Chandler Associates

730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wilson Kaplan, an individual, in partnership with Ray- mond Kramer, Harold Kramer, Louis Sackin and Samuel Wolfe, a Co-partnership d/b/a Chandler Associates, both t/a Piscataway Associates, a/k/a Pleasant View Gardens ; Wilson Management Corp. and Local 68, International Union of Operating En- gineers, AFL-CIO, Petitioner. Case 22-RC-6351 All building superintendents, assistant building superintendents, and maintenance mechanics employed by the Employer at its Piscataway, New Jersey, location, excluding all office cleri- cal employees, professional employees, guards, the resident manager, the property manager, and all other supervisors as defined in the Act. September 25, 1975 DECISION ON REVIEW BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On May 2, 1975, the Regional Director for Region 22 issued his Decision and Direction of Election in the above-entitled proceeding, wherein he found that the six building superintendents at the Employer's Pleasant View Gardens apartment complex are not supervisors within the meaning of the Act, and in- cluded them in the bargaining unit. Thereafter, in accordance with Section 102.67 of the National La- bor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a request for review on the ground that, in concluding that the building superintendents are not supervisors, the Regional Di- rector made clearly erroneous findings of fact which prejudicially affected the rights of the Employer. On May 29, 1975, the National Labor Relations Board by telegraphic order granted the request for review and stayed the election pending decision on review. 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 entire record in this case and makes the following findings: Piscataway Associates a/k/a Pleasant View Gar- dens is engaged in the ownership and operation of approximately 1,200 garden apartments on a 50-acre tract in Piscataway, New Jersey. The apartment com- plex is subdivided into 6 sections, each of which con- tains approximately 200 units, and is maintained by at least 2 persons: a building superintendent and at least 1 assistant building superintendent. A mainte- nance mechanic works in all six sections. A resident manager is responsible for day-to-day operations of the entire complex, and Employer's property manag- er is on duty 5 to 6 days a week. The Regional Director concluded, in agreement with the Petitioner, that Employer's building superin- tendents are not supervisors within the meaning of the Act and included them within the following unit: The Employer contends that the building superinten- dents possess the necessary authority to qualify as supervisors and, therefore, that they should be ex- cluded from the bargaining unit. We find merit in the Employer's position. The building superintendents and assistant build- ing superintendents perform the usual tasks associat- ed with their jobs and required in the upkeep of resi- dential rental property; i.e., performing minor electrical, masonry, and carpentry work. The build- ing superintendent lays out the daily work schedule, assigns repair jobs to the assistants, and often in- spects the assistant's work. The Employer's property manager testified that "the superintendent is totally in charge of each section" and "has to use complete independent judgment as to everything that happens within a section of 200 units," including deciding whether to call in an outside contractor from a list supplied by the Employer. However, the assignments of specific tasks to be performed by the assistant are usually made according to his experience and train- ing and frequently upon agreement between the building superintendent and his assistant. The record discloses that, while the Employer in- terviews the applicants and hires the assistants, the building superintendents effectively recommend for hire. The Employer maintains a file of qualified ap- plicants for an assistant's position. The building su- perintendents have access to this file and can select which applicant should be chosen to fill the position. When a position is open the Employer usually asks the building superintendent if he knows of anyone qualified to fill it. At the hearing the parties stipulat- ed that the building superintendents' recommenda- tions are not followed 100 percent of the time since the Employer has certain policies, such as not hiring felons, from which it would not deviate. However, in our view, this does not diminish the building superin- tendents' ability to effectively recommend for hire. In fact, there was specific testimony that Perete, the section one building superintendent, hired his son-in- law as assistant, and that Borges, the section 5 build- ing superintendent, hired a close friend as his assis- tant. Building superintendents also may effectively rec- ommend that an assistant be transferred to a differ- ent section. When a building superintendent and his 220 NLRB No. 119 CHANDLER ASSOCIATES assistant were not able to work together satisfacto- rily, the superintendent recommended that the assis- tant be transferred. At the superintendent's request, the Employer effectuated the transfer. The Regional Director suggested that the testimo- ny concerning the building superintendents' promo- tion of assistants to higher wage levels was confusing and failed to establish that superintendents have the authority to promote their assistants. We do not agree. The record shows that the Employer has a pol- icy of automatic advancement to higher wage levels for assistant building superintendents after 3 months and 1 year on the job. However, the testimony is uncontradicted that building superintendents have the authority to, and frequently do, promote assis- tants to higher wage levels prior to the time specified above for automatic advances. These advances are given by the superintendents to their assistants on the basis of excellent work performance, and are ap- proved by the property manager automatically. The indicia of supervisory authority enumerated in 731 Section 2(11) of the Act are listed in the disjunctive and the possession of any one of these criteria is suf- ficient to elevate an employee to the status of super- visor.' On the basis of the foregoing, we find, contrary to the Regional Director, that the Employer's building superintendents have the authority to effectively rec- ommend for hire, to effectively recommend for trans- fer, and to promote their assistants to higher wage levels, and are therefore supervisors as defined by the Act. Thus, the building superintendents shall be ex- cluded from the bargaining unit herein. Accordingly, the case is hereby remanded to the Regional Director for Region 22 for the purpose of conducting an election pursuant to his Decision and Direction of Election, as modified herein, except that the eligibility date therefor shall be that immediately preceding the date of issuance of this Decision. [Ex- celsior footnote omitted from publication.] 'Ace Tool Engineering Co, Inc., 207 NLRB 104 (1973); Great Central Insurance Company, 176 NLRB 474 (1969)