Joshua Associates, Inc., And Ditmas Management Corp.

JOSHUA ASSOCIATES 397 Joshua Associates, Inc., and Ditmas Management Corp. and Local 32B-32J, Service Employees International Union, AFL-CIO. Case 29-CA- 11850 26 August 1987 DECISION AND ORDER was a member of Local 32B-32J, Service Employees International Union, AFL-CIO (Local 32). I heard this case in New York City on 8, 9, and 23 October 1986. On the entire record, including my obser- vation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 11 March 1987 Administrative Law Judge James F. Morton issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. I The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for re- versing the findings. We adopt the judge's finding that the General Counsel has not estab- lished a prima facie showing that union considerations were a motivating factor in the Respondent's decision to discharge employee Sosa We fur- ther find that assuming arguendo the General Counsel has made such a showing, the Respondent-has met its burden under Wright Line, 251 NLRB 1083 (1980), of demonstrating that it would have discharged Sosa even in the absence of union considerations. Aggie Kapelman, Esq. and Joel Friedman, Esq., for the General Counsel. Neal Haber, Esq. (Moss & Boris, P. C.), of New York, New York, for the Respondent. DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. The complaint, as amended, alleges and the answer admits that Joshua Associates Inc. (Joshua) and Ditmas Manage- ment Corp. (Ditmas) constitute a single employer within the meaning of Section 2(2) of the National Labor Rela- tions Act (the Act). Joshua and Ditmas are referred to below jointly as Respondent. The complaint further alleges, and the answer denies, that Respondent, in violation of Section 8(a)(1) and (3) of the Act, discharged its employee, James Sosa, because he FINDINGS OF FACT 1. JURISDICTION AND LOCAL 32'S STATUS The pleadings establish, and I thus find, that Respond- ent's annual operations meet the applicable Board stand- ard for the assertion of its jurisdiction. I further find, based on the pleadings, that Local 32 is a labor organiza- tion as defined in Section,2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. Background Respondent owns and manages many apartment build- ings in and about New York City. Two of those build- ings are adjacent to each other in the Jackson Heights section of New York City. These two buildings are maintained by a building superintendent, assisted by a porter. A managing agent visits these buildings about once a week. The events that relate to the issues in this case oc- curred in late 1984 and early 1985. Local 32 has contend- ed that, at that time, the superintendent and the porter at Respondent's two buildings in Jackson Heights were covered by the provisions of a collective-bargaining agreement signed by Local 32 and by the Realty Adviso- ry Board on Labor Relations Incorporated. Respondent has disputed Local 32's contention. The General Counsel contends that Respondent dis- charged the porter at the Jackson Heights buildings, James Sosa, on the day after that contract expired in order to avoid further dealings with Local 32 and in order to enable Respondent to sign a more favorable contract with United Service Employees Union Local 377, a/w Retail, Wholesale and Department Store Union, AFL-CIO (Local 377). Respondent asserts that Sosa was discharged because of his work deficiencies. B. The Evidence 1. Sosa's duties Sosa, who had been a member of Local 32 before he began working for Respondent, started with Respondent in June 1984 as a porter at the Jackson Heights apart- ment buildings. The only other employee then at that lo- cation was Building Superintendent Patrick McKenna, who had worked there for 10 years. McKenna was also a member of Local 32. As superintendent, McKenna took care of the boilers for those two buildings, did some repair work, and also supervised the porter's work. Sosa's job as porter required him to wash and wax floors, keep the exterior grounds clean, and take garbage to the sidewalk for pickup. 285 NLRB No. 74 398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD McKenna left Respondent's employ on 31 December 1984, apparently because of an extended illness. The managing agent in charge of the buildings then, Martin Wolf, told Sosa to fill in at McKenna's job until a new superintendent was hired. Sosa's testimony indicated that he performed little, if any, of the superintendent's duties. Sosa did not testify that he wanted to be the superintend- ent there; Respondent, as noted below, offered testimony that he had sought that job. 2. The meeting between Sosa and Sirulnick Sosa testified that shortly before a new building super- intendent was hired in early 1985, and as instructed by then Managing Agent Wolf, he went to the office of Re- spondent vice president, Sanford Sirulnick. According to Sosa, Sirulnick congratulated him for his good work and then offered him a superintendent's job in another apart- ment building owned and managed by Respondent. Sosa testified that Sirulnick told him that the reason he made this offer was that "he didn't want [Local 32] in any of his buildings." Sosa testified that he declined the offer. Sosa gave seemingly conflicting testimony whether Man- aging Agent Wolf was present when Sirulnick made his remark about not wanting Local 32 in any building. In his prehearing affidavit, Sosa had stated, "he met with Sirulnick alone" but later therein stated that Wolf was present at his meeting with Sirulnick. At the hearing, Sosa testified that Wolf was present at the meeting and that he did not recall Wolf's leaving the room. He also testified that Wolf was in the room for a short while and then left. Wolf has not been in Respondent's employ since Feb- ruary 1985. In his testimony, Sosa related that Wolf had been "fired." In any event, neither side called Wolf as a witness. Sirulnick gave the following account concerning his meeting with Sosa. Before Respondent had hired a re- placement for McKenna as superintendent at the Jackson Heights buildings, Wolf told Sirulnick that Sosa wanted to talk to him about that position. Sirulnick told Wolf to arrange an appointment. From appointment records kept by his secretary, Sirulnick recalled that it was on 15 Jan- uary 1985 that he met with Wolf and Sosa in his office and that Sosa asked to be considered for the superintend- ent's job. Sirulnick told him that a new superintendent had already been hired and he assured Sosa that he would be given consideration for the next superintend- ent's opening in any of Respondent's buildings. Sosa's account is not persuasive. It seems improbable that an experienced real estate investor (Sirulnick) would volunteer to a Local 32 member (Sosa) that Respondent wanted to be rid of Local 32 and even more improbable that he would hold that out as an inducement to Sosa to accept a promotion to a superintendent's position. More- over, Sosa's confused account about whether or not Wolf was present when Sirulnick made the alleged state- ment, i.e., his wish to be rid of Local 32, does not help the General Counsel in carrying out the burden of per- suading me to accept that testimony. I find that the Gen- eral Counsel has not met that burden and thus do not credit Sosa's account. 3. The new superintendent On 1 February 1985, Jacinto Santiago was given the superintendent's job at the Jackson Heights buildings. He had previously worked as a superintendent in a small apartment building owned by one of Sirulnick's compa- nies and is managed by Ditmas. Local 377 was the bar- gaining representative for Santiago at the other location. By moving to Jackson Heights, Santiago was able to secure a larger rent-free apartment for his family and more money. He was hired by Managing Agent Wolf based on the recommendation of another of Ditmas' managing agents, Barry Weiner. 4. Sosa's job performance Santiago testified that, when he took over as superin- tendent at the Jackson Heights buildings, he was dissatis- fied with the condition of those buildings and the grounds outside. He testified that Sosa was uncoopera- tive whenever he wanted him to do his work differently than he had. Sosa's own testimony confirms that San- tiago was not happy with his work. Sosa's account sug- gests that Santiago was pressing him too much. There is, however, no allegation that Respondent assigned Sosa more onerous work or harassed him because he was a member of Local 32. In any event, it is clear that there was tension between Santiago and Sosa. On 1 March 1985 Managing Agent Barry Weiner re- placed Wolf as the agent responsible for the Jackson Heights buildings. Weiner testified that he met Sosa for the first time when he visited those buildings on 13 March. Weiner testified further that Sosa argued with him then about an application submitted by a prospective tenant for an apartment there. Weiner also related that he observed then that Sosa was drinking a can of beer and that, when he brought this to Sosa's attention, Sosa told him he was on his lunch hour. Weiner testified also that he informed Sosa that he could not drink alcoholic beverages on the premises. Weiner sent Sosa a letter that same day, pointing out the foregoing matters. Santiago's testimony as the foregoing corroborated Weiner's. Sosa acknowledged in his testimony that Weiner had "complained" about his handling of a tenant application form and also that Weiner had told him not to drink beer on the premises. Sosa testified initially that that was all that was said by either Weiner or himself on that matter. On cross-examination he testified that he told Weiner it was not beer. He testified further that he was drinking soda from a can wrapped inside a bag but that he did not take the can out of the bag to show Weiner that it was a can of soda, not beer. On redirect examination, he testi- fied that he used a straw to drink the soda from the can. It seems unlikely that Weiner would have told Sosa not to be drinking beer if Sosa was using a straw. If Weiner were looking for a pretext, as the General Coun- sel suggests, he would likely not have been so obvious about doing so. Moreover, all Sosa would have had to do, in order to have frustrated any such attempt, was to remove the can from the paper bag to show Weiner that it was a can of soda. The fact that Sosa did not do so tends to support Weiner's account. I credit Weiner's tes- timony, not Sosa's. JOSHUA ASSOCIATES There is no contention that the warning letter Re- spondent issued to Sosa on March is in any way violative of the Act. Had there been, I would not have found merit to it. In early April Weiner sent Sosa a second letter, That letter was critical of the manner in which garbage had been piled at the sidewalk. Weiner also expressed con- cern in that letter about Sosa's keeping a dog on the premises at the Jackson Heights location. Sosa tele- phoned Weiner on receiving that letter and told him that he did not put the garbage out on the day in question and also that he needed time before he could bring the dog to its owner, the former superintendent, McKenna. According to Sosa, Weiner told him he could have until the end of April before the dog had to go. Sosa then tes- tified that, when he spoke with Weiner, he had already returned the dog to McKenna, He testified he nonethe- less had asked Weiner for more time to remove the dog in order to find out what Weiner's reaction would be. The General Counsel offered the foregoing account as part of the General Counsel's case-in-chief. Presumably, it was submitted to suggest that Respondent was at- tempting to establish a basis it could use to conceal an intent to discharge Sosa later for unlawful reasons. There is no allegation that the second letter constitutes unlaw- ful harassment of Sosa. Were that a contention, I would reject it. Sosa's testimony that he asked Weiner for more time to remove a dog that was no longer there hardly buttresses the General Counsel's contention that Re- spondent was then engaged in a subterfuge. I credit the testimony of Respondent's witnesses that the dog had not been removed from the Jackson Heights buildings until after Sosa's discharge, discussed below. There is no ques- tion, however, that Weiner had told Sosa in their discus- sion on the telephone' that Sosa had until the end of April to remove the dog from the premises, Weiner ini- tially had denied so telling Sosa but, when he listened to a secret recording of the telephone conversation that Sosa had made, Weiner conceded that he had given Sosa until the end of April for Sosa to remove the dog. 5. Sosa's discharge Building Superintendent Santiago testified that, after Sosa was sent the second letter, Sosa became very hos- tile in his attitude and uncooperative in his work. San- tiago testified that about 15 April 1985 he told Weiner that he was dissatisfied with Sosa and that Weiner told him to take whatever action is necessary with respect to Sosa. Santiago testified that he thereon decided to dis- charge Sosa. On 21 April 1985 he told Sosa he was dis- charged. When Sosa asked for a reason, Santiago told him to call Respondent's office. Santiago testified he did this to avoid a confrontation with Sosa. 6. Local 377's subsequent recognition Santiago hired Willie Velez as Sosa's replacement. Santiago and Velez signed authorization cards for Local 377. Local 377 was then recognized by Sirulnick as their bargaining representative and a collective-bargaining agreement between Local 377 and Respondent was reached and signed on 14 May 1985. As noted in the 399 General Counsel's brief, the Local 377 contract required superintendents to work a 45-hour week whereas the Local 32 contract called for a 40-hour week. The Local 377 contract called for pension contributions of $30 a month for each employee whereas the Local 32 contract required pension contributions in excess of $48 a month. Employees who worked 1 year were entitled to 1 week's vacation under the Local 377 contract; under the Local 32 contract, they would receive 2 weeks' vacation. 7. Analysis The General Counsel can point to no credited testimo- ny as direct evidence that Respondent was motivated by union animus in discharging Sosa. There is some circum- stantial evidence. Thus, Sosa was discharged the day after the Local 32 contract expired, Respondent had ac- tively disputed with Local 32 regarding whether it had been bound to that contract, and Respondent did move somewhat quickly to recognize Local 377 after Sosa's discharge to enter into an agreement with Local 377 that was considerably more favorable to Respondent then Local 32's contract had been. The General Counsel has not shown that the reason for Sosa's discharge was pretextual. If anything, the evi- dence gives weight to Respondent's reason. At best, from the General Counsel's standpoint, the credited' evidence raises some suspicion regarding Re- spondent's motive but suspicion cannot substitute for probative evidence of unlawful discrimination. In view of the virtual absence of credilale evidence of union animus, as the reason proferred by Respondent for discharging Sosa has not been shown to be a pretext and as there is no evidence that Respondent has barred the hiring of Local 32 -members but in fact a Local 32 member (Sosa) had been hired by Respondent, I find that the General Counsel "has not satisfied the initial burden under [Wright Line, 251 NLRB 1083 (1980)] and has failed to establish a prima facie case that [Sosa's] dis- charge was motivated by union activities." This quote is an adapation of an extract from Florsheim Shoe Store Co., 279 NLRB 950 (1986). CONCLUSIONS OF LAw 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 32 is a, labor organization as defined in Sec- tion 2(5) of the Act. 3. Respondent, in discharging its employee, James Sosa, did not violate Section 8(a)(1) and (3) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The complaint is,dismissed in its entirety. I If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses