Elal Realty Management Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1986

279 N.L.R.B. 6 (N.L.R.B. 1986)

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elal Realty Management Inc. and Local 32B-32J,
Service Employees International Union, AFL-
CIO. Case 29-CA-10463
31 March 1986
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 19 March 1985 Administrative Law Judge
Marion C. Ladwig issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
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 brief and has
decided to affirm the judge's rulings , findings, i and
conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Elal Realty
Management Inc., Queens, New York, its officers,
' The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect 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
The judge relates that the assignment of the general partnership inter-
est, by Murray Glantz , to an as-yet-unincorporated corporation (64-34
102d Street Realty Corp.) was contingent upon Elisha Najjar 's "acquiring
'a majority in interest of the limited partners "' More correctly , the as-
signment was contingent on the approval of a majority in interest of the
limited partners . "[t]his assignment is further made subject to and shall
not become effective until it is approved , in writing , by a majority in in-
terest of the limited partners of the Partnership " Additionally, in his
Conclusions of Law, the judge inadvertently stated that the discharges
occurred on 2 April 1983 instead of on 29 April 1983
2 The judge found that the Respondent violated Sec 8(a)(3) and (1) of
the Act by discharging employees Jose Rivera, Jorge Melendez, and Fer-
nando Melendez The Respondent has excepted , contending , inter alia,
that the three men were not its employees . The Respondent argues that
because it never employed the three men, it could not have discharged
them
We affirm the judge's finding that the three men were Elal 's employees
and that the Respondent unlawfully discharged them In so doing, we
need not pass on whether or not Elal employed these employees between
1 April and 10 April 1983-the period when Elal initially managed the
apartment building Rather , we have focused particularly on 29 April
1983-the day that Elal resumed management of the apartment building
and the day of the discharges On that day , Rivera and Jorge Melendez
both worked full shifts and Charles Shohet , Elal's manager, assigned
Rivera additional duties to do that evening Only after these events did
Shohet give Rivera and Jorge Melendez their termination letters (Jorge
was also given his brother Fernando 's letter )
Based on the above , we find that the Respondent employed the three
employees on 29 April and subsequently discharged them for unlawful
reasons Further, assuming arguendo that the three men were never em-
ployed by Elal, we would find that the employees were not hired by the
Respondent for discriminatory reasons
agents, successors , and assigns, shall take the action
set forth in the Order.
Amy S. Krieger, Esq., for the General Counsel.
Joel Spivak, Esq. (Solotoff & Spivak), of Great Neck, New
York, for the Respondent.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This
case was tried in Brooklyn, New York, August 13-14
and October 1, 1984. The charge was filed May 9, 1983,'
and amended at the trial, and the complaint was issued
June 29.
After acquiring an apartment building through the
debtor-in-possession in a bankruptcy proceeding, the
Company notified the three service employees that their
employment was terminated and refused to recognize
and bargain with their union. The primary issues are
whether the Company, the Respondent, (a) discrimina-
torily discharged the employees and (b) unlawfully re-
fused to recognize and bargain with the Union in viola-
tion of Section 8(a)(1), (3), and (5) of the National Labor
Relations Act.
On the entire record,2 including my observation of the
demeanor of the witnesses , and after consideration of the
briefs filed by the General Counsel and the Company, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Elal Realty Management Inc., a New York corpora-
tion, manages a rental apartment building in Queens,
New York, where it annually derives over $500,000 in
gross revenues and purchases goods valued over $50,000
directly from outside the State. The Company admits
and I find that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and that the Union, Local 32B-32J, Service Employees
International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
H. ALLEGED UNFAIR LABOR PRACTICES
A. Acquisition of Bankrupt Business
In November 1978 Forest Hills Associates (a limited
partnership) acquired a 159-unit apartment building at
64-34 102d Street, Forest Hills, Queens, New York, for
the purchase price of $4,250,000. The property was en-
cumbered with a first mortgage of $925,000 and a second
mortgage of $700,000 requiring monthly payments on
principal and interest of $12,946.66. The remaining half
of the purchase price ($1,625,000) was covered by a pur-
I All dates are in 1983 unless otherwise indicated
2 As corrected by the court reporter, the sentence at p 65, L 9 of the
transcript reads "Management does not want any members of the union
working here "
279 NLRB No. 2
ELAL REALTY MANAGEMENT
chase money mortgage , constituting a third mortgage on
the property. (G.C. Exh. 9.)
The operation of the business, through various man-
agement agents , was not a success . The net income from
the apartments was insufficient to make the mortgage
payments and other expenses. One of the tenants, Eugene
Leon (the regional personnel director for Marriott Cor-
poration at JFK International Airport), who impressed
me most favorably as a perceptive and sincere witness,
credibly testified about how the condition of the building
and the services to the tenants were allowed to deterio-
rate. He testified that overall the tenants were pleased
with the services of the three building service employees,
Superintendent Jose "Pepe" Rivera, handyman Fernando
"Chu" Melendez, and porter Jorge "Cholo" Melendez.
On the other hand, he recounted the "nonservices" of
the management. (Tr. 58-59.) He described the leaking
of the roof, resulting in damage to apartments and the
smell of mildew. (Tr. 70.) There were the recurring
problems of boiler breakdowns and no heat in winter, no
drinking water available, contractors not taking care of
elevators, and contractors not coming in at all. (Tr. 59,
69.) He recalled that "when we would complain let's say
to Pepe [Superintendent Rivera, who had been there
since 1971], he would say I've asked for the materials,
they're not here. I've asked for this machinery, it's not
here. I've asked for this plaster or cement, it's not here.
I've asked for the painter to come in, it's not here. When
we would call, management would hang up the phone
on the tenants. . . . In essence, if I may say for the
record, the [rent] strikes that we had on two or three oc-
casions was not because the crew was not giving us the
service, but because management was not providing the
necessary equipment for the job to be done." (Tr. 67.)
The deficits continued under a rent administrator who
was appointed in a court proceeding brought by the ten-
ants of the building, and also under a receiver appointed
February 26, 1982, in a foreclosure proceeding brought
on the $700,000 second mortgage (G.C. Exh. 7). On May
6, 1982, Century Operating Corp., serving under the re-
ceiver as managing agent of the building, signed an
assent to be bound by the Union's 1982-1985 apartment
building agreement (G.C. Exh. 19) for a bargaining unit
of building service employees.
On November 26, 1982, Forest Hills Associates (the
Debtor) filed a voluntary petition for reorganization
under Chapter 11 of the Bankruptcy Code. By early Jan-
uary 1983 Elisha Najjar had decided to acquire the
apartment building through the bankruptcy proceeding.
He is the president of both the Respondent Company,
Elal Realty Management Inc. (the Company) and the re-
lated corporation, 64-34 102d Street Realty Corp. (the
Realty Corporation).
Acting upon Najjar's behalf, on January 13 an attor-
ney for the Debtor filed in the bankruptcy court an "Af-
fidavit in Opposition to Application to Appoint a Trust-
ee" (Tr. 502, G.C. Exh. 8). The document informed the
court that the Debtor intended to seek court authority to
substitute Najjar for Murray Glantz as the general part-
ner of the Debtor. The document in effect acknowledged
that unsatisfactory operation and management had been
the cause of the tenant unrest, and that the new manag-
7
ing agent (with the same building service employees)
was operating the building to the satisfaction of the ten-
ants. The affidavit pointed out that after the filing of the
Chapter 11 petition, "the Debtor retained the firm of E.
Osborne Smith , Inc. as managing agent to operate the
property," that "The Operation of the Building by the
Managing Agent has been more than satisfactory for all
concerned," and that "The tenants, who prior to the
commencement of these proceedings, had been very
vocal in their criticism of the Building's operations are
now pleased."
On February 16, Najjar and Glantz filed an "Assign-
ment of General Partnership Interest" in the bankruptcy
proceeding, subject to Najjar (through "a corporation to
be formed by the name of 102nd Street Realty Corp.")
acquiring "a majority in interest of the limited partners"
(G.C. Exh. 10). I note that paragraph 6 of the assignment
(which Najjar personally signed) specifically refers to the
Debtor's "Schedules and Statement of Affairs," a docu-
ment filed February 8, listing under "Schedule A-1-
Creditors Having Priority" (G.C. Exh. 3),
(b) Contributions to employee benefit plans for
services rendered within 180 days before filing of
petition or cessation of business, if earlier (specify
date).
Building Service-32B-J-Pension
Building Service-32B-J-Health
(10/1/82-11/26/82)
Total-$696.16
This listing indicates that contributions to the Local
32B-32J's pension and health funds had not been made in
October and November 1982 for the building service em-
ployees. I also note that the Debtor's November 26-De-
cember 31, 1982 "Operating Statement," filed the day
before on February 7 (G.C. Exh. 4), lists under "Ex-
penses (Accrual Basis)," "Union Health & Pension
Funds" in the amount of $654.66. (I discuss below Naj-
jar's credibility and his denials of awareness of the
Union.)
By March 15 (G.C. Exh. 7), Najjar had signed agree-
ments to acquire 24 of the 25 limited partnership units.
On March 17, the Debtor' s managing agent signed (on
behalf of the Debtor as the employer) and mailed to the
Union a copy of the "1982 Apartment House Agree-
ment" (Tr. 312, G.C. Exhs. 22 and 26) as the Union re-
quested March 7 (G.C. Exh. 21), covering the three
building service employees.
On March 23 Najjar, as president of the Realty Corpo-
ration, acting as the Debtor's general partner, signed and
filed the Debtor's "Plan of Reorganization" (G.C. Exh.
2). In it, Najjar pointed out that he and Albert Nassim
(who is the secretary-treasurer of both the Company and
the Realty Corporation) were then the holders of the
third mortgage on the property. Najjar classified the
claims and interests and stated that the "Class 2" claims,
including the priority section 507(a)(4) claims (the claims
for contributions to employee benefit plans arising within
180 days before the filing of the petition), were to be
paid in full. For implementation of the plan, the docu-
ment provided that "The funds necessary for the satisfac-
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of creditors' claims shall be generated by the Debt-
or's General Partner from its funds and from funds gen-
erated from the Debtor's operation."
On April 28 Glantz, as the retiring general partner of
the Debtor, signed a "Certificate of Amendment to Cer-
tification of Limited Partnership of Forest Hills Associ-
ates" (G.C. Exh. 13), stating that the Realty Corporation
had been substituted for 19 limited partners and that the
Company had agreed to serve as general partner. He at-
tached two documents, each signed by Najjar as presi-
dent and dated April 29, consenting that the Company
would serve as general partner and the Realty Corpora-
tion would serve as a limited partner.
B. Initial Management of Building
The Company initially began managing the property
on April 1, shortly after President Najjar filed the March
23 plan of reorganization in the bankruptcy court.
On April 1 Isaac Davis, representing the managing
agent, E. Osborne Smith, Inc., informed Superintendent
Rivera that Davis had lost his job and said "goodbye and
good luck for your new manager." Then Managing
Agent Charles Shohet, representing the Company, came
in and said, "Pepe, I'm the new manager" for the "new
owner." (Tr. 80, 88-89.) Shohet handed Rivera an enve-
lope containing copies of a letter to the tenants, to be
posted on the bulletin board and placed under the apart-
ment doors. The letter, dated April 1 on the Company's
stationery, began (G.C. Exh. 14):
Please note that as of today Elal Management
Realty Corp. will start managing the above proper-
ty for the new owners.
The letter directed that the rent payments be made to
the Company. It was signed by Shohet as managing
agent for the Realty Corporation.
The Company made no change in the building service
crew, retaining Superintendent Rivera, handyman Fer-
nando Melendez, and porter Jorge Melendez. It is undis-
puted that Shohet (who did not testify) then left, telling
Rivera, "I see you next week." (Tr. 81.)
Ten days later, however, Davis returned to the build-
ing with a letter to the tenants from the Debtor's attor-
neys. The letter (G.C. Exh. 15), dated April 11, notified
the tenants that "At this time E. Osborne Smith, Inc.
continues to manage the property" and advised them to
make any unpaid rent payment to that managing agent.
When Company President Najjar (the Company's only
witness) was called to testify in the Company's defense,
he completely ignored the Company's initial management
of the building-and the retention of the three building
service employees-during the first part of April. He did
give undisputed testimony, however, that the Company
never made any wage payment to the three employees.
(Tr. 525.) I therefore infer that sometime before April 11
the Company realized that its management of the build-
ing was premature, that it restored the management of
the building to the previous managing agent to await the
filing of appropriate documents for bankruptcy court ap-
proval of the reorganization plan, and that it did not in
the meantime pay the three employees directly for the
time it employed them in the management and operation
of the building.
C. Termination of Union Employees
On April 29, when the Company resumed management
of the building, it terminated the three building service
employees, who it admittedly knew were represented by
the Union. (Tr. 476.)
The Company had neither criticized their work nor
interviewed them for continued employment. Instead, on
April 11 and 12 the Company had advertised in the
Daily News for a building superintendent-at an undis-
closed apartment house (R. Exh. 4). It is undisputed that
meanwhile , on April 26 when the Company' s managing
agent Shohet returned to the building and had porter
Jorge Melendez (with the help of his brother, handyman
Fernando Melendez) move over a hundred cans of paint
from the gas room to the office, Shohet told Jorge Me-
lendez that he liked the way Jorge worked. (Tr. 279,
293.)
About 5 or 5:30 p.m., April 29, Managing Agent
Shohet went to the building, handed Superintendent
Rivera some letters, and said he should place them on
the bulletin board and under the tenants' doors (Tr. 96).
One letter (G.C. Exh. 16D) was from the Debtor's attor-
neys, dated April 28, stating that effective April 29, the
Company and the Realty Corporation assumed control
of Forest Hills Associates (the Debtor). The other was
from the Company, dated April 29 (G.C. Exh. 16A),
stating that under a court order, the Company "has been
nominated as the new managing agent for Forest Hills
Associates."
Shohet also gave Rivera, in a sealed envelope, a copy
of the letter addressed to the building service employees.
Dated April 29 and signed by Shohet for the Company,
the letter read (G.C. Exh. 16C):
Please be advised that the operation and manage-
ment at 64-34 102nd Street is no longer being con-
ducted by E. Osborne Smith, Inc. the company
which previously engaged your services and there-
fore your employment is terminated as of this time.
Without informing him that he had already been dis-
charged or that he and the two other building service
employees had been replaced , Shohet told Rivera that he
had to apply for the job and asked him for references.
Being shocked at having to make an application after
being on the job about 15 years , Rivera responded that
he had over 169 references in the building (referring to
the tenants). Upon leaving the office , Rivera posted and
distributed the letters to the tenants as Shohet had in-
structed . (Tr. 97-98.) Shohet then called porter Jorge
Melendez into the office and gave him his paycheck and
a copy of the sealed termination letter (Tr. 280, G.C.
Exh. 17), as well as the paycheck and termination letter
for his brother, handyman Fernando Melendez , who was
not working that day (Tr. 336, G.C. Exh . 28). Shohet
said nothing about Jorge Melendez or his brother apply-
ing for the jobs (Tr. 280, 294). About an hour and a half
later, Shohet returned with a new superintentent, Doug-
ELAL REALTY MANAGEMENT
lass Hebert, his wife and child, and with a new handy-
man Harold Feder (Tr. 106.).
Either that evening or the next morning, April 30, a
third letter to the tenants (G.C. Exh. 16B) was posted on
the bulletin board. (Tr. 104.) Dated April 29 and signed
by Managing Agent Shohet, the letter stated that Hebert
and Feder were the superintendent and handyman and
advised the tenants that all "necessary maintenance or re-
pairs" were to be left at the superintendent 's office.
Nothing was said in the letter about taking complaints to
the managing agent or other company official.
Building Superintendent Hebert became the Compa-
ny's spokesman in the building. Contrary to the former
practice of the managing agents preparing notices to be
posted or placed under the tenants' doors, Hebert himself
wrote out and posted the notices, signing them first as
manager and later as superintendent . (Tr. 53-54) He had
numerous conversations with the tenants, interviewed
applicants, informed tenant Leon and other tenants that
he was hiring Feder, and told Leon at one point that he
would fire Feder "if he doesn't shape up." (Tr. 54, 60,
63.) As Leon credibly testified, Hebert informed Leon
that Hebert had hired Malik Rafiq to start working as a
security guard about the middle of May, and about 2
weeks later informed him that "I'm going to give a job
to Eddie as a [relief] security guard 'cause he knows the
tenants and the tenants know him, he knows who will be
coming into the building" (Tr. 61). (Malik later became a
handyman.) (Tr. 458.)
About April 30, the day after Hebert and Feder first
arrived in the building but before Feder began working
as a porter and handyman, tenant Leon observed He-
bert's wife sweeping, mopping, and taking out the gar-
bage. (Tr. 52-53.) It is undisputed that when Leon com-
mented that they "would not be able to cover all the
needs of the building," Hebert promised "that he would
be hiring some people to do some work for the build-
ing." (Tr. 60.) As discussed below, Hebert later failed in
his attempt to rehire Jorge Melendez to work as a non-
union porter.
It is also undisputed that Feder was not a well-round-
ed handyman as the terminated Fernando Melendez was
(Tr. 334) and that sometimes when Hebert assigned him
to make repairs in someone's apartment, he was not
qualified to make the repairs. (Tr. 53.)
After Jorge Melendez refused to work nonunion, the
Company failed to hire either a full-time qualified handy-
man or a full-time porter. The result was that from the
time the Company took over and replaced the three
building service employees, the condition of the building
and the services to the tenants greatly deteriorated. As
credibly summarized by tenant Leon, "It has never been
as bad . as it is at the present time." (Tr. 67-68.)
D. Antiunion Motivation and Refusal to Bargain
Shortly after the Company took over the management
of the apartment building on April 29, the new building
superintendent, Hebert, revealed the Company' s antiun-
ion motivation for not retaining the three union employ-
ees in the bargaining unit. While awaiting a ride to work,
tenant Leon saw Hebert, porter Jorge Melendez, and
handyman Fernando Melendez in the lobby. As he credi-
9
bly testified, Leon overheard part of a conversation be-
tween Hebert and Jorge Melendez. He overheard Melen-
dez ask that if Hebert was going to hire someone, why
not give his brother and him the job "because we have
no problems with the tenants and we've always done our
job." Hebert answered, "Hey, guys, I'm sorry, but I
can't do anything for you. Management does not want any
union people working here." (Tr. 55-56, emphasis added.)
Leon later told Hebert the two guys "did a hell of a job
here" and that Hebert "may want to take them back,"
but he did not do so. (Tr. 66.) Hebert did not testify.
Porter Jorge Melendez recalled having two conversa-
tions with Hebert, on May 3 and 4, about the Union (Tr.
291). He credibly testified that in the first conversation
(part of which tenant Leon overheard), Hebert told him,
"Jorge, I have many problems in the building. The
people are telling me that you work good. And I need
you here." Hebert told him, however, that Hebert could
not give him any work "because I was in a union," and
he responded that he could not work without a union.
(Tr. 282, 287.) The next day, Hebert again told Jorge
Melendez , "I have many problems in the building" and
added that if he wanted, he could return to work, but he
"should remember, no union ." Jorge Melendez again re-
sponded that he could not come back without a union.
(Tr. 283-284.)
On May 18 the Company received a certified letter
from the Union, dated May 11 (G.C. Exh. 24A), enclos-
ing a copy of the 1982 Apartment House Agreement that
the previous managing agent had signed for the Debtor
and returned March 17 to the Union. The letter request-
ed the Company either to sign it or begin negotiations
for a new collective-bargaining agreement . On May 26,
the Company received a second request from the Union,
dated May 24 (G.C. Exh. 25A), to begin negotiations for
the service employees at the building. The Company
failed to respond to either letter.
E. Shifting Defenses
In its opening statement at the trial, the Company
argued that "as a new owner Mr. Najjar treated the em-
ployees who were currently there as applicants for em-
ployment, interviewed certain employees, also inter-
viewed people from the street, made a bona fide decision
as to which employees it was going to hire without con-
sideration of any union recogni- union status." (Tr. 30.)
To the contrary, the evidence is clear that the Company
did not treat the three union employees as applicants, but
hired replacements and summarily terminated the em-
ployees in writing before making any mention of filing
an application.
When President Najjar was called as the Company's
sole defense witness on the last day of the trial (follow-
ing a 7-week delay), he presented an inconsistent defense,
in effect admitting that he did not regard the three build-
ing service employees as applicants. He claimed that
after signing the February 16 agreement to acquire
Glantz' interest as general partner, when he "was not
aware whether there was a union or no union," he decid-
ed to start with a clean slate "By discharging all the exist-
ing employees" (emphasis added). He claimed that the
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision "was just based upon all the existing documenta-
tion that was presented to me with all the litigation
papers," which showed that "the problems of the build-
ing were numerous ." (Tr. 474-476.) I find that this de-
fense was wholly fabricated.
As found above, a document filed on Najjar's behalf
(the January 13 opposition to the appointment of a trust-
ee) represented to the bankruptcy court that under the
new management (with the same building service em-
ployees), the current operation of the building was
"more than satisfactory for all concerned," including the
tenants. Furthermore, Najjar's claim that he had decided
in February to discharge the employees is belied by his
retention of all three of them when the Company initial-
ly began managing the property on April 1. Najjar had
signed and filed the March 23 reorganization plan, but
had taken no action to discharge or replace the employ-
ees.
Moreover, even if Najjar had decided to discharge the
three employees after signing the February 16 agreement
with Glantz, it appears clear that he was aware that they
were covered by the Union 's collective-bargaining agree-
ment, requiring the payment of health and pension bene-
fits. The Debtor's November 26-December 31, 1982 op-
erating statement , which was filed February 7, listed
"Union Health & Pension Funds" as an accrued expense.
Although Najjar denied specifically seeing this document
before purchasing the building (Tr. 473), he did not deny
seeing the Debtor's February 8 "Schedules and State-
ment of Affairs," which was mentioned in paragraph 6 of
his February 16 agreement with Glantz. That document
lists, under a schedule of priority creditors , unpaid con-
tributions to the building service employees' union pen-
sion and health funds. (The Debtor's reorganization plan,
which Najjar signed and filed March 23, provided that
these class 2 claims would be paid in full .) I discredit
Najjar's claim that he was not then aware of a union in
the building. (From his demeanor on the stand, Najjar
appeared willing to give whatever testimony would help
the Company's cause.)
President Najjar's credibility was further impugned
when he changed his testimony on cross -examination.
Although he claimed on direct examination that he de-
cided in February to start with a clean slate "By dis-
charging all the existing employees ," (Tr. 474), he denied
on cross-examination ever making a decision to discharge
the building service employees-apparently after being
reminded of this defense in a company counsel objection.
(In its answer the Company had denied paragraph 20 of
the complaint, which alleged that about April 29 it "dis-
charged its employees Jose Rivera, Fernando Melendez
and Jorge Melendez." As quoted above, the Company's
April 29 letter to the employees stated that the operation
and management of the building "is no longer being con-
ducted by E. Osborne Smith, Inc. the company which
previously engaged your services and therefore your em-
ployment is terminated as of this time.") The following
occurred on cross-examination:
Q. When did you make your decision to dis-
charge the discriminatees?
A. Mr. Spivak: Objection. Our position is he
didn 't hire them and he never discharged
them. . . . [Tr. 507-508.]
Q. Now when did you make the decision that
you were going to bring in your own people and
discharge the people who were working there
under E. Osborne Smith?
A. . . . I did not make a decision to discharge
somebody whom I never hired to begin with. [Tr.
515.]
President Najjar also gave conflicting testimony about
when he first learned about a union in the building. After
denying on direct examination that he was aware of a
union when he decided in February to discharge all the
existing employees, he testified he learned before April 29
that there was a union in the building when he visited
the building and talked to the managing agent's repre-
sentative. (Tr. 476.) But on cross-examination , after deny-
ing that he made a decision to discharge the employees
(Tr. 515) and claiming, "I decided to get rid of Fernando
Melendez [and the other two employees] on April 29th,"
he testified as follows:
Q. When did you first find out that Local 32B,
the Union represented these three individuals?
A. I think it was after April 29th. [Tr. 518, em-
phasis added.]
Then when asked if he received the information from the
previous managing agent, he first positively denied it, but
changed his testimony:
Q. Had any E. Osborne Smith agent told you
that this Union represented anybody at that build-
ing?
A. No. I believe that I mentioned that and they
mentioned it to me. [Tr. 519, emphasis added.]
Thus Najjar corrected his testimony and again admitted
that he had talked with the prior managing agent about a
union being in the building when he visited the build-
ing-presumably before the Company withdrew and the
other managing agent temporarily resumed the manage-
ment of the building on April 11. The Company does not
deny company knowledge of the union representation on
April 11 and 12, when it advertised for a new building
superintendent.
The Company also took shifting positions regarding
Superintendent Hebert's status as a supervisor. The Com-
pany admitted in its July 3, 1983 answer (G.C. Exh. lE)
that Hebert was a supervisor, and the company counsel
reaffirmed the admission at the beginning of the trial on
August 13, 1984 (Tr. 10). But when President Najjar was
called as the Company's sole defense witness on October
1, he belittled Hebert's supervisory status-in apparent
response to the credited testimony that Hebert told
tenant Leon and other tenants that he was hiring Feder,
told Leon that he would fire Feder "if he doesn't shapen
up," told Leon that he was hiring two security guards,
and offered Jorge Melendez a job as a nonunion porter
after telling Melendez that he could not do anything for
Melendez or his brother because "Management does not
ELAL REALTY MANAGEMENT
want any union people working here." Najjar claimed
that Hebert had no authority to hire or fire anybody;
that "No. Not really" did he have the authority to fire,
warn, or send employees home early; and that if one of
the employees wanted to leave work early or if there
were a problem , Managing Agent Shohet would be con-
tacted. (Tr. 485.) Although the April 11 and 12 newspa-
per ad was for only a superintendent , Najjar claimed that
he had interviewed and hired Supervisor Hebert and
handyman Feder at the same time . (Tr. 481, 484.) (Again
Najjar appeared on the stand to be willing to give what-
ever testimony would help the Company 's cause. I dis-
credit his claim that he hired Feder and his denial that
Hebert had the authority to and did hire employees.)
In its brief the Company went further in shifting its
position regarding Hebert's supervisory status . Ignoring
the earlier admissions that Hebert was a supervisor, the
Company contends that "there is absolutely no credible
evidence that Hebert was any more than a director of
work" and that "His functions were routine and did not
require the exercise of independent judgment" (although
elsewhere arguing that "Hebert directed the work of the
porter/handyman and thus may well have been a minor
supervisor"). The Company contends that the linchpin of
the argument about Hebert 's authority to hire nonunion
employees is that Hebert hired Feder, and "This did not
happen and is an impossibility on the record." It con-
tends that the April 29 letter to the tenants, announcing
the employment of Hebert and Feder, shows that Najjar
and Managing Agent Shohet had already hired Feder.
That letter does show that Hebert and Feder were al-
ready hired, as does their arrival in the building that day,
but it does not show who had hired them-whether
Najjar had hired Feder when Hebert applied in response
to an ad for a superintendent (as Najjar claimed in his
discredited testimony) or whether Najjar had authorized
Hebert to locate and hire a handyman. Tenant Leon first
saw Feder in the building on April 29 when Feder ar-
rived with Hebert, but he remembered that Feder did
not start working at once. Although Leon was evidently
in error in recalling that it was a few weeks rather than
days before Feder returned to work, he credibly testified
that Hebert told him and a number of tenants that he
was hiring Feder. (Tr. 52-53, 60-63.)
F. Other Defenses
Despite President Najjar's admission to the contrary
on the last day of the trial, the Company maintains in its
brief the contention that it treated the three building
service employees "as applicants for employment." Yet,
also in its brief, the Company adopts as its position Naj-
jar's inconsistent testimony that about February 16 he
decided to discharge the three employees. As justifica-
tion for the purported discharge decision in February,
the Company goes outside the record and asserts in its
brief that "There was chaos and confusion in the Build-
ing" and "The tenants alleged that the Building was in
shambles, that it was not clean , and that repairs were not
made"-citing unproved arguments made by its counsel
in his opening statement . (Tr. 29.)
The Company further contends in its brief that it made
no attempt to conceal its hiring of replacements , because
11
it ran a newspaper ad on April 11 and 12 (after tempo-
rarily returning the management of the building to the
former managing agent) for applicants to run the build-
ing. I note , however, that the ad was placed for only a
building superintendent and that although the ad was
placed in a daily paper, it did not reveal the location of
the apartment house . I also note that the brief inadvert-
ently misstates the record , asserting that the replacement
superintendent "was a general contractor ," although
Najjar testified that Hebert told him that "his father is a
General Contractor" (Tr. 482). The brief does not con-
tend that the replacements were better qualified than the
terminated employees , and it ignores the undisputed testi-
mony that Feder was not a well-rounded, qualified
handyman and that Superintendent Hebert had stated
that he would fire Feder "if he doesn't shapen up "
The Company admitted in its July 3, 1983 answer that
Superintendent Hebert was an agent of the Company as
well as a supervisor, but the company counsel withdrew
the admission of agency at the beginning of the trial after
stating that he did not know if Hebert and Managing
Agent Shohet were agents (Tr. 9-10). President Najjar
denied at the trial that he ever authorized Hebert to
speak on behalf of management (Tr. 486) and the Com-
pany contends in its brief that the evidence failed to es-
tablish that Hebert had actual or apparent authority to
speak for it. Other than the antiunion statements that
Hebert made to terminated employee Jorge Melendez
(overheard in part by tenant Leon), the Company com-
pletely ignores the credited evidence that Hebert was the
Company's spokesman in the building and belatedly con-
tends that "His functions were routine and did not re-
quire the exercise of independent judgment" (effectively
denying that he was even a supervisor). The Company
also contends that "Assuming arguendo that Hebert did,
in fact , make the alleged statements , he was merely ex-
pressing his own personal opinion." The Company makes
no effort to explain the undisputed, credited testimony
that Hebert offered to rehire Jorge Melendez as a non-
union porter. (Undoubtedly Hebert had been given the
authority to hire-unless, of course, the Company direct-
ed Hebert to offer to rehire the porter on that basis.)
Having concluded from his demeanor on the stand that
Najjar was a most untrustworthy witness, I discredit his
denial that Hebert was the Company's authorized spokes-
man in the building as well as his denial that Hebert had
the authority to hire. After weighing all the evidence I
find that Superintendent Hebert was speaking on behalf
of management when informing Melendez that he and
his brother could not be rehired because " Management
does not want any union people working here" and
when later offering to rehire Jorge Melendez if he would
work as a nonunion porter.
Finally, after arguing in effect that the new building
superintendent was not even a supervisor, the Company
contends in a footnote to its brief, without citing any evi-
dence, that even if Hebert's antiunion comments were
binding on the Company (and if building superintendent
Rivera is found to have been discriminatorily dis-
charged), "Rivera, whose prior supervisory status cannot
be seriously doubted, could not be reinstated to a super-
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visory position as a remedy." To the contrary the oppo-
site is true ; Hebert was a supervisor but Rivera was not.
The Company authorized Hebert to hire after deciding
to replace not only Rivera but also the handyman and
porter. On the other hand, the evidence is clear that
Rivera was merely a nonsupervisory leadman both on
April 1 when the Company first managed the building
and on April 29 when the Company terminated the em-
ployees (Tr. 109). If the Company on April 29 had re-
tained the three employees as it had done on April 1,
there would have been no occasion to assign Rivera au-
thority to hire new employees to replace the experienced
handyman and porter, who were giving satisfactory serv-
ice. Therefore, Rivera was not a supervisor when he was
discharged , and any reinstatement would be to the same
nonsupervisory position.
G. Concluding Findings
1. Discriminatory motivation
On January 13, after President Najjar decided to ac-
quire the apartment house through the bankruptcy pro-
ceeding , a document filed on his behalf in the bankrupt-
cy court acknowledged the satisfactory service being
performed by the three building service employees. On
April 1, 9 days after Najjar filed a reorganization plan,
the Company began managing the building , retaining all
three of the employees as its own employees. It neither
criticized their work nor informed them that they should
submit applications for continued employment . On April
11 it temporarily relinquished the management of the
building until appropriate documents were filed for bank-
ruptcy court approval of the Company' s serving as the
general partner of the Debtor and as the new managing
agent of the building under the reorganization plan. The
Company then adopted a secret hiring procedure to re-
place the known union employees with nonunion person-
nel. It placed a newspaper ad for a building superintend-
ent, without revealing the location of the apartment
house. Meanwhile on April 26, several days before the
Company resumed the management of the building, its
managing agent Shohet returned to the building and in-
structed porter Jorge Melendez (with the assistance of
handyman Fernando Melendez) to perform the task of
moving a stock of paint from one location in the building
to another. After the work was finished, Shohet compli-
mented porter Melendez for his good work.
On April 29 the Company resumed the management of
the building as the court-approved general partner of
Forest Hills Associates (the debtor-in- possession). Man-
aging Agent Shohet again went to the building , assigned
Superintendent Rivera the task of posting and distribut-
ing notices to the tenants , and then summarily discharged
Rivera and the two other union employees before intro-
ducing their nonunion replacements . As a replacement
for Rivera (who had been the building superintendent
since 1971), President Najjar had hired Superintendent
Hebert who , in turn , had hired a less-qualified handyman
Feder and who began assigning his own wife to work
part time as a porter until a full-time porter could be
hired.
The Company 's discriminatory motivation in replacing
the union employees was confirmed shortly afterward by
Superintendent Hebert , the Company 's spokesman in the
building . One of the tenants overheard Hebert telling the
discharged porter Jorge Melendez that Hebert could not
rehire him and his brother Fernando because "Manage-
ment does not want any union people working here."
The next day Hebert offered the porter job to Jorge Me-
lendez if he would return as a nonunion employee. After
Melendez refused to work nonunion , the Company failed
to hire either a full-time qualified handyman or a full-
time porter , and the condition of the building and the
services to the tenants greatly deteriorated.
The complaint alleges that after initially employing the
three building service employees in the same business op-
erations , the Company discriminatorily discharged them
on April 29 , and later refused to rehire Jorge and Fer-
nando Melendez because of their union membership and
protected concerted activities. I fmd it clear that the
General Counsel has made a prima facie showing suffi-
cient to support the inference that the employees' union
membership was a motivating factor in the Company's
decision to discharge them . Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved by the Su-
preme Court in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983).
In its defense, the Company has taken shifting, con-
flicting positions . One of its defenses is that on April 29
(when it admittedly knew about the Union ), it terminated
the three employees pursuant to a bona fide business de-
cision and that the discharge decision was made in Feb-
ruary, before the Company learned from the previous
managing agent about the Union . Another defense is that
it never decided to discharge them and never discharged
them , having never hired them to begin with , and that it
treated them as applicants for employment . Both these
conflicting defenses were obviously fabricated.
As found concerning the first defense, (a) the Compa-
ny did have knowledge of the Union in February, (b)
contrary to the unproved argument in the Company's
opening statement that there was "chaos and confusion"
in the building at the time, a document filed on President
Najjar's behalf acknowledged the employees' satisfactory
service, and (c) the Company's retention of the employ-
ees when it first managed the building in early April
belies Najjar's claim that he had already decided to dis-
charge them. I find that the Company did not decide to
discharge the employees until about April 11, when it
began advertising for a building superintendent at an un-
disclosed location. The Company does not deny knowl-
edge of the employees ' union membership at that time.
Concerning the second defense that it treated the three
employees as applicants and that it did not discharge or
decide to discharge them because it never hired them,
the opposite is true. The wording of the July 29 dis-
charge letter ("your employment is terminated as of this
time") belies the contention that the Company did not
discharge them or decide to discharge them. The Com-
pany had hired them April 1 when it retained them in its
employ several days, before temporarily relinquishing the
ELAL REALTY MANAGEMENT
management of the building to the prior managing agent.
It continued to treat them as its own employees on April
26, when it directed the work of the porter and handy-
man, and on April 29 when it instructed the superintend-
ent to post and distribute letters to the tenants before
handing out the discharge letters, terminating them. It is
clear that in the meantime, the Company had decided to
discharge them and did not treat them as applicants.
Contrary to the contention in its brief that it made no at-
tempt to conceal its hiring of employees from them, the
Company secretly replaced and summarily discharged
them before making any mention of filing an application.
Moreover, it is undisputed that replacement handyman
Feder was less qualified than Fernando Melendez, that
the Company had stated approval of porter Jorge Melen-
dez' work, and that the replacement of the experienced
employees resulted in a great deterioration in the condi-
tion of the building and the services to the tenants.
Thus I find (1) that the Company had no bona fide,
nondiscriminatory reason for discharging the three union
employees, (2) that after retaining them in its employ for
several days in early April, it decided to discharge them
and replace them with nonunion personnel, and (3) that
it adopted a secret hiring procedure to conceal from
them its plans and to prevent them from applying for
continued employment. Then at the trial, President
Najjar (the Company's sole witness) advanced false rea-
sons for the Company's actions. It is well established that
"normally, when an employer advances a false reason for
its actions, it is permissible to infer that the actions are
taken for an unlawful reason." Love's Barbeque Restau-
rant, 245 NLRB 78, 79 (1979). Under the cirumstances I
find that Najjar's untruthful testimony gives rise to the
inference that he was attempting to mask his union
animus as the real reason for his failure to retain the
three experienced union employees.
As discussed above under "Other Defenses," the Com-
pany contends that Superintendent Hebert would have
been merely expressing his personal opinion, without au-
thority to speak on its behalf, if he made the "alleged
statements" (such as the statement that he could not
rehire the Melendez brothers because "Management does
not want any union people working here"). As noted,
however, the Company makes no effort to explain the
undisputed, credited testimony that Hebert also offered
to rehire Jorge Melendez as a nonunion porter. I find
that either Hebert had been given the authority to hire,
or the Company specifically directed him to offer Jorge
Melendez reemployment on that basis. In either event,
Hebert was speaking on behalf of management.
After weighing all the evidence, I find that the Com-
pany has failed to rebut the General Counsel's prima
facie case by carrying its burden to demonstrate that it
would have replaced the union employees even in the
absence of their union affiliation. I therefore find that the
Company was discriminatorily motivated when it gave
the three union employees the April 29 termination no-
tices and refused to retain or rehire them because of their
union membership, violating Section 8(a)(3) and (1) of
the Act.
13
2. Refusal to bargain
On March 17 the Debtor, through the previous man-
aging agent , renewed recognition of the Union by sign-
ing and mailing to the Union a copy of the collective-
bargaining agreement covering the three union employ-
ees in an appropriate unit of all service employees em-
ployed in the building, excluding supervisors. On April
1, when the Company first assumed the management of
the building as the managing agent , it retained the three
employees without changing their terms or conditions of
employment. By April 11, when it temporarily relin-
quished the management of the building, the Company
had decided-because of union animus as found-to re-
place the employees with nonunion personnel while con-
cealing from the union employees its secret hiring proce-
dure.
On April 29 the Company became the court-approved
general partner of the Debtor (the limited partnership,
Forest Hills Associates) as well as the court-approved
managing agent under the reorganization plan in the
bankruptcy court. Although the complaint alleges that
the Company owns and operates the building, the Gener-
al Counsel admitted lack of knowledge at the trial
whether title had passed because of pending creditors'
claims . I find, however, that even if the Company and
the related Realty Corporation had not acquired clear
title to the property, the Company on April 29 acquired
effectual control and resumed the management of the
building.
The General Counsel argues that the Company, con-
tinuing the same business and using the same facilities,
was a successor employer and was obligated to bargain
with the Union even though it discriminatorily dis-
charged the entire bargaining unit and replaced the union
employees with nonunion personnel. She argues that but
for the Company's illegal conduct, the Union would
have maintained its majority status, and that the Compa-
ny should not be permitted to rely on its own wrongdo-
ing to avoid its legal responsibility to recognize and bar-
gain with the Union concerning the unit employees.
The Company argues that "new employer is free not
to hire any of the predecessor's employees if it so de-
sires" and that this "unfettered right to hire is limited
solely by the principle that it is an unfair labor practice
under Section 8(a)(3) of the NLRB for an employer to
discriminate in hiring or retention of employees on the
basis of union membership or activity." I agree. But, as
found above, I do not agree that the Company's deci-
sions concerning the employees it would hire were bona
fide and nondiscriminatory. Neither do I agree that even
if the Company's actions violated the Act, a bargaining
order would not be appropriate.
As held in Howard Johnson Co. v. Hotel & Restaurant
Employees, 417 U.S. 249, 262 fn. 8 (1974), an employer
has the right not to hire any of the former employees, if
it so desires, but
Of course , it is an unfair labor practice for an em-
ployer to discriminate in hiring or retention of em-
ployees on the basis of union membership or activi-
ty under Section 8(a)(3) of the NLRA. Thus, a new
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
owner could not refuse to hire the employees of his
predecessor solely because they were union mem-
bers or to avoid having to recognize the union.
The Court cited K B. J. Young's Super Markets v.
NLRB, 377 F.2d 463, 465 (9th Cir. 1967), cert. denied
389 U.S. 841 (1967), which held:
Where, as here , the old employees have been
wrongfully discharged, their reinstatement is an ap-
propriate remedy for the unfair labor practice. With
such reinstatement ordered, continuity in the identi-
ty of the work force may be presumed to follow
and an order to recognize and bargain with the
union as representative of the present work force is
appropriate.
The finding of successorship and the issuance of a bar-
gaining order were also approved in NLRB v. Foodway
of El Paso, 496 F.2d 117, 120 (5th Cir. 1974), in which
the court found that Foodway refused to hire the prede-
cessor's employees "because of their membership in the
Union . . . to avoid the obligations of a successor em-
ployer." The court held:
It is manifest that but for Foodway's discriminatory
refusal to offer employment to Allied's unit employ-
ees, the Union would have continued to enjoy a ma-
jority representative status . We decline to permit an
employer to rely upon its own wrongdoing and
thus avoid its legal responsibilities.
A bargaining order was also held appropriate in
NLRB v. Hudson River Aggregates, 639 F.2d 865, 871 (2d
Cir. 1981), enfg. 246 NLRB 192 (1979):
As for the five former Martin Marietta drivers,
assured of jobs with HRA but then allegedly dis-
criminated against because of their membership in
Teamsters Local 445, we uphold the Board's finding
of violations of sections 8(a)(1) and (3) [citing
Howard Johnson and NLRB v. Bausch & Lomb, 526
F.2d 817, 821-822 (2d Cir. 1975)] as supported by
substantial evidence in the record. Had these five
drivers been on the job . . . Teamsters Local 445
would have represented a majority of the employ-
ees in the unit . . . and therefore HRA also violated
sections 8(a)(1) and (5) . . . by refusing to recognize
and bargain with Teamsters Local 445.
The Board has recently held that "An employer which
takes over a business is a `successor ' if there is continuity
in the employing industry after the change of owner-
ship," and that the "key factor in making a successorship
determination is whether a majority of the new employ-
er's bargaining unit employees were members of the
predecessor's unit work force." Airport Bus Service, 273
NLRB 561 at 562 (1984). Here the Company continued
the same business in the same building, and it would
have continued to employ the same three building serv-
ice employees in their same jobs-as it initially did in
early April when it first managed the building-except
for its decision about April 11, because of union animus,
to discriminatorily discharge all the union members and
replace them with nonunion personnel.
Under these circumstances I find that the Company
was a successor employer of the building service em-
ployees in the appropriate bargaining unit and that it un-
lawfully refused to bargain in violation of Section 8(a)(5)
and (1) when it received the Union's bargaining request
on May 18 and failed to respond.
CONCLUSIONS OF LAW
1. By discharging Fernando Melendez , Jorge Melen-
dez, and Jose Rivera April 2, 1983, and by refusing to
rehire Fernando and Jorge Melendez because of their
union membership , the Company engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(3) and ( 1) and Section 2(6) and (7) of the Act.
2. By refusing to bargain with the Union on and after
May 18 , 1983, the Company violated Section 8(a)(5) and
(1).
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent, having discriminatorily discharged
three employees, must offer them reinstatement and
make them whole for any loss of earnings and other ben-
efits, computed on a quarterly basis from date of dis-
charge 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
Florida Steel Corp., 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, Elal Realty Management Inc.,
Queens, New York, its officers, agents , successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for being a member of Local 32B-32J,
Service Employees International Union, AFL-CIO or
any other union.
(b) 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) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
3 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
ELAL REALTY MANAGEMENT
ment and, if an understanding is reached , embody the un-
derstanding in a signed agreement:
All service employees employed by Elal Realty
Management Inc. at its Forest Hills, New York
apartment house, excluding supervisors as defined in
the Act.
(b) Offer Fernando Melanez , Jorge Melanez , and Jose
Rivera immediate and full reinstatement to their former
jobs or, if those jobs no longer exist , to substantially
equivalent positions , without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination against
them , in the manner set forth in the remedy section of
the decision.
(c) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way.
(d) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at Forest Hills apartment house in Queens,
New York, copies of the attached notice marked "Ap-
pendix."4 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 cus-
tomarily posted . Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
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 "
15
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against any of you for being a member of Local 32B-
32J, Service Employees International Union, AFL-CIO
or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request , bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit:
All service employees employed by Elal Realty
Management Inc. at its Forest Hills, New York
apartment house, excluding supervisors as defined in
the Act.
WE WILL offer Fernando Melendez , Jorge Melendez,
and Jose Rivera immediate and full reinstatement to 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 WE WILL make them whole for any loss of
earnings and other benefits resulting from their dis-
charge, less any net interim earnings , plus interest.
WE WILL notify each of them that we have removed
from our files any reference to his discharge and that the
discharge will not be used against him in any way.
ELAL REALTY MANAGEMENT INC.