Westcroft Realty Corp.

WESTCROFT REALTY CORP. 1017 Westcroft Realty Corp. and All ^ Ahmed and Local 32E, Service Employees International Union, AFL-CIO. Cases 2-CA-22327 and 2-CA- 22403 July 21, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 17, 1988, Administrative Law Judge Raymond P. Green issued the attached decision. The General Counsel filed exceptions and a sup- porting 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' 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 Cit. 1951). We have carefully examined the record and find no basis for re- versing the findings. 2 In affirming the judge's finding that Charging Party Ahmed's job was not included in the bargaining unit, we do not rely on what the judge referred to as the "plain language" of the collective-bargaining agreement because we find the contract to be ambiguous on this question. Rather, we agree with the judge's reliance on the conduct of the con- tracting parties as demonstrating a mutual intent to exclude Ahmed's po- sition from the bargaining unit. Gary A. Carlson, Esq., for the General Counsel. Michael B. Doyle, Esq., for the Respondent. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. This case was heard by me on 14 December 1987. The charge and amended charge in Case 2-CA-22327 were filed by All Ahmed on 8 July and 24 August 1987. The charge in Case 2-CA-22403 was filed by Ahmed on 24 August 1987. Thereafter a consolidated complaint was issued by the Regional Director for Region 2 of the National Labor Relations Board on 30 September 1987. In sub- stance the complaint alleges: (1) That the Respondent and Local 32E, Service Em- ployees International Union, AFL-CIO (Local 32E) have maintained a collective-bargaining agreement, the most recent of which runs from 15 September 1986 to 14 September 1989, which covered certain of Respondent's employees, including All Ahmed. (2) That the Respondent has not provided Ahmed with the benefits provided by the aforesaid contract be- cause Ahmed Was not a member of the Union. (3) That on or about 22 May 1987 Ahmed joined the Union after which, on 10 June 1987, the Respondent dis- charged him because he joined the Union. In addition to denying the allegations of the complaint, the Respondent asserts that these cases should be dis- missed because a settlement was executed between it, Ahmed, and the Union. Based on the record as a whole, including my observa- tion of the demeanor of the witness, and after consider- ing the briefs filed, make the following FINDINGS AND CONCLUSIONS I. JURISDICTION The Respondent is a corporation engaged in the busi- ness of managing and renting real estate, including apart- ment buildings, in New York State. It was stipulated that annually the Respondent has gross revenues in excess of $500,000 and that it purchases goods and supplies from directly outside the State of New York valued in excess of $2000. I therefore find that the Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. Mandel Management Co., 229 NLRB 1121 (1977). I also find that Local 32E is a labor organization within the meaning of Section 2(5) of the Act. II. OPERATIVE FACTS The apartment buildings involved in this case (called Skyview) are located at 5700, 5800, and 5900 Arlington Avenue, Riverdale, New York. Together, this complex has 1306 apartments and the Respondent has about 50 employees working at these sites, including 18 porters. In addition to the three apartment buildings, there is also a separate recreation facility located across the street at 5701 Arlington Avenue. Prior to September 1987, there was a swimming pool, a cafeteria, meeting rooms, locker rooms, and a sauna located at this separate building. After the poll closed in September 1987, the building has been undergoing a complete renovation and is currently closed. Skyview was originally owned and managed by Carol Management, which in 1985 sold property to Coronet Properties. Westcroft Realty Corp., in turn, took over the management functions from Carol on 15 August 1986. For many years certain of the employees working at Skyview have been represented by Local 32E and the evidence indicates that when the Respondent Westcroft took over from Carol, it retained the services of Carol's employees and supervisors. Among those retained was Sali Rexhepi, the director of maintenance, who had been employed at Skyview for 11 years. The Respondent also entered into a contract with Local 32E for the historical bargaining unit. This contract, which runs from 15 Sep- 289 NLRB No. 133 1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tember 1986 to 14 September 1989, covers superintend- ents, assistant superintendents, utility groundsmen, handymen, doormen, and porters. By the contract's spe- cific terms, in both the first paragraph and Schedule A, it covers the foregoing classifications of employees at 5700, 5800, and 5900 Arlington Avenue. It does not purport to cover any employees at 5701 Arlington Avenue and clearly was not intended to do so. Ali Ahmed was first hired in January 1984 as a porter to work at 5701 Arlington Avenue (i.e., the recreation facility). He has never been paid the wages and benefits set forth in any agreement with Local 32E. After Ahmed had worked for a while, he learned from employees in the other buildings that they had a union. He states that at some point in 1986, he told Rexhepi that he wanted to join the Union, but the latter said he could not and changed the subject. According to Ahmed, on an occasion in May 1987 he was told by Rexhepi that he was not in the Union and was not entitled to sick pay. (Ahmed had made an inquiry through another employee about sick pay.) On 12 March 1987 the Respondent entered into a con- tract with Iowa Sports Management, which agreed to manage the recreation facility at 5701 Arlington Avenue from 23 May 1987 to 12 September 1987. As part of the agreement, Iowa contracted to furnish its own staff, in- cluding one to two porters. Rexhepi testified that he told Ahmed, in early May that Iowa was taking over his job and that he should look for employment elsewhere. Ahmed denies receiving such notice. According to Ahmed, some of the other employees convinced him to join the Union in May 1987. He states that on 22 May he went with two other porters and met with John Pinto, a union representative. Ahmed, at this meeting, signed a dues-checkoff authorization card for Local 32E and paid an initiation fee. Ahmed testified that on 10 June 1987 he handed the checkoff authorization card to Rexhepi, not having shown the card to anyone in management before. Ahmed testified: I showed [Sali Rexhepi] the card and then he looked, he read. I told him that I joined the union and this is the card. So he looked and then he said: "Ali, you're fired. You're fired because you joined the union." I told him: "Mr. Sali, okay, I have three kids, you know. I don't want the union, just let me stay." He said: "No, its too late. You did this behind my back." Rexhepi testified that because of a delay Iowa did not come in to operate the recreation facility until 10 June. He states that on this date, he called Ahmed into his office and told him that because Iowa was taking over, his job was eliminated. Rexhepi testified that: He turned around and he says: "Mr. Sali, please, can you help me, because I have kids and I'm in a union?" the first time I hear he's in a union. union, you know the time I hire you, job is non- union job. But if you in a union, go back to the union and I hope they help you, they find a job for you." I Later, on 10 June, Ahmed told Pinto of Local 32E that he had been discharged. He states that Pinto said not to worry, that he should register for unemployment benefits and come back in several days to see what was happening. According to Ahmed, he went back to see Pinto on 17 June. On this occasion Pinto told him that the union con- tract did not cover the building where Ahmed worked. Pinto also told Ahmed that he would try to get him an- other job. On 8 July Ahmed filed this charge with Region 2 of the NLRB. Thereafter, on 29 July, the Union asked for an "informal hearing" with the employer to discuss the dismissal of Ahmed. On 5 August, by memo to the Board agent investigating the case, William Archer, on behalf of the Respondent, stated that it would be willing to arbitrate grievance with Local 32E a relating to the discharge of Ahmed. As a result, the Region deferred further proceedings in the case. On 6 August 1987 a meeting was held at the Union's office. This was attended by Ahmed, Pinto, and Rexhepi. As far as I can determine, the discharge of Ahmed was discussed and there also were discussions whether Ahmed was in the Union. (According to Archer, when he asked Pinto, the latter said, "Well yes and no.") At the conclusion of the discussion, the Company offered to settle the case by giving Ahmed 2 weeks' severance pay plus a favorable letter of reference. Pinto, in turn, urged Ahmed to accept the offer and Ahmed agreed. Accord- ingly, on 6 August, the following document was execut- ed by Ahmed, Pinto, and Arden: STIPULATION 5701 Arlington Ave RE: Recreational Area IT IS HEREBY STIPULATED, CONSENTED TO AND AGREED BY AND BETWEEN THE UNDERSIGNED AS FOLLOWS: 1. THAT THE EMPLOYMENT OF THE EMPLOYEE, Ali Ahmed NOW EMPLOYED AT 5701 Arlington-Recrea- tlon AS PORTER OF THE SAID BUILDING BY THE UNDERSIGNED, SHALL TERMINATE ON 6-110-87 2. THAT Ali Ahmed SHALL RECEIVE FROM THE EM- PLOYER THE TOTAL SUM OF $663.00, which covers the following.- A-$ Severance Pay. B-$ Vacation Pay. C-$ Sick Pay. D-$663.00 Miscellaneous. 3. THE SUM OF $663.00 IS LESS THE CUSTOMARY DE- DUCTIONS ON SEVERANCE PAY, VACATION PAY, SICK PAY & MISCELLANEOUS. I says: "Ali, got nothing open, job open for you and there's nothing I can do. Please, if you're in a I Both Rexhepi and Ahmed speak English as a second language WESTCROFT REALTY CORP. 1019 4. THE ABOVE SETTLEMENT IS PAYMENT IN FULL FOR ANY AND ALL MONIES DUE HIM. 5. THAT THE EMPLOYER SHALL SIMULTANEOUSLY WITH THE EXECUTION OF THIS STIPULATION MAKE OUT ONE (1) CHECK IN THE SUM OF $663.00 LESS CUSTOMARY DEDUCTIONS. THIS CHECK IS TO BE PAYABLE TO THE ORDER OF THE EMPLOYEE (Ali Ahmed). 6. THAT THE UNION SHALL DELIVER THE CHECK TO THE EMPLOYEE. 7. THAT THE ACCEPTANCE OF THIS CHECK IS SUBJECT TO COLLECTION. 