Atlantic-Pacific Management

National Labor Relations Board - Board Decisions

Sep 20, 1993

312 N.L.R.B. 242 (N.L.R.B. 1993)

242
312 NLRB No. 51
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and brief adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 All dates herein refer to the year 1991 unless otherwise indicated.
2 The complaint was amended at the hearing to permit the stipula-
tion of certain jurisdictional facts by the parties. The Respondent’s
denial of jurisdiction is based on the stipulation.
Atlantic-Pacific Construction Co., Inc. d/b/a Atlan-
tic-Pacific Management and Larry Davis. Case
20–CA–24282
September 20, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On April 16, 1993, Administrative Law Judge Gor-
don J. Myatt issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings, and conclusions and to adopt the rec-
ommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Atlantic-Pacific Construc-
tion Co., Inc. d/b/a Atlantic-Pacific Management, Los
Angeles, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Jonathan J. Seagle, Esq., for the General Counsel.
Fred W. Kaiser, Esq., of Sacramento, California, for the Re-
spondent.
Steven T. Seligman, Esq., of Sacramento, California, for the
Charging Party.
DECISION
GORDON J. MYATT, Administrative Law Judge. On a
charge filed by Larry Davis (Davis), an individual, against
Atlantic-Pacific Construction Co., Inc. d/b/a Atlantic-Pacific
Management Co. (the Respondent), the Acting Regional Di-
rector for Region 20 issued a complaint and notice of hearing
on November 22, 1991. The complaint alleges the Respond-
ent discharged Davis on September 27, 1991,1 for engaging
in protected concerted activities, and thereby violated Section
8(a)(1) of the National Labor Relations Act (the Act), as
amended. 29 U.S.C. § 151 et. seq.
The Respondent filed an answer in which it admitted cer-
tain allegations of the complaint and specifically denied vio-
lating the Act. The Respondent’s answer also denied Board
jurisdiction over its business operations.2
A hearing was held in this matter on June 2, 1992, in Sac-
ramento, California. All parties were represented by counsel
and afforded full opportunity to examine and cross-examine
witnesses and to present material and relevant evidence on
the issues. Counsel for the Respondent argued orally at the
conclusion of the hearing and a brief has been submitted by
the General Counsel. The oral argument and the brief have
been fully considered in arriving at this decision.
On the entire record in this matter, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Atlantic-Pacific Construction Co., Inc.
d/b/a Atlantic-Pacific Management Co., is a California cor-
poration engaged in providing management services to own-
ers of apartment buildings and houses. Respondent maintains
its principal place of business in Los Angeles, California,
and during the 12-month period ending December 1990, Re-
spondent, in the course of its business operations, provided
services in excess of $50,000 to enterprises within the State
of California.
Parcwood-Sacramento Joint Venture (Joint Venture), a
California partnership owned by Parcwood-Sacramento, Ltd.
and Connecticut General Life Insurance Company, has
owned an apartment building complex called the Parcwood
Apartments (Parcwood), located in Sacramento, California,
and has contracted with the Respondent to manage the com-
plex. During the 12-month period ending December 31,
1991, the Respondent, in the course of its business oper-
ations, received in excess of $50,000 for providing manage-
ment services at Parcwood. During the same time period,
Joint Venture received rental payments in excess of $2500
directly from outside the State of California and derived rev-
enues in excess of $500,000 for the rental of units at
Parcwood.
The Respondent’s answer denies that its comes under the
jurisdictional standard established by the Board for employ-
ers engaged in the apartment house industry. I find the con-
tention that the Board lacks jurisdiction in this matter to be
without merit.
The Board has established a $500,000 discretionary stand-
ard for asserting jurisdiction over residential apartments.
Parkview Gardens, 166 NLRB 697 (1967); See also LSM
Management Co., 300 NLRB 472 (1990). The pleadings here
admit that Joint Venture derived revenues in excess of
$500,000 for the rental of apartment units at Parcwood dur-
ing the 12-month period ending December 31, 1990. It is
evident therefore, that the discretionary standard for assertion
of jurisdiction over the complex itself has been met. Since
the Respondent provides the management services for the
complex, it follows that its operations fall within the standard
applied to the complex and have an impact on commerce.
James Johnston Property Mgt., 221 NLRB 301 (1975). Addi-
tionally, the pleadings admit that Joint Venture received rent-
als for units at Parcwood in excess of $2500 directly from
243ALANTIC-PACIFIC MANAGEMENT
3 The record is unclear as to whether the Bond Program was a
local, state, or Federal program. Ashwell processed Davis’ applica-
tion to enable him to qualify for the lower rental rate.
4 Davis stated that 72 hours was the normal time span to clean an
apartment for rental. As the leasing agent, according to Davis, Hart
would schedule rentals for a shorter cleanup period.
5 None of the employees to whom Davis spoke regarding Hart
were called as witnesses in this proceeding.
6 While he was a tenant, Lockhart was apparently on disability and
spent a considerable amount of time in and around the front office
of the complex. He also occasionally worked part time for the Re-
spondent in the front office and was on friendly terms with the of-
fice staff, including Davis.
sources outside the State during the year 1990. This source
of revenue from across state lines is more than de minimis
and satisfies the Board’s statutory standard for asserting ju-
risdiction. Pioneer Concrete Co, 241 NLRB 264 (1979); Dr.
J. W. Gilmartin, 220 NLRB 1312, 1313 (1975).
In view of the above, I find the Board’s jurisdictional re-
quirements have been satisfied here. Accordingly, the record
establishes that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Operational Structure of the Respondent
Arpad Domyan, the president of the Respondent, maintains
his office at the Respondent’s main location in Los Angeles,
California. During the time of the events here, Respondent’s
management operation at Parcwood was under the direction
of Kelly Ashwell, the on-site property manager, who reported
directly to Domyan. In addition to Ashwell, the front office
staff consisted of a leasing agent and a bookkeeper. The so
called ‘‘back-of-the-house’’ employees consisted of a mainte-
nance engineer, a custodian, two housekeepers, three garden-
ers, and painters. The record also indicates that the Respond-
ent utilized security personnel at the complex.
The undisputed testimony clearly demonstrates that
Ashwell directed and scheduled the work of all the Respond-
ent’s employees at Parcwood, made effective recommenda-
tions for the hiring of new employees, terminated employees
without consulting Domyan, and annually evaluated the job
performance of the employees and made effective rec-
ommendations for wage increases. Therefore, the Respond-
ent’s contention that Ashwell is not a supervisor and agent
of the Respondent, within the meaning of Section 2(11) and
(13) of the Act, is rejected. Also, the contention that
Domyan, as president of Respondent, is not a supervisor and
agent of the Respondent within the meaning of the Act is re-
jected.
B. The Termination of Davis’ Employment
Davis was first hired to work at Parcwood by the Re-
spondent in September 1987 as the security supervisor. In
April 1990, he was promoted to the position of bookkeeper
at the facility and worked in the front office with Ashwell
and Martis Hart, the then leasing agent. Davis also occupied
an apartment unit in the complex at a reduced rental rate.
The reduced rental, however, was not a benefit which Davis
received as an employee of the Respondent. Rather, it was
geared to a rental supplement, based on income, for which
Davis qualified under a ‘‘Bond Program.’’3
The undisputed testimony indicates that after Davis be-
came the bookkeeper, he had ongoing disputes in the office
with Hart over errors in his bookkeeping work and, appar-
ently, entitlement to commissions for rentals of apartment
units. On May 7, Ashwell issued a letter of reprimand to
Davis regarding deficiencies in his job performance, his gen-
eral attitude, and other work habits. The reprimand also stat-
ed that Davis made too many errors in his bookkeeping and
failed to make the bank deposits in a timely fashion. (See
G.C. Exh. 2.) Although Davis testified he continued to per-
form his duties in the same manner after the reprimand, there
is no evidence in the record that he received any subsequent
warnings from Ashwell regarding his job performance.
