J.R.R. Realty Co.

National Labor Relations Board - Board Decisions

Jan 22, 1985

273 N.L.R.B. 1523 (N.L.R.B. 1985)

J R R REALTY CO 1523
Chaim Babad, Bernard Steinmetz and Emanuel
Steinmetz, a co-partnership d/b/a J.R.R. Realty
Co. and Local 32B-32J, Service Employees
International Union, AFL-CIO. Cases 29-CA-
8809 and 29-CA-8880
22 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 3 September 1982 Administrative Law Judge
Julius Cohn issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.
The judge found, and we agree, that Ezekiel
Correa was not a supervisor within the meaning of
the Act, although he did act as an agent for the
Respondent. None of the parties has excepted to
the finding that Correa was not a supervisor. We
note, however, that Correa testified, without pro-
viding any details, that he "hired" the porter at the
Respondent's building. Although the "hiring" of an
employee is often a dispositive indicator of supervi-
sory status, the "hiring," just like any other indici-
um of supervisory status, must reflect some mean-
ingful measure of independent judgment. Thus, an
individual may "hire" an employee in the colloqui-
al sense, yet not be a supervisor within the meaning
of the Act if the "hiring" individual is merely per-
forming a ministerial act or carrying out the direc-
tions of another who actually possesses the neces-
sary authority. See, e.g., Bricklayers Local 44 (Ray-
mond International), 207 NLRB 354, 356 (1973). In
the instant case, none of the detailed evidence con-
cerning Correa's day-to-day authority demonstrates
any meaningful indicia of supervisory authority. In-
stead, it appears that Correa, at most, acted as a
leadman or a conduit between the employees and
the Respondent. Accordingly, we are unwilling to
confer supervisory status on Correa merely on the
basis of his undetailed statement, particularly in
view of the fact that none of i he parties now con-
tends that he possessed any supervisory authority.
THE REMEDY
Contrary to the judge, we find that the amounts
of money paid by the Respondent to the discrimin-
atees in "settlement" of their claims for "severance
pay" should be included in the discriminatees' in-
terim earnings for purposes of the make-whole
remedy. A. S. Abell Co., 230 NLRB 17, 21(1977);
243 NLRB 171 (1979). In our view, exclusion of
these payments from the employees' interim earn-
ings, in the circumstances here, clearly results in a
windfall to the employees and a penalty against the
Respondent.' In all other respects, backpay shall
be computed as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in
Florida Steel Corp., 231 NLRB 651 (1977).2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Chaim Babad, Bernard Steinmetz, and
Emanuel Steinmetz, a co-partnership d/b/a J.R.R.
Realty Co., Forest Hills, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
Substitute the following for paragraph 2(c).
"(c) Offer Ezekiel Correa, Gilberto Concepcion,
Lorenzo Cruz, Charles Darmendo, Curtis Phillip,
and Hugh Robertson immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits
suffered as a result of the discrimination against
them, in the manner set forth in the remedy section
of the Board's decision."
1 The judge relied on Roadway Express, 246 NLRB 174 (1979) We
find that case inapposite Roadway involved the issue of whether the
Board should have declined to adjudicate alleged unfair labor practices in
deference to the parties' private settlement and not the specific issue here
of whether, as a matter of the Board's remedy, certain payments to em-
ployees properly are offset against backpay We find it unnecessary to ex-
press any view on the Board's holding in Roadway
2 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
DECISION
STATEMENT OF THE CASE
Jumus CoHN, Administrative Law Judge. This pro-
ceeding was heard in Brooklyn and New York, New
York, on March 15 and 16, 1982 On charges filed on
April 10 and May 8, 1981, the Regional Director for
Region 29 issued an order consolidating cases and a com-
plaint on August 31, 1981, alleging that J.R.R. Realty
Co. (Respondent) violated Section 8(a)(1), (3), and (5) of
the Act by refusing to recognize and bargain with Local
32B-32J, Service Employees International Union, AFL-
CIO (the Union); by bypassing the Union and bargaining
directly with employees, and by discharging employees
because of their membership in the Union. Respondent
filed an answer denying the commission of unfair labor
practices.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
273 NLRB No. 189
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amine witnesses, to argue orally, and to file briefs All
parties submitted briefs which have been carefully con-
sidered. On the entire record in the case, and from my
observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, also called J.R.R., is a partnership com-
posed of nine individuals, principally Chaim Babad and
members of his family, and, in addition, two other part-
nerships, one composed of Bernard Steinmetz and mem-
bers of his family, and the other of Emanuel Steinmetz
and his immediate relations J.R R. owns and operates an
apartment building in Forest Hills, Queens, New York,
from which it derives gross annual income of $410,000.
