Amshu Associates, Inc.

National Labor Relations Board - Board DecisionsJun 25, 1975

218 N.L.R.B. 831 (N.L.R.B. 1975)

AMSHU ASSOCIATES 831 Amshu Associates, Inc., and Spring Valley Garden Associates and Building Service Employees Inter- national Union, Local 32E, AFL-CIO. Cases 2- CA-13401 and 2-CA-13422 June 25, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On March 31, 1975,. Administrative Law Judge Sidney J. Barban issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent Amshu Associates, Inc., Spring Valley, New York, its officers, agents, successors , and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. DECISION STATEMENT OF THE CASE SIDNEY J. BARB", Administrative Law Judge: This matter was heard at New York, New York, on November 18, 19, and December 12, 1974, and January 6, 7, 9, and 16, 1975. The order consolidating cases and consolidated complaint was issued on October 30, 1974 (based upon a charge filed in Case 2-CA-13401 on August 2, 1974, and upon a charge filed in Case 2-CA-13422 on August 22, 1 Incorrectly spelled "Wideman" in the transcript. 2 The Respondent's name is as set forth in its bnef. The complaint was originally issued only against Amshu Associates , Inc. (herein Amshu). Respondents ' counsel contended that the matters involved in Case 2-CA- 1:3401 pertain to an employee employed by Amshu but that Case 2-CA- 1:3422 pertains to an employee employed by Spring Valley Gardens Associates (herein Spring Valley Associates). Counsel asserted that he was authorized to represent Spring Valley Associates as well as Amshu, and agreed that the hearing should proceed as, if the charge and complaint in Case 2-CA-13422 had been duly filed against and served upon Spring 218 NLRB No. 127 1974). As developed at the hearing, the consolidated complaint alleges (pursuant to the charge in Case 2-CA- 13401) that Mark Weidman,' vice president of Amshu Associates, Inc.,2 interrogated its employee concerning union activities, and threatened discharge and other reprisals if the employee engaged in union activities, and that Respondent Amshu discharged Thomas Hopkins because of his union or other concerted activities, in violation of Section 8(a)(l) and (3)-, of the Act, and (pursuant to the charge in Case 2-CA-13422) that David Bleiberg, an agent of Spring Valley Associates, interrogat- ed an employee concerning his union activities in violation of Section 8(axl) of the Act. Respondents' answer denies the commission of the unfair labor practices alleged. Upon the entire record in this case, from observation of the witnesses and their demeanor, and after due considera- tion of the briefs filed by the General Counsel and the Respondents, I make the following: FINDINGS AND CONCLUSIONS I. THE OPERATIONS OF RESPONDENTS Respondent Amshu is a New York corporation with its main offices located at Woodbridge, New Jersey.3 It is engaged in the construction and operation of certain apartment developments. One of these developments, located in Spring Valley, New York, is known as Sleepy Hollow Gardens. Amshu also owns and operates a high- rise condominium located nearby. The shareholders and officers of Amshu are the following: Sam Halpern, president; Mark Weidman, vice president; Harry Wilf, secretary; Meyer Gold, Jacob Burstyn (one or the other is treasurer); Arie Halpern, Joseph Wilf. Respondent Spring Valley Associates is a partnership, with its main office located at Woodbridge, New Jersey, in the same place as Respondent Amshu. The partners are: Sam Halpern (referred to as the senior partner), Mark Weidman, Harry Wilf, Meyer Gold, Jacob Burstyn, Leonard Wilf, and Frederick -Halpern. It is engaged in the construction and operation of certain apartment develop- ments . One of these, located in Spring Valley, New York, known as Spring Valley Gardens, is about a mile and a half from Sleepy Hollow Gardens. Labor policy for both Amshu and Spring Valley Associates is made in New Jersey basically by the same persons, and transmitted by Sam Halpern to Mark Weidman, who executes that policy for both Respondents with respect to their operations in Spring Valley, New York, which are the only operations involved here. Both Respondents utilize the same office staff in New Jersey4 and apparently interchange managerial personnel in Spring Valley. David Bleiberg, admittedly a supervisory agent of Valley Associates. The relationship between the two employers will be considered hereinafter. 3 Also referred to as Newbridge and Woodridge in the transcript. 4 Mark Weidman testified that a number of other companies utilize the same staff at the same location. In the absence of any other evidence, the record would lead me to believe that these other companies likely involve many of the same persons involved with Respondents . Thus it is noted that another company involved in the Spring Valley operations, Spring Valley Gardens , Inc., composed of many of the persons previously named, served (Continued) 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spring Valley Associates during times material to this matter, testified that he was transferred by the main office in New Jersey from Spring Valley Gardens to Sleepy Hollow Gardens- where he was employed by Amshu. He stated that he considered the two employers to be the same. Also, William Leflein, who, in his capacity as assistant vice president of Amshu, signed a letter notifying Thomas Hopkins of his, discharge; it is also mentioned by Elisha Carr, an employee of Spring Valley Associates, as giving him assurances as to his job, status. It is admitted that Amshu and Spring Valley Associates each in the operation of the Sleepy Hollow Gardens complex and the Spring Valley Garden apartment com- plex, respectively, derive gross revenues from said apart- ment complexes on an annual basis in excess of $500,000, and that each caused goods and materials of a value in excess of $50,000 in a recent annual period to be transported in interstate commerce to, its respective apartment development in Spring Valley. It is admitted that both employers are engaged in commerce within the meaning of the Act. Based upon the above, and the entire record in this matter, it is found that Amshu and Spring Valley Associates, for the purposes of this proceeding, constitute a single employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION It is admitted, and I find, that Building Service Employees International Union, Local 32E, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. SUMMARY OF FACTS AND ISSUES A. The Conditions of Employment In September 1973, while Sleepy Hollow Gardens apartments were still under construction, and before any tenants had moved in, Thomas Hopkins applied for the position of resident superintendent in response to an advertisement for the position. Accompanied by his wife, Hopkins was interviewed and hired by David Halpern, then associated with Amshu as a builder. The arrange- ments with Hopkins are of some significance. At the outset, he was to assist the builders in finishing up the work and preparing individual apartments for occupancy. As tenants began to come in, Hopkins' assistance to the builders diminished and his responsibilities for tenants' complaints increased. Occupancy by tenants began in late September or October. By July 22, ,1974, when Hopkins was terminated, there were 100 tenants at the Sleepy Hollow Gardens apartments. Hopkins was assigned a regular 8-hour workday, 5 days a week, but it was understood that he would be available to take care of emergency complaints from tenants 24 hours a as the intermediary for Spring Valley Associates in the purchase of property for the apartments. 5 Hopkins' day off from September 1973 to the latter part of December was Sunday . This was changed to Wednesday in January , February, and March, they to Saturday for a very short time, and then back to Sunday from April until Hopkins was discharged . Significantly, on Hopkins' day day, 6 days a week.5 To facilitate this, Hopkins was given an apartment in the development as part of his compensa- tion. It was understood that the position required a resident superintendent, and although I am convinced that the matter was not specifically discussed when Hopkins was employed, there is no question but that he understood that Amshu expected his wife to move into the apartment with him. As Hopkins himself stated, "My wife has been with me the 26 years I have been a super, . . . and I won't at this stage of the game be without her. I don't think I or any other super could run a new building without his wife there." Thus, among other things, the resident superinten- dent's wife is available to take calls and, relay messages when the superintendent is necessarily absent. B. The Residency Issue One of the principal reasons assigned by Amshu for the discharge of Hopkins is its assertion that Mrs. Hopkins did not move into the apartment with her husband as expected. Amshu asserts, and Hopkins denies, that management frequently complained of this to him. Hopkins, his wife, and other supporting witnesses testified that Mrs. Hopkins moved into the apartment with her husband shortly after her husband was hired and lived. there with him until his discharge. Respondent Amshu' s management and other witnesses , however, gave testimony to the effect that Mrs. Hopkins did not live in the Sleepy Hollow Gardens apartment, but -apparently resided at a home in Yonkers, New York, owned by Hopkins and occupied by their son. Amshu additionally asserts that Hopkins also stayed at the Yonkers home in the evening, and thus was unavailable for emergency calls from tenants . To the contrary, Hopkins, his wife, and son testified that Hopkins and his wife visited the Yonkers home only on Hopkins' day off. In support of its contention that Hopkins and his wife were not living at Sleepy Hollow Gardens, Amshu adduced considerable testimony to the effect that there was little furniture in the apartment, no bedroom furniture, and there was an array of tools, materials, and appliances (to be installed by Hopkins in apartments as they became tenanted) stored in Hopkins' apartment, which indicated that the apartment was not being lived in on a regular basis. Hopkins, his wife, and other supporting witnesses, on the other hand, testified that the apartment contained a full set of bedroom furniture, as well as some other furniture .6 Hopkins explained that he kept tools and appliances (which he was expected to install) in his own apartment for security and convenience, since Amshu did not provide him with a secure workshop until May 1974. Hopkins asserts that his wife complained of the condition of the apartment. off, Amshu did not provide a replacement to service the tenants ' complaints. It was also understood that Hopkins could take time off during the evening for personal reasons, so long as these occasions were not too frequent or extended. 6 Mrs. Hopkins attributed the meagerness of the living room and dining furniture to the fact that their possessions had recently been burned. AMSHU ASSOCIATES 833 C. Union Activities Involving Amshu and Spring Valley Associates Shortly before June 24, 1974 (all dates hereinafter in 1974, unless otherwise noted), Hopkins had a conversation with Weidman, the vice president of Amshu, in which Hopkins complained that he needed assistance in covering his job. Weidman stated that Amshu could not afford it .7 Hopkins stated that this induced him to go to the Union on June 24 to sign up (he had been carrying it withdrawal card from the Union for a long time). On the same date, the Union sent Amshu a letter advising that the employees at Sleepy Hollow Gardens had designated the Union as their bargaining representative, and requested' bargaining. On the following day, June 25, Weidman.. and the Union attended a proceeding before the New York State Labor Relations Board, apparently a representation proceeding involving Spring Valley Gardens. The Union having also filed a petition with the State Board for certification at Sleepy Hollow Gardens, Kenneth L. Childers, a business agent of the Union, sought to have Weidman agree that the two proceedings should be held together. Upon Childers' informing Weidman that Hopkins had signed up with the Union, Weidman replied that he intended to discharge Hopkins because "he is not living there. He didn't move in." Childers warned Weidman not to do this. Weidman asserts that, after making a telephone call during this period, Childers said he had found out that Hopkins was not living at Sleepy Hollow apartments. Childers denied this. I credit Childers.8 During this same conversation, Weidman threatened to dock' the pay of George Schmidt, the resident superintendent at Spring Valley Gardens, for attending the State Board hearing. Apparently at the intervention of the attorney for Spring Valley Associates, Weidman decided not to dock Schmidt's pay. Prior to this time, at Spring Valley Gardens, Elisha T. Can., an employee of Spring Valley Associates who was assigned to assist Superintendent George Schmidt, signed a card for the Union and turned it over to Schmidt's wife. Thereafter, according to Carr, David Bleiberg, then a supervisory agent of Spring Valley Associates, came to Can., and asked, "Did you join the Union?" When Carr denied this, Bleiberg stated that he had heard that Carr had joined the Union. Can replied that he had signed a card for the Union. Bleiberg said, "Oh," and walked away. Within 3 weeks, Can and another employee were laid off. (General Counsel refused to issue a complaint on the Union's charge that Can's layoff was in violation of the Act.) Bleiberg denied Can's testimony. I credit Carr .9 According to Hopkins, about 3 or 4 days after he "joined the union," he saw Weidman near Hopkins' workshop, at which time Weidman said, "I see you joined the GD [G-d damnl union," to which Hopkins assented. Hopkins says + Amshu asserts that during the period of Hopkins' employment, he was given certain assistance . The issue seems significant with respect to the assessment of credibility problems and has been duly considered for that purpose. 8 In the absence of any explanation therefor, I would fmd the conduct attributed to Childers by Weidman unusual for an experienced union representative in the circumstances . Further, as discussed hereinafter, I am convinced that Hopkins was in fact residing at the Sleepy Hollow apartments at the time and have no reason to believe that Childers was informed otherwise. that Weidman replied that Hopkins would not be "around here very long." When Hopkins stated that the Union said Weidman could not fire him, Weidman then said, in Hopkins' words, "Well, we will find some way to get rid of you." This is denied by Weidman. I have very carefully considered this conflict in light of the demeanor of the witnesses and the record as a whole. In particular, it is noted that the remarks attributed to Weidman here are consistent with the animus exhibited by Weidman against Schmidt at the State Labor Board hearing and with remarks made by Weidman to Serur, a job applicant, as considered hereinafter. On the basis of this consideration, I credit Hopkins as to this conversation. D. Events Leading to the Discharge of Hopkins 1. Complaints about Hopkins Respondent Amshu contends that it had decided to discharge Hopkins long before he signed up with the Union, because of complaints about Hopkins from tenants directly and through the office of the local building inspector, and because Hopkins and his wife were not living at the apartment and thus not readily available to handle complaints. Weidman and Halpern assert that on a number of occasions they were compelled to call Hopkins at his home in Yonkers to respond to emergency calls. Hopkins states that this occurred on two, or three occasions, but only when he was at Ypfikers ,pn his day off.10 According to Weidman, "The final, decision [to discharge Hopkins]-.was made in May [emphasis supplied] when Mr. Long, the building inspector of Spring Valley, complained to me personally, that this thing is getting out of hand; the tenants are complaining to the building department that there was no coverage .. I told [Hopkins] that this could not go on any more like this, that he has to reside there, he has to live thee; we cannot stand the complaints of having the ^bi(lilding department on our back." (This was denied by Hopkins, who asserted that he had no indication that his work was unsatisfactory tintil he was advised of his termination, aincl, in fact, had been complimented on his work by Halpern, who was his immediate supervisor. Hopkins, indeed;, had received a wage raise in May.) Weidman stated that the complaints from the building department were the last straw that "broke the camel's back." However,, evidence of specific incidents in support of these general assertions are sparse. Weidman states he has a specific recollection of a call from the building inspector in May stating complaints from tenants, but recalls no details. He ; has some vague recollection of the possibility of another call. Halpern recalled several calls from the building inspector relaying complaints from tenants, the last such call occurring in 9 On the record as a whole I am convmcel that Respondents have a strong ' antipathy to the Union. Bleiberg's' conduct is consistent with the pattern of employer action found herein . Cafr apparently appeared. at the hearing under the compulsion of a subpena . His testimony did not apparently serve any self-interest. His testimony evidenced no indication of bias or distortion. 10 I have particularly noted that the; record shows that it was Hopkins who gave Respondent the telephone number at his Yonkers home, indicating that he told Respondent that he would be visiting there. This tends to support the contention that the visits were on Hopkins ' day off. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April. The contents of these calls were not stated, although Halpern indicated that in the winter months there were problems with the boilers in the apartments concerning which he had to call Hopkins at Yonkers. It appears that on these occasions, which Hopkins states occurred only on his days off, Hopkins immediately returned to the apartments to deal with the emergency. Weidman states that he received no calls from tenants directly, but that he was advised by Halpern that the latter received calls at night from tenants complaining about coverage by Hop- kins. Halpern referred specifically to only one tenant who called complaining that screens had not been put in his apartment. A number of tenants were called as witnesses by Amshu and by the General Counsel. From their testimony it would appear that they had a number of problems with the apartments. A frequent complaint concerned the operation of the boilers and the availability of heat and hot water during the winter months. There is evidence that Hopkins took care of a number of these complaints, and, in fact, was available to restart the boiler on several occasions in the evening and during the middle of the night. There is evidence that there were occasions when tenants were unable to reach Hopkins to take care of problems, but no showing that these occurred on days when Hopkins was supposed to be on duty. Two tenants testified that they had complained to the building department. One tenant testified on direct examination that "after a couple of times when we could not get in touch with the superintendent, I sent a letter out to the building department of Spring Valley complaining about this." On cross-examination, after detailing his many complaints about not having screens in his apartment (Hopkins had advised that they were coming in and the tenant says he couldn't blame him), the tenant states that he then "finally got in touch with the building department, because it was warm in April, and we had no screens ...... The second tenant complained to the building department concerning an emergency incident which apparently occurred on Hop- kins' day off." There is no other evidence of complaints to the building department. The building inspector was not called as a witness, and no explanation was offered as to his unavailability. 2. Attempt to hire a new superintendent In March, Amshu placed an advertisement in a local newspaper in Nyack, the Journal-News, for "Superintendent-Resident Garden Apartments." No ad- dress was given . The telephone number listed was that of the Amshu office in its condominium. The ad apparently ran for about I week. Neither Weidman nor Halpern was very clear concerning the responses received to this ad. Halpern and Weidman assert that this ad was intended to secure a replacement for Hopkins, thus showing an intent to terminate Hopkins before his union activities began. Halpern interviewed Abraham Serur, together with his wife Lea, for a position as superintendent, either in response to this ad, or because Serur had learned of the position through others. Halpern states that this was for the position then occupied by Hopkins, because Amshu was concerned that Mrs. Hopkins was not going to move into the apartment. Halpern says that the Serurs were called back for another interview. This was in early June. At that time they met with Weidman. According to the credited testimony of Lea Serur, Weidman told the Serurs that the job was not then open, but that he would call them when it became open, that Amshu was having trouble with "the old super," "[t]hat the super took them to court, because he's in the union." Weidman took the Serurs to see the Sleepy Hollow apartment complex and the high-rise condomini- um located nearby. It does not seem that either Halpern or Weidman told the Serurs the name of the apartment group for which Amshu was seeking a superintendent. Halpern advised them that it was in Spring Valley. The Serurs told Weidman that they could not be available to take a position until they returned from Canada in the early part of July. On their return from Canada, the Serurs spoke with Weidman by phone. At that time he advised that the position was not yet open "because they are fighting with the old super." The Serurs have not been contacted by Weidman since that time. Weidman testified that he interviewed a Mr. Weisman for the position of superintendent; "I think I interviewed him the early part of June; I would say the second week of June, two or three weeks - June 10, I believe it was." Weidman states that Weisman said that he could not be available before the end of June, and actually started to work on July 1. Hopkins was told that Weisman was to be his-helper. By letter dated July 8, signed by William Leflein for Amshu, Hopkins was advised: Prior to the time you were employed in September 1973, you were informed that your position would be one of resident superintendent. You were given, at considerable cost to us, apartment No. 20 Luney Court, and, you told us, prior to being employed, that you would, in fact, move in with your family upon commencing work. Since that time, we have continually demanded that the move into the apartment be made because your availability at the building is imperative for its efficient and safe operation. It having become apparent that you have no intention of residing at the building, it has been necessary to replace you with a new superintendent who will reside on the premises. You will be relieved effective July 22, 1974. In accordance with this letter, Hopkins did leave the premises by July 22. Within a week thereafter, Hopkins' son Robert, together with Alexander Rizzo, a business partner of Robert Hopkins, moved Hopkins ' bedroom furniture from the apartment to Hopkins ' house in Yonkers. It appears that the rest of Hopkins' effects remained in the apartment at the time of the hearing in this matter. 11 The tenant could not recall if the incident occurred on June 16 (Sunday) or on June 17 (Monday). Hopkins recalled being off on that ,Sunday. AMSHU ASSOCIATES 835 While the above summary statement sets forth only the essential facts of the case, without expounding in detail the testimony of the 22 different witnesses who testified (some of them more than once), the testimony of each of them has been carefully considered, including the conflicts among the witnesses and the conflicts in the testimony of individual witnesses . To the extent that the testimony of any witness is inconsistent with the findings made in the following analysis and conclusions, that testimony has not been credited. IV. ANALYSIS AND CONCLUSIONS I credit the testimony of Mr. and Mrs. Thomas Hopkins that they moved into the Sleepy Hollow apartments shortly after Hopkins was employed as resident superintendent there and made that place their residence until Hopkins was discharged. I find this conclusion to be supported by the credible testimony of Alexander Rizzo, the business partner of the Hopkins' son, Robert. I was particularly impressed with Rizzo's testimony that he picked up Mrs. Hopkins in the morning at the Sleepy Hollow apartments several times a week during the material period to take her to the business run by Rizzo and Robert Hopkins, where Mrs. Hopkins worked on a fairly regular basis, and that Rizzo left Mrs. Hopkins off at the apartments in the evening of the days that she worked at her son's business. Hopkins seems to have had a long career as a resident superintendent in the New York area and is an experienced and apparently stable person. It is difficult to believe that a man who has made this field a lifetime work would at this stage of his career take a position clearly requiring his presence at the apartments and then deliberately_ absent himself continually,. in spite of repeated admonitions indicating that such conduct was jeopardizing his position, as Respondent Amshu claims. Nor an I able to ascertain any motivation that would have induced Hopkins and his wife to live in their house in Yonkers distant from Hopkins' work, when living quarters, without cost, were provided at the place of his employment, which quarters were conven- ient and necessary to his work. The record as a whole convinces me that Respondent Anlshu was concerned that Hopkins had a house in Yonkers only because Hopkins consistently went there on his days off, whereas, if Hopkins remained at his residence at Sleepy Hollow Gardens, he would have been available for emergencies occurring there on his day off. Respondent provided no substitute for Hopkins on his days off, and I have no doubt that the major problems of lack of maintenance coverage about which Anishu now complains occurred on Hopkins' days off. It may be that on some occasions Mr. and Mrs. Hopkins, or one of them, were not at home at their apartment in the evening. But Respondent does not claim that they were obligated to remain on the premises continuously. I did get the strong impression from the testimony, reinforced by'my study of the record, that the complaints against Hopkins, largely unspecific, were exaggerated. However, even if Respondent Amshu discharged Hop- kins for not residing at Sleepy Hollow Gardens on his days llz The record ' shows union activity at Spring Valley Gardens prior to June 24. When this started is not revealed. off - which might be considered an arbitrary action - this nevertheless would not constitute a violation of the Act, if, in fact, this were the real reason for the discharge. I find that it was not. Respondent Amshu, asserting that Hopkins' discharge was unrelated to his union activities occurring about June 24, relies strongly on its advertisement in a local paper in March for a resident superintendent. Amshu asserts that this ad was placed pursuant to its decision to discharge Hopkins. One of those applicants interviewed in March and again in early June for the position, according to Amshu, was Abraham Sena. However, Mrs. Serur, who accompanied her husband to these interviews, credibly testified that she and her husband were told that Amshu was looking for a replacement for one of its superinten- dents who was giving it trouble because of the Union, and was taking it "to court" in such a matter. Considering that this interview apparently occurred before Hopkins signed with the Union, the position Amshu desired to fill was clearly one other than Hopkins'.12 In addition, Amshu's contention that the decision to get rid of Hopkins was made in March, prior to the placing of the advertisement, is at variance with the testimony of Weidman, vice president of Amshu, that the precipitating cause for that decision occurred in May, after an alleged complaint from the building department of Spring Valley about lack of maintenance coverage at the Sleepy Hollow Gardens apartments. Weidman further contends that he interviewed and hired a replacement for Hopkins, Weisman, on June 10, prior to the time Hopkins signed with the Union, on June 24. But Weisman did not begin work until July 1, then as Hopkins' assistant, and Weidman's testimony as to the date he interviewed and hired Weisman did not express that certainty and definiteness that would inspire confidence in the accuracy of the date. No other support is offered for this date. Weisman, who apparently is still employed by Amshu, was not called to testify. I am convinced on the basis of the above, and the record as a whole, that whatever difficulties Respondent Amshu considered it was having with Hopkins, it had been willing to tolerate them and had made no decision to discharge him until it learned that Hopkins had joined the Union, which I find was the straw that broke the camel's back. The reasons presently offered for his discharge I find are pretexts. This is supported by Hopkins' credible testimony that Weidman told him that, as a result of Hopkins' joining the Union, he would not be around there very long, and that, Weidman would find some way to get rid of Hopkins. On the basis of the, above, and the entire record, I find that Respondent Amshu, by discharging Thomas Hopkins, discriminated in the hire or tenure of an employee in violation of Section 8(axl) and (3) of the Act. It is further found that Respondent Amshu, by Weidman's interroga- tion of Hopkins concerning his union activities and by the threat to terminate Hopkins because of those activities, further violated Section 8(axl) of the Act. It is further found that, in the circumstances of this case, Respondent Spring Valley Associates violated Section 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(a)(1) of the Act by David Bleiberg's interrogation of Elisha Carr concerning his union activities. CONCLUSIONS OF LAW 1. The Respondents are each an employer, and together constitute a single employer, each engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the discharge of Thomas Hopkins, Respondent Amshu discriminated in regard to the hire or tenure of employment of an employee discouraging membership in and activities on behalf of labor organizations, which unfair labor practices violate Section 8(a)(1) and (3) of the Act. 4. Respondent Amshu, by interrogation of and threat- ening to terminate Thomas Hopkins because of his union activities, engaged in unfair labor practices which violated ' Section 8(a)(1) of the Act. 5. Respondent Spring Valley Associates, by interroga- tion of Elisha T. Carr concerning his union activities, engaged in an unfair labor practice in violation of Section 8(aXl) of the Act. 6. The above unfair labor practices are practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. employees engaged at any of its activities in Spring Valley, New York, and furnish proof of such- mailings , with the names and addresses of the persons to whom the notices were mailed, and the dates of the mailings, to the Regional Director for Region 2 of the Board within 5 days after the mailings hereinafter provided. Although it has been found that Respondent Spring Valley Associates engaged in a single instance of unlawful interrogation of an employee, I do not believe that it is necessary to effectuate the purposes of the Act that a remedial order be issued against that Respondent in the circumstances. Notwithstanding the close connection between Respondent Amshu and Respondent Spring Valley Associates, there appears to have been a minimum amount of contact between employees of their separate operations in Spring Valley. The supervisor who engaged in the single incident of interrogation apparently no longer works for Respondent Spring Valley Associates. The employee interrogated was not unlawfully terminated, so far as this record shows, nor does the record show that any other employee of that Respondent has been interfered with in the exercise of his rights under the Act. I recommend that no remedial order be issued against Respondent Spring Valley Associates. Upon the foregoing findings of fact, conclusions of law, and the gntire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: THE REMEDY It having been found that Respondent Amshu has engaged in unfair labor practices in violation of Section 8(axl) and (3) of the Act, it will be recommended that Respondent Amshu be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent Amshu unlawfully discharged Thomas Hopkins, it will be recommended that Respondent Amshu offer him immediate and full reinstate- ment to his former job or, if such job no longer exists, to a substantially equivalent, job, without prejudice to his seniority and other rights, privileges, or working condi- tions, and make him whole for any loss of earnings suffered by reason of such discrimination against him, from the date of his discharge to the date of Respondent Amshu's offer to reinstate him as aforesaid, less his net earnings during that period, in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., '138 NLRB 716 (1962). The particular circumstances of this case make it questionable whether it would be appropriate to order Respondent Amshu to post notices to the employees, inasmuch as it does not appear that Respondent maintains a place of business regularly frequented by its employees. It will therefore be recommended that Respondent Amshu mail copies of the notice hereinafter provided to each of its ORDER 13 Amshu Associates, Inc., Respondent herein, its officers, .agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, or otherwise discriminating against employees in order to discourage membership in or support of Building Service Employees International Union, Local 32E, AFL-CIO, or any other labor organiza- tion. (b) Threatening employees with discharge , or other reprisals for joining a union or engaging in union activities or supporting a union. (c) Coercively interrogating employees concerning em- ployee membership in or activities on behalf of unions. (d) In any other manner interfering with , restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer Thomas Hopkins immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent job, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, in accordance with the provi- sions of the section entitled "The Remedy" above. (b) Preserve and upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all records 13 In the event no exceptions are filed as provided by Sec. 102.46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and Order, and all objections thereto shall be conclusions , and recommended Order herein shall, as provided in Sec. deemed waived for all purposes. AMSHU ASSOCIATES 837 necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Mail to each of its employees engaged at any of Respondent's activities in Spring Valley, New York, a copy of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by an authorized representative of Respondent, shall be mailed to the persons above-stated immediately upon receipt thereof, and again on the 60th day thereafter. Proof of such mailings, with the names and addresses of the persons to whom the notices were mailed, and the date of such mailings , shall be furnished to the Regional Director for Region 2, within 5 days after such notices are mailed. (d) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 14 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Issued by Order of the National Labor Relations Board" shall read "Issued Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The law states that employees shall have the right: To bargain collectively through representa- tives of their own choosing To engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection To refrain from any or all such activities, except as may be required by a legal agreement between an employer and the representative of the employees. WE WILL NOT discharge or discriminate against our employees because they join or help Building Service Employees International Union Local 32E, AFL-CIO, or any other labor organizations. WE WILL NOT threaten to discharge or otherwise harm our employees because they join or help a union. WE WILL NOT coercively question employees con- cerning membership in, or activities on behalf of, a union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights protected by law. WE WILL offer Thomas Hopkins immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights, privileges, or working conditions. WE wn.L make Thomas Hopkins whole for any loss of pay or benefits suffered as a result of the discrimina- tion against him. To form, join, or assist labor organizations AMSHU AssoclATEs, INC.