Apparently in early September, Ashwell gave the Re-
spondent notice that she was leaving her job at Parcwood to
take another position. Davis testified that on September 13,
he was approached by one of the gardeners, Richard Keenan,
who expressed concern over the fact that Ashwell was leav-
ing as property manager and possibly would be replaced by
Hart. According to Davis, Keenan stated he and other em-
ployees felt that if Hart became the property manager, she
would change their working conditions. Specifically, that
Hart would require the employees to clean the apartments
which became available for rental at a much faster rate.4
Davis further testified that Keenan asked if Davis, who had
access to the fax machine in the office, would send a letter
to Domyan expressing the employees’ concern over the pos-
sible selection of Hart as the manager. Davis agreed to do
so provided all of the employees signed the letter.
Later that same day, according to Davis, he spoke with
Gary Garvin, another gardener. Davis asked Garvin if he
thought his working relationship with Hart would change if
she became the manager. Garvin expressed concern that his
hours would be changed if someone other than Ashwell were
manager. Garvin indicated he would sign a letter to Domyan
setting forth employee concerns, if one were written.
Davis stated that subsequent to his conversation with Gar-
vin, he spoke with several other employees about the effect
the possible appointment of Hart to the manager’s position
would have on their working conditions. He testified he
spoke with Edith Ramiriz (housekeeper), Richard Price (rug
shampooer), William Mureness (painter), and Karen McLish
(housekeeper). All the employees, according to Davis, agreed
to sign a letter to Domyan, if one were drafted.5
On September 17, Davis drafted a letter to Domyan re-
questing that an outside manager be appointed to succeed
Ashwell. The letter stated the employees considered Hart
‘‘an unreasonable and difficult person to work with’’ and
they ‘‘would consider another job offer,’’ if Hart became
manager temporarily or permanently. (G.C. Exh. 3.) After the
employees signed the letter, Davis faxed it to Domyan’s of-
fice in Los Angeles.
There is additional testimony in the record regarding
Davis’ personal antipathy toward Hart. Lance Lockhart, a
former tenant of Parcwood, stated that he and Davis were
discussing Hart’s possible appointment to the position of
property manager in September, after it became known that
Ashwell was leaving.6 According to Lockhart, ‘‘Davis said
if that bitch [Hart] got the job he was going to quit the very
next fucking day.’’ When questioned as to the basis for
244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 As noted, other than Davis, none of the employees who signed
the opposition letter were called as witnesses in this hearing. In these
circumstances, I do not credit Domyan’s statement that ‘‘several’’
employees told him on September 27 they were ‘‘coerced’’ by Davis
into signing the opposition letter. I find that his statements in this
regard were based on a very selective memory and, therefore, un-
worthy of belief. This is especially true since Domyan demonstrated
he was able to recall all the events of September 27 but, nonetheless,
was unable to identify the employees who purportedly claimed to be
coerced by Davis.
Davis’ opposition to Hart, Lockhart relied, ‘‘He didn’t like
Martis [Hart] at all.’’ Lockhart testified that when he first
met Davis, the latter told him that Hart would ‘‘stab you in
the back, cut your throat.’’ Lockhart further testified that dur-
ing the conversation in September, Davis made no mention
of the possible impact that Hart’s selection as manager would
have on the working conditions of the employees.
According to the testimony of Davis he had a conversation
with Ashwell on September 23, in which she informed him
that the Parcwood complex was being sold, and she was uti-
lizing a placement service to find new employment. She fur-
ther advised Davis that when new owners took over a prop-
erty, they usually terminated the managers and the book-
keepers. Davis testified he then asked for and received a
blanket letter of recommendation from Ashwell to assist him
in searching for employment elsewhere. (G.C. Exh. 5.)
The record establishes that Domyan came to the complex
on September 27 and spoke to each of the employees indi-
vidually. Davis testified that he met with Domyan in the se-
curity office. According to Davis, Domyan said he was ‘‘dis-
appointed’’ in Davis and that Davis was not a ‘‘team play-
er.’’ Davis testified that Domyan said he did not like being
given an ‘‘ultimatum,’’ and that he was selecting Hart to be
the property manager. Davis further testified that Domyan
then handed him two checks, one representing his final pay
check and the other representing severance pay, and in-
structed him to leave the premises immediately. Domyan also
gave Davis a 30-day notice to vacate the apartment he was
renting in the complex.
Domyan, on the other hand, testified that after he received
the faxed letter from the employees objecting to selection of
Hart as manager, he called Ashwell about the matter. Ac-
cording to Domyan, Ashwell could not give him a satisfac-
tory explanation other than to point out that there was a per-
sonality conflict between Davis and Hart. Domyan said the
conflict was the result of disputes over commissions and the
fact that Davis had not properly performed his duties as
bookkeeper.
Domyan stated that when he met with Davis on September
27, he asked the employee whether he authored the letter ob-
jecting to Hart. According to Domyan, Davis denied that he
did so. Domyan asked if Davis had read the letter and under-
stood its contents. When Davis said he did, Domyan told the
employee that he was going to appoint Hart to the position
of property manager. Domyan then told Davis that he had no
other alternative but to accept Davis’ resignation in accord-
ance with the letter.
Domyan further testified that prior to coming to Parcwood,
he had checks made out for all the employees, in the event
anyone wanted to resign and leave the property because of
his selection of Hart. According to the testimony of Domyan,
none of the other employees chose to resign, and several in-
formed him that they were ‘‘coerced’’ into signing the letter
by Davis. He was unable, however, to identify the particular
employees who asserted they were coerced.
On September 30, Domyan sent a letter to Davis setting
forth the circumstances of the termination of Davis’ employ-
ment from the Respondent’s’’ perspective. In the letter,
Domyan acknowledged Davis’ ‘‘verbal resignation rendered
on September 27, 1991,’’ and stated that the employee had
been given his final paycheck and a severance check on that
date. (G.C. Exh. 4.)
Concluding findings
The main thrust of the Respondent’s defense in this matter
is that Davis was not engaged in protected concerted activity
in expressing his opposition to the selection of Hart as the
property manager. Rather, the Respondent contends that
Davis opposed the selection of Hart solely for reasons result-
ing from the personal antipathy which existed between them,
and this was unrelated to any impact Hart’s selection would
have on the working conditions of the employees at
Parcwood. Contrary to the Respondent, I find the facts here
do not support the Respondent’s contention.
Although not well drafted, the letter of September 17 op-
posing the selection of Hart as the property manager dem-
onstrates the employees’ collective concern about the effect
Hart’s selection would have on their working conditions at
Parcwood. Indeed, if any doubt existed as to this being the
underlying motive for the opposition letter, it is dispelled by
the unrefuted testimony of Davis that employee Keenan ex-
pressed concern that Hart would impose a shorter cleanup
time to prepare apartments for rental, and that employee Gar-
vin expressed concern that Hart would change his hours.7 As
the General Counsel has correctly noted in his brief, the
property manager ‘‘possessed’’ and exercised authority ‘‘to
control the day-to-day working conditions of the employees’’
at Parcwood. Thus, it is evident that the record establishes
that Davis was acting in concert with other employees in op-
posing the selection of Hart as the property manager of the
complex, and that the opposition was directly related to em-
ployee concerns about their working conditions.
The Board has held that ‘‘employee protest regarding the
selection or termination of a supervisor who has an impact
on employee working conditions is protected [activity].’’
Hoytuck Corp., 285 NLRB 904 fn. 3 (1987); Oakes Machine
Corp., 288 NLRB 456 (1988), enfd. 897 F.2d 84 (2d Cir.
1990); Korea News, 297 NLRB 537 (1990). Accordingly, I
find that Davis was engaged in protected concerted activity
when he drafted the letter in opposition to the selection of
Hart as property manager, secured the employee signatures
on it, and transmitted the letter to Domyan.
On the basis of the above, I find the General Counsel has
proved a prima facie case which establishes that Davis was
discharged on September 27 because the employee engaged
in protected concerted activity in opposing the selection of
Hart. I further find the Respondent has not persuasively re-
butted the prima facie case by demonstrating it would have
discharged Davis in any event, regardless of his protected ac-
tivity. See Wright Line, 251 NLRB 1083 (1980).
It is clear from the unrefuted testimony in the record that
when Domyan came to the Parcwood facility on September
27, he had termination checks already prepared for Davis and
any of the other employees who continued to oppose his
choice of Hart as property manager. Regardless of which
245ALANTIC-PACIFIC MANAGEMENT
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
version (that of Davis or Domyan) of the Davis termination
interview is considered, it is apparent that the focal point of
their conversation was the letter in opposition to the selection
of Hart. Thus, whether Domyan expressed disappointment in
Davis and accused the employee of not being a ‘‘team play-
er,’’ or whether he asked the employee if he stood by con-
tents of the opposition letter in no way alters the obvious
conclusion that Davis’ employment was terminated because
of his expressed opposition to selection of Hart as the prop-
erty manager.
The fact that the Respondent choose to characterize Davis’
termination as a ‘‘resignation’’ does not modify my conclu-
sions that the employee was terminated by Domyan. There
is no evidence in the record indicating that Domyan was
aware that Davis was seeking employment elsewhere at the
time termination interview. Nor did the opposition letter con-
tain language which would lead one to believe the signatory
employees would resign if their views were rejected. It mere-
ly stated the employees ‘‘would consider another job offer,’’
if Hart were selected for the position. In these circumstances,
I find the record establishes that Davis was in fact terminated
by the Respondent on September 27. I further find that his
termination was the direct result of his participation in the
employee opposition to the appointment of Hart as the prop-
erty manager of the complex.
CONCLUSIONS OF LAW
1. The Respondent, Atlantic-Pacific Construction Co., Inc.
d/b/a Atlantic-Pacific Management Co., is an employer with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. By discharging employee Larry Davis on September 27,
1991, because he engaged in protected concerted activity re-
lating to employee working conditions, the Respondent has
violated Section 8(a)(1) of the Act.
3. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
of the Act, it shall be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectuate
the policies of the Act.
The Respondent having unlawfully discharged employee
Larry Davis, it must offer him reinstatement and make him
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). In addition, the Respondent shall be re-
quired to expunge from its files any reference to the unlawful
discharge and notify the employee in writing that this has
been done and that the discharge will not be used against
him in any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Atlantic-Pacific Construction Co., Inc.
d/b/a Atlantic-Pacific Management Co., Los Angeles, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they engage in con-
certed activities which are protected under Section 7 of the
Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Larry Davis immediate and full reinstatement to
his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, in the
manner set forth in the remedy section of this decision. In
addition, remove from its files any reference to the unlawful
discharge and notify the employee in writing that this has
been done and that the discharge will not be used against
him in any way.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its Parcwood facility in Sacramento, California,
copies of the attached notice marked ‘‘Appendix.’’9 Copies
of the notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
Accordingly, we assure you that:
WE WILL NOT discharge employees because they engage
in concerted activities relating to employee working condi-
tions which are protected under the Act.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL offer Larry Davis immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed
and WE WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any net in-
terim earnings, plus interest.
WE WILL notify the Larry Davis that we have removed
from our files any reference to his discharge and that the dis-
charge will not be used against him in any way.
ATLANTIC-PACIFIC CONSTRUCTION CO., INC.
D/B/A ATLANTIC-PACIFIC MANAGEMENT