Association of Apartment Owners

National Labor Relations Board - Board Decisions

Mar 20, 1981

255 N.L.R.B. 127 (N.L.R.B. 1981)

ASSOCIATION OF APARTMENT OWNERS 127
Association of Apartment Owners of the Whaler on
Kaanapali Beach and Hotel, Restaurant Em-
ployees and Bartenders Union, Local 5, AFL-
CIO. Case 37-CA-1573
March 20, 1981
DECISION AND ORDER
On November 6, 1980, Administrative Law
Judge Richard J. Boyce issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and counsel
for the General Counsel filed an exception and a
supporting brief, to which Respondent filed an an-
swering brief.
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 and to adopt his recommended Order as
modified herein.2
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, Association of
Apartment Owners of the Whaler on Kaanapali
Beach, Lahaina, Maui, Hawaii, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, as so modi-
fied:
1. Add the following as paragraph 2(f), reletter-
ing subsequent paragraphs accordingly:
"(f) Make Canterbury whole for any loss of earn-
ings and benefits caused by discriminatory reduc-
tion of hours of work to the extent such reduction
was not voluntary, as determined at the compliance
stage of this proceeding, with interest on lost earn-
ings."
2. Substitute the attached notice for that of the
Administrative Law Judge.
' Counsel for the General Counsel has excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Stand-
ard 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.
2 We have affirmed the Administrative Law Judge's finding that Re-
spondent was unlawfully motivated in reducing Canterbury's hours and
therefore violated the Act. The remedy ordered by the Administrative
Law Judge did not include backpay based on the Administrative Law
Judge's finding that Canterbury desired and willingly agreed to the re-
duction in hours thereby suffering no detriment as a result. It is not clear
from the record before us whether Canterbury desired and agreed to the
substantial reduction in hours which in fact occurred. Accordingly, we
award backpay to the extent the reduction in hours was involuntary as
determined at the compliance stage of the proceeding.
255 NLRB No. 10
APPENDIX
NOTICE To EMPLOYEES
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 interrogate employees con-
cerning their union attitudes or sympathies.
WE WILL NOT discontinue our services on
behalf of the Fun Fund or announce a prohibi-
tion against breaks because of our employees'
support of a union.
WE WILL NOT assign employees away from
their customary tasks, reduce their hours, con-
dition their continued employment upon ac-
ceptance of pay cuts and demotions in classifi-
cation and type of work, or constructively dis-
charge them (cause them to quit), because of
their engagement in union and/or protected
concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in their exercise of rights under the Act.
WE WILL, should the employees so request,
resume our activities on behalf of the Fun
Fund, as those activities were constituted
before October 3, 1979.
WE WILL inform our employees, by posting
a notice where notices to employees customar-
ily are posted, that the prohibition against
breaks announced by Joe Sabo on October 4,
1979, has been retracted.
WE WILL offer to Robert Canterbury and
Robert Williamson immediate and full rein-
statement to the jobs they held before their
constructive discharges on October 11 and
November 13, 1979, respectively; more specifi-
cally, to the jobs they held before any alter-
ation in job content was undertaken starting
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Canterbury on August 25, 1979; or, if
such jobs no longer exist, to substantially
equivalent jobs, without prejudice to their se-
niority or other rights and privileges; and
make them whole for any loss of earnings and
benefits suffered by reason of those discharges,
with interest on lost earnings.
WE WILL make Canterbury and Williamson
whole for any loss of earnings and benefits
caused by discriminatorily inducing them to
miss work from October 5 to 11, 1979, and
October 31 to November 13, 1979, respective-
ly, with interest on lost earnings.
WE WILL make Williamson whole for any
loss of earnings and benefits suffered by reason
of his hours having been cut as of October 8,
1979.
WE WILL make Canterbury whole for any
loss of earnings and benefits suffered by reason
of his hours being cut as of August 25, 1980,
to the extent such cut was not voluntarily
agreed to by Canterbury.
ASSOCIATION OF APARTMENT
OWNERS OF THE WHALER ON KAAN-
APALI BEACH
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Wailuku, Maui, Hawaii,
on May 20 and 21, 1980. The charge was filed on Octo-
ber 12, 1979, by Hotel, Restaurant Employees and Bar-
tenders Union, Local 5, AFL-CIO, herein the Union.
The complaint issued on December 28, 1979, was amend-
ed during the hearing, and alleges that Association of
Apartment Owners of the Whaler on Kaanapali Beach,
herein Respondent, committed certain violations of Sec-
tion 8(a)(l) and (3) of the National Labor Relations Act,
herein the Act, as amended.
I. JURISDICTION
Respondent is engaged in the operation of condomin-
ium apartments on Maui. In the year preceding issuance
of the complaint, its gross income exceeded $500,000,
and it purchased supplies worth over $28,000 from out-
side Hawaii. Respondent is an employer engaged in and
affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. ISSUES
The complaint alleges that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act in several respects con-
cerning Robert Williamson and Robert Canterbury; that
it further violated Section 8(a)(3) and (1) by ceasing to
administer "certain employee benefit funds"; and that it
violated Section 8(a)(1) by certain remarks of its manag-
ing agent, Herbert Nikola, and its superintendent of
buildings and grounds, Joe Sabo.
IV. BACKGROUND FACTS
On August 16, 1979, Williamson and Harry Kama, a
coworker, informed the Union that Respondent's mainte-
nance employees were interested in exploring representa-
tion. That was followed by a meeting in Williamson's
home on August 23, attended by 8 or 10 employees and
2 union officials. Additional organizing meetings were
held in Williamson's home in the next few weeks. Wil-
liamson signed a union card August 23 and some of the
other signers returned their cards to him to be submitted
to the Union. Williamson also was instrumental in ar-
ranging a "debate" between union and management offi-
cials, challenged certain management assertions from the
floor during the debate, and was the Union's observer in
the NLRB election that ensued.
Canterbury signed a union card August 24, attended
some if not most of the meetings at Williamson's, and
concerned himself with ascertaining from the employees
what changes they sought through organizing.
If it did not know before, Respondent admittedly
learned of the organizational ferment "somewhere
around the 26th or 28th of August," when Kama told
Nikola that "the boys in the [maintenance department]
were considering unionizing."' The Union petitioned for
an NLRB election August 31.2 The election followed on
October 2. The Union won, 8 to 7, and a Certification of
Representative issued October 11.
v. THE ALLEGED 8(A)(I) VIOLATIONS
A. Nikola
1. Allegation
The complaint alleges that, on October 1, Nikola "im-
plied that it would be futile for employees to select the
Union as their bargaining representative by telling em-
ployees that only wages as prescribed in the Master
Labor Agreement would be paid if the Union were se-
lected as their collective-bargaining representative,"
thereby violating Section 8(a)(1).
2. Facts
The morning of October 1, Nikola presided over a
meeting of about nine maintenance employees. He dis-
played a chart listing Respondent's maintenance employ-
ees by name, after which were columns giving the classi-
fication of each, the present wage rate of each, the wage
each would receive under the master agreement between
the Union and the so-called class A hotels in Hawaii, the
percentage of difference between the present wage of
After approximating that the conversation with Kama was on August
26. 27, or 28, Nikola testified: "It was after an employees' meeting, which
was August 21."
2 Case 37-RC-2498.
ASSOCIATION OF APARTMENT OWNERS 129
each and the wage under the master agreement as of De-
cember 1, and the hourly amount each would pay as
union dues.
Nikola recited the data on the chart stating, with refer-
ence to the column containing wage levels under the
master agreement, that, "if you vote union, you will re-
ceive this." One of the employees, Robert Williamson,
objected that the chart was "not valid at all"; that the
employees would not be voting for a contract in the next
day's election, but for union representation; and that
wages "would be negotiable" should the Union win. Wil-
liamson elaborated that the Union would not be "bound"
to the master agreement concerning its dealings with Re-
spondent; that "a complete, separate contract" would be
negotiated; and that the master agreement was only "an
example" of what a labor agreement looks like.
Nikola persisted for a time that wages would be in
conformity with the class A agreement, later amending
that Respondent "might not have the same agreement,"
instead being class B because of the small size of its staff
and the "lack of certain amenities that are normal in
major hotels." At one point, Canterbury asked if it were
true, as Williamson had stated, that wages would be ne-
gotiable. Nikola replied that they would.3
3. Conclusion
Nikola's intent in the early stages of the meeting plain-
ly was to impart the impression that wages would be dic-
tated by the master agreement, willy-nilly, should the
employees vote the Union in. By the meeting's end,
however, having been corrected by Williamson, he had
conceded that wages would be negotiable. Assuming for
argument that Nikola's conduct before this concession
would have constituted a violation as alleged, it is con-
cluded that the concession neutralized the situation and
that the allegation therefore is without merit.
B. Sabo
I. Allegations
The complaint alleges that, on October 1, 1979, Joe
Sabo, Respondent's maintenance superintendent, "inter-
rogated . . . employees regarding their union member-
ship, activities, and sympathies"; that, on October 4, he
"threatened ... employees that [Respondent] would dis-
continue granting breaks because they selected the Union
as their bargaining representative"; and that he thereby
violated Section 8(a)(l) of the Act in each instance.
3 Williamson and Canterbury are credited, as against Nikola's denial,
that Nikola initially asserted that if the Union were voted in the employ-
ees would be paid in accordance with the class A master agreement. The
elaboration accompanying Nikola's denial that he told the employees he
thought they "should know ... what rates were in" that agreement, as
indicative of "typical wages," was lame and unconvincing. Nikola. on the
other hand, is credited concerning Respondent's perhaps being a class B
operation, as against William's testimony that Nikola said Respondent
probably would be willing to negotiate only as a class B facility, meaning
that wages probably would be less than in the class A agreement. Nikola
simply was the more plausible and convincing of the two in this regard.
Nikola and Canterbury agree that Nikola eventually conceded that wages
would be negotiable.
2. Facts
After the meeting just described, Williamson and Can-
terbury went into the maintenance office, next door,
where Sabo asked Williamson what he thought "about
this union thing," and asked Canterbury how the meet-
ing went and what his views were concerning the Union.
Williamson did not reply to the question asked him, and
Canterbury answered that he "really did not know" how
he would vote.4
On October 4-2 days after the election-Williamson
overheard an exchange between a coworker, Steve
Wilson, and Sabo. Sabo, responding to Wilson's request
that a bench be placed in the maintenance shop so the
employees "could sit down" while on break, declared
that, "as of yesterday, there will be no more breaks." Al-
though this statement was not directed to Williamson, he
thereupon ceased taking breaks, as did some but not all
of the others. There is no evidence that those continuing
to take breaks encountered any difficulty with manage-
ment. 5
3. Conclusions
It is concluded, without need for discussion or cita-
tion, that Sabo violated Section 8(aX)(1) as alleged by
asking Williamson what he thought "about this union
thing," and by asking Canterbury his views concerning
the Union.
It is further concluded that Sabo's remark to Wilson
that, "as of yesterday, there will be no more breaks,"
violated Section 8(a)(l) as alleged. There can be little
doubt, given the timing and lack of provocation other-
wise, that this was a punitive lashing out in response to
the adverse election result.
VI. THE ALLEGED 8(A)(3) AND (I) VIOLATIONS
CONCERNING WILLIAMSON AND CANTERBURY
A. Allegations
I. Canterbury
The complaint alleges that, on September 1, 1979, Re-
spondent "reduced the number of working hours and as-
signed more onerous tasks to "Canterbury"; that, on Oc-
tober 6, it offered him "a choice between a layoff or a
lower paying job"; that, on October 6, it induced him to
quit in circumstances amounting to constructive dis-
charge; and that it, being motivated throughout by Can-
terbury's union and other protected activities, violated
Section 8(a)(3) and (1) of the Act in each instance.
2. Williamson
The complaint alleges that, on October 4, 1979, Re-
spondent "refused to allow . . . Williamson to continue
4 Williamson and Canterbury, respectively, are credited that Sabo
questioned each as set forth. Sabo's generalized assertion that he "did not
ask anyone about their union sympathies or beliefs" lacked conviction.
I Williamson is credited, as against Sabo's denial, that Sabo made the
remark to Wilson as set forth. Williamson for the most part was a more
impressive witness than Sabo. That a no-break policy was not thereafter
enforced does not militate against Sabo's making the remark, in pique,
following the election. Wilson did not testify.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to take breaks"; that, on October 5, it "reduced the
number of [his] working hours"; that, on November 5, it
offered him "a choice between a layoff or a lower
paying job"; that, on November 5, it induced him to quit
in circumstances amounting to constructive discharge;
and that it, being motivated throughout by Williamson's
union and other protected activities, violated Section
8(a)(3) and (1) of the Act in each instance.
B. Facts
1. Additional background
The facility with which Respondent is involved con-
sists of 360 living units, divided between two 12-story
towers, plus common areas in the form of lobbies, hall-
ways, stairwells, elevators, parking lots, grounds, etc. Of
the 360 units, 120 are single-owner condominiums, 50 are
multiple-owner or time-interval condominiums, and 190
are occupied on a rental basis. Respondent at all times
has been responsible for the maintenance of all common
areas. Until February 5, 1979, it also was fully responsi-
ble for the maintenance of the rental units; and, until
July 16, 1979, it was similarly responsible for the time-
interval units. On those dates, respectively, its responsi-
bility for the rental units was reduced to 2 days per
week, and for the time-interval units to servicing the air
conditioning.
During a meeting of Respondent's board of directors,
on July 27, 1979, there was a considerable discussion
whether to retain the customary numerical strength of
the maintenance crew, about 16, as opposed to contract-
ing out. Nikola and Sabo both were opposed to contract-
ing out, thinking it would be an economy to retain the
status quo. Sabo reported, moreover, that "employee
turnover" was troublesome; that "it is difficult to find
suitable employees to replace those that leave." The
board decided to promote the availability of the mainte-
nance employees to work for individual condominium
owners in other than common areas, on a time-and-mate-
rials basis, to defray the expense of keeping the comple-
ment at the existing level.
2. Still further background
On August 16-the day Williamson and Harry Kama
made first contact with the Union-one of the employ-
ees, Dwight Cambra, told Williamson that Cambra was
about to be laid off. The next day, August 17, William-
son and several coworkers, Canterbury among them,
confronted Sabo about this. Williamson, acting as spokes-
man, announced that they were there pursuant to the
grievance procedure set forth in Respondent's employee
relations handbook. Sabo refused to deal with them, stat-
ing that "this is not the way to bring up a grievance."
After work on August 17, several of the employees
met at Williamson's home, where they drafted a letter
for Nikola concerning Cambra and decided to withdraw
money from the employees' "Fun Fund" to finance the
prosecution of a grievance on his behalf. The letter, later
delivered to Nikola by Harry Kama, stated that it was
from the worker's grievance committee; that the commit-
tee felt "there have been direct violations by manage-
ment of the Employee Relations Handbook . . . and the
House Rules"; that "the first point that we would like to
take up" was the Cambra matter; that Sabo had been
"notified of this grievance . . . and he refused to com-
ment on the subject"; and that the committee "would
like this grievance settled by an impartial arbitration as-
signed by the Federal Med. Conc. Serv. as soon as possi-
ble."
This was followed by what was to have been a routine
meeting between management and the maintenance em-
ployees on August 21. Nikola presided. After discussing
some housekeeping matters, he raised the subject of the
employees' letter, indicating that he did not understand
"what this is." Williamson explained that the employees
"were following the grievance procedure," to which
Nikola declared that they "were not following the griev-
ance procedure at all." Williamson replied that "the
intent" of the letter was to notify Nikola "that within 10
days we would like an audience . . . to present a pack-
age of material" regarding Cambra's layoff.
Nikola repeated that the letter "does not follow the
procedure," adding that he would like to have a list of
those "involved in the Grievance Committee," and
would like another meeting for a general discussion of
the grievance procedure. He further stated that, as far as
he was concerned, Cambra was not to be laid off and he
did not foresee anyone else being laid off, either. As it
turned out, Cambra was not laid off.
There being nothing more on that subject, someone
asked why Sabo's son, Chris, was not at the meeting.
Chris worked in the maintenance department. Sabo an-
swered that Chris "was taking some time off, and . . .
was only working two days a week." 6 Canterbury asked
if the rest of the employees had "the same opportunities
to do the same thing." Nikola replied that, while each
case would have to be handled individually, Respondent
"would try to accommodate people under the same con-
ditions." With that, as Williamson recalled, "a lot of
people jumped in with complaints about Chris Sabo re-
ceiving preferential treatment." Williamson asked why
Chris "gets paid to eat breakfast in the room7 ... [and]
to watch the Super Bowl." Sabo reacted by calling Wil-
liamson "an instigator," and mentioning that the employ-
ees had "stormed" into his office with their "demands"
on August 17.8
By now, as Williamson recalled, the meeting was
"really hot." Nikola closed the subject and restored calm
by saying he would schedule a followup meeting regard-
ing Chris Sabo when Chris "could be there to defend
himself."
A followup meeting was held August 24. Chris Sabo
was there; his father was not. Nikola opened the meeting
by asking if anyone had anything to say. Williamson, re-
ferring to a piece of paper on which he had made notes,
"read off a few of the grievances" that employees had
mentioned to him concerning Chris. When Chris at-
6 Sabo testified that Chris had been encouraged to go from full to part
time that summer because seasonal low occupancy had reduced the need
for maintenance work.
I I.e., the unit in which his parents lived.
8 Williamson is credited, as against Sabo's denial, that Sabo called him
an instigator. As stated in an earlier footnote, Williamson for the most
part was a more impressive witness than Sabo.
ASSOCIATION OF APARTMENT OWNERS 131
tempted to argue with him, Williamson said he did not
know if the allegations were true, and that Chris should
argue with those who made them. Canterbury questioned
Chris about being paid while studying and taking 2-hour
lunch breaks. Chris countered that Canterbury had
worked only 4 of the 8 hours for which he had been
paid the previous Sunday and that he spent Sundays
with his girlfriend while being paid. After the meeting
had gone on in this fashion for a time, Nikola ended it by
saying that everything to be said had been said, and that
"there could be some improprieties in the way Chris was
handling the situation."
After the meeting, Nikola told Williamson that he,
Williamson, had been "made a fool of." Williamson, irate
that Kama had left early in the meeting leaving him to
take "the brunt of it," agreed.
As previously mentioned, Nikola learned on August
26, 27, or 28, if not before, that "the boys ... were con-
sidering unionizing," and the Union filed for an election
August 31. On August 30, Nikola submitted a letter to
the president of the board of directors, reporting his and
Sabo's decision to give raises to six of the maintenance
employees, and adding:
In addition, the change in type and amount of work
within the General Maintenance Category leads to
the reduction and possible elimination of two em-
ployees. One, in the more skilled maintenance cate-
gory and the other in the specialized maintenance
category, namely carpentry. These decisions will be
made as the work load dictates with the Mainte-
nance 2/C employee volunteering to go on a 2-day
workweek starting September 1, 1979.
One of those contemplated by the quoted language
from the letter, the one in the "skilled maintenance cate-
gory," was Canterbury. The other, in the "specialized
maintenance category," was Williamson. Asked why one
or both were not terminated at this time, Nikola testified
that Respondent's management consultant had "suggest-
ed that it would be better not to make any major
changes with reduction of staff," because "it might be
construed as anti-labor or anti-union practice."
Nikola's August 30 letter professedly was preceded by
one to the president dated August 22, which, referring to
the above-described employee meeting of August 21,
stated:
I had a meeting with all the employees . yester-
day afternoon. After reviewing their comments and
opinions, I have initiated a study of the present per-
sonnel policies with regard to adjusting salaries,
wages, benefits, and job assignments for any inequi-
ties that may be uncovered by my study.
I will meet with Joe Sabo on Wednesday, August
29, 1979, to make any necessary adjustments.
It is concluded that this document was of after-the-fact
manufacture, to impart the impression that the "possible
elimination of" Canterbury and Williamson alluded to in
the August 30 letter stemmed from a process undertaken
before Respondent learned of the union activity. This
conclusion derives from these considerations: The docu-
ment dated August 22 to the contrary, there was nothing
in the meeting of the 21st warranting a broad-gauge
"study of present personnel policies"; the record contains
no satisfactory explanation why, Nikola and Sabo seem-
ingly being readily available to each other on a daily
basis, they would not be meeting before August 29 to go
over these matters; and, had the document dated August
22 been genuine, it would seem likely that the letter of
August 30 would have referred to it in view of the lat-
ter's ostensible followup character.
3. Canterbury specifics
Canterbury began with Respondent, as a maintenance
helper, in April 1978. His starting pay was $5.71 per
hour. When he quit, in October 1979, he was classified as
a maintenance man 2nd class, and was paid S6.65.9 His
duties, until changed as described below, were "fixing
about everything there was to fix"-ovens, dishwashers,
air conditioning, toilets, etc. Two others, Harry Kama
and Chris Sabo, also performed those duties. Both were
more senior and of higher rank than Canterbury.
On August 25-the day after the second meeting in
which Chris Sabo's alleged preferential treatment was
discussed-Canterbury was instructed not to repair an
oven previously assigned to him. He instead was as-
signed to polish light fixtures, an assignment lasting 2 or
3 days; and thereafter seldom was called upon to use his
repair tools.
Shortly after the second meeting, as well, Joe Sabo re-
minded Canterbury of his remark in the August 21 meet-
ing about Chris's working a 2-day week, and asked if
Canterbury would like to do the same. Canterbury re-
plied that he wanted to build a boat and so would "ap-
preciate" fewer hours. Sabo stated: "Well, pretty soon I
will be putting you on that, or I will be laying you off
completely."10 Effective September 4, Canterbury's
weekly hours were reduced from 40 to 16, assertedly be-
cause of lack of work and his willingness. No convincing
evidence was supplied in support of the lack-of-work as-
sertion, only generalizations.
On October , Canterbury asked Sabo how much
longer the 16-hour schedule would last, explaining that
he wanted more hours to enable the purchase of materi-
als for the boat. Sabo said to check with him October 4.
Canterbury did, and Sabo said that, while he was "unde-
o Canterbury testified that he received a raise to S6.85 in July 1979. A
notice given him on October 5, informing him that his pay was being re-
duced to S4.50, stated, however, that he then was receiving $6.65. The
notice would seem more reliable, and is credited.
10 Sabo is credited that Canterbury voiced a willingness to work fewer
hours, so he could build a boat. Canterbury testified that, answering
Sabo's question if he would like to work a 2-day week, he said he "could
not live off of that." Sabo was the more convincing on the point, particu-
larly since there is no indication that Canterbury objected when his hours
subsequently were reduced: since Nikola credibly testified that Canter-
bury told him, "just a few days after" the reduction went into effect, that
it "did not hurt" him because he was "planning to build a boat"; and
since Nikola's August 30 letter to the president of the board, previously
quoted, alludes to Canterbury's "volunteering to go on a 2-day work-
week starting September 1,. 1979."
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cided," the existing arrangement probably would contin-
ue "for about another month." '
On October 5, Sabo handed Canterbury a notice that,
as of the next Monday, October 8, he was to be restored
to full-time work, but was being reduced in classification
to maintenance man 3rd class, at a wage of $4.50. The
notice explained:
Due to the reduction of work in the General Main-
tenance 2/C category, it is necessary to reduce the
manpower hours of this section. However, due to
your seniority & abilities, you qualify for a position
in Gen. Maint. 3/C on a full-time basis starting this
date.
After digesting the notice, Canterbury remarked that
he did not think the action was in accord with the Em-
ployee Relations Handbook. Sabo countered that he
should "bring in a lawyer" if that was the way he felt,
then asked if he would accept the new situation. Canter-
bury said he would "be there."
Canterbury failed to report on October 8, or on the 2
following days, explaining that he felt he "was being
cheated out of [his] job, and he wanted to find out what
[he] could do about it."12 When he finally reported, on
October 11, Sabo "just blew up"-Canterbury's depic-
tion. During the exchange that followed, Sabo asked if
Canterbury was accepting the new assignment. Canter-
bury answered that he was not, prompting Sabo to de-
clare: "That means you quit." Canterbury insisted that he
was not quitting, and the exchange continued in that vein
for a time, no one yielding. It finally ended when Sabo
told Canterbury to go see Nikola.
Nikola, although saying he "had no idea" that Sabo
was going to change Canterbury's job, stated: "I am not
going to give you back your other job. So, what do you
want to do?" Canterbury replied that he was quitting the
$4.50-an-hour job, but not his "normal job." He has not
worked for Respondent since.
Sabo testified that the idea of offering Canterbury the
new situation was "to give him fulltime work" and that
he "could have stayed at two days a week." Sabo contin-
ued that the new job would have entailed "sweeping,
moving rubbish, [and] cleaning"; that "maintenance [had]
dropped off so drastically, all that was left was the clean-
ing"; that Canterbury was selected to be taken off main-
tenance because he was less senior than Kama or Chris
Sabo; and that he hoped that maintenance "would pick
back up," enabling Canterbury's return to his former job.
Regarding the reduction in pay, Sabo testified that
$4.50 is Respondent's lowest hourly rate, except for
maids, and that even someone hired off the street for the
tasks in mind for Canterbury would have received that
amount. Sabo admittedly had the authority to offer Can-
terbury more. One of his explanations for not doing so
was that he had reservations about Canterbury's attitude
in the new job, so thought it prudent that he submit to a
"temporary trial period, to see if it was going to work
I' Sabo is credited that Canterbury gave the need for boat materials as
his reason for wanting more hours. Canterbury's testimony is silent on
the point.
12 Canterbury did not disclose what he did in this regard.
out." Sabo conceded that Canterbury had "performed
adequately" in his former classification, which involved a
"more complicated type of work," and that he was
"sure" Canterbury "could do" the new work, but that he
was in doubt whether Canterbury "would" do the new
work.
A second Sabo explanation for offering the minimum
rate was that there is "just a general consensus that when
you start at a certain category, you start at the bottom of
the ladder and you work up." He added, however, that
there is no established rule requiring this. Indeed, a
groundsman hired in the 3d class category a few weeks
after Canterbury quit was started at $5 an hour, Sabo ex-
plaining that he had been recommended by outsiders.
For that matter, Williamson was hired as a maintenance
journeyman st class; and Canterbury himself, although
hired as a maintenance helper, was started at 5.71 per
hour.
Canterbury's union and other activities have been pre-
viously described. 3
4. Williamson specifics
Williamson began with Respondent, as a maintenance
journeyman Ist class, in November 1978. His starting
pay was $7.32 per hour. When he quit, in November
1979, he was classified as a maintenance specialist, step 1,
receiving $8.05, when doing masonry work, and as a
maintenance specialist, step 2, receiving $7.65, when
doing carpentry work. His duties, until changed as de-
scribed below, involved constructing and repairing ma-
sonry walls and planters, mending damaged doors, re-
placing signs, and performing sundry cabinetry-type
tasks for individual condominium owners on the time-
and-materials basis mentioned earlier. Respondent had
two other maintenance specialists, a painter, and a part-
time electrician. Williamson was Respondent's first and
only specialist carpenter. Sabo testified that his dual
skills, in carpentry and masonry, made "a very good
combination"-"you don't find that very often."
As previously described,14 Williamson overheard a
conversation between a coworker, Steve Wilson, and
Sabo on October 4 in which Sabo announced that, "as of
yesterday, there will be no more breaks." Also as earlier
mentioned, Williamson and some others thereupon
ceased taking breaks, but there is no evidence that those
continuing to take breaks encountered any difficulty with
management.
On October 4, as well, Sabo directed Williamson to
turn in all his outstanding work orders so Sabo "could
re-analyze and see what was going on." Williamson
thereupon was told that he would be doing no more
work for individual owners, and two pending orders
from owners for Murphy beds to be done by him, were
canceled. Williamson credibly testified that the construc-
tion and installation of a Murphy bed could take as much
as 2 weeks. Then, on October 5, Williamson received
written notice that, as of the next Monday, October 8,
'3 See secs. IV, and VI, , supra.
"4 See sec. V, supra.
ASSOCIATION OF APARTMENT OWNERS 133
his weekly hours were being cut from 40 to 24 "due to
workload."
Williamson continued to do carpentry and masonry
work, confined to common areas and on the reduced
schedule, until October 31, when Sabo issued him a job
order stating:
The stairways, inside & outside landings are in need
of good cleaning. Start at the very top and work
down; scrub in corners & center areas to remove all
soil, wipe down any soil on walls or toe-kick as re-
quired. See me for proper cleaning solution, brushes
& other cleaning gear.
This job order further stated, in explanation of the as-
signment: "Do [sic] to lack of carpentry or masonry
work-I can try to give you other work (same pay rate
of 7.65)." Williamson never before had received an as-
signment of this sort. It was the joint decision of Nikola
and Sabo.'s5 Tasks such as this, which were part of Re-
spondent's semiannual cleanup, previously were done by
people specially hired for the purpose. Williamson credi-
bly testified, moreover, that they used mops and hoses,
rather than brushes. Instead of complying with the as-
signment, Williamson went home, first informing the
office that he was leaving. He later called in that he was
sick.
Williamson stayed off the job until November 13,
when he and an official of the Union, Mel Shiroma, met
with Nikola. Nikola said that he had been satisfied with
Williamson's work, but that "there just was not enough
work to keep" him busy as a carpenter and mason.
Nikola continued that Williamson could stay on the pay-
roll, as a groundskeeper or utility person, being paid
"somewhere in the neighborhood" of $5 per hour. Wil-
liamson replied that he instead would take a layoff. The
next day, he turned in his tools and received his final
check.
Sabo testified that the reduction in Williamson's hours,
as of October 8, and his later removal from carpentry
and masonry work were necessitated by a major diminu-
tion in that work resulting from two developments: The
substantial elimination of Respondent's responsibility for
the maintenance of rental and time-interval units, dis-
cussed above;'6 and a decision of the board of directors,
prompted by complaints from outside contractors, that
Respondent cease making its employees available to the
individual owners on a time-and-materials basis.
Sabo is not credited that the former development had
a significant impact on the amount of work for William-
son. Its two steps occurred in February and July-
months before the personnel actions in question. Beyond
that, Sabo eventually conceded that he did not know if
the removal of the rental units from Respondent's area of
responsibility had an effect ("I did not say it had an
effect; I said it could."); and that the time-interval units
had generated "very, very little work" of a carpentry/
masonry nature. Sabo continued that, when Williamson
lb Sabo testified: "We were trying to do anything to keep him there
and keep him on the payroll." He added: "Possibly a magic wand or a
miracle" would create "some more carpenter work for the man."
'6 See sec. VI, B, supra.
was hired, it was not anticipated that he would work in
the time-interval units. Nor is Sabo credited concerning
the supposed decision of the directors. Not only was he
unconvincingly vague about the alleged contractor com-
plaints, but there is no documentation that the directors
ever made such a decision, even though Respondent
chose to introduce certain minutes of the board's delib-
erations for other purposes, and those minutes reveal that
the meetings were recorded in meticulous detail.
The record indicates that some of the work formerly
done by Williamson was done by Chris Sabo during the
time that Williamson was on a reduced schedule. Thus,
Chris Sabo repaired a door on one of Williamson's off
days, and told Williamson that he did carpentry work
when Williamson was gone. Joe Sabo admittedly knew
of this disclosure by Chris to Williamson. He testified
that it was untrue, and that Chris had explained to him
that he "was trying to agitate" Williamson when he said
it. This testimony was lamely rendered and is not cred-
ited. 7
Williamson credibly testified that, with the exception
of one incident, he and Sabo communicated only by note
after the election. That incident, on or about October 12,
concerned Williamson's having reported to Respondent's
security force that a saw was missing. Harsh words
ensued between Williamson and both Sabos, during
which Joe Sabo asked Williamson if he was going to
quit, declared to Chris that there is "no sense talking to a
smartass like" Williamson, and called Williamson "the
biggest troublemaker" he had ever seen. S
C. Conclusions
It is concluded, as concerns this aspect of the case, Re-
spondent violated Section 8(a)(3) and (1) substantially as
alleged. Among the aggregate of factors contributing to
this conclusion are these:
(a) Williamson and Canterbury were prominent in
their union and protected concerted activities. William-
son was the lead employee spokesman in the confronta-
tions with management regarding both the Cambra and
Chris Sabo matters. There can be no doubt, moreover,
that the employees' activities relative to those matters,
being concerted and pertaining to terms and conditions
of employment, come under the protection of the Act.
Williamson was conspicuously prounion, as well, joining
with Kama in making initial contact with the Union, vol-
unteering his home for organizational meetings, collect-
ing and submitting signed union cards, and being the
Union's election observer.
Canterbury, while less active than Williamson, never-
theless was vocal concerning Chris Sabo during the
August 21 and 24 meetings, engaging in an accusatory
exchange with Chris in the latter, and was overtly
prounion.
(b) Respondent seemingly linked both Williamson and
Canterbury with the organizational effort. Nikola testi-
7' Chris Sabo did not testify.
'8 Williamson is credited over Sabo's denial that Sabo made the "trou-
ble maker" remark. As earlier noted, Williamson generally was the more
impressive witness, and his rendition of this incident carried the greater
suasive thrust.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled that they were not terminated on or about August
30, coincident with his letter to the president of the
board alluding to their "possible elimination," and with
an alleged drop-off in work, out of fear that "it might be
construed as anti-labor or anti-union practice."
(c) The timing of the actions concerning Canterbury
and Williamson suggests a causal relationship between
their union and/or other protected activities and those
actions. On August 25-the day after the second meeting
over Chris Sabo-Canterbury was relegated to the shin-
ing of light fixtures, never again to perform his custom-
ary repair functions; and was told, at or about the same
time, that he soon would be laid off or reduced to a 2-
day week.
On August 30, by then admittedly aware of the union
campaign, Nikola dispatched the letter to the president
of the board speaking of the "reduction and possible
elimination of" Canterbury and Williamson; after which,
the Union having filed for an election on August 31,
Canterbury's weekly hours were cut from 40 to 16 as of
September 4.
On October 4-2 days after the election-Joe Sabo an-
nounced that there would be "no more breaks," directed
Williamson to turn in his outstanding work orders so he
could "re-analyze" them, and severely curtailed the
work available to Williamson by cancelling pending
orders from individual owners and discontinuing Wil-
liamson's availability to them.
On October 5-three days after the election-Canter-
bury was told that, as of October 8, his hourly wage was
being cut from $6.65 to $4.50 and that his classification
was being reduced from maintenance man 2d to 3d class;
and Williamson was told that, as of October 8, his
weekly hours were being cut from 40 to 24.
On October 31-a little over 3 weeks after his hours
had been cut-Williamson was assigned to give the stair-
ways a "good cleaning," an assignment never before
given him, in lieu of doing his customary carpentry/ma-
sonry chores; and, on November 13, was told he could
stay on the payroll, but as a groundskeeper or utility
person, at an hourly wage of about $5 rather than $7.65/
$8.05.
(d) Respondent's stated reasons for its actions concern-
ing Canterbury and Williamson bespeak pretext. There is
no convincing evidence-indeed, very little evidence at
all, other than broad generalization-to support Re-
spondent's contention that a significant reduction in
work attended the cut in Canterbury's hours and his
reassignment from repair work to "sweeping, moving
rubbish, [and] cleaning."
Sabo's assertion that Canterbury's pay was cut because
of reservations about his attitude and willingness to do
his newly assigned tasks suggests that Sabo was more
intent upon inducing a bad attitude-perhaps thereby
causing Canterbury to quit-than in addressing an exist-
ing state of mind. Sabo's second explanation for the cut
in pay-that one starts "at the bottom of the ladder"
19 Even though Canterbury desired and willingly agreed to this reduc-
tion in hours, the inference is strong that Respondent was unlawfully mo-
tivated in proposing and implementing it. It is concluded, therefore, that
the arrangement violated Sec. 8(a)(3) and (I) as alleged, Canterbury's
willingness notwithstanding.
when placed in a new job category-likewise is rejected,
there being no substantial evidence of such a practice.
With respect to the reduction in Williamson's hours,
his being assigned away from carpentry/masonry work,
and the eventual conditioning of his continued employ-
ment upon acceptance of a severe pay cut and demotion
to a utility or groundskeeper classification, Sabo's testi-
mony was rejected earlier that these measures derived
from a lack of work. As then noted, he first cited the
elimination of responsibility for the rental and time-inter-
val units as taking away work, only to concede that
those developments were of slight if any moment; and
his testimony of a directors' decision, inspired by the
complaints of outside contractors, to stop placing the
employees at the disposal of individual owners was dis-
credited because of his vagueness and the absence of
documentation.
While Respondent did stop doing work for the
owners, and this undoubtedly did cut into the things for
Williamson to do, there is no convincing evidence that
this was compelled by circumstances outside its control.
The inference thus is warranted that, just as the cut in
Canterbury's pay seemingly was designed to induce
rather than address a bad attitude, provoking him to quit,
the cessation of work for the owners was meant to
create a situation giving colorable grounds to initiate the
process finally causing Williamson to quit.
(e) The after-the-fact manufacture of the alleged
Nikola letter dated August 22, to convey the impression
that the "possible elimination of" Canterbury and Wil-
liamson alluded to in Nikola's August 30 letter was the
continuation of a process begun before Respondent
learned of the union activity, speaks eloquently and
almost conclusively of unlawful motivation.
(f) As against Respondent's contentions of a lack of
work, Sabo expressed concern as recently as the July 27
directors' meeting over turnover and the difficulties in
finding suitable replacements.
(g) Finally, even though both Canterbury and William-
son quit, they are entitled to claim the benefits of unlaw-
ful discharge. Respondent, by so radically altering the
content of their jobs and their pay, virtually forced them
to quit, and it is plain from the foregoing recital that it
did so because of their union and protected concerted ac-
tivities. Fidelity Telephone Company, 236 NLRB 166
(1978); Crystal Princeton Refining Company, 222 NLRB
1068, 1069 (1976).
VII. THE ALLEGED 8(A)(3) AND (4) VIOLATIONS
CONCERNING THE BENEFIT FUNDS
A. Allegation
The complaint alleges that, on October 3, 1979, Re-
spondent "discontinued payroll deductions of, and the
management of, certain employee benefit funds" because
of the employees' union and other protected activities,
thereby violating Section 8(a)(3) and (1) of the Act.
B. Facts
The fun fund, previously mentioned in connection
with the anticipated Cambra grievance, was a creation of
ASSOCIATION OF APARTMENT OWNERS 135
the employees and had been in existence for several
months before the events in question. It was financed by
payroll deductions at the rate of 10 cents per hour from
the checks of participating employees. The idea, on the
fund's inception, was to use the accrued interest to pay
for a Christmas party, at which time the principal would
be recalled for whatever purpose the employees chose.
Until October 3, the fund was administered by Respond-
ent's office staff. The employees had asked Nikola, at the
beginning, if Respondent would oversee payroll deduc-
tions and otherwise administer it, and he agreed-"it was
a courtesy and I saw no reason not to do it." Nikola, Joe
Sabo, and Kama were authorized to make withdrawals
from the fund's bank account.
On October 3-the day after the election-Nikola
turned over the fund's bankbook and other records to
Harry Kama. Nikola explained to Kama that, having
"heard some insinuations that there might be some
misuse of the fund," he no longer wanted to be involved
with it. There is no convincing evidence that such in-
sinuations in fact had been advanced, Nikola testifying
vaguely that, "just about the time I made the decision to
turn the fund over . . . I had heard that someone felt
that we were not crediting the interest properly, or not
properly handling the funds."
A day or so after Nikola turned over the materials, the
employees voted to discontinue the fund, after which
their contributions were returned to them. During the
meeting culminating in the vote to discontinue, Joe Sabo
told the employees that there would be no more payroll
deductions.
C. Conclusions
It is concluded that Respondent's services on behalf of
the fun fund were a job-related benefit to the employees.
Cf. Laredo Coca Cola Bottling Company, 241 NLRB 167
(1979); Seattle-First National Bank, 176 NLRB 691
(1969). It is further concluded that the discontinuance of
those services, coming the day after the election and ac-
companied by an unconvincing stated rationale, was
prompted by the adverse election result. It follows that
this conduct violated Section 8(a)(3) and (1) as alleged.
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(1) on October 1,
1979, when Joe Sabo asked Williamson what he thought
"about this union thing," and asked Canterbury his views
concerning the Union and on October 4, when Sabo de-
clared that, "as of yesterday, there will be no more
breaks."
Respondent violated Section 8(a)(3) and (I) as follows:
(a) By assigning Canterbury away from repair work on
and after August 25, 1979; by reducing his weekly hours
from 40 to 16 as of September 4; by conditioning his
continued employment upon acceptance of an hourly
pay cut from $6.65 to $4.50 and demotion to mainte-
nance man 3d class, to be effective October 8; and by
constructively discharging him on October 11.
(b) By reducing Williamson's weekly hours from 40 to
24 as of October 8, 1979; by conditioning his continued
employment upon acceptance of an hourly pay cut from
$7.65/$8.05 to about $5 and demotion to a utility or
groundskeeper classification; and by constructively dis-
charging him on November 13.
(c) By discontinuing its services on behalf of the fun
fund on October 3, 1979.
(d) By Sabo's announcement of a prohibition against
breaks, stated October 4, 1979.20
Respondent did not otherwise violate the Act as al-
leged.
THE REMEDY
With two exceptions, the remedy shall be standard for
the violations found. The exceptions are these:
(a) Even though Respondent was unlawfully motivat-
ed in reducing Canterbury's hours, and therefore violat-
ed the Act in that regard, Canterbury desired and will-
ingly agreed to that arrangement. Consequently, having
suffered no detriment from this misconduct, Canterbury
is entitled to no backpay because of it.
(b) After being informed on October 5 that his pay
was to be cut and the content of his job altered, Canter-
bury stayed away from work for a time before finally
quitting on October 11. Similarly, Williamson left work
October 31 upon being assigned to clean stairways, stay-
ing away until he finally quit on November 13. Since
these absences were unlawfully induced, as part of an
overall discriminatory scheme, Canterbury and William-
son are entitled to recompense for any wages and bene-
fits lost as a result.
ORDER2 1
The Respondent, Association of Apartment Owners of
the Whaler on Kaanapali Beach, Lahaina, Maui, Hawaii
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union at-
titudes or sympathies.
(b) Discontinuing its services on behalf of the fun fund
or announcing a prohibition against breaks because of its
employees' support of a union.
(c) Assigning employees away from their customary
tasks, reducing their hours, conditioning their continued
employment upon acceptance of pay cuts and demotions
in classification and type of work, and constructively dis-
charging them (causing them to quit), because of their
engagement in union and/or protected concerted activi-
ties.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in their exercise of
rights under the Act.
2. Take this affirmative action:
a0 While subsequent events indicate that Sabo probably did not truly
intend to prohibit breaks, Williamson and certain others took him at his
word, and there is no evidence of a retraction. It is appropriate to con-
clude, therefore, that the ban was imposed.
21 All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by
Sec. 102.46 of the Rules and Regulations of the National Labor Relations
Board, the findings, conclusions, and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order, and all objections
thereto shall be deemed waived for all purposes.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Should the employees so request, resume its activi-
ties on behalf of the fun fund, as those activities were
constituted before October 3, 1979.
(b) Inform its employees, by posting a notice where
notices to employees customarily are posted, that the
prohibition against breaks announced by Joe Sabo on
October 4, 1979, has been retracted.
(c) Offer to Robert Canterbury and Robert Williamson
immediate and full reinstatement to the jobs they held
before their constructive discharges on October 11 and
November 13, 1979, respectively; more specifically, to
the jobs they held before any alteration in job content
was undertaken starting with Canterbury on August 25,
1979; or, if such jobs no longer exist, to substantially
equivalent jobs, without prejudice to their seniority or
other rights and privileges previously enjoyed, and make
them whole for any loss of earnings and benefits suffered
by reason of those discharges, with interest on lost earn-
ings.22
(d) Make Canterbury and Williamson whole for any
loss of earnings and benefits caused by discriminatorily
inducing them to miss work from October 5 to 11, 1979,
and October 31 to November 13, 1979, respectively, with
interest on lost earnings.
22 Interest, wherever provided for herein, shall be computed in ac-
cordance with Florida Steel Corporation, 231 NLRB 651 (1977). See, gen-
erally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Backpay shall
be computed in accordance with F. W. Woolworth Company, 90 NLRB
289 (1950).
(e) Make Williamson whole for any loss of earnings
and benefits suffered by reason of his hours having been
cut as of October 8, 1979.
(f) 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 records nec-
essary to analyze the amounts of backpay and benefits
owing under the terms of this Order.
(g) Post at its facility in Lahaina, Maui, Hawaii, the
notice which is attached and marked "Appendix."2 3
Copies of the notice, on forms provided by the Regional
Director for Region 20, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
To the extent that merit has not been found, the com-
plaint is dismissed.
23 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."