVERSITY TOWNHOUSES COOPERATIVE
At some time around 7 p.m., ' Billy Lyles, a
cousin to Manith Armstrong who performs con-
tract work for Respondent, entered the shop area
shed where he found Brown and McPeake drink-
ing beer. Lyles had been sent to the shed by Arm-
strong to retrieve a battery. Lyles remained with
Brown and McPeake for approximately 15 minutes.
He testified that McPeake appeared loud, vulgar,
and staggering while Brown was quiet. After Lyles
left, he told Armstrong that Brown and McPeake
were drinking in the shed. Armstrong immediately
called Restrepo and so informed him.
Meanwhile, after Lyles had left, Robert Augus-
tus arrived at the shop. Augustus had been em-
ployed by Respondent the past summer and had
come to the shop to see if a decision had been
made regarding his employment for the coming
summer. Several minutes after Augustus arrived,
Restrepo appeared. He asked Brown and McPeake
what they were trying to prove, told Augustus to
leave, and told Brown and McPeake to clean the
place up and that they would discuss the matter in
the morning. Restrepo also asked McPeake if he
was still on the clock. McPeake said no, mistakenly
telling Restrepo he had punched out. After Res-
trepo left, McPeake signed out on his timecard for
7 p.m.
The next day, March 5, Restrepo met with
Brown and McPeake. He told them that he had de-
cided to discharge them. The reasons asserted for
the discharge were drinking while on working time
and allowing an unauthorized person in the shop.
In support of its position, Respondent asserts that
it had a longstanding rule against the presence of
unauthorized persons in the shop. A sign on the
shop door stated that only employees were allowed
inside and the employees were admittedly aware
that such a rule existed. As for drinking on the job,
Respondent concedes that drinking had, in the past,
been condoned on numerous occasions, including,
at least once, during working hours. Indeed, until
several months prior to the union campaign, Re-
spondent had supplied the employees with beer on
Friday evenings. On or about January 11, 1980,
however, Restrepo "cracked down" on drinking.
He informed the employees that no drinking on the
job or when on call would be permitted and that a
breach of such rule would be cause for discharge.
Respondent's position, therefore, in its simplest
form, is that McPeake and Brown were aware of
the rules against unauthorized persons in the shop
and drinking while on the job or on call, that they
' Lyles testified that he arnved at the shop between 6:30 and 7, stayed
15 minutes, and then returned to Armstrong's home where Armstrong
called Restrepo Restrepo testified that he received Armstrong's call at 8
p.m. We find that Lyles' visit to the shed was no earlier than 7 p.m
breached these rules, and that, accordingly, the dis-
charges were lawful. We disagree.
With regard to the rule against unauthorized per-
sonnel in the shop, it is clear on the record that
this rule was honored more in its breach than in
compliance. Several witnesses testified without
contradiction that, although a "rule" existed, it was
virtually never enforced. On nearly a daily basis,
persons not technically authorized to enter the
shop did so. These included tenants of the co-op as
well as various outside salesmen and contractors.
In any event, Augustus could hardly be deemed
an "unauthorized person." Augustus had been em-
ployed by Respondent the past summer as a serv-
iceman and was present only to inquire as to his
possible status the next summer. In addition, he
was there of his own volition and not as a guest or
invitee of either Brown or McPeake.
The matter of Brown's and McPeake's drinking
presents a somewhat closer question. On the
whole, however, we believe that the incident
would not have resulted in a discharge absent Res-
trepo's established union animus and Brown's and
McPeake's numerous union activities.
Initially, we note that the existence of the rule
whereby drinking was cause for immediate dis-
charge is suspect. By Respondent's own admission,
such a rule did not surface until January 11, 1980,
several weeks after the employees began to discuss
formation of a union. Prior to the organizational ef-
forts, employees drank beer at the complex on re-
peated occasions during worktime without any
formal discipline. 6 Indeed, in September 1979
McPeake had been drinking while on the job on a
day when Respondent's governing board was meet-
ing. While painting a door, McPeake painted over
windows and did an otherwise sloppy job which
was viewed by board members. After the incident,
McPeake agreed with Restrepo that he should not
receive overtime pay for his performance but no
formal warning was entered in McPeake's person-
nel file. 7
This dichotomy between Restrepo's reaction to
employees' beer drinking after organizing efforts as
opposed to before was further demonstrated at the
6 We also find it significant that Respondent's "Employment Hand-
book" contained a progressive disciplinary scheme whereby "senous" in-
fractions were to result in a discharge only after the employee received a
verbal warning with a notation in the personnel file and a written warn-
ing also to be placed in the personnel file Respondent presented no evi-
dence that such steps had been taken against Brown or McPeake. See
Butler-Johnson Corporation, 237 NLRB 688, 690 (1978), where a respond-
ent's failure to adhere to an established disciplinary scheme was found to
be evidence of unlawful intent
' It would appear that the September 1979 incident was a much more
grievous offense than that presented in the instant case. In the September
incident, McPeake was viewed by Restrepo's employers, while the dis-
charge incident occurred inside the shop, out of public view
1383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"celebration" on February 15 following the em-
ployees' abandonment of their union efforts. At the
celebration, Brown, who was on call, asked Res-
trepo if drinking while on call was all right. Res-
trepo told him that it was, so long as the employee
remained sober. Thus, as was the pattern estab-
lished by the other unfair labor practices found
herein, it appears that the rules and practice con-
cerning drinking were lax prior to unionization ef-
forts, tightened up during the campaign, and then
relaxed again after the union drive had been
thwarted. 8
With respect to the actual events of March 4,
Respondent's position that Brown and McPeake
were drinking while "on the job" only obscures
Respondent's real motive in terminating the two
union activists. First, while Brown was on call, he
had been told by Restrepo, on February 15, that he
could drink while on call so long as he remained
sober. There is no indication that Brown was less
than sober. Lyles testified in this regard that
Brown was quiet and had little to say. As for
McPeake, he had completed his overtime work
around 7:15 and for approximately 45 minutes had
been helping Brown work on an air gun. When
Restrepo appeared, McPeake stated that he had
stopped working earlier and mistakenly added that
he had punched out. After Restrepo left, McPeake
did sign out for 7. Thus, although he was techni-
cally on the clock, McPeake's only real "offense"
was his failure to punch out. The record reveals,
however, that such failures were common occur-
rences and that employees routinely filled in their
timecards after the fact. Indeed, the strict enforce-
ment of rules concerning the timeclock arose only
as part of Restrepo's retaliatory imposition of
harsher work rules which we have found to be a
violation of the Act.
In view of the foregoing, we are of the opinion
that Respondent would not have discharged Brown
and McPeake for their March 4 conduct absent Re-
spondent's established union animus and Brown's
and McPeake's engaging in union activities. In our
view, Respondent seized upon the technical breach
of rules by Brown and McPeake as a reason for
ridding itself of two of the most active union ad-
herents. Accordingly, we find that the discharge of
Brown and McPeake violated Section 8(a)(3) and
we shall provide the appropriate remedy.
Finally, the Administrative Law Judge stated in
his Decision that, had the General Counsel request-
As we noted above, the fact that Restrepo had successfully defeated
the employees' efforts to unionize does not mean that all union animus
disappeared and that all would be forgotten. Indeed, just I week before
Brown and McPeake were discharged, Restrepo told Darnell that he
could not put him back to work because he could have only employees
that he trusted.
ed a bargaining order as part of the remedy, he
would have granted the request. Our dissenting
colleague agrees that such an order is appropriate.
We do not agree.
In so holding, we do not seek to minimize the
egregious conduct of Respondent. However, as
noted by the Administrative Law Judge, neither
the General Counsel nor the Charging Party
sought a bargaining order in the complaint or at
the hearing. Indeed, despite the Administrative
Law Judge's statement, no request by the parties
has been submitted to the Board seeking a bargain-
ing order remedy. While a party's request for a
bargaining order is not necessarily a sine qua non
for such a remedy, the apparent lack of a desire for
a bargaining order gives us pause in unilaterally di-
recting that one issue.
In addition, we agree with our colleague that
testimony reveals seven employees signed cards.