8. THE NECESSARY KEYS AND UNIFORMS MUST RE- TURNED TO THE EMPLOYER BY THE EMPLOYEE.2 III. ANALYSIS The General Counsel contends that the Respondent violated Section 8(a)(1), (2), and (3) of the Act by not giving Ahmed the wages and other benefits of the Local 32E contract because he was not a member of the Union.3 There is no question but that Ahmed has not been paid the wages and other contractual benefits since the begin- ning of his employment in 1984. The evidence shows however, that this was not because Ahmed was not a member of the Union, but rather because his position was not encompassed within the bargaining unit. Thus, the contract explicitly covers only certain categories of employees (including porter), employed at 5700, 5800, and 5900 Arlington Avenue. It does not cover any em- ployee at the separate recreation facility located at 5701 Arlington Avenue. That Ahmed's job was not included in the bargaining unit is not merely evidenced by the plain language of the contract, but also by the conduct of the contracting parties in not treating him as part of the bargaining unit for the 3 years that he was employed. Indeed, after Ahmed had been discharged and sought to file a grievance, the Union's representative, Pinto, indi- cated to him that there might be a problem because the collective-bargaining agreement did not cover the build- ing in which Ahmed worked.' In light of the above, I conclude that the contract did not cover Ahmed's position of employment and there- fore the Respondent's failure to pay him the contractual 2 In accordance with the settlement , Ahmed did receive a check, which he cashed. 3 The General Counsel relies on such cases as F & C Transfer Co., 277 NLRB 591 (1985); Kaufman DeDell Printing, 251 NLRB 78, 79-80 (1980); Narragansett Restaurant, 243 NLRB 125 , 128-130 (1979); Schorr Stern Food Corp., 227 NLRB 1650 (1977); D. J. Eshom Meat Co., 208 NLRB 41, 43-44 (1973). 4 The issue here is what, in fact, was the contract bargaining unit and not what the Board would decide, in a representation case, an appropri- ate bargaining unit should be. The fact that the Company agreed to arbitrate Ahmed's discharge after the unfair labor practice charge was filed is not viewed by me as an ad- mission that Ahmed 's job was part of the contractual bargaining unit. Such a commitment was made as an expedient to have the processing of the unfair labor practice charge deferred. benefits neither violated the Act nor breached the con- tract. The contention that Ahmed was discharged because he joined Local 32E rests on what took place on 10 June 1987. Ahmed's version was that about 3 weeks after he joined Local 32E he finally presented his dues-checkoff authorization card to Rexhepi, who fired him on the spot "because you joined the Union." Rexhepi's more plausible version was that, having con- tracted with Iowa to manage and staff the recreation fa- cility, he told Ahmed in early May 1987 to look for an- other job and that on the day that Iowa took over (10 June), he told Ahmed that his services no longer were needed. According to the credited testimony of Rexhepi, after telling Ahmed of his discharge, Ahmed pleaded for his job, saying he was in the Union. In crediting Rexhepi, I note, in addition to his demean- or, the fact that his version is consistent with other ob- jective evidence in this case, particularly that the con- tract with Iowa provides for the latter to hire its own porters and that the conversation with Ahmed took place on the day that Iowa commenced operations at the recreation building. Moreover, I note the complete lack of evidence pointing to animus against Local 32E or any other union on the part of the Employer. While it is true that the Respondent only recently took over the manage- ment of Skyview, the evidence shows that it hired the predecessor's unionized employees and readily entered into a contract with Local 32E covering about 50 em- ployees at the three buildings. Further, Rexhepi, the di- rector of maintenance, had been continuously employed at Skyview for 11 years, during which time the Union had been the bargaining representative. In this regard, there is no evidence of any animus by Rexhepi toward the Union. I therefore find it implausible that in a situa- tion in which Rexhepi for 11 years had supervised and dealt with about 50 union employees, he would preemp- tively discharge a single employee who presented him with a union dues-checkoff authorization card. In short I credit the account given by Rexhepi and conclude that Ahmed was not discharged because he joined Local 32E.5 CONCLUSIONS OF LAW 1. Westcroft Realty Corp. is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 32E, Service Employees International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not violated the Act as alleged in the consolidated complaint. 5 Having reached this conclusion on the merits, I do not feel that it is necessary for me to decide whether the settlement made on 6 August 1987 should be deferred . In this regard, I note that there are similarities and distinctions from the facts in Independent Stave Co., 287 NLRB 740 (1987). That case discussed some of the criteria the Board would consider when deciding whether to defer to a privately negotiated settlement. 1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER It is recommended that the consolidated complaint be dismissed. 6 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur- Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the poses.