Sandra Greer Real Estate Inc.

National Labor Relations Board - Administrative Judge Opinions

Oct 5, 2009

02-CA-039067 (N.L.R.B. Oct. 5, 2009)

JD(NY)–36–09
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
SANDRA GREER REAL ESTATE, INC.
and Case No. 2-CA-39067
LAMONT JOHNSON, an Individual
Nicole Buffalano, Esq., Counsel for the
General Counsel
Perry S. Heidecker, Esq., Counsel for the
Respondent
DECISION
Statement of the Case
RAYMOND P. GREEN, Administrative Law Judge. I heard this case in New York City
on July 29 and 31, 2009. The charge was filed on December 3, 2008 and the amended charge
was filed on March 9, 2009. A Complaint and Notice of hearing was issued by the Regional
Director on May 29, 2009 and alleged that on or about October 29, 2008, the Respondent
discharged Lamont Johnson because of his protected concerted activities and in order to
discourage him from joining or supporting Local 32BJ, SEIU.
The Respondent contends that Johnson was employed as a relief doorman and that
after he failed to provide reliable contact information, it chose to call a different relief doorman
instead of him.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following
FINDINGS AND CONCLUSIONS
I. Jurisdiction
The parties agree and I find that the Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act. 1 It also is agreed and I find that the
Union is a labor organization within the meaning of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practice
The Respondent is a real estate management company that provides management
services to a number of buildings in New York, including a condominium building called the
Atrium located at 101 7th Avenue. The managing agent for the Respondent is Susan Saltman.

1 At the hearing, the Respondent conceded that it was the employer of Mr. Johnson.
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At the Atrium, the Respondent operates on a 24 hour, 7 day per week basis. It employs
four regular full-time doormen, including the lead doorman who is Richard Cintron. In addition,
the Respondent normally has a relationship with two relief doormen who are used to replace
doormen as needed. (For example, for scheduled holidays and vacations and for unscheduled
circumstances such as illness).
By assent, the Company is a party to a collective bargaining agreement between the
Realty Advisory Board and the Service Employees International Union, Local 32B-J. That
collective bargaining agreement runs from April 21, 2006 until April 20, 2010. This contract
covers all of the doormen, albeit by its terms, only the four regular doormen are entitled to all of
the benefits described in the contract. Although the collective bargaining agreement provides
that a relief doorman must be paid at the same rate of pay as the regular doormen, relief
persons are not covered by the contract in any other way. That is, a person who works
sporadically as a relief doorman is not entitled to any of the other benefits of the contract. The
contract’s union security clause would not cover individuals employed as a relief doorman on
such a sporadic basis.
In her testimony, Susan Saltman stated that she was not all that familiar with the specific
terms of the labor agreement.
Lamont Johnson, the charging party, was hired as a relief doorman in March 2007. For
the remainder of that year he worked only a total of 27 days, mostly by replacing regular
doormen in cases of illness. But in 2008, Johnson worked a total of 56 days including
November 17, 2008. Many of the days he worked were to cover regular doormen who took
vacations.2 Although there was another relief doorman available during 2008, (Denis Ortiz),
Johnson was called by Cintron almost exclusively.
Indeed, given the fact that Johnson worked 56 days in 10 ½ months during 2008, it
might reasonably be argued that his employment was no longer sporadic, but had been raised
by to the level of a regular part-time employee. And if that were the case, then under the
collective bargaining agreement, the Company might have been liable for payments to the
pension, health and sickness funds on his behalf.3

2 Mr. Johnson appears to have some personal/medical problems that have caused him to move from
place to place and which has resulted in a couple of hospital stays in 2008.
3 Article X, Section A1 states that employers are required to make payments to a health fund to cover
employees covered by this agreement who work more than two days in each workweek, including such
employees of other employers in or connected with the industry for which contributions are paid… At
Section A 2, the amounts of the payments are set for 2007 at $10,790.64 per employee per year.
Article X B provides that “the employer shall pay into the [Pension] Fund the sum of $49.75 per week for
every regular employee as defined in the Building Service Pension Plan…” The amount is increased
effective January 1, 2007 to $58.75 per week for every regular employee.
Article XII dealing with Sickness benefits, states that “any regular employee” with at least one year of
service, (as defined in Section 4 below) in the building or with the same employer, shall receive in a
calendar year from the Employer 10 paid sick days for bona fide illness. In the same article at Section 4,
the contract states that “A regular employee shall be defined as one who is a full or part-time employee
employed on a regular schedule. Those employed less than 40 hours a week on a regular basis shall
receive a pro-rata portion of sickness benefits provided herein computed on a forty hour work week.”
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The head doorman at the Atrium is Richard Cintron who is also a member of Local 32B-
J. Although it is doubtful that he has the authority of a statutory supervisor, the evidence shows
that when he needs to assign a relief doorman, he has the discretion to decide whom to call
among the two available people of the relief list. Thus, although he advices his boss of the
person assigned, it is Cintron who, de facto, makes the assignment. Thus, for this function, I
conclude that Cintron is an agent of the Respondent. Cintron also testified that during 2008, he
called Johnson for almost all of the relief assignments because the other person, Dennis Ortiz,
had a regular job elsewhere and was not as readily available. It should be noted that all of the
doormen are required to give the Company telephone numbers where they can be reached and
Cintron keeps a list of their numbers.
Because of Johnson’s somewhat unstable personal life, he has, at times not had a home
of his own or a regular permanent telephone. However, he normally utilized a cell phone with a
pre-paid plan and was available for most or all of his employment at other numbers, including
that of his step son’s cell phone and his cousin’s land line.
Notwithstanding Respondent’s claim that Cintron starting in July 2008, had great
difficulty in reaching Johnson, the evidence shows that Johnson worked more days in July,
August and September than at any other time during the year. So if Cintron was having
difficulty in reaching Johnson for relief work, this is not borne out in the payroll records where
Johnson, instead of Ortiz, was the person called in to replace the regular doormen when the
need arose.
In October 2008, Johnson was hospitalized for four days. During that time, his phone
was taken away from him. According to Johnson, when he returned to the work site, Cintron
complained that he had difficulty reaching him. Johnson states that he told Cintron that he was
in the hospital and could not be reached. Some time after this incident, Cintron assigned him,
(via telephone), to a relief job on November 17, 2008.
According to Johnson, on or about October 24, he visited the offices of the Union and
ultimately paid $115.00 for an initiation fee and one month’s dues. He also signed an application
for membership and a payroll deduction authorization form. Johnson expected that upon joining
the Union, he would be entitled to all of the benefits of the collective bargaining agreement that
are available to full-time and regular part-time employees. This form was transmitted by the
Union to the Company a few days later.
According to Susan Saltman, she received the document signed by Johnson and called
up the Union. She states that she spoke to Ursczula Potocki and expressed her surprise that
Johnson had joined the Union and had signed a dues check-off form because he was a relief
doorman, whom she understood was not eligible for union membership or benefits.
By an e-mail dated October 29, 2008, Saltman wrote to Potocki and stated the following:
Dear Ursczula, we must have gotten disconnected. I was speaking with you regarding
Lamont Johnson. Lamont has been used as a relief doorman when needed on an on
call basis. He is NOT an employee full time, part time or otherwise. There are months
that go by and we do not have work for him. Also: Sandra Greer Real Estate Inc. is not
the employer. The building condominium pays him when he works. We do not have him
as an employee who is steady… we alternate also between relief doormen.
In response, Ms. Potocki wrote:
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Don’t worry, I terminate him from the union. Can you please tell him that. Also tell him
that we can refund his money to him that he paid already. Thank you.
According to Potocki, she responded to Saltman’s e-mail by stating that she, (Potocki),
was removing Johnson from the Union because, in her mind, if the Company was going to
terminate Johnson there was no point in Johnson continuing to pay dues.
As noted above, the next time that Johnson worked was on November 17, 2008. He
testified that on that day, Cintron told him that there would be no more work for him for the
remainder of the year because the regular doormen had maxed out their vacation and holiday
entitlements. (Also doormen are usually at work during the pre-Christmas time in order to
receive gratuities).
According to Johnson, he briefly spoke to Cintron on the phone around the Christmas
season, but when he called, Cintron said he couldn’t talk and hung up. At a later time,
according to Johnson, he was walking by the Atrium and tried to get Cintron’s attention but was
ignored.
On November 28, 2008, Ms Saltman sent an e-mail to Potocki that stated the following:
Lamont is NOT AN EMPLOYEE of the Atrium… Lamont is Temporary Relief Doorman
and only used on an as need basis. We use other relief doormen as well. While he is a
good relief, we do not have a full time position for him. We have our regular doormen.
We do not take dues, nor have we told him to join the union as once again, he does not
work as a full time employee… he is really not even considered part-time because we
never know when we will need him. He fills in if someone is sick… we use him and
other person to split holidays and vacations when our regular doormen are out. That’ s
it...
I will speak to him… and have the doormen speak with him so that he will understand.
And if this continues, we won’t be able to continue using him. I like him, he is very
good… but as I said, we do not have a space for him.
According to Potocki, she had a conversation with Saltman wherein Saltman stated that
Johnson was not a full time or regular part-time employee and that because he was merely a
relief doorman, he was not entitled to be in the union. Potocki also related another conversation
where she told Saltman that it was her understanding that Johnson had been filling in for
vacations and as such he would be considered by the Union to be eligible for membership and
covered by the contract. Potocki testified that Saltman replied that if Johnson kept it up, he
would be terminated.
There was a minor discrepancy between Potocki’s testimony as to the date of the
second conversation and it appears from the e-mail exchanges that it took place on or about
November 26, 2008. Notwithstanding this discrepancy, the testimony of Potocki is essentially
corroborated by the contents of the e-mail sent to her by Saltman on November 28. Based on
demeanor and the consistency between her testimony and the exchanged e-mails, I shall credit
her testimony.
In December 2008, Saltman hired a man named Martinez to be another relief doorman.
In that month Martinez and Ortiz worked a couple of relief shifts and continued to do so in 2009.
Johnson, since November 17, 2009, has received no further calls to come to work. And
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although the Respondent asserts that Johnson was never told that he was either fired or laid off,
the evidence shows that he was de facto terminated.
Although the Respondent claims that it did not call Johnson into work because of the
difficulties it had in reaching him by phone, this assertion was not made in either of its position
statements sent to the NLRB or to the New York State Division of Human Rights where Johnson
had filed a charge. This is noteworthy to me because both letters were sent by Susan Saltman
and are quite detailed in their respective responses to Johnson’s claims.
Analysis
Initially, I wondered why an employer, having an established and apparently uneventful
collective bargaining relationship with a union would discharge an employee because he wanted
to join that Union, especially where the contract would likely exclude him, as an irregular
employee, from receiving any of the contractual benefits. Nevertheless, the preponderance of
credible evidence indicates to me that this is what happened in this case.
Firstly, although Johnson was never explicitly told that he was being discharged or laid
off, the fact is that he last worked on November 17, 2008 and was never called again to fill in for
the regular doormen. De facto, he was discharged.
Secondly, it seems to me that the timing of the decision to refuse to use him again was
made almost immediately after the Employer was notified that Johnson had joined the Union.
This by itself , evidences illegal motive.
Thirdly, the credible testimony of union agent Potocki, confirmed by Saltman’s e-mail,
shows that Saltman’s message was that Johnson would not be called to work again if he
insisted on joining the Union. Thus, in the November 18 e-mail, after stating why Johnson
should not be in the Union, Saltman stated: “I will speak to him… and have the doormen speak
with him so that he will understand. And if this continues, we won’t be able to continue using
him. “
Fourthly, the Company asserts that the reason it did not call Johnson back to work was
because Cintron had substantial difficulty reaching him due to Johnson’s unavailability via
telephone. But this reason was never advanced to either the Regional Office when this case
was being investigated or to the New York State Division of Human Rights where Johnson had
filed a charge. Moreover, although Cintron testified that he started to have great difficulty in
reaching Johnson starting in July 2008, the fact is that Johnson worked fairly steadily from July
through October.
It is not necessary for me to inquire into Saltman’s precise state of mind. But I suspect
that not being very familiar with the exact terms of the collective bargaining agreement, she
concluded that if Johnson, after being utilized on a fairly regular basis to replace the regular
doormen for their vacations and holidays, the Company would have been required to pay for
certain benefits on his behalf if he became a union member.
For all of the above reasons, it is my conclusion that the Respondent discharged
Johnson because he joined the Union and that in doing so, it violated Section 8(a)(1) and (3) of
the Act.
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Conclusions of Law
By discharging Lamont Johnson because he joined Local 32B-J, Service Employees
International Union, the Respondent has violated Section 8(a)(1) & (3) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
In view of the above, I shall recommend that the Respondent, having discriminatorily
discharged an employee, must offer him reinstatement and make him whole for any loss of
earnings and other benefits, computed on a quarterly basis from the dates of discharge to the
date of a proper offer of reinstatement, less any net interim earnings, as prescribed in F.W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (2987).4
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 5
ORDER
The Respondent, Sandra Greer Real Estate, Inc., its officers, agents, and
representatives, shall
(a) Cease and desist from discharging employees because they join or assist Local
32B-J, Service Employees International Union or any other labor organization.
(b) In any like or related manner interfering with, restraining or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Lamont Johnson, full reinstatement
to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed.
(b) Make Lamont Johnson whole, with interest, for any loss of earnings and other
benefits suffered as a result of the discrimination against him, in the manner set forth in the
Remedy section of this Decision.

4 In her Brief, the General Counsel asks for the issuance of an order that treats interest in a different
manner than what is currently approved of by the Board. As such, this should be decided by the Board
and not me.
5 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 purposes.
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(c) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful action Lamont Johnson and within three days thereafter, notify him in writing, that this
has been done and that the discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facilities in New York, New
York, copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 2, 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
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, or sold the business or the facilities involved herein, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent at any time since November
17, 2008.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., October 5, 2009.
_____________________
Raymond P. Green
Administrative Law Judge

6 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the
notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(NY)–36–09
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT discharge employees because they join or assist Local 32B-J, Service Employees
International Union, or any other labor organization.
WE WILL NOT in any like or related manner, interfere with, restrain or coerce employees in the rights
guaranteed to them by Section 7 of the Act.
WE WILL reinstate Lamont Johnson to his former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination
against him.
WE WILL remove from our files any reference to the unlawful discharge of Lamont Johnson and notify
him, in writing, that this has been done and that this action will not be used against him in any way.
Sandra Greer Real Estate, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0346.