Chandler Associates

National Labor Relations Board - Board Decisions

Sep 25, 1975

220 N.L.R.B. 730 (N.L.R.B. 1975)

730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilson Kaplan , an individual , in partnership with Ray-
mond Kramer , Harold Kramer, Louis Sackin and
Samuel Wolfe, a Co-partnership d/b/a Chandler
Associates, both t/a Piscataway Associates, a/k/a
Pleasant View Gardens ; Wilson Management Corp.
and Local 68, International Union of Operating En-
gineers, AFL-CIO, Petitioner. Case 22-RC-6351
All building superintendents, assistant building
superintendents, and maintenance mechanics
employed by the Employer at its Piscataway,
New Jersey, location, excluding all office cleri-
cal employees, professional employees, guards,
the resident manager, the property manager,
and all other supervisors as defined in the Act.
September 25, 1975
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On May 2, 1975, the Regional Director for Region
22 issued his Decision and Direction of Election in
the above-entitled proceeding, wherein he found that
the six building superintendents at the Employer's
Pleasant View Gardens apartment complex are not
supervisors within the meaning of the Act, and in-
cluded them in the bargaining unit. Thereafter, in
accordance with Section 102.67 of the National La-
bor Relations Board Rules and Regulations, Series 8,
as amended, the Employer filed a request for review
on the ground that, in concluding that the building
superintendents are not supervisors, the Regional Di-
rector made clearly erroneous findings of fact which
prejudicially affected the rights of the Employer.
On May 29, 1975, the National Labor Relations
Board by telegraphic order granted the request for
review and stayed the election pending decision on
review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case and makes the following findings:
Piscataway Associates a/k/a Pleasant View Gar-
dens is engaged in the ownership and operation of
approximately 1,200 garden apartments on a 50-acre
tract in Piscataway, New Jersey. The apartment com-
plex is subdivided into 6 sections, each of which con-
tains approximately 200 units, and is maintained by
at least 2 persons: a building superintendent and at
least 1 assistant building superintendent. A mainte-
nance mechanic works in all six sections. A resident
manager is responsible for day-to-day operations of
the entire complex, and Employer's property manag-
er is on duty 5 to 6 days a week.
The Regional Director concluded, in agreement
with the Petitioner, that Employer's building superin-
tendents are not supervisors within the meaning of
the Act and included them within the following unit:
The Employer contends that the building superinten-
dents possess the necessary authority to qualify as
supervisors and, therefore, that they should be ex-
cluded from the bargaining unit. We find merit in the
Employer's position.
The building superintendents and assistant build-
ing superintendents perform the usual tasks associat-
ed with their jobs and required in the upkeep of resi-
dential rental property; i.e., performing minor
electrical, masonry, and carpentry work. The build-
ing superintendent lays out the daily work schedule,
assigns repair jobs to the assistants, and often in-
spects the assistant's work. The Employer's property
manager testified that "the superintendent is totally
in charge of each section" and "has to use complete
independent judgment as to everything that happens
within a section of 200 units," including deciding
whether to call in an outside contractor from a list
supplied by the Employer. However, the assignments
of specific tasks to be performed by the assistant are
usually made according to his experience and train-
ing and frequently upon agreement between the
building superintendent and his assistant.
The record discloses that, while the Employer in-
terviews the applicants and hires the assistants, the
building superintendents effectively recommend for
hire. The Employer maintains a file of qualified ap-
plicants for an assistant's position. The building su-
perintendents have access to this file and can select
which applicant should be chosen to fill the position.
When a position is open the Employer usually asks
the building superintendent if he knows of anyone
qualified to fill it. At the hearing the parties stipulat-
ed that the building superintendents' recommenda-
tions are not followed 100 percent of the time since
the Employer has certain policies, such as not hiring
felons, from which it would not deviate. However, in
our view, this does not diminish the building superin-
tendents' ability to effectively recommend for hire.
In fact, there was specific testimony that Perete, the
section one building superintendent, hired his son-in-
law as assistant, and that Borges, the section 5 build-
ing superintendent, hired a close friend as his assis-
tant.
Building superintendents also may effectively rec-
ommend that an assistant be transferred to a differ-
ent section. When a building superintendent and his
220 NLRB No. 119
CHANDLER ASSOCIATES
assistant were not able to work together satisfacto-
rily, the superintendent recommended that the assis-
tant be transferred . At the superintendent 's request,
the Employer effectuated the transfer.
The Regional Director suggested that the testimo-
ny concerning the building superintendents' promo-
tion of assistants to higher wage levels was confusing
and failed to establish that superintendents have the
authority to promote their assistants. We do not
agree . The record shows that the Employer has a pol-
icy of automatic advancement to higher wage levels
for assistant building superintendents after 3 months
and 1 year on the job. However, the testimony is
uncontradicted that building superintendents have
the authority to, and frequently do, promote assis-
tants to higher wage levels prior to the time specified
above for automatic advances. These advances are
given by the superintendents to their assistants on
the basis of excellent work performance, and are ap-
proved by the property manager automatically.
The indicia of supervisory authority enumerated in
731
Section 2(11) of the Act are listed in the disjunctive
and the possession of any one of these criteria is suf-
ficient to elevate an employee to the status of super-
visor.'
On the basis of the foregoing, we find, contrary to
the Regional Director, that the Employer's building
superintendents have the authority to effectively rec-
ommend for hire, to effectively recommend for trans-
fer, and to promote their assistants to higher wage
levels, and are therefore supervisors as defined by the
Act. Thus, the building superintendents shall be ex-
cluded from the bargaining unit herein.
Accordingly, the case is hereby remanded to the
Regional Director for Region 22 for the purpose of
conducting an election pursuant to his Decision and
Direction of Election, as modified herein, except that
the eligibility date therefor shall be that immediately
preceding the date of issuance of this Decision. [Ex-
celsior footnote omitted from publication.]
'Ace Tool Engineering Co, Inc., 207 NLRB 104 (1973); Great Central
Insurance Company, 176 NLRB 474 (1969)