Resolute Realty Management Corp.

National Labor Relations Board - Board Decisions

Jan 31, 1990

297 N.L.R.B. 679 (N.L.R.B. 1990)

RESOLUTE REALTY MANAGEMENT 679
Resolute Realty Management Corp. and Duncan St.
'Croix. Case 3-CA-14487
- • •
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
- CRACRAFT AND DEVANEY
On August 2, 1989, Administrative Law Judge
Steven B Fish issued the attached decision The
Respondent filed exceptions and 'a supporting bnef
and the General Counsel filed an answering brief
and a motion to strike in part the Respondent's
brief in support of exceptions 1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and bnefs and has
decided to affirm the judge's rulings, 2 findings,3
and conclusions and to adopt the recommended
Order as modified 4
, 1
'We grant the General Counsel's motion to stnke that portion of the
Respondent's brief referring to matters outside the record
2 We find no merit in the Respondent's exception that it was preju-
diced by the trial amendment of the complaint to Include the allegation
that the Respondent violated Sec 8(a)(1) of the Act in November 1988,
when Property Manager Norman Cannon informed employees Mark
Florin° and Larry Searles in his office that he knew they had attended
the union meeting in June 1988 The General Counsel amended the com-
plaint at the beginning of the heanng, and the judge offered the Respond-
ent a continuance should the Respondent find one necessary However,
the Respondent did not seek a continuance
3 The Respondent has excepted to some of the judge's credibility find-
ings The Board s established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrec! Standard Dry
Wall Soilucts, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cu . 1951)
We have carefully examined the record and find no basis for reversing
the findings
In adopting the judge's finding that the Respondent, through Supervi-
sor Dithulto, unlawfully interrogated employee Mark Florin°, Chairman
Stephens notes that the incident is distinguishable from the one in which
he dissented in Raytheon Co, 279 NLRB 245, 250-252 (1986) Although,
as in Raytheon, the employee initiated the discussion of the union meet-
ing, the supervisor here not only inquired about who attended the meet
mg, but—unsatisfied with the employee's initial answer—persisted in his
inquiry concerning exactly who had attended Furthermore, unlike
Raytheon, in which no violations other than the interrogation Itself were
found, the questioning here was followed 2 days later by the unlawful
discharge of the main union activist
In adopting the judge's finding that the Respondent violated Sec
8(a)(1) and (3) of the Act by discharging employee Duncan St Croix,
Chairman Stephens and Member Devaney find It unnecessary to rely on
the small size of the shop, as the judge did here, because the evidence
clearly shows that the Respondent, including Cannon, was aware of St
Croix s union activities before discharging him
* The judge in his recommended Order provided broad cease-and-
desist language We find that a narrow order, like that in the notice, is
appropriate here because It has not been shown that the Respondent has
a proclivity to violate the Act or has engaged in such egregious or wide-
spread misconduct as to demonstrate a general disregard for the employ-
ees fundamental statutory rights Flickmott Foods, 242 NLRB 1357
(1979)
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Resolute Realty Management Corp,
Liverpool, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified by substituting the following
for paragraph 1(d)
"(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act"
Michael J Israel, Esq and Michael Cooperman,. Esq , for
the General Counsel
David B Newman, Esq (Fine, Tofel, Sax! ci Berelson,
P C ), of New York, New York, for the Respondent
Philip I Frankel, Esq (Manes, Rifken, Frankel & Green-
man), Syracuse, New York, for the Charging Party
DECISION
STATEMENT OF THE CASE
STEVEN B FISH, Administrative Law Judge Pursuant
to charges and amended charges filed by Duncan , St
Croix, the Regional Director of Region 3 issued a com-
plaint and notice of hearing on August 24, 1988, 1 alleg-
ing that Resolute Realty Management Corp (Respond-
ent) violated Section 8(a)(1) and (3) of the Act . The
complaint, as amended at trial, alleges in substance that
Respondent violated the Act by interrogating an employ-
ee regarding membership and sympathies for Painters
and Allied Trades Local 31 (the Union), by creating the
impression of surveillance, and by discharging St Croix
because he joined, supported, and assisted the Union
The trial with respect to the above allegations was
held before me in Syracuse, New York, on December 13
and 14 1988 Briefs have been received from all parties
and have been carefully considered
Upon the entire record, including my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is a New York corporation with an office
and place of business at No 1 Gallow Gate Court,
Liverpool, New York, where it is engaged in the man-
agement, operation, and rental of apartments, including
apartment complexes known as Heritage Park Apart!
ments, Tudor Townhomes, and Weatherby Townhomes
During the past year Respondent derived gross revenues
in excess of $500,000 During the same period of time,
Respondent purchased and received at its Liverpool,
New York facility goods and supplies valued in excess of
$50,000, which goods and supplies were shipped directly
' All dates hereinafter are in 1988 unless otherwise indicated
297 NLRB No 105
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from points outside the State of New York Respondent
admits, and I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act
II LABOR ORGANIZATION
It is also admitted and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act
III FACTS
St Croix began his employment at the Tudor Town-
home complex in January 1986, when Arcadia Manage-
ment was managing the property In the spring of 1986,
Respondent purchased the Tudor complex, as well as
two other complexes, Heritage Park and Weatherby
When Respondent took over, St Croix was transferred
to the Heritage Park complex, where he worked as a
maintenance employee, with job duties including painting
and preparing apartments for new tenants, electrical
work, plumbing, and general repair 2
St Croix's immediate supervisor was George than-
ho Norman Cannon became Respondent's property man-
ager in October of 1986, and was in charge of the three
complexes operated by Respondent Michael Carnnte
was also a supervisor of Respondent employed at the
Tudor complex 3
St Croix was initially paid $6 per hour by Respond-
ent In September 1987, St Croix asked Cannon if he
could rent an apartment at the Tudor complex, since his
girlfriend had become pregnant, and he needed more
space Cannon after initially questioning St Croix's finan-
cial ability to pay the rent, finally agreed to lease him an
apartment, but to reduce his salary to $3 75 per hour
The rent for the apartment was paid by virtue of the re-
duction of St Croix's salary from $6 per hour to $3 75
per hour His overtime wages however, were thereafter
calculated on a salary of $3 75 per hour
St Croix's job responsibilities remained the same, sub-
sequent to his moving into the Tudor complex, and his
paying the rent by having his salary reduced St Croix
began to feel that it was unfair for Respondent not to
pay him overtime or make social security payments on
wages which Included the value of his apartment There-
fore in early 1988 he went to the Department of Labor
to find out about the legality of such a practice He was
told by a representative of the Department of Labor that
Respondent was not violating the law by such conduct
St Croix continued to be bothered by this situation
however, so he thought that perhaps obtaining union
representation might assist him in persuading Respondent
to pay overtime and social security on what he felt was
his entire salary, which included the value of his apart-
ment
On or about June 1, St Croix contacted the Union by
phone and spoke to Ivan Ellsworth, a union organizer
Ellsworth Informed St Croix about the procedure for or-
2 The Heritage complex is located a mile or two from the Tudor com-
plex
3 It was stipulated and find that Cannon, DIGIullo, and Carnnte were
all supervisors and agents of Respondent within the meaning of the Act
gamzing employees, and suggested that St Croix speak
to the other employees and determine the extent of inter-
est in a Union Ellsworth added that it would be neces-
sary to obtain interest from at least 50 percent of the em-
ployees before the Union would pursue organizing
On the very same day that St Croix had the above
conversation with Ellsworth, St Croix was visited at his
apartment by Cannon Cannon Informed St Croix that
Laurie that'll° (George Diaulio's wife) who had Just
been terminated by Respondent, intended to go to the
Department of Human Rights to complain about her dis-
charge Cannon told St Croix that if he (St Croix)
didn't stop thaulio from complaining to Human Rights,
that he and other employees would have to pay taxes to
the IRS on the value of their apartments During this
conversation Cannon added that he couldn't have fired
Laurie "if she was Union"
Immediately after St Croix's discussion with Ells-
worth, he began to discuss the Union with employees of
Respondent employed at the Tudor and Heritage com-
plexes St Croix spoke to them at their homes, before
work in the mornings, and while the employees were on
breaks or at lunch at the complexes, St Croix told the
employees that he was attempting to organize the em-
ployees to join the Painters Union, and was trying to set
up a meeting with union representatives St Croix was
successful in obtaining initial Interest from 90 percent of
Respondent's 8-10 maintenance preparation employees to
attend a union meeting
At some point during the first week in June, St Croix
approached both that'll° and Carnnte about union or-
ganization St Croix told them that he was attempting to
organize a union, and asked if they were interested Di-
Giulio indicated that he would go to a union meeting
and hear what the Union had to say 4 Carnnte told St
Croix that he was not interested in the Union
Diaulio admits that immediately upon his being solic-
ited by St Croix, he informed Cannon that St Croix was
"checking into a Union "5 Carnnte denies that he said
anything to Cannon about St Croix's union activity, al-
though he admits being aware of the fact that St Croix
was openly organizing for the Union during the month
of June, amongst Respondent's employees
Cannon, for his part denies being aware of any orga-
nizing or union activity by St Croix prior to the union
meeting of June 21, to be discussed below Cannon
admits that someone, probably that'll°, told him about
St Croix organizing for the Union, but that it was after
the union meeting on June 21, wherein he was also told
that employees Fionno and Searles attended a union
meeting on that date
4 St Croix thought tht DiGiuho might be Interested in the Union, be-
cause his wife had recently been fired by Respondent
5 DiGiullo was somewhat uncertain about the time of these incidents,
testifying at one point that they took place 1 to 1-1/2 weeks before the
discharge of St Croix, which occurred on June 24 Later he placed the
discussions as occurring 2 weeks after he returned from his honeymoon
on May 22 I conclude that the mutually corroborative and credited testi-
mony of St Croix and Ellsworth establishes that these union discussions
occurred sometime during the early part of the first week in June, a day
or two after St Croix's June 1 phone call with Ellsworth
RESOLUTE REALTY MANAGEMENT 681
On or about June 8, St Croix called Ellsworth on the
phone St Croix notified Ellsworth that he had spoken
to employees and had 90 percent of employees interested
in the Union Ellsworth replied that he would get back
to St Croix about a date for a meeting A few days later,
Ellsworth notified St Croix that a meeting was arranged
for 6 p m on June 21 at the union hall Over the next
few days, St Croix informed the employees about the
date, time and place of the meeting Most of the employ-
ees whom St Croix spoke to agreed to attend St Croix
also asked DiGiulio about the meeting, but he declined
to attend because the union hall was too far away St
Croix asked Camnte as well, who said that he would not
attend, because he "didn't like Unions"
On June 21, the night of the meeting, St Croix picked
up employee Mark Fionno and two other employees
who lived at the Heritage complex They drove over to
the Tudor complex to pick up employees who worked at
Tudor to go to the meeting They arrived about 5 15
p m at Tudor St Croix was told by several employees
that Carnnte had ordered them to work late that evening
to finish some apartments They added that they didn't
want to work overtime, but that they did not wish to
leave in fear of losing their job The employees who St
Croix spoke •to were Chucky (Charles Spear), Chns
(Chris Marooney), and Phil (Phillip Kazel) St Croix
then approached Carnnte and asked why the employees
could not go to the union meeting that night Camnte
responded that Cannon had instructed him that the em-
ployees had to work late that evening
Cannon and Carnnte both deny that the union meeting
had any bearing on the decision to schedule overtime
that evening They both concede that Cannon made the
decision with respect to overtime, but neither could
recall at what point in the day the decision was made
Cannon denies that he ever knew about the union meet-
ing at the time 6 Carnnte admits however that he was
aware of the union meeting, but denies that he transmit-
ted this information to Cannon
-, Both Cannon and Camnte asserted that overtime is
based simply on the number of apartments that have to
be completed at any particular time, and that the period
of June and July are generally and were in 1988 very
busy times, requiring extensive overtime Records sub-
mitted by Respondent support this testimony, including
the fact that Marooney, Kazel, and Spear (the employees
spoken to by St Croix) worked substantial amounts of
overtime during this period Thus-for a 3-week period,
which encompassed the week including June 21, the
week before and the week after, Marooney worked some
overtime hours every day but one, plus working two
Saturdays and one Sunday, totalling 44 overtime hours
for this 3-week period Kazel worked overtime every
day during this period, plus two Saturdays and a Sunday,
with a total of 44 25 hours of overtime Spears also
worked overtime hours every working day, totalling
8 However, DiGiuho testified without contradiction by Cannon, that
he spoke to Cannon on the evening of June 21 at the Tudor complex
Cannon asked DiGiulio where Duncan (St Croix) and Mark (Fionno)
were Dithuho replied at a meeting Cannon responded a Union meet-
ing', and DiGiullo said yeah I think so"
46 25 hours, including two Saturdays and one Sunday,
during this 3-week period
Five or six employees including Fiormo and St Croix
attended the union meeting, along with Ellsworth Ells-
worth distributed pledge cards to the employees present,
and gave St Croix additional cards to distribute to other
employees
After the meeting ended St Croix drove Fionno to
Fionno's apartment at the Hentage complex They en-
countered Carnnte and another employee Donald
Dingee The subject of the union meeting was men-
tioned St Croix indicated that the Union would be get-
ting the employees benefits, a pension plan, and job secu-
rity Carnnte began to raise his voice, and stated that he
was tired of hearing about the Union, that Respondent
was too small for a Union, that it would hurt more than
help the employees, that the Union was crooked and was
just after dues, and that the employees "shouldn't be
doing it "7
The next day, June 22, Fiormo met Dithulio at the
clubhouse getting supplies Fionno began to brief Dithu-
ho as to what went on during the meeting Fionno told
Dithuho about the benefits the employees were seeking
to obtain from union representation, such as more
money, job security, and a pension plan Dithuho then
asked Fiorillo which employees attended the meeting
Fionno replied "me and Duncan (St Croix) " DiGiullo
persisted and asked who else was there' ? Fiormo respond-
ed that he could not tell him
On June 22 and 23 St Croix distributed authonzation
cards to a number of Respondent's employees either
before work, at lunch, or at the employees homes He
obtained signed authorization cards from Fionno, Mar-
ooney, Kazel, and Lewis Pudney and mailed the signed
cards into the Union On one of these occasions, at the
Tudor complex, St Croix spoke to Spears, Kazel, and
Marooney as they were leaving the apartment they were
working on to go to lunch St Croix handed out cards to
the employees and discussed with them the benefits of
joining the Union At this time Camnte was working in
the apartment, 20-30 feet away from where St Croix
was soliciting the employees to join the Union St Croix
believes that Carnnte observed his actions but admits
that Carnnte could not hear what he was saying to the
employees
However, dunng these 2 days, St Croix handed a card
to Camnte Carnnte accepted the card without com-
ment, but immediately threw it out St Croix also at-
tempted to give an authonzation card to DiGiulio Di-
Giulio refused to accept it St Croix responded that he
would leave a card on Dithuho's truck in case he
changed his mind St Croix then placed a card on Di-
Giulio's'truck
On June 24, at the end of the workday St Croix was
notified by Cannon that he was being discharged because
7 Carnnte had expressed similar sentiments about the Union to St
Croix and Florin° in conversations that took place in Flonno's apartment
prior to the meeting Florin° is Carrinte's cousin, and during social gath-
erings the subject of the Union would come up, and Carrinte would ex-
press his views on the Union similar to the above remarks
