Hagar Management Corp.

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 438 (N.L.R.B. 1993)

438
313 NLRB No. 57
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondents have moved to reopen the record to reconsider
the credibility of Anthony Mitchell in light of the Respondents’ alle-
gation that he attempted fraud by underreporting interim earnings in
settlement negotiations. The motion is denied to the extent that it
seeks to attack the judge’s credibility resolutions. Kenai Helicopters,
235 NLRB 931 fn. 1 (1978).
The Respondents further contend that, in any event, Mitchell’s al-
leged fraud should be considered in connection with the judge’s rec-
ommended reinstatement remedy. We find no merit in this conten-
tion. The Respondents’ allegations, even if true, do not automatically
compel a finding that reinstatement should be barred. Owens Illinois,
290 NLRB 1193 (1988), enfd. mem. 872 F.2d 413 (3d Cir. 1989).
The impact of the alleged fraud on the remedy is a matter best left
to the compliance stage of these proceedings. See, e.g., United Su-
permarkets, 291 NLRB 314 (1988).
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
1 The most recent collective-bargaining agreement between Blue
Star and Local 32B-32J had a term from April 21, 1988, to April
20, 1991.
Hagar Management Corp. and 1025–1045 Associ-
ates, Inc. and Wilfredo Arteaga and Venicio
Bonilla and United Service Employees Union
Local 377, R.W.D.S.U., AFL–CIO
1025–1045 Associates, Inc. and Local 32B–32J.
Cases 29–CA–15842, 29–CA–15907, 29–CA–
15967, 29–CA–15966, and 29–CA–15945
November 24, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
In September 21, 1992, Administrative Law Judge
Eleanor MacDonald issued the attached decision. The
Respondents filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record1 in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,2 and conclusions and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents Hagar Management Corp.
and 1025-1045 Associates, Inc., Brooklyn, New York,
their officers, agents, successors, and assigns, shall
take the action set forth in the Order.
James Patrick Kearns, Esq., for the General Counsel.
Martin Gringer, Esq. (Franklin & Gringer, P.C.), of Garden
City, New York, for the Respondents.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Brooklyn and New York, New York, on
April 6 and 9, 1992. The complaint alleges that Respondent,
in violation of Section 8(a)(1), (3), and (5) of the Act, prom-
ised its employees money to induce them to resign, dis-
charged its employees, harassed its employees, and refused
to bargain with Local 32B-32J. Respondent denies the mate-
rial allegations of the complaint and alleges that one of the
individuals was a supervisor, that certain of the employees
engaged in an unprotected strike, and that there is no obliga-
tion to bargain on the part of the Employer.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent in June
1992, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Associates, a New York State corporation with
its principal office in Brooklyn, New York, owns an apart-
ment house at 1025-1045 St. John’s Place in Brooklyn. Re-
spondent Hagar, a New York corporation with its principal
office in Brooklyn, New York, is engaged in providing
building management services; it manages the building at
1025-1045 St. John’s Place. Respondents Associates and
Hagar admit, and I find, that they are joint employers of the
employees at 1025-1045 St. John’s Place and that they are
employers engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. Respondents admit, and I
find, that United Service Employees Union Local 377,
R.W.D.S.U., AFL–CIO and Local 32B-32J, Service Employ-
ees International Union, AFL–CIO are labor organizations
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Prior to the time relevant to this proceeding, the building
at 1025-1045 St. John’s Place had been owned by Blue Star
Realty, Inc. and the employees had been represented by
Local 32B-32J.1 One superintendent, Anthony Mitchell, and
one porter, Courtney Thompson, were employed to care for
the building. On April 23, 1991, the building was purchased
by Respondent Associates. At the time of purchase by Asso-
ciates, the employees of Blue Star were retained. Respond-
ents admit that Associates and Hagar entered into a contract
whereby Hagar would manage the building. Ralph Sperlin is
the president of Associates, and the parties agree that he is
an agent of Respondents and a supervisor under the Act.
Ralph Sperlin’s son, Dovie Sperlin, is the vice president of
Associates. The only principal of Hagar identified in this
proceeding is Lazar Hagar; his title was not specified here.
The gravamen of the General Counsel’s case is that Ralph
Sperlin discharged Mitchell and Thompson because they be-
439HAGAR MANAGEMENT CORP.
2 Respondent also urges that Mitchell was a supervisor.
3 Mitchell could not recall exactly when this occurred but he testi-
fied that it was before the strike at the building.
4 During the strike, this figure had been reported in the news-
papers.
5 The release bears a fax number and date which shows that it was
faxed to Sperlin by counsel for Respondent on May 23, 1991. The
date appearing next to the signature line is May 24, 1991.
6 Mitchell is black.
7 Mitchell applied for unemployment on May 29, 1991. Mitchell’s
affidavit states that he was fired about May 15, and after this Sperlin
gave him a release to sign whereby he would resign in return for
a payment of $8000.
8 Papane denied telling Mitchell and Thompson that in the event
they struck the building they should shut off the elevator and hot
water service to the tenants, but apparently the Union believed that
services would be reduced in the event of a strike.
longed to Local 32B-32J, and that Sperlin then proceeded to
discharge the new superintendent and porter he hired, two
men by the names of Wilfredo Arteaga and Venicio Bonilla,
because they joined Local 377. Respondent asserts that
Thompson was discharged because he engaged in destructive
actions during a 1-day strike at the building and that Mitchell
resigned after trying to secure a lump sum payment from
Ralph Sperlin.2 Respondent maintains that Arteaga was fired
because he was inattentive to his duties and that Bonilla left
his job voluntarily.
Local 32B-32J engaged in a citywide strike beginning on
April 20, 1991. At first, only buildings in Manhattan were
actually struck, and later the strike was extended to buildings
in the other boroughs within the Local’s jurisdiction. The tes-
timony here shows that employees in Brooklyn did not walk
off the job until at least the 10th day of the strike. As far
as the building at 1025-1045 St. John’s Place is concerned,
the employees struck for 1 day only, on May 2, 1991.
B. The Facts
1. Anthony Mitchell and Courtney Thompson
Anthony Mitchell testified that he was hired by Blue Star
Realty in 1986 as a resident, working superintendent. He
made repairs and did plumbing and electrical work. He
worked from 8 a.m. to 5 p.m. Monday through Friday and
was on call for the rest of the time. Courtney Thompson was
employed as a porter before Mitchell was hired and thus
Mitchell did not train Thompson. Mitchell testified that he
never hired, fired, transferred, suspended, laid off, recalled,
nor promoted employees. Mitchell did not give raises, he did
not mete out discipline, and he did not settle grievances. Va-
cations and other times off were approved by the manage-
ment office. Mitchell testified that when Blue Star owned the
building, a supervisor from the Company came to the build-
ing as often as once a day but that sometimes 2 weeks would
pass without a visit from the supervisor. Mitchell acknowl-
edged that he was responsible for the building on a daily
basis. As to the degree of supervision he exercised over
Thompson, Mitchell claimed that if he got complaint about
dirt he would pass it along to Thompson; otherwise he did
not give Thompson daily instructions. Mitchell testified that
if tenants requested repairs, he had to obtain permission to
make the repair from the management office. The testimony
of Mitchell and Ralph Sperlin shows that once Respondent
purchased the building, Sperlin came to the premises several
times a week. I find that Mitchell was not a supervisor with-
in the meaning of the Act. Elias Mallouk Realty Corp., 265
NLRB 1225, 1234 (1982).
Mitchell met first Ralph Sperlin while showing Sperlin the
premises before the latter bought the building. After the pur-
chase was completed, according to Mitchell, Sperlin spoke to
him in the lobby and said it was his policy ‘‘to clean the
house.’’3 Mitchell replied that he was in the Union and that
he would do whatever the Union said. Sperlin said that he
would not abide by the union contract because the contract
applied to the previous owner. That day or the next, Ralph
Sperlin asked Mitchell to report to his office. There, Mitchell
met Lazar Hagar, the managing agent. Hagar told Mitchell
that he had to leave the premises because it was the policy
to clean house. Hagar asked Mitchell how much money he
wanted in order to ‘‘settle as a gentleman’’ without having
to go to court. Mitchell responded that he would have to
consider the matter and consult with his family and legal ad-
visor. The next day Hagar called Mitchell and offered him
$3000; when Mitchell said he would consider it, Hagar of-
fered $6000. Mitchell refused this sum and Hagar then of-
fered $8000 as a final figure. Hagar stated that he had to
‘‘twist Mr. Sperlin’s hand’’ to reach that figure. Mitchell re-
sponded that he would speak to his legal advisor. At some
time later, Sperlin came to the building. He remarked to
Mitchell that his union president makes over half a million
dollars a year and that Sperlin ‘‘would not allow him to get
fat off his back.’’4 Sometime after this conversation, Sperlin
again came to the building and handed Mitchell a form of
release which he suggested Mitchell should take to an advi-
sor.5 Mitchell decided not to sign the release and he in-
formed Sperlin of his decision the next day. According to
Mitchell, Sperlin was very angry and he remarked that he did
not ‘‘want any black working around.’’6 Sperlin said that
Mitchell was fired and should vacate the super’s apartment.
After this conversation, Mitchell went to the unemployment
office believing that he had been fired.7
On cross-examination, Mitchell maintained that he was
fired before he refused to sign the release; he was not being
paid and he considered himself fired. When Mitchell was
shown a check dated May 17, he stated that this was ‘‘a
back check.’’ He could not recall when he received the
check but he claimed that it represented 2 weeks’ pay that
Respondent owed him and that Sperlin had initially refused
to pay him. Mitchell acknowledged that before Respondent
had the release drawn up, he had told Sperlin that he was
going to take $8000. This was sometime after the strike, but
Mitchell could not recall when it was. He was also unable
to recall how much time elapsed between the time he told
Sperlin he agreed to leave for $8000 and the day Sperlin
gave him the release.
The evidence shows that on April 30 or May 1 Mitchell
and Thompson had gone to the strike office established by
Local 32B-32J in Brooklyn and they had seen Philip Papane,
a business agent. Mitchell and Thompson wanted to know
when they should strike. Apparently, they were not told to
strike immediately, but Papane gave them leaflets to hand
out to tenants informing the tenants that they could apply for
rent reductions due to lack of service.8 Papane’s testimony
shows that Mitchell told him that the building had a new
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Papane also testified that he never requested that Associates or
Hagar bargain with the Union nor did he send any notice to the
FMCS or the New York State Board of Mediation (State Board) that
the Union had a labor dispute with the new owner.
10 In the past, the building had been equipped with garbage chutes
leading to an incinerator. Due to air pollution regulations, inciner-
ators in New York City have been banned from operation. As a re-
sult, the chutes have been linked to a garbage compactor. For some
reason, all the witnesses referred to incinerator chutes, thus recalling
the outmoded function of the chutes rather than their actual use as
part of a compactor system.
11 Arteaga is Spanish speaking and so is Bonilla. Their friend Vic-
tor Soto recommended them to Sperlin and they went to Soto’s
apartment to meet Sperlin on the day Sperlin hired them to work in
his building. Soto translated during the conversation among Arteaga,
Bonilla, and Sperlin. Soto is a superintendent in another building
owned by Sperlin.
owner but that Mitchell did not inform him that the new
owner had asked him to resign.9
On May 2, 1991, the Union told Mitchell that he and
Thompson should strike. According to Mitchell, he did not
perform his regular duties that day: instead, he checked the
hot water and the boiler and saw to it that the tenants had
hot water and elevator service. Mitchell testified that when
the strike began, Thompson nailed the incinerator doors
closed by placing nails into the door jambs.10 This prevented
tenants from putting garbage in the chutes which might be-
come clogged if the strike were to be prolonged; tenants
were obliged to carry the garbage down by hand. Mitchell
testified that nails had been used before this occasion to se-
cure the incinerator doors and that this method did not dam-
age the doors but merely left a nail hole.
Mitchell testified that on the day of the strike an agent of
the Environmental Protection Agency came to the building
and Mitchell had to cut a lock on the basement door so that
the agent could gain access to the basement. According to
Mitchell, he did not have keys to the locks because Sperlin
had changed the locks for the elevator, the boiler, and for
‘‘everything,’’ without giving Mitchell new keys. On cross-
examination, Mitchell could not recall whether Sperlin had
changed the locks immediately after he bought the building
or only after the strike had occurred. Mitchell denied that on
the day of the strike he had locked the basement so that the
owners had no access to the basement and could not turn on
the boiler or provide elevator service. Mitchell denied threat-
ening to damage the building if Sperlin tried to open the
basement.
A further event relevant to the issue of Mitchell’s status
occurred in April 1991. According to Mitchell, on the first
day Sperlin owned the building, he brought Arteaga and
Bonilla with him and installed them in an empty apartment.
The men began to clean the basement. Arteaga told Mitchell
that he was the new super. Mitchell denied that Sperlin intro-
duced Arteaga to him as a contractor who had been hired to
clean out the basement and renovate some apartments. As is
described more fully below, Arteaga testified that Ralph
Sperlin hired him as the new super.11 Arteaga’s first duties
consisted of fixing the apartment where he lived. When he
moved in, Sperlin gave him the keys to the building and told
him he was beginning as the super. Arteaga was paid $500
every 2 weeks and he occupied a rent free apartment. Mitch-
ell and Thompson continued working in the building for 3
weeks. During that time, Arteaga worked with Thompson
and Bonilla taking debris out of the basement and then paint-
ing the basement.
Arteaga testified that he had been at the building about 3
weeks when he saw the employees picketing in front of the
building during the 1-day strike. Arteaga, as was his custom,
called Sperlin at 7 a.m. on the day of the strike. He told
Sperlin that everything was fine. About half an hour later,
Arteaga went down to the basement and saw that the base-
ment doors were locked with chains and padlocks. He called
Sperlin a second time to inform him of that fact. Arteaga tes-
tified that the elevators were working and that there was hot
water in the building; however, Arteaga’s car had been van-
dalized. Arteaga noticed that the incinerator doors were
nailed shut on the day of the strike; one nail was placed at
the top of each door and one at the bottom.
Porter Courtney Thompson testified that he first met Ralph
Sperlin on the day of the strike. According to Thompson,
Mitchell was there too. Sperlin spoke about a deal he was
proposing to Mitchell and Thompson. He said he knew they
were in the Union. He offered to give Thompson $3000 and
he offered $5000 to Mitchell to walk away from the job.
Sperlin said he did not want any black people working for
him. Thompson asked Sperlin why he said that and he re-
marked that he had worked for the prior owner for many
years, but Mitchell made no comment. Sperlin said ‘‘that’s
the way it got to be, that’s the way I feel.’’ Thompson told
Sperlin that he would accept Sperlin’s proposal if the Union
told him to do so. Thompson testified that Sperlin said the
building does not ‘‘make that kind of money . . . so he can’t
pay us that kind of a salary.’’ The next day, Thompson and
Mitchell spoke about Sperlin’s offer; they wondered why
Sperlin would offer them money ‘‘behind the Union.’’ They
agreed it was not right and they could not make the deal.
Thompson testified that Ralph Sperlin discharged him one
day at 8 a.m. Sperlin handed him a letter and Thompson said
he would have to take it to his union.
On cross-examination, Thompson testified that before he
began picketing on the day of the strike he took 15 minutes
to nail shut the doors to the incinerator chute because he did
not know how long the strike would last. He placed one nail
in each door. According to Thompson, the door was not
damaged because he drove the nails into existing holes left
there by a contractor who had renovated the compactors in
the basement. Thompson testified that no one instructed him
to nail the incinerator doors shut. Although Thompson testi-
fied that the elevators were running that day, he stated that
he went up and down the stairs to reach all 24 incinerator
doors in the building because is was easier and faster to go
up the stairs. Thompson used his own tools which he carried
in his lunch box.
Dovie Sperlin testified that on the morning of May 2
Arteaga called to tell him that the employees were on strike
and that they were nailing the incinerator doors shut, that the
hot water was off, and that there was no elevator service.
Arteaga also claimed that the strikers had smashed his wind-
shield and flattened a tire on his car. In addition to Arteaga’s
call, Dovie Sperlin received complaints from tenants that
morning. Both Dovie and Ralph Sperlin went to the building,
arriving at about 8 a.m. Arteaga met them in front of the
building; he showed them the damage to his car and then ac-
companied them into the building where they saw Thompson
in the process of nailing shut the incinerator doors. They
441HAGAR MANAGEMENT CORP.
12 Ralph Sperlin’s testimony about this incident was to the same
effect.
13 The union to which Soto belongs was not on strike.
14 It appears that Sperlin meant that he was giving out bills for the
rent due May 1, 1991.
15 Sperlin testified that the residents of the building are 106 black
families.
16 Sperlin later changed his testimony and testified that he asked
Mitchell if he was interested in resigning: at first Mitchell refused
but then he asked Sperlin to make an offer. Sperlin testified that he
offered Mitchell $8000 because he threatened to destroy the build-
ing.
17 Sperlin testified that he dealt with Arteaga in all matters and
that Arteaga then relayed any necessary information to Bonilla.
asked him what he was doing but Thompson made no re-
sponse.12 Ralph Sperlin recalled that he and his son had to
walk up four flight of stairs to find Thompson; the elder
Sperlin is a heart patient and he found this a difficult climb.
Dovie Sperlin testified that he saw that the doors to the base-
ment were chained and locked. He asked Mitchell to open
the locks to the basement so that Arteaga could continue
working on the basement, but Mitchell responded that
Sperlin should get out of there because if Sperlin tried to
enter the basement Mitchell would do more damage to the
building. The Sperlins then called Victor Soto and eventually
had the locks cuts off.13 When Dovie Sperlin finally gained
access to the basement 2 hours later, he saw that the elevator
switch was off and that the elevator cabs had been brought
down to the basement. Ralph Sperlin called Tri-State Eleva-
tor to restore elevator service to the building. Dovie Sperlin
went into a tenant’s apartment and tried to run the hot water;
there was none. After the Sperlins gained access to the boiler
room, they saw that the boiler had been turned off. Ralph
Sperlin turned the boiler back on and then he placed his own
lock on the boiler room; later that day, Mitchell cut that lock
off in order to enter the boiler room with the EPA inspector.
Ralph Sperlin testified that he spoke to Mitchell twice be-
fore May 1, 1991. The first conversation took place in the
building before Sperlin had closed on the property when
Mitchell was showing him the premises; this discussion did
not involve any mention of unions. The second conversation
took place at the end of April when Sperlin went around the
building giving out rent receipts for May.14 As he was fin-
ishing, Mitchell came into the building and Sperlin told him
he was the new owner. There was no mention of unions dur-
ing this conversation. Sperlin testified that he had been aware
when he purchased the building that the former owners had
a contract with Local 32B-32J. Sperlin denied telling Mitch-
ell that it was his policy to clean out the house and hire new
people whenever he bought a building. This is not Sperlin’s
policy.
Ralph Sperlin denied offering Thompson and Mitchell a
sum of money on the day of the strike. Sperlin testified that
he decided to terminate Thompson because he had caused
damage to the building during the strike. He engaged a secu-
rity company to protect the property from further damage;
Sperlin waited until May 13 to fire Thompson and the secu-
rity company came to the building beginning May 14.
Sperlin did not explain the delay between the events of the
strike and the hiring of the security company. Sperlin testi-
fied that he gave Thompson a letter of discharge and a
check. Sperlin stated that he never told Thompson that he
was fired because he was a union member and he never dis-
cussed the Union with Thompson. He specifically denied
telling Thompson that he did not want to pay him his wages
because he was black nor did he comment on Thompson’s
race.15
Ralph Sperlin testified that after he discharged Thompson,
Mitchell initiated a conversation during which Mitchell asked
Sperlin how much the latter would pay him to resign. Sperlin
testified that he would have been happy to have Mitchell’s
resignation because he had shut down the elevators and the
boiler on the day of the strike.16 On May 18 or 19, 1991,
Sperlin offered Mitchell $3000. Mitchell said he would con-
sider the offer. A few days later, Ralph Sperlin again saw
Mitchell in the lobby and Mitchell asked if Sperlin would
raise his offer. Sperlin testified that he offered him $5000 or
$6000 at that time, but Mitchell said that was not enough.
A few days after this, Sperlin saw Mitchell in the lobby and
Mitchell asked for $10,000 in return for his resignation.
Sperlin replied that if he would take $8000 they could reach
a settlement. Mitchell agreed to this figure. Sperlin asked his
attorney to draw up a form of release for Mitchell to sign
in exchange for the $8000. He also spoke to Arteaga about
becoming the superintendent on May 23 or 24. On May 24,
25, or 26, Sperlin gave the release papers to Mitchell. On
May 27, Sperlin and his family left for California to attend
a wedding. When Sperlin returned on June 2, he telephoned
Mitchell who told him that he would not sign the papers.
Ralph Sperlin testified that he never fired Mitchell but that
after Mitchell refused to sign the release he ceased perform-
ing the duties of the superintendent. When the unemployment
insurance division wrote to Sperlin about Mitchell, Sperlin
told them that Mitchell had resigned. Sperlin testified that he
never had any conversation with Mitchell about Local 32B-
32J. He denied telling Mitchell that he did not want to pay
certain sums of money to a black person.
Sperlin testified that he hired Arteaga and Bonilla as con-
tractors to clean out the basement and to renovate an apart-
ment Sperlin gave to Arteaga. Arteaga made the repairs to
the apartment and moved into it on May 3 or 4, 1991.
Sperlin testified that he offered Arteaga $500 as ‘‘base pay’’
and more money if he did additional work. He gave Arteaga
$400 for a helper. According to Sperlin, on May 23 or 24,
he offered Arteaga the job of superintendent and Bonilla the
job of porter.17
2. Discussion and conclusions as to Mitchell
and Thompson
It is apparent that in order to resolve the issues surround-
ing the departures of Mitchell and Thompson from employ-
ment, I must resolve numerous issues of credibility. This is
not a simple task. Mitchell was unable to recall dates and he
was sometimes unable to recall when events took place in re-
lation to each other. Thompson testified that Sperlin made
certain offers to him but Mitchell did not testify to these con-
versations. Ralph Sperlin testified in response to leading
questions and his answers were not always consistent. He
gave different versions of events at different times. My ob-
servation of Ralph Sperlin leads me to conclude that he did
not recall all the facts to which he was testifying and that
leading questions were used because Sperlin was not capable
of stating the events without such an aid. Further, neither
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 I note that despite all the testimony by Ralph and Dovie Sperlin
about the purported lack of elevator and hot water service to the
building on the day of the strike, Respondents do not maintain that
Mitchell was fired for these alleged failings. Similarly, there is no
testimony that Mitchell was discharged for locking the basement or
for cutting a lock to admit the EPA inspector. Therefore, there is no
reason for me to resolve the issue whether the service was halted
and if so by whom; nor need I determine whether Mitchell engaged
in misbehavior in respect to the basement locks. However, I do not
consider Dovie Sperlin to be a reliable witness. He testified in a
manner which led me to conclude that he was exaggerating and his
testimony was not always consistent with that given on the same
matters by Ralph Sperlin.
19 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
Lazar Hagar nor Victor Soto testified. Although it was stated
that Hagar is in Israel, there was no showing that Respondent
had attempted to secure his attendance at the instant hearing.
No explanation was given for Soto’s failure to testify on be-
half of Respondent. Because Soto translated for Ralph
Sperlin when he hired Arteaga and Bonilla, his testimony
would have shed light on the actual purposes for which
Arteaga and Bonilla were hired. On the record as it stands,
the allegations about statements made by Hagar stand
unrefuted, and Arteaga’s testimony about what Soto trans-
lated to him concerning his hiring by Sperlin are also
unrebutted by the only person who actually communicated
with Arteaga in the language he spoke well.
Having reviewed the evidence and having weighed the de-
meanor of the witnesses, I have concluded that the testimony
of Mitchell and Thompson should be credited. Mitchell’s tes-
timony about Sperlin’s wish to ‘‘clean house’’ and the con-
versations during which Ralph Sperlin and Hagar tried to in-
duce him to resign have the ring of truth. I believe that
Sperlin told Mitchell of his outrage that the Local 32B-32J
president earned half a million dollars per year and that
Sperlin told Thompson and Mitchell that the building did not
bring in enough money to continue paying them at the union
rate and that he did not intend to abide by the union contract.
Further, I credit Arteaga’s testimony that Sperlin told him he
would be the super. Sperlin began by giving Arteaga a rent
free apartment; this is a strong indicator that Arteaga was in-
tended to be the resident superintendent. Further, Ralph
Sperlin testified that he was giving Arteaga $500 as ‘‘base
pay’’ plus additional sums for extra work. This formulation
generally applies to a superintendent who is to perform work
over and above his normal duties in the building. Finally, the
explanation given by Ralph Sperlin for the firing of Thomp-
son 2 weeks after his alleged destruction in the building and
the negotiations with Mitchell does not make any sense and
has all the earmarks of a pretext. If Thompson was to be
fired for putting nail holes in garbage chutes, this could have
been done immediately. Thompson did not reside in the
building and if he had been barred from the premises he
could have engaged in no acts of sabotage. If it was indeed
judged necessary to hire a security service, then it has not
been shown why Respondent waited until May 14 to do this
and permitted the supposedly destructive Thompson to work
in the building until then.18 Ralph Sperlin’s testimony that
Mitchell approached him and sought to negotiate a severance
payment is similarly unpersuasive. At first, Sperlin said
Mitchell approached him but then Sperlin testified that he
himself sought Mitchell’s resignation because the latter
threatened sabotage. No reason has been intimated why a
long-serving resident superintendent with the protection of a
union should suddenly decide to resign for a relatively small
sum such as $8000: the only explanation is that the boss was
trying to force him out and had already fired the porter. If
Mitchell had indeed wanted to resign but then changed his
mind, no reason has been shown why he would stop per-
forming his duties and risk losing his job. I do not find it
conclusive that Mitchell and Thompson did not inform the
union business agent that Respondents wished to be rid of
them. The evidence shows that the two men went to a strike
headquarters for the purpose of obtaining information about
their actions during the strike. It is understandable that they
did not raise any other subjects at that time. I observed that
Mitchell and Thompson were relatively unsophisticated men
who might not have thought to tell the Union about anything
unrelated to the strike.
I credit the testimony of Mitchell and Thompson and I do
not credit the testimony of Ralph Sperlin. I find that before
the strike, Ralph Sperlin and Lazar Hagar had told Mitchell
that they wanted to ‘‘clean house’’ and that they could not
afford to pay union wages. Sperlin told Mitchell that he
would not abide by the union contract. Sperlin told Thomp-
son that he knew Thompson was in the Union and that he
would pay him $3000 to walk away. I find that Ralph
Sperlin expressed his antiunion animus when he was trying
to obtain Mitchell’s resignation and said that the union presi-
dent earned a large sum but that Sperlin would not permit
the president to get fat off his back.
I find that, in furtherance of Sperlin’s expressed intention
to clean house and to rid himself of the burden a union con-
tract, Ralph Sperlin hired Arteaga and Bonilla to replace
Mitchell and Thompson. I find that Respondent discharged
Thompson because he belonged to and supported Local 32B-
32J. I find that Respondent cited as a pretext the fact that
Thompson nailed the garbage chute doors during the strike.19
Ralph Sperlin seized on the nails to justify the discharge 2
weeks after the day of the strike; this pretext had the further
consequence of relieving Sperlin of his efforts to offer
Thompson money in exchange for his resignation. The testi-
mony about the nail holes convinces me that they were small
and inconspicuous and did not cause any damage to the
building. I find that Respondent discharged Mitchell because
he belonged to and supported Local 32B-32J. I do not credit
the testimony that Mitchell ceased performing his duties and
resigned: Mitchell was told that he had to go because Sperlin
could not afford to pay him union wages and he was offered
a payment of $8000. Mitchell was fired but Sperlin contin-
ued to negotiate with him in the hope of avoiding litigation.
Eventually, Mitchell contacted the unemployment office. By
offering Mitchell and Thompson sums of money to induce
them to resign, Respondent violated Section 8(a)(3) and (1)
of the Act. Respondent further violated Section 8(a)(3) and
(1) by discharging Mitchell and Thompson.
3. Wilfredo Arteaga and Venicio Bonilla
Arteaga testified that Ralph Sperlin hired him and said that
he would be the superintendent in the building. His first du-
ties consisted of fixing the apartment where he was to live.
443HAGAR MANAGEMENT CORP.
20 When Arteaga received his pay, he also got $400 in cash to give
to Bonilla for his services as a porter. Bonilla was also given a room
in the basement.
21 May 31 was a Friday. The correct date for Sunday is June 2,
1991.
22 Arteaga claimed that the woman who answered the phone said
she was Sperlin’s wife.
23 July 4, 1991, fell on a Thursday.
24 On cross-examination, Arteaga changed his testimony to say that
Sperlin asked to see his residency card before July 4th.
25 This was a Saturday. It is clear that Arteaga is wrong about the
day he spoke to Sperlin. Sperlin and his son are Orthodox Jews and
do not transact any business on Saturday. It is clear to me that Ralph
Sperlin was not at the building on July 6, 1991.
As a super, Arteaga was paid $500 every 2 weeks and he
had a rent free apartment.20 Ralph Sperlin assigned Arteaga
his daily tasks every morning. Arteaga said that his duties as
the super involved attending to problems in the apartments.
Tenants would notify him of needed repairs directly or
through the management office. Arteaga hired a painter for
1 day at Sperlin’s direction. Arteaga testified that he never
transfered, suspended, laid off, recalled, promoted, fired, nor
disciplined employees. He did not grant any raises. There is
no evidence that Arteaga was a statutory supervisor.
Arteaga testified that the boiler room flooded in the early
morning of May 31, 1991, when a rainstorm caused the drain
pipes to become clogged. The pump in the basement was not
working and, at daybreak, Arteaga called Hagar who in-
structed him to get a pump from Soto. As a result of the
flood, the boiler, the elevators, the oil burner, and the hall
lights were all out of order. Arteaga claimed that the flood
occurred early Sunday morning and that he called Hagar the
next day, on Monday morning.21 He had tried calling Sperlin
at home but the latter’s ‘‘wife’’ said he was out of town and
that he should call Hagar.22 Arteaga did not have Hagar’s
home number.
On June 10, 1991, Sperlin called Arteaga to a meeting
where Victor Soto again acted as translator. At that meeting,
Sperlin said that he was unhappy with Arteaga’s services be-
cause he did not work Saturday and Sunday. Although
Arteaga protested that he was not supposed to work on
weekends, Sperlin said that he had been given an apartment
for that purpose. Sperlin explained that Arteaga did not have
to perform work in the building, but that he had to be avail-
able in case of emergency and he had to see whether people
moved into or out of the building. Sperlin told Arteaga that
his job was in jeopardy. It is clear from Arteaga’s testimony
and his affidavit that he was unhappy that Sperlin expected
him to be on call during the weekend and that he resented
the fact that Sperlin often called him to make sure he was
in the building and that everything was in order. Arteaga ad-
mitted that on this occasion Sperlin mentioned the fact that
he should look for another job; as will be seen below,
Sperlin maintains that he told Arteaga that he could not re-
main as the super past the end of the month.
Arteaga testified that he had been discussing the pressures
he felt on the job with a friend who advised him to call
Local 377 for assistance. Arteaga testified that he called the
Local on June 19, 1991, and he went to the union hall on
June 22, 1991, to speak to Frasca who gave him three au-
thorization cards. According to Arteaga, he filled out a card
and paid $100 to Local 377 when he returned the card on
June 28. On that day, Frasca advised him to keep working
and said that Local 377 would write to Sperlin saying that
Arteaga was protected by the Union. Sometime later, appar-
ently July 2 or 4, according to Arteaga, he went with porter
Bonilla to Local 377 so that Bonilla could hand in his com-
pleted authorization card. Arteaga’s version of these events
changed on cross-examination when he stated that he went
to Local 377 on June 28, 1991, and that about a week later
he returned a signed card to the Union and then informed
Bonilla that he had become a member. At this time, Arteaga
offered Bonilla an authorization card. After giving this sec-
ond version of the signing, Arteaga sought to change his tes-
timony again. His answers became nonresponsive and with
each answer the story changed and changed again. I must
conclude that Arteaga’s testimony about when and how he
signed a card for Local 377 is unreliable. The Local 377 au-
thorization cards that were admitted into evidence show that
Bonilla’s card was received by the Union on July 8, 1992,
and that Arteaga’s was received on July 15, 1991.
Arteaga testified that he worked on July 4, 1991, because
Sperlin had told him it was not a holiday for him.23 On July
5, Arteaga and Bonilla were in the lobby of the building
when Ralph Sperlin appeared and accused Arteaga of not
having been present the day before. Arteaga protested that he
had indeed been at work. Then Sperlin asked to see
Arteaga’s residency card. After being shown Arteaga’s card,
Sperlin told him that it was ‘‘false.’’24 Arteaga testified that
he next spoke to Sperlin on July 6, 1991.25 Arteaga was in
the basement with a boiler repairman and Sperlin came in the
morning and was ‘‘strange.’’ He told Arteaga, ‘‘you brought
the union in to my building.’’ Then Arteaga told Sperlin that
he needed material to fix an apartment, but Sperlin said he
was not interested in that. Ralph Sperlin told Arteaga that he
had a lot of problems; tenants were complaining that there
was no hot water and no water pressure. Arteaga replied that
water pressure in the building was bad. Later that day,
Arteaga spoke to Sperlin again in the basement. Sperlin
asked Arteaga for the keys, saying that he no longer wanted
Arteaga to work in the building. Arteaga asked for a letter
stating the reasons for his discharge, but Sperlin refused and
said that he would send the immigration agents and the po-
lice to see Arteaga. Sperlin said it was his building and he
could do what he wished; Arteaga could call the Union if he
chose. The next day, Soto called Arteaga and asked for the
keys, but Arteaga would not give them up unless Sperlin
gave him a letter. At some point, according to Arteaga, he
saw Sperlin and asked him for 2 weeks’ pay. Arteaga did not
work in the building after that time, but he remained in his
apartment. On July 8, Arteaga saw Sperlin again and the lat-
ter asked him to pay rent for the apartment.
On cross-examination, Arteaga testified that he has held
various jobs in construction. Arteaga testified that the time
he was hired by Sperlin, he had been engaged for about 1
year in fixing up the premises occupied by his church, and
that he spent 15 to 20 hours per week on this task. Later,
he changed his testimony to say that he began work on the
church only in September 1991. Although he resisted admit-
ting the fact until he was confronted with his business card,
Arteaga acknowledged that he has had his own construction
company during the period relevant to the instant proceeding.
The record shows that Ralph Sperlin suspected that Arteaga
was not doing his work in the building because he was busy
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 Bonilla’s affidavit states that he and Arteaga went to Local 377
after July 4.
27 Apparently, Samuel was the replacement for Arteaga. 28 Arteaga filed a charge on July 9, 1991, in Case 29–CA–15842.
with his construction company and especially with work in
his church.
On July 19, 1991, after he was fired, Arteaga spent the
hours from 7 to 11 p.m. in church. A faucet was left open
in Arteaga’s apartment and Arteaga’s apartment as well as
others in the building were flooded.
Venicio Bonilla testified that at the end of June or begin-
ning of July, Arteaga discussed Local 377 with him and
asked Bonilla if he wished to become a member of the
Union. At first, Bonilla said no, but on Arteaga’s second re-
quest a day later Bonilla agreed to join Local 377. This was
around July 3 or 7.26 Bonilla testified that he decided to join
the Union in order to be protected from losing his job.
Bonilla testified that in early August, he noticed some doc-
uments, including a receipt from Local 377, missing from the
basement room where he lived. After that, according to
Bonilla, Sperlin stopped speaking to him. Bonilla testified
that on August 6, Samuel, the new super, said he would be
fired on August 8 because Bonilla had been at the Union.27
Sperlin was not present on this occasion. Then, Bonilla
changed his testimony to say that Sperlin was present and
that Samuel translated Bonilla’s question why he was being
fired. According to Bonilla, Sperlin said in English, ‘‘you
problem, the union.’’
On cross-examination, Bonilla acknowledged that his affi-
davit given to a Board agent stated that the thief had stolen
his social security card but had left the union receipt. Bonilla
explained that he looked later and saw that the receipt from
Local 377 was missing. Bonilla’s affidavit states that he did
not work on July 4 but went to pick up his cousin at the
airport. According to the affidavit, Sperlin was angry and
right after this Bonilla went to the Local 377 office and
signed an authorization card. Bonilla, who speaks only Span-
ish, repeatedly testified that Sperlin said to him in English,
‘‘you problem, the union.’’ I noted that Bonilla apparently
was able to say these four words whenever he was ques-
tioned about Sperlin.
Salvatore Frasca, the financial secretary-treasurer of Local
377, testified that Arteaga visited him in June 1991, signed
a card, and paid his initiation fee. Frasca stated that Bonilla
also signed a card in June. Frasca testified that on July 1,
he sent a letter to 1025-1045 Associates requesting negotia-
tions. The letter, dated July 1, 1991, asserts, ‘‘We represent
the employees.’’ According to Frasca, on July 2 he received
a call from a person who identified himself as Hagar and
said he was the owner of the premises. Hagar said he had
received the letter, that he did not want a union, and that he
would not negotiate. Hagar then hung up. Frasca testified
that on July 1 or 2 of he filed a petition for representation
for the employees with the New York State Labor Relations
Board. I note that the date on this petition written in by the
notary, a secretary in Frasca’s office, is ‘‘2d July’’ but it
clearly has been altered. The New York State Labor Rela-
tions Board records show that the petition of Local 377 was
filed on July 10, 1991.
Ralph Sperlin testified that on June 2 there were many ten-
ant complaints about lack of elevator service, lack of hot
water, and no lights in the hallways. Sperlin went to the
building and spoke to Arteaga, remonstrating with him about
the lack of service. Sperlin told Arteaga that floods are com-
monplace but that Arteaga should have taken steps to correct
the situation. Sperlin claimed that on at least a dozen occa-
sions he went to the building looking for Arteaga but did not
find him there. Arteaga’s wife gave Sperlin different excuses
for her husband’s absence each time. On about June 10,
1991, Ralph Sperlin took Arteaga to see Victor Soto; Sperlin
speaks very little Spanish and he believed that there was a
communication gap between him and Arteaga which could
be bridged by Soto. With Soto translating, Sperlin told
Arteaga that he had to work 5 days per week in the building
if he wanted to retain his job and that he had to be available
in case of emergencies. According to Sperlin, Arteaga made
a ‘‘sour face’’ after he received these instructions. Following
some prompting by counsel for the Respondent, Ralph
Sperlin recalled that at this meeting he had Soto tell Arteaga
that he was fired but that he could stay until June 26. Ac-
cording to Sperlin, after June 26 or 27, Arteaga was no
longer the super and he performed no work in the building.
Sperlin denied having any knowledge of Arteaga’s member-
ship in Local 377 when he discharged him. In fact, Ralph
Sperlin testified, the first notice he had of Arteaga’s union
activity was when he received a notice from the Regional
Office.28 Sperlin denied ever receiving the letter dated July
1 from Local 377. Sperlin explained that Hagar’s duties in-
volved bookkeeping, preparing the payroll, and collecting un-
paid rent. Hagar had no responsibilities for dealing with
unions and it would not have been his responsibility to re-
spond to a letter such as the letter purportedly sent by Local
377 on July 1, 1991. Only Sperlin himself would have dealt
with a union matter.
Ralph Sperlin testified that when he fired Arteaga, he told
Bonilla that he could stay on and work if he wished to do
so. Bonilla did in fact remain as the porter until late July or
early August when he told Sperlin that he was moving out.
Sperlin denied that he ever told Bonilla he suspected him of
being a union member and he has no knowledge of any
items that may have been taken from Bonilla’s possessions
in the basement.
4. Discussion and conclusions as to Arteaga and Bonilla
The credibility issues relating to Arteaga’s and Bonilla’s
discharges are difficult to resolve. As indicated above, I did
not find that Sperlin was a credible or reliable witness with
respect to the terminations of Mitchell and Thompson. The
same holds true with respect to the discharge of Arteaga.
Sperlin did not testify that at the meeting of June 10, 1991,
he instructed Soto to tell Arteaga that he was fired and had
to leave after the end of June until he was prompted to do
so by counsel for Respondent. Although Arteaga testified
specifically that Sperlin told him he had to work on the
Fourth of July, Sperlin did not deny Arteaga’s version of the
incident. If I were to credit Arteaga, I would find that he was
not discharged until some time between July 5 and July 8,
1991; this would make sense in light of Arteaga’s filing of
a charge on July 9, 1991. However, I am hesitant to credit
Arteaga in all matters. His testimony about the timing of his
visits to Local 377 and the signing of the card and payment
of the initiation fee were shifting, inconsistent, and contrary
445HAGAR MANAGEMENT CORP.
29 Because Frasca impressed me as such an unreliable witness, I
cannot make any finding that this letter was ever sent.
30 I note that I did not credit Frasca’s testimony about the date he
sent the letter which is dated July 1, 1991. Sperlin denied ever see-
ing this letter. Although Local 377 filed its petition with the State
Board on July 10, there is no proof of when, if ever, it was served
on Respondent. 31 Tilden Arms Management Co., 276 NLRB 1111, 1117 (1985).
to the documentary evidence. In addition, Frasca’s testimony
that Arteaga and Bonilla joined the Union in June is contrary
to the documentary evidence: the record shows that Bonilla
joined on July 8 and Arteaga joined on July 15. Frasca testi-
fied that he filed a petition with the State Board on July 2;
the evidence shows that the petition was filed on July 10,
1991. I therefore do not believe that Frasca sent a letter to
Respondent on July 1, 1991, claiming to represent ‘‘the em-
ployees.’’29 I am also unwilling to credit Bonilla about his
discharge by Sperlin. First, Bonilla testified that on August
6, 1991, he and Samuel spoke alone and Samuel told him
he would be fired in 2 days because he had been at the
Union; then Bonilla changed his testimony to say that
Sperlin was present and told him ‘‘you problem, the union.’’
Bonilla had obviously rehearsed this phrase and I noted that
he took care to say it in English at every opportunity. This
testimony impressed me as contrived. Further, Bonilla went
to great lengths to detail a theft from his room which would
have given the intruder access to proof of Bonilla’s member-
ship in Local 377. But Bonilla’s testimony about this inci-
dent was shifting and inconsistent and there is no proof that
Respondent was involved in this event.
Based on the above, I find that Sperlin discharged Arteaga
after July 4 and by July 8, 1991, because Sperlin believed
that Arteaga was not properly performing his duties in the
building. I do not find that Sperlin had any notice that
Arteaga had contacted Local 377 when Sperlin fired Arteaga.
With respect to the discharge of Bonilla, I do not credit his
testimony that Sperlin said he was being discharged for
union activity. As discussed above, I found Bonilla to be un-
convincing. Although I also found Sperlin unconvincing, the
General Counsel has the burden of proof in this case and
must make out a prima facie case. There has not been any
showing that by August 8, 1991, Sperlin was aware that
Bonilla had joined Local 377.30 The General Counsel urges
me to find that once Sperlin was aware of Arteaga’s union
activity, he assumed that Bonilla was also a member of a
union; however, I do not find any basis for engaging in this
sort of speculation. My finding that Bonilla is not reliable
leads me to conclude that the General Counsel has not prov-
en by a preponderance of the evidence that Bonilla was dis-
charged for union activity.
5. Refusal to bargain with Local 32B-32J
The complaint alleges and Respondent admits that when
Respondent Associates purchased the building from Blue
Star on April 23, 1991, it continued to operate the business
in basically unchanged form, hiring as a majority of its em-
ployees individuals who were previously employees of Blue
Star. I have found above that Mitchell was not a supervisor:
therefore, I find that Respondent hired both employees of
Blue Star, Mitchell and Thompson, and I find that Respond-
ent is a successor of Blue Star. I find that the following em-
ployees of Respondent constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All full time and regular part time superintendents and
porters employed at 1025-1045 St. John’s Place, Brook-
lyn, New York, excluding all other employees, office
clerical employees, guards and supervisors as defined in
Section 2(11) of the Act.
There is no dispute that Local 32B-32J was the exclusive
collective-bargaining representative of the unit employees
when Respondent purchased the building. I find that since
April 23, 1991, Local 32B-32J has been the exclusive collec-
tive-bargaining representative of Respondent’s employees in
the appropriate unit described above. The facts make it clear,
as does Respondent’s answer denying successorship, that Re-
spondent has refused to recognize and bargain with Local
32B-32J as the exclusive collective-bargaining representative
of its employees in the appropriate unit. It is immaterial that
the Union never requested bargaining; from the first day
Ralph Sperlin sought to replace the employees who belonged
to the Union with nonunion workers, he informed his em-
ployee that he did not want the Union and that he would not
pay union wages. Sperlin made it clear that he wanted to be
rid of Mitchell and Thompson so that he could be rid of any
obligations to bargain with Local 32B-32J. I find that Re-
spondent refused to recognize and bargain with Local 32B-
32J in violation of Section 8(a)(5) and (1) of the Act.31
CONCLUSIONS OF LAW
1. Respondents Hagar Management Corp. and 1025-1045
Associates, Inc. are joint employers and a successor em-
ployer to Blue Star of the employees in the following appro-
priate unit:
All full time and regular part time superintendents and
porters employed at 1025-1045 St. John’s Place, Brook-
lyn, New York, excluding all other employees, office
clerical employees, guards and supervisors as defined in
Section 2(11) of the Act.
2. At all material times, Local 32B-32J has been the exclu-
sive representative of the employees in the appropriate unit
for purposes of collective bargaining.
3. By refusing since April 23, 1991, to bargain with Local
32B-32J, Respondents have violated Section 8(a)(5) and (1)
of the Act.
4. By offering employees Anthony Mitchell and Courtney
Thompson sums of money to induce them to resign because
they belonged to Local 32B-32J and by discharging them,
Respondents violated Section 8(a)(3) and (1) of the Act.
5. The General Counsel has not proved that Respondents
engaged in any unfair labor practices other than those found
here.
REMEDY
Having found that the Respondents have engaged in cer-
tain unfair labor practices, I find that they must be ordered
to cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
33 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
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.’’
Having discriminatorily discharged employees, Respond-
ents must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quar-
terly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended32
ORDER
The Respondents, Hagar Management Corp. and 1025-
1045 Associates, Inc., Brooklyn, New York, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Offering its employees sums of money to induce them
to resign and discharging its employees because they belong
to Local 32B-32J or any other union.
(b) In any like or related manner interfering with, restrain-
ing, 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 ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the appropriate unit de-
scribed above concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the under-
standing in a signed agreement.
(b) Offer Anthony Mitchell and Courtney Thompson im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
or privileges previously enjoyed, 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 section of the decision.
(c) Remove from Respondents’ 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 payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at the building in Brooklyn, New York, copies of
the attached notice marked ‘‘Appendix.’’33 Copies of the no-
tice, on forms provided by the Regional Director for Region
29, after being signed by the Respondents’ authorized rep-
resentative, shall be posted by the Respondents immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondents to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 vio-
lated 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 offer you money to resign and WE WILL
NOT discharge any of you for supporting Local 32B-32J 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 guaran-
teed 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 condi-
tions of employment for our employees in the bargaining
unit:
All full time and regular part time superintendents and
porters employed at 1025-1045 St. John’s Place, Brook-
lyn, New York, excluding all other employees, office
clerical employees, guards and supervisors as defined in
Section 2(11) of the Act.
WE WILL offer Anthony Mitchell and Courtney Thompson
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
or privileges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings, plus in-
terest.
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.
HAGAR MANAGEMENT CORP. AND 1025-1045
ASSOCIATES, INC.