DIRA Realty, LLC/CMP Improvements, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 14, 2010

29-CA-029585 (N.L.R.B. May. 14, 2010)

JD(NY)–16–10
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
DIRA REALTY, LLC/CMP IMPROVEMENTS, INC.
and Case No. 29-CA-29585
LOCAL 1031, UNITED SERVICE WORKERS UNION,
IUJAT
DIRA REALTY, LLC/CMP IMPROVEMENTS, INC.
and Case No. 29-CA-29722
ANTHONY DAVIDSON, An Individual
Ashok C. Bokde, Esq., Counsel for the
General Counsel
Jonathan D. Farrell, Esq. and Alexander
Leong, Esq., Counsel for the Respondent
Andrew R. Grabois, Esq., Counsel for the
Union
DECISION
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case in Brooklyn, New York
on November 17, 2009 and February 9 and 11, 2010. The charge in Case No. 29-CA-29585
was filed on April 29, 2009 and the charge in Case No. 29-CA-29722 was filed on July 23, 2009.
On July 29, 2009, the Regional Director issued a Consolidated Complaint which alleged as
follows:
1. That on or about April 27, 2009, the Respondent by Joseph Popack, its owner, (a)
interrogated employees about their union activities; (b) directed employees not to sign union
cards; (c) directed employees not to join the Union; and (d) directed employees to persuade
other employee not to sign union cards.
2. That on or about April 28, 2009, the Respondent for discriminatory reasons
discharged Anthony Davidson.
3. That on or about April 29, 2009, the Respondent by Isaac Hagar, its manager,
interrogated employees about their union activities.
4. That in or about May 2009, the Respondent by Hagar, created the impression of
surveillance.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following
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FINDINGS AND CONCLUSIONS
I. Jurisdiction
The parties agree and I find that the Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act. It also is agreed and I find that the
Union is a labor organization within the meaning of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
a. The Discharge of Anthony Davidson
The Respondent is a real estate company that owns and operates a number of
apartment buildings in Brooklyn, New York. The Respondent’s managers are Joseph Popack,
an owner, and Isaac Hagar the Operations Manager.
Anthony Davidson was hired by a predecessor company which was taken over by the
Respondent in 2004. He was a superintendent which means that in addition to getting a salary,
he also received a “free” apartment. Also, he had an arrangement with the former owner
whereby he rented the garage to the building he lived in and in turn rented out spaces to the
tenants or others who wanted to park their cars. In this regard, he acted as a kind of
concessionaire.
When the building was taken over by the Respondent, Davidson continued to be the
superintendent but a dispute arose between him and the new owners over the garage because
the new owners wanted to make arrangements with another person who was willing to pay
more for the concession.
On June 16, 2008, Davidson was fired and told to vacate the garage space. He also
was told to either pay for or vacate his apartment. This generated legal proceedings between
the Respondent and Davidson about (a) his entitlement to unemployment insurance benefits
and (b) relating to his continued occupancy of the apartment and the garage space. (He did not
pay any rent for the apartment and stopped making monthly payments for the garage).
There is no contention here that the discharge of Davidson in 2008 was illegal under the
NLRA. In fact, it appears that a reason he was discharged was because, contrary to New York
law, he failed to occupy an apartment in the building in which he was the superintendent. In this
regard, the Unemployment Insurance Appeal Board, based on a hearing before an
Administrative Law Judge, (where Davidson failed to appear), issued a Decision dated April 20,
2009 denying his claim for unemployment benefits.
By letter dated March 11, 2009, and while the various legal proceedings were still
pending, the Company offered to employ Davidson, as a handyman, at the minimum wage for
an apartment building complex located at 131-141 East 21st Street, Brooklyn, New York. This is
a six story multiple dwelling and has about 150 units. On or about March 18, Davidson met with
the Company and accepted this position. Davidson started working on Monday, March 23,
2009 and he worked, with other porters, under the direction of superintendent Wycliffe
Providence.
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That the Employer offered to reemploy Davidson, given their legal disputation, seemed
surprising to me. 1 When asked, Popack testified that when he made the offer he didn’t expect
Davidson to accept; but that when he did accept, he (Popack) felt that he had no choice but to
accept Davidson’s decision.
While Davidson’s unemployment claim was finally determined against him on April 20,
2009, the Employer’s eviction suit was still ongoing during Davidson’s second period of
employment with the Company.
The evidence indicates that Davidson, along with two other employees, visited the
Union’s office on April 14, 2009 and met with Anna Kuba. Davidson was given a group of union
authorization cards and he signed his card on that date. Davidson testified that during the week
after he signed his card, he solicited signatures from about 30 other employees by visiting them
at their homes. 2
According to Davidson, he collected, (either directly or via other employees), about 75
signed union authorization cards and gave them to Kuba on April 27, 2009. Davidson testified
that he did not engage in any conspicuous solicitation and did not disclose his union activity to
supervision or management by way of union buttons, displays or conversations. For example,
Davidson conceded that he never solicited his superintendent to sign a card and never had any
conversations about unions or union activities with Providence or anyone else in management.
On April 27, 2009, Davidson handed into the Union about 75 signed authorization cards.
Davidson was discharged on April 28, 2009.
The Union filed a representation petition on April 29, 2009 and a faxed copy of this was
not received by the Company until some time on April 30, 2009. Another copy of the petition,
with an accompanying letter, was sent by the Regional Office to the Company by letter dated
May 1, 2009. Accordingly, the General Counsel cannot assert that the Company’s receipt of the
representation petition was the triggering event to Davidson’s discharge.
To prove direct knowledge of Davidson’s union activity prior to his discharge, the
General Counsel adduced testimony from an employee named Dansford Anglin. This
testimony, which related to a conversation that Anglin allegedly had with Popack, was confused
as to when it happened.
Initially, Anglin testified that even before Davidson was rehired (and while Davidson was
on unemployment), Popack asked him if anyone had asked him to sign up for a union. Anglin
testified that Popack pressed and asked if it was Davidson who had asked him to sign up and
that he then admitted that Davidson had done so. According to Anglin, Popack told him that he
didn’t want Anglin to be involved with the Union and that he, (Popack), and Davidson had
problems and that Davidson was trying to hurt him. He also testified that Popack asked him to
speak to the other employees and find out if the union thing was real.
After further questioning, Anglin recalled that the above described conversation may
have occurred about two days after he signed an authorization card which was on April 17,

1 As a handyman, Davidson would have received a much lower wage than what he earned as a
Superintendent. Also, he would not be entitled to a free apartment.
2 A card signed by Dansford Anglin indicates that it was signed on April 17, 2009.
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2009. During cross examination, Anglin could not be certain if this or a second conversation
with Popack took place before or after Davidson had been discharged.
With respect to the above, Popack acknowledged that he did speak to Anglin about the
Union, but that this occurred after the representation petition was filed. He denied interrogating
Anglin and states that he told him that if there was a union contract there could be a lot of work
rules and that this might interfere with the hours that Anglin could work at another job that he
had with another company. Popack testified that he told Anglin, among other things, about
union dues.
For its part, the Respondent asserts that Davidson was discharged because of his poor
work performance since his re-employment in March 2009. 3
Davidson worked under the direction of Wycliff Providence, someone who struck me as
a no-nonsense type of person. Providence testified that on one occasion, Davidson was given
an assignment to do a repair and that he took three hours to do a job that should have taken 15
minutes. He also testified that on another occasion, Davidson took three hours to do a job
which he, (Providence), estimated should have taken an hour. Finally, Providence testified that
on April 27, 2009, he assigned Davidson to replace a door and lock in a tenant’s apartment and
that Davidson did not complete this work on that day or do it correctly. Regarding the door
repair event, Davidson essentially concedes that there was a problem on April 27, 2009. More
significantly, the Respondent called the tenant to testify about this transaction and she testified,
among other things, that on the morning of April 28, when Providence came to fix the lock, he
told her that “the guy had been messing up… that he had a bad attitude… that he wouldn’t listen
to him… and that he planned on firing him.” As noted above, Davidson was fired later that day.
b. Events after Davidson’s Discharge
According to Anglin, he received a phone call from Hager after the petition had been
filed wherein Hager said that he saw Anglin on the way to a union meeting and asked how it
went. This alleged conversation is completely denied by Hager.
The General Counsel called another employee, whose name is Ohba Young, to testify in
this proceeding. Mr. Young testified that on the day after Davidson was fired, he was in the
office when Popack asked if Young “had anything to tell him.” According to Young he
responded; “What, about the Union,” and that Popack said “yes.” Young testified that he had
taken Davidson to the different buildings managed by the Respondent and when Popack asked
why, he replied that he didn’t see anything wrong with it.
According to Young, a few days later, Popack asked if he knew anything about the
Union and what was going on. He states that he told Popack that he didn’t know anything and
that he only helped Davidson with the cards. According to Young, Popack said that the Union
was no good and that Young should approach him about working things out.
Popack testified that he had a conversation with Young on the morning of May 4 or 5,
2009. He testified that after his usual greetings to employees, by asking how things were going
and “what’s up,” Young volunteered that he had helped Davidson sign union cards. According

3 Davidson was also absent from work three out of 25 working days after being rehired. However, on
one of those days, Davidson had to appear in court in relation to a pending lawsuit between him and the
Company.
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to Popack, he was completely shocked because he didn’t expect Young to respond to his
greeting in that way. Popack testified that “I felt like kind of hurt… and surprised.” Popack states
that Young replied that there was nothing wrong with going around having union cards signed
and that he said alright and that this is where the conversation ended.
Subsequent to Davidson’s discharge and the conversations with Young and Anglin, the
Union withdrew its petition. But on May 14, 2009 the Union filed a new petition and an election
was held on June 18, 2009. The Tally of Ballots showed that 40 votes were cast for the union,
43 votes were cast against union representation and 18 votes were challenged.
Notwithstanding the closeness of the vote, the Company withdrew its challenges and voluntarily
recognized the Union. Thereafter, the parties have been engaged in negotiations for a contract
and according to a union representative, they were at the time of this hearing, pretty close to
reaching an agreement. The Respondent points to its dealings with the Union as evidence of its
lack of anti-union animus.
III. Analysis
With respect to the discharge of Davidson, there are three basic questions. First, was
the Respondent’s management aware of Davidson’s union activity before he was discharged on
April 28, 2009? Second, if knowledge can be imputed to the Respondent, has the General
Counsel made out a prima facie case, in accordance with Wright Line that the Respondent was
motivated, at least in part, by Davidson’s union activities? And finally, were there any events
that occurred after Davidson’s rehire that could reasonably have given the Employer sufficient
reason to discharge Davidson notwithstanding any union activity on his part.
Because Davidson’s discharge, occurring within about a week and a half after he began
soliciting employees to sign union authorization cards, the timing, by itself, can be construed as
circumstantial evidence of both knowledge and anti-union animus. Best Plumbing Supply, 310
NLRB 143, 144 (1993). On the other hand, an employer may be able to overcome those
inferences if it can show that its decision was motivated by some intervening event that would
justify disciplinary action. Dallas & Mavis Specialized Carrier Co., 346 NLRB 253, (2006).
The odd thing about this case is that having been previously discharged, the
Respondent was under no obligation to reemploy him. Nevertheless, the Company offered to
rehire Davidson despite its ongoing legal battles with Davidson over the apartment that he
refused to vacate when he was discharged from his job as a superintendent. And despite the
fact that the offer may have been made with the expectation that it would be rejected, Davidson
nevertheless decided to return to work as a handyman at a salary below what he had previously
earned as a superintendent. (And without a free apartment).
The facts show that about a month after his rehire, Davidson became involved with the
Union and started to solicit other employees to sign union authorization cards. This occurred
during the period from about April 14 to April 27, 2009. The solicitation of union cards was
carried out in a surreptitious manner, but with so many of the employees approached, it seems
very possible that management would have become aware of this activity.
The General Counsel tried to prove direct knowledge of union activity by adducing
testimony from Dansford Anglin who described a conversation he had with Popack regarding
Davidson and union cards. Joseph Popack, although acknowledging that he spoke to Anglin
about the Union, placed the conversation after Davidson was discharged. And Anglin’s
testimony showed that he was not really sure if this conversation took place before or after
Davidson was discharged. Indeed, Anglin placed the first conversation as having taken place
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even before Davidson was rehired and this, at least to me, does not make much sense. So,
although I am not going to say that Anglin was deliberately giving false testimony, it seems to
me that his recollection of the timing of the conversation is too hazy to rely on. Thus, given
Popack’s assertion that his conversation with Anglin took place after Davidson’s discharge, I am
not going to rely on Anglin’s testimony to prove that the Respondent had knowledge of
Davidson’s union activities prior to the discharge.
Although the timing of Davidson’s discharge in relation to his solicitation of union
authorization cards is suspicious, I do note that Wycliff Providence, whose testimony I credit,
was unsatisfied with Davidson’s work performance and there is no dispute that there was a work
related event that occurred on April 27, 2009. As noted above, Davidson was assigned to
change the door and lock in a tenant’s apartment and did not complete that work on that date.
The tenant, who has no interest in the outcome of this case, credibly testified that after
Davidson worked on the door, the lock still did not work and that she had to call Providence to
get it fixed. She testified that Providence did the work on the morning of April 28 and that he
told her that he was not pleased with Davidson and intended to fire him.
The facts show that Davidson was fired later on April 28, 2009 and that on the same
day, the Union filed an RC petition with the NLRB’s Regional Office. The Employer was sent a
fax of the petition that was received on or about April 29, 2009.
Apart from the evidence regarding timing, which is somewhat ambiguous, there is little or
nothing to show anti-union animus on the part of the Employer. To the extent that employees
Anglin and Young testified about conversations they had with Popack and Hagar, there is
nothing in those conversations which would tend to indicate any propensity to retaliate against
employees who support the union. At most, the evidence shows a few instances of
interrogation and that Popack, on one occasion, told Young that a union was no good and that
Young should approach him about working things out.
There is no evidence that the Respondent made any threats to employees; that it made
any promises in order to persuade employees to vote against the Union; or that it took any
disciplinary actions against any other employees who supported the Union. (Such as Anglin or
Young). In fact, the evidence shows that after an election was held, (and despite the fact that
challenges were determinative of the outcome), the Employer, instead of seeking to delay the
outcome, voluntarily recognized the Union and commenced negotiations.
In light of the above, I am going to conclude that on balance, the General Counsel has, if
anything, made out a weak prima facie case, but that the Respondent has demonstrated that it
would have discharged Davidson for other non-discriminatory reasons. 4 Accordingly, I shall
recommend that this allegation of the Complaint be dismissed.
Although I think that Anglin’s recollection as to when he spoke to Popack was too
indeterminate to conclude that it occurred before Davidson’s discharge, it is my opinion, based
on demeanor, that his description of the substance of his conversations with Popack and Hagar

4 In my opinion, the question as to whether Wycliff Providence had the authority, on his own, to
discharge Davidson is of little consequence. There is a degree of variance between the superintendents
employed by the Respondent in relation to the number of porters or handyman that each directs. This
relates to the size of the apartment buildings to which they are assigned. Providence is the
superintendent of one of the larger apartment complexes and I credit his testimony that he decided to fire
Davidson.
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are believable. Additionally, I conclude that Young’s testimony regarding his conversation with
Popack in early May 2009 is believable. I therefore conclude that in this respect, the
Respondent unlawfully interrogated employees concerning union activity. See Rossmore
House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11 v.
NLRB, 760 F. 2d 1006 (9th Cir. 1985).
On the other hand, I do not think that when Popack merely asked Anglin if he had
attended a union meeting and how it went, that this by itself, is sufficient to prove the General
Counsel’s allegation that the Respondent engaged in the “impression of surveillance.” Further,
except as found herein, I conclude that the other allegations of the Complaint have not been
proven.
Conclusions of Law
By interrogating employees regarding their union sympathies or support and by
interrogating employees about the union sympathies of other employees, the Respondent has
violated Section 8(a)(1) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
ORDER
The Respondent, Dira Realty, LLC/CMP Improvements, Inc., its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
(a) Interrogating employees about their sympathies or support for Local 1031, United
Service Workers Union, IUJAT or asking them to find out how other employees feel about the
Union.
(b) In any like or related manner, interfering with, restraining or coercing employees in
the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facilities in Brooklyn, New
York, copies of the attached notice marked “Appendix ” 5 Copies of the notice, on forms
provided by the Regional Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent to

5 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the
notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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ensure that the notices 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, or sold the business or the facilities involved
herein, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Respondents at any time since May
1, 2009.
(b) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., May 14, 2010.
_____________________
Raymond P. Green
Administrative Law Judge
JD(NY)–16–10
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 representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT interrogate employees about their sympathies or support for Local 1031,
United Service Workers Union, IUJAT or ask them to find out how other employees feel about
the Union.
WE WILL NOT in any like or related manner, interfere with, restrain or coerce
employees in the rights guaranteed to them by Section 7 of the Act.
Dira Realty, LLC/CMP Improvements, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.