Triad Management Corp.

National Labor Relations Board - Board DecisionsFeb 25, 1988

287 N.L.R.B. 1239 (N.L.R.B. 1988)

TRIAD MANAGEMENT CORP 1239 Triad Management Corporation and Peggy Aeber- sold. Case 7-CA-26191 25 February 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On 14 April 1987 Administrative Law Judge James L. Rose issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief in support of the cross-exceptions and in answer to the Respondent's exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions,' to modify his remedy,2 and to adopt the recommended Order as modified .3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Triad Management Corporation, Ann Arbor, Michigan, its officers, agents, successors, ' In adopting the judge's conclusion that the object and manner of pro- test of the work stoppage staged by employees White, Clark, and Aeber- sold were within the perimeter of Sec 7, we find a direct nexus between their complaint regarding a wage increase offered coworker Elizabeth St James and the protesters' own wages, hours, and terms and conditions of employment Thus, the protesters complained about the inequity of the raise because it had been awarded at a time other employees were being subjected to "belt- tightening" measures Only 2 days before the increase to St James, White had been denied a wage increase on the anniversary of her sixth year with the Company, and Clark had also been denied a wage increase Also, project coordinators such as Aebersold were no longer attending the same number of project meetings, which had in- creased their monthly earnings by as much as $150 In addition, employ- ees had begun paying for coffee, office supplies were more scarce, and employees had faced the possibility of having their parking passes re- voked Though we agree with the judge's finding that St James was not a managerial employee, we find that even if she were a managerial employ- ee the activities of the three employees were sufficiently related to their own wages and terms and conditions of employment to find that they were engaged in protected, concerted activity 2 We deny as unnecessary the General Counsel's request for a visita- tonal clause See Cherokee Marine Terminal , 287 NLRB 1080 (1988) In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be comput- ed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C Â§ 6621 Interest on amounts ac- crued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C Â§ 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 3 The judge included a broad cease-and -desist provision in his recom- mended Order We believe a narrow provision is appropriate under the standards of Hickmott Foods, 242 NLRB 1357 (1979), and we have modi- fied his recommended Order accordingly and assigns, shall take the action set forth in the Order as modified. 1 Substitute the following for paragraph 1(b). "(b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act " 2. Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or otherwise discrimi- nate against you because you engage in concerted activity protected by Section 7 of the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer immediate and full reinstatement to Sandra White, Kimberly Clark, and Peggy Ae- bersold to their former jobs or, if those jobs no longer exist, to substantially equivalent positions of employment and make them whole for any loss of wages or other rights and benefits they may have suffered as a result of the discrimination against them, with interest. WE WILL remove from our files any reference to the discharges of Sandra White, Kimberly Clark, and Peggy Aebersold and WE WILL notify them in writing that this has been done and that the dis- charges will not be used against them in any way. TRIAD MANAGEMENT CORPORATION 287 NLRB No. 132 1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Denis Boren, Esq, for the General Counsel J. Michael Guenther, Esq., of Ann Arbor, Michigan, for the Respondent. Peggy A. Aebersold, of Tecumeseh, Michigan, pro se. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge. This matter was tried before me at Detroit, Michigan, on 27 January 1987, on the General Counsel's complaint' which alleged that about 18 August 1986 (and dates thereafter) the Respondent discharged three of its em- ployees in violation of Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Â§ 151 et seq The Respondent generally denied that it engaged in any activity violative of the Act; and affirmatively con- tends that Sandra White was a managerial employee and therefore not entitled to protection of the Act, and in any event none of the employees engaged in concerted activity protected by Section 7 On the record as a whole, including briefs and argu- ments of counsel, and my observation of the witnesses, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION The Respondent is a Michigan corporation engaged in the management and related services of apartment com- plexes and condominiums. In connection with its business the Respondent annually performs services valued in excess of $50,000 directly for Geddes Lake Cooperative Homes, a residential complex in Ann Arbor, Michigan, which in turn receives gross revenues in excess of $1 million annually and purchases directly from points out- side the State of Michigan goods and materials valued in excess of $2500. The Respondent admits, and I find, that it is an em- ployer engaged in interstate commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Factual Background The operative facts in this matter are essentially undis- puted. As indicated, the Respondent is engaged, among other things, in the management of apartment complexes and condominiums. It has a president, Ronald Duprey, a treasurer, William Cretney, and other corporate officers. Of the employees working out of its Ann Arbor facility, those involved in this matter include Jan Vliet, the office manager , whom the parties agree is a supervisor within the meaning of Section 2(11) of the Act; Sandra White, who during the time material was "corporate financial manager"; project coordinators Peggy Aebersold and Cynthia Ross; maintenance coordinator Kimberly Clark, ' The charge was filed be Sandra A White on 8 September 1986, and the complaint issued on 30 October 1986 and project manager Elizabeth St James.2 The Respond- ent also had employees performing maintenance and other functions. In mid to late 1985 and January 1986, the Respondent had made a series of wage adjustments such that Vliet and White were raised to $9 86 per hour or $20,500 an- nually, Clark and Aebersold to $8.50 and hour or $17,600 annually, and Ross to $7.75 per hour or $16,120 annually To pay for the wage adjustments there was some "belt tightening" (which included project coordinators not being required to attend monthly meetings of specific projects, which had allowed them to earn an additional $150 per month). About 13 August Duprey told Vliet that he had given a large wage increase to Elizabeth St. James, to which Vliet objected contending that St. James was not deserv- ing, was not a very hard worker, and in any event had only been employed about a year. Vliet told Duprey that she thought it was unfair in light of the cutbacks and other attempts the employees had participated in to save money. Duprey told her that nevertheless the increase was in place and he felt it was necessary. That day Vliet had lunch with White during which this was discussed. White stated that she knew about the increase inasmuch as she had been told to make the nec- essary payroll adjustments. White, too, was "upset" about the increase to St. James, particularly inasmuch as only 2 days before she had asked for an increase for her- self on the occasion of her sixth anniversary with the Company, and had been denied. Vliet and White then talked to employees Clark, Aebersold, and Ross about this matter, and at least Clark and Aebersold were simi- larly upset about the increase given St. James and all were of a mind to take some action, including engaging in a work stoppage. After consultation among these employees, it was de- termined that they would refuse to come to work the following Monday, 18 August. Vliet gave a note to Ross to be left on Duprey's desk Friday evening, though dated Monday, 18 August- Ron: There are reasons for the fact that there are no em- ployees here today. If you would care to discuss these you can reach me at 434-5304 or 973-6039 after 100 I hope you find this situation serious enough to warrant your attention. /s/ Jan To this note Ross attached a note in an envelope, on the outside of which was: "Ron- Please read first." It was dated 16 August (though the 6 appears to have been marked over an 8), and reads: 2 The Respondent asserts that St James, as a property manager, was a managerial employee, however, there was no indication at the hearing that St James' status was a substantive issue and it was not fully litigated Though her status appears immaterial to the issues here, there is insuffi- cient evidence to support the conclusion that she is managerial See dis- cussion of White's status, infra There is no evidence of her salary or that she exercised independent discretion on behalf of the Respondent TRIAD MANAGEMENT CORP 1241 Ron, Before you read this letter, I would like you to know that I am not a part of the matter enclosed nor do I agree with the issue & the people involved Sincerely, /s/ Cindy Ross On 18 August Vliet, White, Aebersold, and Clark did not report to work, nor did a secretary who was in- structed to report by Vhet and who is not involved in this matter Although the parties differ somewhat in detail con- cerning what was said thereafter and when Duprey (who was out of town) and then Cretney contacted the em- ployees concerning the matter. There is no question that Duprey got Vliet's note (through Cretney) and that there was a management decision to terminate the four em- ployees Thus, Duprey testified on examination by his counsel: So again , I reinforced my feelings that Jan had enticed Peggy and Kim to walk out. I did say that I felt that the issues were overshadowed by the action . The fact that they didn't show up for work. They essentially walked out on the job, and let ev- erybody know it, and had tried to get other people to go out with them. The word was all over the corporation, and everybody knew what was going on, and I honestly felt that we were left with no choice but to discharge them I had talked to Bill and he said that he couldn't- none of us had been able to get a hold of Kim There was either no answer, the line was busy, we hadn 't been able to get a hold of her all during that week, as a matter of fact So Peggy and I ended the discussion I said, I don't feel we have any choice in the matter but to terminate you She said, then we're all fired, and I said , well, yes B Analysis and Concluding Findings On these facts the General Counsel contends that the Respondent discharged White, Abersold, and Clark for engaging in a protected concerted work stoppage and thereby violated Section 8(a)(1) of the Act The Respondent contends that (1) the individuals were not discharged, (2) they had not engaged in any activity protected by the Act, (3) even if their activity was pro- tected and concerted it was unknown to the Respondent, and (4) White was a managerial employee and not enti- tled to the protection of the Act It is clear from the undisputed evidence in this matter that the four employees acted in concert and engaged in a work stoppage on 18 August It is further clear that the Respondent knew they were acting in concert and discharged them for having engaged in the work stop- page. Indeed, Duprey so testified in his direct examina- tion . Thus, the only questions of substance in this matter are (1) whether the work stoppage was protected activi- ty, and (2) whether, if protected, White is entitled to the protection. 1 The work stoppage was protected concerted activity The Respondent basically contends that the employees engaged in the work stoppage on 18 August to protest the management decision of giving a wage increase to Elizabeth St James Inasmuch as wage increases to em- ployees are strictly a management decision having no bearing on wages, hours, and terms or conditions of other employees, the protest is outside the scope of pro- tected activity As the Respondent argues, there are limits to the pro- tection of employee activity. Thus, the Supreme Court has said. It is true, of course, that some concerted activity bears a less immediate relationship to employees' in- terests as employees than other such activity We may assume that at some point the relationship be- comes to attenuated that an activity cannot fairly be deemed to come within the "mutual aid or protec- tion" clause. [Eastex, Inc. v. NLRB, 437 U S. 556, 567-568 (1978) ] And the Court went on to state in a footnote In addition, even when concerted activity comes within the scope of the "mutual aid or protection" clause, the forms such activity permissibly may take well depend on the object of the activity. [437 U S at 568 fn 18 ] Thus, the issue here is whether the object of the pro- test and the manner of protesting were within the perim- eter of Section 7. In Koch Supplies, 249 NLRB 1144 (1980), enf. denied 646 F.2d 1257 (8th Cir. 1981), em- ployees complained about a new hire's wage package and vacation benefits that were allegedly contrary to company policy The Board held it was protected for them to protest this. The protest was concerted, thus the discharges were violative of Section 8(a)(1) The Eighth Circuit denied enforcement on finding that the employ- ees had not acted in concert Here, as in Koch, the object of the protest by employ- ees was the wage package given another employee While such may involve less a relationship to their own wages, hours, and terms or conditions of employment, such was not held by the Board to be so attenuated as to lose protection of the Act. Here the protesting employees, although having re- ceived wage increases themselves within the previous year, nevertheless had agreed to some "belt tightening" that involved a reduction in earnings for the project co- ordinators. They testified without contradiction they felt that the wage increase to St. James was unfair In such circumstances it is certainly not unreasonable to conclude that the wage increase to one of a small number of employees could adversely affect the potential for wage increases to others In the total context of this situation, I conclude there was a sufficient nexus between the wage increase given to St. James and the concerns of other employees to make protesting the wage increase protected under the 1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Act Indeed, to conclude otherwise would require em- ployees to act at their peril in protesting matters arising out of their employment situation. My review of the Board cases suggest that such is not the appropriate standard and that where the matter under protest arises out of the employment situation and arguably involves their own terms and conditions as employees, then the act is protected Although there may be an issue, as indicted by the Su- preme Court in Eastex, of weighing the employees' act against the matter of their concern, I conclude here that a 1-day work stoppage is not so unreasonable as to viti- ate otherwise protected activity Accordingly, I con- clude that by engaging in the work stoppage on 18 August 1986, the employees were acting in concert under the protection of Section 7 of the Act The Re- spondent's discharge of them for having done so violated Section 8(a)(1). The fact that the Respondent may have intended that Aebersold and Clark could reapply does not make lawful their discharges 2. The status of Sandra White At the time material, Sandra White's title was corpo- rate financial manager. According to the written employ- ment agreement with her dated 22 July 1985, she basical- ly was in charge of preparing financial statements for the various Triad corporations, preparing financial state- ments and reports for various condominium and apart- ment associations, and doing the Respondent's payroll As of 22 July 1985, her compensation in this position was $19,500 a year which was increased to $20,500 a year on 2 December 1985. Shortly thereafter, Vliet's salary was increased also to $20,500 per year Both were paid $3000 per annum more than the next highest paid employee. The Respondent contends that White was a managerial employee and not entitled to protection of the Act, given her duties and salary, that she executed at least one con- tract on behalf of the Respondent, and she served on a management committee studying the salary structure and organization of employees There is no contention that she supervised any em- ployees or ever exercised any of the authority set forth in Section 2(11) of the Act. Managerial employees are not entitled to protection of the Act NLRB v Bell Aerospace Co, 416 U S 267 (1974) There the United States Supreme Court quoted with approval from Palace Laundry Dry Cleaning Corp, 75 NLRB 320, 323 fn 4 (1947), in which the Board stated that management employees are those who "for- mulate and effectuate management policies by expressing and making operative the decisions of their employer" The Board and the courts have also focused on the inde- pendence with which they exercise "discretion" See, e g, Simplex Industries, 243 NLRB 111 (1979). Although the evidence shows that White is relatively high paid among the Respondent's employees-indeed is on the same level as an admitted supervisor-she was a relatively long-term employee with 6 years. She had worked in various positions with the Company, and had been in her current job, as defined by the contract, slightly over a year. There is nothing in her employment agreement that would indicate that White had the authority to exercise discretion on the part of the Respondent in any matter. Rather, it appears that her job was essentially ministerial. The independent financial decisions were made by Wil- liam Cretney, the treasurer, who shared an office with White. Counsel offered into evidence a contract signed by White on behalf of the Respondent, however, there is no indication that she negotiated any of its terms Indeed, it is not apparent who drafted the contract or who gave authorization for it to be entered into by the Respondent. Although it appears that White executed a contract bind- ing the Respondent, such does not imply exercise or management discretion Inasmuch as White does not supervise any employee, and inasmuch as the evidence is essentially nonexistent that she had or exercised independent discretion on the part of management, I conclude that she was not a man- agement employee. I conclude that White was entitled to protection of the Act as a rank-and-file employee III THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The unfair labor practices found above, occurring in connection with the Respondent's business, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof within the meaning of Section 2(6) and (7) of the Act IV. THE REMEDY Having concluded that the Respondent discharged three of its employees on 18 August 1986 in violation of the National Labor Relations Act, I shall order that it cease and desist therefrom and take certain affirmative action, including offering immediate and full reinstate- ment to Sandra White, Peggy Aebersold, and Kimberly Clark to their former jobs or, if those jobs no longer exist, to substantially equivalent positions of employment, and make them whole for any loss or other rights and benefits they may have suffered as a result of its discrimi- nation against them, with interest as provided for in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB 651 (1977) 3 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Triad Management Corporation, Ann Arbor, Michigan , its officers, agents, successors, and assigns, shall 9 See generally Isis Plumbing Co, 138 NLRB 716 (1962) " If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses TRIAD MANAGEMENT CORP I Cease and desist from (a) Discharging or otherwise discriminating against employees because they engaged in concerted activity protected by Section 7 of the Act (b) In any other manner interfering with, restraining, or' coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate `the policies of the Act. (a) Offer immediate and full reinstatement to Sandra White, Peggy Aebersold, and Kimberly Clark their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority or any other rights or privileges previously en- joyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy sec- tion of the decision. (b) Remove from their personnel records any refer- ence to the discharges of Sandra White, Peggy Aeber- sold, and Kimberly Clark and notify them in writing that this has been done, and that the discharges will not be used against them in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- 1243 roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (d) Post at its Ann Arbor, Michigan facility copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "