BENJAMIN H. REALTY CORP

National Labor Relations Board - Unpublished Board Decisions

Jun 19, 2013

22-RC-087792 (N.L.R.B. Jun. 19, 2013)

NOT TO BE INCLUDED PGB
IN BOUND VOLUMES Orange and East
Orange, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BENJAMIN H. REALTY CORPORATION
Employer
and Case 22-RC-087792
RESIDENTIAL CONSTRUCTION AND
GENERAL SERVICE WORKERS,
LABORERS, LOCAL 55
Petitioner
DECISION AND DIRECTION
The National Labor Relations Board has considered a
determinative challenge in an election held on November 8, 2012,
and the hearing officer’s report recommending disposition of it.
The election was conducted pursuant to a Decision and Direction
of Election. The tally of ballots shows 6 for and 6 against the
Petitioner, with 1 challenged ballot.
The Board has reviewed the record in light of the
exceptions1 and brief, and has adopted the hearing officer’s
findings2 and recommendations.3

1 The Employer contends that this case should be held in
abeyance because the Board does not have a valid quorum
under Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013).
For the reasons stated in Bloomingdale’s, 359 NLRB No. 113
(2013), this argument is rejected.
2
DIRECTION
It is directed that the Regional Director for Region 22
shall, within 14 days from the date of this Decision and
Direction, open and count the ballot of Justo Pastor Perea. The
Regional Director shall then serve on the parties a revised
tally of ballots and issue the appropriate certification.

2 The Employer has excepted to some of the hearing officer's
credibility findings. The Board's established policy is
not to overrule a hearing officer's credibility resolutions
unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Stretch-Tex Co., 118
NLRB 1359, 1361 (1957). We have carefully examined the
record and find no basis for reversing the findings.
3 In adopting the hearing officer’s recommendation to
overrule the challenge to the ballot of Justo Pastor Perea,
we find no merit to the Employer’s contention that the
hearing officer misplaced the burden of proof on the
Employer. The Employer argues that, because the parties
stipulated that Perea was a statutory supervisor before the
Employer hired Moshe Weiss as its manager in March 2012,
the burden of proof is on the Petitioner to affirmatively
establish that Perea lost his supervisory authority.
Contrary to the Employer’s contention, the burden of proof
here is on the Employer, as the party asserting supervisory
status. NLRB v. Kentucky River Community Care, Inc., 532 U.
S. 706, 711-712 (2001). The Board does not apply a burden-
shifting analysis to determine whether an individual is a
statutory supervisor. Dean & Deluca, 338 NLRB 1046, 1047
(2003). Indeed, similar supervisory status stipulations
have not changed the Board’s placement of the burden of
proof, belying the Employer’s contention that this factual
situation is unique. See We Can, Inc., 315 NLRB 170, 173-
74 (1994); International Metal Co., 286 NLRB 1106, 1115
(1987). As the hearing officer correctly found, the record
shows that after the Employer hired Weiss, there was a
substantial change in Perea’s duties and responsibilities
and that the Employer failed to carry its burden of proving
that Perea was a supervisor.
3
Dated, Washington, D.C., June 19, 2013.
___________________________________
Mark Gaston Pearce, Chairman
___________________________________
Richard F. Griffin, Jr., Member
___________________________________
Sharon Block, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD