Joshua Associates, Inc., And Ditmas Management Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1987

285 N.L.R.B. 397 (N.L.R.B. 1987)

JOSHUA ASSOCIATES 397
Joshua Associates , Inc., and Ditmas Management
Corp. and Local 32B-32J, Service Employees
International Union, AFL-CIO. Case 29-CA-
11850
26 August 1987
DECISION AND ORDER
was a member of Local 32B-32J, Service Employees
International Union, AFL-CIO (Local 32).
I heard this case in New York City on 8, 9, and 23
October 1986. On the entire record, including my obser-
vation of the demeanor of the witnesses, and after due
consideration of the briefs filed by the General Counsel
and Respondent, I make the following
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
On 11 March 1987 Administrative Law Judge
James F. Morton issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance 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 re-
versing the findings.
We adopt the judge's finding that the General Counsel has not estab-
lished a prima facie showing that union considerations were a motivating
factor in the Respondent's decision to discharge employee Sosa We fur-
ther find that assuming arguendo the General Counsel has made such a
showing, the Respondent-has met its burden under Wright Line, 251
NLRB 1083 (1980), of demonstrating that it would have discharged Sosa
even in the absence of union considerations.
Aggie Kapelman , Esq. and Joel Friedman, Esq., for the
General Counsel.
Neal Haber, Esq. (Moss & Boris, P. C.), of New York,
New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
complaint, as amended, alleges and the answer admits
that Joshua Associates Inc. (Joshua) and Ditmas Manage-
ment Corp. (Ditmas) constitute a single employer within
the meaning of Section 2(2) of the National Labor Rela-
tions Act (the Act). Joshua and Ditmas are referred to
below jointly as Respondent.
The complaint further alleges, and the answer denies,
that Respondent, in violation of Section 8(a)(1) and (3) of
the Act, discharged its employee, James Sosa, because he
FINDINGS OF FACT
1. JURISDICTION AND LOCAL 32'S STATUS
The pleadings establish, and I thus find, that Respond-
ent's annual operations meet the applicable Board stand-
ard for the assertion of its jurisdiction. I further find,
based on the pleadings, that Local 32 is a labor organiza-
tion as defined in Section,2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
Respondent owns and manages many apartment build-
ings in and about New York City. Two of those build-
ings are adjacent to each other in the Jackson Heights
section of New York City. These two buildings are
maintained by a building superintendent, assisted by a
porter. A managing agent visits these buildings about
once a week.
The events that relate to the issues in this case oc-
curred in late 1984 and early 1985. Local 32 has contend-
ed that, at that time, the superintendent and the porter at
Respondent's two buildings in Jackson Heights were
covered by the provisions of a collective-bargaining
agreement signed by Local 32 and by the Realty Adviso-
ry Board on Labor Relations Incorporated. Respondent
has disputed Local 32's contention.
The General Counsel contends that Respondent dis-
charged the porter at the Jackson Heights buildings,
James Sosa, on the day after that contract expired in
order to avoid further dealings with Local 32 and in
order to enable Respondent to sign a more favorable
contract with United Service Employees Union Local
377, a/w Retail, Wholesale and Department Store Union,
AFL-CIO (Local 377). Respondent asserts that Sosa was
discharged because of his work deficiencies.
B. The Evidence
1. Sosa's duties
Sosa, who had been a member of Local 32 before he
began working for Respondent, started with Respondent
in June 1984 as a porter at the Jackson Heights apart-
ment buildings. The only other employee then at that lo-
cation was Building Superintendent Patrick McKenna,
who had worked there for 10 years. McKenna was also a
member of Local 32. As superintendent, McKenna took
care of the boilers for those two buildings, did some
repair work, and also supervised the porter's work.
Sosa's job as porter required him to wash and wax
floors, keep the exterior grounds clean, and take garbage
to the sidewalk for pickup.
285 NLRB No. 74
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McKenna left Respondent's employ on 31 December
1984, apparently because of an extended illness. The
managing agent in charge of the buildings then, Martin
Wolf, told Sosa to fill in at McKenna's job until a new
superintendent was hired. Sosa's testimony indicated that
he performed little, if any, of the superintendent's duties.
Sosa did not testify that he wanted to be the superintend-
ent there; Respondent, as noted below, offered testimony
that he had sought that job.
2. The meeting between Sosa and Sirulnick
Sosa testified that shortly before a new building super-
intendent was hired in early 1985, and as instructed by
then Managing Agent Wolf, he went to the office of Re-
spondent vice president, Sanford Sirulnick. According to
Sosa, Sirulnick congratulated him for his good work and
then offered him a superintendent's job in another apart-
ment building owned and managed by Respondent. Sosa
testified that Sirulnick told him that the reason he made
this offer was that "he didn't want [Local 32] in any of
his buildings." Sosa testified that he declined the offer.
Sosa gave seemingly conflicting testimony whether Man-
aging Agent Wolf was present when Sirulnick made his
remark about not wanting Local 32 in any building. In
his prehearing affidavit, Sosa had stated, "he met with
Sirulnick alone" but later therein stated that Wolf was
present at his meeting with Sirulnick. At the hearing,
Sosa testified that Wolf was present at the meeting and
that he did not recall Wolf's leaving the room. He also
testified that Wolf was in the room for a short while and
then left.
Wolf has not been in Respondent's employ since Feb-
ruary 1985. In his testimony, Sosa related that Wolf had
been "fired." In any event, neither side called Wolf as a
witness.
Sirulnick gave the following account concerning his
meeting with Sosa. Before Respondent had hired a re-
placement for McKenna as superintendent at the Jackson
Heights buildings, Wolf told Sirulnick that Sosa wanted
to talk to him about that position. Sirulnick told Wolf to
arrange an appointment. From appointment records kept
by his secretary, Sirulnick recalled that it was on 15 Jan-
uary 1985 that he met with Wolf and Sosa in his office
and that Sosa asked to be considered for the superintend-
ent's job. Sirulnick told him that a new superintendent
had already been hired and he assured Sosa that he
would be given consideration for the next superintend-
ent's opening in any of Respondent's buildings.
Sosa's account is not persuasive. It seems improbable
that an experienced real estate investor (Sirulnick) would
volunteer to a Local 32 member (Sosa) that Respondent
wanted to be rid of Local 32 and even more improbable
that he would hold that out as an inducement to Sosa to
accept a promotion to a superintendent's position. More-
over, Sosa's confused account about whether or not
Wolf was present when Sirulnick made the alleged state-
ment, i.e., his wish to be rid of Local 32, does not help
the General Counsel in carrying out the burden of per-
suading me to accept that testimony. I find that the Gen-
eral Counsel has not met that burden and thus do not
credit Sosa's account.
3. The new superintendent
On 1 February 1985, Jacinto Santiago was given the
superintendent's job at the Jackson Heights buildings. He
had previously worked as a superintendent in a small
apartment building owned by one of Sirulnick's compa-
nies and is managed by Ditmas. Local 377 was the bar-
gaining representative for Santiago at the other location.
By moving to Jackson Heights, Santiago was able to
secure a larger rent-free apartment for his family and
more money. He was hired by Managing Agent Wolf
based on the recommendation of another of Ditmas'
managing agents, Barry Weiner.
4. Sosa's job performance
Santiago testified that, when he took over as superin-
tendent at the Jackson Heights buildings, he was dissatis-
fied with the condition of those buildings and the
grounds outside. He testified that Sosa was uncoopera-
tive whenever he wanted him to do his work differently
than he had. Sosa's own testimony confirms that San-
tiago was not happy with his work. Sosa's account sug-
gests that Santiago was pressing him too much. There is,
however, no allegation that Respondent assigned Sosa
more onerous work or harassed him because he was a
member of Local 32. In any event, it is clear that there
was tension between Santiago and Sosa.
On 1 March 1985 Managing Agent Barry Weiner re-
placed Wolf as the agent responsible for the Jackson
Heights buildings. Weiner testified that he met Sosa for
the first time when he visited those buildings on 13
March. Weiner testified further that Sosa argued with
him then about an application submitted by a prospective
tenant for an apartment there. Weiner also related that
he observed then that Sosa was drinking a can of beer
and that, when he brought this to Sosa's attention, Sosa
told him he was on his lunch hour. Weiner testified also
that he informed Sosa that he could not drink alcoholic
beverages on the premises. Weiner sent Sosa a letter that
same day, pointing out the foregoing matters. Santiago's
testimony as the foregoing corroborated Weiner's.
Sosa acknowledged in his testimony that Weiner had
"complained" about his handling of a tenant application
form and also that Weiner had told him not to drink beer
on the premises. Sosa testified initially that that was all
that was said by either Weiner or himself on that matter.
On cross-examination he testified that he told Weiner it
was not beer. He testified further that he was drinking
soda from a can wrapped inside a bag but that he did not
take the can out of the bag to show Weiner that it was a
can of soda, not beer. On redirect examination, he testi-
fied that he used a straw to drink the soda from the can.
It seems unlikely that Weiner would have told Sosa
not to be drinking beer if Sosa was using a straw. If
Weiner were looking for a pretext, as the General Coun-
sel suggests, he would likely not have been so obvious
about doing so. Moreover, all Sosa would have had to
do, in order to have frustrated any such attempt, was to
remove the can from the paper bag to show Weiner that
it was a can of soda. The fact that Sosa did not do so
tends to support Weiner's account. I credit Weiner's tes-
timony, not Sosa's.
JOSHUA ASSOCIATES
There is no contention that the warning letter Re-
spondent issued to Sosa on March is in any way violative
of the Act. Had there been, I would not have found
merit to it.
In early April Weiner sent Sosa a second letter, That
letter was critical of the manner in which garbage had
been piled at the sidewalk. Weiner also expressed con-
cern in that letter about Sosa's keeping a dog on the
premises at the Jackson Heights location. Sosa tele-
phoned Weiner on receiving that letter and told him that
he did not put the garbage out on the day in question
and also that he needed time before he could bring the
dog to its owner, the former superintendent, McKenna.
According to Sosa, Weiner told him he could have until
the end of April before the dog had to go. Sosa then tes-
tified that, when he spoke with Weiner, he had already
returned the dog to McKenna, He testified he nonethe-
less had asked Weiner for more time to remove the dog
in order to find out what Weiner's reaction would be.
The General Counsel offered the foregoing account as
part of the General Counsel' s case-in-chief. Presumably,
it was submitted to suggest that Respondent was at-
tempting to establish a basis it could use to conceal an
intent to discharge Sosa later for unlawful reasons. There
is no allegation that the second letter constitutes unlaw-
ful harassment of Sosa. Were that a contention, I would
reject it. Sosa's testimony that he asked Weiner for more
time to remove a dog that was no longer there hardly
buttresses the General Counsel's contention that Re-
spondent was then engaged in a subterfuge. I credit the
testimony of Respondent's witnesses that the dog had not
been removed from the Jackson Heights buildings until
after Sosa 's discharge, discussed below. There is no ques-
tion, however, that Weiner had told Sosa in their discus-
sion on the telephone' that Sosa had until the end of
April to remove the dog from the premises, Weiner ini-
tially had denied so telling Sosa but, when he listened to
a secret recording of the telephone conversation that
Sosa had made, Weiner conceded that he had given Sosa
until the end of April for Sosa to remove the dog.
5. Sosa's discharge
Building Superintendent Santiago testified that, after
Sosa was sent the second letter, Sosa became very hos-
tile in his attitude and uncooperative in his work. San-
tiago testified that about 15 April 1985 he told Weiner
that he was dissatisfied with Sosa and that Weiner told
him to take whatever action is necessary with respect to
Sosa. Santiago testified that he thereon decided to dis-
charge Sosa. On 21 April 1985 he told Sosa he was dis-
charged. When Sosa asked for a reason, Santiago told
him to call Respondent's office. Santiago testified he did
this to avoid a confrontation with Sosa.
6. Local 377's subsequent recognition
Santiago hired Willie Velez as Sosa's replacement.
Santiago and Velez signed authorization cards for Local
377. Local 377 was then recognized by Sirulnick as their
bargaining representative and a collective-bargaining
agreement between Local 377 and Respondent was
reached and signed on 14 May 1985. As noted in the
399
General Counsel's brief, the Local 377 contract required
superintendents to work a 45-hour week whereas the
Local 32 contract called for a 40-hour week. The Local
377 contract called for pension contributions of $30 a
month for each employee whereas the Local 32 contract
required pension contributions in excess of $48 a month.
Employees who worked 1 year were entitled to 1 week's
vacation under the Local 377 contract; under the Local
32 contract, they would receive 2 weeks' vacation.
7. Analysis
The General Counsel can point to no credited testimo-
ny as direct evidence that Respondent was motivated by
union animus in discharging Sosa. There is some circum-
stantial evidence. Thus, Sosa was discharged the day
after the Local 32 contract expired, Respondent had ac-
tively disputed with Local 32 regarding whether it had
been bound to that contract, and Respondent did move
somewhat quickly to recognize Local 377 after Sosa's
discharge to enter into an agreement with Local 377 that
was considerably more favorable to Respondent then
Local 32's contract had been.
The General Counsel has not shown that the reason
for Sosa's discharge was pretextual. If anything, the evi-
dence gives weight to Respondent's reason.
At best, from the General Counsel's standpoint, the
credited' evidence raises some suspicion regarding Re-
spondent's motive but suspicion cannot substitute for
probative evidence of unlawful discrimination.
In view of the virtual absence of credilale evidence of
union animus , as the reason proferred by Respondent for
discharging Sosa has not been shown to be a pretext and
as there is no evidence that Respondent has barred the
hiring of Local 32 -members but in fact a Local 32
member (Sosa) had been hired by Respondent, I find that
the General Counsel "has not satisfied the initial burden
under [Wright Line, 251 NLRB 1083 (1980)] and has
failed to establish a prima facie case that [Sosa' s] dis-
charge was motivated by union activities." This quote is
an adapation of an extract from Florsheim Shoe Store Co.,
279 NLRB 950 (1986).
CONCLUSIONS OF LAw
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 32 is a, labor organization as defined in Sec-
tion 2(5) of the Act.
3. Respondent, in discharging its employee, James
Sosa, did not violate Section 8(a)(1) and (3) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The complaint is,dismissed in its entirety.
I If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec . 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses