833 Central Owners Corp./CO BRG Realty

National Labor Relations Board - Board Decisions

Feb 13, 2013

359 N.L.R.B. 592 (N.L.R.B. 2013)

592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 66

833 Central Owners Corp. and Local 621, United
Workers of America. Case 29–CA–070910
February 13, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On September 14, 2012, Administrative Law Judge
William Nelson Cates issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
Acting General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,
1
and conclusions as amended,
2
and to adopt the
recommended Order as modified and set forth in full
below.
3

CONCLUSIONS OF LAW
1. The Respondent, 833 Central Owners Corp., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union, Local 621, United Workers of America,
is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening employee Ezra Shikarchy with dis-
charge and unspecified reprisals in order to coerce him
into refraining from union activity, the Respondent vio-
lated Section 8(a)(1) of the Act.
4. By impliedly promising benefits to Ezra Shikarchy
on the condition that he refrain from union activity, the
Respondent violated Section 8(a)(1) of the Act.
5. By warning, suspending, and discharging Shikarchy
because of his union activity, the Respondent violated
Section 8(a)(3) and (1) of the Act.
6. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
2 The judge inadvertently omitted the conclusions of law from his
decision. We supply them below.
3 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and in accordance with our recent
decision in Latino Express, Inc., 359 NLRB No. 44 (2012). We shall
substitute a new notice to conform to the Order as modified.
ORDER
The National Labor Relations Board orders that the
Respondent, 833 Central Owners Corp., Far Rockaway,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with discharge or other re-
prisals if they support the Union or engage in union ac-
tivities.
(b) Impliedly promising benefits to employees in order
to discourage them from supporting the Union or engag-
ing in union activities.
(c) Warning, suspending, discharging, or otherwise
discriminating against employees because of their sup-
port for and activities on behalf of the Union or any other
labor organization.
(d) 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) Within 14 days from the date of this Order, offer
Ezra Shikarchy full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Ezra Shikarchy whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the remedy
section of the judge’s decision.
(c) Compensate Ezra Shikarchy for any adverse in-
come tax consequences of receiving his backpay in one
lump sum, and file a report with the Social Security Ad-
ministration allocating the backpay award to the appro-
priate calendar quarters.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful warnings,
suspension, and discharge of Ezra Shikarchy, and within
3 days thereafter, notify him in writing that this has been
done and that the warnings, suspension, and discharge
will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Far Rockaway, New York facility, copies of the at-
833 CENTRAL OWNERS CORP. 593

tached notice marked “Appendix.”
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 and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, or other electronic means, if the Respondent cus-
tomarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since September 2011.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 29 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that 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

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten you with discharge or other re-
prisals if you support the Union or engage in union activ-
ities.

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT promise you benefits in order to dis-
courage you from supporting the Union or engaging in
union activities.
WE WILL NOT warn, suspend, discharge, or otherwise
discriminate against you because you support the Union
or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ezra Shikarchy full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Ezra Shikarchy whole for any loss of
earnings and other benefits resulting from his suspension
and discharge, less any net interim earnings, plus inter-
est.
WE WILL compensate Ezra Shikarchy for any adverse
income tax consequences of receiving his backpay in one
lump sum, and WE WILL file a report with the Social Se-
curity Administration allocating the backpay award to
the appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warnings issued to, suspension of, and discharge of
Ezra Shikarchy, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the
warnings, suspension, and discharge will not be used
against him in any way.

833 CENTRAL OWNERS CORP.

Michael Berger, Esq., for the Acting General Counsel.1
Ernest R Stolzer, Esq. and Hilary L. Moreira, Esq., for the Re-
spondent.2
Bryan C. McCarthy, Esq., for the Charging Party.3

DECISION
STATEMENT OF THE CASE
WILLIAM NELSON CATES, Administrative Law Judge. This
case was tried in Brooklyn, New York, on May 7 and 8, 2012.4
The Union filed a charge initiating this matter on January 15,
2012 (thereafter amended), and the Acting General Counsel

1 I shall refer to counsel for the Acting General Counsel as counsel
for the Government and to the National Labor Relations Board (the
Board) as the Government.
2 I shall refer to counsel for the Respondent as counsel for the Com-
pany and I shall refer to the Respondent as the Company or coopera-
tive.
3 I shall refer to counsel for the Charging Party as counsel for the
Union and I shall refer to the Charging Party as the Union.
4 All dates are 2011, unless otherwise indicated.
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

issued the complaint on February 21, 2012.5 The Government
alleges the Company engaged in various acts of interference
with its employees’ protected rights. The Government also
alleges the Company issued four written warnings on the same
day to its employee Ezra Shikarchy (Shikarchy), later suspend-
ed him for 3 days, and thereafter discharged him because of his
support for the Union.
The Company contends it warned, suspended, and terminat-
ed Shikarchy because he was not effectively and efficiently
fulfilling his job duties.
The parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs. I carefully observed the demeanor of
the witnesses as they testified and I rely on those observations
in making credibility determinations here. I have studied the
whole record,6 and based on the detailed findings and analysis
below, I conclude and find the Company violated the Act as
alleged in the complaint.
FINDINGS OF FACT
I. JURISDICTION, SUPERVISORY/AGENCY STATUS, AND
LABOR ORGANIZATION STATUS
The Company is a domestic corporation with an office and
place of business at 833 Central Avenue, Far Rockaway, New
York, where it has been, and continues to be, engaged in the
operation of a cooperative apartment building. During the past
year, a representative period, the Company derived gross reve-
nues in excess of $500,000; and, purchased and received at its
Far Rockaway location goods, products, and materials valued
in excess of $5000 directly from points outside the State of
New York. The parties admit and I find the Company is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the National Labor Relations Act (the Act).
It is admitted that, at all times material herein, Mark
Hertzberg was the company board president and Steven Fried-
man was a board member and that both are agents of the Com-
pany. It is admitted Jeffrey Herskovitz, an employee of Bene-
dict Realty Group, LLC (BRG), serves as property manager
responsible for the day-to-day operations of the Company. It is
admitted Herskovitz is an agent of the Company. The parties,
in a posttrial document received in evidence, stipulated Walter
Berger was company board treasurer and an agent of the Com-
pany.
The parties admit and I find the Union is a labor organization
within the meaning of Section 2(5) of the Act. It is admitted

5 The Government amended the complaint at the beginning of the
trial to add two additional 8(a)(1) allegations.
6 At the conclusion of evidence on May 8, 2012, I adjourned the trial
to allow government counsel to review certain documents pursuant to
subpoena. I established a resumption date, if necessary, of June 5,
2012. Government counsel filed a Motion on May 25, 2012, moving I
close the record subject to accepting a stipulation of the parties resolv-
ing the agency status of Walter Berger and the admission of a 3-page
document provided by the Company pursuant to subpoena. In an Order
dated May 29, 2012, I received in evidence the parties signed stipula-
tion as GC Exh. 27 and the 3-page document as GC Exh. 26 and closed
the hearing.
Steven Sombrotto, at times material here, was president of the
Union.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
The cooperative’s apartment building has 56 units. A major-
ity of the tenants are senior citizens many of whom are widows.
The cooperative operates through a board of directors elected
by the property shareholders. Membership on the board is vol-
untary and unpaid. The board has final authority on all matters
pertaining to the cooperative. About 7 years ago, the board
hired BRG to manage the day-to-day operations of the coopera-
tive including payroll, financials (making sure the money
comes in, and as appropriate, paid out), preparing monthly and
annual budgets, monitoring calls/complaints from the property,
and enforcing the bylaws and proprietary leases of the coopera-
tive. The cooperative employs seven staff members and pro-
vides 24/7 service that includes porters, doormen, handymen,
and a superintendent. All employees, including the superinten-
dent, are represented by the Union and have been since 2003.
The parties’ most recent collective-bargaining agreement ex-
pired November 2010. The parties currently are in negotiations
for a successor agreement.
Shikarchy was hired as superintendent at the Company on
February 1, 2010, by his friend of 20 years Board Member
Friedman. Shirkarchy is paid $17.50 per hour and works a 40-
hour week (7 a.m. to 3 p.m.), Monday through Friday schedule.
He is available on call at all times. Shirkarchy, while employed,
was provided an apartment on the property. Shikarchy was
supervised by BRG Manager Herskovitz.
2. Government’s evidence
Shikarchy testified that about 1-1/2 month after he was hired
Board Member Friedman told him union people were very bad
and cost the cooperative a lot of money that otherwise needed
to be saved. Friedman told Shikarchy the cooperative was go-
ing to install security cameras, fire everyone, and not need the
Union anymore. According to Shikarchy, Friedman explained
he hated unions because his father had lost a business as a re-
sult of a union. Shikarchy testified Friedman also told him
Company Treasurer Berger did not like union people either
because Berger’s father had also lost a business because of a
union.
Shikarchy testified, that in December 2010, as he was riding
with Board President Hertzberg to BRG Manager Herskovitz’
home, Hertzberg told him they had to go meet with the Union
regarding the Company’s discharge of employees Kenny
Boykin and Jason Gomez. Hertzberg said the Union was no
good and cost the Company a lot of money. Hertzberg ex-
plained the Company was going to install security cameras at
its facility and get rid of the Union. Hertzberg told Shikarchy
the cooperative could not save money, could not do what they
wanted, and they did not like the Union and wanted to get rid of
it. Shikarchy testified he and Hertzberg actually rode with
BRG Manager Herskovitz from his home to the meeting with
the Union. During the drive, Herskovitz showed Shikarchy his
cell phone and explained the Company was going to install
833 CENTRAL OWNERS CORP. 595

security cameras allowing them to observe the facility via tele-
phone and they would not need workers or doormen. Accord-
ing to Shikarchy, Herskovitz told him he did not like Union
President Sombrotto and the union people and they were going
to get rid of the Union. Shikarchy testified Herskovitz stated
that when he had to fire anyone that was very good with him.
The parties did not resolve the status of Boykin and Gomez
at the December mediation meeting. Shikarchy testified Board
Member Friedman had told him how he could trap employee
Boykin into doing something wrong so they could fire him.
Shikarchy said Friedman wanted Boykin fired because he was
lazy and because of the Union. Shikarchy testified he and
Board Member Friedman later pushed to have Friedman’s son,
Joseph, replace Boykin. Shikarchy said they wanted Joseph
hired so he could spy on the Union adding “that’s how to get
rid of the union.” Shikarchy testified that during that time he
believed what the cooperative managers were telling him about
unions and concluded union people were bad and he hated Un-
ion President Sombrotto also. Union President Sombrotto testi-
fied he considered Shikarchy to be a “henchman” for the coop-
erative at that time. He said he always got complaints from
employees regarding harassment by Shikarchy.
After some delays an arbitration hearing concerning the dis-
charge of employees Boykin and Gomez was set for June 20.
Shikarchy testified that Board Member Friedman’s telling him
how to trap Boykin into doing wrong so he could be fired both-
ered him and as of the day of the arbitration he wanted no more
of it. Shikarchy testified Board Member Friedman, BRG Man-
ager Herskovitz, and Board President Hertzberg asked him to
prepare for and testify at the arbitration. Shikarchy said he
tried to prepare for the arbitration with Herskovitz and the co-
operative’s lawyer shortly before the June 20 arbitration but
added, “I was not prepared for it.” Shikarchy explained he did
not prepare because “all this was wrong” “terrible” “[t]hey put
me in a bad position against my will.” Shikarchy testified
Board Member Friedman told him at the arbitration that he was
a bad witness because he didn’t prepare and they might have to
reinstate Boykin. Friedman blamed Shikarchy for not prepar-
ing to testify. Shikarchy said his view of the Union changed on
arbitration day. Shikarchy said he even tried to signal to
Boykin and the Union he was sorry for what he had done and
wanted to apologize but they could not believe him. Union
President Sombrotto acknowledged Shikarchy basically gave
him a “thumbs up” at the arbitration. The parties settled the
Boykin/Gomez grievance with each being paid $5000 and
Boykin reinstated part time and Gomez waiving reinstatement.
Shikarchy testified Board Member Friedman had not har-
assed him before the June 20 arbitration but afterward began to
do so. Shikarchy said BRG Manager Herskovitz had praised
his work prior to the June arbitration hearing saying he was the
best superintendent he ever had, invited him to a party and gave
him a bonus, but, he said all that changed after the arbitration
hearing.
Shikarchy testified that during the last week in June Board
Treasurer Berger told him they had a board meeting and Board
President Hertzberg and Member Friedman wanted Shikarchy
out because he was switching to the Union and could do a lot of
damage. Berger told Shikarchy they had a plan and wanted
him out. Shikarchy testified Berger told him they felt his
switching to the Union brought about Boykin and Gomez being
reinstated and paid backpay. Shikarchy testified Board Treas-
urer Berger also told him they were going to destroy him be-
cause he switched to the Union and “they are going to do eve-
rything they can and they can do everything they want.” Ber-
ger advised Shikarchy to “leave quickly . . . for [his] own bene-
fit.” Shikarchy testified that about this time Board Member
Friedman and his son, Joseph Friedman, began to constantly
harass him, followed him, cursed and yelled at him, and inter-
fered with his job duties. Shikarchy testified that on July 6 he
suffered a stroke as a result of the harassment.
Shikarchy testified he became very active for the Union after
June 20. Shikarchy explained he signed up an employee for the
Union, joined the Union’s negotiating team, and distributed
union fliers to employees and shareholders at the cooperative.
Union President Sombrotto testified Shikarchy began to attend
negotiation sessions as the employees’ only representative in
early October. Sombrotto explained Shikarchy was responsible
for reporting back to the employees what took place at the ne-
gotiating table. Sombrotto said he provided Shikarchy with
fliers which Shikarchy distributed starting October 6. Shi-
karchy testified that at various times Board President
Hertzberg, BRG Manager Herskovitz, and Board Treasurer
Berger told him to stop distributing the fliers with Hertzberg
telling Shikarchy he was “so evil” and that what he was doing
was “all [a] lie” and he should stop.
Shikarchy testified the harassment continued and on August
14 in the lobby of the facility Board Member Friedman
screamed at him and accused him of “torturing” and “making
his son [employee Joseph Friedman] miserable.” Shikarchy
testified Board Member Friedman told him he was going to
Shikarchy’s ex-wife’s attorney and testify in the Shikarchy
child custody matter so Shikarchy would never see his children
again. Shikarchy testified Board Treasurer Berger was present
and told him to call the Union, which he did. The next day
Union President Sombrotto filed a grievance for Shikarchy
alleging harassment and a threat to interfere in the Shikarchy
custody matter by Friedman. This grievance was still pending
as of the trial here.
Shikarchy testified BRG Manager Herskovitz telephoned
him “very upset” about the grievance asking how he could do
this “terrible” thing. Shikarchy explained Board Member
Friedman had said he would destroy him, take away his chil-
dren, damage his children by testifying against him in his cus-
tody proceeding with his ex-wife. Shikarchy told Herskovitz
he would, however, telephone Union President Sombrotto and
have Herskovitz’ name removed from the grievance. Her-
skovitz told Shikarchy to drop the grievance and if he did not
Herskovitz would get him back. Shikarchy said he thereafter
asked Sombrotto to do so but was told Herskovitz was part of
management and would remain a part of the grievance. Shi-
karchy telephoned Herskovitz and told him he had tried but,
was unsuccessful. Herskovitz responded “[Y]ou better drop it
[the grievance]” or “I [will] get you back”] and hung up.
Between mid-August and early December, Shikarchy and
Board Treasurer Berger spoke several times about Shikarchy’s
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

employment with the Company. Shikarchy testified Berger
told him:

I told you to leave, leave. You’re with the Union now. I hate
the Union. They going to destroy you. They going to destroy
your reputation. If you go to any job, you want to get the job,
you will have a bad record. Leave for your own benefit, leave
the job. I worry about you. They going to do something to
you. You cannot win. They, no way out with them.

Shikarchy testified Berger told him they had made him sick
once, and reminded him of his stroke, and asked if he wanted to
be sick again.
Shikarchy testified Board Member Friedman spoke with him
about the grievance on three or four occasions in August and
September in person and on the telephone. According to Shi-
karchy, Friedman told him he better drop the grievance or
something bad was going to happen to him that he would be
fired. Shikarchy testified Board President Hertzberg, in Au-
gust, asked him how he could do this to his friend Friedman.
Hertzberg told Shikarchy he was a bad evil person and told him
to drop the grievance against Friedman or something bad was
going to happen to him “You’re going to be fired.”
Shikarchy was called on September 7 to a meeting with BRG
Manager Herskovitz and BRG Owner Daniel Benedict in Her-
skovitz’ office. Herskovitz told Shikarchy he had to drop the
grievance and he did not want to hear anything about it. Shi-
karchy testified he tried to respond and was told to be quiet, to
drop the grievance, and he did not want to hear anything about
it. Shikarchy was handed four written disciplinary warnings.
Shikarchy said he was shocked and could not believe it. Each
of the four warnings was a letter signed by Herskovitz, ad-
dressed to Shikarchy dated September 7. Benedict explained to
Shikarchy that if he became neutral and remained quiet for 3
months he would tear up the warnings.
The first warning asserted Shikarchy had not maintained cor-
rect hours of work for the employees. The second warning
asserted Shikarchy had missed a meeting with an architect and
an engineer at the facility on June 21, at 3:30 p.m. The third
warning asserted Shikarchy was insubordinate because he
asked board members for authorization to order equipment, do
work, or utilize outside contractors rather than consulting with
BRG Manager Herskovitz. The fourth warning, labeled “Final
Warning” asserted Shikarchy had falsely accused employee
Joseph Friedman of attacking him in the lobby of the facility on
August 24. Shikarchy testified he was not asked his position on
the four warnings.
On October 27, Shikarchy was given a letter of suspension.
The letter advised Shikarchy he was suspended for 3 days
without pay starting October 31 to November 2. In the letter
Shikarchy was reminded he had been given four warning letters
earlier about his job duties. In part the letter stated, “[Y]ou
have not handled your basic duties and responsibilities such as
arranging for requested repairs on a timely basis, leaving your
post without coverage. In addition, your treatment of a number
of residents has been insulting and improper. You have ignored
or not complied with many directives from management and
the Board of Directors.” Shikarchy was told if his performance
did not improve there would be additional discipline up to and
including discharge.
Shikarchy testified he notified Union President Sombrotto of
the October 27 suspension and it was added to his August
grievance and the September 7 warnings were also added.
On December 5, Shikarchy telephoned Board Treasurer Ber-
ger about his situation with the Company. Shikarchy, without
Berger’s knowledge, recorded the conversation. The recording,
as well as a certified transcript, was received in evidence. In
the conversation, Berger told Shikarchy that if he would drop
his charges with the Union involving Board Member Friedman
and not attend the mediation meeting scheduled for that
Wednesday (December 7), the Company would know he was
no longer having anything to do with the Union and was on the
Company’s side and things could be worked out. Berger said
those were two conditions Shikarchy needed to meet in order
for things to be worked out. Berger told Shikarchy that if he
came back with the Company then the Company would have
better bargaining power with the Union to get whatever it
wanted. Berger, at various points in the conversation, repeated-
ly told Shikarchy if the conditions were met “we can work it
out” and you “won’t be harassed . . . anymore” and “you’ll
have a job.” Shikarchy asked Berger several times what would
happen to him if he stayed with the Union’s side. Berger told
Shikarchy they will “probably fire you.”
On December 6, BRG Manager Herskovitz emailed Compa-
ny Treasurer Berger that Shikarchy was going to attend the
scheduled mediation the next day. Berger responded Her-
skovitz would have to do what he had to do.
On December 12, BRG Manager Herskovitz emailed the
board he would be by the cooperative that day to terminate
Shikarchy’s employment with the Company.
Shikarchy testified he received an email from his ex-wife
that since he was no longer going to have a job with the Com-
pany he could go to Florida to look for work if he wanted to.
Shikarchy immediately telephoned Board Treasurer Berger to
find out what was going on. Shikarchy secretly recorded the
conversation and the voice, as well as, a transcription thereof
was received in evidence. Shikarchy asked Berger how the
Company could fire him. Berger was surprised Shikarchy had
not already been fired because Berger had received an email
from BRG Manager Herskovitz the day before that Herskovitz
was going to the cooperative then to personally discharge Shi-
karchy. Shikarchy asked Berger if what Berger had told him in
a previous conversation was correct, that if he did not leave the
Union and come over to the Company’s side, he would be fired.
Berger wanted to know if Shikarchy had attended the Decem-
ber 7 mediation meeting. Shikarchy told Berger he had but that
nothing was said about him (Shikarchy) at that meeting. Berger
told Shikarchy he was going to write BRG Manager Herskovitz
about Herskovitz’ termination email concerning Shikarchy to
inform him that the building had never looked as clean and nice
as it currently did and to inform Herskovitz that if Shikarchy
was fired and he sued the Company, he would back up Shi-
karchy.
Shikarchy testified he received a telephone call from BRG
Manager Herskovitz on December 13 requesting a meeting
with him in the lobby at the cooperative. When they met Her-
833 CENTRAL OWNERS CORP. 597

skovitz handed Shikarchy a termination letter. The letter stat-
ed:

I regret I have been asked to inform you that after 4 written
warnings including a suspension, 833 Central Owners Corps
is hereby giving you this notice of termination of employ-
ment.

Upon hand delivery receipt of this notice, you are demanded
to vacate the premises within 3 days since your apartment was
contingent upon your employment. You are no longer able to
work within the property.
3. Company’s evidence
The Company called, as its sole witness, BRG Manager Her-
skovitz and presented some 32 emails of interactions between
Herskovitz and Shikarchy in support of its defense that Shi-
karchy’s discharge resulted from his inability to perform his
duties in an effective and efficient manner and that he was una-
ble to effectively oversee and operate the facility. Herskovitz
stated that at one point during Shikarchy’s employment he be-
lieved he was a wonderful and attentive employee as well as a
good mechanic also expressed that opinion to Union President
Sombrotto.
In as much as the Company contends it based its actions
against Shikarchy, incuding his discharge, on the issues dis-
cussed in and the facts surrounding the emails presented in
evidence, I have set forth such here. The emails cover July 26,
to December 13.
BRG Manager Herskovitz testified that in a July 26 email
Shikarchy sought direction on purchasing certain needed mate-
rials locally. Herskovitz responded no local purchases were to
be made that he had already provided Shikarchy with a list of
suppliers from which Shikarchy could make purchases. That
same day Herskovitz and Shikarchy exchanged emails regard-
ing whether Shikarchy had received some fire escape plaques to
be installed at the facility that were delivered to company porter
Joseph Friedman. Shikarchy replied he had not received them
from Friedman but had instructed Friedman to install the
plaques. In the email Herskovitz directed Shikarchy to install
the plaques himself that it was the superintendent’s job.
BRG Manager Herskovitz received an email from Shikarchy
on August 2 asking for a meeting. The two met the next day
and discussed keeping correct records for employees regarding
vacation and work scheduling. Herskovitz testified Shikarchy
was deciding on his own and reporting who worked what hours.
He noted Shikarchy would deduct an hour from an employee’s
time if the employee was up to 20 minutes late for work. Her-
skovitz explained to Shikarchy he was not entitled to do that,
on his own, that everyone was late to work from time to time.
In an August 4 email, Shikarchy told Herskovitz an employee
had received 2 days of vacation pay but wanted 2 other paid
days. Herskovitz testified Shikarchy had not provided enough
information for him to authorize payment and added “[m]y
simple response to him was in effect no big deal” just have a
form filled out justifying the 2 extra days. Herskovitz said
Shikarchy had “stacks of that form in his office.”
Herskovitz testified that while Shikarchy was to work a 40-
hour week certain accommodations were allowed in his sched-
ule. Shikarchy could vary his starting and quitting hours and
the Company allowed him to travel on Fridays to New Jersey to
pick up his children for visitation rights without worktime de-
ductions. Herskovitz and Shikarchy exchanged emails on Au-
gust 9, wherein Shikarchy wanted to take additional time on a
particular day and Herskovitz told him he could but he would
not be paid for it. Shikarchy asked for clarification about
whether he could take the time off. Herskovitz said he could
and that Shikarchy knew the procedure for doing so before he
asked and took up valuable time doing so.
Herskovitz testified it was Shikarchy’s duty to order supplies
for the facility from a list of distributors updated and provided
and he did not need permission to, for example, order a wall
pack floodlight for the exterior of the facility. Notwithstanding
that fact Shikarchy on August 16 emailed Herskovitz that he
needed a fluorescent light and had even checked with an em-
ployee about one. Herskovitz testified this only adds time to
getting the job done, confuses employees, and it was Shi-
karchy’s duty to order and install the lights. Herskovitz testi-
fied he had already informed Shikarchy about this procedure.
BRG Manager Herskovitz sent Shikarchy an email on Au-
gust 22 advising him he had received a complaint from a resi-
dent at the facility that Shikarchy had not properly fixed a leak-
ing window in the resident’s unit. Herskovitz said Shikarchy
had told him he had done all he could but could not repair the
window. Herskovitz informed Shikarchy his job was never
done until the resident said the job was completed to the resi-
dent’s satisfaction. Herskovitz then provided Shikarchy the
name of a contractor to assist with the repairs. Herskovitz testi-
fied it had been Shikarchy’s duty all along to arrange for the
outside contractor and complete the job.
Herskovitz testified he received telephone calls from proper-
ty residents and Company Board members about an incident
between employee Friedman and Shikarchy in the lobby of the
facility on August 26. Shikarchy sent Herskovitz an email
indicating he had found himself on the floor of the lobby that
Friedman “came after” him as they were discussing the where-
abouts of a vacuum cleaner. Herskovitz testified he and the
Company board investigated the incident including viewing the
lobby security cameras and concluded Shikarchy’s version of
the incident was totally false. The Company Board directed
Herskovitz to include the findings in Shikarchy’s personnel file
for future reference.
Herskovitz testified he received an email from Shikarchy on
September 1 requesting approval to repair a leaking window in
one residence and a broken window in another. Herskovitz said
he again had to remind Shikarchy he did not need to come to
him for approval that the repairs were part of his job duties.
Herskovitz said the more a superintendent had to ask him these
type questions the more he believed the superintendent did not
understand his job-related responsibilities.
BRG Manager Herskovitz testified he received many com-
plaints from employees about their vacation schedules and
vacation pay. Herskovitz sent Shikarchy a September 2 email
requesting he be provided a log indicating which doormen had
requested vacation time and the corresponding request forms
otherwise he could not authorize payment for vacation times.
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Herskovitz testified it was Shikarchy’s job to keep him so in-
formed but had not.
Herskovitz testified that on September 7, he and BRG Owner
Benedict met with Shikarchy in Herskovitz’ office and issued
him four written warnings. Herskovitz said their discussions
centered around Shikarchy’s lack of understanding of his posi-
tion at the property and his misunderstanding of directions giv-
en to him by management. Herskovitz testified they told Shi-
karchy to stop asking company board members to order equip-
ment and/or authorize work. Herskovitz acknowledged, on
cross-examination, it could at first be confusing for a superin-
tendent to understand what priority to give requests from resi-
dent owners some of which are “pushy.” Herskovitz even re-
quested Board Member Friedman cease all communications
with Shikarchy and acknowledged many other tenants frequent-
ly asked Shikarchy to perform repairs for them. Herskovitz
said they also explained to Shikarchy it was Shikarchy’s duty to
keep up with work hours for the employees at the facility but
told Shikarchy management would be assuming that task for a
while. Herskovitz testified they discussed the fact he had given
Shikarchy permission to have lunch with his children at noon
on June 21, but that Shikarchy had not told him he had an ap-
pointment to meet with an architect, engineer, and a board
member at 3:30 p.m. that afternoon. Herskovitz testified Shi-
karchy did not attend the meeting and informed the board
member involved that Herskovitz had excused him from the
meeting. Herskovitz testified that was not true. Herskovitz, on
cross-examination, stated he had not set up nor did he know
about the meeting ahead of time. Herskovitz did not know
which Board member had in fact set up the meeting nor how far
in advance it was arranged and to his knowledge there was no
documentation showing Shikarchy was ever specifically di-
rected to attend the meeting. Herskovitz acknowledged the
meeting was set for 3:30 p.m. even though Shikarchy’s work-
day ended at 3 p.m. on that date. Herskovitz said however, that
not showing up for a scheduled meeting was a serious offense
but acknowledged no report of the incident was made except in
the September 7 warning letter. Herskovitz testified they also
told Shikarchy they were giving him a final warning because he
falsely claimed employee Friedman had knocked him down in
the lobby of the facility.
BRG Manager Herskovitz emailed Shikarchy on September
9 directing him to do his job and assign someone to fill in a
vacancy that had developed for the porter position. Herskovitz
said he had received telephone calls about the situation which
required his time on matters Shikarchy should have taken care
of.
Herskovitz testified he emailed Shikarchy on September 14
explaining to him that if he had to go for a court appearance in
a child custody matter with his ex-wife on September 16, he
should go but he would not be paid for that time. Herskovitz
testified he and BRG Owner Benedict had previously told Shi-
karchy he could go but they were having to spend valuable time
telling him again.
BRG Manager Herskovitz testified about another incident
that contributed to Shikarchy’s discharge which involved Shi-
karchy requesting authorization to fill a pot hole in the parking
lot at the facility. Herskovitz emailed Shikarchy on September
15 to fill in the hole. Herskovitz testified he had previously
given Shikarchy a contractor to call to repair the hole and Shi-
karchy did not need further permission and time was lost in his
doing so.
Herskovitz emailed Shikarchy on September 16 following up
an email from Shikarchy regarding work hours for Company
porter Friedman. Herskovitz told Shikarchy he had misunder-
stood his earlier directions and added, “You have a serious
communication problem that has been addressed for months
now . . . [s]top making up stories, asking for clarification every
day regarding every direction and stop creating controversy
where there is none.”
Herskovitz sent Shikarchy an email on Wednesday, Septem-
ber 28, asking that he replace a light bulb and said it should
have been done on Monday. Shikarchy said he was sick at the
time. Herskovitz then responded for Shikarchy to replace the
bulb that it should not take 2 days to do so.
On October 4, Shikarchy emailed Herskovitz that he had an
appointment on October 6, and would be away from work.
Herskovitz replied that he needed more information and in-
formed Shikarchy he would have to arrange for someone to fill
in for him. Herskovitz said all these situations were taken into
consideration in disciplining Shikarchy.
On October 17, Herskovitz sent Shikarchy two emails. The
first informed Shikarchy work orders were made up by man-
agement not by Shikarchy and that overtime for himself had to
be authorized by the Board or management. Herskovitz testi-
fied that in this case Shikarchy had made up his own work or-
der and performed work pursuant to it without approval. The
second email advised Shikarchy to fix a slamming door on the
side of the facility. Herskovitz said he had examined the door
himself and it only needed an armature adjustment at the top of
the door and that he had asked Shikarchy “weeks before” to fix
it. Herskovitz testified he had been contacted by shareholders
complaining the slamming door awakened them at night. Her-
skovitz could not recall, by name, any of those complaining.
BRG Manager Herskovitz testified Shikarchy was given no-
tice by a board member on October 27 he was suspended from
work for 3 days without pay. The suspension was effective
from October 31 through November 3. Herskovitz testified
Shikarchy was given the suspension, in part, because of “his
absences from the property which follows to items not being
fixed or upgraded as needed, schedules not being adhered to.”
Herskovitz said he met with Union President Sombrotto and
Shikarchy around November because he was “inundated every
day” by shareholders and board members that repairs at the
facility were not getting made. Herskovitz testified he told
Shikarchy the property was quite literally going to fall apart.
BRG Manager Herskovitz received an email from Shikarchy
on November 3 advising he had checked the air valves in one
of the properties and was seeking permission to replace them.
Herskovitz said if he did not respond Shikarchy would not do
the repairs but added Shikarchy did not need further authoriza-
tion.
Herskovitz testified he emailed Shikarchy on Monday, No-
vember 11, to order alarms for the roof top doors and install
them the following Monday. Herskovitz said Shikarchy did not
install them and he had to be given a direct order to do so even
833 CENTRAL OWNERS CORP. 599

though it was the type work to be performed by the superinten-
dent.
BRG Manager Herskovitz said there were some broken
benches at the back of the property but the Board had not made
a decision regarding what to do with them. Herskovitz testified
Shikarchy took it upon himself to place yellow tape around the
benches that created an eye sore at the property. Herskovitz
was asked by Board members why he had told Shikarchy to
place tape on the benches. Herskovitz told them he had not
done so and emailed Shikarchy on November 16 directing he
move the benches to a corner of the property and remove the
yellow tape. On November 22, Herskovitz emailed Shikarchy
asking why he had still not taken care of the matter or removed
the tape.
Herskovitz testified that over the evening hours on Decem-
ber 1 he received many voice mails from shareholders and/or
tenants complaining Shikarchy was taking out garbage at night.
Herskovitz emailed Shikarchy asking why he was making noise
taking out the garbage at 9 p.m. Herskovitz said Shikarchy
explained he was helping employee Friedman whose job it was
to take out the garbage.
Herskovitz testified one of the reasons Shikarchy was inter-
viewed and hired was his claim he was very mechanically in-
clined. Herskovitz said he asked Shikarchy to fix the leaf
blower and lawnmower and to be sure the snow plow, which
Shikarchy had assembled when it was purchased, was in work-
ing order. Herskovitz testified he received an email from com-
pany porter Friedman on December 2 stating Shikarchy had
instructed him, by Herskovitz’ authority, to fix the lawnmower
and leaf blower. Herskovitz emailed Friedman he had not so
instructed Shikarchy and emailed Shikarchy that day instructing
him to do the jobs.
Herskovitz testified that in an email dated December 5, he
directed Shikarchy to cover for the porter in the porter’s ab-
sence. Herskovitz testified Shikarchy had, in the past, stated he
was capable of doing both his and the porter’s job. Herskovitz
said Shikarchy, in a reply email the same day, argued that in the
past they had always obtained a fill in for the porter. Her-
skovitz testfied Shikarchy was always arguing with him.
Herskovitz emailed Shikarchy on December 8 advising him
not to direct an outside roofing contractor to do interior repairs
in an apartment which was well beyond Shikarchy’s authority
that Shikarchy was to do inside repairs himself or obtain an
interior contractor to perform the work. Herskovitz testified
that again on December 11, Shikarchy requested authorization
to schedule a fill in porter at the facility even though he did not
need further authorization because he had already given him
full authorization. Herskovitz testified this troubled him be-
cause he feared Shikarchy was not properly and timely schedul-
ing positions to be covered.
BRG Manager Herskovitz testified the board of directors
voted on December 12 to terminate Shikarchy and he was ter-
minated on December 13. Herskovitz testified Shikarchy was
terminated because of his absences from work, his inability to
follow instructions, and because “at that point in time [the
building] was falling apart.”
Herskovitz testified he had no discussions with Company
Treasurer Berger in December regarding the Company being
willing to not terminate Shikarchy if Shikarchy stopped sup-
porting the Union. Herskovitz also denied authorizing Berger
to offer such a resolution to Shikarchy.
It is appropriate to address the credibility of Shikarchy even
though his testimony related to Company Board President
Hertzberg and Board Member Friedman was not challenged as
neither testified. Further certain critical statements Shikarchy
attributed to BRG Manager Herskovitz and Board Treasurer
Berger were not specifically responded to or refuted. I credit
Shikarchy’s testimony. In arriving at my conclusion on Shi-
karchy’s credibility I was greatly impacted by impressions I
formed as I observed him testify. While Shikarchy frequently
answered questions with more, or beyond, what he was asked, a
fact I cautioned him about more than once, I nonetheless con-
cluded he attempted to testify truthfully. I am persuaded his
extended answers were an attempt to tell what he perceived to
be a full account of what had transpired rather than to exagger-
ate or misspeak facts. It was clear observing Shikarchy testify
he has strong feelings as to the correctness of his cause and he
sometimes expressed himself loudly and with gesticulations. I
did not find such to indicate an attempt to misspeak the truth
but rather to convey emphasis. On the other hand, I am per-
suaded, after observing Company Treasurer Berger testify, he
did so with a self-imposed and deliberate failure to recall cer-
tain facts and dates. Nonetheless, I rely on certain portions of
Berger’s overall testimony, namely the recorded conversations
between he and Shikarchy. To the extent, if any, there are con-
flicts, real or perceived, between Shikarchy’s testimony and
that of Berger or Herskovitz I credit Shikarchy. Furthermore, I
am specifically unwilling to credit Herskovitz’ denial he had no
discussions with Berger in December about any willingness on
the part of the Company not to discharge Shikarchy if he disa-
vowed his support for the Union or Herskovitz’s denial he ever
authorized Berger to convey such an offer to Shikarchy. I have
not commented on but I have considered all testimony and
exhibits in deciding the facts herein.
III. DISCUSSION, ANALYSIS, AND CONCLUSIONS
A. The 8(a)(1) Issues
It is alleged that around August or September, Company
Board President Hertzberg, at the facility, threatened an em-
ployee with discharge and unspecified reprisals if he continued
to engage in union activities.
Shikarchy credibly testified, without contradiction
[Hertzberg was not called to testify], that after he filed a griev-
ance in August against Board Member Friedman for harass-
ment that Hertzberg asked Shikarchy how he could do this to
his friend Friedman, and told Shikarchy he was a bad evil per-
son and directed Shikarchy to drop his grievance against
Friedman or something bad was going to happen to him that he
was going to be fired. First, I note Shikarchy’s filing a griev-
ance constituted concerted protected activity. NLRB v. City
Disposal Systems, 465 U.S. 822, 836 (1984). Hertzberg’s
threatening Shikarchy that bad things would happen to him if
he did not withdraw his grievance constitutes a threat of un-
specified reprisals for engaging in protected conduct and
Hertzberg’s telling Shikarchy he would be fired if he did not
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

withdraw his grievance constitutes an unlawful threat of dis-
charge and I so find.
It is alleged that about August or September, Company
Board Member Friedman, at the facility, threatened an employ-
ee with discharge if he continued to engage in union activities.
Shikarchy credibly testified, without contradiction [Friedman
was not called to testify], that Friedman on three or four occa-
sions told him either in person or on the telephone he better
drop his grievance against Friedman or something bad was
going to happen to him he would be fired. It is clear and I find
that Friedman, on these occasions, unlawfully threatened Shi-
karchy with discharge if he did not withdraw his grievance
against Friedman.
It is alleged that about August or September BRG Manager
Herskovitz in a telephone conversation, and at the offices of
BRG, threatened an employee with discharge if he continued to
engage in union activities.
Shikarchy credibly testified [Herskovitz did not specifically
deny], that Herskovitz telephoned him shortly after he filed the
August grievance against Board Member Friedman and asked
how he could do such a terrible thing. Shikarchy explained
Friedman had said he would destroy Shikarchy, take away his
children by testifying against Shikarchy in custody proceedings
with his ex-wife. Herskovitz told Shikarchy to drop the griev-
ance and if he did not he would get him back. Shikarchy told
Herskovitz he would try to get his name removed from the
grievance. Shikarchy telephoned Union President Sombrotto
but was unable to get Herskovitz’ name removed and tele-
phoned Herskovitz telling him he could not. Herskovitz again
told Shikarchy to drop the grievance and if he did not he would
get him back and hung up the telephone. On September 7, at a
meeting in Herskovitz’ office, Herskovitz yet again told Shi-
karchy he had to drop the grievance and added he did not want
to hear anything more about it. While the comments of Her-
skovitz may not actually constitute threats to discharge Shi-
karchy for his protected activity I find the comments constitute
threats of unspecified reprisals against Shikarchy.
It is alleged that about September or October Company
Treasurer Berger, in a telephone conversation, and at the Com-
pany facility, threatened an employee with unspecified reprisals
because of his support for, and activities on behalf of, the Un-
ion.
Shikarchy testified, without contradiction [Berger testified
but did not address these matters], that between mid-August
and early December, Berger spoke with him several times
about his employment with the Company. Berger told Shi-
karchy to leave his employment that he was now with the Un-
ion and he hated the Union. Berger told Shikarchy the Compa-
ny was going to destroy him and his reputation and if he want-
ed a job elsewhere he would have a bad record. Berger im-
plored Shikarchy to leave for his own benefit that he worried
about him and his health. Berger told Shikarchy they had made
him sick once and reminded him of his stroke and asked if Shi-
karchy wanted to be sick again. Berger told Shikarchy they
were going to do something to him that he could not win that
there was no way out for him. By telling Shikarchy the Com-
pany was going to destroy him and do something to him that he
could not win and had no way out Berger clearly threatened
Shikarchy with unspecified reprisals in violation of the Act and
I so find.
It is alleged that about December 5 Company Treasurer Ber-
ger, in a telephone conversation, threatened an employee with
discharge and unspecified reprisals because of his support for
the Union and impliedly promised the employee benefits to
discourage him from supporting the Union.
It is undisputed that Shikarchy telephoned Berger and rec-
orded their December 5 conversation. In the exchange Berger
told Shikarchy if he would drop his charge with the Union
against Board Member Friedman and not attend a mediation on
the matter scheduled for December 7, they would know he no
longer was having anything to do with the Union but rather was
back on the Company’s side and things could then be worked
out for him. Berger explained that with Shikarchy back on the
side of the Company the Company would have better bargain-
ing power with the Union to get whatever it wanted. Berger
told Shikarchy, more than once, that if he did as they asked “we
can work it out,” he would not “be harassed . . . anymore,” and
would “have a job.” When Shikarchy asked what would hap-
pen if he stayed with the Union Berger responded the Company
would probably fire him. It is clear Berger threatened Shi-
karchy with discharge if he did not abandon his support for the
Union. Berger also specifically promised employee benefits to
Shikarchy if he dropped his support for the Union namely he
would no longer be harassed, everything would be worked out,
and he would continue to have a job. Berger’s promises and
threats violate the Act and I so find.
B. The Warnings, Suspension, and Discharge of Shikarchy
In cases alleging violations of Section 8(a)(3) and (1) of the
Act where the employer’s motive is in issue, as is the case here,
the Board applies the analytical framework set forth in 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). Un-
der Wright Line, the Acting General Counsel must first prove,
by a preponderance of the evidence, that the employee’s pro-
tected conduct was a motivating factor in the employer’s deci-
sion. Once the Acting General Counsel makes that showing by
proving the employee’s union or protected activity, employer
knowledge of the union or protected activity, and employer
animus against the employee’s protected conduct, the burden of
persuasion shifts to the employer to demonstrate it would have
taken the same action even in the absence of the protected con-
duct. See Donaldson Bros. Ready Mix, Inc., 341 NLRB 958,
961 (2004). If, however, “the evidence establishes that the
reasons given for the employer’s action are pretextual—that is,
either false or not in fact relied upon—the employer fails, by
definition, to show that it would have taken the same action for
those reasons, absent the protected conduct, and thus there is no
need to perform the second part of the Wright Line analysis.”
Rood Trucking Co., 342 NLRB 895, 897–898 (2004) (citations
omitted); see also Austal USA, LLC, 356 NLRB 363, 364
(2010) (if proffered reason for discharge is pretextual, employer
necessarily fails to establish Wright Line defense).
Applying the above, I address each element of the Govern-
ment’s burden of proof as to whether Shikarchy’s union activi-
833 CENTRAL OWNERS CORP. 601

ties was a motivating factor in the Company’s decision to warn,
suspend, and discharge him. The evidence establishes Shi-
karchy supported the Union. Although Shikarchy, early in his
employment with the Company, supported the Company’s
position related to the Union, he later changed to supporting the
Union. Shikarchy’s first support for the Union, established
here, began when Shikarchy did not prepare for his anticipated
testimony on behalf of the Company at an arbitration hearing
on June 20 involving the discharge of employees Boykin and
Gomez. Shikarchy not only did not testify but openly displayed
his support for the Union’s position by giving a thumb’s up to
the Union. On August 14, Shikarchy claimed harassment by
Board Member Friedman because he supported the Union. A
grievance was filed for Shikarchy the next day against Fried-
man asserting harassment by Friedman including Friedman
threatening to interfere in a custody matter involving Shikarchy
and his ex-wife. The filing of a grievance constitutes conduct
protected by the Act NLRB v. City Disposal Systems, Inc., 465
U.S. 822, 836 (1984). After June 20, Shikarchy signed up an
employee for the Union, joined the Union’s negotiating team
around October, and distributed various union flyers to em-
ployees and shareholders of the Company regarding negotia-
tions and employee concerns.
The Company was aware of Shikarchy’s union activities.
Shikarchy’s lack of preparation for the June 20 arbitration indi-
cated to the Company Shikarchy no longer supported the Com-
pany’s position. Board Member Friedman told Shikarchy, at
the arbitration, that his not preparing to testify might result in
the Board having to reinstate Boykin. Board Treasurer Berger
told Shikarchy during the week of June 20 that at the Board’s
most recent meeting Board President Hertzberg and Board
Member Friedman had stated they wanted Shikarchy out be-
cause he was switching his support to the Union and could do a
lot of damage to the Company. Berger also told Shikarchy they
felt his switching to the Union’s side brought about employees
Boykin and Gomez being offered reinstatement with backpay.
The Company was fully aware Shikarchy distributed flyers for
the Union to its employees and shareholders. Company Board
President Hertzberg, BRG Manager Herskovitz, and Board
Treasurer Berger told Shikarchy to stop distributing the flyers
with Hertzberg telling Shikarchy it was evil for him to distrib-
ute union flyers. The Company clearly knew Shikarchy was
participating at the negotiation sessions on behalf of the Un-
ion’s committee. The Company was given a copy of the Shi-
karchy grievance.
The Government established the Company harbored animus
specifically against Shikarchy’s protected activities and against
the Union in general. Starting in mid-March 2010, Board
Member Friedman told Shikarchy union people were very bad
and cost the Company lots of money and the Company was
going to install security cameras, fire everyone, and no longer
need the Union. Friedman also told Shikarchy he hated unions.
In December 2010, Board President Hertzberg told Shikarchy
the Union was no good, cost the Company money, prevented
them from doing what they wanted, they did not like the Union
and wanted to get rid of it. On that same occasion, BRG Man-
ager Herskovitz told Shikarchy he did not like Union President
Sombrotto and the union people and they were going to get rid
of the Union. Board Treasurer Berger told Shikarchy, between
June and September, the Board was going to destroy him be-
cause he switched to the Union and told him the Board could
do anything they wanted. Berger urged Shikarchy to leave the
Company for his own benefit because he was with the Union
and told Shikarchy he hated the Union. Berger also told Shi-
karchy the Board was going to do something to him that there
was no way out for him and he could not win. Board Member
Friedman repeatedly told Shikarchy in August and September
he should drop his grievance against Friedman or something
bad would happen to him that he would be fired. Board Presi-
dent Hertzberg told Shikarchy in August he was evil for filing
the grievance against Friedman and to drop it or something bad
would happen to him he would be fired. When Shikarchy was
given four written warnings on September 7, he was told by
BRG Manager Herskovitz he had to drop the grievance against
Friedman and he did not want to hear anything more about it.
Board Treasurer Berger told Shikarchy on December 5 that if
he would drop his grievance against Board Member Friedman
and not attend a mediation session on the matter scheduled for
2 days later the Company would know he was no longer with
the Union and on the Company’s side and things could be
worked out. Berger told Shikarchy the Company would have
better bargaining power with Shikarchy on their side and the
Company could get what ever it wanted in the negotiations and
Shikarchy could have a job, but, if he stayed with the Union he
would probably be fired. Shikarchy attended the mediation
session and approximately a week later was fired.
Based on all the above, I find the record amply demonstrates
government counsel has sustained his initial Wright Line bur-
den of showing that Shikarchy’s involvement in the Union and
protected activities was a motivating factor in the Company’s
decisions to warn, suspend, and discharge him.
I find the Company failed to meet its Wright Line burden of
showing Shikarchy would have been warned, suspended, and
discharged for legitimate business reasons even if he had not
engaged in union and/or protected activities. The credited evi-
dence clearly establishes the Company’s proffered reasons for
warning, suspending, and discharging Shikarchy were pretextu-
al—that is, they were not in fact relied upon. Rather, the evi-
dence shows, as clearly stated by Board Member Berger, the
discipline against Shikarchy and his discharge was based on his
union and protected activities. Berger told Shikarchy that eve-
rything involving him could be worked out, the harassment
against him stopped and he could have his job, but, he had to
make a choice and drop his support for the Union and be on the
Company’s side or be unemployed.
Further evidence demonstrates the pretextual nature of the
Company’s defense. Shikarchy’s record was that of an atten-
tive employee without discipline until he engaged in protected
activities and shifted his support to the Union. All of the email
evidence proffered by the Company to support its defense in-
volved incidents that occurred after Shikarchy’s support for the
Union was known to the Company. The Company advanced no
justifiable explanation for issuing four written warnings to Shi-
karchy on 1 day, September 7, for events dating back to June
21, 1 day after Shikarchy made his support for the Union
known. In early October, Shikarchy took on a greater role for
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

the Union becoming the sole employee member on the Union’s
negotiating committee and the one responsible for keeping
employees informed of the status of negotiations through fliers
and other means. On October 27, Shikarchy was suspended for
3 days without pay for not properly handling his job duties and
mistreating residents. Again the timing of the Company’s ac-
tion is suspicious and the Company failed to satisfactorily es-
tablish sufficient details regarding complaints of residents being
improperly treated or how Shikarchy’s job performance de-
clined quickly. I find it unnecessary to address, in detail, each
of the asserted defenses raised by the Company because the
evidence is compelling Shikarchy was warned, suspended, and
discharged for his union activities and that the reasons ad-
vanced by the Company were pretextual. I find the Company
violated Section 8(a)(3) and (1) of the Act by warning, sus-
pending, and discharging its employee Shikarchy.
REMEDY
Having found the Company has engaged in certain unfair la-
bor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act. Specifically, to remedy the unlawful con-
duct toward Ezra Shikarchy, the Company must, within 14 days
of the Board’s Order, offer him reinstatement to his former job,
or if his former job no longer exists, to a substantially equiva-
lent job without prejudice to his seniority or other rights and
privileges previously enjoyed, and make him whole for any lost
wages and benefits as a result of his October, 27, 2011 suspen-
sion, and December 13, 2011 discharge, with interest. Backpay
will be computed as outlined in F. W. Woolworth Co., 90
NLRB 289 (1950) (backpay computed on quarterly basis).
Determining the applicable rate of interest will be as outlined in
New Horizons for the Retarded, 283 NLRB 1173 (1987)
(adopting Internal Revenue Service rate for underpayment of
Federal taxes). Interest on all amounts due to the employee
shall be compounded on a daily basis as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). I also recommend
the Company, within 14 days of the Board’s Order, be ordered
to remove from its files any reference to its October 27, 2011
suspension and December 13, 2011 discharge of Ezra Shi-
karchy and, within 3 days thereafter, notify Ezra Shikarchy in
writing it has done so and his suspension and discharge will not
be used against him in any manner. I also recommend the
Company be ordered, within 14 days after service by the Re-
gion, to post an appropriate “Notice to Employees” in order that
employees may be apprised of their rights under the Act, and
the Company’s obligation to remedy its unfair labor practices.
[Recommended Order omitted from publication.]