Unfortunately, the record reveals nothing more
bearing on the majority status of the Union. Thus,
the cards themselves were not introduced into evi-
dence. Nor was there any testimony indicating
what the signed cards stated or what representa-
tions were made to the employees concerning the
cards at the time of their signing.9 Although oral
evidence going to majority status is sometimes ac-
cepted by the Board, t such evidence is customar-
ily accompanied by at least some tangible or other-
wise reliable evidence indicating what the employ-
ees actually designated on the cards they signed."
Thus, considering all the circumstances, we decline
to issue a bargaining order in this case.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, University
Townhouses Cooperative, Ann Arbor, Michigan,
its officers, agents, successors, and assigns, shall
take the action set forth in said recommended
Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Hershell Hugh Darnell, Michael D.
McPeake, and Charles E. Brown immediate and
full reinstatement to their former positions or, if
those positions no longer exist, to substantially
9 Inasmuch as Respondent was never put on notice that majonty status
was, in any way, at issue, we cannot justly construe against it the failure
to probe the testimony that cards were signed.
'.4ero Corporation, 149 NLRB 1283, 1291 (1964).
" See, eg., Howard-Cooper Corporation, 117 NLRB 287, 295 (1957),
where the cards had been lost but oral testimony was accepted There,
however, the union submitted its standard authorization card and there
was no evidence that it had altered its established practice
1384
UNIVERSITY TOWNHOUSES COOPERATIVE
equivalent positions, without prejudice to their se-
niority or other rights and privileges previously en-
joyed, and make them whole for any loss of earn-
ings they may have suffered as a result of the dis-
crimination practiced against them by paying each
of them a sum equal to what he would have
earned, less any net interim earnings, plus interest,
to be computed in the manner set forth in the sec-
tion of this Decision entitled 'The Remedy."' t 2
MEMBER JENKINS, dissenting in part:
I cannot agree with my colleagues' conclusion
that a bargaining order would not be appropriate
herein. A review of the record in this matter clear-
ly shows that Respondent's employees have aban-
doned their organizational drive largely because of
Respondent's unlawful conduct. This conduct in-
cluded retaliatory action against all seven of its em-
ployees (each of whom appears to have signed an
authorization card), promises of more favorable
working conditions if its employees would abandon
the Union, and the unlawful discharge of three of
its employees, two of whom were leading union
adherents. Considering the small number of em-
ployees and the ferocity with which Respondent
opposed its employees' protected activities, I am of
the view that a fair election among Respondent's
employees is no longer possible. That Respondent
was willing to terminate more than 40 percent of
its work force to achieve the result it desired clear-
ly demonstrates its recklessness in destroying its
employees' protected activities; those employees
will not soon forget the wrath occasioned by such
activities. 13
Under these circumstances, I am of the view that
a bargaining order would best protect employee
sentiment already expressed through authorization
cards; however, my colleagues do not agree. 14 Ac-
cordingly, I dissent.
2 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the hackpay
due based on the formula set forth therein.
" Cf. United Oil Manufacturing Co.. Inc., 254 NLRB 1320 (1981)
, I am impressed by the "evidentiary" issues raised by my colleagues
regarding the majority status of the Union; however, inasmuch as we ap-
parently are in agreement that a bargaining order otherwise would he ap-
propriate, I submit that the better course would be to resolve these issues
through the issuance of a Notice To Show Cause why a bargaining order
should not issue rather than to leave these employees without a complete
remedy because of the alleged failures of the General Counsel and the
Charging Party
APPENDIX
NOTICE To EMPI OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILl. NOT discourage the concerted ac-
tivities of employees or discourage their mem-
bership in Local 79, Service Employees Inter-
national Union, AFL-CIO, or any other labor
organization, by unlawfully and discriminatori-
ly laying off or discharging any employees or
discriminating against them in any other
manner with respect to their hire, tenure of
employment, or any term or condition of em-
ployment.
WE WIIl NOT unlawfully change working
rules and practices in retaliation for employees'
engaging in union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act.
WE WILL offer Hershell Hugh Darnell, Mi-
chael D. McPeake, and Charles E. Brown im-
mediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without preju-
dice to their seniority or any other rights or
privileges prevously enjoyed, and make them
whole, with interest, for any loss of pay they
may have suffered because of our unlawful dis-
crimination against them.
UNIVERSITY TOWNHOUSES COOPERA-
TIVE
1385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
LOWELt GOERLICH, Administrative Law Judge: The
original charge was filed by Local 79, Service Employ-
ees International Union, AFL-CIO, herein referred to as
the Union, on April 14, 1980, and was served on Univer-
sity Townhouses Cooperative, herein referred to as Re-
spondent, by registered mail on April 16, 1980. The
amended charge was filed by the Union on May 30,
1980, and was served on Respondent on or about the
same date. A complaint and notice of hearing was issued
on May 30, 1980. The complaint alleges, among other
things, that Respondent unlawfully discharged employees
Hershell Darnell, Charles Brown, and Michael McPeake
in violation of Section 8(a)(3) of the National Labor Re-
lations Act, as amended, herein referred to as the Act.
Respondent filed a timely answer denying that it had
engaged in or was engaging in the unfair labor practices
alleged.
The case came on for hearing in Detroit, Michigan, on
November 22 and 23, 1980. Each party was afforded a
full opportunity to be heard, to call, examine, and cross-
examine witnesses, to argue orally on the record, to
submit proposed findings of fact and conclusions, and to
file briefs. All briefs have been carefully considered.
FINDINGS OF FACT, CONCI.USIONS, AND REASONS
THEREFOR
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and existing
by virtue of, the laws of the State of Michigan.
At all times material herein, Respondent has main-
tained its only place of business at 3200 Braeburn Circle
in the city of Ann Arbor and the State of Michigan,
herein called the Ann Arbor place of business. Respond-
ent is, and has been at all times material herein, engaged
in the operation and management of a cooperative hous-
ing complex. Respondent's place of business located in
Ann Arbor, Michigan, is the only facility involved in
this proceeding.
During the year ending December 31, 1979, which
period is representative of its operations during all times
material herein, Respondent, in the course and conduct
of its business operations, derived gross revenues in
excess of $500,000.
During the period of time described above, Respond-
ent, in the course and conduct of its business operations,
purchased and caused to be transported and delivered to
its Ann Arbor, Michigan, place of business goods and
materials valued in excess of $5,000, which goods and
materials were transported and delivered to its Ann
Arbor, Michigan, place of business from points located
outside the State of Michigan.
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Ii. THE LABOR ORGANIZATION INVOLVED
Local 79, Service Employees International Union,
AFL-CIO, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
First: The General Counsel contends that "Respondent
issued procedural memoranda on January 31, February
11, and February 12, 1980 imposing harsher work rules
on the service department employees and docked service
department employees' pay checks in retaliation for the
service department employees' support for the Union."
This contention is well taken.
In the latter part of December 1979 (December 28),
Respondent's service employees Michael D. McPeake,
Charles E. Brown, John Lee Cummings, Matthew Die-
trich, and Jeff Boyd met in Brown's apartment where
they discussed "the possibility of getting in contact with
somebody from the SEIU, to find out what the possibil-
ity of having a union at our townhouse for us." Brown's
apartment was a part of Respondent's townhouse com-
plex. At the meeting all the employees present signed a
document "saying that [they] were interested in talking
to somebody from the SEIU." Toward the end of the
meeting Manith Armstrong, another service employee,
was called on the telephone. He was informed of the
happenings at the meeting and was asked if he would be
interested in signing the document. Armstrong showed
an interest. Dietrich and Brown then went to Arm-
strong's townhouse. When Dietrich and Brown arrived
at Armstrong's apartment, Armstrong said he had
changed his mind and did not want to sign until he had a
chance to talk to his brother, Mandel Armstrong.'
On January 31, 1980, Property Manager Restrepo
called a meeting of the service employees at which he
issued a memorandum containing allegedly new work
rules and allegedly pronounced stricter enforcement of
previously unenforced rules. Some of these changes
were: Employees were required to fill out timesheets ac-
counting for each 5-minute period of the working day;
employees were prohibited from taking breaks in their
townhouses during working hours; employees were not
to leave Respondent's premises during working hours
except upon a request for permission addressed to the
property manager; employees were not to use any of Re-
spondent's vehicles for personal business at any time;
access was limited to the property manager's office; pay-
check adjustments were not to be made "after the fact";
no one was to adjust or alter a timecard; and lunch peri-
ods were to be between 12 and I o'clock. Conditions
prior to these changes were: Timesheets were not re-
quired; breaks were taken in townhouses; employees
were only required to notify the front office before leav-
ing the premises; employees were allowed to use Re-
' The probabilities were that Armstrong reported the meeting incident
to 'roperty Manager Alonso Restrepo since the record reveals a procliv-
ity on the part of Armstrong to report such matters to Restrepo. (Arm-
strong reported to Restrepo that the service employees had signed union
authorization cards, that he had signed a card, and that Brown and
McPeake "erc drinking in the maintenance shed See infra )
1386
UNIVERSITY TOWNHOUSES COOPERATIVE
spondent's vehicles with the permission of the property
manager; Restrepo and Cummings were permitted to
write in the time on the timecard if an employee forgot
to punch in or out; and employees were allowed to take
their lunch breaks at their convenience.
The memorandum provided that a violation of any of
its dictates would be grounds for termination. Such had
not been the past practice. Also on January 31, 1980, a
number of employees' checks were "docked" apparently
because the employees punched their timecards incor-
rectly.
After the meeting Brown inquired of Restrepo why
the employees had been "shorted," and Restrepo replied
that "it was because of what has been going on around
here." Brown then said that he "intended to pursue the
matter with the National Labor Relations Board." The
next day Restrepo informed Brown that he intended to
restore the shortages. The shortages were included in the
next weeks' paychecks.
McPeake quoted Restrepo as saying, when asked at
the meeting if he did not think the new rules were a
"little harsh," "Don't you think I know what's going on
around here. Do you think I am blind as to what's going
on around here. Under the circumstances I don't think
this is hard."
On February 1, 1980, Hershell Darnell was hired as a
painter's helper.
On February 7, 1980, McPeake, Brown, Cummings,
and Boyd met with a union representative at the Popside
Lounge in Ann Arbor, Michigan. The next day Brown
gave union authorization cards to Dietrich and Darnell,
who signed the cards. According to Armstrong, he in-
formed Restrepo that the service employees had signed
union authorization cards; he also informed Restrepo that
he had signed a card.2
On February 11, 1980, Restrepo issued another memo-
randum changing certain policies and practices. It also
provided:
In order further to improve our system of inventory
control, I am placing Manith Armstrong in charge
of same. He will also be responsible for updating
the time clock, signing shop keys and vehicle keys
in and out, and for doing move-out inspections. His
official title is "Shop Coordinator," and as such he
is management's liaison with the department. (Any
areas not under his jurisdiction will still be handled
directly with the Property Manager.)
Restrepo was asked why Armstrong was chosen for
this job and he answered that Armstrong was the only
one he could trust; "he didn't trust the rest." When
asked why he was "hassling" the employees "so much,"
Restrepo replied that he "felt like he had been stabbed in
the back, and he thought he was a member of the team."
On February 11, 1980, Darnell was laid off.
A memorandum issued by Restrepo on February 12,
1980, changed the policy by requiring employees to take
' Armstrong testified, "I had just gotten the card. They held it back
from me for awhile, 'till they found out how I felt about the union myself
.... So then they got me a card, and I filled it out."
break periods at specific times rather than at their con-
venience.
Around February 13, 1980, after Brown had listened
to Armstrong describe some of the events which would
occur if the Union came in, such as that Restrepo "in-
tended to put . . . enough of the Manith's family rela-
tives on the payroll to load the election, and allow them
all to go and vote no," Brown went to Restrepo's office
where he complained about Armstrong's "being at the
shed in the morning, and rattling on and on." On the
way to Restrepo's office Brown met Cummings, who
was also on his way to the office. Brown, Cummings,
and Restrepo conversed. Among other things, Restrepo
said:
Al said that if we could settle without the union,
that he was going to-he would establish an open
door policy, whereby we could come to him with
our problems when we had 'em, and he could take
those problems to the directors and settle them.
And that up to the last day before the election
came down, that if we changed our minds, that he
would still be receptive to the idea of dropping the
union. He said, and nothing would happen to us if
we dropped the union at this point in time, because
we could go on from there and pick up the pieces.
The next day, February 14, 1980, Cummings, Brown,
and McPeake defected. It had "come" to Brown that
Cummings was "tired of the harassment" and that he
was "done" with the union, at which point Brown and
McPeake "folded." Thereafter, Brown and McPeake
went to see Restrepo. Restrepo was advised that the em-
ployees were willing to call off the union venture; that
they wanted to get things back to normal. He responded
that, if the union activity was terminated, "there would
be no repercussions." Restrepo further said, "I never
wanted to fire anybody, but I had to do something. I just
couldn't sit back and let it happen. I have a responsibility
to protect the coop." Brown asked Restrepo why he had
initiated some of the things in the memoranda. He an-
swered:
Hey, you guys were doing your thing, and I was
doing my thing. If somebody does something to me
I do something back to them. If somebody slaps me
on the cheek, I don't believe in the Christian ethics,
and I do not turn the other cheek.
Restrepo added that:
. . .he would be incredibally [sic] relieved that it
was all over, and everything could go back to
normal; as long as the job got done, everything was
cool. ... [H]e specifically okayed that we elimi-
nate the time sheets.
As the meeting ended Restrepo suggested that the em-
ployees "go out and celebrate." The following night,
February 15, 1980, Restrepo and the service employees
"partied" in Ann Arbor and Detroit. Besides Restrepo
the group included Brown, McPeake, Armstrong, Cum-
1387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mings, Dietrich, and Boyd. Brown was on call but an ex-
ception was made for him.
Brown contacted the Union and by the next Monday
the "petition was supposedly withdrawn."
The foregoing credited facts make it abundantly clear
that Restrepo's change in the shop rules and practices
detailed above was in retaliation for the union activities
of Respondent's employees. These reprisals interfered
with, restrained, and coerced employees in the exercise
of the rights guaranteed them under Section 7 of the
Act. Hence, Respondent violated Section 8(a)(1) of the
Act.
Second: The General Counsel contends that "Respond-
ent violated Section 8(a)(1) of the Act when shop coor-
dinator Manith Armstrong, acting as its agent threatened
service department employees with reprisals because of
their support for the Union."
This contention must fail since Armstrong was not an
agent whose alleged misconduct may be attributed to
Respondent. The General Counsel concedes that Arm-
strong was not a supervisor within the meaning of the
Act. Brown testified that he had a "vague" idea as to the
kind of work Armstrong performed. Armstrong's main
duty as inventory coordinator was to "keep parts
stocked on the shelves." He also "signed keys in and out
for people." When Brown inquired of Restrepo what the
relationship was between him and Armstrong, Restrepo
stated that Armstrong had no supervisory powers over
Brown and that Brown reported directly to Restrepo.
According to Brown, "Manith really didn't have any
power." Armstrong was a liaison between Restrepo and
the rest of the service staff. There is no credited proof
that he spoke for management or gave employees the im-
pression that he spoke for management in connection
with labor relations matters. Respondent was not bound
by his alleged misconduct which the General Counsel
claims was an unfair labor practice. Hence, it shall be
recommended that this allegation be dismissed.
Third: The General Counsel next contends that "Re-
spondent, through its agent Property Manager Restrepo
solicited the service department employees to abandon
the Union and promised to rescind the newly instituted
work rule to encourage their repudiation of the Union in
violation of Section 8(a)(1) of the Act."
The credited facts supporting this contention are set
out above and reveal that the contention is well taken.
When a respondent, as here, encourages its employees to
abandon their union in return for more favorable work-
ing conditions, it violates Section 8(a)(l) of the Act.
Miami Springs Properties, Inc. and James H. Kinley and
Associates, Joint Employers, 245 NLRB 278, fn. 3 (1979).
By such conduct Respondent violated Section 8(a)(1) of
the Act.
Fourth: The General Counsel next contends that "Re-
spondent terminated Hershell Darnell on February 11,
1980, because of his support for the Union in violation of
Section 8(a)(1) and (3) of the Act." This contention is
well taken. Hershell Darnell was hired on February 1,
1980, as a painter's helper. According to Restrepo, he
had decided to dispense with outside contract painters
and hire employees of Respondent to do the painting.
His objective was an "inhouse painting crew." Darnell
was the first person hired for this new venture. At the
time Restrepo also expected to hire Mandel Armstrong,
Manith Armstrong's brother, to engage in painting work.
Darnell was laid off on February 11, 1980. At the time
of his layoff Restrepo told Darnell that it was a tempo-
rary layoff until Mandel Armstrong arrived for employ-
ment; that Armstrong was the main painter and Darnell
would be his helper.
During the week of his employment, Darnell was as-
signed to visit "different paint companies, to try and get
contracts to buy their paint, their supplies." At the end
of the week Restrepo pointed out to Darnell the apart-
ments which were to be painted starting the next
Monday morning. On Monday morning Darnell began
work on an apartment. As he was commencing to
remove "wall planks and stuff," he was summoned to a
meeting of employees after which, as above noted, he
was laid off. At the time Restrepo stated that he was
pleased with Darnell's "paperwork" and said it was an
"excellent job."
During his week of employment, Darnell had signed a
union card, an event which was related to Restrepo by
Armstrong.
Darnell's testimony, which appears in the record with-
out objection, in respect to a conversation with Manith
Armstrong was as follows:
A. I can't relate it exactly, word for word, so far
back, but what it related to, he was concerned
about seeing me hanging around with the intention
that I was coming back to work, when he had
stated that he knew that I wasn't coming back to
work, and that I had made a mistake signing that
card, which was referring to the union card. And
that Al Restrepo had told him that no way was I
coming back to work for University Townhouses.
Q. Did he say why Al Restrepo wouldn't take
you back?
A. Yes, sir, he referred to the union card I had
signed.
When Darnell heard that Mandel Armstrong had gone
to work, Darnell contacted Restrepo and asked when he
could return to work. Restrepo renlied that "he couldn't
have anybody working there that wasn't loyal to him"
and "couldn't have people he couldn't trust." Darnell
was never recalled by Respondent.
When Mandel Armstrong commenced painting for Re-
spondent, according to Restrepo he "hired a bunch of
part-timers at a considerably lower rate, because they
were inexperienced, and we were teaching them the
job."
The General Counsel has met his burden under Wright
Line, a Division of UWright Line, Inc., 251 NLRB 1083
(1980), for establishing a prima facie case.
Respondent maintains that "Mr. Restrepo simply con-
cluded that Mr. Darnell's continued employment in view
of his poor performance and lack of experience as a
painter, was not justified. In short, the termination of Mr.
Darnell was based solely on a legitimate business consid-
eration; poor job performance during the probationary
period." Poor performance was not proved by credited
1388
UNIVERSI IY TOWNHOUSES COOPFRATIVE
evidence and lack of experience was not a factor consid-
ered by Respondent when it hired Darnell's replace-
ments. Respondent hired inexperienced persons to re-
place Darnell and was teaching them the job. There is
no credible explanation in the record why Darnell could
not have been treated in the same manner except that he
was a union partisan. Since Respondent's business consid-
eration defense fails and the General Counsel has estab-
lished a prima facie case, the finding must be for the
General Counsel. Wright Line, a Division of Wright Line,
Inc., supra. Accordingly, it is found that Respondent's
layoff of Darnell on February 11, 1980, and the failure to
recall him thereafter violated Section 8(a)(3) of the Act.
Fifth: The General Counsel's final contention is that
"Respondent violated Section 8(a)(1) and (3) of the Act
when it terminated Charles Brown and Michael
McPeake because of their union activities."
On March 4, 1980, Billy Leon Lyles visited the main-
tenance shed where he saw Brown and McPeake "drink-
ing and shooting the bull." McPeake was "loud, vulgar,
staggering and swearing, swayed, and leaned on a work-
bench." Brown was "quiet . . . he didn't say too much."
Lyles reported the condition of McPeake and Brown to
Manith Armstrong, whom he was visiting. Armstrong
phoned Restrepo and informed him that Brown and
McPeake were drinking on duty in the maintenance
shed. Such drinking was in violation of Respondent's
rules. Restrepo appeared at the maintenance shed where
he found Brown and McPeake as described. McPeake
had not punched out from working overtime and Brown
was on duty. Restrepo told the employees to clean up
the "mess" and he would "talk about what to do the
next morning." Restrepo said, "What are you trying to
prove."
When Brown and McPeake appeared the next morn-
ing, they were fired by Restrepo; however, Restrepo in-
dicated that he would give the matter "24 hours." The
next day when the employees reappeared, Restrepo in-
formed them that he would "stick" with his original de-
cision to fire them.
Assuming, arguendo, that Restrepo had harbored ani-
mosity against Brown and McPeake for their union ac-
tivities, such animosity must be deemed to have been
erased, lacking proof to the contrary, when Brown and
McPeake disavowed the Union and joined with Restrepo
in a celebration of the event in the beer parlors of Ann
Arbor and Detroit. Thus, the General Counsel has failed
in his proof. Hence, it shall be recommended that the
8(a)(3) allegation involving the discharges of Brown and
McPeake be dismissed.
CONCL.USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act, and it will effectuate the purposes of the Act for ju-
risdiction to be exercised herein.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed them by
Section 7 of the Act, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
4. By unlawfully laying off Hershell Hugh Darnell on
February 11, 1980, and failing to recall him to employ-
ment, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
5. 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 Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. 3 It
also having been found that Respondent unlawfully laid
off Hershell Hugh Darnell on February 11, 1980, and has
failed and refused to recall him in violation of Section
8(a)(3) of the Act, it is recommended that Respondent
remedy such unlawful conduct. In accordance with
Board policy, it is recommended that Respondent offer
the above-named employee immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges previ-
ously enjoyed, dismissing, if necessary, any employees
hired on or since the date of his discharge to fill said po-
sition, and make him whole for any loss of earnings that
he may have suffered by reason of Respondent's unlaw-
ful acts herein detailed by payment to him of a sum of
money equal to the amount he would have earned from
the date of his unlawful layoff to the date of said offer of
reinstatement, less net earnings during such period, with
interest thereon, to be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977). 4
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, I hereby issue the following
recommended:
'While during the hearing the General Counsel asked that "the rules
as they were before the union came in" be reinstated, he also said that he
would set out in his brief the specific rules he wanted reinstated This has
not been done This omission may have resulted from the General Coun-
sel's concluding that the rule situation was returned to normal after the
employees' defection from the Union. In light of this, no remedy is rec-
ommended in this respect It is deemed that the General Counsel has
abandoned his claim for reinstatement of the rules as they were before
the advent of the Union
In view of the outrageous and pervasive unfair labor practices herein
which in the folreseeable future have foreclosed any possibility of union
representation for Respondent's employees, had the General Counsel re-
quested it, I would have recommended a bargaining order See United
Dairv Iarmers Cooperative .4iocialion v .VL. R B, 633 F 2d 1054 (3d Cir.
1980)
' See, generally, Ihst Plumbing & Hearing Co., 138 NLRB 716 (1962)
1389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER S
The Respondent, University Townhouses Cooperative,
Ann Arbor, Michigan, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging the concerted union activities of its
employees or discouraging their membership in Local 79,
Service Employees International Union, AFL-CIO, or
any other labor organization, by unlawfully and discri-
minatorily laying off its employees or discriminating
against them in any other manner with respect to their
hire, tenure of employment, or any term or condition of
employment in violation of Section 8(a)(3) of the Act.
(b) Unlawfully changing working rules and practices
in retaliation for employees' engaging in union activities.
(c) Unlawfully promising employees more favorable
working conditions if they abandon the Union.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Hershell Hugh Darnell immediate and full re-
instatement to his former position or, if such position no
b 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 find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges previously enjoyed, discharging, if necessary, any
employees hired to replace him, and make him whole for
any loss of pay he may have suffered by reason of Re-
spondent's unlawful layoff in accordance with the rec-
ommendations set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(c) Post at its townhouses in Ann Arbor, Michigan,
copies of the attached notice marked "Appendix." e
Copies of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by Re-
spondent's authorized representative, 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 customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint, as
amended, be dismissed insofar as it alleges violations of
the Act other than those found in this Decision.
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1390