The Continental Group

National Labor Relations Board - Board Decisions

Sep 30, 2008

353 N.L.R.B. 348 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 31
348
The Continental Group, Inc. and Local 11, Service
Employees International Union
The Continental Group, Inc. and Sunset Harbour
South Condominium Association, Inc., Joint
Employers and Local 11, Service Employees In-
ternational Union
The Continental Group, Inc. and The Executive Con-
dominium Association, Inc., Joint Employers
and Local 11, Service Employees International
Union
Sunset Harbour South Condominium Association,
Inc. and Local 11, Service Employees Interna-
tional Union. Cases 12–CA–24045, 12–CA–
24196, 12–CA–24448, 12–CA–24070, 12–CA–
24097, 12–CA–24132, and 12–CA–24447
September 30, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On March 15, 2006, Administrative Law Judge George
Carson II issued the attached decision. Respondent The
Continental Group (Continental) filed exceptions and a
supporting brief, as did Respondent Sunset Harbour
South Condominium Association (Sunset Harbour). The
General Counsel filed an answering brief, and Continen-
tal filed a reply brief. The General Counsel filed excep-
tions and a supporting brief, Continental and Sunset Har-
bour each filed answering briefs, and the General Coun-
sel filed a reply brief to Respondents’ answering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs, and has decided to affirm the judge’s rulings,
findings,1 and conclusions only to the extent consistent
with this Decision and Order.2

1 Respondent Continental has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. 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.
In the absence of exceptions, we affirm the judge’s findings that (1)
the Respondents did not engage in unlawful surveillance on August 19
or September 29, 2004; (2) Respondent Continental did not unlawfully
threaten employees on August 20, 2004; and (3) Respondent Continen-
tal did not maintain or enforce, on or about February 4, 2005, a rule
prohibiting employees from discussing their terms and conditions of
employment with residents and condominium Board members.
Respondent Sunset Harbour has filed exceptions regarding the
judge’s conduct of the hearing. We have carefully reviewed the record,
and we find no evidence of bias, prejudice, or other improper conduct.
We also affirm the judge’s jurisdictional findings. Chairman Schaum-
ber recognizes that it is the Board’s established practice to assert juris-
I. JOINT EMPLOYER FINDINGS
We affirm the judge’s finding that Respondents Conti-
nental and Sunset Harbour are joint employers. The
applicable test is whether those separate entities “share or
codetermine those matters governing the essential terms
and conditions of employment.” Laerco Transportation,
269 NLRB 324, 325 (1984). To establish a joint em-
ployer relationship, the evidence must show that one
employer “meaningfully affects matters relating to the
employment relationship such as hiring, firing, disci-
pline, supervision, and direction” of the other employer’s
employees. Id. As the judge found, the agreement be-
tween Sunset Harbour and Continental provides for inte-
gration of employee compensation and personnel deci-
sions between the two entities. In addition, the record
reveals that Sunset Harbour’s board president and the
Sunset Harbour Board as a whole had meaningful in-
volvement in Continental’s personnel decisions. Board
President Juan Duarte meaningfully affected the em-
ployment status of Continental employee Phillip Gon-
zalez, stating at a board meeting that he would not con-
sider a petition seeking Gonzalez’ return to work at Sun-
set Harbour. On another occasion, Duarte indicated in a
letter to Sunset Harbour residents that the decision to
transfer Continental employees Gonzalez and Mercedes
Medina had been discussed and approved by the Sunset
Harbour board. For all of these reasons, we agree with
the judge that Continental and Sunset Harbour are joint
employers.
II. SURVEILLANCE ALLEGATIONS
On October 28, 2004, Local 11 (the Union) conducted
a “mock election” outside the Sunset Harbour building,
at which building residents were asked to vote on
whether they wanted two employees reinstated. Two
Continental employees were present. During the event,
two Continental managers drove slowly by the mock

diction over residential condominiums, subject to annual revenue re-
quirements, and, for institutional reasons, affirms the judge’s findings
on that issue. See Imperial House Condominium, 279 NLRB 1225
(1986), enfd. 831 F.2d 999 (11th Cir. 1987).
We also affirm, for the reasons stated by the judge, the judge’s find-
ings that Respondents Continental and Executive are joint employers,
and that Respondent Continental violated Sec. 8(a)(1) of the Act by
interrogating and threatening Marvin White, Sec. 8(a)(3) and (1) by
discharging White, and Sec. 8(a)(1) by discharging Leydis Borrero.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the of the terms of Members
Kirsanow and Walsh on December 31, 2007. Pursuant to this delega-
tion, Chairman Schaumber and Member Liebman constitute a quorum
of the three-member group. As a quorum, they have the authority to
issue decisions and orders in unfair labor practice and representation
cases. See Sec. 3(b) of the Act.
CONTINENTAL GROUP, INC. 349
election and took photographs. Sunset Harbour President
Duarte was also present, standing outside the building
and watching the event. We affirm the judge’s finding
that Respondent Continental violated Section 8(a)(1) of
the Act by photographing the employees’ participation in
the mock election event. See, e.g., F. W. Woolworth Co.,
310 NLRB 1197 (1993).
In addition, we find that Sunset Harbour, as a joint
employer with Continental, violated Section 8(a)(1) of
the Act by Continental’s conduct. The judge dismissed
the allegation against Sunset Harbour, finding that no
employees or management officials of Sunset Harbour
were involved in the incident. We have affirmed, how-
ever, the judge’s finding that Continental and Sunset
Harbour are joint employers. As a joint employer, Sun-
set Harbour is liable for the coercive conduct of Conti-
nental. See D&F Industries, 339 NLRB 618, 618 fn. 2
(2003); Windemuller Electric, 306 NLRB 664, 666
(1992), enfd. in pertinent part 34 F.3d 384 (6th Cir.
1994). Therefore, we find Sunset Harbour liable for
Continental’s unlawful October 28, 2004 photographing
of the mock election.3
III. ALLEGATIONS RELATING TO PHILLIP GONZALEZ
A. Background
Phillip Gonzalez was employed as a front-desk conci-
erge at Sunset Harbour. In early-to-mid 2004, Gonzalez
engaged in protected activity: he signed a union pledge
card and permitted the Union to come onto the property
to speak with employees.
On August 16, Gonzalez was served with papers seek-
ing an injunction against him for domestic violence.
Gonzalez showed the papers to Property Manager Clau-
dia Sculthorpe. The vice president of the Sunset Harbour
board and another Sunset Harbour resident were present
during parts of their conversation. In addition, Gonzalez
discussed his situation with a third resident, who recom-
mended an attorney to Gonzalez.
Due to a combination of advanced vacation time,
scheduled vacation time, and scheduled days off, Gon-
zalez was off duty from the afternoon of August 16
through 28. On August 18, Gonzalez came to the facility
to inform Sculthorpe that he had retained an attorney and
was looking for somewhere to stay. Sculthorpe’s supe-
rior, Sunset Harbour Director of Front Desk Services

3 The General Counsel has excepted to the judge’s failure to find that
Sunset Harbour engaged in unlawful surveillance during union activity
occurring on February 17, 23, and March 17, 2005. In light of our
finding that Sunset Harbour engaged in unlawful surveillance on Octo-
ber 28, 2004, however, we find it unnecessary to pass on these excep-
tions. Any findings of violations based on these additional allegations
would be cumulative and would not affect the remedy.
David Miller, was present and informed Gonzalez that he
had been told that Gonzalez was “hanging around the
facility” and “loitering in the building.” Miller further
informed Gonzalez that it had been reported that Gon-
zalez had been sleeping in a common area of the condo-
minium and living out of his car. Miller told Gonzalez
that he could not come to the condominium when he was
on vacation, and that he could not loiter in the building
when he was not on duty. Miller also told Gonzalez that
he should not be discussing his personal affairs with
condominium residents.
When Gonzalez reported for work on August 31,
Miller informed him that it had been reported that he was
continuing to talk about his personal problems and that
he had been loitering on the property. Gonzalez admitted
that he had been on the property over the preceding
weekend and that he had spoken with residents about his
personal problems. Miller told Gonzalez that he was
being removed from Sunset Harbour and should report to
Continental’s corporate office in Hollywood, Florida, the
following morning.
On September 1, Gonzalez went to the Hollywood of-
fice and met with Miller and Continental Director of
Front Desk Operations Alan Mandelbloom. Miller and
Mandelbloom issued Gonzalez two warnings. The first
warning read as follows:
Due to the volatile nature of Mr. Gonzalez’s [sic] do-
mestic situation, [which] he [personally] has made resi-
dents of the property aware of, Mr. Gonzalez has been
[counseled] (on 08/18/04) to keep his personal matters
private and refrain from frequenting the property while
. . . off duty. Mr. Gonzalez ignored those warnings, be-
cause it was reported that he was seen loitering on the
property on 8/21/04 & 8/22/04 (his vacation days).
That’s in conflict with Company policy.
The second warning cited Gonzalez for having become
“very negative toward Continental,” for giving “false infor-
mation” to residents regarding Continental’s treatment of its
employees,4 and for “continuing to tell residents of his per-
sonal problems.” The warning stated that “this refusal to
keep his personal problems to himself was an act of insub-
ordination.”
After Gonzalez signed both warnings, Miller offered
Gonzalez a position as a floater. Gonzalez rejected that
position and indicated that he wanted to remain at Sunset
Harbour. Miller told Gonzalez that remaining at Sunset
Harbour was not an option and asked Gonzalez if he

4 The Respondents had learned that Gonzalez, in response to ques-
tions from residents, had informed them that two front-desk employees
no longer working at Sunset Harbour had been terminated. In fact, as
Gonzalez knew, those employees had not been terminated, but trans-
ferred to other Continental properties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD350
wanted to resign. At that point, Gonzalez signed a letter
of resignation.
B. The No-Access Rule
Continental maintains the following rule in the front
desk manual at Sunset Harbour:
Employees are only permitted to be on property while
on duty unless you are picking up a paycheck or other-
wise advised by the property manager or the Front
Desk Coordinator. If you are coming on property
while off duty, we expect that you will still follow
guidelines and dress neatly. Once again, remember
you represent the building and the company. Employ-
ees who violate this policy are subject to disciplinary
action.
We agree with the judge that under Tri-County Medical
Center, 222 NLRB 1089 (1976), this rule is unlawfully
overbroad, both as written and as stated by Miller when he
told Gonzalez he could not “go to the condominium” while
on vacation. Under Tri-County, a no-access rule for off-
duty employees will be considered valid only if it
(1) limits access solely with respect to the interior of
the plant and other working areas; (2) is clearly dis-
seminated to all employees; and (3) applies to off-duty
employees seeking access to the plant for any purpose
and not just to those employees engaging in union ac-
tivity. Finally, except where justified by business rea-
sons, a rule which denies off-duty employees entry to
parking lots, gates, and other outside nonworking areas
will be found invalid.
Id. The instant rule does not exclude off-duty employees
solely from interior and other working areas of the premises.
Thus, we affirm the judge’s finding that Continental and
Sunset Harbour violated Section 8(a)(1) of the Act by
promulgating and maintaining this rule.5
C. September 1, 2004 First Written Warning
The first written discipline issued to Gonzalez on Sep-
tember 1 cited him for “loitering on the property” and
“frequenting the property while being off duty,” which
was “in conflict with Company policy.” Citing Double
Eagle Hotel & Casino, 341 NLRB 112, 112 fn. 3
(2004),6 for the rule that “[d]iscipline imposed pursuant
to an unlawful rule violates the Act,” the judge found
that this warning was unlawful because it was issued
pursuant to Continental’s unlawful no-access rule. For
the following reasons, we reverse.

5 Chairman Schaumber notes that there were no exceptions to the
judge’s application of the Tri-County standard to the instant situation.
6 Enfd. as modified 414 F.3d 1249 (10th Cir. 2005), cert. denied 546
U.S. 1170 (2006).
We find the circumstances of the instant case distin-
guishable from those in Double Eagle and related cases
in which the Board has found discipline imposed pursu-
ant to an unlawful rule to be unlawful. In Double Eagle,
three employees were disciplined for violating an unlaw-
fully overbroad rule prohibiting employees from discuss-
ing tips and the employer’s tip distribution policy any-
where on the employer’s property. This activity, discuss-
ing tips and tip distribution, was protected under Section
7 of the Act. Similarly, in the other cases in which the
Board has applied the Double Eagle principle, the under-
lying conduct leading to the discipline has been protected
by Section 7. See, e.g., Saia Motor Freight Line, 333
NLRB 784, 785 (2001) (discipline for distributing union
literature in violation of overbroad no-solicitation/no-
distribution rule); Opryland Hotel, 323 NLRB 723
(1997) (discipline for discussing the union in violation of
overbroad no-solicitation rule); A.T. & S.F. Memorial
Hospitals, 234 NLRB 436 (1978) (discipline for distrib-
uting union literature in violation of overbroad no-
solicitation/no-distribution rule).
In contrast, the activities for which Gonzalez was dis-
ciplined were not protected by Section 7. Gonzalez’ first
written warning cites him for “frequenting the property”
while off duty and “loitering on the property” on his va-
cation days. Management had received reports from
residents that Gonzalez had been sleeping in a common
area of the building, living out of his car, and “hanging
around” the facility, both inside and outside the building,
and Gonzalez did not deny these reports.
Under these circumstances, we find the judge’s appli-
cation of Double Eagle to be inappropriate. Section
8(a)(1) is violated by employer acts and statements rea-
sonably tending to interfere with, restrain, or coerce em-
ployees in the exercise of their Section 7 rights. Here,
the conduct that Continental disciplined Gonzalez for
was loitering in its facility while off duty. As such, the
conduct was clearly not protected. That the Respondent
cited an unlawfully overbroad no-access rule in the dis-
ciplinary notice is insufficient in this context to create a
reasonable tendency to interfere with Section 7 rights and
to make the discipline itself unlawful. Nothing in the
notice would have reasonably caused Gonzalez (or some
other employee contemplating the exercise of Section 7
rights) to believe that Gonzalez was being disciplined for
engaging in protected activity. Thus, we reverse the
judge’s findings on this issue and dismiss the allegation.
Because we find that Continental did not violate Section
8(a)(1) in this instance, we also dismiss the allegation as
to Sunset Harbour.
CONTINENTAL GROUP, INC. 351
D. Alleged Discharge of Gonzalez
We find that Gonzalez was not unlawfully discharged.
We do so without passing on Continental’s contention
that Gonzalez was not discharged, but rather resigned his
position. Even assuming Gonzalez’ resignation was a
constructive discharge, that discharge did not violate the
Act.
We affirm the judge’s finding that the Respondents did
not violate Section 8(a)(3) of the Act by discharging or
constructively discharging Gonzalez for engaging in un-
ion activity. Although Gonzalez did engage in some
union activity prior to his time off in August, the General
Counsel failed to establish that the Respondents were
aware of this activity. Therefore, the General Counsel
has not established an initial case of discrimination in
this instance under Wright Line.7 Further, we find that,
even assuming that the General Counsel sustained his
initial burden, the Respondents showed that they would
have taken the same action even in the absence of Gon-
zalez’ union activities. The evidence indicates that Gon-
zalez’ transfer was based on the Respondents’ reasonable
belief that he had continued to discuss his personal prob-
lems with residents and had been loitering in and around
the building. This belief constituted a valid, nondis-
criminatory basis for the transfer. We therefore dismiss
this allegation.
We also find that the Respondents’ conduct in this re-
gard did not violate Section 8(a)(1) of the Act. Although
the alleged discharge was based in part on the first writ-
ten warning issued to Gonzalez, we have declined to find
that warning unlawful.8 Therefore, we also decline to
find the further action that followed from that discipline
unlawful.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board orders that
A. The Respondent, Sunset Harbour South Condomin-
ium Association, Inc., Miami Beach, Florida, its officers,
agents, successors, and assigns, shall

7 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
8 We also find that the second warning issued to Gonzalez on Sep-
tember 1, was lawful. The second warning cited Gonzalez for being
“negative” about Continental, for providing residents with “false in-
formation” by telling them that the former front-desk employees had
been fired, rather than transferred, and for “insubordination” for “con-
tinuing to tell residents of his personal problems.” We find that this
warning did not involve any protected conduct on the part of Gonzalez
and, therefore, did not violate the Act. In making this finding, we rely
on the fact that the Respondents were not aware that Gonzalez had
made any work-related complaints to residents, beyond his knowingly
false statements about the former front-desk employees’ terminations.
1. Cease and desist from
(a) Promulgating or maintaining an overbroad rule
prohibiting access to all Sunset Harbour property by off-
duty employees.
(b) Engaging in surveillance of employees’ union and
other protected concerted activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the overbroad rule described in paragraph
1(a), and notify employees in writing that this has been
done and that the rule is no longer in force.
(b) Within 14 days after service by the Region, post at
its facility in Miami Beach, Florida, in English and Span-
ish, copies of the attached notice marked “Appendix A.”9
Copies of the notice, on forms provided by the Regional
Director for Region 12, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent 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 no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since May 1, 2004.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaints are dis-
missed insofar as they allege violations of the Act by
Sunset Harbour not specifically found.
B. The Respondent, The Continental Group, Inc., Hol-
lywood, Florida, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Promulgating or maintaining an overbroad rule
prohibiting access to all Sunset Harbour property by off-
duty employees.

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD352
(b) Engaging in surveillance of employees’ union and
other protected concerted activities.
(c) Coercively interrogating any employee about union
support or union activities.
(d) Threatening employees with unspecified reprisals
for engaging in union activities.
(e) Discharging employees for engaging in union ac-
tivities or protected concerted activities.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the overbroad rule described in paragraph
1(a), and notify employees in writing that this has been
done and that the rule is no longer in force.
(b) Within 14 days from the date of this Order, offer
Marvin White and Leydis Borrero full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(c) Make Marvin White and Leydis Borrero whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, in the manner set
forth in the remedy section of the judge’s decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Marvin White and Leydis Borrero and, within 3 days
thereafter, notify them in writing that this has been done
and that the discharges will not be used against them in
any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to determine the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its offices in Hollywood, Florida, and at The Executive
Condominium, Sunset Harbour South Condominium,
and Sands Pointe Condominium, all of which are located
in Miami Beach, Florida, in English and Spanish, copies
of the attached notice marked “Appendix B.”10 Copies
of the notice, on forms provided by the Regional Director
for Region 12, after being signed by the Respondent’s
authorized representative, shall be posted by the Respon-

10 See fn. 9, supra.
dent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since May 1, 2004.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaints are dis-
missed insofar as they allege violations of the Act by The
Continental Group not specifically found.
APPENDIX A
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT promulgate or maintain an overbroad
rule prohibiting access to all Sunset Harbour property by
off-duty employees.
WE WILL NOT engage in surveillance of employees’
union and other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL rescind the overbroad rule prohibiting access
to all Sunset Harbour property by off-duty employees.
SUNSET HARBOUR SOUTH CONDOMINIUM
ASSOCIATION, INC.
CONTINENTAL GROUP, INC. 353
APPENDIX B
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT promulgate or maintain an overbroad
rule prohibiting access to all Sunset Harbour property by
off-duty employees.
WE WILL NOT engage in surveillance of employees’
union and other protected concerted activities.
WE WILL NOT coercively interrogate employees regard-
ing their union activities.
WE WILL NOT threaten employees with unspecified re-
prisals for engaging in union activities.
WE WILL NOT discharge employees for engaging in un-
ion activities or protected concerted activities.
WE WILL NOTin any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL rescind the overbroad rule prohibiting access
to all Sunset Harbour property by off-duty employees.
WE WILL, within 14 days from the date of the Board’s
Order, offer Marvin White and Leydis Borrero full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs, without prejudice
to their seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Marvin White and Leydis Borrero
whole for any loss of earnings and other benefits suffered
as a result of our discrimination against them, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Marvin White and Leydis Borrero, and
WE WILL, within 3 days thereafter, notify them in writing
that this has been done and that the discharges will not be
used against them in any way.
THE CONTINENTAL GROUP, INC.
Shelley B. Plass and Marinelly Maldonado, Esqs., for the Gen-
eral Counsel.
Joan M. Canny, Esq., for the Respondent (The Continental
Group, Inc.).
Michael L. Hyman and Shari Wald, Esqs., for the Respondent
(Sunset Harbour South Condominium Association, Inc.).
Kathleen M. Phillips and Katchen Locke, Esqs., for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried for 11 days in Miami, Florida, on September 12–15
and November 14 –17, 2005, and January 9–11, 2006, pursuant
to an order further consolidating cases that issued on August
15, 2005.1 The complaints allege various violations of Section
8(a)(1) of the National Labor Relations Act (the Act) and the
unlawful discharges of three employees. The Executive Con-
dominium Association, Inc., alleged as a joint employer in Case
12–CA–24097, entered into a settlement that was approved by
the Regional Director for Region 12. In order to avoid any con-
fusion, I have not deleted Executive from the case caption;
however, in view of the settlement, Executive is no longer a
respondent. The answers of The Continental Group and Sunset
Harbour deny all alleged violations of the Act. Additionally,
they deny that they are joint employers. The answers also deny
that the Charging Party Union is a labor organization. As here-
inafter discussed, I find that the employers are joint employers.
Although finding that the Charging Party is a labor organiza-
tion, I find that its status is immaterial in determining whether
the Respondents violated the Act. I find that, as a joint em-
ployer, Sunset Harbour maintained an unlawful no-access rule.
I find that Continental, with the exception the allegations relat-
ing to the discharge or constructive discharge of Phillip Gon-
zalez, did violate the Act substantially as alleged in the com-
plaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent Continental, and the
Respondent Sunset Harbour, I make the following 2
FINDINGS OF FACT
I. JURISDICTION
The Respondent, The Continental Group, Continental, a
Florida corporation with offices in Hollywood, Florida, is en-
gaged in the business of managing property for condominium
associations including various associations located in Miami

1 All dates are in 2004 unless otherwise noted. At the hearing, coun-
sel for Continental, although disputing certain service dates, acknowl-
edged receipt of all of the charges. See Control Services, 303 NLRB
481 (1991).
2 Counsel for the General Counsel’s unopposed Motion to Correct
Transcript is granted and received into the record as GC Exh. 70. The
General Counsel filed a Motion to Strike the posthearing brief of Sun-
set Harbour and Sunset Harbour filed a motion for leave to file un-
timely posthearing brief accompanied with an affidavit from counsel. I
deny the motion to strike.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD354
Beach, Florida. In conducting its business, Continental annually
derives gross revenues in excess of $500,000 and purchases and
receives goods and materials valued in excess of $50,000 di-
rectly from points located outside the State of Florida. I find
and conclude that Continental is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
The Respondent Sunset Harbour South Condominium Asso-
ciation, Sunset Harbour, is a not-for-profit corporation located
in Miami Beach, Florida, engaged in the operation of a residen-
tial condominium. Sunset Harbour admits that it annually de-
rives gross revenues in excess of $500,000. Sunset Harbour
denies “for lack of information” that a substantial portion of
those revenues were used for “expenditures largely involving
entities in interstate commerce.” At the hearing, Sunset Har-
bour’s president, Juan Duarte, admitted that Sunset Harbour
annually pays in excess of $50,000 to Continental for manage-
ment services and more than $10,000 a month, which well ex-
ceeds $50,000 annually, to Florida Power and Light Company,
another entity engaged in interstate commerce. See Florida
Power & Light Co., 126 NLRB 967 (1960). Sunset Harbour, in
its posthearing brief, argues that the Board should “revisit its
exercise of jurisdiction” as decided in Imperial House Condo-
miniums, 279 NLRB 1225 (1986). Consistent with established
precedent, I find that Sunset Harbour is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview and Procedural Matters
This case arises in the context of efforts by the Service Em-
ployees International Union, the SEIU, to organize condomin-
ium workers in South Florida. In furtherance of those efforts,
the SEIU issued a provisional charter to a newly created local
union, SEIU Local 11, the Charging Party herein, on January
15. Local 11, in addition to contacting employees individually
and meeting in small groups with them, sought support for its
efforts from local elected officials, the media, and the residents
of the condominiums. Organizational tactics included rallies
and demonstrations at various condominiums. The unfair labor
practices alleged herein occurred during the period from Au-
gust 2004 through March 2005.
The arrangements by which management services are pro-
vided to condominiums differ among the companies providing
those services and, even with the same company, differ with the
contractual agreements into which the parties enter. With re-
gard to Continental, in some instances, Continental is the em-
ployer of some or all of the employees. In other instances, some
or all of the employees are employed by the condominium but
supervised by a Continental Property Manager. The foregoing
arrangements lead to joint employer issues, of which there are
two in this proceeding.
Counsel for Continental argues that the complaint allegation
in Case 12–CA–24070 relating to a written no-access rule at
Sunset Harbour is predicated upon an amended charge that the
General Counsel impermissibly solicited and that the second
amended charge in Case 12–CA–24448, which alleges the ter-
mination of an employee at Sands Pointe Ocean Beach Resort
Condominium pursuant to a rule prohibiting discussions with
residents, was solicited.
Longstanding Board precedent establishes that “it is the duty
of the General Counsel, in discharging his responsibilities as a
public official charged with enforcing public rights, to take
proper measures calculated to effectively remedy all of the
unfair labor practices . . . revealed by the investigation.”
Petersen Construction Corp., 128 NLRB 969, 972 (1960). See
also Marbro Co., 284 NLRB 1303 (1987). Section 10062.5 of
the current National Labor Relations Board Casehandling Man-
ual (Part One) Unfair Labor Practice Proceedings, in pertinent
part, provides:
Where the investigation uncovers evidence of unfair labor
practices not specified in a charge, Board agents, with appro-
priate supervision, must determine whether the charge is suf-
ficient to support complaint allegations covering the apparent
unfair labor practices found. . . . If the allegations of the
charge are too narrow, not sufficiently specific or otherwise
flawed, the charging party or its representative should be ap-
prised of the potential deficiency . . . and given the opportu-
nity to file an amended charge.
Counsel asserts that the amendment of the charge in Case
12–CA–24070 establishes that the General Counsel violated the
assurance of confidentiality given to a witness with regard to
his affidavit. The assurance of confidentiality that “this affida-
vit will be considered confidential” relates to the affidavit, not
the facts disclosed by the investigation. Board precedent and
procedures require that Board agents bring the facts disclosed
in an investigation to the attention of Charged Parties and
Charging Parties. Furthermore, neither of the foregoing
amendments has any bearing upon the resolution of this case.
The complaint in Case 12–CA–24070 alleges, in addition to a
written no-access rule, that, on August 18, David Miller, a Con-
tinental supervisor, “denied off duty employees access to the
Sunset [Harbour] facility,” thus any remedy would encompass
all such prohibitions. In Case 12–CA–24448, I find that the
alleged unlawful rule, as clarified, did not violate the Act.
B. The Labor Organization Issue
The answers of both Continental and Sunset Harbour deny
that SEIU Local 11 is a labor organization. Notwithstanding the
extensive litigation of this issue, the posthearing briefs of the
Respondents do not discuss it.
Pursuant to authority set out in article XIV of the SEIU In-
ternational Constitution, the International President charted
Local 11 on January 15, and issued a temporary constitution
and bylaws. The constitution and bylaws, in article I state:
In order to form a strong and democratic structure in which to
organize and represent building service workers in the state of
Florida, a Provisional Organizing Local Union has been es-
tablished by order of the International President . . . .
The purpose of this Union is to work to improve the lives of
our members and their families by organizing and represent-
ing all building service workers in the state of Florida. By do-
ing so, we can build industry power to more effectively win
CONTINENTAL GROUP, INC. 355
better contracts for our members and to organize more build-
ing service workers.
The purpose of this Temporary Constitution and Bylaws is to
provide a governing structure for Provisional Organizing
SEIU Local 11 until such time as the members of Provisional
Organizing SEIU Local 11 can adopt their own permanent
Constitution and Bylaws.
Robin Schuler was appointed president of the newly formed
local union. Various union employees, including Organizing
Director Eric Brakken, who was at that time employed by the
International Union, were assigned to the organizational cam-
paign. Union representatives contacted condominium workers
and sought to have them support Local 11 in its organizational
objectives. Employees participated in Local 11, as explained by
Brakken, through meetings with organizers to “discuss strate-
gies in terms of building support among condominium workers
in Miami Beach.” There were “small groups of workers all the
time coming over to the Local to talk about their conditions.”
Employees Howard Williams, Marvin White, Lloyd Stephens,
Kolson Brutus, and Mercedes Medina confirmed being con-
tacted by union representatives. Employees who expressed
support for the organizational effort were asked to sign pledge
cards agreeing that “Condo Workers have the right to” fair
wages, job security, respect for their rights, health insurance,
and “A VOICE—the right to join together to improve our con-
ditions without intimidation or threats.” Organizing Director
Brakken explained that Local 11 has no members because it has
not succeeded in obtaining representational rights in an appro-
priate unit and a collective-bargaining agreement. The SEIU
does not require employees to pay dues, a predicate for mem-
bership, until it is representing those employees pursuant to a
collective-bargaining agreement with an employer. The failure
of Local 11 to have succeeded in organizing an appropriate unit
of employees is immaterial to its status as a labor organization.
Rainbow Garment Contracting, 314 NLRB 929, 930 (1994).
The lack of a formal structure, the appointment rather than
election of officers, and the absence of members are immaterial
when determining whether an entity is a labor organization.
New Silver Palace Restaurant, 334 NLRB 290, 295 (2001).
The evidence establishes that Local 11 is an organization in
which employees participate and that exists for the purpose, “in
whole or in part, of dealing with employers concerning griev-
ances, labor disputes, wages, rates of pay, hours of employ-
ment, or conditions of work.” I find that at all times material
herein, the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
The foregoing finding is immaterial to the disposition of the
allegations framed by the complaint. There are no representa-
tional issues in this case. Insofar as the Respondents believed
that they were opposing the organizational efforts of a union,
the actual status of Local 11 is immaterial. In Electrical Con-
tractors, Inc. v. NLRB, 245 F.3d 109 (2d Cir. 2001), the court
of appeals affirmed the Board’s finding that the entity therein
was a labor organization and also pointed out that the foregoing
finding was immaterial in view of “[t]he antiunion letters that
ECI [the respondent] circulated to its employees [which] make
clear that ECI itself believed that CLMCC [the entity in ques-
tion] had strong connections to some union.”
Both Continental and Sunset Harbour responded to the or-
ganizational efforts directed towards employees with antiunion
literature. On March 29, Continental’s president, Richard
Strunin, sent a “Fact Bulletin” to all mangers stating, “As you
know, the Service Employees Union is trying to get into our
company.” The bulletin states that Continental is “100% against
a Union getting in here.” [Emphasis in the original.] A bulletin,
dated April 4, directs all supervisors to “share the following
information with employees about how much the SEIU union
could cost them . . . .” A bulletin dated June 16 from President
Strunin states, “We must continue taking a strong stand against
the Union because of recent tactics they have chosen to take
against our company.” On October 27, Sunset Harbour sent to
its unit owners a document relating to alleged misstatements by
SEIU Local 11 that begins, “You may be aware that the SEIU
Local 11 Union is entangled in a legal battle with the Continen-
tal Group . . . .”
In this case, as in Electrical Contractors, Inc., the documents
of Continental and Sunset Harbour “make clear” that both be-
lieved that they were dealing with organizational efforts under-
taken by a labor organization. The Board has long held that the
Act is violated if an employer “discriminates against an em-
ployee in the belief that the employee has engaged in union
activities, even if the employer is mistaken. Handicabs, Inc.,
318 NLRB 890, 897 (1995); Henning & Cheadle, Inc. v. NLRB,
522 F.2d 1050, 1052 (7th Cir. 1975).” Krystal Enterprises, 345
NLRB 227, 230 fn. 15 (2005). Continental and Sunset Harbour
believed that they were opposing the organizational efforts of a
union. Even if that belief was mistaken, it is the belief upon
which the Respondents acted. Thus, whether Local 11 is or is
not a labor organization is immaterial.
C. The Joint Employer Issues
Continental denies that it was, at the times relevant herein, a
joint employer with Executive, which has entered into a settle-
ment with regard to the allegations against it. At the times rele-
vant to the complaint, Continental provided a property manager
to executive who oversaw the work of housekeeping and main-
tenance employees, employees of Continental, as well as the
work of the valet employees who were employees of Executive.
Schedule I of the contract between Continental and Executive
provided that terminations, new hires, and salary adjustments
had to be approved by Executive’s board of directors. The
Board, in Riverdale Nursing Home, Inc., 317 NLRB 881
(1995), held that in determining whether two entities are joint
employers, the appropriate inquiry is whether “the two employ-
ers ‘share or codetermine those matters governing the essential
terms and conditions of employment.’ TLI, Inc., 271 NLRB 798
(1984), citing NLRB v. Browning-Ferris Industries, 691 F.2d
1117 (3d Cir. 1982). The employer in question must meaning-
fully affect ‘matters relating to the employment relationship
such as hiring, firing, discipline, supervision, and direction.’
TLI, supra.” Id. at 882. Continental, in its posthearing brief,
argues that the oversight of the Executive valet employees by
the Continental property manager was “limited and routine.” I
disagree. The supervisory decisions of the property manager
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD356
affected the daily working conditions of valet employees as
well as their continued employment. If a valet employee was
not dressed appropriately, the property manager would speak
with the employee and would send the employee home if he or
she repeated the conduct. The property manager set the work
schedule and work assignments of the valet employees. Angela
Arrango, who became Continental’s property manager at Ex-
ecutive on August 9, changed the work schedule of former
employee Kolson Brutus who had worked a regular shift from 4
p.m. to midnight under former Continental Property Manger
David Keller but who, under Arrango, had his schedule
“changed every week.” Keller assigned valet Marvin White the
additional work duty of key control. As hereinafter discussed,
Continental contends that the foregoing assignment was to a
specific position and that White was terminated pursuant to
action by the Executive board of directors eliminating that posi-
tion. The action of the board of directors was predicted upon a
recommendation by Property Manager Arrango that this posi-
tion, to which White had been assigned by Continental’s prop-
erty manager, be eliminated. The actions of Continental’s prop-
erty manager in supervising employees of Executive, assigning
their jobs, and recommending the elimination of positions to
which employees had been assigned meaningfully affected
matters relating to their employment. See Mar Del Plata Con-
dominium, 282 NLRB 1012, 1018 (1987). I find that Continen-
tal and Executive, at the relevant times herein, were joint em-
ployers of the valet employees.
The answers of Continental and Sunset Harbour deny that
they are joint employers. At the relevant times herein, all em-
ployees at Sunset Harbour who were supervised by Continental
supervisors were employees of Continental. Their wages, how-
ever, were controlled by Sunset Harbour. Schedule I of the
agreement between Sunset Harbour and Continental provides
that on-site personnel, including the concierge, “shall be em-
ployees of the Manager [Continental],” and that Sunset Harbour
shall reimburse the manager for “actual wages paid.” The final
sentence of schedule I provides, “Any terminations, new hires,
or salary adjustments shall be approved by the Board of Direc-
tors.” Thus, from the standpoint of collective bargaining in the
event that the Union succeeded in organizing the employees of
Sunset Harbour, the board of directors of Sunset Harbour
would be involved in grievances involving terminations and
would have the final say regarding employee compensation
since it reimburses Continental for wages and must approve all
salary adjustments. As noted in D & S Leasing, 299 NLRB 658
(1990), “[p]erhaps the two most important terms or conditions
of employment from the employees’ viewpoint were wages and
hours of employment. Here it is undisputed that Central [the
entity that contracted for labor] dictated what wage employees
would receive.” Id at 672. Similarly, the Board has found a
joint employer relationship where the wage rates paid by a
subcontractor “were limited and substantially determined by the
agreement between the Company and CES, under which CES
billed the Company on the basis of labor supplied, at an hourly
rate, depending on the employee’s qualifications, e.g., whether
journeyman or apprentice. The Company thereby ‘exercised
indirect but effective control over the [referred employees’]
compensation.”‘ Windemuller Electric, 306 NLRB 664, 666
(1992), citing W. W. Grainger, Inc., 286 NLRB 94, 96 (1987). I
find that Continental and Sunset Harbour are joint employers.
D. The Surveillance Allegations
1. August 19, 2004
In late 2003 and early 2004, Florida International University
conducted a survey relating to the working conditions of con-
dominium employees. The Union requested Professor Bruce
Nissen, author of the report of the survey, to speak about the
findings at a press conference that it arranged at the Wyndham
Hotel in Miami Beach. The Union made the reservations for the
facility. Press releases issued by the Union did not specifically
identify the Union as the sponsoring organization of the press
conference. Continental’s president of property management,
Tom Roses, asked Director of Front Desk Operations Alan
Mandenbloom if he would like to go to that public event. Man-
denbloom was aware that the SEIU was involved with the
event, “probably before I left” to attend the event, because it
was on the SEIU website.3
At the conference, Mandenbloom sat with Roses, Madeline
Perl, Continental’s director of human resources, and two of
Continental’s public relations employees. An individual whom
he did not know photographed those Continental officials.
Mandenbloom, who carries a cellular telephone that also takes
photographs, reacted and used his cellular telephone “to pretend
I was taking their picture.” He acknowledges that this occurred
“two or three times.” Mandenbloom denied that he actually
took any photographs at the press conference.
Howard Williams, an employee of Continental, is a front
desk concierge at the Belle Plaza condominium. He learned of
the activities of Local 11 when representatives of the Union
came to the facility at which he worked and spoke informally
with employees. He was invited to attend the press conference
and did so. He rode to and from it with Holly Hutchinson, a
senior organizer with the SEIU International Union assigned to
the organizational campaign, in a vehicle driven by Union Rep-
resentative Steve Moronto. The Union took a photograph of
Williams at the conference. Williams is the only nonsupervi-
sory Continental employee who is identified in the record as
having attended the conference. Williams did not testify that he
observed any Continental management official taking photo-
graphs inside the conference room.
Following the presentations at the conference, Williams
waited with others for their vehicles to be brought from the
parking area. Because of the number of people, the valets at the
Wyndham were quite busy. The wait was 15 or 20 minutes.
While waiting, Hutchinson observed that Mandenbloom ap-
peared to be taking pictures with his cellular telephone because
he was “pointing [it] at people.” Williams also observed that

3 At the hearing, I excluded all evidence relating to the survey be-
cause the allegation of surveillance related only to the press conference
event. Counsel for Continental filed for special permission to appeal
my ruling, arguing that it prevented Continental “from eliciting testi-
mony and obtaining evidence to demonstrate that the research report
and its underlying survey were not ‘union’ activity.” [Emphasis added.]
Mandenbloom, the only witness presented by Continental concerning
this allegation, admitted being aware of the Union’s involvement.
CONTINENTAL GROUP, INC. 357
Mandenbloom, whom he did not know at the time, appeared to
be “taking pictures of the guests” as they were getting into their
cars “and tag numbers.” He was holding the cellular telephone
out, “directing it to the object.” When their vehicle arrived,
Moronto sat in the driver’s seat, Hutchinson got into the front
passenger seat, and Williams got into the back seat. Williams
observed Mandenbloom, with his cellular telephone, near the
vehicle.
Although Williams recalled that the individual he now
knows to be Mandenbloom appeared to be taking pictures,
Hutchinson, whom I credit, recalled that Moronto commented
that “that guy,” referring to Mandenbloom, is “writing down
license plate numbers.” Hutchinson suggested that he inform
Mandenbloom that the Union would be “happy to provide that
information to him.” Moronto got out of the car and made that
comment. Mandenbloom responded that he “could get it him-
self” and not to “mess with him” because he was “law en-
forcement.” Hutchinson asked to see his badge number and
Mandenbloom replied that he did not have to give her anything
and began walking down the driveway. Moronto obtained a
camera from another union representative and took two photo-
graphs of Mandenbloom.
Mandenbloom confirms that, while waiting for a ride, he was
writing notes to himself on “little cards.” Holly Hutchinson had
been introduced at the press conference. Mandenbloom testified
that, while writing notes, he was confronted by an individual
who he had seen “talking with Union people, like Ms. Hutchin-
son.” The individual asked if he was “getting tag numbers” and
then asked if he “would like me to help you get ta[g] numbers.”
Mandenbloom, who did not deny telling the individual not to
“mess with him,” testified that, to avoid an altercation, he be-
gan walking down the ramp. The individual called to him and,
when he turned, he observed that the individual had a camera.
Mandenbloom then raised his cellular telephone as if to take a
picture, but “I never took any pictures.”
Moronto did not testify. Mandenbloom, consistent with the
testimony of Hutchinson, agrees that Moronto accused him of
recording tag numbers. He denies doing so. His admission that
he was writing notes gave the appearance that he was recording
something. The incident at the car related to the license tag, not
the occupants of the vehicle.
The complaint alleges that Continental engaged in surveil-
lance by photographing employees and writing down license
plate numbers. Williams, the only employee of Continental
identified as being at the conference, observed that Manden-
bloom, whom he did not know, appeared to be taking pictures
of guests following the conference. Williams did not claim that
Mandenbloom ever appeared to photograph him. The evidence
establishes that Mandenbloom appeared to be writing down the
license tag number of a vehicle driven by a union organizer.
The predicate for unlawful surveillance is coercion or interfer-
ence with the Section 7 rights of employees. The foregoing
actions by an individual whom employee Williams did not
know did not impinge upon the rights of employees. I shall
recommend that this allegation be dismissed.
2. September 29
On the evening of September 29, the Union sought signa-
tures on a petition seeking the reinstatement of two employees,
Mercedes Medina and Phillip Gonzalez, to their positions at
Sunset Harbour. At least six individuals were present including
Medina and Gonzalez, Continental employee Howard Wil-
liams, who worked at Belle Plaza, and three union organizers.
These individuals were on the sidewalk near the driveway to
the Sunset Harbour parking garage. They approached residents
who were driving and walking. Mandenbloom took a photo-
graph which shows at least four adults and an object, identified
in testimony as a stroller, on the sidewalk adjacent to the drive-
way. The photograph establishes that, at the time it was taken,
the sidewalk was blocked; however, no other person was pre-
sent, thus the photograph does not establish that the access of
any person was actually impeded. Julia Daniel, a former organ-
izer with the Union, acknowledged that law enforcement offi-
cers spoke with the group and cautioned them not to block the
sidewalk. Mandenbloom testified that he took the photograph
and showed it to the law enforcement officers because he was
concerned that, upon observing the officers, the individuals
would cease to block the sidewalk and deny that they had done
so.
It is not unlawful for employers to photograph union activity
in order to document that the participants are trespassing or
blocking ingress and egress. Chariot Marine Fabricators, 335
NLRB 339, 348 (2001). I shall recommend that this allegation
be dismissed.
3. October 28
About a month after the circulation of the petition on Sep-
tember 29, the Union conducted a mock election outside the
Sunset Harbour facility. Residents were asked to vote to deter-
mine whether a majority of the residents wanted Medina and
Gonzalez to be reinstated. Between 8 and 15 individuals par-
ticipated in this activity on behalf of the Union including Gon-
zalez, Medina, Howard Williams, and various representatives
of the Union. Both Medina and Williams were employees of
Continental at other facilities.
At dusk, Continental District Manager Karen Dubose and
Claudia Sculthorpe, Continental’s property manager at Sunset
Harbour, drove slowly by the individuals conducting the mock
election. Sculthorpe raised a camera and took a photograph.
Medina and Gonzalez identified Dubose and Sculthorpe as this
occurred. Counsel for Continental did not produce any photo-
graph pursuant to subpoena but represented that “two pictures
were attempted by Ms. Sculthorpe . . . but that they came out
simply as blurs.”
The Board, in F. W. Woolworth Co., 310 NLRB 1197
(1993), reaffirmed longstanding precedent that “absent proper
justification, the photographing of employees engaged in pro-
tected concerted activities violates the Act because it has a
tendency to intimidate.” Unlike the situation on September 29,
there is no claim that the employees were blocking the side-
walk. Respondent Continental characterizes the actions of the
two Continental managers as “limited attempted phototaking”
and points out that the only Continental employees present,
Medina and Williams, had permitted the Union to take and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD358
publish their photographs. Such consensual cooperation with
the Union by the employees does not grant a respondent the
right to surveil. Notwithstanding any blurred images, photo-
graphing occurred. Counsel did not present the photographs for
examination regarding the quality of the images. The Respon-
dent Continental offered no justification for the photographing.
Sunset Harbour, as a joint employer, is alleged as a Respon-
dent with regard to this violation. No employees who worked at
Sunset Harbour and no management officials of Sunset Har-
bour were involved in the incident. I find no violation as to
Sunset Harbour. I find that by photographing protected union
activity in which employees of Continental were participating,
Respondent Continental engaged in surveillance in violation of
Section 8(a)(1) of the Act.
4. February 17, 23, and March 17, 2005
On the foregoing three dates the Union engaged in demon-
strations on the sidewalk across from the Sunset Harbour. Or-
ganizer Julia Daniel testified that, after the mock election on
October 28, in which residents voted whether “they wanted
Mercedes [Medina] and Phillip [Gonzalez] to go back,” the
Union would “regularly, like almost weekly, . . . be out there
protesting.” No employee of Continental who worked at Sunset
Harbour was involved in those demonstrations, which were
loud and which disturbed residents of Sunset Harbour. On the
three alleged dates, Sunset Harbour President Juan Duarte went
outside of the condominium, onto the sidewalk, with a video
camera. On the first occasion, he neglected to put a videotape in
the video camera. On the other two occasions he acknowledges
videotaping the demonstration for several minutes. The Sunset
Harbour concierge, Carlos Pedroza, a Continental employee,
observed the demonstrations from the front steps of the facility,
including the occasions that Duarte was videotaping. There is
no testimony that any other Continental employee observed the
demonstrations.
The complaint concerning these allegations alleges that Sun-
set Harbour, by Duarte, “engaged in surveillance of employees
engaged in union activities . . . by videotaping them.” Sunset
Harbour has moved to dismiss the foregoing allegations be-
cause no employee of Continental who was working at Sunset
Harbour was involved in any of the demonstrations.
In Washington Fruit & Produce Co., 343 NLRB 1215, 1217
(2005), the Board sets out the standard upon which surveillance
allegations are evaluated as follows:
[T]he fundamental principles governing employer surveil-
lance of protected employee activity are set forth in F. W.
Woolworth Co., 310 NLRB 1197 (1993). The Board in Wool-
worth reaffirmed the principle that an employer’s mere obser-
vation of open, public union activity on or near its property
does not constitute unlawful surveillance. Photographing and
videotaping such activity clearly constitute more than mere
observation, however, because such pictorial record keeping
tends to create fear among employees of future reprisals. . . .
The inquiry is whether the photographing or videotaping has a
reasonable tendency to interfere with protected activity under
the circumstances in each case. [Citations omitted.]
The General Counsel, citing Holly Farms Poultry Industries,
Inc., 186 NLRB 210 (1970), argues that the photographing
herein “occurred in the presence of employees.” Id. at fn. 1.
That case involved handbilling and the issue was whether pho-
tographing purportedly limited to photographing of the union
organizers rather the employees receiving the handbills coerced
employees in violation of Section 8(a)(1) of the Act. As aptly
noted in Barnes Hospital, 217 NLRB 725 (1975), there is “no
way of separating the activities of an outside, paid union organ-
izer, in solicitation activities, from the simultaneous coopera-
tion of the employees themselves.” Id. at 727. This case does
not involve solicitation or any other activity directed to em-
ployees at Sunset Harbour. The demonstrations on behalf of the
employees for whom the Union was seeking reinstatement were
directed to Sunset Harbour, the joint employer.
The complaint allegations regarding these three incidents in
2005 relate only to Sunset Harbour, not Continental. In Wash-
ington Fruit, employees of that employer were involved in the
demonstration. No employee who worked at Sunset Harbour
participated in the demonstrations at issue in this case. In Titan
Wheel Corp. of Illinois, 333 NLRB 190 (2001), the Board did
not comment upon the administrative law judge’s observation
that the General Counsel had cited “no authority for the propo-
sition that an employer coerces its employees when they see its
agents taking photographs only of nonemployees.” Id. at 195.
“The inquiry is whether the photographing or videotaping has a
reasonable tendency to interfere with protected activity under
the circumstances in each case.” Washington Fruit &Produce
Co., supra. In the circumstances of this case I find no basis for
concluding that any observation of the demonstration by any
employee of Sunset Harbour at a time that President Duarte
was videotaping the activities interfered or coerced employees
of Sunset Harbour in violation of the Act. I shall recommend
that these allegations be dismissed.
E. The Discharge of Marvin White
1. Facts
Marvin White was hired as a valet at the Executive in early
July by Property Manager David Keller, a supervisor of Conti-
nental. He was discharged less than 2 months later, on August
24, purportedly because the board of directors of the Executive
eliminated the key control position. When hired, White’s duties
included parking cars and assisting residents with their pack-
ages. He also served as a front desk concierge and, on occasion,
was responsible for cleaning the pool. About 2weeks after he
began working at the Executive, Keller assigned White the job
of key control. This duty required White to escort crews who
were remodeling the building to the locations at which their
work was to be performed. On those occasions that construc-
tion crews needed access to locations inside the facility, White
would go to the manager’s office and obtain the master key for
the particular unit to which the crew needed access from secre-
tary Cheryl Moore.
In 2004, before he left as property manager, Keller distrib-
uted a 2-page document on Continental letterhead signed by
President Richard Strunin and addressed “To our employees
and their families.” The letter notes that “union organizers are
trying to get our employees to attend union meetings, and sign
CONTINENTAL GROUP, INC. 359
union cards or union petitions” and that Continental is “100%
AGAINST A UNION GETTING INTO OUR COMPANY.”
[Emphasis in the original.] Keller distributed a second docu-
ment informing employees that if they had signed a union au-
thorization card they could “write the union and ask them to
cancel the card.”
Keller ceased to serve as property manager in late July. After
a 2-week hiatus, Angela Arrango became the property manager
on August 9.
During that hiatus, White had his first contact with the Un-
ion. White, who was at the front desk, observed valet Kolson
Brutus speaking with someone. He called to Brutus and re-
minded him of the policy prohibiting personal visits when an
employee was working. Brutus informed White that the indi-
vidual was “from the Union” and that she had been there be-
fore. White asked Brutus to bring her in. White introduced
himself and Union Representative Stephanie Lauria introduced
herself. They spoke and made an appointment to meet off of the
property at a local fast food restaurant the following week.
They did so, with Laurie picking White up from the Executive
when he got off of work. They discussed the Union and “what
the Union was trying to do as far as trying to get better pay for
the workers inside the buildings, such as workers in my posi-
tion, the valets, the front desk.” Lauria gave White a union
pledge card which he signed. Thereafter, he met with her once a
week.
White brought some of the pledge cards back to the facility.
He spoke about the Union with his coworkers including Front
Desk Manager Georges Legros, a nonsupervisory employee.
Legros reminded White that he should not let “them [people
from the Union] come on the property.” He also said not to get
in any trouble. White asked him how he could get in trouble.
Legros replied that he did not know, “but just don’t get into any
trouble.”
During the hiatus between Keller and Arrango, White in-
formed former Property Manager Keller, who called a couple
of times to assure that there were no problems, that he had
talked with a union representative and asked whether Keller
knew if the Board of the Executive was going to give the em-
ployees better benefits and pay raises, “because those were the
things that the workers. . . were always talking about.” Keller
informed White that the Board’s annual meeting was in Sep-
tember and that it had been discussed that the employees might
receive benefits and a pay raise.
After White was hired, a new employee, Mark, “an older
guy,” was hired as a valet. White believed that he was hired
part time. Arrango did not dispute that testimony.
In mid-August, shortly after Arrango became property man-
ger, Lloyd Stephens, another valet, was present at the front
desk. Dr. Merry Haber, secretary of the Executive board of
directors, drove up and observed White speaking to Lauria
outside of the building. When Dr. Haber entered the building,
she came to the front desk and asked Stephens who White was
speaking with. Stephens, who had previously spoken with
Lauria, informed Dr. Haber that he was talking to the lady
“from the Union.” Dr. Haber stated, “[T]hey don’t belong on
the property.” Dr. Haber then went into Arrango’s office and,
shortly thereafter, Arrango came out and asked who the indi-
vidual was and whether she was “from the Union.” Stephens
told Arrango that the individual was from the Union, and Ar-
rango directed him to “go outside and have her leave the prop-
erty, and . . . not to come back on the property.” White was still
speaking with Lauria when Stephens asked her to leave.
Shortly after this, White and Stephens were both at the front
desk. White recalls that Arrango came to the desk, looked at it,
and stated, “[T]his will not do.” She began picking up business
cards, fast food menus, and other papers that were spread out
upon it. As she was picking up the various papers, she picked
up the union pledge cards that White had brought to the facility.
Stephens recalled that the union document was a pamphlet. I
credit White’s recollection since he brought the cards to the
facility. White credibly testified that, when Arrango saw the
pledge cards, he “thought she was going to have a heart attack,”
that she “became very red and she became very, very upset.”
She asked, “What are these? How did these get here? Who do
these belong to?” White did not respond. Stephens answered, “I
don’t know.” He recalls that Arrango stated that she did not
want anything involving the Union, “she doesn’t want to see it
. . . [s]he doesn’t want it around,” and that whoever is found
with it is “going to be in big trouble.” White, whom I credit,
recalls that Arrango stated that “somebody’s been helping the
Union and I’m going to get to the bottom of this.” She told
White that she was holding him responsible. She went to her
office and then returned. She told White that she knew that
union representatives had been coming around, that they were
not allowed on the property, and that if they came onto the
property to call the police.
Arrango agreed that she had cleaned up the front desk, but
testified that Legros was present when she did so and that she
simply “put the stuff in boxes” and took it to the office. Legros
did not corroborate that testimony. Arrango claims that the first
time that she was aware of any activity involving the Union at
the Executive was when people appeared at the facility protest-
ing the discharge of White. I do not credit Arrango. Dr. Haber,
who went into Arrango’s office immediately after Stephens
informed her that White was talking to a person from the Un-
ion, did not testify. Arrango did not deny speaking with Dr.
Haber or questioning Stephens regarding whether the individual
outside was “from the Union” and directing him to “go outside
and have her leave the property, and . . . not to come back on
the property.” I find, consistent with the credible and mutually
corroborative testimony of White and Stephens, that Arrango
observed Lauria, who was speaking with White, and thereafter
became extremely upset when she discovered union literature at
the desk.
On the Friday following Arrango’s discovery of the pledge
cards, she held a meeting of the employees. Although differing
with regard to exactly what was said, White, Stephens, and
employee Kolson Brutus confirm that Arrango stated that she
was aware that representatives of the Union had been coming
onto the property, that they were not allowed on the property,
and that if they came onto the property to call the police. White
recalled that Arrango stated that if she saw any employee
speaking with a union representative, “I’m going to fire you.”
Stephens recalled only that anyone allowing union representa-
tives on the property would be in “big trouble.” I find that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD360
White’s recollection was of his understanding rather than what
Arrango actually said.
The board of the Executive met on Monday, August 23. On
Tuesday, August 24, Arrango called White to her office when
he reported to work. Dr. Haber, secretary of the board, was
present. Arrango told White, “[W]e’re going to have to let you
go.” Dr. Haber informed White that “they could no longer af-
ford the key control position. The budget did not allow it.”
White recalled that Dr. Haber stated that he was one of their
best employees and that “they’re not eliminating the man, but
they are eliminating the position.” White responded that he was
not hired for key control, that key control was an added duty
that he was “hired as a valet and key control was something
that I did in addition to my other duties.” He stated that he had
not done key control since Arrango arrived and that another
valet had been hired after him and “he still had a job.” He asked
why they did not let that person go. Dr. Haber did not respond.
White stated that he knew why he was being fired but that he
was “not going to sit here and get into it now.” Dr. Haber did
not testify.
Property Manager Arrango purports to have initiated the dis-
charge of White because of financial considerations. Arrango
had assumed the position of property manger on August 9, and
had, therefore, only been at the facility for 2 weeks when the
board met on August 23. In the week prior to the meeting, Ar-
rango individually called the members of the board and rec-
ommended terminating White. I do not credit her denial that
she was aware of White’s union activities at that time, nor do I
credit her claim that she did not apprise the board members of
White’s union activities when she called them. Her recommen-
dation to discharge White was effectuated by the board of di-
rectors pursuant to a motion by Dr. Haber. When asked whether
she recalled what Dr. Haber told White when he was dis-
charged, Arrango answered, “Not exactly. She mentioned due
to the financial restraints on the building, the position, key con-
trol position was terminated.” Arrango did not deny that White
pointed out that he was a valet, that key control was an addi-
tional duty, and that another valet had been hired after him.
Although White informed Dr. Haber that he had not per-
formed key control work since Arrango became the property
manager, he testified that he had performed the job after her
arrival on perhaps two occasions. He explained that Arrango
brought her own secretary with her, demoted Cheryl Moore to
part time, changed the lock on the door to the closet in which
the keys were kept, and informed the employees that if they
need keys, “then you come to me.” Arrango did not deny
changing the lock, but denied that she kept the keys, testifying
that they “were in the outside office with a box.” She did not
deny bringing her own secretary and reducing Moore to part
time.
Former employee Kolson Brutus confirmed that Arrango
made various changes. Formerly he had worked a regular shift
from 4 p.m. to midnight. After Arrango became property man-
ager, there were new procedures, “[w]e had to switch with peo-
ple, work in the pool, and also the front desk.” Brutus testified
that his schedule was “changed every week.” Arrango did not
dispute the foregoing testimony
George Legros confirmed that a schedule prepared by Keller
prior to his departure showed White as responsible for key
control, but it does not show how often it was necessary for
White actually to perform that assignment. White recalled that
he performed it about seven times when contractors had to be
escorted to condominium units. Legros and Stephens agree that,
in addition to performing key control work, White worked as a
valet, at the front desk, and at the pool. Stephens recalled that,
when no one was covering the pool, White would “take his tie
and shirt off” and perform that duty. After White was dis-
charged, Legros performed key control work. Brutus recalled
working up to 16 hours and that his work included cleaning the
elevator used by the contractors, that White “used to take care
of the elevator, to take off all the stuff” after the contractors’
work was completed.
Arrango testified that White was terminated pursuant to her
recommendation “to terminate the key control position.” In a
pretrial affidavit signed by Arrango, she initially stated that
Georges Legros informed her that White “was used for the key
control position.” Arrango struck that line from the affidavit so
that it stated that Legros told her that White “helped him, did
the same thing Georges [Legros] did . . . .” At the hearing, Ar-
rango asserted that she observed White “sitting with George
Legros at the front desk doing nothing.” When asked whether
“he sat there and did nothing and you paid him?” Arrango an-
swered, “Until his position was terminated, yes.” I find the
foregoing assertion to be incredible.
2. Analysis and concluding findings
The complaint alleges that Respondent Continental and Ex-
ecutive, on August 17, interrogated employees regarding their
activities on behalf of the union, threatened unspecified repri-
sals for engaging in union activities, and issued a directive pro-
hibiting employees from speaking with union representatives,
and, on August 20, prohibited employees from bringing union
paraphernalia to work and threatened discharge for engaging in
union activities.
There is no credible evidence that Arrango, on August 20,
when informing the employees that nonemployee union repre-
sentatives were not permitted on the property, ever specifically
threatened discharge or directed employees not to bring union
paraphernalia to work. I shall recommend that the allegations
relating to August 20, be dismissed.
Arrango’s questioning of White and Stephens regarding how
the union pledge cards had gotten onto the front desk and to
whom they belonged was coercive. It followed her direction to
Stephens to have Lauria leave the property and preceded her
stated intention to “get to the bottom of this.” Arrango’s in-
forming White, who unlike Stephens had not said that he did
not know to whom the documents belonged, that she was hold-
ing him responsible threatened an unstated reprisal. The threat
of reprisal is confirmed by Stephens’ recollection of Arrango’s
remarks which he interpreted as threatening “big trouble.” If
the possession of union pledge cards was of no concern to Ar-
rango, there would be no need to “get to the bottom of this” or
to hold anyone responsible. I find that Respondent Continental
coercively interrogated employees regarding their union activi-
CONTINENTAL GROUP, INC. 361
ties and threatened unspecified reprisals for engaging in union
activities in violation of Section 8(a)(1) of the Act.
Although Arrango directed that union representatives not be
permitted on the property, there is no evidence that she issued a
prohibition against speaking with union representatives. I shall
recommend that the allegation in that regard be dismissed.
In assessing the evidence concerning the discharge of White
under the analytical framework of Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), I find that
White did engage in union activity and that Respondent Conti-
nental and Executive were aware that he engaged in union ac-
tivity. Respondent Continental, by the coercive interrogation
and threat by Property Manager Arrango, expressed animus
towards employee union activity. The discharge of White was
an adverse personnel action. The General Counsel established
that White’s activities on behalf of the Union were a substantial
and motivating factor in the decision to terminate him. Thus,
the burden of going forward shifted to the Respondent Conti-
nental to demonstrate that the same action would have taken
place even in the absence of the protected conduct.
Property Manger Arrango initially testified that she recom-
mended that “the key control position” be eliminated. The re-
cord establishes that there was no key control position. Key
control was an additional duty. Arrango struck from her pretrial
affidavit the line that stated that Legros informed her that White
“was used for the key control position.” Thereafter, she in-
credibly claimed that she observed White “sitting . . . doing
nothing.” Despite this, she did not assign him to do anything or
send him home for lack of work. White, Front Desk Manager
Legros, Brutus, and Stephens confirm that White performed
various tasks, including working as a valet, at the front desk,
and at the pool.
The discharge of White was initiated by Arrango. Although
purportedly acting because of financial restraints, no financial
analysis performed by Arrango was offered into evidence. The
agreement pursuant to which Continental managed the Execu-
tive provides that all new hires must be approved by the board
of directors. Thus, notwithstanding any alleged budget re-
straints, Property Manger Keller had been authorized to hire a
valet, and he hired White in early July. Thereafter, he assigned
him the additional duty of key control, a function that White
performed when construction personnel were present. Keller
did not testify.
When White informed Keller that he had spoken with a un-
ion representative and that employees were talking about better
benefits and pay raises, Keller responded that the Board’s an-
nual meeting was in September and that benefits and a pay raise
had been discussed. Notwithstanding alleged budget restraints,
after White was hired as a valet, an older individual, Mark, was
hired as a valet. When Property Manager Arrango assumed her
duties on August 9, she brought her own secretary with her, but
retained Cheryl Moore, albeit on a part-time basis.
The foregoing facts compel the conclusion that alleged fi-
nancial constraints were a pretext. Neither Dr. Haber nor any
other member of the Executive board of directors testified.
There is no explanation for hiring White in early July and,
thereafter, hiring Mark despite alleged financial constraints.
Nor is there any explanation for permitting Arrango to bring
her own secretary with her while retaining Moore on a part-
time basis.
I have not credited Arrango’s denial that she was aware of
White’s union activities or her claim that she did not apprise the
members of the board of those activities. No board member
testified in corroboration of Arrango’s denial that White’s un-
ion activity was mentioned when she called each of them prior
to the board meeting. The approval of her recommendation to
discharge White was effectuated pursuant to a motion by Dr.
Haber. White’s testimony that he told Dr. Haber that key con-
trol was an additional duty and that a valet had been hired after
him is uncontradicted. The failure of Dr. Haber give an expla-
nation for the action of the board confirms that any explanation
would confirm that the asserted reasons for White’s termina-
tion, financial constraints and the elimination of a position that
was simply an additional duty, was pretextual and that any
explanation would have related to White’s union activity. When
the asserted reason for the adverse personnel action is either
false, or does not exist, the Respondent has not rebutted the
General Counsel’s prima facie case. Limestone Apparel Corp.,
255 NLRB 722 (1981).
Respondent Continental has not established that White
would have been discharged in the absence of his union activ-
ity. Case 12–CA–24097, insofar as it relates to the joint em-
ployer Executive, has been settled; therefore, no finding shall
be made with regard to Executive. I find that Respondent Con-
tinental discharged employee Marvin White because of his
union activities in violation of Section 8(a)(3) of the Act.
F. The Allegations Relating to Phillip Gonzalez
1. Facts
Phillip Gonzalez began working at the Sunset Harbour con-
dominium in 2001. He was a front desk concierge. In 2004, his
hours were from 7 a.m. until 3 p.m. Gonzalez ceased to work
on August 31, and on September 1, signed a resignation. The
complaint alleges that Gonzalez was discharged or construc-
tively discharged because of his union activities or, alterna-
tively, pursuant to enforcement of unlawful rules.
Prior to April 1, the Continental property manager at Sunset
Harbour was Keith Tannenbaum. Early in 2004, Gonzalez had
permitted four or five individuals that he understood to be with
the Union to come onto the property to speak to employees in
connection with a survey they were conducting for Florida
International University. Thereafter, Tannenbaum called the
employees together and said “negative things about the union
people,” that “they were after our money” and that “we could
have problems with Continental concerning our jobs.”
About April 1, Claudia Sculthorpe became Continental’s
property manager at Sunset Harbour. On May 1, Continental
took over the front desk operations at Sunset Harbour and con-
ducted training sessions which included a presentation that,
among other requirements, directed employees not to “share
personal problems with residents.” On Friday, August 13, front
desk employee German Ponton was transferred to another facil-
ity. On Monday, August 16, Sculthorpe informed front desk
employee Mercedes Medina that she was going to be trans-
ferred to another facility. Medina testified that she spoke about
this with Gonzalez and other coworkers; however, Gonzalez
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD362
did not corroborate that testimony. Gonzalez learned that Me-
dina was being transferred when she informed him of her trans-
fer by telephone the day it occurred, August 20.
Gonzalez spoke with Sculthorpe after he learned that Medina
was transferred and asked “what was going on.” Sculthorpe
told him that it was not his concern and to stop asking ques-
tions. He asked if he was going to get transferred. Skulthore did
not confirm or deny the possibility of a transfer. She told Gon-
zalez that he was doing a great job and to keep up the good
work. Gonzalez also asked Sunset Harbour Board President
Juan Duarte about Medina, but did not testify to the response he
received.
Gonzalez testified that he had gone by the office of the Un-
ion prior to the transfer of Medina because he was “seeing
strange things going on . . . at the front desk.” He did not ex-
plain the nature of the things he was seeing, why he wanted to
speak with someone from the Union regarding those things,
what he spoke about when he went, or when this visit occurred.
Union Representative Serena Perez was told by Medina that she
had convinced Gonzalez to support the Union after her transfer.
Gonzalez testified that he signed a union pledge card after Me-
dina was transferred because “I had a feeling I was going to be
the next one, so I wanted . . . somebody to protect me.” The
Union received the card on August 25. Gonzalez claims that he
spoke with employees about “how they [the Union] can support
us” after Medina’s transfer; however, he did not work for more
than a week after her transfer. No employee with whom he
purportedly spoke corroborated his testimony that he began
speaking in favor of the Union.
On August 16, Gonzalez had been served with a document
seeking an injunction against him for domestic violence. His
wife was the petitioner. There was no criminal complaint. Gon-
zalez was not arrested. Gonzalez was scheduled for 1 week of
vacation the following week. His direct supervisor, James Vil-
son, arranged for vacation to be advanced to Gonzalez. He took
off the remainder of August 16, and was on leave from August
17—26. August 27 and 28 were his scheduled days off. Gon-
zalez returned to work on August 29.
On August 16, Gonzalez showed the papers with which he
had been served to Property Manager Sculthorpe. Vice Presi-
dent of the Sunset Harbour Board Winston Lett was also pre-
sent. Gonzalez recalls that a resident, Alan Fine, came into the
room at some point when he was discussing his situation with
Sculthorpe. Gonzalez admits speaking about his personal prob-
lem with one resident, Bonnie Cutler, who recommended the
attorney who thereafter represented Gonzalez.
Continental maintains the following rule in the front desk
manual at Sunset Harbour:
Employees are only permitted to be on property while on duty
unless you are picking up a paycheck or otherwise advised by
the property manager or the Front Desk Coordinator. If you
are coming on property while off duty, we expect that you
will still follow guidelines and dress neatly. Once again, re-
member you represent the building and the company. Em-
ployees who violate this policy are subject to disciplinary ac-
tion.
On August 17, Gonzalez came to the facility and informed
Property Manger Sculthorpe that he had an attorney and was
looking for somewhere to stay. Sculthorpe’s superior, Director
of Front Desk Services David Miller, was present. Miller told
him that he had heard that Gonzalez had been “hanging around
the facility” and “loitering in the building.” Although Gonzalez
denied having done so, Miller told him that he could not “go to
the condominium” while he was on vacation. Miller recalled
that he told Gonzalez that it had been reported that Gonzalez
had been sleeping in a common area of Sunset Harbour and
living out of his car and that he could not “loiter here in the
building when you’re not on duty.” I credit Gonzalez and find
that Miller told him not to “go to the condominium,” and in
doing so I note that, when disciplining Gonzalez for violating
this announced prohibition, Continental cited him for “fre-
quenting the property” and “loitering on the property.”
Miller also informed Gonzalez that he should not be sharing
his personal problems regarding domestic violence with resi-
dents because it upset them. Gonzalez testified that he had not
done that, but he did not testify that he denied having done so
to Miller. His response to Miller was, “I told him I understood.”
Gonzalez recalled that on one day, he did not remember the
date, he came to the facility to keep Sculthorpe updated. Presi-
dent of the Sunset Harbour Board Juan Duarte called Scult-
horpe’s office and spoke with him, stating that he had heard
that Gonzalez had been speaking to residents, that it was not his
concern what happened to Medina, that it had been reported
that he had been loitering in the building, and that he should
keep his mouth shut because it was none of his concern.
Duarte acknowledges telling Gonzalez that he should keep
his personal problems to himself, not to share them with resi-
dents, and not to loiter in the building. Duarte made no refer-
ence to Medina. Gonzalez was on leave when he learned of
Medina’s transfer on August 20, thus there would have been no
opportunity for him to have mentioned Medina to any resident
until he returned to work, and Gonzalez did not testify that he
did so. I find, consistent with Duarte’s testimony, that only
personal problems and loitering were mentioned in their con-
versation. Duarte did not tell Gonzalez that he could not speak
with other employees.
The hearing regarding the domestic violence matter was held
on January 19. Following the hearing, on January 19, the attor-
ney who represented Gonzalez wrote him confirming that the
case was civil, not criminal, that he was to have no contact with
his wife, that the judge had made no finding, and that “nothing
negative has happened to you.” Gonzalez testified that he
showed that letter to Property Manager Claudia Sculthorpe
“when I returned to work” and that she made a copy of it and
“was happy the case was over with and my name was cleared.”
Gonzalez’ days off were Friday and Saturday. The office was
closed on Saturday and Sunday. I find it doubtful that Gonzalez
would have returned to work on Sunday, August 29, without
having coordinated with Sculthorpe. Since the office is closed
on weekends, it would appear that Gonzalez showed the letter
to Sculthorpe prior to his actual return to work.
Gonzalez returned to work on August 29. Several residents,
observing that Medina was no longer present, asked Gonzalez
what had become of her. Gonzalez testified that he would reply
CONTINENTAL GROUP, INC. 363
that he thought that he was going to be next. This prompted
some residents to ask what was the difference between Conti-
nental and Progressive, the prior property management com-
pany, and Gonzalez answered that Progressive “would treat us
like family.”
On the morning of August 31, when Gonzalez reported to
work, he saw that Supervisor James Vilson, Director David
Miller, and an employee, whose last name was Edison and in
whose training Gonzalez had participated, were outside the
building. They entered. Miller told Gonzalez that that he
needed to talk to him and directed Edison to take the front desk
position. At a couch in the lobby, Gonzalez asked what was
going on, was he being fired. Miller responded that they could
not “speak about this right now.” Miller contends that he in-
formed Gonzalez that it had been reported that Gonzalez was
continuing to speak about his personal problems and had been
loitering on the property and that Gonzalez did not deny doing
so. Supervisor Vilson corroborated this testimony, stating that
that Miller informed Gonzalez that he had breached their
agreement, that he was “still talking to residents about his per-
sonal problems” and that Gonzalez acknowledged that he had
been on the property over the weekend and that residents were
asking him questions “about changes that were being made at
the front desk.” Miller told Gonzalez that he was being re-
moved from Sunset Harbour and that he should come to the
corporate office in Hollywood, Florida, the following morning.
Gonzalez went to the union office and reported what had oc-
curred.
The following morning, September 1, Gonzalez drove to the
Continental offices in Hollywood, Florida. Union Representa-
tive Serena Perez accompanied him, but stayed outside in the
car. Gonzalez met with Miller and Mandenbloom. He was is-
sued two warnings and signed a resignation. Gonzalez initially
testified that Miller told him to “hurry up, I need you to sign
this,” and that he did so without reading any of the documents.
Thereafter he recalled that Mandenbloom stated that he had a
bad attitude and that he denied the accusation by referring his
years of work at Sunset Harbour. Miller disputes that Gonzalez
was told to hurry, pointing out that Gonzalez requested and was
provided copies of the documents that he signed. Even if I as-
sume that Gonzalez was hurried, there is no way that he could
have failed to read the one sentence letter of resignation that he
signed.
The first warning cites Gonzalez for “loitering on the prop-
erty on 8/21 and 8/22.” Gonzalez admits reading the warning
sometime after he signed it. He did not deny, either to Conti-
nental or at the hearing, coming onto Sunset Harbour property
on August 21 and 22.
The second warning, prepared by Miller, states that, on Au-
gust 30, Miller was informed that Gonzalez “had become very
negative toward Continental” and was falsely informing resi-
dents that two front desk managers had been fired when, in fact
they had been transferred. The warning states that on August
31, Miller was informed that Gonzalez was “continuing to tell
residents of his personal problems.” Gonzalez’ admission that
he stated that that Progressive had treated employees like fam-
ily implied that Continental did not treat employees like family,
and he did not deny that he informed residents that two front
desk managers had been fired rather than transferred. At the
hearing, Gonzalez denied having shared his personal problems
with the exception of his conversation with Sculthorpe that was
overheard by Vice President Lett and resident Fine and his
conversation with resident Bonnie Cutler who assisted him in
obtaining an attorney. He did not, however, ever deny to Miller
that he had spoken to residents about his personal problems.
Gonzalez did not deny informing residents that two front desk
managers had been fired instead of transferred.
Miller claims that he offered Gonzalez the opportunity to
transfer to another property, but he did not identify the prop-
erty. Mandenbloom recalls that Miller offered Gonzalez a posi-
tion as a floater “for a short time until we could find him a
property,” and that Gonzalez rejected that offer and stated that
he wanted to remain at Sunset Harbour. As a floater, Gonzalez
would have no regular schedule or fixed location at which he
would be working. Mandenbloom recalled that Miller told
Gonzalez that remaining at Sunset Harbour was not an option
and asked if he wanted to resign. Gonzalez stated that he did.
Gonzalez claimed that he was offered nothing at the first meet-
ing and, although contending that he was intimidated, acknowl-
edges that he signed a resignation.
Gonzalez returned to the vehicle. Union Representative
Perez examined the documents that Gonzalez had been given
and told him that he should not have signed them, to go back.
Gonzalez did so. He spoke with Miller and Mandenbloom,
telling them, “I refuse all this.” Miller suggested that Gonzalez
speak with Vilson who had arrived. Gonzalez told Vilson, “I
don’t accept this. I refuse this.” According to Gonzalez, Vilson
stated that he didn’t know what to tell him and that was the end
of their conversation. Vilson recalled that Gonzalez had ques-
tions regarding the options that he had been given, that he in-
formed him that he was working on a transfer, that Gonzalez
should consider what he was doing and to come back the fol-
lowing day.
Gonzales returned to Sunset Harbour on the evening of Sep-
tember 1, with representatives of the Union and sought signa-
tures upon a petition seeking his reinstatement. He testified
that, while doing this, he received a call on his cellular tele-
phone from Miller inviting him to come back to the Continental
corporate offices the following day. Gonzalez did so and ac-
knowledges that he was offered a position as a floater on Sep-
tember 2, and that he rejected it. Vilson claims that, on Sep-
tember 2, Gonzalez was offered a full-time position at another
condominium and that he rejected the offer, stating that if he
could not return to Sunset Harbour he wanted to be terminated.
Vilson acknowledges that a floater position was also men-
tioned. Miller denies calling Gonzalez on the evening of Sep-
tember 1.
I do not credit the testimony that Gonzalez was offered a
full-time position at any time. Mandenbloom confirms that he
was offered a position as a floater “for a short time until we
could find him a property,” that Gonzalez rejected that offer
and resigned. No document reflecting the offer of a full-time
position was offered into evidence. Whether Gonzalez was
offered a position as a floater on both September 1 and 2, or
only on September 2 is immaterial. He acknowledges rejecting
the offer of a floater position on September 2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD364
A memorandum from Supervisor Vilson to the Sunset Har-
bour board of directors dated August 20, reports that German
Ponton was transferred on August 13, and that Mercedes Me-
dina was transferred on August 19. It refers to the fact that
Gonzalez had experienced personal problems and states Vil-
son’s intention, “in the long term,” to recommend his transfer.
2. Analysis and concluding findings
The complaint alleges that the rule limiting the access of off-
duty employees at Sunset Harbour violates the Act, that the
Respondents, by Miller, “denied off duty employees access to
the Sunset [Harbour] facility” on August 18, that Sculthorpe
and Duarte prohibited employees “from discussing their terms
and conditions of employment,” and, on September 1, in writ-
ing, denied off-duty employees access to the Sunset [Harbour]
facility and prohibited them from discussing terms and condi-
tions of employment.
There is no evidence that Gonzalez was ever directed not to
discuss terms and conditions of employment. The General
Counsel’s brief sets out no such rule but argues that the prohibi-
tion occurred when Duarte forbade Gonzalez to speak about
Medina’s transfer and when Gonzalez was issued the second
warning on September 1 that referred to his falsely telling resi-
dents that front desk employees had been terminated rather than
transferred. I have found that Duarte did not mention Medina,
that he told Gonzalez to keep his personal problems to himself,
not to share them with residents, and not to loiter in the build-
ing. The prohibition upon employees sharing personal problems
with residents does not relate to terms and conditions of em-
ployment and does not infringe upon their right to engage in
Section 7 activity. Gonzalez knew that Ponton and Medina had
been transferred, not fired. Disciplining an employee for mak-
ing false statements does not infringe upon Section 7 rights.
There is no evidence that Gonzalez was, in writing, denied
access to the Sunset Harbour facility on September 1. I shall
recommend that those allegations be dismissed.
On August 18, Miller told Gonzalez that he could not “go to
the condominium” while he was on the vacation leave that he
had been given. The foregoing prohibition is consistent with the
rule in the front desk manual that prohibits off-duty employees
from coming onto the property except to pick up a paycheck or
with authorization. Tri-County Medical Center, 222 NLRB
1089 (1976), holds that a no-access rule concerning off-duty
employees is valid only if it (1) limits access solely with respect
to the interior of the plant and other working areas; (2) is
clearly disseminated to all employees; and (3) applies to off-
duty employees seeking access to the plant for any purpose and
not just to those employees engaging in union activity, and that
except where justified by business reasons, a rule which denies
off-duty employees entry to parking lots, gates, and other out-
side nonworking areas will be found invalid. Although Duarte
only directed Gonzalez not to loiter in the building, Miller,
speaking for Continental, also spoke for joint employer Sunset
Harbour when he told Gonzalez not to come to the condomin-
ium.
The Respondents offered no business justification for deny-
ing Gonzalez access to Sunset Harbour property while off duty.
Continental, in its brief, argues that there are no nonworking
areas at the facility that “all of the premises, inside and out, are
areas where services are provided to . . . residents and guests.”
Neither Respondent Continental nor Respondent Sunset Har-
bour adduced any evidence to that effect at the hearing. Direc-
tor Mandenbloom photographed the blocking of the sidewalk at
the entrance to the driveway that leads to parking, a nonwork-
ing area. Duarte testified to expenses for the repair of construc-
tion defects. The area in which repair materials would be stored
and in which construction debris would be deposited would not
be frequented by residents or guests and would be nonworking
areas when construction crews were not present. By promulgat-
ing and maintaining a no-access rule, the Respondents, joint
employers, violated Section 8(a)(1) of the Act.
The complaint alleges that the Respondents, on September 1,
issued two disciplinary actions to Gonzalez and “discharged or
constructively discharged” him because he engaged in union
activities, protected concerted activities, and “based upon the
rules described above.”
In assessing the evidence under the analytical framework of
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), notwithstanding the Respondents’ animus towards
employee union activity, there is no evidence that the Respon-
dents were aware that Gonzalez had engaged in any union ac-
tivity and there is no evidence that he engaged in protected
concerted activity.
Regarding union activity, Gonzalez testified that he had a
feeling that he was going to be the next to be transferred before
allegedly engaging in any union activity. He signed the union
pledge card given to him by Medina because he wanted “some-
body to protect me.” Whether he had gone by the union office
prior to signing the card is immaterial insofar as there is no
evidence that anyone was aware of that visit. He did not work
at Sunset Harbour from August 17 until Sunday, August 29. He
does not claim to have mentioned the Union when stating that
the former employer, Progressive, unlike Continental, had
treated employees like family. The discipline issued to Gon-
zalez does not mention the Union or conversations with em-
ployees. The General Counsel presented no employee witness
who testified in corroboration of the conversations in support of
the Union that Gonzalez claimed to have had following Me-
dina’s transfer. He does not admit having returned to the facil-
ity, except to speak to Sculthorpe, until August 29. There is not
a scintilla of evidence that any supervisor or management offi-
cial of Continental or Sunset Harbour was aware of any union
activities or prounion statements by Gonzalez prior to his re-
moval from the facility.
There is no evidence that Gonzalez engaged in any protected
concerted activity unrelated to the Union. Although the brief of
the General Counsel refers to his “protesting the transfer of
others,” Gonzalez did not claim that he spoke with any employ-
ees about Medina. He asked Sculthorpe what had happened and
was told it was not his concern. Thereafter, when he was asked
by residents what had become of Medina, he obliquely replied
that he thought that he was going to be the next to be trans-
ferred.
The Respondents’ no-access rule violates Section 8(a)(1) of
the Act. The first warning issued to Gonzalez on September 1,
cites him for “loitering on the property on 8/21 and 8/22” after
CONTINENTAL GROUP, INC. 365
being told not to be on the property when off duty. Director
Miller testified that he issued that warning based upon a report
that he had received. He testified that, when Gonzalez was
removed from Sunset Harbour on August 31, he admitted to
Miller that he had been on the property. Gonzalez did not deny
being on the property on those dates. Miller admitted that “loi-
tering is not acceptable behavior for front desk individuals” and
that the discipline was administered consistent with the “docu-
ment of policies.” The discipline issued to Gonzalez on Sep-
tember 1, cites him for “frequenting the property” and “loiter-
ing on the property.” “[A]ny ambiguity in the rule must be
construed against the Respondent as the promulgator of the
rule.” Lafayette Park Hotel, 326 NLRB 824, 828 (1998).4 Dis-
cipline imposed pursuant to an unlawful rule violates the Act.
Double Eagle Hotel & Casino, 341 NLRB 112 fn. 3 (2004). By
warning Gonzalez for being on Sunset Harbour property when
off duty, the Respondent Continental violated Section 8(a)(1) of
the Act.
The warning of September 1, was a first written warning in
Respondent Continental’s progressive discipline system. There
is no probative evidence that he was removed from Sunset Har-
bour for violating that unlawful no-access rule more than a
week prior to returning to work. Sunset Harbour had no in-
volvement in the warning and ceased to be a joint employer
when Gonzalez was removed from the facility on August 31.
Thus, I shall recommend that this allegation be dismissed inso-
far as it relates to Sunset Harbour.
The second warning refers to Gonzalez having “become very
negative toward Continental” and cites him for falsely inform-
ing residents that two front desk managers had been fired rather
than transferred and “continuing to tell residents of his personal
problems.” The General Counsel points out that the Act’s pro-
tection extends to statements that are not knowingly false; how-
ever, Gonzalez knew that Ponton and Medina had been trans-
ferred, not fired. He was not questioned regarding this aspect of
the warning. He did not deny informing residents that two front
desk employees had been fired rather than transferred. After
returning to work, Gonzalez admits informing residents that
Progressive had treated employees like family, implying that
Continental did not treat employees like family. Although Gon-
zalez, at the hearing, denied having shared his personal prob-
lems, he did not deny to Miller that he had done so, and he
signed the warning. There is no evidence that the Respondent
Continental did not reasonably believe that he had continued to
share his personal problems with residents. Even though there
was no rule prohibiting comments that reflected negatively
upon Continental, a Board majority does not believe that rules
prohibiting “‘disloyal, disruptive, competitive, or damaging’
conduct, can reasonably be read as encompassing Section 7
activity.” Tradesmen International, 338 NLRB 460, 461
(2002). The rule prohibiting discussion of personal problems
with residents does not infringe upon Section 7 activity. I shall

4 Whether the discipline was issued pursuant to the written rule or
the verbal prohibition stated by Miller on August 18, is immaterial.
Even if it be assumed that Gonzalez could have lawfully been disci-
plined for sleeping at Sunset Harbour, the discipline issued on Septem-
ber 1, was not for sleeping; it was for “loitering” on August 21 and 22.
recommend that the allegations relating to the second warning
be dismissed.
Respondent Continental offered Gonzalez a position as a
floater notwithstanding the fact that he had made comments
about Continental that it perceived as critical and its belief that
he had continued to discuss his personal situation with residents
at Sunset Harbour. In view of the Respondent’s discharge of
Marvin White, I have no doubt that, if the Respondent believed
that Gonzalez had been engaging in either union or protected
concerted activity, he would not have been offered a position as
a floater, an offer that Gonzalez admits he refused. He would
have been discharged. I shall recommend that the allegations
that Gonzalez was discharged or constructively discharged for
engaging in union activity, protected concerted activity, or
pursuant to an unlawful rule be dismissed.
G. The Discharge of Leydis Borrero
1. Facts
The complaint alleges that Continental discharged employee
Leydis Borerro for engaging in protected concerted activity.
Borrero worked for Continental from 1995 until her termination
on January 28, 2005. For over 2 years she had worked at the
Sands Pointe Ocean Beach Resort Condominium, Sands Pointe.
She was assigned to housekeeping and was responsible for the
lobby and the gymnasium. On January 9, 2004, Emilia Nabais
became the property manager at Sands Pointe.
The basic facts are not in dispute. Employee Mario Cifuentes
worked as a maintenance employee of Continental at Sands
Pointe. In late November, he sought a leave of absence in order
to return, for personal reasons, to his native country, Columbia,
South America. He was granted a 45-day leave of absence and
his last day of work was December 4. Cifuentes did not return
to work within 45 days. The 45th day would have been January
18, 2005. Cifuentes returned on January 27, 2005. He went to
Property Manager Nabais and asked if his “position was there
to continue working.” Nabais informed him that it was not,
because he was gone for longer than his approved absence. She
suggested that he should “present myself at another condomin-
ium.” Cifuentes, although aware that he had returned after more
than 45 days, protested that Nabais had said she would keep his
job for him. Nabais repeated that the position was not available,
“she did not have it any more.”
Cifuentes remained on the property and, at lunch, spoke with
employee Leydis Borrero. He explained to her that Nabais had
informed him that “they did not have my position ready any
more.” Borrero informed Cifuentes that a board member she
knew as Peter had been asking about him and that, if Cifuentes
wanted to, she would “go up to his penthouse” with him. Ci-
fuentes recalled that Borrero said that she would talk to a per-
son on the board of the condominium “to see if they could help
me in something so that I could start working again.” Borrero,
accompanied by Cifuentes, went to the unit of Board Member
Spiro Colivas, the individual who Borrero knew as Peter.
According to Cifuentes, Borrero did most of the talking, in
Spanish and “a little bit of English.” Board Member Colivas,
according to Cifuentes, speaks English and a “very little Span-
ish.” Borrero informed him of Cifuentes’ situation, contenting
that “they had taken me out of the condominium without any
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD366
just cause.” Coliovas stated that he would speak to Nabais “to
see what happened with my position.”
Borrero recalled that she explained to Colivas that they had
come to see him because Nabais did “not want to give him his
position.” According to Borrero, Cifuentes asked why they
were not giving him his position, “what was going on.” Ci-
fuentes and Colivas were speaking in English “because Mario
[Cifuentes] speaks a little bit of English, a little more than me.”
Cifuentes began to try to say that he worked harder than other
employees, but Borrero interrupted and stated that they were
not there “to talk about who works and who doesn’t work,” that
they were there “to try to get his own job back.” Borrero recalls
that Colivas and Cifuentes exchanged telephone numbers.
Board Member Colivas sent an e-mail to Nabais at 4:06 p.m.
on January 27, 2005, identifying Cifuentes as “Mario” who
“used to work in receiving” and explaining that Borrero had
approached him when she saw him walking in the facility about
Cieuntes “not being allowed to come back,” that he explained
that he did not have any power to hire or fire people, but that he
agreed “to talk with you [Nabais] to see what the circumstances
were and if he was eligible to come back . . . .” The e-mail
continues, stating that, shortly after that conversation, Borrero
and Cifuentes appeared at his apartment. He stated that he re-
peated his commitment “to connect with you [Nabais] . . . by
phone or e-mail to discuss the matter,” and that Cifuentes gave
him his telephone number. The e-mail concludes, “When you
get a chance, please let me know when we can get together
discuss Mario and what the situation is or was. Thanks for your
time.”
Nabais sent the e-mail to her supervisor, Ophelia De La
Torre, a Continental district manager responsible for 8 to 10
condominiums including Sands Pointe. De La Torre testified
that she called Colivas who she claims was dumbfounded that
Borrero had approached him and stated that he did not want
“anyone coming to my home and disturbing my peace to talk
about a friend and trying to get their friend hired.” De La Torre
says she also received a call from Board President Isaac Alian,
“about this situation,” but she did not place a date or time upon
that conversation.
I do not credit De La Torre. Neither Colivas nor Alian testi-
fied. The e-mail from Colivas reveals that he knew that Mario,
who he identified by name, had worked at Sands Pointe in re-
ceiving and that the issue was his “not being allowed to come
back.” The e-mail confirms that, although informing Borrero
that he had no authority to hire or fire, Colivas committed him-
self to contact Nabais to see “if he was eligible to come back.” I
find it incredible that Colivas, having contacted Nabais and
requested a meeting with her regarding “Mario’s” eligibility to
“come back” would, as asserted in De La Torre’s hearsay tes-
timony, claim that Borrero was “disturbing his peace” by trying
to get her “friend” hired. If that had been his attitude, he would,
after informing Borrero that he had no authority, told her to
take the problem to Nabais or to her superior.
The following day, around 4 p.m., Borrero was called to Na-
bais’s office. The secretary was present and a supervisor,
Frank, was in and out of the room during the short meeting.
Nabais and Borerro spoke in Spanish. Nabais informed Borrero
that she was fired, to turn in her keys and radio. Borrero asked
why she was being terminated and Nabais replied “[B]ecause I
had gone to help Mario to speak to the Board.” Borrero an-
swered that if that was a problem, “I accept it.” Nabais com-
mented that Borrero had thrown away her time with Continen-
tal. Borrero answered that she was not going to change, “that is
my way of being by helping other people.” Nabais asked why
she had “gone to speak with the Board,” and Borrero replied,
“[N]o, what I did was accompany Mario to the penthouse.”
The termination document signed by Nabais and dated Janu-
ary 28, 2005, states:
Employee has been individually coached several times. She
does not care nor take pride in her work. Finally addressed di-
rectly a board member to intervene on behalf of another em-
ployee that has requested for a leave of absence. Documents
attached.
The termination document does not reflect that addressing a
member of the Board violated any rule or instruction or that any
board member complained about being contacted.
On February 27, 2004, Nabais issued a memorandum to em-
ployees relating to conversations that, inter alia, stated, “Em-
ployees are not allowed to converse with the Residents unless
to greet them. . . . Conversation among the employees is to be
kept to a minimum unless on break in the employees lounge.
‘Gossip’ between employees and/or residents will be subject to
termination of the employee involved.”
On March 9, the memorandum was revised to provide, “Em-
ployees are not allowed during work hours to converse the
Residents unless to greet them. . . . Conversation among the
employees is to be kept to a minimum unless on break in the
employees lounge. ‘Gossip’ between employees and/or resi-
dents will be subject to termination of the employee involved.”
District Manager De La Torre testified that the policy pub-
lished by Nabais did not accurately reflect the policy that she
stated to the employees in a meeting early in 2004. That policy,
according to De La Torre, was that employees should not “be
speaking either with residents, Board members, or among
themselves during working hours” but that there was no prob-
lem “with them speaking with anyone about anything during
their breaks or their lunch hour, or even afterward.” De La
Torre noted that the employees at Sands Pointe did not read
English so they would not have understood the memorandum
published by Nabais.
According to De La Torre, she held that meeting after Su-
pervisor Nabais reported that Borrero was spending time away
from her work speaking with residents. She acknowledges that
she did not single out Borrero, but addressed all the employees.
Borrero recalled that, shortly after Nabais became the property
manager, she informed the employees that she did not want
them to talk to people from the Board, but that “we had it un-
derstood that it was with the old Board.” Borrero, on cross-
examination, acknowledged that after October 2004, when the
new Board was elected, the employees were not told that they
“were prohibited from talking to residents or Board members.”
De La Torre testified that when a board member complains
about an employee, it is Continental’s policy to see if the em-
ployee has any writeups and that, if they have been in compli-
ance with their work, “we definitely try to relocate them.” That
CONTINENTAL GROUP, INC. 367
effort was not made in Borrero’s case because, according to De
La Torre, Nabais “faxed me over some write ups” and “based
on her latest thing” that she did not “feel comfortable in relocat-
ing” Borrero. I do not credit that testimony. The document
prepared and signed by Nabais relating to the termination of
Borrero is dated January 28, 2005. It does not state any com-
plaint by a Board member. It cites her conduct, including the
action that she took with and on behalf of Cifuentes. De La
Torre signed the termination document as well as a written
warning that had been issued to Borrero on September 28 on
February 7, 2005, 10 days after Borrero was terminated. Nabais
did not testify.
2. Analysis and concluding findings
The complaint alleges that Respondent has maintained and
on or about February 4, 2005, enforced “a rule prohibiting em-
ployees from discussing their terms and conditions of employ-
ment with residents and Board members.” The rule, as revised
by Nabais in March, limits the prohibition upon conversation
with residents to “work hours” and De La Torre told the em-
ployees that lunch period is not work hours, that there was no
problem “with them speaking with anyone about anything dur-
ing . . . their lunch hour.” Any presumptive invalidity in the
English written rule was corrected when De La Torre informed
employees that the rule did not apply during breaks or lunch
period. There is no evidence that Borrero or any other em-
ployee understood that there was any restriction when they
were not working. Borrero and Cifuentes approached Board
Member Colivas during her lunch hour. Thus they were not in
violation of the rule. I shall, therefore, recommend that this
allegation be dismissed.5
The complaint alleges that Borrero was discharged for en-
gaging in the protected concerted activity of “attempting to
assist another employee in resolving a dispute about his em-
ployment at Sands Pointe” or, alternatively, pursuant to the
foregoing rule that I have found does not unlawfully prohibit
nonwork time conversations with residents and which Borrero
did not violate. Respondent Continental argues that Cifunetes
was not an employee and that “Borrero’s activity had nothing
whatsoever to do with terms and conditions of employees” of
Continental.
Contrary to that argument, it is clear that Property Manager
Nabais considered Cifuentes to be an employee because the
termination document states that Borrero sought to intervene
“on behalf of another employee.” There is no evidence that, as
of January 27, Cifuentes had been terminated. Nabais told him
that his position was no longer open and suggested that he “pre-
sent himself at another condominium,” not that he apply for
employment. Even if Cifuentes was not a current employee,
employees are “members of the working class generally,” in-
cluding “former employees of a particular employer.” Little

5 The complaint does not allege a prohibition upon discussion of
wages, hours, and working conditions among and between employees.
Although the brief of the General Counsel refers to the “gossip” aspect
of the rule, no witness addressed that aspect of the rule. No amendment
to the complaint was offered, the issue was not fully litigated, and I
make no finding in that regard.
Rock Crate & Basket Co., 227 NLRB 1406 (1977). Cifuentes’
effort to resume his former position made him at the least an
applicant for employment and “[a] job applicant for employ-
ment is an employee under Section 2(3) of the Act. Phelps
Dodge Corp. v. NLRB, 313 U.S. 177 (1951).” Labor Ready,
Inc., 327 NLRB 1055, 1058 (1999).
The nature of the employment claim concertedly made by
Borrero and Cifuentes does not remove it from the protection of
the Act. In S.M.K. Mining & Construction Co., 306 NLRB 718
(1992), the administrative law judge, citing Cub Branch Min-
ing, 300 NLRB 57, 58 (1990), pointed out that “[t]he Board has
consistently held that concerted employee action, when invoked
peaceably, to further an employment claim, such as a wrongful
discharge, albeit personal in nature, remains within the protec-
tive mantle of Section 7 of the Act. See, e.g., Buck Brown Con-
tracting Co., 283 NLRB 488, 489, and cases cited at 513
(1987). . . .By this very process [workers making common
cause to reverse management’s judgment on a personnel mat-
ter] management was put on notice, that its work force would
not stand idly by in the face of unfair treatment. . . .” Id. at 721.
The concerted activity of Borrero and Cifuentes was predicated
upon the employment claim that Continental’s failure to rein-
state Cifuentes was unfair.
The concerted request by Borrero and Cifuentes to have a
board member intervene on behalf of Cifuentes was protected.
In Cleanpower, Inc., 316 NLRB 496 (1995), the Board af-
firmed the finding of the administrative law judge that a threat
to have a third party intercede on behalf of employees pursuing
a complaint regarding working conditions was protected. The
judge concluded that the two employees “were reaching out to
Gulden [the third party] to seek his assistance in helping to
resolve a work dispute and this was protected activity.” Id. at
498. See also NC License Plate Agency, 346 NLRB 293 (2006).
Leydis and Cifuentes sought to have Board Member Colivas
intervene on behalf of Cifuentes. He agreed to do so and re-
quested a meeting with Nabais. The termination document pre-
pared by Property Manager Nabais establishes that Borrero was
fired because, with Cifuentes, she “addressed directly a board
member to intervene on behalf of another employee.” The ter-
mination of Leydis Borrero for engaging in protected concerted
activity violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Local 11, Service Employees International Union, the
Charging Party, is a labor organization within the meaning of
Section 2(5) of the Act.
2. Respondents Continental and Executive were, at all rele-
vant times herein, joint employers of the valet employees who
worked at the Executive.
3. Respondent Continental and Respondent Sunset Harbour
are joint employers of the front desk employees at Sunset Har-
bour.
4. By promulgating and maintaining an unlawfully broad
rule prohibiting access to all Sunset Harbour property by off-
duty employees except to pick up a paycheck or pursuant to
authorization by the property manger or front desk coordinator,
Respondent Continental and Respondent Sunset Harbour have
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD368
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
5. By engaging in surveillance of employee union activities,
coercively interrogating employees regarding their union activi-
ties, and threatening employees with unspecified reprisals for
engaging in union activities, Respondent Continental has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
6. By warning Phillip Gonzalez for coming onto the property
of Sunset Harbour while off duty, Respondent Continental has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
7. By discharging Marvin White because of his union activi-
ties, Respondent Continental has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1)
and (3) and Section 2(6) and (7) of the Act.
8. By discharging Leydis Borrero because she engaged in
protected concerted activity, Respondent Continental has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent Continental and Respondent Sunset Harbour
having promulgated and maintained an unlawfully broad rule
prohibiting access to all Sunset Harbour property by off-duty
employees except to pick up a paycheck or pursuant to authori-
zation by the property manger or front desk coordinator, the
Respondents must rescind that rule insofar as it prohibits access
to outside nonwork areas of the facility, remove it from the
front desk manual, and advise the employees in writing that the
rule is no longer being maintained.
Respondent Continent having unlawfully warned Phillip
Gonzalez on September 1, 2004, it must rescind that warning.
Respondent Continental, having discriminatorily discharged
Marvin White on August 24, 2004, and Leydis Borrero on
January 28, 2005, it must offer them reinstatement and make
them whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from the dates of their respective
discharges to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
The Respondents must also post appropriate notices. In view
of the diversity of the workforce, I recommend that the notices
be translated into Spanish and posted in both English and Span-
ish.
[Recommended Order omitted from publication.]