833 Central Owners Corp./CO BRG Realty

National Labor Relations Board - Board Decisions

Oct 30, 2014

361 N.L.R.B. 871 (N.L.R.B. 2014)

833 CENTRAL OWNERS CORP. 871
833 Central Owners Corp. and Local 621, United
Workers of America. Case 29–CA–070910
October 30, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND SCHIFFER
On February 13, 2013, the Board issued a Decision
and Order in this proceeding, which is reported at 359
NLRB 592. Thereafter, the General Counsel filed an
application for enforcement in the United States Court of
Appeals for the Second Circuit, and the Respondent filed
a cross-petition for review.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the court
of appeals vacated the Board’s Decision and Order and
remanded this case for further proceedings consistent
with the Supreme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale set
forth therein. Accordingly, we affirm the judge’s rul-
ings, findings, and conclusions and adopt the judge’s
recommended Order to the extent and for the reasons
stated in the Decision and Order reported at 359 NLRB
592, which is incorporated herein by reference. The
judge’s recommended Order, as further modified herein,
is set forth in full below.1
ORDER
The National Labor Relations Board orders that the
Respondent, 833 Central Owners Corp., Far Rockaway,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
1 In modifying the judge’s recommended Order to require the Re-
spondent to make whole Ezra Shikarchy for any adverse tax conse-
quences of receiving his backpay in a lump sum, and to file a report
with the Social Security Administration allocating the backpay award
to the appropriate calendar quarters, we rely on Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB 101 (2014).
We shall substitute a new notice in accordance with Durham School
Services, 360 NLRB 694 (2014).
(a) Threatening employees with discharge or other re-
prisals if they support the Union or engage in union ac-
tivities.
(b) Impliedly promising benefits to employees in order
to discourage them from supporting the Union or engag-
ing in union activities.
(c) Warning, suspending, discharging, or otherwise
discriminating against employees because of their sup-
port for and activities on behalf of the Union or any other
labor organization.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Ezra Shikarchy full reinstatement 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.
(b) Make Ezra Shikarchy whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the remedy
section of the judge’s decision.
(c) Compensate Ezra Shikarchy for any adverse in-
come tax consequences of receiving his backpay in one
lump sum, and file a report with the Social Security Ad-
ministration allocating the backpay award to the appro-
priate calendar quarters.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful warnings,
suspension, and discharge of Ezra Shikarchy, and within
3 days thereafter, notify him in writing that this has been
done and that the warnings, suspension, and discharge
will not be used against him in any way.
(e) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Far Rockaway, New York facility copies of the at-
tached notice marked “Appendix.”2 Copies of the notice,
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
361 NLRB No. 86

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 872
on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, or other electronic means, if the Respondent cus-
tomarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since September 2011.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 29 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

MEMBER MISCIMARRA, concurring.
I agree that the Respondent violated Sections 8(a)(3)
and (1) of the Act as found by the judge for the reasons
stated in the judge’s decision, and I join in issuing the
Order set forth above. I also agree that there is no basis
for reversing the judge’s credibility findings. According-
ly, I concur.
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten you with discharge or other reprisals
if you support the Union or engage in union activities.
WE WILL NOT promise you benefits in order to dis-
courage you from supporting the Union or engaging in
union activities.
WE WILL NOT warn, suspend, discharge, or otherwise
discriminate against you because you support the Union
or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ezra Shikarchy full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Ezra Shikarchy whole for any loss of
earnings and other benefits resulting from his suspension
and discharge, less any net interim earnings, plus inter-
est.
WE WILL compensate Ezra Shikarchy for any adverse
income tax consequences of receiving his backpay in one
lump sum, and WE WILL file a report with the Social Se-
curity Administration allocating the backpay award to
the appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warnings issued to, suspension of, and discharge of
Ezra Shikarchy, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the
warnings, suspension, and discharge will not be used
against him in any way.
833 CENTRAL OWNERS CORP.

The Board’s decision can be found at
http://www.nlrb.gov/case/29–CA–070910 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.