Respondent contends that inasmuch as it does not re-
ceive revenues in excess of $500,000, the Board's stand-
ard for asserting jurisdiction over apartment housing,'
this proceeding should be dismissed for lack of jurisdic-
tion.
However, based on documents stipulated for the
record, it appears that Babad and members of his imme-
diate family, as well as the two Steinmetz families
(Babad being, in addition, a cousin of the Steinmetz'), are
all partners in five other partnerships which together
total gross revenues of almost $1-1/2 million. These
other partnerships similarly, as does Respondent, own
apartment buildings. The record further reveals that
Babad is the manager of all the partnerships and build-
ings, that the addresses of each are the same address as
Babad's home, where he maintains the books and records
for the partnerships and the buildings they own As man-
aging agent and partner, Babad controls the daily oper-
ations of all the buildings, including labor relations In
the latter connection, it is noted that Babad transferred
employees from one of the partnerships to Respondent
when, as will be more fully described later, it took over
the building which is the subject of this proceeding.
I find, therefore, that the six partnerships are suffi-
ciently interrelated in operations, management, control of
labor relations, and in effect function as a single employ-
er. The Board has found in these circumstances that a
number of corporations operating in the apartment hous-
ing industry could combine their total gross revenues so
as to arrive at a figure of at least $500,000 in receipts
which meets the standard set by the Board for jurisdic-
tion. 2 The record further reveals that Respondent pur-
chased fuel oil valued in excess of $30,000 in the year
preceding the Issuance of the complaint herein from en-
terprises which, in turn, received such materials in inter-
state commerce directly from States other than the State
of New York. Accordingly, I find that both the statutory
requirement and the Board's relevant standard for assert-
ing jurisdiction have been met and conclude that Re-
1 Parkvzew Gardens, 166 NLRB 697 (1967)
2 Arlington Ridge Development Co. 203 NLRB 787 (1973)
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.3
II LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The facts are, in the main, uncontroverted On March
31, 1981, pursuant to a title closing, Respondent acquired
the apartment building on Austin Street in Forest Hills
which provides the locale for this proceeding The build-
ing had been owned by Jaru Properties, Inc. and ASCR
Realty Co., Inc., and managed by J.A.R. Management
Corp., all of said entities being owned by the Rose
family. As of the date of the title closing, there were six
employees at the building. 4 These employees were repre-
sented by the Union in accordance with a collective-bar-
gaining agreement dated August 27, 1979, and effective
until April 20, 1982, between J.A.R. Management and
the Union.
On November 6, 1980, Jaru Properties, Inc. and
ASCR Realty Co., Inc. contracted to sell the property to
a corporation named Joshua Estates, Inc This agreement
was executed on behalf of the latter by Harry Newman,
as vice president. Newman was the attorney for the Re-
spondent in these transactions and, according to the testi-
mony of Alfred Rose, a principal owner of the seller, the
contract closing occurred in the office of his attorney,
Maurer, and was attended by Newman and Babad. Rose
stated it was understood that the purchasers were Babad
and Steinmetz who gave checks totaling $165,000 as a
deposit on the sale. Rose also said he had a number of
conversations with Babad prior to the signing of the con-
tract relating to financing and the purchase price. The
ultimate title closing took place at Rose's attorney's
office on March 31, 1981, and once more Babad was
present
The contract of sale provided that the purchaser
(Joshua) shall take the property subject to certain "per-
mitted incumbences," and among those specified was the
union contract, a copy of which was annexed to the con-
tract of sale At the closing on March 31, Joshua Estates,
Inc by Harry Newman executed an assignment of the
contract of sale to JRR Realty Co., which was signed
and acknowledged by Babad's partner. At the same time
the seller assigned to J.R R. (Respondent), as assignee of
Joshua, all rights and title to certain agreements includ-
3 Alternatively, the record reveals that in a state court proceeding
brought by the Union on this matter, Respondent pleaded successfully
that the arbitration be stayed since the same issues were brought before
the Board In Pollack Electric Co , 219 NLRB 1237 (1975), the Board af-
firmed a decision by an administrative law judge asserting jurisdiction
over a respondent whose business met statutory but not discretionary
standards and who had not questioned NLRB jurisdiction before the
State Labor Board
4 The employees were Ezekiel Correa, building superintendent, Gil-
berto Concepcion, porter, Curtis Phillip, Hugh Robertson, and Lorenzo
Cruz, full-time elevator operators, and Charles Darmendo, part-time ele-
vator operator
J R R REALTY CO 1525
ing the 1979 agreement with the Union. Also at the clos-
ing, both Joshua and J.R R. by Babad as partner agreed
to take title subject to the payment and performance of
all obligations of seller under the leases, contracts, and
agreements and service and maintenance contracts in
effect on March 31, 1981, and further agreed to indemni-
fy the seller and hold it harmless for any claims and li-
abilities arising on such agreements. Finally, it is noted
that the collective-bargaining agreement itself contained
a provision requiring that the seller of the building obtain
an adoption of the union contract from the purchaser,
and offer continued employment to all unit employees
and give the Union 2 weeks' written notice prior to the
sale. However, it does not appear that the seller com-
plied with these provisions.
Correa, the building superintendent, and Curtis Phillip,
the elevator operator on the afternoon shift, both testi-
fied that late in the afternoon of April 1 some people
came to the building with a moving truck and said they
were moving into apartment 3C They asked Correa for
the key which he refused, saying he had no orders to
give the key to anybody About 2 hours later, approxi-
mately 7 p.m., Babad came to the premises and told
Correa that the new owner was renting that apartment
to these people and Correa gave him the key. The
people then moved into the apartment. Phillip stated that
Babad told him that he was the owner of the building
and these people moving in were his men who were
going to work there. Babad asked Phillip if he wanted to
make a deal to leave his job but the latter said he expect-
ed to continue working and was not thinking about any
deal. Although Babad offered him $500 to leave, Phillip
said he would not do it because he needed the job and
pleaded with Babad to keep him on. Phillip also stated
that Babad told him he could not pay what the Union
was paying and would not be able to hire him
Also on this occasion Bahad told Correa to contact
Gilberto Concepcion because as of that day the porter
was out. Concepcion came to Correa's apartment later
that evening and Babad offered him $1000 to make the
deal Concepcion accepted it and then waited until
Babad returned around midnight with the money. He
gave Concepcion $1000 in cash for whtch Concepcion
signed a release. That evening Babad also tried to buy
out Correa offering him $1400 to leave the Union, the
job, and for severance pay Correa refused stating he was
going to call the Union the next day. Babad told him he
wanted the Union "off," and would make a deal with
him and the porter without the L mon.
The next day Correa telephoned and reported what
happened to the Union, and Phillip actually visited the
Union and informed the delegate Correa was directed
not to sign any papers and not to leave the Union be-
cause a representative would be there the day after. Phil-
lip was told to go back to work at 3 o'clock but shortly
thereafter Babad came to the elevator and informed him
that one of the new men would be working the elevator
from then on. Phillip said he went to Correa's apartment
and Babad came in and took their keys for the boiler
room and the elevator key.
The next day, Friday, April 3, a union representative
came to the building with a picket sign and, from that
point on, the employees picketed the building. All the
employees had been replaced by the family who moved
into the building on April 1.
A few days later Babad came to Correa's apartment in
the building and offered him $2500 to leave his job, and
indicated that he would give more money to the other
employees He told Correa he would give Phillip $1700
and $700 to the part-timer, Darmendo, and another
amount for Cruz He asked Correa to speak to the others
who were then picketing and tell them that Babad was
offering a better deal but without the Union which he
did not want. Correa did communicate with the other
employees who told him there would be no deal without
the Union, and Correa reported their refusal to Babad. In
the ensuing weeks, Babad offered Correa money on a
number of occasions either by telephone or by person.
At one point, Babad threatened Correa, who was still
living in the building, with eviction and cutting off his
utilities. Babad claimed he did this because the pickets
had engaged in some violent actions.
Babad testified that, when he took over the building,
he brought these new people to the building as described
above He proposed to pay the new superintendent a
lump sum from which the latter would take care of the
other people who were working with him and were part
of his family. Since the previous employees were picket-
ing the building, Babad stated he needed four people to
be at the building, but after the strike he retained three,
all of whom were brothers, and a fourth person who was
the wife of the superintendent. He stated that he intend-
ed to automate the elevator but this has not been done
yet. Babad further testified that while the picketing was
going on about the latter part of April, he received a
telephone call from Rudy Larmond, a union official, and,
after some discussion, an appointment was made to meet
on April 27. During the telephone conversations Babad
told Larmond that, since he was putting in an automatic
elevator, there was no need for elevator men and, in ad-
dition, the superintendent (Correa) was looking for an-
other job. He concluded there was no sense keeping all
the men there and, while he did not have anything
against the Union, he had not taken over the contract
when he purchased the building. At the meeting, after
discussion of these various problems raised by Babad, a
settlement agreement was prepared but never signed, and
indeed Babad stated he never read the paper. Basically
the agreement provided for a settlement with the em-
ployees consisting of a 4 weeks' pay to each of them.
Babad stated that the Union said he could talk to the su-
perintendent and work out a private deal with him if he
wished, and the amount of 4 weeks' pay to the other
people had been left open.
In any case Babad conceded that, until the telephone
call setting up the meeting and the meeting itself on
April 27, he had not talked to or notified the Union con-
cerning offers of settlement made to the employees, Con-
cepcion, Cruz, Darmendo, Robertson, and Phillip. Nor
did the Union give permission for Babad to talk or deal
with these employees By the same token before April 27
Babad did not discuss with the Union the problem of
dealing with Superintendent Correa.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 28 Babad came to the building and asked
Correa to communicate with the other employees. Short-
ly thereafter some of them came to Correa's apartment
Babad then gave Concepcion, whom he had already paid
$1000, another $150; he gave Darmendo, the part-timer,
$850, $1500 to Cruz and struck his deal finally with
Correa for the payment of $2500 in addition to 3 months'
free rent. The employees agreed to give up rights to
their jobs and signed receipts for the money which had
been given them by check and then cashed by Babad.
According to Curtis Phillip, he and Robertson continued
their picketing until April 30 when they decided that it
was too lonely and dangerous to continue. Robertson
then called Babad and made an appointment and they
met at the building with him and the new superintendent.
After some negotiation Babad finally offered Phillip
$2100, and Robertson $1850. After endorsing checks
they were paid in cash by Babad. In addition they signed
receipts, as did the other employees before them.
In his testimony Babad maintained that he had never
agreed to assume the contract and consequently he did
not abide by any of the terms and conditions of employ-
ment set forth therein. His new superintendent did the
work of the porter and consequently Babad no longer
employed anyone in that latter capacity. The three eleva-
tor men, whom Babad employed to replace the former
employees, were reduced to two shortly after taking
over the building. Moreover, clearly Babad did not ne-
gotiate any of the terms and conditions of employment
of his new employees with the Union and, as noted, he
has reduced the number of employees, and those that
remain are paid less than the union contract rates. Final-
ly, as of the time of the hearing, the elevator had not
been automated, the reason asserted for not hiring the
former elevator operators
B. Discussion and Analysis
1. The successorship issue
In NLRB v. Burns Security Services, 406 U.S 272
(1972), the Supreme Court affirmed the Board's succes-
sor-employer doctrine, finding that a successor-employer,
absent a reasonably based good-faith doubt of the incum-
bent union's majority, is obligated to recognize the con-
tinuing representative status of the bargaining agent of its
predecessor's employees in an appropriate unit taken
over from the predecessor. This is applied not only
where the union's status was established by Board certifi-
cation but also where it had been established by volun-
tary recognition.6
In the instant case, Respondent continued the same
business as its predecessor, that is, the ownership and op-
eration of a residential apartment building. However, an
essential factor in the determination of successorship is
absent as Respondent did not continue at least a majority
of the employees of the predecessor in its work force.
Indeed, Respondent immediately replaced the predeces-
sor's employees with a family of employees that Babad
transferred from one of his apartment house operations at
another location. Nevertheless, Respondent's obligation
5 Virginia Sportswear, 226 NLRB 1296, 1300 (1976)
to recognize and bargain with the Union and even more
to honor the contract is founded on another ground. In
NLRB v. Ethan Allen, Inc., 544 F.2d 742 (4th Cir. 1976),
the court enforced a Board Order finding there had been
an adoption by the successor of the contract.
In the instant case the assumption of the collective-bar-
gaining agreement by Respondent may be spelled out
from the series of not unusual real estate transactions and
documents described and set forth above. The contract
of sale was executed by Newman, Respondent's attorney,
as vice president of Joshua Estates, Inc., undoubtedly a
dummy corporation, acting on behalf of Babad who inci-
dently was present at this and all of the other transac-
tions The contract specifically provided that the pur-
chaser take title subject to, among other things, union
contracts, a copy of the collective-bargaining agreement
even being annexed thereto At the title closing on
March 31, Joshua, again by Newman, assigned the con-
tract of sale to Respondent, an assignment acknowledged
by Babad, in which Joshua assigned all rights of the pur-
chaser to Respondent as assignee, which assumed all ob-
ligations of the purchaser under the original contract
with the seller. Finally, at the closing both Joshua and
J.R.R , the Respondent, agreed to take title subject to all
existing leases, contracts, agreements, service and mainte-
nance contracts then in effect. By these undertakings and
assumptions, Respondent succeeded the seller of the
building with respect to obligations under the collective-
bargaining agreement.
In his testimony, Babad apparently chose to ignore his
own written assumptions and indemnifications concern-
ing the labor agreement, and preferred to remark on the
sellers' alleged failure to abide by the collective-bargain-
ing provision requiring it to notify the Union of the im-
pending sale I find in all the circumstances that Re-
spondent, by its failure to recognize the Union and to
assume all the obligations under the collective-bargaining
agreement relating to the Union itself and the employees
who were employed at the time of his takeover, violated
Section 8(a)(5) and (1) of the Act.6
Turning back to the question of successorship and the
principles established in Burns, supra, it has been noted
above that all factors for the finding of a successorship
are present except for the failure of Respondent to retain
the former employees at the apartment building. The
Board has stated, "[I]t is well settled that successorship
will be found in such circumstances if the new owner
fails to hire the predecessor's employees because of their
affiliation with the Umon." 7 The issue then is whether
the employees were not hired for unlawful discriminato-
ry motives
After closing title to the building on March 31, Babad,
on behalf of Respondent, went to the building on April
1. At the time Superintendent Correa was there inas-
6 The Union's letter dated April 23, 1981, addressed to Respondent
does not militate against this finding While the letter appears to be
simply a request that Respondent, as an ordinary successor, agree to be
bound by the collective-bargaining agreement with its predecessor, it is
clear that the Union had no knowledge at that time of the express as-
sumption of the collective-bargaining agreement by Respondent
7 Love's Barbeque Restaurant No 62, 245 NLRB 78 (1979)
J.R.R. REALTY CO. 1527
much as he lived in an apartment in the building, and
employee Phillip was working on the elevator. That day
Babad replaced them with a family of employees whom
he transferred from another building he managed in
Brooklyn. The remainder of the employees were advised
that they no longer had jobs. Actually, whether the em-
ployees were discharged or refused hire by Respondent,
the result is the same. The uncontradicted testimony of
Phillip, an elevator operator, was to the effect that,
during the course of his conversation on April 1 with
Babad, the latter stated he could not pay the union rates
and therefore he would not be able to hire Phillip, who,
at the time, was actually pleading for his job. In reality,
Babad attempted to make some sort of deal with Phillip
whereby, for a certain sum of money, he would relieve
himself of the obligations which he knew were part of
the union contract such as severance pay and the like.
As a result, he or Correa went through this routine with
all of the old employees. It was implicit in his course of
conduct that the reason he was trying to "buy out" these
former employees was his desire not to retain them
under the union agreement. Indeed, Babad paid some of
these employees sums in excess of what would have been
severance pay under the terms of the union contract.
Clearly, Babad was aware of what he was doing. As a
bona fide purchaser and successor to the former employ-
er, Respondent would have no obligation to retain the
employees; consequently it had no need to pay money in
lieu of severance pay or for any other reason to these
employees. The only logical purpose of these payments
was to strike a deal with individual employees so that
they would forgo not only the Union, but also their jobs
and he could start afresh with his own crew. Finally,
Babad's claim throughout the proceeding, that he had no
need for the elevator operators in view of his plan to
automate the elevator as soon as he took over the build-
ing, was pretextual. The hearing in this matter was con-
ducted almost a year after Respondent took title to the
building and the elevator was still not automated. In
these circumstances, I find that Respondent violated Sec-
tion 8(a)(3) of the Act by refusing to hire the former em-
ployees of J.A.R.
I further conclude that, but for the unlawful conduct
in failing to hire these employees, the Union's majority
status as collective-bargaining representative would have
continued following the takeover and Respondent's obli-
gation to recognize and bargain with the Union as a suc-
cessor would have also continued. By its conduct in re-
fusing to recognize and bargain with the Union as repre-
sentative of the employees, I further find that Respond-
ent violated Section 8(a)(1) and (5) of the Act.8
2. The bypassing issue
The General Counsel alleges that Respondent further
violated Section 8(a)(1) and (5) of the Act by dealing in-
Burns, supra; Love's Barbeque Restaurant No. 62, supra. The appropri-
ate unit is:
All service employees of Respondent, employed at its Forest Hills
apartment building, exclusive of all office clerical employees, guards
and supervisors as defmed in Section 2(11) of the Act.
dividually with employees and thereby bypassing the
Union as their collective-bargaining representative.
a. The status of Correa
Preliminary to the discussion of this issue, it is neces-
sary to determine whether Correa was an employee or a
supervisor within the meaning of the Act. Correa had
been superintendent since 1977, approximately 4 years
before the building was sold to Respondent and, as such,
was within the bargaining unit described in the collec-
tive-bargaining agreement between the Union and J.A.R.
As building superintendent, he was mainly concerned
with the general maintenance of the building including
checking the boiler, and making minor repairs. He also
checked employees coming in to work but, if someone
called in sick, he would call J.A.R. Management and
inform them of this circumstance. Correa was paid about
$25 above the stipulated contract rate for a building su-
perintendent, but he explained that this was in payment
for extra work which he was called upon to do. In addi-
tion his compensation included free rent for an apartment
and utilities, such as a telephone. Correa testified that
during his tenure he had never hired anyone for a job
except the porter, Concepcion, nor had he ever inter-
viewed anyone for a job. Moreover, the other employees
had been employed prior to the time he started in 1977
and there was no occasion to discharge any of them.
Correa stated that, on the one occasion when he hired
the porter, he merely told Concepcion what his work
duties were and that was it. He did state that, if an em-
ployee wanted an off day, he would tell him whether he
could take it or not. Further, Correa said he never sus-
pended any employee or even issued a warning. Correa
said under the established policy, if an elevator man for
the midnight shift called in sick, nobody would run it.
However, if there were an absentee for an elevator on
another shift, he would run it himself for a while or ask
others to do it, but often they would refuse if they had
their own shift or for any other reason. Sometimes, at his
request, another operator would take over the shift in
order to obtain overtime pay. Finally, Correa stated that
a representative of his employer, J.A.R. Management,
would come to the building once a week and inspect
what was going on.
On the basis of the foregoing I find that Superintend-
ent Correa is not a supervisor within the meaning of the
Act but is more in the nature of an experienced, senior
employee who routinely oversees the maintenance of the
building, and is subject to regular and constant higher su-
pervision. 8 In this connection it is also noted 'that the ele-
vator operators' jobs are unchanged and require no par-
ticular further instruction or assignment, and the porter
had a similar position, merely repeating the tasks and
duties he was told to perform when hired.
The General Counsel and the Charging Party have al-
leged, alternatively, that Correa is an agent of Respond-
ent whose statements and conduct would be binding
upon it. This is clearly evidenced in the instant case by
9 See Washington Post Co., 254 NLRB 168 (1981); Peat MA. Co., 251
NLRB 1117 (1980).
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason of Babad having asked Correa to approach em-
ployees and make offers of settlement to them. This was
done at the outset since Correa transmitted, on behalf of
Respondent, all of Babad's offers to Concepcion and to
other employees on other occasions. Since Correa actual-
ly spoke to the former employees of J.A.R. and offered
to them specific sums of money, proposals acted upon by
Babad, the employees could reasonably believe that
Correa was acting on behalf of and as a conduit for Re-
spondent, and accordingly I find him to have been an
agent of Respondent.10
b. The bypassing
The uncontroverted evidence is to the effect that
Babad, either by his own efforts or through Correa, dealt
with the employees, communicated offers of settlement
of their status as employees, and negotiated severance
pay. Babad, either by himself or through Correa, en-
gaged in this conduct without permission of the Union,
the collective-bargaining representative of the employ-
ees. Indeed, Babad ultimately reached agreements with
all the employees, including Correa, and paid sums of
money and obtained signed receipts from them. As to
Correa, Babad also made numerous attempts to make a
deal with him and, since Correa was a member of the
bargaining unit, Babad also bypassed the Union in his
case, at least until April 27, when he received permission
from the Union to deal with him. However, no such per-
mission was granted to the other employees with whom
Babad made a final "settlement" after the meeting, again
without notifying the Union or obtaining any authoriza-
tion to do so.
It has been established that it is the duty of an employ-
er to bargain solely with the statutory representative and
no other person or group." Respondent acted in deroga-
tion of this principle when, on April 1 and thereafter,
Babad or Correa began discussions individually with em-
ployees concerning an attempt to have them voluntarily
leave their positions for which they would be reim-
bursed In his effort to rid himself of the Union, Babad
actually paid them perhaps more than they would have
been entitled under the severance pay provisions of the
collective-bargaining agreement. This bypassing of the
Union and dealing on these matters directly with the em-
ployees further violated Section 8(a)(5) of the Act."
3. The alleged violations of Section 8(a)(3) of the
Act
In the circumstances of this case, in order to establish
that Respondent was a successor to the former owner of
the apartment building, it was necessary and I found that
Respondent violated Section 8(a)(1) and (3) of the Act
by refusing employment to the employees of J.A.R. In
addition, since I have found that Correa was not a super-
visor within the meaning of the Act, but rather was an
employee, I find further that he was also subject to Re-
spondent's discrimination in violation of Section 8(a)(1)
and (3) of the Act In sum, as previously stated, I find
10 B-P Custom Building Products, 251 NLRB 1337, 1338 (1980)
" Medo Photo Supply Corp v NLRB, 321 US 678 (1944)
1 2 D & H Mfg Co , 239 NLRB 393, 404 (1978)
that Respondent failed to offer employment to Correa,
Concepcion, Cruz, Darmendo, Phillip, and Robertson, in
violation of Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act
Having found that Respondent as a successor-employ-
er violated Section 8(a)(5) and (1) of the Act by failing
and refusing to bargain with the Union as the collective-
bargaining representative of the employees in the unit
found appropriate, I recommend that Respondent be or-
dered to recognize and bargain in good faith with the
Union.
I have further found that, as a result of its contractual
undertakings in the course of the closing of title to the
apartment building it had purchased, Respondent had
adopted the collective-bargaining agreement between the
Union and its predecessor, JAR., which it then repudi-
ated, and discharged or refused to hire the employees of
the predecessor on and after April 1. Accordingly, I
shall recommend that Respondent make whole the dis-
charged employees in the unit found appropriate, from
April 1, 1981, in accordance with the terms and condi-
tions of employment set forth in the contract repudiated
by Respondent. This remedy is not limited to the end of
the contract term since the obligation to bargain contin-
ues after the expiration of the agreement.
Having found Respondent discharged Correa, Concep-
cion, Cruz, Darmendo, Phillip, and Robertson, in viola-
tion of Section 8(a)(1) and (3) of the Act, I recommend
that Respondent be ordered to offer them reinstatement
and to make them whole for any loss of earnings and
other benefits resulting from their discharge. The amount
of backpay shall be computed in the manner set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
to be computed in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977). 13 In making whole the em-
ployees for their loss of earnings and other benefits, Re-
spondent should not be credited with the amounts it paid
to the employees allegedly in settlement of their claims
for severance pay, as these payments were made in viola-
tion of Section 8(a)(3) of the Act, and constituted bribes
to the employees for the purposes of their renouncing
their ties with the Union and leaving their jobs. Nor do I
find merit in the contention of Respondent that these
1 3 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
J.R.R. REALTY CO. 1529
payments resulted from voluntary settlement agreements
and receipts signed by the individual employees. The
agreements were not really voluntary since it was clear
from the evidence that the employees desired continued
employment and were forced to take these amounts as an
alternative. The Board has not normally refrained from
adjudicating unfair labor practices because of private set-
tlement agreements. Particularly in this situation, where
the agreements in themselves were violative of the Act, I
find it would not effectuate the policies of the Act to
give effect to and credit the settlements made by Re-
spondent."
Because of the egregious nature of the violations
herein, including discharge or refusal to hire the entire
complement of the predecessor's employees, I shall rec-
ommend entry of a broad order."
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Union is the collective-bargaining representa-
tive of the employees in the following unit found appro-
priate. All service employees of Respondent, employed
at its Forest Hills apartment building, exclusive of all
office clerical employees, guards, and supervisors as de-
fined in Section 2(11) of the Act.
4. Respondent is the successor-employer to J.A.R., the
former employer at the apartment building involved.
5. Respondent violated Section 8(a)(5) and (1) by re-
fusing to bargain, after April 1, 1981, collectively in
good faith with the Union as the exclusive bargaining
representative of the employees in the unit found appro-
priate.
6. Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to honor the collective-bargaining agree-
ment then in effect, and by its discharge of all of the
former employees at the apartment building.
7. Respondent violated Section 8(a)(5) and (1) of the
Act by bargaining directly with the building service em-
ployees and bypassing the Union.
8. Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Ezekiel Correa, Gilberto Concep-
cion, Lorenzo Cruz, Charles Darmendo, Curtis Phillip,
and Hugh Robertson, because of their membership in
and support of the Union.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed1 6
14 See Roadway Express, 246 NLRB 174 (1979).
15 See Hickmott Foods, 242 NLRB 1357 (1979).
" 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.
ORDER
The Respondent, Chaim Babad, Bernard Steinmetz
and Emanuel Steinmetz, a co-partnership d/b/a J.R.R.
Realty Co., Forest Hills, New York, its partners, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with
respect to wages, hours, and other terms and conditions
of employment with Local 32B-32J, Service Employees
International Union, AFL-CIO as the exclusive bargain-
ing representative of its employees in the unit described
above as appropriate herein.
(b) Refusing to honor and abide by the contract en-
tered into between its predecessor J.A.R. Management
Corp., and the Union, for the period from April 1, 1981.
(c) Disregarding the Union and bargaining directly
with the employees in derogation of their bargaining rep-
resentative.
(d) Discharging employees because of their member-
ship in or support for the Union.
(e) 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 which is nec-
essary to effectuate the policies of the Act.
(a) Bargain collectively, on request, with the above-
named Union as the exclusive representative of the em-
ployees in the appropriate unit.
(b) Honor and give retroactive effect from April 1,
1981, to the terms and conditions of the collective-bar-
gaining contract with the Union, including payment of
wages and benefits as prescribed.
(c) Offer Ezekiel Correa, Gilberto Concepcion, Lor-
enzo Cruz, Charles Darmendo, Curtis Phillip, and Hugh
Robertson immediate and full reinstatement to their
former jobs or, if those jobs no longer exists, to substan-
tially equivalent positions, without prejudice to their se-
niority or other rights and privileges, and make them
whole for their loss of earnings in the manner set forth in
the section of this decision entitled "The Remedy."
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at the Forest Hills, Queens, New York apart-
ment building copies of the attached notice marked "Ap-
pendix."" 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 immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
17 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of his Order what steps the Respond-
ent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain collec-
tively with respect to rates of pay, wages, hours, and
other terms and conditions of employment with Local
32B-32J, Service Employees International Union, AFL-
CIO as the exclusive representative of the employees in
the appropriate unit described below:
All service employees of Respondent, employed at
its Forest Hills apartment building, exclusive of all
office clerical employees, guards and supervisors as
defined in Section 2(11) of the Act.
WE WILL NOT refuse to honor the terms of an existing
contract with the Union.
WE WILL NOT disregard the Union and bargain direct-
ly with our employees in derogation of their bargaining
representative.
WE WILL NOT discharge employees because of their
membership in or support for the Union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their rights
guaranteed in Section 7 of the Act.
WE WILL bargain collectively, on request, with the
above-named Union as the exclusive representative of the
employees in the appropriate unit.
WE WILL honor and give retroactive effect from April
1, 1981, to the terms and conditions of the collective-bar-
gaining contract with the Union including the payment
of wages and benefits.
WE WILL offer Ezekiel Correa, Gilberto Concepcion,
Lorenzo Cruz, Charles Darmendo, Curtis Phillip, and
Hugh Robertson full reinstatement to their jobs, with
backpay plus interest.
CHAIM BABAD, BERNARD STEINMETZ AND
EMANUEL STEINMETZ, A CO-PARTNERSHIP
D/B/A J. R.R REALTY CO.