Mandel Management Co.

N1ANDE)I MANAG(;EM11NI ( () Herbert Mandel and Henry Mandel d/b/a Mandel Management Co. and Local 32B-32J, Service Em- ployees International Union, AFL-CIO. Case 2 CA 15666 September 24, 1979 DECISION AND ORDER BY CHAIRMAN FANNIN(; ANt MFMBIRS JNKINS ANt) MURPHY On July 6. 1979, Administrative Law Judge George F. Mclnerny issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of exceptions and brief and has decided to affirm the rulings, findings.' and con- clusions 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 Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Drn Wall Products., Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir 1951). We have carefull) examined the record and find no basis for reversing his findings. In agreeing with the credibility findings regarding James O'Hara we do not rely on what the Administrative l.aw Judge characterized as "his peripatetic domestic life." DECISION STATEMENT OF THE CASE GEORGE F. MINERNY, Administrative Law Judge: Upon a charge filed on May 30. 1978, by Local 32B 32J. Service Employees International Union, AFL-CIO, herein called the Union, the Acting Regional Director for Region 2 of the National Labor Relations Board, herein called the Board, issued a complaint on July 21. 1978. alleging that Herbert Mandel and Henry Mandel. d/b/a Mandel Man- agement Co., herein referred to as Respondent or the Com- pany. had violated and continued to violate provisions of the National l.abor Relations Act. as aended, herein re- ferred to as the Act. by threatening and coercing its clm- ployees and hb discharging emplosees on account of their union membership, activities, and s? mpathies: and refusinig unlawfully to recognize the LInion which had been selected as their bargaining representative hb a majorit o Respon- dent's emnployees in it unit foulnd appropriate fo(r hargain- irtg. Respondent his denied the commission of' a;n unfair labor practices. Pursuant to notice contlainled in the complaint. a hearing wias held at New York, Ness York. on Januar 17 and 18. 1979. at which all parties %kerc represented b counsel, pre- sented evidence, examined andi cross-examined witnesses. and were given full opportunity to argue orally. Follosing the close of the hearing Respondent ancd the (ieneral ( oun- sel filed briefs. which have been caretfull considered. l pon the entire record. including tmy observation of the witnesses and their demeanor. I make the fllloitng: FINI)IN(,S I FAt( I 1. liFt BI SINISSs ()I RSI'()l) I NI -he complaint alleges. the answer admits, and I find that Respondent is a copartnership and is engaged in commerce within the meaning of Section 26) and (7) ofl the Act. II. HI I ABIIR R(i\.NI/AIlfN IN\.01 Xl) The complainit alleges. the answer admits, and I find that the LInion is a labor organization within the meaning of Section 2(5) of the Act. tll. I A I tfii-t) tI \lR I BIR PRA(t tI S A. B A Ioltldi Respondenit osns and opera;ltes a umber ofl apartment houses in the cilt ot' New York. The premises in question here are located at 2151 Broladwa 5. also known as 235 39 West 75th Street. and will be referred to herein as the build- ing. This building is not new and had been operated as a hotel. It was acquired b Respondent. and the 5sO) roomns were converted into 220 apartments early in 1978. In IFeb- ruary 1978' the reconstruction was nearing completion. and one Simeon Warshaw was hired s resident manager. ior superintendent. of the building. It was anticipated that Warshaw would remain as the permanent superintendent after the new apartments were rented, but before that hap- pened he was responsible for cleaning and preparing the apartments for occupancy b tenants, scheduled to begin on April I. In order to do this preparatory work Warshaw began hiring employees on March 13. Respondent's records submitted in evidence in this proceeding' show that a num- I All dates herein are in 1978 unless otherwise noted ' The riginall records were submillted h Respondent (ienerail Counsel submitted co.ples o, Ihlse originals. turnished to him during his nsesligation of the case, and noted that there had been somlnc .ltcr addilions to the records submitted hb Respondent Warsha. le,ihied ia io one of these additions that he had made thehe addition in conenmplationl it the hearing I do norl slew these addition as significant, sIric Iliic is n sihsattltie dispute oer the accurac of1 the recordsl 245 NLRB No. 55 273 DEL('ISIONS OF NATIONA. I.ABOR REI.ATIONS BOARI) her of employees were hired between March 13 and Ma 2(). of which all hut three left Respondent's emplo yment under a vaerit of circumstances, some of which are alleged to he discriminatory by the General Counsel. The following list showing the names of employees, their dates of hire and departure, and the reasons ascribed by Respondent for de- parture in each case may he helpful in the subsequent de- velopment of the acts. All of' the employees were hired as porters at a salary of $175.20 for a 48-hour week: the list runs from the first em- ploxee hired as follows: Name Nicholas Baraus Cleveland B. Barrett 3/ James O'Hara Edwin Caquias Ismael Rivera Leonard Burton Thomas Benedit 4/ Fred Bufano Biviano Nunez Nunez 6/ Andrew Morris Dimitrios Miliadis Hubert Kol lock Michael Washington Raleigh Lee, Jr. Carlos Padillo James Nubee Date Date Hired Departed 3/13/78 3/14/78 3/13/78 still employed 3/13/78 5/5/78 3/14/78 3/22/78 3/20/78 3/22/78 3/27/78 4/3/78 3/30/78 4/19/78 Reason Quit Fired Quit Laid Off Fired Laid Off 4/1/78 4/13/78 Fired 4/4/78 4/14/78 Fired 4/10/78 4/11/78 4/14/78 4/15/78 4/24/78 5/18/78 5/20/78 4/19/78 5/21/78 still employed 5/18/78 5/4/78 Laid Off Terminated Terminated Terminated 6/15/78 Terminated still employed Respondent's payroll week ended on Wednesday. and fr the payroll weeks between March 15 and June 28 the fol- lowing numbers of employees are listed: Barrett is also referred to in the record as "Bernard" or "Barnard." "Benedit is referred to throughout the record as "Benedict." On the payroll sheet for the week ending April 26. 1979. Benedit and Morris are listed as "laid off." Howeveer. the word "fired" was originally written opposite their names but was subsequently obliterated. There is no question in the record. however. that they were fired, so I read no signif- icance into this alteration of the company records. ' Nunez is referred to in the record as "Nunaise" or "Nunaiz. Payroll Week Ending Mar. 29 Apr. 5 Apr. 12 Apr. 19 Apr. 26 May 3 May 10 May 17 May 24 May 31 June 7 June 14 June 21 June 28 Number of Em ployees 4 S 7 7 6 6 4 4 4 4 4 4 3 3 The fluctuation in the numbers of employees was due to the fact that the first tenants moved in on April 1, and it was necessary to prepare apartments for additional tenants who continued to move in until after May I. when the building was substantially occupied. The fluctuation of in- dividual employees is, at least in part, the subject matter of / the complaint herein. B. Icidenl.y Involving James O'Hara O'Hara was hired as a temporary employee by Warshaw on March 13 as a porter, but apparently he had some talent lbr the work because within I week he was promised a permanent job in the building by Warshaw and in fact be- came Warshaw's "right hand man." relaying work assign- ments to other employees, checking on their work, and re- porting on their backgrounds and personal business.7 Shortly after beginning work at the building O'Hara be- came dissatisfied with the wages and the absence of fringe benefits on the job. He testified that he then sought repre- sentatives of the Union. met with them, and obtained a number of authorization cards. He then passed out cards to employees Bufano. Nunez, Benedit, Morris, Barrett, and Joe Turner.' This was said to have occurred on April 7, since that is the date on which O'Hara testified that he signed his card. On that same day, in a room that served as a shop and office, O'Hara stated that Warshaw told him that he had heard about the Union and asked who had signed up. O'Hara responded that he had signed but did not know who else had signed with the Union. Warshaw is then al- leged to have expressed antiunion sentiments and told O'Hara that they were all going to get fired. After this con- * Respondent maintains that this record shows hat O'tlara was a supersi- sor within the meaning of the Act. In view ,f my disposition of this case I find it unnecessary to reach this issue. I Turner was identified in the record as an employee of Respondent who worked in a rental office set up in the building to show model apartments and rent apartments to prospective tenants Turner cleaned and maintained the model apartments and the rental office. At some time between April I and May I he was transferred to another property owned by Respondent. There is no evidence in the record that Turner was part of the bargaining unit alleged to be appropriate, and there is no allegation in the complaint that his transfer constituted a violation of the Act Table 2 Payroll Week Ending Mar. 15 Mar. 22 N umber of Employees 3 4 174 MANDEI. MANAGEMENI CO. versation O'Hara remained in the shop. He testified that Warshaw picked up the telephone and called some un- known person. O'lara reported Warshaw's end of the con- versation. quoting him as saying that the 3 might have some union trouble. and that he would get rid of the men "a couple at a time." That night Warshaw is alleged to have said that he would let the two night men go. Ile would tell them that they did not need night men. that the boss said there were too many men, and that the) were too nois at night because new tenants were starting to move in. Ten minutes after Warshaw had made this call Andrew Morris who, with Thomas Benedit. had been employed on a 4 p.m. to midnight shift preparing apartments for occu- pancy, came into the shop. Warshaw. according to O'Hara. told Morris that "the boss" had just called and told him to let Morris and Benedit go. The next day O'Hara testified that he was coming into the building and ran into Turner who informed O'Hara that he, Turner, was being transferred. O'Hara went into the building and asked Warshaw what had happened. War- shaw replied that Turner was "a traitor." and that "Louie Pollak,"' "one of the owners of the building," was going to fire Turner, but that Warshaw had prevailed upon him to first transfer Turner and then get rid of him."' O'Hara testified that 2 days after this Warshaw called an employment agency and hired three more men. A short time after this O'Hara reported a conversation with War- shaw, in which the latter asked him how the "new guys" were doing and if they had signed union cards. Warshaw denied that any of these conversations with O'Hara or the telephone call regarding the employees' union activity ever took place. O'Hara was a good employee who was given more than routine responsibilities. His record of attendance, likewise. was a good one. On April 15, however, he was not feeling well and first stated that he told a fellow employee to tell Warshaw he was sick and had gone home: he then revised this story, alleging that he had told the employee to tell Warshaw that he had gone to Roosevelt Hospital because of an attack of food poisoning. He admitted that this sec- ond story was a lie. Warshaw checked with the hospital. found that O'Hara was not there and had not been there. but took no action against O'Hara." On May 3 O'Hara reported to work 3 hours late. He came in 2 hours late on May 4. Warshaw then warned him that if he came in late again he would be fired. O'Hara came in 3 hours late on the next day, May 5. Warshaw ' Respondent's payroll records show a "Louis Polak" listed as a "partner" at a weekly salary of 350 or 8.75 per hour for a 40-hour week. °"Joseph Turner is camed on Respondent's payroll records as a "con- struction" worker for payrolls numbered I through 17. There is no indication from this that Turner was terminated during payroll period 17. which I compute to be the payroll week ending April 26 or May 3. since the General Counsel's subpena which called for these records was limited. according t the General Counsel's own description of it, to records for employees who worked at 2151 Broadway. Thus, while there is a suggestion in these records that Turner was no longer on the payroll of2151 Broadway after April 26 or May 3, there is no further evidence of his employ ment history. turner him- self did not testify. H Warshaw did note O'tlara's absence on his records. hut it would appear from Respondent's payroll records that he was paid lf, the day concluded from this that O'Il a ra s .a no longer depend- able employee and thereupon tired him. In coming to a determinationl on the laicts In thi, cas I have carefullI considered the testimonlies of all of tile it- nesses. In the situations ivoling ( )'liara I ha',o ealuated his testimony and. as recommended bs the (;eneral Coun- sel. have compared this testimonNy sith that of W\Vrsha. The latter was not an impressive itness: his memor of events as not good. and his testlitony \ith respect to his knowledge of union actinitc late in April \eas contradicted by his superior. Soccolich. However. I find O'Hara to he totalli unreliable. and I discredit all of his testimony on substanti\e issues as a com- plete fabrication. This finding is based on (O'lara's o n admission thati hi lied about going to the hospital in April. clearly indicating his disregard for the truth in his o n self-interest. his peni- patetic domestic life, and his evasions hen questioned about his address on cross-examination ais well as in his affidavit to the Board: the confusion aboul the date he signed the union authoriz;ation card, which will be dis- cussed in detail below: and the essential illogic in his stor' of the initial confrontation with Warshaws where he stated that he had signed a card, then described Warshaw as pick- ing up the telephone and outlining a proposed purge of union adherents in the building. Thus, I do not credit any of O'Hara's testimon' regard- ing antiunion statements and threats bh Warshaw. and I credit Warshaw's denial that he made such statements. Turning to O'Hara's discharge, it is true that VWarsha had knowledge of the union activit b that ime anibi bh his own admission knew of O'Hara's involvement, at least to the extent of signing a card. But again, O'1ara lied first about being late 2 days in a row when it was in fact 3 dlaS. and he lied about his hours of work. Respondent's records show that on May 2. the day before O'larla's first tardy das, he was off and did not work. The records show o Mayn 3 that he worked 5 hours and had 5 hours of o'ertime. lie would have finished at 9:30 p.m.. rather than at 1:3) a.m. as he testified. The records further show that he worked hours on May 4, with no overtime on that day. There is no evidence in this case showing disparate treatment, or that this action taken against O'Hara who, despite the fact that he had been a good employee. had turned out after being warned to be undependable. was any different front that accorded to other employees. The record shows that of the 16 employees hired on this job beginning in March 3 were still employed at the end of June. The General Counsel has not shown that O'Hara's treatment was different from that accorded any of the other employees terminated for n- known reasons before or after him, and there is no credible evidence that O'Hara's discharge was not the result of a valid independent exercise of judgment hb management. See P. G. Berland, Pint Citr Inc.. 199 NlRB 927 (1972). (C. Incidents Involving \un:, R Ben/it. .l'orris. utnd Bu/tn, Biviano Nunez was hired on April 4 s a porter. lie tes- tified that he as hired as a permanent emploSeec. anld that he signed a union authorlzaltion card on pril 7 at the be- hest of O'llara. On April 12 Nunte testified that he had a 275 DI)ECISIONS 01F NATIONAL. ABOR REI.ATIONS BOARD) conversation with Warshaw in which Warshaw asked him if he had joined the nion and. on receiving a negative answer, told him that he knew Nunez had joined the UI nion. He then told Nunez that he would fire him if he joined the Union. Nunez also had a conversation, in much the same vein, on April 12 or 13 with someone named "l.uigi." other- wise identified only as a "landlord from the building."': Nunez then testified as to harrassment on hisjob by War- shaw and to a conversation with Warshaw at which O'Hara. Barrett, and an unidentified bearded person were present when Nunez was questioned about the theft of a necklace from a tenant's apartment. Nunez testified that he was fired on April 14 for being "slow" and for lateness. Warshaw denied making the antiunion statements attrib- uted to him by Nunez. He also testified that on April 10 a tenant told him that a necklace was stolen from his apart- ment. Warshaw talked to O'lara about this and was told by O'Hara that Nunez had just gotten out of jail and that he had repaid a loan he had made from O'Hara. Warshaw then met with Nunez, Barrett, and O'Hara and discussed the matter of the necklace as well as Nunez' criminal record which, according to Warshaw, Nunez had not told him about at the time he was hired. Warshaw was suspicious of' Nunez as a result of the meeting and terminated Nunez on April 14. Here again, I credit Warshaw over Nunez. the General Counsel's witness. Warshaw's explanation of the discharge, that he "just had bad vibes about the whole situation." while subjective and somewhat arbitrary, is wholly consis- tent with his version of other events and is compatible with the impression I gathered of his operation as a low wage, temporary kind of affair utilizing unskilled employees in short term relationships until the apartments were ready for occupancy. Nunez' statement that Warshaw offered him a permanent job is inconsistent with the testimonies of all the other wit- nesses who stated that Warshaw said that the jobs were temporary but could become permanent if they worked out (as three of them, in fact, did). Nunez' description of the threats by Warshaw is likewise incredible. If' Warshaw knew that Nunez had signed a card it is unbelievable that he would then say that Nunez would be fired if he joined. In addition, I note that neither O'Hara nor Barrett, both called as witnesses by the General Counsel, was asked about the necklace incident. I find Nunez' testimony, like O'Hara's, to be totally incredible. Thus I again do not find that the General Counsel has shown by a preponderance of the credible evidence that Respondent has violated the Act with respect to Nunez. Thomas Benedit was hired on March 30 and Andrew Morris on April 4 as night porters. Benedit apparently had a job during the day and had medical problems which ne- cessitated his seeing his doctor during the day. Morris at- tended school during the day. Benedit and Morris also filled out union authorization cards. On April 19 Benedit and Morris were told by Warshaw that he had orders from the office that the night shift was being discontinued. 12 It is possible that "Luigi" is Louis Plak, but there is no further connec- tion In this record. The conversation is thus irrelevant to the issues herein. I.ater Benedit was passing by the building and ran into Warshaw. Benedit told Warshaw that he was fired because he "signed the paper." Warshaw denied this but said that he had seen O'Hara give the cards to the union delegate." Warshaw testified that he discontinued the night shift on his own after receiving a number of complaints from ten- ants about noise which the employees made while moving materials in the halls and using an electric "snake" to fix clogged drains. Benedit's testimony. while not so egregiously false as that of O'Htara and Nunez, is equally incredible. is assertion that he wrote the date on his union authorization card was demonstrated to be false, and his claim that he and Morris worked upstairs only 2 hours per night and spent the rest of the 8-hour shift on the ground floor is so preposterous as to compel me to disregard his testimony on any material issue in this case. Warshaw's explanation of the layoff of Benedit and Mor- ris is weak d but is corroborated by Respondent's records which show that the night shift was not reinstated. The number of employees dropped from seven to six after April 19 and then to four in the payroll period ending May 10. This, in view of the fact that Respondent apparently acted in a manner consistent with Warshaw's explanation of the reason for the layoff coupled with my disbelief of Benedit's testimony, leads me to the conclusion that the layoffs of Benedit and Morris, characterized as they may be by a lack of sensitivity and a somewhat arbitrary nature, were in fact the exercise of a valid and legitimate concern of manage- ment. Fred Bufano was hired on April I as a porter. He also signed a union authorization card. On April 12. his day off. O'Hara came to his home with his check and told him that he was fired. Warshaw testified that when Bufano was hired he wanted to work every day, with no day off because he needed the money. However, he was absent with no explanation on April 6 and again on April 9. Warshaw warned him about taking off without notice, and after the second occasion told him that he would be fired if he took off again without notice. On April 13 Bufano took off again and was fired. I credit Warshaw's version of this incident and do not credit Bufano's claim that Thursday was his normal day off. O'Hara, who originally recommended Bufano to Warshaw for employment and acted as messenger to tell Bufano he was fired, was not asked about this incident. Thus I do not find that Respondent violated the Act by the discharge of Fred Bufano. D. The Union Authorization C(ards The General Counsel submitted union authorization cards signed by James O'Hara. Biviano Nunez, Fred Bufano, and Cleveland Barrett. all dated April 7: one signed by Andrew Morris dated April 15:'5 and one signed I This is the best I can make out of Benedit's somewhat confusing estl mony on this point. 14 Warshaw testified that he offered Benedit and Morris daytime assign- ments, but they refused. Both Benedit and Morris denied this. in view of my findings herein I do not find it necessary to resolve this issue. B5 Morris' card is dated April 5 in another place. Morris claimed that date was also April 15, but it is clearly dated April 5. In vies of my findings herein it is not necessary to resolve any question raised b this inconsistency 276 MANDEL MANAGEMENT CO. on April 18 by Thomas Benedit. There is no question about the fact that the signatures on the cards are authentic and were identified in each case by the signers. However. the testimony about these signatures concerning the manner in which the cards were signed, particularly about the dates on which they were signed, is so contradictory and in some instances palpably false that I can only conclude that the April 7 cards were signed on some date other than that which appears on them. Looking first at the cards themselves, I note that on O'Hara's card the date is written in one place in green ink, the same color used for the rest of the writing on the card. but in another place in blue ink. O'Hara's explanation that he ran out of ink is indicative of the reasons why I have not credited his testimony. O'Hara also testified that some of the employees signed cards on the day he handed them out,' 6 and some signed "a few days later." However. only Benedit's and Morris' cards are dated on dates other than April 7. The card of Biviano Nunez is also dated on April 7. but Nunez testified that he did not date the card. Again, the signature and the date are written in different colored inks: on this card the signature is in red, and the rest of the card is in blue ink. Benedit's card bears a date which was shown at the hear- ing to be in a different hand from his. Bufano's card and Barrett's card appear to be completed by the same hand with the same ink, although Barrett testi- fied that he made out parts of it at different times. It thus appears that, at least with regard to the cards of O'Hara, Nunez, and Benedit, the date might well be some time other than April 7. Looking then at the circumstances of the signing. O'Hara, as noted above, testified that he signed his card somewhere in the building on April 7. This is consistent with Nunez' testimony about signing his card in the build- ing, although Nunez was not clear or consistent in relating the time to his alleged interrogation by Warshaw and "Lui- gi. Bufano, however, testified that he filled out three cards in the company of O'Hara, Barrett, and someone named Ray, not otherwise identified. He stated that they all filled out three cards. Barrett did not corroborate this story. His testified that O'Hara gave him a card, that he kept it for a while, and that finally tore it up. O'Hara then gave him a second card I week later. Barrett took that card home, and a few days later he filled it out and turned it over to O'Hara. It is clear 1' This was on April 7. in this case that the date on the card was not the date it was given to O'Hara and would have to have been 2 weeks more or less after April 7. Morris testified that O'Hara gave him a card, that he filled it out all at once, and that he wrote ever thing on the card himself. It is evident, however, that some writing on the card is in a different hand. and with the confusion in the dates noted above it is difficult to credit Morris as a witness in this matter. Benedit's card was dated by someone other than Benedit. and in view of my credibility findings regarding him I can- not credit the date on the card. In sum, it seems clear to me that these authorization cards were not. in fact, executed on the dates listed. On what date or dates thev were executed I cannot say. There is no other evidence in this record showing that they were executed at an 5 time befobre April 24, the date on which the Union demanded recognition. but instead on a date when Nunez. Bufano, Benedit, and Morris were no longer em- ployed by Respondent, leaving only O'Hara and Barrett as card signers out of the six persons employed in the stipu- lated appropriate bargaining unit on that date. In these circumstances I cannot find that the Union ever had a majority of the employees in the unit, and Respon- dent did not violate the law by refusing to recognize and bargain with the Union. CON(LUSIONS or01 LAW I. 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 meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)( 1 ). (3). and (5) of the Act as alleged in the complaint. Upon the foregoing findings of fact. conclusions of law. and pursuant to Section 10(c) of the Act I hereby issue the following recommended: ORDER'7 It is hereby ordered that the complaint herein be. and it hereby is, dismissed in its entirety. 17 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes 277