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of his "bad attitude" Cannon did not explain nor did St
Croix ask what Cannon meant by "bad attitude"
On the same day, Cannon approached Fianna
Cannon informed Florin() that he had just fired St
Croix, and Morino was being placed on probation for 5
days because of his "bad attitude" Cannon did not
elaborate further on what he meant by "attitude"
The above findings with respect to these conversations
between Cannon and St Croix and Cannon and Ftormo,
are based on the credited testimony of St Croix and
Florin° Cannon denies using the word attitude in his
discussion with St Croix, and asserts that he told St
Croix that he was terminated because "lack of quality
and quantity of work" Cannon admits that he did men-
tion the word attitude to Fionno, but claims that he ad-
ditionally explained to norm° that he felt that Fionno's
work was being pulled down by having worked with St
Croix, and that he wanted to give Florin° a chance to
prove himself without St Croix's influence
I reject Cannon's testimony in these respects, and find
as noted that he told both Florin° and St Croix that
their respective disciplinary actions were motivated by
their "attitudes," without further elaboration I rely on
the mutually corroborative testimony of Florin° and St
Croix as to this issue with particular emphasis on Flor-
io In this regard, I conclude that Florin() was a most
reluctant witness herein, since he is still employed by Re-
spondent and had been put on probation Thus, I find his
testimony to be highly credible Indeed, I note further
that Fionno, although he believed that his probation may
have been at least partially motivated by his union activi-
ty, declined to file a charge against Respondent over
such conduct, because he feared loss of his job if he did
SO
About a month after St Croix's termination, Respond-
ent commenced an eviction proceeding against him Al-
though St Croix was willing and able to pay the rent on
the apartment, Respondent insisted on the eviction,
which was eventually ordered by the judge in court
Section 27 of the lease signed by St Croix, contained a
provision that on termination of employment, the tenant
has 30 days to vacate the apartment It also provides that
the tenant may re-apply to negotiate a new lease at that
time The judge's decision to evict St Croix was appar-
ently based on this clause St Croix never made an appli-
cation for a new lease
In November of 1988, Florin° and employee Larry
Searles were in Cannon's office at the Tudor complex
Cannon Informed Florin° and Searles that he knew that
Florin° and Searles had attended the union meeting Fur-
ther characterizing the conversation Fionno testified that
Cannon used a "goofing around voice" and "it's just like
he had one up on us or something"
About 3 to 4 weeks before the Instant hearing, St
Croix encountered Carnnte in Fionno's apartment St
Croix informed Carnnte that he was going to Court
(presumably the NLRB trial) and was hoping to come
back to work Carnnte replied, "you ain't coming back
to work, and the Union is never coming in" Carnnte
then walked out of the apartment all upset
Respondent defends its actions essentially through the
testimony of Cannon, supplemented by some documents
and the testimony of Dithulio and Donald Foster, an in-
dividual who Respondent had allegedly hired to replace
St Croix
As to Fionno, Cannon testified that he decided to
place Florin° on probation on June 24, the same day as
he terminated St Croix, because he felt that Fionno's
work had suffered because of having worked with St
Croix Cannon further claimed that prior to working
with St Croix Florin° had done satisfactory work
Cannon provided no specific instances of any particu-
lar jobs or particular work or particular areas where
Fionno's performance had deteriorated after he began to
work with St Croix According to Cannon Florin° and
St Croix worked together on a range of from 2 to 6
weeks during the months of April, May, and June
Cannon further testified that he did mention to Florin°
his concerns with the quality of Fionno's work, but gave
no specific as to when, how often, or what particular
areas he criticized Florin° about Cannon admitted that
he never put anything in Fionno's personnel file about
these alleged warnings Although as noted below he did
make such notations with respect to his alleged conversa-
tions with St Croix about St Croix's work performance
Cannon admitted that Fionno was the first and only
employee that he had ever placed on probation
Fionno on the other hand credibly denies that Cannon
or any other supervisor for that matter had ever spoken
to him about the quality of his work prior to June 24, or
criticized him for his work with St Croix Furthermore
Fionno testified that he only worked with St Croix on
five occasions during his entire working career at Re-
spondent, which commenced in January 1988 8
Florin° also denies ever being spoken to by Cannon
about his "attitude," but asserts that he believed that he
knew what Cannon was referring to Fianna testified
that he had on one or two previous occasions in April
and May refused Cannon's requests to work overtime,
because he had a garnishee on his salary Cannon had at-
tempted to persuade Florin° to work the overtime by
saying that he (Fiormo) could work -the-garnishee ,off
faster if he worked the overtime However Florin° still
refused Thus, Florin° believed that when Cannon re-
ferred to a "bad attitude" as the reason for his probation
the overtime problem was what Cannon meant 9
With respect to St Croix, Cannon testified that the
quality of St Croix's work has gone up and down like a
roller coaster since Respondent began operating the
complexes Cannon asserts that in the summer of 1987,
he first became dissatisfied with the quantity and the
quality of St Croix's work Cannon claims that he dis-
cussed his concerns with St Croix on a number of occa-
sions, and was on "the verge" of terminating St Croix at
that time However, Cannon further contends that when
St Croix came to live in the apartment at Respondent's
complex, with a woman in his life, his work began to
8 Fionno was originally lured to work at the Heritage complex, but
thereafter was assigned work at either the Hentage or Tudor complexes,
wherever he was needed
9 As noted above, Flonno also believed that his union activity might
also have had something to do with Respondent's decision to put him on
probation
,
RESOLUTE REALTY MANAGEMENT 683
show improvement, so Cannon did not 'terminate him
Cannon asserts further that in 1988 St Croix's work per-
formance began to deteriorate again, resulting in numer-
ous discussions with St Croix wherein Cannon allegedly
indicated his dissatisfaction with St Croix's work, in-
cluding at least two occasions, where Cannon claims that
he warned St Croix that his job could be in jeopardy if
he did not improve Cannon could not recall the dates of
these two warnings, nor the specific incidents involved
Cannon did testify however as to four specific conver-
sations with St Croix about his work performance,
Which he asserts were reflected in writings which were
placed in St Croix's personnel file 10 The first docu-
ment, dated February 9, 1988 reads, "Long-chat with
Duncan concerning attitude—speed—quality—etc"
Cannon testified that although he could not recall the
specifics of what St Croix had done wrong, he told St
Croix that he was not happy with the amount of time he
was taking to do work, or his "lackadaisical" attitude, or
the quality of his work, and that in "the long run it
could be detrimental to him"
The second document dated February 23, 1988, reads
as follows "Long talk with entire crew concerning re-
moval of Items from units without permission Had to
admonish Duncan individually as he kept arguing that it
was OK to take stuff Tried to explain to him that it was
same as stealing" With respect to this item, Cannon tes-
tified that at that time a tenant moved out but left some
belongings in the apartment, intending to come back and
remove them When the tenant attempted to retrieve his
belongings: they were missing and he complained to the
office Cannon thereupon called a meeting of all the em-
ployees about the problem Cannon indicated his dis-
pleasure with these developments, and requested that the
material taken be returned St Croix allegedly argued
with Cannon during this meeting, contending that since
the items were left _behind by the tenants it may have ap-
peared that they were being abandoned Cannon reiterat-
ed the Respondent's long-standing rule that nothing is to
betaken 'by employees from a unit without permission,
and that taking these items amounts to-stealing St Croix
allegedly continued to debate the issue with Cannon, so
that Cannon asserts that he believed St Croix condoned
stealing
The third document dated April 13, 1988, reads "talk
with Duncan concerning attitude, etc" Cannon could
not recall the specifics of this particular alleged conver-
sation except to conjecture that it "would have been
concerning his lack of concern or responsibility towards
his job
The final document, dated April 22, 1988 reads,
"George & I both spoke to Duncan about work quality
and attitude" Once again Cannon could not recall the
specifics of or what prompted this alleged conversation
Again Cannon speculated that it would have been the
ongoing conversations with St Croix concerning his
quality of work and his lack of concern or responsibility
towards his job
" Cannon admits that he never showed these documents to St Croix,
or told St Croix that he was documenting their conversations
As to specifics, Cannon testified further that one prob-
lem with St Croix's work was sloppiness in painting, in
that much time had to be spent cleaning up after he fin-
ished painting In this regard Carnrite testified that St
Croix had a reputation amongst the employees with re-
spect to his painting, that "was so bad - that when you
went into the apartment you had to wear a raincoat"
Dithulio also confirmed that St Croix was frequently
sloppy with his painting, and asserts that he spoke to St
Croix about this problem on a number of occasions,
along with criticizing St Croix for working too slowly
According to Dithulio when he spoke to St Croix about
these matters, St Croix would respond that he was
working as fast as he could, and when he worked fast he
has to be messy
Respondent's standard operating procedure included
the preparation of checklists for each apartment, by the
supervisor, which lists items that should have been done,
but were either not done or not done properly Cannon
and Dithulio testified that-the deficiencies on the check-
lists for apartments prepped by St Croix did not dimin-
ish, and that for an employee of his experience, the
checklists contained too many items In that connection
Respondent introduced three checklists of apartments
prepped by St Croix, which were filled out by DiGiulio
These three checklists, which according to Cannon In-
volved work performed by St Croix in early April, mid-
April, and early May, respectively, contained a number
of items which needed to be done, such as sink stopper
not working, repaint closet doors, fix door bell, clean
paint off toilet and counter, repaint under sink, faucet
drips, regrout tiles, clean paint out of tiles, door bell
cover dirty, door does not latch, change toilet seat, paint
patch on ceiling, and paint under sink No other check-
lists of St Croix were introduced by Respondent, nor
were any checklists of other employees presented for
comparative purposes However, DiGiulio testified that
for an employee of St Croix's experience, these three
checklists were longer than they should be, and longer
than checklists involving other employees' of comparable
experience to St Croix
Respondent also introduced another document which
it asserts is indicative of St Croix's work This was a
report prepared by the tenant who moved into an apart-
ment prepared by St Croix immediately before his dis-
charge This report lists a number of complaints, includ-
ing carpet frayed, floor tiles filling, eight covers missing,
screens do not fit, and general dissatisfaction with carpet
and general condition This report was dated June 25,
1988, the day after St Croix's discharge, and Respondent
admitted that it did not have nor consider this report in
its decision to discharge St Croix
According to Cannon, he had been receiving com-
plaints from Dithulio about St Croix's performance, and
that he (Dithuho) was getting more frustrated with St
Croix's work Cannon asserts that sometime in late
March or early April, DiGiulio recommended that
Cannon terminate St Croix, and that Cannon agreed to
do so DiGiulio corroborates Cannon that he recom-
mended the discharge of St Croix, but he placed the
date as late April or early May Dithulio asserts that the
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
final incident that led him to recommend termination of
St Croix involved an apartment that St Croix had pre
pared, and that DiGiulio was mspectmg Dithulio asserts
that when he shut the door, he was locked in because
St Croix had not put the door knob on properly Thus
Dithulio was forced to jump out of the window to get
out of the apartment Additionally, DiGmho claims that
there were a lot of other problems with that apartment
so he told Cannon that he had it with St Croix
Cannon, according to Dithuho agreed and told DiGmho
that he would seek to find a replacement for St Croix
Pursuant thereto Cannon asserts that he placed an ad
in the newspaper for new employees He claims that ap
plications began to arrive in early May and that he pro
ceeded to interview between 5 and 10 applicants for the
job, finally deciding on June 4 to hire Donald Foster
commencing June 20 " Cannon testified further than on
or about June 7, 8, or 9 Foster called and informed him
that he had received a raise from his current employer
and would not be joining Respondent
Foster testified on behalf of Respondent and corrobo
rated Cannon s testimony in part Foster s application
was dated May 2, 1988 and he concurred that he was
interviewed and offered a job by Cannon on June 4
Foster testified further that on or about June 15 he re
coved a better offer from his present employer and non
fled Respondent at that time that he was remaining
there 12 Foster was not told that he would be replacing
any particular person nor that Respondent had been dis
satisfied with any current employees He was promised a
salary of $5 50 per hour plus an apartment and was told
by Cannon that he would be working primarily at the
Tudor complex but would help out also at the Heritage
complex up the road
According to Cannon, when Foster notified him on
June 7, 8, or 9 that he would not be coming to work for
Respondent, he began to look for another replacement
for St Croix Cannon asserts that he received a recom
mendation from his bookkeeper to hire John Shaffner,
who was working at the bookkeeper s previous job and
was unhappy Cannon asserts that he interviewed
Shaffner on or about June 10 and made him an immedi
ate offer of employment which he wanted to discuss
with his wife Cannon further testified that on or about
June 17 or June 18, Shaffner returned to Respondent,
and agreed to accept a position starting September 27
Shaffner s employment application is dated June 18 At
the bottom of the application Cannon wrote hired
6/17/88, with a reporting date of September 27 and
salary of $4 per hour with a raise to $4 50 per hour after
90 days Shaffner came to Respondent s complex on Sep
tember 24 to pick up his keys to the apartment and start
ed work on September 27 as scheduled Shaffner began
working at the Tudor complex for training for about a
week, after which he was assigned to Heritage where he
performed the work previously performed by St Croix
"In his pretrial affidavit Cannon stated that he lured Foster on May
21 with an effective starting date of June 4
" In his pretrial affidavit Cannon claims that this call was received by
him on May 31
According to Fionno s testimony, which was not dis
puted by any of Respondent s witnesses Shaffner s work
was a lot worse than St Croix s m terms of being slower
and sloppier
Respondent s personnel files contain no other reports
of conversations dated prior to St Croix s discharge,
which reflect cnticism of maintenance employees by Re
spondent s officials similar to the reports concerning St
Croix s conduct referred to above Cannon asserts that
he made such a report criticizing Shaffner about his
speed and ability to do the job and put it in Shaffner s
file
Cannon further admits that he has not fired any other
maintenance employees for the quality and or quantity of
their work the reasons he gives for discharging St
Croix Respondent s files contain evidence of the termi
nation of four maintenance employees all of whom were
temporary employees and who were fired for various
types of one time insubordinate conduct
Respondent s work force generally increases in the
summer months as the months of June July and August
are the busiest since people move more frequently
during that time Thus, its work force increases from 10-
15 to 30-35 during this period However, the increase is
generally due to the hiring of temporary, summer em
ployees whose employment usually lasts through Sep
tember By June 24, Respondent total complement con
sisted of 30 employees, about 15-17 of which were main
tenance preparatory employees Although the record is
not totally clear it appears that Respondent employed
approximately 9 or 10 full time maintenance preparatory
employees at its complexes with a majority of these as
signed to Tudor which required more employees for
various reasons At Heritage prior to St Croix s dis
charge one or two other employees were permanently
assigned to work there, under DiGmho s supervision 13
According to Cannon no other full time permanent
employee other than Shaffner was hired by Respondent
at either of the two complexes in June of 1988
St Croix denies ever havmg any discussions with
either DiGnilio or Cannon about his work attitude or the
quality of his work He admitted, however that he was
constantly being criticized for working too slowly, since
he came under the supervision of Dithulio in 1986 In
fact St Croix contends that he was criticized by DiGiu
ho for working too slowly on a daily basis, without any
change in the frequency of such comments St Croix fur
ther asserts that he was never warned by Dithulio or
any other supervisor that he might be terminated or dis
ciplmed if he did not improve his work Furthermore St
Croix claims that he had only one discussion about his
work performance with Cannon St Croix placed this
discussion in the summer of 1987 when Cannon alleged
ly criticized St Croix plus another employee whom he
was training at the time for working too slowly Cannon
told St Croix that he expected one apartment to be
painted in a day According to St Croix his response to
13 There appears to be substantial Interchange of employees between
the two facilities depending upon the particular needs of Respondent
RESOLUTE REALTY MANAGEMENT 685
Cannon was a question as to whether Cannon wanted
quality or quantity, and Cannon responded both
IV ANALYSIS
A The Alleged Interrogation
The complaint alleges and the General Counsel and
Charging Party contend that Respondent violated Sec-
tion 8(a)(1) of the Act by its coercive interrogation of
Fionno by Supervisor DiGiulio, the day after the union
meeting At that time, while Fionno was picking up
some matenals, Mauho asked him who had attended
the union meeting the night before ? Florin° responded
only that he and St Croix had attended DiGmho per-
sisted by asking who else had attended ? Fionno refused
to divulge this information to DiGmho
Respondent charactenzes this exchange as a casual,
fnendly, and noncoercive, citing NLRB v Acme Die
Casting Corp, 728 F 2d 959, 962 (7th Cir 1984) I do not
agree
While it is true that not all questions about union ac-
tivities and sentiments are coercive, Rossmore House, 269
NLRB 1176 (1984), Sunnydale Medical Clinic, 277 NLRB
1217 (1985), the Board, supported by the courts has gen-
erally found questioning similar to that engaged in by
Respondent, to be coercive and unlawful New Process
Co, 290 NLRB 708, 713-714 (1988) (whether employees
were having a union meeting), Filmco Inc , 282 NLRB
653, 654 (1987) (where the Union was holding its meet-
ings), Mississippi Chemical Corp, 280 NLRB 413, 415
(1986) (questioning employee if he had gone to union
meeting, if it was well attended and what happened at
the meeting), Gupta Permold Corp, 289 NLRB 1238,
1244-1245 (1988) (questioning of employee about her at-
tendance at union meeting), Sealectro Corp, 280 NLRB
151, 158 (1986) (questioning employees about names of
employees who attended union meetings, as well as what
transpired there), Superior Container Inc , 276 NLRB 521,
526 (1985) (how many employees attended union meet-
ing), Master Security Services, 270 NLRB 543, 549 (1981)
(who attended the meeting and what occurred at the
meeting), NLRB v Brookwood Furniture, 701, F 2d 452,
462 (5th Cir 1983) (why employee attended a union
meeting), NLRB v Garon, 738 F 2d 140 (6th Cir 1984)
(whether employee attended union meeting)
The above and other cases relied on various factors in
assessing whether the particular questioning therein was
coercive In my view the present case contains a number
of these mdicia, which tend to demonstrate the coercive-
ness of Respondent's questioning Initially, I note the
nature of the questioning itself, with Respondent inquir-
ing about attendance at a union meeting, including the
identities of those who were present The Board has con-
cluded that such inquiries concerning a matter that Re-
spondent about which has no legitimate interest, Ritmo,
supra, Master Security, supra, New Process, supra where
the Board noted that the inquiry concerned employees'
union activities rather than union sentiments), and can
reasonably be perceived by those being questioned as a
basis to initiate action against individual employees Kona
60 Minute Photo, 277 NLRB 867 (1985), Mississippi
Chemical, supra at 415 Secondly, I note that DiGmho
was not satisfied with Fionno's response that he and St
Croix had attended the meeting, but pressed Fionno to
disclose who else attended Such persistent and repeated
questioning is another factor pointing toward establishing
that the questioning had a reasonable tendency to re-
strain, coerce, or interfere with employee nghts Camvac
International Inc , 288 NLRB 816, 819 (1988), New Proc-
ess, supra at 714, Airport Distribution Inc , 280 NLRB
1144, 1147 (1986) Thirdly, the fact that the questioning
took place at Fionno's work station, rather than in a less
formal setting is also a relevant consideration Kona 60
Minute Photo, supra, Gupta Permold, supra Additionally,
I note that Fionno refused to disclose to Dithulio the
names of the employees present other than himself and
St Croix This conduct of Fionno "objectively indicates
a possible fear of retaliation against the questioned em-
ployee or others if honest or direct answers were given,"
NLRB v Brookwood Furniture, supra at 462, demon-
strates that Fionno did not regard the inquiry lightly,
Gupta Permold, supra at 1245, and is further evidence of
the coercive nature of the questioning Aluminum Techni-
cal Extrusions Inc , 274 NLRB 1414, 1420 (1985), NLRB
v Garon, supra at 143, Mississippi Chemical, supra at 415
Finally, it does not appear that Fionno (unlike St Croix)
was at the time an open or active union supporter
Camvac, supra, Gupta Permold, supra at 1245, New Proc-
ess, supra, Sealectro, supra at 158, Aluminum Technical,
supra at 1420
Accordingly, based on the above analysis and author-
ity, I conclude that Respondent has coercively interro-
gated its employee in violation of Section 8(a)(1) of the
Act 14
B The Alleged Creation of the Impression
of Surveillance
In November 1988, Cannon in his office, informed em-
ployees Fionno and Searles that he knew that they had
attended the Union meeting (in June 1988) Such re-
marks, , which Imply that Respondent knew what was
happemng at union meetings, creates the impression that
the employees' union activities were under surveillance
Keystone Lamp Mfg Corp, 284 NLRB 626, 627 (1987)
(statement by supervisor, "I understand that your attend-
ance at your union meetings is dropping"), Link Mfg
Co, 281 NLRB 294 (1986) (supervisor telling employee
that he knew that 36 employees had signed cards at
union meeting), Gupta Permold, supra at 1247 (supervisor
telling employee that he knew that there were 13 people
at the union meeting the previous day), Roseburg Lumber
Co, 278 NLRB 880, 887 (1986), (supervisor informs em-
ployee that he (supervisor) had heard employee attended
union meeting), Granco, Inc , 276 NLRB 1450, 1462
(1985) (supervisor informs employee that union meeting
had "bombed out" because only 15 or 16 people attend-
ed), Sierra Hospital Foundation, 274 NLRB 427 (1985)
14 NLRB v Acme Die Casting, supra cited by Respondent is not to the
contrary There the alleged interrogation consisted of a single question,
"do you know something about the Union 9" The Court emphasized that
the question (unlike the facts herein) was not followed up Additionally
that question unlike the specific question herein, did not necessarily impli-
cate the union activities of other employees
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(supervisor informed employee that he knew that union
meeting attended by 25 employees and that 4 named em-
ployees were involved in organizing campaign)
Respondent argues however, that Cannon's remarks
were not coercive since Fiormo admitted that they were
made in a "goofing around voice" However, whether
Cannon may have made the statement in a joking
manner is not controlling," particularly where Fionno
further testified that "it's Just like he had one up on us or
something" Thus, this statement signifies that Fionno
did not perceive the comments as a joke, but that
Cannon was in effect telling employees that should they
decide to again organize a union, he would know which
employees were union supporters I note that this remark
was made 5 months after the union meeting and the dis-
charge of St Croix, which incidentally terminated the
Union's organizing campaign It is reasonable to con-
clude that Cannon's purpose in making such a remark at
that time, was to insure that employees should be aware
that he would know who supports the Union, should
union organizing resume
Accordingly, based on the foregoing, I find that Re-
spondent created the impression that employees union
activities were under surveillance and thereby violated
Section 8(a)(1) of the Act
C The Termination of St Croix
It is first necessary to determine whether General
Counsel has met its burden under Wright Line," of a
prima facie showing that St Croix's union activity was a
motivating factor for his discharge
In that regard, the evidence is clear that St Croix was
the instigator, initiator, and chief adherent of the Union's
organization drive at Respondent He contacted the
Union, openly solicited employees to support the Union
at the premises, including soliciting two of Respondent's
supervisors, arranged for a union meeting, transported
employees to the union meeting, and solicited employees
and the two supervisors to sign authorization cards for
the Union All these activities occurred over an approxi-
mate period of 3 weeks preceding his termination All of
these union activities were well known to Respondent's
supervisors and officials, including Cannon who admitted
that by the date of St Croix's termination, he was fully
aware of St Croix's leadership role in the Union's orga-
nizational efforts Moreover, St Croix was discharged
Just 3 days after the union meeting arranged by St Croix
and attended by him as well as other employees Kidde
Inc , 284 NLRB 626 (1987), Abbey's Transportation Serv-
ices v NLRB, 837 F 2d 575, 580 (2d Cir 1988)
- Evidence of animus towards the Union's organization-
al efforts has been exhibited by all three of Respondent's
supervisors, including Cannon the decision maker with
respect to St Croix's discharge Thus, DiGmho as noted,
unlawfully interrogated Fionno the day after the union
meeting about employees attendance at such meeting
Carnnte demonstrated animus by his antiunion state-
15 See Gupta Permold, supra at 1248
16 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Or 1981), cert
dented 455 U S 789 (1980), approved in NLRB v Transportation Manage-
ment Corp, 462 U S 393 (1983)
ments to Fiormo and St Croix, such as Respondent was
too small for a union, it would hurt more than help the
employees, the Union was "crooked," and that employ-
ees "shouldn't be doing it" Moreover, and more signifi-
cantly, in a conversation with St Croix 3-4 weeks before
the hearing, St Croix informed Carnnte about the pend-
ing NLRB hearing and his hope to return to work at Re-
spondent Carnnte's response, "you ain't coming back to
work and the Union is never coming in," is most reveal-
ing Thus not only does it provide additional evidence of
animus, but also is highly indicative of a connection be-
tween St Croix's union activity and his termination
Cannon himself has demonstrated union animus by his
unlawful conduct as found above of creating the impres-
sion that employees union activities were under surveil-
lance, and by his questioning of DiGiulio on the evening
of the union meeting as to the whereabouts of St Croix
and Fionno After DiGiulio replied that they were at a
meeting, Cannon asked if it was a union meeting, to
which DiGiulio responded affirmatively This conversa-
tion demonstrates that contrary to Cannon's professed
lack of knowledge about or concern with the union
meeting, that he was most interested in the union meet-
ing in general and St Croix's (as well as Fionno's) at-
tendance therein in particular
Contrary to the contentions of the General Counsel, I
do not consider Respondent's conduct with respect to
the eviction of St Croix, or its assignment of overtime
on June 21, as evidence of animus or hostility towards
St Croix or the Union With respect to the eviction, I
conclude that Respondent was merely enforcing its legal
rights under the lease to evict St Croix from his apart-
ment, in view of his discharge This right was enforced
by the Court, and although Respondent could have al-
lowed St Croix to remain and pay rent, I ascribe no un-
lawful motives to its failure to do so I note in this con-
nection that the lease permitted St Croix to apply to Re-
spondent for an apartment, but that he ,failed to avail
himself of this opportunity A
As for the overtime, I conclude that the evidence es-
tablishes that overtime was routinely assigned to the em-
ployees involved during the entire period of weeks
before, during, and after the union meeting Thus it is
not appropriate to find as apparently contended by the
General Counsel, that Respondent purposely assigned
overtime to employees on June 21 to prevent them from
attending the union meeting
However, notwithstanding the above two findings, I
conclude that the foregoing evidence of St Croix's
known leadership role in the Union's campaign, the
timing of the discharge, coupled with the substantial evi-
dence of animus described above, has established a
strong prima facie case that St Croix's termination was
motivated by his union activities
Therefore, Respondent must establish by a preponder-
ance of the evidence that it would have taken the same
actions against St Croix, absent his union activities
Wright Line, supra, Transportation Management, supra
Given the compelling evidence presented by General
Counsel, Respondent bears a heavy burden of proving
that it would have treated St Croix in an identical
-RESOLUTE REALTY MANAGEMENT 687
manner even in the absence of his protected conduct
Aluminum Technical, 274 NLRB 1418, 1420 (1985) I find
that Respondent has fallen•short of meeting its burden in
this regard
- Respondent contends that it terminated St Croix be-
cause of the poor quality and quantity of his work It
further argues that a decision had been made to dis-
charge him, sometime in early April, well before any
union activities began, and that this decision was finally
effectuated on June 14 by the hiring of Ron Foster, to
start work on June 20, also according to Respondent
before it became aware of any union activities However,
Respondent asserts that Foster after notifying his em-
ployer of his desire to leave, received a raise, and de-
clined to join Respondent Therefore, Respondent alleges
that it reconstituted its search, and hired John Shaffner
to replace St Croix, on June 17 or 18, to commence
work on June 27 Respondent argues further that this
was done before Cannon became aware of any union ac-
tivity Therefore, it contends that the fact that St Croix
attended a union meeting on June 21, 3 days before his
discharge, was nothing more than an unfortunate coinci-
dence In my view, Respondent has not adduced suffi-
cient credible evidence to establish any of its major con-
tentions, as outlined above, other than the fact that it did
at one point tentatively hire Foster
Initially, it must be noted that when Cannon terminat-
ed St Croix, he said nothing to him about the alleged
poor quantity and quality of his work as a reason for his
discharge, but mentioned only his "attitude" The Board
has long held that when an employer vacillates in offer-
ing a consistent explanation for its actions, an inference
may be drawn that the real reason for its conduct is not
among those asserted Aluminum Technical, supra,
Abbey's Transportation, supra at 581, Dorothy Shamrock
Coal, 279 NLRB 1298, 1299 (1986) 17
Respondent introduced a number of documents into
the record, in an attempt to bolster the testimony of
Cannon and DiGiulio as to St Croix's work perform-
ance I find these items to be of little probative value As
to the four documents reflecting alleged conversations
with St Croix by Cannon at various times between Feb-
ruary and April, I note that they do not reflect that St
Croix was ever warned that his poor work performance
could result in discipline or discharge if it continued
Indeed Cannon's own testimony, even if credited indi-
cates only that he made such warning to St Croix on
one or two occasions, but he could not recall when, or
what incidents were involved, or even if they were pre-
cipitated by any of the matters in the four documents
presented Additionally, Cannon could not recall the spe-
cific details of two of the four incidents Moreover, I
note that the last of these incidents occurred on April 23,
some 2 months before the discharge of St Croix
Respondent also introduced three checklists into the
record, allegedly documenting St Croix's poor perform-
ance However no checklists of other employees were
submitted for comparison purposes to corroborate the
vague testimony of DiGiulio that for an employee of St
' 7 In this connection, I find Cannon's belated attempt to equate bad at-
titude with lack of responsibility towards his work to be unconvincing
Croix's experience these checklists were too long More-
over, no other of St Croix's checklists were submitted
nor even any testimony that these three checklists were
representative of St Croix's work Finally, as with the
other documents, they occurred in April and May, well
before the discharge of St Croix Thus, I attach scant
probative value to any of Respondent's documents re-
ferred to above 1 8
Additionally, Respondent admitted that it has never
terminated any unit employee for poor quantity and
quality of their work Einhorn Enterprises, 279 NLRB
576, 583 (1986) Indeed the only discharges of unit em-
ployees as revealed in the record, were four instances of
terminations of temporary employees for one time acts of
insubordination
Respondent seeks to justify its failure to adduce evi-
dence of unsatisfactory performance by St Croix occur-
nng closer to his termination, by its assertion that it had
decided to terminate St Croix in late March or early
April I find that Respondent has failed to establish that
it had made a firm decision to discharge St Croix at that
time Moreover, it has also not proven that Foster was
hired as a replacement for St Croix, or that either this
action or the subsequent hiring of Shaffner, were taken
prior to Respondent's knowledge of St Croix's union ac-
tivities
While DiGiulio essentially corroborates Cannon's testi-
mony that he requested that Cannon get nd of St Croix,
and that Cannon agreed to look for a replacement, this
testimony even if credited does not establish that Cannon
had made a firm decision to terminate St Croix Can-
non's conduct subsequent to this conversation, certainly
belies any such conclusion Respondent adduced no con-
vincing evidence or explanation as to why it took over 2
months from the date of the alleged decision to terminate
St Croix, to the hiring of his alleged replacement,
Foster
'Indeed while Cannon testified that he interviewed be-
tween 10-15 employees for the position, no other appli-
cations, other than Foster's and Shaffner's were intro-
duced into the record Moreover, Cannon did not testify
as to why he did not select any of the other alleged ap-
plicants nor why he chose Foster, nor why he waited
until June 4 to hire Foster when Cannon was in posses-
sion of his resume since May 2 Cannon's actions do not
demonstrate that a firm decision was made by him to dis-
charge St Croix, but at best that he would start looking
for a replacement, and decide subsequently whether he
really would discharge St Croix, when and if a replace-
ment was found Significantly, there were no specific in-
stances of additional alleged warnings, or write ups
about St Croix's work, subsequent to April, which indi-
cates that St Croix may have improved somewhat in his
performance in the months prior to his discharge In any
event, Respondent as noted adduced no credible evi-
18 As for Respondent's submission of a complaint from a tenant about
the last apartment prepared by St Croix, I find this document to be even
less significant then the others submitted by Respondent Thus, It is clear
that Respondent did not even have or know about the complaint prior to
St Croix's discharge, and Respondent admits that the complaint played
no part in its discharge decision
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dence establishing deficiencies in St Croix's work during
the 2 months prior to his discharge Indeed it would
seem to me that if Respondent was as dissatisfied with
his performance as Cannon and Dithulio assert, Cannon
would have made it his business to secure a replacement
immediately for him, or to replace him with an addition-
al temporary employee of which Respondent traditional-
ly hires quite a number during the busy summer season
Yet he did not take either of these steps, but allowed St
Croix to continue working despite Dithuho's request
that he be discharged
Moreover, when It finally hired Foster, Cannon did
not tell him that he would be replacing any particular
employee More significantly, Foster was told by
Cannon that he would be working at the Tudor com-
plex, rather than at the Heritage apartments where St
Croix had been assigned Finally, Respondent agreed to
hire Foster at a salary of $5 50 per hour, plus an apart-
ment which is not only much higher than St Croix's
salary of $3 75 per hour, but also exceeds Carnnte's
salary of $4 50 per hour as a supervisor Additionally,
Foster's prior position of employment was a maintenance
manager Thus, the above evidence suggests that Re-
spondent had Foster in mind for a supervisory position
at Tudor, rather than as a replacement for St Croix
Most importantly of all, even assuming that Foster was
contemplated by Respondent to be St Croix's replace-
ment, Respondent has still failed to establish its conten-
tion that Foster was hired prior to its knowledge of St
Croix's union activity Rather, the credible evidence
tends to show quite the contrary As noted, Respondent
adduced no convincing explanation as to why it waited
over a month after it received Foster's employment ap-
plication, to offer him a position on June 4 The only sig-
nificant intervening event was St Croix's union activities
which commenced on June 1 I infer from all the cir-
cumstances herein that contrary to Cannon's testimony,
that he was aware of St Croix's union involvement
when he offered a job to Foster on June 4 St Croix was
admittedly open about his union solicitations at the Re-
spondent's facilities, and solicited both supervisors of Re-
spondent, Carnnte and DiGmho to join the Union
Indeed Dithulio admitted telling Cannon that St Croix
was "checking into a union" I find that this conversa-
tion between DiGiulio with Cannon occurred prior to
June 4 Additionally, the small size of the shop, plus the
close social relationship between employees and supervi-
sors of Respondent, is also indicative of a finding that
Respondent knew about St Croix's union activities prior
to June 4 Clark & Wilkins Industries, 290 NLRB 106
(1986) Finally, I also rely on Cannon's obvious attempt
to avoid the conclusion that he had such knowledge, by
his false statements to the Board in his pretrial affidavit
Thus in such affidavit, he stated that he had initially
agreed to hire Foster on May 21, to commence work on
June 4, and that Foster notified Cannon on May 31 that
he would not accept the position I reject Cannon's testi-
mony that he merely did not have his records in front of
him at the time of the affidavit I conclude that Cannon
knew full well the significance of establishing that he
agreed to hire Foster prior to June, and that is why he
furnished false information to the Board investigator con-
cerning the dates of Foster's initial hiring Therefore
based on the foregoing, I conclude that Cannon was
aware of St Croix's union involvement, when it agreed
to hire Foster on June 4
Respondent's actions subsequent to Foster notifying it
of his decision not to accept a position, further detracts
from the validity of its defense Thus, after blithely
taking over 2 months to find Foster as an alleged re-
placement for St Croix, Cannon was suddenly able to
find Shaffner to replace Foster within a week Why was
there such an urgency in mid June to replace St Croix,
particularly when months had gone by since the alleged
decision to replace him, without any significant incidents
of poor performance Respondent gave no explanation
for the differences in the speed of its effectuation of the
alleged discharge decision The only logical explanation
that can be made from this record, is that in the interim,
i e, June 1988, St Croix engaged in union activity Thus
in my view Cannon believed that he would have much
more difficulty in ever getting rid of St Croix, should
the Union come in to the shop Indeed this conclusion is
reinforced by Cannon's remark to St Croix on June 1,
when discussing Laurie Dithuho's termination At that
time Cannon told St Croix that he could not have fired
her "if she was Union "i9
I note further that June 24, the date of St Croix's ter-
mination was in the middle of Respondent's busiest time,
wherein it has the need for many additional temporary
employees, which it hired, and during which many em-
ployees were working overtime hours It seems rather
strange that Respondent would select such a time period
to effectuate a decision to replace an employee made 2
months before, with a less experienced employee
Shaffner, who required additional training before he
could step into St Croix's position 22
Once again the appearance of the Union, and St
Croix's activities on its behalf, appear to be the trigger-
ing factor in explaining Respondent's conduct 21 Thus,
the best that he said for Respondent's evidence is that St
Croix may have been a marginal employee However, his
termination followed a familiar pattern of a marginal em-
ployee whose deficiencies could be overlooked until he
becomes interested in a union, at which time they were
no longer tolerable Middle Earth Graphics, 283 NLRB
1049 (1987), and cases cited therein
" It is also significant that during that same conversation, Cannon
asked St Croix to speak to Laurie DiGiulio to try to convince her not to
file charges at Human Rights, and told him that he could wind up paying
taxes to the IRS on the value of his apartment, should he be unsuccessful
in dissuading Dithullo from doing so I do not find this conduct of
Cannon to be consistent with his alleged decision to fire St Croix at that
time I find It unlikely that Cannon would make such a request of St
Croix, had he made a firm decision to fire him Nor would It be likely
that Cannon would discuss the consequences of taxation on his apartment
with an employee soon to be terminated
20 I note that It also appears that Shaffner was, according to the unre-
futed testimony of Fionno, inferior to St Croix in both work quality and
work quantity
21 ! note that by the date Respondent hired Shaffner on June 17, St
Croix's union organizing had progressed to the extent of scheduling a
union meeting for June 21 I am persuaded that Cannon was fully aware
of this fact when he hired Shaffner I note particularly in this regard Di-
Giulio's testimony that Cannon asked him about the union meeting and
St Croix s and Flonno's attendance therein
RESOLUTE REALTY MANAGEMENT 689
Finally, Respondent's attempt to characterize the
timing of St Croix's discharge as a mere coincidence is
substantially undermined by its concurrent treatment of
Fionno Thus, the record discloses that Fiormo accom-
panied St Croix to the Tudor complex to attempt to
pick up employees to go to the union meeting on June
21 Fionno attended the meeting on that day, was inter-
rogated about the meeting and who attended by DiGiu-
ho the next day Moreover Cannon specifically inquired
of DiGiulio as to whether St Croix and Fionno attended
the union meeting and Dithuho responded affirmatively
Three days later, Fionno was placed on probation, the
same day that St Croix was discharged, for the same al-
leged reason, a bad attitude 22 Moreover,. Fionno was
never warned about his bad attitude before, nor about
any alleged influence of St Croix I note additionally
that Fiormo was the first employee ever placed on pro-
bation by Respondent
Cannon's testimony in attempting to justify the proba-
tion is entirely unconvincing and specious Cannon
claims that he placed Fiormo on probation because he
felt that Flonno's work performance had detenorated be-
cause of his working with St Croix However, Cannon
could not recall any specific problems with Fionno's
work that led to this alleged conclusion of his, nor when
specifically Fionno had worked with St Croix More
importantly, Cannon admittedly did not inform Fionno
of what areas of work needed improvement, in order to
end his probation 23 Furthermore, Respondent furnished
no explanation as to why it placed Fiormo on probation
because of the alleged bad influence of St Croix, when
the alleged problem, i e, St Croix, had been removed by
his discharge on the same day Finally it appears that
Fionno worked with St Croix on only five occasions
during Fionno's entire tenure working for Respondent
Thus, I conclude that Respondent's assertion that Fior-
mo's work performance while working with St Croix
motivated Fionno's probation has not been established
Indeed, the only connection between Fionno and St
Croix at that time was their common union activities,
and attendance at the union meeting 3 days before the
probation, as well as St Croix's discharge
In this connection Respondent argues that the other
three employees who attended the union meeting were
not disciplined in any way, and all but St Croix are still
employed However, a discriminatory motive, otherwise
established is not disproved by an employer's proof that
it did not take similar action against all union adherents
EDP Medical Computer Systems, 284 NLRB 1232 (1987),
Fredonia Valley Quarries, 272 NLRB 843, 847 (1984),
Nachman Corp, 337 F 2d 421, 424 (7th Cir 1964)
22 Cannon also admits that he did not decide to place Florin° on pro-
bation until June 24, by which time he admits that he knew Fionno had
attended the union meeting 3 days before
23 In this connection I find it Irrelevant that Florin° testified that he
thought that when Cannon referred to his 'attitude," Cannon was allud-
ing to Flonno's refusal to work overtime I note initially that Flonno also
believed that his union activity may have been at least partially responsi-
ble for the probation decision, but that he cluin t wish to file a charge for
fear of losing his job More significantly of course, Florin° s subjective
belief as to why the action was taken against him is neither dispositive
nor even pertinent
Thus Respondent's treatment of Fionno dispels any in-
ference that the timing of the concurrent discharge of St
Croix was merely coincidental to the union activities in
general and the union meeting in particular 24
Accordingly, based on the foregoing, I conclude that
Respondent has fallen far short of meeting its burden of
establishing, by a preponderance of the evidence, that it
would have taken the same action against St Croix,
absent his union activities Therefore, it has violated Sec-
tion 8(a)(1) and (3) of the Act by discharging him on
June 24 I so find
CONCLUSIONS OF LAW
1 Respondent Resolute Realty Management Corp is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
2 Painters and Allied Trades Local 31 is a labor orga-
nization within the meaning of Section 2(5) of the Act
3 By coercively interrogating employees concerning
their union activities and the union activity of other em-
ployees, and by creating the impression among its em-
ployees that their union activities are under surveillance,
Respondent has violated Section 8(a)(1) of the Act
4 By discharging Duncan St Croix because of his ac-
tivities on behalf of and support of the Union, Respond-
ent has violated Section 8(a)(1) and (3) 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
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act I
shall recommend that Respondent be ordered to offer
Duncan St Croix immediate and full remstatement 25 to
his former position of employment or, if that position no
longer exists, to a substantially equivalent position job,
without prejudice to his seniority and other nghts and
privileges and to make him whole for any loss of earn-
ings suffered as a result of the discrimination against him
Backpay shall be computed in the manner set forth in
F W Woolworth Go, 90 NLRB 289 (1950), with interest
computed as set forth in New Horizons for the Retarded,
283 1173 (1987) I shall additionally recommend that Re-
spondent remove from its records any reference to the
unlawful discharge of St Croix, and notify him in writ-
ing that this has been done and that the discharge will
not be used against him in any way Sterling Sugars 261
NLRB 472 (1982)
On the findings of fact and conclusions of law and on
the entire record, I issue the following recommended26
24 In fact as noted above Cannon admits that he did not decide on
Fionno s probation until June 24, the same day as St Croix s discharge
25 Reinstatement for St Croix shall include providing him with an
apartment at Respondent s facility, which had been furnished to him as
part of his conditions of employment
26 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Continued
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Resolute Realty Management Corp,
its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Coercively interrogating employees concerning
their activities on behalf of Painters and Allied Trades
Local 31, or the union activities of other employees
(b) Creating the impression among its employees that
their union activities are under surveillance
(c) Discharging or otherwise discriminating against its
employees because of their activities on behalf of or sup-
port for the Union
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Duncan St Croix immediate and full rein-
statement to former job or, if that job no longer exists, to
a substantially 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 discrimina-
tion against, in the manner set forth in the remedy sec-
tion of the decision
(b) Remove from its files any reference to the unlawful
discharge of Duncan St Croix and notify him in writing
that this has been done and that the discharge will not be
used against him in any way
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its Tudor Townhomes, Heritage Park
Apartments and Weatherby Townhomes facilities copies
of the attached notice marked "Appendix "27 Copies of
the notice, on forms provided by the Regional Director
for Region 3, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
27 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
that the notices are not altered, defaced, or covered by
any other material
(e) Notify the Regional Director for Region 3 in writ-
ing 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT coercively interrogate our employees
concerning their activities on behalf of Painters and
Allied Trades Local 31 or the union activities of other
employees
WE WILL NOT create the impression that the union ac-
tivities of our employees are under surveillance
WE WILL NOT discharge or otherwise discriminate
against our employees because of their activities on
behalf of or support for the Union
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Duncan St Croix immediate and full
reinstatement to his former job, or if this job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and we will make him whole for any
loss of earnings and other benefits suffered resulting from
his discharge, plus interest
WE WILL remove from our files any reference to the
discharge of Duncan St Croix and notify him in writing
that this has been done and that this discharge will not
be used against him in any way
RESOLUTE REALTY MANAGEMENT CORP