Residential Management

National Labor Relations Board - Board Decisions

Jul 23, 1993

311 N.L.R.B. 1174 (N.L.R.B. 1993)

1174
311 NLRB No. 150
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On April 6, 1993, Administrative Law Judge James F. Morton
issued the attached decision. On April 26, 1993, the judge issued an
errata to his decision. The Respondents filed exceptions and a sup-
porting brief. The General Counsel filed a motion to strike the ex-
ceptions and a brief in support of the judge’s decision.
2 We deny the General Counsel’s motion to strike exceptions. Ad-
ditionally, because we have concluded that these exceptions lack
merit, we find it unnecessary to grant the General Counsel’s alter-
native request for an extension of time to file an answering brief.
3 The Respondents has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule the ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance 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.
1 The name appears as corrected at the hearing.
Residential Management, Inc. and 720 Riverside
Owners Corp., Joint Employers and Rafael Ra-
mirez. Case 2–CA–24877
July 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The question presented here is whether the judge
correctly found that the Respondent violated Section
8(a)(3) and (1) of the Act by terminating Rafael Rami-
rez because he supported the Union.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions2
and briefs and has decided to affirm the judge’s rul-
ings, findings,3 and conclusions and to adopt the rec-
ommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Resi-
dential Management, Inc. and 720 Riverside Owners
Corp., joint employers, New York, New York, their of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
Substitute the following for paragraph 2(c).
‘‘(c) Post at its building and office copies of the at-
tached notice marked Appendix.4 Copies of the notice,
on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.’’
David E. Leach III, David Pollack, and Nancy Reibstein,
Esqs., for the General Counsel.
Jerold Probst, Esq., for Residential Management, Inc. and
720 Riverside Owners Corp.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint alleges that Residential Management, Inc. (Residential)
and 720 Riverside Owners Corp.1 (Riverside) are joint em-
ployers and that they, in violation of Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act), discharged an
employee because he supported Local 32B-32J, Service Em-
ployees International Union, AFL–CIO (the Union). The an-
swer places in issue the joint employer allegation and the
reason for the employee’s discharge.
I heard this case in New York City on September 24 and
December 8, 1992, and on January 14, 1993. On the entire
record, including my observation of the demeanor of the wit-
nesses and after consideration of the brief filed by the Gen-
eral Counsel and the brief filed by counsel for Residential
and Riverside, I make the following
FINDINGS OF FACT
I. JURISDICTION—LABOR ORGANIZATION
In Case 2–RC–20966, Riverside signed a Stipulated Elec-
tion Agreement on November 24, 1990, in which it acknowl-
edged that it is an employer which owns a residential apart-
ment building and that, in its operations annually, it meets
the Board’s jurisdictional standard for such building.
The Union was certified in that case as the exclusive col-
lective-bargaining representative of Riverside’s employees.
II. THE JOINT EMPLOYER ISSUE
Residential manages the apartment building owned by Riv-
erside. Residential’s manager hires the employees in that
building after receiving approval therefor from Riverside. He
also directs the work of the superintendent and the porter
who take care of the building. I find that Residential and
Riverside are the joint employer of these employees. In that
regard, see Uptown Associates, 307 NLRB 1286 (1992). See
also Maayan Estates, 253 NLRB 1214 (1981).
III. THE ALLEGED UNFAIR LABOR PRACTICES
Riverside bought the apartment building in August 1989.
It asserts that, at that time, there was only one maintenance
employee for that building, the building superintendent, Jona-
than Rodriquez, and that it hired the Charging Party, Rafael
Ramirez, a month later as a temporary employee. It contends
that it hired Ramirez to assist Rodriquez for the approxi-
mately 1-1/2-year period that the building was undergoing
extensive refurbishing and that it terminated his employment
solely because his services were no longer needed, i.e., when
the renovation work was substantially completed at the end
of 1990. The General Counsel’s position is that Ramirez had
worked steadily at the building as a porter, assisting Rod-
riquez, since 1987 and that he was discharged because he
voted for the Union in the election held in Case 2–RC–
20966.
1175RESIDENTIAL MANAGEMENT
2 The General Counsel also sought to show that, almost imme-
diately after Ramirez was discharged, the Respondent hired a re-
placement for him. The evidence thereon is inconclusive and con-
fusing. Ramirez related that, a week after he was discharged, he saw
a ‘‘Mexican,’’ named Dionel, doing the same work he did, cleaning
the street and the floors. Later, he testified that a woman who man-
ages the building told him 6 or 7 years ago that this individual,
Dionel, was employed by the new landlord, apparently a reference
to Riverside. He also testified, during his cross-examination, that he
did not know the name of the person whom he claimed he saw
working for Riverside. Ramirez’ testimony as to whom he saw
seems to be a confusion of events in early 1991 and occurrences that
took place when he first began working at the building in 1987. I
cannot place any weight on this aspect of his testimony.
Ramirez testified that he began working as a porter at the
building in 1987, 2 years before Riverside bought it. He re-
lated that he worked full time for the prior owner, that he
was paid in cash each week, and that no deductions were
taken from his wages for taxes. He related further that a
woman named Vicky managed the building then and that she
was the one who referred him to Joshua Frankel, the man-
aging agent for Residential, and that she told him, Ramirez,
that there was a new owner of the building. Ramirez went
to Frankel’s office where he was asked for his name and so-
cial security number. His testimony was that he continued to
work at the building without interruption, doing the same
work. The only change, according to him, was that he was
paid by Riverside’s checks, from which deductions were
made.
Frankel testified that, when Riverside bought the building
in August 1989, there was only one maintenance employee
there, Rodriquez, and that he, Frankel, arranged to have Ra-
mirez hired a month later as a temporary employee after get-
ting approved to do so from Riverside’s president, Labe
Twerski. Twerski did not testify.
Payroll records of Riverside show that Ramirez earned
$1200 in the third quarter of 1989. His salary was $200 per
week. Thus, he worked 6 weeks in that quarter. As that quar-
ter ended on September 30, it is evident that he started work-
ing for Riverside when it bought the building in August, and
not a month later as Frankel’s account would have it. I credit
Ramirez’ account that he had worked steadily at that building
as a porter since about 1987. Frankel’s account as to the cir-
cumstances of Ramirez’ hiring was not corroborated either
by Twerski or by Rodriquez, whom Frankel named as the
person who was authorized to hire Ramirez.
Ramirez and Rodriquez signed union authorization cards
in 1990. The Union thereupon filed the petition in Case 2–
RC–20966. As noted above, a Stipulated Election Agreement
in that case was signed. The election therein was held on De-
cember 12, 1990. The Union won, 2–0. Obviously, both
Rodriquez and Ramirez had cast their ballots in favor of rep-
resentation by the Union. On December 20, the Board issued
a certification of representative to the Union. Four days later,
Riverside’s president, Twerski, wrote Ramirez, stating, ‘‘as
per our agreement when you were hired, we are hereby ter-
minating your employment as of January 4, 1991.’’ There is
no evidence of such agreement in the record testimony as to
the circumstances in which Ramirez became an employee of
Riverside.
On the same date, December 20, that the certification of
representative was issued to the Union, Riverside’s counsel
sent to the Board’s Regional Office a copy of a handwritten
note, signed by Building Superintendent Rodriquez which
stated that he had mistakenly voted for the Union as he had
‘‘intended to write NO.’’ Although Respondent’s counsel
asked, in his letter, to discuss this matter, the record before
me does not disclose whether there was any response.
Ramirez’ employment ended on January 4, 1991.
After the Union was certified, one of its business agents
asked Frankel to meet with him for the purpose of negoti-
ating a collective-bargaining agreement for Riverside’s em-
ployees. The Union’s business representative testified
credibly that Frankel told him that his ‘‘lawyer should never
have agreed to an election and that he is not going to deal
with the Union.’’ As a consequence the Union, on January
18, 1991, filed an unfair labor practice charge in Case 2–
CA–25257, alleging that Riverside unlawfully refused to bar-
gain collectively with it. A complaint issued in that case and
had been consolidated for hearing with the complaint in the
instant case. After the hearing opening, an informal settle-
ment agreement was reached in that case, and, as result, that
case was severed from this one.
The credited evidence in this case discloses that Ramirez
had been employed by Riverside as a full-time employee,
that he signed a union authorization card and voted for the
Union, that Riverside had to be aware that he supported the
Union by having voted for it, that Riverside decided to dis-
charge Ramirez virtually at the moment the Union was cer-
tified as bargaining agent, that Ramirez was informed by
Riverside that he was discharged pursuant to an ‘‘agree-
ment’’ that did not exist, and that Frankel then was not the
least bit disposed to accept the Union as the employees’ bar-
gaining representative. I find, based on these considerations,2
that Ramirez’ support for the Union was a factor in the Re-
spondent’s decision to discharge Ramirez and, accordingly, I
find also that the General Counsel has made out a prima
facie showing that Ramirez had been discharged to discour-
age support for the Union.
Under the Board’s holding in Wright Line, 251 NLRB
1083 (1980), the Respondent has the burden, once a prima
facie case has been established, of proving that it would
have, nonetheless, taken the same action for a nondiscrim-
inatory reason. To that end, the Respondent offered Frankel’s
testimony that extensive renovation work was begun at the
building in the latter part of 1989 and that it was substan-
tially completed at the end of 1990. The Respondent’s
records further listed only Rodriquez as maintenance em-
ployee throughout 1991. Frankel further testified, however,
that, at the beginning of 1992, a number of maintenance em-
ployees were hired in an effort to end a rent strike of
Riverside’s tenants. He related that several maintenance em-
ployees were hired then to take care of the tenants’ com-
plaints. That rent strike had led to a protracted suit by the
tenants against Riverside.
The evidence adduced by the Respondent fails to persuade
me that it would have discharged Ramirez for nondiscrim-
inatory reasons, regardless of his union activities. Accord-
ingly, I find that the Respondent discharged Ramirez in order
to discourage its employees from supporting the Union.
CONCLUSIONS OF LAW
1. The Respondent is a joint employer within the meaning
of Section 2(2), (6), and (7) of the Act.
1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
4 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.’’
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. The Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(1) and (3) of the Act by
having discharged one of its employees on January 4, 1991,
because he supported the Union.
4. This unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in an un-
fair labor practice in violation of Section 8(a)(1) and (3) of
the Act, I shall recommend that the Respondent be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully discharged
its employee, Rafael Ramirez, I shall recommend that it be
ordered to offer him immediate and full reinstatement to his
former position or, if it no longer exists, to a substantially
equivalent position. The Respondent shall further be ordered
to make him whole for any loss of earnings and other bene-
fits that he suffered as a result of his unlawful discharge,
with backpay to be computed in the manner set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), and with inter-
est to be computed in the manner set forth in New Horizons
for the Retarded, 283 NLRB 1173 (1987). I shall also rec-
ommend that the Respondent remove from its records any
reference to his unlawful discharge, provide Ramirez with
written notice of the removal, and inform him that the un-
lawful discharge will not be used as a basis for future per-
sonnel action. See Sterling Sugars, 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, a joint employer consisting of 720 River-
side Owners Corp. and Residential Management, Inc., New
York, New York, their officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging any employee in order to discourage mem-
bership in Local 32B-32J, Service Employees International
Union, AFL–CIO (the Union).
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Rafael Ramirez immediate and full reinstatement
to his position of employment or, if it no longer exists, to
a substantially equivalent position and make him whole, with
interest, for any loss in wages and benefits he suffered as a
result of his discharge, in the manner set forth in the remedy
section above.
(b) Remove from their files any reference to his unlawful
discharge and notify him in writing that this has been done
and that his discharge will not be used against him in any
way.
(c) Post at its building and office copies of the attached
notice marked ‘‘Appendix.’’4 Copies of the notice, on forms
provided by the Regional Director for Region 3, 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 in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(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) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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 discharge any of you because of your union
sympathies or union activities.
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 offer Rafael Ramirez his job back and make him
whole, with interest, for wages and benefits he lost because
we discharged him for having supported Local 32B-32J,
Service Employees International Union, AFL–CIO.
WE WILL remove all references in our files to his unlawful
discharge and WE WILL notify him in writing that we did this
and WE WILL also inform him in writing that his discharge
will not be used against him in any way.
720 RIVERSIDE OWNERS CORP.
RESIDENTIAL MANAGEMENT, INC.