Atelier Condominium and Cooper Square Realty, as joint employers

National Labor Relations Board - Board Decisions

Nov 26, 2014

361 N.L.R.B. 966 (N.L.R.B. 2014)

966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Atelier Condominium and Cooper Square Realty, as
Joint Employers and Sebastain Christopher and
Nazmir Alovic. Cases 02–CA–039459, 02–CA–
039575, and 02–CA–040066
November 26, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On April 10, 2012, Administrative Law Judge Mindy
E. Landow issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board has delegated 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,1 and conclusions, as
explained below, to amend the remedy,2 and to adopt the
recommended Order as modified and set forth in full
below.3
This case arises from an organizing campaign among
the Respondent’s building service employees in 2009.
The judge found, and we agree for the reasons she gives,
that during the course of that campaign the Respondent
unlawfully interrogated employees about their union
activities,4 unlawfully threatened an employee with re-
1 The Respondent has excepted to some of the judge’s credibility
findings regarding the unfair labor practices committed in 2009. The
Board’s established policy is not to overrule an administrative 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
reversing the findings.
2 The Respondent’s reimbursement of Christopher for legal costs
and other expenses incurred in defending against its unlawful retaliato-
ry lawsuit shall include interest at the rate prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
3 We shall order the Respondent to compensate discriminatees Se-
bastain Christopher and Nazmir Alovic for the adverse tax consequenc-
es, if any, of receiving lump-sum backpay awards, and to file a report
with the Social Security Administration allocating the backpay awards
to the appropriate calendar quarters for each of them, in accordance
with our recent decision in Don Chavas, LLC d/b/a Tortillas Don Cha-
vas, 361 NLRB 101 (2014). In addition, we shall modify the judge’s
recommended Order to conform to the violations found and to the
Board’s standard remedial language, and we shall substitute a new
notice consistent with the Order as modified and with Durham School
Services, 360 NLRB 694 (2014).
4 Although we agree that the Respondent engaged in unlawful inter-
rogations, we do not rely on Bloomfield Health Care Center, 352
NLRB 252 (2008), enfd. mem. 372 Fed.Appx. 118 (2d Cir. 2010), a
two-member decision cited by the judge for support. See generally New
Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010).
The judge found, and we agree, that Board of Directors President
Daniel Neiditch unlawfully interrogated employee Christopher in Janu-
prisals for supporting SEIU Local 32BJ (the Union), and
unlawfully discharged employees Nazmir Alovic and
Sebastain Christopher because of their union activities.5
The judge also correctly found that the Respondent vi-
olated the Act in 2010 by filing a state-court lawsuit
against Christopher alleging, among other things, that
Christopher, by then a former employee, had published
libelous statements on the Internet accusing the Re-
spondent of criminal conduct. That lawsuit was pending
at the time of the judge’s decision (and apparently re-
mains pending today). As discussed below, we affirm
the judge’s findings that the Respondent’s lawsuit was
baseless as to Christopher and that he was named as a
defendant in retaliation for his protected activity.
I. BACKGROUND
Respondent Atelier Condominium (Atelier) and Re-
spondent Cooper Square Realty (CSR) operated a high-
rise building in mid-town Manhattan consisting of luxury
residential condominiums.6 Sabrina Mehmedovic was
the property manager of the building. Robert Moricone
was the building’s resident manager, working under
Mehmedovic, until his death in July 2009. Daniel Nei-
ditch was the president of Atelier’s board of directors. In
addition, Neiditch operated a real estate company, locat-
ed in an office in the building, which brokered the pur-
chase, sale, and leasing of condominiums in the building.
In January 2008, the Respondent agreed to an informal
settlement of unfair labor practice charges filed by the
Union, which essentially required the Respondent to
ary 2009 when, while the two were driving in Neiditch’s car, Neiditch
told Christopher that he knew Christopher wanted a union and that
Neiditch and another Respondent official did not. Our concurring
colleague would find that Neiditch’s statement was neither a question
nor designed to elicit information, but was merely a noncoercive ex-
pression of Neiditch’s opinion, which cannot be found unlawful under
Sec. 8(c) of the Act. We find these views unpersuasive. First, the
Respondent’s relevant exceptions challenge only the judge’s crediting
of Christopher over Neiditch; thus, the Respondent has waived the
arguments asserted by our colleague. In any event, Neiditch’s “state-
ment” to Christopher was the type of statement that “begs a reply,” and
constitutes “an invitation . . . either to confirm or deny [its] truth.”
Ready Mix, Inc., 337 NLRB 1189, 1190 (2002). We find, moreover,
for the reasons given by the judge, that Neiditch’s “statement” was
coercive in all the circumstances, thus rendering Sec. 8(c) inapplicable.
5 At fn. 43 of her decision, in concluding that Christopher’s dis-
charge was unlawfully motivated, the judge relied in part on a state-
ment Resident Manager Robert Moricone made to Christopher. The
Respondent has excepted to the judge’s reliance on Moricone’s state-
ment in light of Moricone’s unavailability to testify due to his death
prior to the hearing. We affirm the judge’s reliance on this statement,
although we note that there is sufficient evidence of unlawful motive
without it.
6 No exceptions were filed to the judge’s finding that the two Re-
spondents were joint employers with regard to the condominium build-
ing. Accordingly, references to “the Respondent” in this Decision refer
to both unless otherwise noted.
361 NLRB No. 111

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 967
cease recognizing and otherwise supporting Local 670 of
the United Food and Commercial Workers in the absence
of majority support for that union among the Respond-
ent’s building service employees.7 Subsequently, the
Respondent rebuffed the Union’s efforts to discuss rep-
resentation of these employees; Atelier’s board of direc-
tors apparently still preferred Local 670 due to its per-
ceived lower costs to the Respondent.
In early 2009,8 the building service employees began
organizing in support of the Union. Employees Alovic
and Christopher were prominent in this effort. As stated,
we have affirmed the judge’s findings that the Respond-
ent resorted to unlawful interrogations and threats and
unlawfully discharged Alovic and Christopher in its ef-
forts to thwart the employees’ organizing campaign.
On July 1, a group of condominium owners in the
building filed a lawsuit in state court against Atelier
Board of Directors President Neiditch, other members of
the Atelier board, Property Manager Mehmedovic, Re-
spondent CSR, and Neiditch’s real estate company. This
lawsuit accused the defendants of corruption, bribery,
payoffs, and extortion related to an alleged conspiracy to
manipulate the sale and leasing of condominium units in
the building.
Resident Manager Moricone shot himself to death on
the day the owners’ lawsuit was filed. Within days, In-
ternet postings addressed to the Atelier residents ap-
peared on two websites discussing Moricone’s suicide
and the corrupt activities of Neiditch and Mehmedovic
alleged in the owners’ lawsuit.
On July 8, Neiditch sent an email to the building’s res-
idents responding to the Internet postings. He described
them as the work of certain named condominium owners
and unnamed “former employees,” and he asserted that
these individuals were themselves involved in illegal
activities in the building. He characterized the Internet
postings as lies, libel, and slander that damaged the Atel-
ier’s reputation and property values, among other things.
On July 29, Neiditch, Mehmedovic, and Moricone’s
estate filed a lawsuit in state court against two named
building residents, four named Internet service providers,
20 anonymous “John and Jane Doe” defendants, and
three recently discharged building service employees:
Laura Qoku, Blerta Behluli, and discriminatee Christo-
pher. The lawsuit alleged 15 counts of libel and one
count of tortious business interference based on the In-
ternet postings.9 Shortly after this lawsuit was filed, the
alleged defamatory postings were removed from the
websites. On June 3, 2010, the trial judge dismissed the
7 This settlement agreement did not include a nonadmission clause.
8 All dates hereafter are in 2009 unless otherwise noted.
9 New York State Index No. 110783/2009.
case when the plaintiffs’ attorney failed to appear at a
scheduled pretrial conference.
On June 8, 2010, Neiditch and Mehmedovic filed a
new lawsuit, naming only the three former employees
identified above and 10 anonymous “John Does” as de-
fendants.10 The 2010 lawsuit asserts essentially the same
libel and tortious-interference allegations under the same
16 counts as the 2009 lawsuit. Thus, the lawsuit broadly
alleges that all the defendants were responsible for pub-
lishing multiple false statements on the Internet accusing
the plaintiffs of various criminal activities, including
complicity in the death of Moricone. The allegations,
however, do not attribute any particular role in posting
the statements to any particular defendants. Nor do the
allegations state that the postings were subscribed to by
any defendant. Indeed, it is apparent from the complaint
allegations that the postings were anonymous.11 The
lawsuit demands $190 million in compensatory and pu-
nitive damages.
Christopher answered the complaint pro se, denying
the allegations and counterclaiming for $85 million, al-
leging malicious prosecution by the plaintiffs. At the
time of the administrative law judge’s decision in the
present unfair labor practice—almost 2 years after the
2010 lawsuit was filed—the lawsuit was still pending,
and neither pretrial discovery nor any other action had
taken place.12
II. THE JUDGE’S FINDINGS REGARDING
THE 2010 LAWSUIT
The judge found merit in the General Counsel’s alle-
gations that the Respondent’s 2010 lawsuit against
Christopher is factually and legally baseless, and that he
was named as a defendant in retaliation for his protected
participation in the 2009 union organizing drive and in
the Board’s investigation of unfair labor practice charges
underlying the present case. Thus, the judge concluded
that, with respect to Christopher, the 2010 lawsuit violat-
ed both Section 8(a)(1) and (4) of the Act. We agree that
10 New York State Index No. 150122/2010.
11 The record does not contain copies of the relevant website pages.
The state court complaint quotes alleged excerpts from the websites. It
is portions of those quotations that the judge set out in part II.E of her
decision.
12 The parties in the case before us have not informed us of any de-
velopments in the Respondent’s lawsuit after the issuance of the ad-
ministrative law judge’s decision. We take administrative notice, how-
ever, that, as of the date of this Decision and Order, a website
operated by the New York State Unified Court System,
http://iapps.courts.state.ny.us/iscroll/index.jsp, states that no “request
for judicial intervention” has been filed in the suit, meaning that no
judge has been assigned to it.

968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the lawsuit violates Section 8(a)(1), consistent with our
discussion below.13
III. DISCUSSION
The Board has held that a reasonably based lawsuit,
whether ongoing or completed, does not violate the Act,
regardless of the motive for filing it.14 By contrast, a
lawsuit determined to be baseless is unlawful under the
Act if the plaintiff’s motive was to retaliate against pro-
tected rights.15 Here, we conclude that the Respondent’s
lawsuit is baseless and, in turn, that it has a retaliatory
motive.
A. The 2010 Lawsuit Is Baseless
A lawsuit is baseless “if ‘no reasonable litigant could
realistically expect success on the merits.’”16 In apply-
ing this standard to a pending case, as here, we are guid-
ed by the Supreme Court’s decision in Bill Johnson’s,
which held that the Board may enjoin an ongoing lawsuit
only if it lacks a reasonable basis and was filed with a
retaliatory motive.17 The Bill Johnson’s Court, noting
that the “reasonable basis inquiry need not be limited to
the bare pleadings,” recommended that the Board “draw
guidance from the summary judgment and directed ver-
dict jurisprudence” in exercising its discretion to deter-
mine the lawfulness of an ongoing lawsuit.18 The Board
has done so in prior cases. For example, in Milum Tex-
tile Services, supra, the Board, after determining that an
employer unlawfully filed a motion for a temporary re-
straining order against a union, remanded the case to the
administrative law judge to determine the lawfulness of
the employer’s underlying defamation lawsuit against the
union. The lawsuit had been voluntarily dismissed at the
13 In threshold determinations, the judge found that Neiditch and
Mehmedovic were agents of the Respondents in filing the 2010 suit,
that the General Counsel’s complaint was not barred by Sec. 10(b), and
that the complaint raised no significant preemption or public-policy
questions. We deny the Respondent’s exceptions to these findings, for
the reasons stated by the judge.
The General Counsel’s complaint also alleged that the Respondent’s
lawsuit is unlawful as to former employees Qoku and Behluli. The
General Counsel, however, did not pursue these allegations at the hear-
ing, and the judge declined to consider them. No exceptions were filed
to this determination.
Finally, as discussed below, we find it unnecessary to pass on
whether the lawsuit violated Sec. 8(a)(4) of the Act as well.
14 BE&K Construction Co., 351 NLRB 451 (2007) (BE&K II).
15 Milum Textile Services Co., 357 NLRB 2047 (2011) (motion for
temporary restraining order against union’s protected public communi-
cations found unlawful); Allied Mechanical Services, Inc., 357 NLRB
1223 (2011) (lawsuit seeking damages due to protected job-targeting
activities found unlawful), enf. denied 734 F.3d 486 (6th Cir. 2013).
16 BE&K II, supra at 457 (quoting Professional Real Estate Inves-
tors, Inc. v. Columbia Pictures Industries, 508 U.S. 49, 60 (1993)).
17 Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983).
See Ray Angelini, Inc., 351 NLRB 206, 208–209 (2007).
18 461 U.S. at 744–745 and fn. 11.
employer’s request prior to the discovery process, and
thus had not been litigated to completion. Consistent
with Bill Johnson’s, the Board described the General
Counsel’s evidentiary burden on remand:

The General Counsel had to prove that the Respondent,
when it filed its complaint or during the time before it
voluntarily dismissed the action, did not have and
could not reasonably have believed it could acquire
through discovery or other means evidence needed to
prove essential elements of its causes of action.

357 NLRB 2047, 2053.
Here, the judge, following Milum, concluded that the
Respondent’s lawsuit was baseless. In short, she deter-
mined that there was no factual basis for alleging that
Christopher was in any way responsible for any of the
alleged libelous statements. In her analysis, the judge
discredited Neiditch in light of his sparse, vague testi-
mony at the unfair labor practice hearing concerning
Christopher’s role in the postings, and she credited
Christopher’s testimony denying any participation in the
alleged libel. Moreover, in light of the Respondent’s
failure to substantiate its allegations, she inferred, first,
that no documents existed that would implicate Christo-
pher, and second, that the Respondent had failed to in-
vestigate whether he had actually played any part.
The Respondent argues that the judge erroneously re-
lied on her credibility resolutions and related factual in-
ferences to support her finding that the 2010 lawsuit is
baseless. We agree that the judge erred in this regard.
The Court in Bill Johnson’s made clear that such find-
ings exceed the permissible limits of the Board’s authori-
ty to evaluate ongoing lawsuits protected by the First
Amendment.19 The Board, in turn, has clearly acknowl-
edged these limitations set by the Court, and has declined
“to weigh the credibility of witnesses” in retaliatory law-
suit cases.20
We nevertheless agree with the judge’s conclusion that
the 2010 lawsuit lacks any reasonable basis as to Chris-
topher. Under New York law, a plaintiff must establish
five elements to succeed in a libel suit: (1) a written,
defamatory statement of fact concerning the plaintiff; (2)
the defendant’s publication of the statement to a third
party; (3) the nature of the defendant’s fault, i.e., whether
negligence or actual malice, depending on the plaintiff’s
status; (4) the falsity of the statement; and (5) the plain-
19 461 U.S. at 744, 745–746.
20 Beverly Health & Rehabilitation Services, 331 NLRB 960, 962 fn.
6 (2000).

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 969
tiff’s injury.21 Consistent with Milum, the General
Counsel may carry his burden of proof by “pointing out
. . . that there is an absence of evidence to support” at
least one of these elements.22
In the present case, the baselessness of the Respond-
ent’s suit turns on the second libel element: the defend-
ant’s publication of the statement. As the General Coun-
sel contends, the evidence is insufficient to permit the
Respondent to establish that there is a genuine dispute of
fact as to whether Christopher published any of the al-
leged defamatory statements, and so its case against him
necessarily fails.23
On that element, the General Counsel showed the fol-
lowing. Neiditch’s July 8 email to the condominium
residents, sent only days after the Internet postings ap-
peared, effectively foreshadowed the libel allegations in
the 2010 lawsuit. Neiditch accused “former employees”
of being involved in the offensive Internet postings;
Christopher, however, was not named, and the Respond-
ent never articulated, then or since, any factual basis for
believing he was involved. Likewise, the 2010 lawsuit
alleges that a collection of 12 defendants—Christopher,
two other named former employees, and 10 “John Does”
—posted extensive defamatory material on the Internet,
but not one of the 16 counts describes Christopher’s role
with respect to publication of any posted statement.
None of the allegations avers that Christopher is identi-
fied in, or that his identity is discernible from, any of the
postings. Further, the allegations, all denied in Christo-
pher’s answer to the complaint, are unsupported by any
documentary evidence whatsoever. As noted, the record
in the present case contains no hard copies of the post-
ings as they appeared on the Internet, nor does the record
contain any other documents that would even suggest, let
alone substantiate, Christopher’s responsibility for the
alleged defamatory statements. In sum, the General
Counsel has shown that there is a complete absence of
evidence to support any allegation that Christopher pub-
lished a defamatory statement, or to show any basis for
the Respondent to have reasonably believed that it could
21 See, e.g., Meloff v. New York Life Insurance Co., 240 F.3d 138,
145 (2d Cir. 2001); see also New York Pattern Jury Instructions—Civil
PJI 3:34 (3d ed. 2013).
22 Celotex Corp. v. Catrett, 477 U.S. 317, 322–323, 325 (1986); see
also Doona v. OneSource Holdings, Inc., 680 F.Supp. 2d 394, 399
(E.D.N.Y. 2010), and cases cited there.
23 See Murphy v. City of New York, 59 A.D.3d 301, 874 N.Y.S.2d
407 (2009) (dismissal on summary judgment affirmed: among other
things, plaintiff failed to identify person who made alleged defamatory
statement); Trakis v. Manhattanville College, 51 A.D.3d 778, 859
N.Y.S.2d 453, 456 (2008) (same); Schwegel v. Chiaramonte, 4 A.D.3d
519, 772 N.Y.S.2d 379, 381 (2004) (same).
acquire through discovery or other means evidence to
establish publication by Christopher.
The Respondent’s attempt to counter the force of the
General Counsel’s showing does not withstand scrutiny.
The Respondent’s “evidence” amounts to the following,
as described by the administrative law judge:

Neiditch testified that Christopher was named as a de-
fendant in the lawsuit because: “we have reason to be-
lieve that he put up postings on the site.” When asked
what led to that conclusion, Neiditch stated, “Well,
there was a posting up there with his name on it. And
just [illicit] stuff that he was saying.” When asked
whether he had a copy of any such document, Neiditch
replied, “Not on me, no.” When asked where it would
be, he replied, “It would have been on the site.”24

To the extent that Neiditch’s testimony even connects
Christopher to a relevant website, there is no description of
the content that he allegedly posted. Thus, Neiditch did not
address whether (and if so, how) any such postings were
related to the libelous statements alleged in the 2010 law-
suit. The Respondent offered no other relevant evidence,
and it did not explain, in testimony, by affidavit, or other-
wise, why such evidence (assuming it existed) was not
available (for example, because it could be obtained only
through pretrial discovery).25
In sum, viewing the evidence and any reasonable in-
ferences to be drawn from it in the light most favorable
to the Respondent,26 the General Counsel established
that the Respondent “did not have, and could not reason-
ably have believed it could acquire through discovery or
other means, evidence needed to prove”27 a requisite
element of its libel claims against Christopher: that he
initiated, took some role in, or was in any conceivable
way responsible for publication of any alleged defamato-
ry posting.28
The final count in the Respondent’s 2010 lawsuit al-
leges that Christopher and the other defendants engaged
in “tortious interference with prospective business rela-
24 Again, all allegedly defamatory postings were removed from the
websites soon after the filing of the 2009 lawsuit—more than 2 years
before Neiditch testified at the Board hearing.
25 See Fed.R.Civ.P. 56(d); see also Celotex Corp., supra at 326;
Geske & Sons, Inc. v. NLRB, 103 F.3d 1366, 1376 (7th Cir. 1997), cert.
denied 522 U.S. 808 (1997); Meloff v. New York Life Insurance Co., 51
F.3d 372, 375 (2d Cir. 1995); Milum Textile Services, supra, at 2053.
26 See, e.g., Mihalik v. Credit Agricole Cheuvreux North America,
Inc., 715 F.3d 102, 108 (2d Cir. 2013); Doona v. OneSource Holdings,
supra at 400, and cases cited there.
27 Milum Textile Services, supra, 2053.
28 Compare Diamond Walnut Growers, 312 NLRB 61, 68–69 (1993)
(employer’s libel suit in state court found baseless in the absence of
any evidence that the union, a named defendant, took part in the al-
leged defamation), enfd. 53 F.3d 1085 (9th Cir. 1995).

970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions.” More specifically, the Respondent avers that
Neiditch’s real estate brokerage involving Atelier’s con-
dominium units was damaged financially because of the
alleged libelous statements described in the preceding 15
counts.29 In the absence of any evidence substantiating
Christopher’s culpability for the alleged Internet state-
ments, this dependent claim has no factual foundation.
In short, the Respondent’s evidence in support of the
complaint allegations against Christopher appears to be
virtually nonexistent. Accordingly, we find that the Re-
spondent did not have even “a colorable argument” in
support of its claims against Christopher.30 This meets
the Board’s definition in BE&K II of a baseless legal
action: no reasonable litigant in the Respondent’s posi-
tion could realistically expect to succeed on the merits of
its claims against Christopher.
B. The 2010 Lawsuit Is Retaliatory
In light of our finding that the Respondent’s 2010 law-
suit lacks any reasonable basis in naming Christopher as
a defendant, we consider whether the allegations against
him were unlawfully motivated.31 Relevant factors in
that analysis include whether the lawsuit was filed in
response to protected, concerted activity; evidence of the
Respondent’s prior animus toward protected rights; the
lawsuit’s baselessness; and the Respondent’s claim for
punitive damages.32
The Respondent’s lawsuit does not indicate, on its
face, that it was filed in response to protected activity.
Instead, the lawsuit alleges that Christopher, among oth-
ers, published defamatory Internet postings accusing the
Respondent of criminal activity in the management of
29 Under New York law, the elements of a successful claim of tor-
tious interference with business relations are: a business relationship
between the plaintiff and a third party; the defendant’s interference
with the relationship by wrongful or otherwise improper means—for
example, by the tort of libel; and a resulting injury to the relationship.
See, e.g., Catskill Development, LLC v. Park Place Entertainment
Corp., 547 F.3d 115, 132 (2d Cir. 2008), cert. denied 556 U.S. 1166
(2009).
30 Milum Textile Services, supra, at 2053.
31 The judge found the Respondent’s lawsuit unlawfully motivated
under an analysis combining independent allegations in the General
Counsel’s complaint: that the suit was in retaliation for Christopher’s
protected conduct during the 2009 organizing drive, and also for his
protected participation in the Board’s investigation of some of the
unfair labor practice charges underlying the present case. We agree that
the Respondent’s filing and maintenance of the 2010 suit against Chris-
topher was driven by a retaliatory motive, as discussed below. Howev-
er, we find it unnecessary to consider the complaint’s 8(a)(4) allegation
because, if proved, it would have no material effect on the remedy for
the unlawful suit. See, e.g., Alexis Painting Co., 342 NLRB 1065, 1065
fn. 4 (2004); Benjamin Coal Co., 294 NLRB 572, 572 fn. 2 (1989).
32 See, e.g., Milum Textile Services, supra, at 2049; Allied Mechani-
cal Services, Inc., supra, at 1232–1233; Diamond Walnut Growers,
supra at 69.
the condominium building. The alleged postings them-
selves, as described in the complaint, do not reference
any activities protected under the Act.33 Nevertheless,
retaliatory motive may be established by circumstantial
evidence.34 And, here, the surrounding circumstances
amply support a finding that the Respondent named
Christopher as a defendant in the 2010 lawsuit because
of his protected activity.
Christopher engaged in protected union activity in
2009, and it is undisputed that the Respondent was aware
of it. The Respondent’s unlawful interrogations and
threat of reprisals to employees during the Union’s or-
ganizing drive, as well as its previous assistance to
UFCW Local 670, a minority union, are evidence of its
animus against the Union and its supporters among the
building-service employees. The Respondent’s animus
is also established by its unlawful discharges of Alovic
and Christopher in June, within weeks of their participa-
tion in the presentation of the employees’ prounion peti-
tion to the Respondent.
The baselessness of the Respondent’s 2010 lawsuit al-
so reveals its retaliatory nature. The Respondent first
sued Christopher on July 29, 2009, a month after his
unlawful discharge, asserting the same defamation
claims against him as those in the 2010 lawsuit, filed on
June 8.35 Thus, by the time the Respondent filed the
present lawsuit, it had almost a year to gather evidence to
substantiate its allegations against Christopher. Yet, as
described above, the 2010 lawsuit was wholly unsup-
ported as to Christopher when it was filed, and it remains
so today. In those circumstances, we infer that naming
Christopher as a defendant in the lawsuit, like the false
reasons offered for his unlawful discharge in 2009, was a
pretext to retaliate against him because of his protected
activity.36 Indeed, it appears that the 2010 lawsuit was
merely an effort to renew and maintain a retaliatory plan
against Christopher that the Respondent initiated with his
June 2009 unlawful discharge.37
33 Compare, e.g., Milum Textile Services, supra, at 2052 (employer’s
motion for temporary restraining order against union’s protected com-
munications with customers was unlawfully motivated); Allied Me-
chanical, supra, slip op. at 14 (employer’s suit claiming financial injury
due to protected job-targeting activities was unlawfully motivated).
34 Allied Mechanical, supra, slip op. at 1234–1235.
35 We note that Christopher filed an unfair labor practice charge on
August 26, 2009, contesting his discharge, and that the General Coun-
sel issued a complaint against the Respondent on February 26, 2010,
alleging the discharge as unlawful. Thus, the Respondent was aware of
Christopher’s action when it filed the 2010 suit against him.
36 See, e.g., Rood Trucking Co., 342 NLRB 895, 897–898 (2004)
(pretextual nature of a respondent’s asserted reasons for taking action
can be substantial evidence of animus).
37 Sec. 10(b) bars an allegation that the 2009 suit violated the Act.
However, this does not preclude our relying on it as evidence of illicit

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 971
Finally, we find that the Respondent’s retaliatory mo-
tive is shown by its claim for damages of $190 million in
the 2010 lawsuit ($12 million for each libel count and
$10 million for alleged business interference). These
claims were characterized in the Respondent’s 2010
complaint as both compensatory and punitive, without
differentiation, with no attempt—then or since—to justi-
fy the amount of damages alleged.
The Board has previously found that punitive damage
claims can be evidence of retaliatory motive.38 Given
the size of each claim of injury here, each of which in-
cluded punitive damages, and the fact that the alleged
defamatory Internet postings were removed from the
websites soon after the 2009 lawsuit was filed, we infer
that these unsubstantiated claims are further evidence of
the unlawful motive behind the Respondent’s allegations
against Christopher.
For all of these reasons, we find that the defamation
allegations against Christopher were motivated by a de-
sire to retaliate against him because of his protected con-
duct. In particular, we find that naming Christopher in
the lawsuit was an effort to burden him with the costs of
litigation.39
IV. CONCLUSION
In sum, we find that the Respondent’s 2010 lawsuit
lacks any reasonable basis as it applies to Christopher;
that its filing was, and its continued maintenance is, un-
lawfully motivated; and that it violates Section 8(a)(1).40
ORDER
The National Labor Relations Board orders that the
Respondent, joint employers Atelier Condominium and
Cooper Square Realty, New York, New York, their of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
motive. See, e.g., Meritor Automotive, Inc., 328 NLRB 813 (1999); see
also Lodge Local No. 1424 v. NLRB, 362 U.S. 411, 416–417, 422
(1960) (pre-10(b) events may be used to shed light on a properly
charged unfair labor practice).
38 See, e.g., Operating Engineers Local 520 (Alberici Construction),
309 NLRB 1199, 1200 (1992), enf. denied 15 F.3d 677 (7th Cir. 1994);
Summitville Tiles, 300 NLRB 64, 66 (1990).
39 See Milum Textile Services, supra, at 2052 fn. 22; Allied Mechani-
cal Services, supra,. at 1233.
40 Our concurring colleague agrees that the Respondent’s lawsuit
was both baseless and retaliatory. In his view, however, we impermis-
sibly rely on the baselessness of the Respondent’s suit, demonstrated in
part by its unsubstantiated claims for punitive damages, as evidence of
the Respondent’s retaliatory motive. Our approach is fully consistent
with Board precedent, as we have explained, and with the Supreme
Court’s jurisprudence. See, e.g., Allied Mechanical Services, supra, slip
op. at 1233–1234 (rejecting dissenting view). In any case, we would
reach the same result here relying solely on the evidence of retaliatory
motive relied on by our colleague.
(a) Coercively questioning employees about their un-
ion support or activities or the union support and activi-
ties of other employees.
(b) Threatening employees with unspecified reprisals
for their union or protected concerted activities.
(c) Discharging or otherwise discriminating against
employees for supporting Local 32BJ, SEIU or any other
union.
(d) Filing and maintaining any lawsuit that lacks a rea-
sonable basis and is motivated by an intent to retaliate
against employee activity protected by Section 7 of the
Act.
(e) 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
Nazmir Alovic and Sebastain Christopher full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
(b) Make Nazmir Alovic and Sebastain Christopher
whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in the
manner set forth in the remedy section of the judge’s
decision.
(c) Compensate Nazmir Alovic and Sebastain Christo-
pher for the adverse tax consequences, if any, of receiv-
ing lump-sum backpay awards, and file a report with the
Social Security Administration allocating the backpay
awards to the appropriate calendar quarters for each em-
ployee.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Nazmir Alovic and Sebastain Christopher, and within 3
days thereafter notify them in writing that this has been
done and that the discharges will not be used against
them in any way.
(e) Ensure that a motion is filed for leave to withdraw
the allegations against Sebastain Christopher in its law-
suit instituted in the Supreme Court of the State of New
York, Daniel Neiditch and Sabrina Mehmedovic v.
Laura Qoku, Blerta Behluli, Sebastain Christopher and
John Does 1 through 10, Index Number 150122/2010,
and compensate Christopher for any costs incurred in the
defense of those allegations, in the manner set forth in
the remedy section of the judge’s decision as amended in
this Decision.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for

972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
(g) Within 14 days after service by the Region, post at
its facility in New York, New York, copies of the at-
tached notice marked “Appendix.”41 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 2, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. In addition to the physical post-
ing of paper notices, notices shall be distributed electron-
ically, such as by email, posting on an intranet or internet
site and/or other electronic means, if the Respondent
customarily 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. In the event that, during
the pendency of these proceedings, 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 January 2009.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 2 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 join my colleagues’ unfair labor practice findings in
most respects.1 I write separately regarding the finding,
41 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.”
1 I agree that the Respondent coercively interrogated employees, but
I disagree that the January 2009 conversation between Atelier Condo-
minium Board of Directors’ President Daniel Neiditch and employee
Sebastain Christopher was an interrogation at all, let alone an unlawful-
ly coercive one. In that incident, Neiditch and Christopher were driv-
ing in Neiditch’s car when Neiditch told Christopher that he knew
Christopher wanted a union and that neither Neiditch nor Property
Manager Sabrina Mehmedovic wanted one. Neiditch did not ask
Christopher any question, and his statement was not phrased to elicit
information about Christopher’s union activities, the organizing cam-
paign, or the identities of other union supporters. Rather, Neiditch
with which I concur, that the Respondent violated Sec-
tion 8(a)(1) of the Act by naming Sebastain Christopher
in its 2010 state-court libel and tortious interference law-
suit, which alleged that Christopher and 12 other indi-
viduals (10 of whom are “John Does”) posted anony-
mous libelous statements on a website critical of Nei-
ditch and Mehmedovic.2
In 1983, the Supreme Court noted that the Board had a
“checkered history” when addressing its authority to
issue “a cease-and-desist order to halt an allegedly retali-
atory lawsuit filed by an employer in a state court.” Bill
Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 737
(1983). In Bill Johnson’s, the Supreme Court stated:
“The right to litigate is an important one, and the Board
should consider the evidence with utmost care before
ordering the cessation of a state-court lawsuit.” Id. at
744. The Court held that the Board may not enjoin any
“well-founded lawsuit,” even if the lawsuit was motivat-
ed by a desire to retaliate against the defendant for exer-
cising NLRA-protected rights. Id. at 743.
Consequently, in cases such as this, the Board has sev-
eral challenges. First, we have no jurisdiction over non-
NLRA litigation that, as in the instant case, involves
pending state-law claims as to which the Board has no
expertise.3 Second, not only must we evaluate whether
the lawsuit is motivated by a desire to retaliate against
the exercise of rights protected by our statute, we must
construe non-NLRA legal requirements to determine
whether the lawsuit “lacks a reasonable basis in fact or
law.” Id. at 748. Third, our evaluation of whether the
litigation is “baseless” must end if there are “genuine
issues of material fact or law,” which derives from juris-
prudence regarding summary judgment and directed ver-
dict determinations. Id. at 745 fn. 11. Fourth, the Su-
expressed an opinion about unions, and his statement contained neither
threat of reprisal or force nor promise of benefit. Accordingly, under
Sec. 8(c) of the Act, it did not constitute an unfair labor practice.
Aside from the January 2009 alleged interrogation and the Bill
Johnson’s issue, discussed below, I join my colleagues’ other unfair
labor practice findings for the reasons stated in the judge’s decision.
2 Like my colleagues, I disclaim any reliance on the judge’s credibil-
ity determinations and related factual inferences in analyzing whether
the lawsuit was objectively baseless, and I do not reach the allegation
that the Respondent also violated Sec. 8(a)(4) of the Act. In adopting
the judge’s finding that Mehmedovic and Neiditch were acting as
agents of the Respondent when the lawsuit was filed, I do not rely on
the allegations in the state-court complaint.
3 I have elsewhere expressed my disagreement when the Board has
failed to recognize the limitations on its authority to exercise jurisdic-
tion over non-NLRA claims and issues. See Murphy Oil USA, Inc.,
361 NLRB 774, 795–808 (2014) (Member Miscimarra, dissenting in
part) (dissenting from finding that employer violated Sec. 8(a)(1) by
entering into agreements waiving class-type treatment of non-NLRA
claims, and from awarding fees in non-NLRA litigation resulting from
employer’s meritorious motion to dismiss).

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 973
preme Court has stated that the Board may not “usurp the
traditional fact-finding function of the state-court jury or
judge.” Id. at 745 (fn. omitted). Thus, if there is a genu-
ine dispute as to material facts, issues of law, or a
“mixed question of fact and law,” unless the plaintiff’s
position is “plainly foreclosed as a matter of law or is
otherwise frivolous, the Board should allow such issues
to be decided by the state tribunals if there is any realis-
tic chance that the plaintiff’s legal theory might be
adopted.” Id. at 746–747.
Our task here is further complicated by the Respond-
ent’s apparent failure to have commenced discovery in
its state-court lawsuit. In other circumstances, the failure
to have undertaken discovery might preclude a finding
that the plaintiff’s non-NLRA allegations are baseless
because discovery might be necessary to uncover support
for one or more allegations.4 Cf. Fed.R.Civ.P. 56(f).
However, under the circumstances of this case, I agree
that the apparent failure to engage in discovery does not
preclude our finding that the Respondent’s 2010 claims
against Christopher are baseless.
Respondent’s state-law defamation lawsuit alleges that
Christopher was responsible for Internet postings that
constituted libel. At the hearing before our judge, Chris-
topher denied that he was involved in the postings. As to
this issue, I agree with my colleagues that the Respond-
ent failed to present evidence sufficient to create a genu-
ine issue of material fact. Bill Johnson’s, 461 U.S. at
746 fn. 12. At the Board hearing, the Respondent’s wit-
ness, Neiditch, testified that Christopher was named a
defendant because “we have reason to believe that he put
up postings on the site.” On further questioning, he said
that there was “a posting” with Christopher’s name on it.
Neiditch then referred to alleged illicit “stuff” that Chris-
topher “was saying.” Neiditch did not specify what was
stated in the claimed posting that mentioned Christo-
pher’s name. Neiditch did not generally state what was
mentioned in the claimed posting.5 Nor did Neiditch
explain what was libelous about the posting or the
“stuff” Christopher had been saying. Moreover, alt-
hough the record does not preclude the possibility that
some document might implicate Christopher, no such
document is part of the record before the Board, and
Neiditch essentially admitted that he did not have any
documentary evidence of any statement posted on the
Internet that mentioned Christopher by name. Asked if
he had a copy of any such statement, Neiditch answered,
4 In Bill Johnson’s, the respondent-plaintiff had engaged in discov-
ery in connection with the state litigation by the time of the Board
hearing. Bill Johnson’s Restaurants, Inc., 249 NLRB 155, 165 (1980).
5 In its brief, the Respondent makes representations about Neiditch’s
testimony that are not supported by the hearing transcript.
“No, not on me.” Asked where such a statement would
be, he answered, “It would have been on the website.”
As noted previously, all allegedly defamatory postings
were removed from the website soon after the filing of
the 2009 lawsuit. Even if the record raised a genuine
issue as to whether Christopher posted some unspecified
statement on the Internet, I agree Respondent has not
established there is a material question concerning the
issue of defamation, because the record does not contain
any evidence reasonably suggesting such an Internet
statement was false (a prerequisite to any finding of li-
bel) and defamatory.
Although it appears Respondent has not conducted
discovery in the four years or so that have elapsed since
the lawsuit’s commencement,6 Respondent does not
claim that it lacked a reasonable opportunity to engage in
discovery. Nor does Respondent claim that the lack of
discovery has prejudiced its defense to the allegation that
the lawsuit against Christopher violates Section 8(a)(1)
of the Act.7 In these circumstances, I believe the lack of
discovery does not preclude a finding that the 2010 law-
suit as to Christopher is “lack[ing] a reasonable basis in
fact or law.”8
Regarding the second stage of the Bill Johnson’s test, I
also agree with my colleagues that the record supports a
finding that Respondent’s defamation lawsuit named
Christopher in retaliation against Christopher’s protected
union activity. However, I disagree with my colleagues’
reliance on the baselessness of the lawsuit as evidence of
retaliatory motive. The Supreme Court in Bill Johnson’s
held that “[r]etaliatory motive and lack of reasonable
basis are both essential prerequisites to the [NLRB’s]
issuance of a cease-and-desist order against a state suit.”
461 U.S. at 748–749 (emphasis added). Because retalia-
tory motive and baselessness are separate prerequisites,
the majority cannot properly find that baselessness satis-
fies both. Here, I agree with former Member Hayes that
reliance on baselessness to prove a retaliatory motive is
impermissible under Bill Johnson’s. See Allied Mechan-
ical Services, 357 NLRB 1223, 1237 (2011) (Member
6 The Respondent did not except to the judge’s finding that, approx-
imately 2 years after the state lawsuit was filed, it had taken no action
to prosecute the suit or commence discovery.
7 The Respondent is content to rest on its arguments that it did not
file the lawsuit, which my colleagues have properly rejected, and that
Neiditch’s testimony is sufficient to establish a genuine issue of mate-
rial fact, which I believe is also without merit.
8 Bill Johnson’s, 461 U.S. at 748; see Geske & Sons, Inc. v. NLRB,
103 F.3d 1366, 1376 (7th Cir. 1997) (holding that, where “plaintiff in a
state lawsuit provides no evidentiary basis for that suit and fails to
describe what evidence he expects to obtain through discovery and to
explain why he has not been able to obtain that evidence, the Board
properly may enjoin the prosecution of that suit prior to discovery”),
cert. denied 522 U.S. 808 (1997).

974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hayes, dissenting). Even if baselessness is relied on
among other factors to infer retaliatory motive, this “di-
minishes the quantum of evidence required to establish a
violation of the Act, and thereby subverts the purpose of
requiring a subjective component, which is to provide
constitutionally protected breathing room for even un-
meritorious lawsuits.” Milum Textile Services Co., 357
NLRB 2047, 2060–2061 (2011) (Member Hayes, dis-
senting in part).
Unlike my colleagues, I also believe the Board cannot
properly infer a retaliatory motive from the amount of
damages sought in an employer’s state-court lawsuit.
Many factors may be responsible for the amount of dam-
ages claimed in a lawsuit, including legal advice ob-
tained by the employer. Additionally, the evaluation of
what constitutes reasonable damages under state law is
especially foreign to the Board’s expertise, and any
Board determination in this area is unlikely to be afford-
ed deference.9 It is true that the amount of damages
sought in a state-court action may be evidence of a plain-
tiff’s ill will towards the defendant. However, with or
without punitive damages, all types of litigation typically
involve ill will in abundance. Consequently, I believe a
claim for punitive damages—though excessive and in-
dicative of ill will—cannot fairly be regarded as evi-
dence of a retaliatory motive in violation of Section
8(a)(1).10 However, the Respondent’s other unfair labor
practices in the instant case—in particular, the unlawful
threats against those involved in union organizing, the
coercive interrogation of Alovic concerning Christo-
9 Obviously, the Board’s primary remedial role is to devise remedies
pursuant to the NLRA, which makes no provision for punitive damag-
es. Even regarding the remedies available under the Act, the Supreme
Court has held that the Board must only order remedial and not puni-
tive measures. Republic Steel Corp. v. NLRB, 311 U.S. 7, 11–12
(1940); Consolidated Edison Co. v. NLRB, 305 U. S. 197, 235–236
(1938); NLRB v. Pennsylvania Greyhound Lines, 303 U. S. 261, 267–
268 (1938). It is also relevant that the Board, in 1940, abolished its
then-existing Division of Economic Research, and Sec. 4(a) of the Act
prohibits the Board from appointing personnel to engage in “economic
analysis.” See generally 93 Cong. Rec. 6661, reprinted in 2 NLRB,
Legislative History of the Labor Management Relations Act 1577 (June
6, 1947) (analysis of H.R. 3020); John E. Higgins, Jr., Labor Czars—
Commissars—Keeping Women in the Kitchen—The Purpose and Ef-
fects of the Administrative Changes Made by Taft-Hartley, 47 Cath. U.
L. Rev. 941, 951–952 (1998). Therefore, the assessment of potential
damages available under state law—especially punitive damages hav-
ing the purpose, in part, to deter violations of state law—is especially
foreign to the Board’s competence. Cf. Republic Steel, 311 U.S. at 12
(the Board is not “free to set up any system of penalties which it would
deem adequate” to “have the effect of deterring persons from violating
the Act”).
10 See Professional Real Estate Investors, Inc. v. Columbia Pictures
Industries, Inc., 508 U.S. 49, 69 (1993) (Stevens, J., concurring in
judgment) (“We may presume that every litigant intends harm to his
adversary.”).
pher’s union activity, and the retaliatory termination of
Alovic and Christopher shortly before the filing of the
first lawsuit in 2009 (which also named Christopher)—
and its prior support of a minority union (UFCW Local
670) support a finding that the Respondent’s state-court
lawsuit against Christopher was motivated by a desire to
retaliate against him because he engaged in protected
activities on behalf of SEIU Local 32BJ.
For these reasons, 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 coercively question you about your un-
ion support or activities or the union support and activi-
ties of other employees.
WE WILL NOT threaten you with unspecified reprisals
for your union or concerted protected activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Local 32BJ, SEIU or
any other union.
WE WILL NOT file or maintain any lawsuit that lacks a
reasonable basis and is motivated by an intent to retaliate
against employee activity protected by Section 7 of the
Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Nazmir Alovic and Sebastain Christopher
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
WE WILL make Nazmir Alovic and Sebastain Christo-
pher whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
less any net interim earnings, plus interest.

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 975
WE WILL compensate Nazmir Alovic and Sebastain
Christopher for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and WE WILL file a
report with the Social Security Administration allocating
the backpay awards to the appropriate calendar quarters
for each of them.
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Nazmir Alovic and Sebastain Christo-
pher, and within 3 days thereafter notify them in writing
that this has been done and that the discharges will not
be used against them in any way.
WE WILL ensure that a motion is filed for leave to
withdraw the allegations against Sebastain Christopher in
the lawsuit instituted in the Supreme Court of the State
of New York, Daniel Neiditch and Sabrina Mehmedovic
v. Laura Qoku, Blerta Behluli, Sebastain Christopher,
and John Does 1 through 10, Index Number
150122/2010, and WE WILL compensate Christopher for
any costs incurred in the defense of those allegations,
plus interest.

ATELIER CONDOMINIUM AND COOPER SQUARE
REALTY

The Board’s decision can be found at
www.nlrb.gov/case/02–CA–039459 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.

Suzanne Sullivan and David Gribben, Esqs., for the Acting
General Counsel.
Scott Wich and Robert Sparer, Esqs. (Clifton, Budd &
DeMaria), of New York, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
MINDY E. LANDOW, Administrative Law Judge. Based on
charges filed by Sebastain Christopher (Christopher) in Case
02–CA–039459 and in Case 02–CA–040066 on August 26,
2009, and August 12, 2010, respectively, and by Nazmir
Alovic (Alovic) in Case 02–CA–039575 on November 10,
2009, an order consolidating complaint, consolidated complaint
and notice of hearing (complaint) issued on June 10, 2011. The
complaint alleges that Atelier Condominium and Cooper
Square Realty as joint employers (Atelier, CSR, and collective-
ly as Respondent) violated Section 8(a)(1)(3) and (4) of the Act
by: interrogating employees about their activities on behalf of
Local 32BJ, SEIU (Local 32BJ or the Union) and the union
activities of others, threatening employees with unspecified
reprisals if they supported the Union; discharging Alovic and
Christopher and filing and maintaining a baseless and retaliato-
ry lawsuit naming discharged employees, including Christo-
pher, as a defendant. Respondent filed an answer denying the
material allegations of the complaint and asserting certain af-
firmative defenses.1 A hearing was held before me on Novem-
ber 15–18, 2011, in New York, New York.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel3 and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Atelier maintains an office and principal place
of business at 635 West 42nd Street, New York, New York,
and operates a residential building condominium at that ad-
dress. Annually, Respondent Atelier derives gross revenues in
excess of $500,000 and purchases and receives at its 42nd
Street location goods and supplies, including fuel oil, valued in
excess of $50,000, directly from suppliers located outside the
State of New York. Respondent CSR maintains an office and
principal place of business at 6 East 43nd Street, and is en-
gaged in the operation of managing residential properties. At
all material times, Atelier and CSR have been parties to a con-
tract providing that CSR act as the managing agent for Atelier
at its building located at 635 West 42nd Street. Respondent
admits, and I find that Respondent Atelier has been an employ-
er engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. Respondent has also admitted, and I
find that the Local 32BJ is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
Atelier Condominium is a luxury high-rise building which
was developed by the Moinian Group as sponsor and opened
for occupancy in 2007. CSR provides the building with staff
1 In particular, Respondent asserts as follows: (1) the complaint fails
to state a claim upon which relief may be granted; (2) the charging
parties engaged in unprotected conduct; (3) the allegations in the com-
plaint are barred by laches; and (4) General Counsel’s pursuit of por-
tions of the complaint is contrary to Federal law and an abuse of pro-
cess.
2 The parties’ joint motion to admit Jt. Exh. 1, consisting of a series
of stipulations reached at the hearing, is hereby granted. In addition,
counsel for the Acting General Counsel’s unopposed motion, as set
forth at various points in his posthearing brief, to amend the transcript
primarily to correct the names of witnesses and other individuals men-
tioned in the record, is hereby granted.
3 Referred to the General Counsel.

976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and management services. The parties have stipulated that CSR
effectively recommends discipline of and supervises the build-
ing service employees at Atelier; that during the period from
March to July 2009 Atelier determined wage rates for employ-
ees at that location and that CSR and Atelier determine essen-
tial terms and conditions of employment and share control over
labor relations in the building.
Robert Moricone was selected to serve as Atelier’s resident
manager and he recruited both Christopher and Alovic, who
had worked with him at other building locations, to come to
work at the condominium. The two served primarily as door-
men, although Alovic also worked as concierge on Sundays.
Mehmedovic, who has worked for CSR since 2007, has served
as property manager at the Atelier since April 2008. Moricone
served as resident manager until his death in July 2009. In Feb-
ruary 2008, the Atelier board of managers (the board)4 was
formed and Daniel Neiditch has served as its president for the
past 5 years. Neiditch is also an owner of a condominium in
and rents a residential unit in the building. He operates a real
estate company, called River to River Real Estate, from an
office in the Atelier as well. This real estate company acts as
broker in purchases, sales, and rentals in the building.
CSR provides similar real estate management services to
numerous buildings and many of these facilities have contracts
with Local 32BJ. At some point in 2007, an assent agreement
was sent to the Atelier by the Realty Advisory Board on Labor
Relations (RAB), which represents employers in labor relations
matters and negotiates with Local 32BJ on their behalf. This
assent agreement was located by Mehmedovic in the office
files, although she offered no testimony about its significance.
The agreement, by its apparent terms, sets the wage rate for the
building superintendent and additionally appears to assent to
the terms of the Master Agreement between the RAB and Local
32BJ.5
Notwithstanding any apparent agreement with the RAB,
building service employees began organizing for Local 32BJ
shortly after they were hired. Local 32BJ filed unfair labor
practice charges against the Atelier, the Moinian Group, and
CSR and, in January 2008, these charges were settled pursuant
to an informal settlement agreement.6 Among other things, the
respondents there agreed to refrain from: recognizing Local
670, UFCW as the exclusive collective-bargaining representa-
tive of its employees and entering into a collective-bargaining
agreement with that union; denying Local 32BJ access to build-
ing service employees while providing such access to Local
4 At various times this body is also referred to in the record as the
“Board of Directors.”
5 Respondent sought to introduce in to evidence another document,
entitled “Application for Residential Membership” which Mehmedovic
claims to have also located in her office files. The General Counsel
objected on the basis that such a document would have been subject to
the subpoena duces tecum issued to Respondent, and had not been
produced. Mehmedovic could offer no testimony to authenticate this
document or explain its relevance to any issue regarding the representa-
tion of employees at the Atelier. Accordingly, I directed that it be
placed in the rejected exhibit file.
6 As the General Counsel notes, this informal settlement agreement
does not contain a nonadmission clause.
670; threatening employees with discharge and unspecified
reprisals for activities on behalf of and support for Local 32BJ;
promising employees benefits if they joined Local 670 and
assisting Local 670 in other ways, as outlined therein. The re-
spondent also agreed to withdraw and withhold recognition
from Local 670 unless that union represented an uncoerced
majority of building service employees; to cease giving effect
to its collective-bargaining agreement with Local 670 and to
provide Local 32BJ with the same access to employees provid-
ed to Local 670.
In May 2008, CSR received a notice from Local 32BJ that it
wanted to meet to discuss organizing the building service em-
ployees. CSR Vice President Marc Kotler forwarded this re-
quest to members of the Atelier board and recommended that
the request be forwarded to the RAB for their direction on how
to respond to the Union. Board member Jared Lacorte replied
as follows:

This is not unexpected and infact [sic] was fortunately budg-
eted for by Marc [Kotler] as 32BJ has higher compensation
costs. The employees are free to choose their union and we
should not stand in their way.

Kotler replied:

Yes, I have taken 32BJ rates and benefits into account in the
revised budget that I am working on and should be able to
distribute today. I would not recommend that the full Board
meet with the union representative. In my experience it is best
to work in small groups when meeting with them. You may
want to have one or two board members and myself meet
with the union representative in order to discuss this [sic] is-
sues at hand. We will then need to consult with the Realty
Advisory Board and provide them with what terms we would
like in place to benefit the condo and have the RAB craft and
negotiate these terms into the Assent Agreement with the un-
ion.

As reflected in the minutes from an Atelier board of manag-
ers meeting held on June 8, 2008, Kotler suggested that Board
President Neiditch meet with Local 32BJ representatives to
discuss an employee contract. Neiditch “inquired the status
with Local 670 since they were less expensive and funds would
be saved.” Kotler informed the board that “they were not inter-
ested,” and Neiditch agreed to meet with Local 32BJ.
As reflected in the minutes of a board meeting held in No-
vember 2008, Kotler inquired if the Board had decided on a
contract with Local 32BJ. Board member Jason Gohari 7 sug-
gested signing a contract with Local 670 as it was less expen-
sive and Kotler reported that Local 670 will not get involved
with the Atelier. The board the discussed current employee
wages and benefits and decided to hold off on signing a union
contract at that time.
The above-noted documents were the only two sets of
minutes produced by Respondent which were responsive to the
General Counsel’s subpoena for relevant documents.8 Under
7 Gohari was the sponsor’s representative on the board.
8 The General Counsel subpoenaed, in relevant part: “Copies of all
documents, including but not limited to emails, written correspondence,

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 977
questioning by the General Counsel, Dov Kerner, the custodian
of the records produced by Respondent, testified that he
searched the minute book maintained by Respondent and pro-
duced those minutes which referred to Local 32BJ. Thus, the
record before me contains no evidence of further discussion of
matters involving the Union at any subsequent meeting of the
Board.
The building service employees began organizing again for
Local 32BJ in March 2009. Alovic contacted Local 32BJ Rep-
resentative Kevin Starvis and complained that employees at the
building had been waiting 2 years for a union. Starvis told
Alovic that the prior cards were stale and he would provide
new authorization cards to distribute. Over the course of the
next 2 weeks, Alovic and Christopher both began soliciting
support among their coworkers by speaking about issues such
as pension, healthcare, better wages, and job security. Once
over 50 percent of the building service employees signed cards,
Christopher obtained from the Union and distributed a petition
to employees. The Union planned to present this petition to the
building’s board of managers. Thus, in the latter part of May,
Christopher solicited employees to sign a petition in support of
the Union.
On June 3, Union Vice President Kyle Bragg sent the fol-
lowing letter to the Atelier Board:

As you can see from the enclosed petition, the building
service workers employed at The Atelier, located at 635
W. 42 Street in Manhattan, are organizing with Local
32BJ of the Service Employees International Union.

We would like to meet with you to discuss a process for
determining the wishes of the employees. This is not a
demand for recognition.

The letter goes on to request that the Board contact him to
set up a meeting. Attached is a petition, signed by 13 employ-
ees, including Christopher and Alovic, which states the follow-
ing:

We the workers of the Atelier, at 635 West 42nd Street, de-
serve the same benefits as the vast majority of residential
building workers in New York City. We work hard to make
the Atelier a top quality residence but do not have any pen-
sion or 401(k) benefits. Our organizing efforts with SEIU Lo-
cal 32BJ are the result of our own free choice and we ask you
to respect that choice. We stand together in our desire for bet-
ter conditions.

As noted above, Respondent produced no minutes of the
board of managers which referenced or discussed this demand
for recognition although such documents would clearly be
within the scope of the subpoena duces tecum issued by the
General Counsel. Moreover, neither Neiditch nor Mehmedovic,
the two Employer representatives to testify here, offered any
testimony regarding any response Atelier or CSR may have had
to this petition or, in fact, any testimony about it at all. When
Mehmedovic was asked by Respondent’s counsel whether she
memoranda, notices, written minutes of meetings, and petitions that
refer to Local 32BJ, SEIU.” As noted above, only two sets of minutes
were produced.
was familiar with Local 32BJ she offered the following re-
sponse: “My husband is a member for the last 25 years. My
father was a member for many years . . . my brother, pretty
much I grew up with it. I went to their office. I go for medical,
dental, so I’m very familiar with them.” She also acknowl-
edged that CSR manages numerous buildings which have col-
lective bargaining agreements with the Union. From comments
made during Respondent’s opening statement and the parties’
joint stipulation entered into evidence after the record closed, it
appears that Respondent and Local 32BJ are now parties to a
collective-bargaining agreement and that this occurred at some
point in or after July 2009.
B. Alleged 8(a)(1) Violations
In the complaint, the General Counsel has alleged various
independent violations of Section 8(a)(1) of the Act. With re-
gard to Mehmedovic, it is alleged that in March she threatened
employees with discharge if they supported the Union, that in
late April she interrogated employees about their and other
employees’ support for the Union and in mid to late June inter-
rogated employees about their and other employees support for
the Union.
The complaint further alleges that in about March Neiditch
threatened employees with unspecified reprisals if they sup-
ported the union and interrogated employees about the Union
and about other employees’ support for the Union. It is also
alleged that on June 19 Moricone interrogated employees about
the Union and about other employee support for the Union.
C. Evidence Adduced Regarding Independent
8(A)(1) Violations
With one exception (discussed below), under questioning by
counsel for Respondent, both Mehmedovic and Neiditch gener-
ally denied having discussions of any sort about Local 32BJ or
any other union with employees at any relevant time or threat-
ening them in any fashion for supporting the Union. Thus,
Mehmedovic denied having any conversation with Alovic or
Alaj in 2009 regarding Local 32BJ. Likewise, she stated that
she did not speak with any employees regarding their support
for the Union in March 2009, April 2009, or June 2009. Nei-
ditch testified that he did not speak with either Christopher or
Alovic about Local 32BJ or unions in 2009. He spoke with no
other employees in 2009 regarding Local 32BJ. Respondent
further relies upon testimony adduced from employee witness-
es Lindsay Perez and Luis Lopez regarding the fact that neither
Mehmedovic nor Neiditch ever spoke to them about the Union.
Christopher testified that prior to the commencement of or-
ganizing in March 2009 he had two conversations with repre-
sentatives of building management about Local 32BJ. There
was also one conversation which took place after the organiz-
ing activity commenced.
Christopher testified that in about January 20099 Neiditch
told him that he needed his help after work, and the two went to
the nearby parking garage where Neiditch kept his car and
drove to a downtown location to assist an unnamed individual
move a television set. Neiditch told Christopher that he knew
9 All dates going forward are in 2009 unless otherwise indicated.

978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that he wanted a union and Christopher said he did. As Chris-
topher testified, Neiditch said it wasn’t about him, but that he
did not want a union and that Mehmedovic did not want one
either.
The next conversation testified to by Christopher also took
place prior to the organizing campaign. Christopher was at the
front desk and Neiditch came by and commented that he looked
sad. Christopher testified that he was in need of a union and
Neiditch told him, again, that it wasn’t about him and that
management did not want a union.
The third conversation occurred after Christopher signed a
union card. Neiditch asked Christopher if he wanted a union.
Christopher stated that he did because he needed a 401(k) plan
and a pension. Neiditch said it was about management, not
about him and that Mehmedovic did not want a union. Neiditch
additionally stated that management was trying to get employ-
ees a salary increase.
Alovic testified to three conversations with building man-
agement about the Union. The first took place in March 2009,
in the lobby. He was working as both concierge and doorman
as the concierge was running late. Neiditch came over and
asked Alovic if he had his business cards.10 Although there
were some in the drawer, Neiditch gave Alovic some more.
As Alovic testified on direct examination, Mehmedovic
came by shortly thereafter and accused Alovic of trying to
bring the union into the building. Neiditch, laughing, said he
didn’t think so and Alovic said it wasn’t him. Mehmedovic
then said, “Nic, listen to me, tell me the truth.” And Alovic
protested that he was. According to Alovic, Mehmedovic then
stated, “Nic, if you try to bring the union here, you will be
fired.” Alovic replied that he did not want to be fired.
Mehmedovic then replied, “I’m not saying I’d fire you, but I’m
saying if you get fired, don’t think the union [will] bring [you]
back in the building.” Neiditch cautioned Alovic to “be care-
ful.” Alovic asked what was wrong with bringing in the Union,
as it had already been 2 years. Then Neiditch asked if Christo-
pher was involved like in 32BJ like him and Alovic said he
didn’t know anything like that. Neiditch said he was just ask-
ing.11
During his cross-examination, Alovic was shown his pre-
trial affidavit and then asked whether it was true that
Mehmedovic had never told him that he would be fired.
Alovic’s initial response was as follows:

She said, if you try to bring the union in the building, don’t
think the union will bring you back in the building if you get
fired. I said, I don’t want to get fired. She said, if you get
fired. I said I don’t want to get fired. She said, don’t think the
union will bring you back in the building. If you get fired, the
union just want to make their money. That’s what she said.

10 Neiditch apparently asked employees to distribute his business
cards to potential sellers, renters or purchasers. If the distributed cards
produced business, he would compensate employees for their efforts.
11 According to Alovic, Neiditch also asked if employees were
working for an owner named Ben Haroosh, with whom Neiditch and
the Board were having a dispute over prohibited short-term rentals.
Neiditch stated that if employees were working for Haroosh, they
would be fired.
Alovic was asked again whether Mehmedovic had, in fact,
told him he would be fired, and Alovic replied: “Sabrina said,
you’re going to get fired, if you try to bring the union here in
the building.” Then, Alovic’s the relevant portion of Alovic’s
pretrial affidavit was read by Respondent’s counsel into the
record, as follows:

In or about March 2009, Dan approached me in the lobby.
Dan started to tell me that I should give his business cards to
tenants and he left cards at the front desk. Sabrina walked
over and told Dan that she thought that it was me who tried to
bring in the union. Dan said it wasn’t me. Sabrina said that
even if we bring in the union, we shouldn’t think that the un-
ion can bring us back if we get fired. I said that we didn’t
want to get fired. Sabrina said that she wasn’t saying that we
are going to get fired, but if we get fired, we shouldn’t think
that 32BJ will get our jobs back. Sabrina said that Local 32BJ
just wants to make money. Dan started to laugh, saying that
everything will be fine. Dan also asked me if I was involved
in the union. I said that I signed the card because we want to
have better benefits and good pay. Dan said that that would
cost a lot of money. Dan said that we have to be careful. I
said, okay. Dan asked if Sebastain is like me. I said I didn’t
know about Sebastain. Dan also asked if Sebastain is working
with another broker in the building. I said I didn’t know. Dan
said that if Sebastain or Lou is working for Ben Haroosh (2K)
and if they don’t help me, they will be out. Sabrina said they
will be out.

The second conversation testified to by Alovic took place in
late April with Mehmedovic. She again asked Alovic if he had
tried to bring the Union into the building. Alovic replied that he
did not know anything about it. Mehmedovic then asked who
had signed cards for the Union and again Alovic stated that he
did not know. Mehmedovic then repeated her questioning. He
remained quiet, and eventually Mehmedovic returned to her
office.
In June, Alovic was on his post as doorman. Mehmedovic
came in and asked him to get her coffee, which was something
he typically did several times during the week. Alovic went out
and returned with coffee for Mehmedovic. She asked Alovic if
he had signed the union petition, and he replied that he had.
Mehmedovic then started yelling, demanding to know who had
brought it into the facility. Alovic stated that he did not know
but he did remember signing it. He claimed to have forgotten
who had showed it to him. Mehmedovic replied that she will
see who signed it, and we will see what happens.
Lulzim Alaj (Lou Alovic), who is Alovic’s brother, is a cur-
rent employee of the Atelier. He was hired in January 2007 as a
concierge. He is a signatory to the union petition. Alaj testified
that in about February 2009 he was on duty at the front desk in
the building lobby. Neiditch and Mehmedovic questioned him.
Neiditch asked Alaj if he wanted the Union in the building and
Alaj replied that he did. Neiditch then asked why. Alaj stated
that employees wanted better benefits and a pension. Neiditch
then asked whether, if the building were to provide those bene-
fits to employees would, they not sign for Local 32BJ. Alaj
replied no, that the building employees work as hard as anyone.
Mehmedovic replied that the building employees worked hard-

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 979
er. Alaj stated that he replied that the employees don’t want
anything more of less than other Union represented employees
had.
Alaj testified to another conversation in early June 2009. He
was at his post and received a phone call from Mehmedovic.
Mehmedovic stated that she saw that the employees had signed
for the Union, and Alaj responded that they had. She asked him
who the ringleaders were and he replied he did not know. She
asked how had he signed and Alaj stated that the union repre-
sentative had been outside, asked if he wanted to join and he
then signed a card. Mehmedovic said it was weird that Alaj had
signed for a stranger, and Alaj replied that he had known him
to be a union representative. Mehmedovic then hung up the
phone.
Other employees, called by Respondent, testified in this pro-
ceeding as will be discussed below. Of relevance to this partic-
ular issue is that two of these employees, Luis Lopez and Lind-
say Perez denied that they were spoken to by Neiditch,
Mehmedovic or Moricone about Local 32BJ. Lofti Habib, an-
other employee who testified herein, was not asked whether
anyone from building management spoke to him about the
Union.
D. The Discharge of Nazmir (Nic) Alovic
1. Alovic’s prior discipline and disciplinary notices
As noted above, Alovic was recruited by Moricone to work
at the building from its inception. His disciplinary record was
apparently unvarnished until January 2009 when Alovic was
suspended for 3 days. In that incident, Mehmedovic accused
Alovic and the concierge on duty, Laura Qoku, of leaving the
lobby unattended.12 At the time Alovic was suspended, as he
admitted, Mehmedovic warned him, “next time, I fire you.”
A written warning dated January 28 was introduced into evi-
dence by the General Counsel. Signed by Moricone, it reads:

Nazmir left his post and went on break without being relieved
properly He had left the lobby unattended and put the security
of the building at risk. All employees are aware that the lobby
cannot be left unattended. Nazmir has been working as a
doorman for nearly five years and is aware of the protocol for
proper relief and knows that leaving his post is not allowed.

While Alovic acknowledges having been suspended on this
occasion, he denies having seen this warning at the time it was
purportedly issued to him, and although there is a line for em-
ployee signature, it is not signed.13
Mehmedovic testified that she initially had terminated
Alovic, who then went to Neiditch to complain. After Alovic
spoke with Neiditch the discharge was converted to a suspen-
sion. Mehmedovic claimed that Alovic stated that “he was
12 Alovic denies leaving the lobby unattended on that occasion.
13 A similar warning notice was prepared for Qoku, who was also
suspended for 3 days. This notice was not signed by her. She subse-
quently received warning notices on March 11 and 14 for, among other
things, leaving her post unattended without proper relief, and not clock-
ing in and out of work. Qoku was discharged on May 13 and her termi-
nation letter references these warnings in addition to other instances of
misconduct occurring on April 26, May 2, 8, 9, and 13, which will be
discussed in further detail below.
going to go there and was going to come back” and was yelling
and screaming. She told Neiditch that it was unacceptable, that
Alovic had had too many chances and was out of control, but
Neiditch said to give him one more chance because he was
handicapped.
In April 2009, an incident occurred where a tenant accused
Alovic of not properly attending to his duties and, as Alovic
testified, used profane language toward him. The tenant re-
ceived a delivery later that day and when Alovic called upstairs
to inform him it had arrived, the tenant again used profane
language. Mehmedovic questioned Alovic about it the follow-
ing day.
On April 6, an employee disciplinary report was prepared by
Mehmedovic. It states:

Nazmir was warned by both Robert Moricone, Resident
Manager and myself that if he continued to disrespect and ar-
gue with any homeowner/resident guest, vendor etc. he would
be terminated immediately.

The report prepared by Mehmedovic also notes the January
incident for which Alovic and Qoku were suspended and fur-
ther outlines that on March 18, Alovic received a verbal warn-
ing for unprofessional behavior and cursing in the mail room.
Again, Alovic claims that he never saw this warning notice
when he was employed at Atelier. He further testified that
Mehmedovic did not warn him that he could be terminated for
being disrespectful toward or arguing with home owners or
guests of vendors. He denied receiving a verbal warning in
March 2009 regarding his behavior in the mail room and also
denied cursing in the mailroom during that period of time. The
April 6 warning is not signed by Alovic.
Mehmedovic testified only that this document was an em-
ployee warning which was maintained in Alovic’s file in the
office. She offered no substantive testimony regarding any of
the additional infractions set forth in the disciplinary notice,
namely disrespectful conduct toward a homeowner, guest or
vendor or any purported unprofessional behavior or cursing in
the mailroom.
2. Alovic’s discharge
Approximately 2 weeks after the union petition was sent to
the Atelier board of managers, on June 19, Alovic reported to
his regular 7 a.m. to 3 p.m. shift. Lindsay Perez was the conci-
erge on duty. They had worked together in the past. As Alovic
testified, at noon or shortly thereafter the doorman and conci-
erge would relieve each other for their midday lunchbreaks
which usually lasted between 30 and 40 minutes.
On that day, as Alovic testified, at about 12:15 p.m. he told
Perez he would be going on his break, went to purchase lunch
and proceeded downstairs to the employee cafeteria. At about
12:25 p.m. Moricone entered the cafeteria and asked Alovic
what he was doing there. Alovic replied that he was having his
lunch. Moricone stated that Perez was repeatedly calling him
stating that she did not know where Alovic was. Alovic asked
Moricone, do you see me eating or do you see me playing?
Moricone acknowledged that Alovic was having lunch but
reiterated that the concierge did not know where he was. Mori-
cone then left the cafeteria.

980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At about 12:40 p.m. Alovic returned from his break and
went to the concierge desk to relieve Perez. She returned at
about 1:45 p.m. and Alovic returned to his post at the door. At
about 2 p.m. Moricone approached Alovic and stated that he
had worked a very long time for him, that he had seen some
cards in the cafeteria and asked Alovic if he had been the one
trying to bring in the Union. Alovic responded that he did not
know anything about it. Moricone persisted and asked Alovic if
he had signed the card. Alovic responded that he had. Moricone
then went from the front entrance to Mehmedovic’s office.
Some time thereafter, Moricone returned and informed
Alovic that he was discharged. As Alovic testified, Moricone
again asked him if he was the one who tried to bring in the
Union, and asked Alovic to confirm that that he had signed
cards. Alovic acknowledged that he had. Moricone then told
Alovic that he was sorry, that he worked with him for a long
time, but he should go home now—that he was fired.
On cross-examination Alovic first stated that the distribution
and collection of union cards began and ended in May, but then
stated that on June 18 he had left some cards on the table in the
employee cafeteria for employees to sign and return to him on
the following day. He could not recall whether the cards were
still there when he had lunch on the following day.
Respondent called two current employee witnesses, Lofti
Habib and Lindsay Perez, to testify as to the events leading to
Alovic’s discharge on June 19. According to Habib, he saw
Alovic in the cafeteria at approximately 1:45 to 2 p.m. during
the time he usually takes his coffeebreak. The two men did not
speak. That was initially all that Habib recounted about this
event. On cross-examination, Habib admitted he would not be
able to specifically identify other employees he might have
seen in the breakroom on any other particular day. Then, on
redirect examination, Respondent showed Habib a document
which, as the transcript states, was General Counsel’s Exhibit
5. The witness was asked whether he had seen this document
before and his answer was in the form of a question: “Have I
seen this before?” On that rather confusing note, Respondent’s
counsel directed the witness’ attention to June 19 and asked
whether anything unusual happened at the Atelier on that day.
Habib then stated that while he was having his coffee, Alovic
came in with a pizza box. Moricone came in and asked Alovic
what the f—k was he doing there right now. Then, Moricone
and Alovic got into a verbal dispute culminating in Moricone
ordering Alovic to report upstairs right away, to which Alovic
responded by throwing the pizza box and cursing at Mori-
cone.14
Perez testified that at about 12 p.m., Alovic disappeared
from his post, and she assumed that he was using the restroom.
Shortly afterward, she noticed that Alovic’s car, which was
parked out front, was gone. About 15 to 20 minutes later Mori-
14 There is ambiguity in the record as to what Habib was shown
which prompted him to tell this account of events. The exhibit in the
record which is marked as GC Exh. 5 is a subpoena duces tecum ad-
dressed to the custodian of the records of Atelier and CSR. I doubt
whether that document was the one shown to Habib. In any event, I am
unable to discern from the record what document he was shown which
prompted his recollection of events not reported during his direct ex-
amination.
cone came by and asked where Alovic was, and Perez replied
she thought he was in the restroom. She did not mention that
Alovic’s car was missing. It does not appear from the record
that Moricone made an attempt to contact Alovic at this time.
Perez then called Alovic herself, but he did not answer and she
did not leave a message. About 20 minutes later, an assistant
manager referred to in the record only as Ozey,15 came by the
front desk and asked for Alovic. Perez he was not there, and
then called Alovic again. Perez asked Ozey if Alovic was in the
breakroom and Ozey replied that he was not and then tried to
call Alovic himself.
After Alovic was missing for about 2 hours, Perez called
Neiditch and Mehmedovic. As Perez testified, Neiditch came
down to the front desk to wait for him. Then, at about 2 p.m.,
Alovic showed up at his post arriving via the back staircase
which led to the basement and the employee cafeteria. Alovic
appeared to be angry, and was slamming the desk. Neiditch
came back to the front desk and told Alovic to report to
Mehmedovic’s office. About 10 minutes later, Perez was called
to the office as well, and Alaj, who was cleaning the lobby at
the time, covered for her at the concierge desk.
Perez reported what had occurred with Alovic, returned to
her post and started to complete an incident report. Alovic
came out of Mehmedovic’s office and was angry. He told Perez
to mind her “f—king business.” Perez told him to calm down,
as three clients of Neiditch’s were at the front door. Alovic
returned to his post, but he walked back and forth between the
concierge desk and the door. At this point, Perez called
Mehmedovic and Moricone and said someone had to control
Alovic. After a while, Moricone arrived and took Alovic to the
backroom. Perez then completed her incident report, which
outlines the behavior described above. Perez testified that inci-
dent reports are completed when something happens in the
building that is out of the ordinary.
On cross-examination, Perez noted that the Atelier also
maintains a log book, which is a contemporaneous record of
what happens during a concierge’s shift. If an out of the ordi-
nary incident occurs it would be noted, and this is the case for
those circumstances where an incident report is warranted as
well. However, Perez was equivocal about whether she had
made any entries in the log book relating to the sequence of
events relating to Alovic’s alleged misconduct. Perez further
testified that she remained at her post for her entire 8-hour shift
without taking a break for a meal and that the incident report
was completed while she remained on continuous duty at the
concierge desk.16
Mehmedovic testified that she called Perez to her office with
Moricone and Ozey present, asked her what happened and
Perez explained that Alovic was verbally abusing her and
screaming in the lobby in front of guests. Later, Mehmedovic
had a meeting with Moricone, Ozey, and Alovic. Moricone was
very angry with Alovic for leaving without notifying anyone
15 Although Ozey is referred to as “assistant manager,” he is not al-
leged as a supervisor or agent of Respondent and no evidence of his
status as such was adduced or otherwise litigated at the hearing. He did
not testify herein.
16 The concierge may not eat while on duty at the front desk.

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 981
and for cursing and screaming in the lobby. According to
Mehmedovic this had not been the first time he had behaved in
such a fashion. Alovic had a card in his hand and said that he
was entitled to take a lunchbreak and that the union would
bring him back to work. Mehmedovic testified that she told
Alovic that he had had too many chances, it was over and that
no union would bring him back to work. Mehmedovic further
testified that Alovic was cursing and screaming during the
meeting and Ozey had to take him downstairs to settle down.
Mehmedovic testified that did not see Alovic further that day.
Mehmedovic testified that she spoke with Neiditch and told
him that she could not believe that Alovic was acting up again,
that Moricone was furious and was going to terminate him.
Neiditch said that they had to do what was best for the build-
ing.
Mehmedovic also recounted that after the incident in Janu-
ary, she wanted to terminate Alovic. She was disappointed in
him and told him that all he had to do was his work as a door-
man. According to Mehmedovic, Alovic went to Neiditch,
crying, and the termination was turned into a suspension.
Mehmedovic did not offer testimony to specifically rebut
Alovic’s contention that he was not shown either of the prior
written warnings which, as Mehmedovic testified, had been
maintained in his personnel file.
When asked about the events leading to Alovic’s discharge,
Neiditch testified that he received a telephone call from
Mehmedovic in which he learned that Perez had accused
Alovic of disappearing from his post for a certain amount of
time and that Alovic returned and cursed her out. During this
telephone call, Mehmedovic told him that Alovic was to be
fired. According to Neiditch, he asked Mehmedovic to give
Alovic another chance. Neiditch offered no testimony regard-
ing being called to the front desk by Perez and waiting for
Alovic to return, or directing him back to see Mehmedovic.
Although Neiditch testified that he met clients in the building
on that day, he did not testify that they told him of any unusual
occurrence in the lobby or that they were alarmed by the con-
duct of a building service employee while they waited for him.
Neiditch offered no testimony about any of Alovic’s prior
discipline and, in fact, testified that prior to his discharge had
had no involvement with Alovic’s conduct or performance in
the building.
Mehmedovic testified that Moricone sent her the following
email. Dated June 26, it outlines the circumstances of Alovic’s
discharge as follows:

On Friday, June 19th 2009, just before 12:00 pm Nazmir had
left his post without informing (Lindsey Perez) the concierge
on duty. I had asked Lindsey if she knew where Nick was and
she was not sure as she was retrieving keys from the key
closet when Nazmir had left his post. Lindsey had thought
that he may have went to use the lavatory but was not sure.
Nazmir was not present at his post for more than one hour.

I found Nazmir in the staff cafeteria speaking with other em-
ployees and not completely dressed in his uniform. Sabrina
the onsite property manager and I both had a discussion with
both employees to hear their interpretation of what occurred.
We also reinforced the importance of communication.

After our short meeting Lindsey called the management of-
fice and had explained that Nazmir was slamming the doors
at the concierge desk and had told her why don’t you keep
your FN mouth. I went to the lobby and witnessed his terrible
behavior. Lindsey was nervous and the 3 people sitting in the
lobby confirmed that he was acting worse before I arrived.

Nazmir continued to act out of line and continued to carry on
with hostility. I then asked him to get his belongings and
leave the building as he was terminated.
E. The Discharge of Sebastain Christopher
1. Christopher’s suspension
On the morning of June 22, a resident named Michael Buck-
ley approached Christopher, who was working at his post as
doorman at the time, and asked to be allowed access to the
basement. Christopher called Moricone, who was not present at
the facility. As Christopher testified, Moricone stated only that
Buckley had emailed him some 15 minutes prior and then hung
up the phone. Christopher told Buckley that neither Moricone
nor Mehmedovic were present at the time. Buckley then asked
Christopher to call handyman Habib and ask him to meet Buck-
ley in the basement. Habib stated that he was busy. After about
15 minutes, Buckley returned and said there was a leak in the
basement, so Christopher called Habib and asked him to meet
Buckley in the basement. Habib stated he would do so in a few
minutes, which he did. When Habib went to the basement,
Buckley, who was accompanied by others, 17 asked him to
open the so-called “pit.” As Habib testified, this is a room
which is not supposed to be open to outside contractors unless
one receives permission from management, in particular from
Mehmedovic or Neiditch. Habib testified that when Christo-
pher called him, he was under the impression that Christopher
had obtained permission to open the pit for Buckley.
Subsequently, Mehmedovic arrived at the facility and called
Christopher into her office. Moricone participated via speaker
phone. Moricone essentially asked Christopher to confirm that
he had instructed him to call Mehmedovic, and Christopher
replied that the only thing Moricone had said on the phone was
that he had received an email from Buckley some 15 minutes
earlier. Mehmedovic stated that she was going to discharge
Christopher and that he should go home. Christopher protested,
stating that the only thing he had done wrong was to call
Habib. Mehmedovic insisted that Christopher leave the build-
ing.
On his way out of the building, Christopher saw a tenant and
explained his situation and the tenant advised him to bring the
issue to the attention of CSR. So he went to their office and
spoke with Ben Kirschenbaum (Mr. Ben). Kirschenbaum ad-
vised Christopher to give Mehmedovic some time and then
discuss the incident with her. Christopher then returned to the
Atelier and Mehmedovic instructed him to return to work the
following day at which time they would discuss the matter with
Moricone.
The following day, June 23, Christopher returned to work
17 The record fails to establish who was accompanying Buckley on
this occasion.

982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and was at his post when Moricone summoned him to
Mehmedovic’s office. Habib was there as well. Moricone again
insisted that he had instructed Christopher to call Mehmedovic
and Christopher denied that, stating that the only thing Mori-
cone had said was that Buckley had emailed him earlier in the
morning. Habib protested that he was being blamed for any-
thing; and said that he had opened the pit but no work was
being done. Christopher stated that he did not tell Habib to
open the pit, but only to meet Buckley in the basement.18
After this discussion concluded, Mehmedovic suspended
both employees for 2 days. She told Christopher that he had not
listened when Moricone had instructed him to call her. She told
Christopher to return to the office to sign a suspension form.
Christopher initially resisted signing the form, and requested
that he receive a warning instead, as this was his first offense in
over 5 years of employment at the Atelier. As Christopher re-
counts it, Mehmedovic minimized the importance of the sus-
pension notice and based on that, he reluctantly signed the form
later that afternoon. After he signed the suspension notice,
Christopher told Habib that he was going to the Union to com-
plain, but Habib declined to go. On June 24, Christopher went
to the Union to complain about his suspension.
The suspension notice given to Christopher and signed by
both Christopher and Mehmedovic is as follows:

Failure to follow instructions on June 22, 2009 at 9:20 AM

Instructed Lofti Habib (handyman) to escort and provide ac-
cess to buildings [sic] ejector pit mechanical room for the
sponsors [sic] representative Michael Buckley who was with
outside contractor Corecoc, specifically after Sebastain was
notified by the Resident Manager, Robert Moricone via tele-
phone that he is not to provided [sic] access.

Sebastain was reminded that he is never to misdirect his
coworkers to doing something that was clearly against what
the Resident Manager instructed him to do in the first place.
Sebastain was informed that he is only to take direction from
Robert or myself not the sponsor’s representatives and out-
side vendors regarding building matters.

Sebastain knows exactly what the buildings [sic] guidelines
and procedures are pertaining to outside vendors accessing
the building’s mechanical rooms other than building staff. In
addition the contractor was not signed into the daily logbook
yet they were given access into the building without any in-
formation documented.

Sebastain expressed his thoughts that in his opinion he should
not be held accountable and tried to blame Lofti Habib for not
confirming with Robert before providing access. Robert has
stated that Sebastain was clearly given appropriate direction
from him during their telephone conversation.

I can confirm that no work was scheduled and no contractor is
allowed in the building unless it is scheduled accordingly and
proper liability insurance is given to management before
18 Christopher testified, without contradiction, that the basement
contains a number of facilities for the use of the building’s residents
and that a request to meet a tenant in the basement was not an unusual
occurrence.
work can take place.

As per our meeting today June 23, 2009 at 4pm regarding the
above incident with Moricone, Lofti Habib and myself Sebas-
tain was informed that he is not to disobey his superiors again
and if he would fail to follow instructions again that he would
be suspended without pay and could lead to terminating his
employment at Atelier.

Actions Taken: I support Robert Moricone’s decision and
agree that Sebastain be suspended without pay starting
Wednesday, June 24 2009 for 2 days and shall return to duty
on Sunday June 28th 2009.

As Christopher explained, without rebuttal, Wednesday and
Thursday were regular workdays for him and Friday and Satur-
day were typically his days off. That is why the memorandum
references his return to work on Sunday, as that would have
been the first day he was scheduled to work after the suspen-
sion.
2. Christopher’s discharge
On Saturday, June 27, Christopher returned to the building
to perform a scheduled side job for a resident named
Lisandro.19 Christopher had worked a number of such side jobs
previously, although it appears from his testimony that all other
side work he had done in the building had been performed at
the behest of Neiditch. On this occasion, Neiditch had recom-
mended Christopher to the resident with the caveat that the
work be performed on Christopher’s time off.20 According to
Christopher, the other building service employee recommended
by Neiditch was unavailable, so he enlisted the assistance of a
friend to help him with the move. When he arrived at the build-
ing, he stopped by the front desk where Perez was the conci-
erge on duty. He told her that he was going to apartment 12G to
do some moving. Perez called the tenant who authorized her to
send the men up. The tenant called for the service elevator and
when it failed to arrive after about 20 minutes, the tenant called
down to the front desk again. As Christopher testified, use of
the service elevator must be scheduled and approved by build-
ing management.
As porter Luis Lopez, called to testify by Respondent, re-
counted, he was working the freight elevator that day and the
front desk informed him that a tenant had a pickup on the 12th
floor. Christopher was assisting that tenant move from the 12th
to the 11th floor. On the following day, Lopez was called into a
meeting with Moricone and asked whether he knew that Chris-
topher had been suspended and not allowed in the building.
19 This individual is also referred to by other names such as “Locar-
do,” “Ricardo” and “Cassandra.” It is clear from the record that these
references are to the same tenant for whom Christopher performed
work.
20 Christopher produced an email addressed to the resident
(Lisandro) which had been sent by Neiditch, recommending him for the
job. Respondent argues that I cannot properly rely upon this evidence,
but I note that Neiditch admitted the substance of the email. In particu-
lar, Neiditch testified that Lisandro was an owner who had become a
renter and that Neiditch had recommended that Christopher and another
building service employee help him with moving from one apartment
to another on their off hours.

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 983
Lopez stated that he did not know. At Moricone’s direction,
Lopez prepared the following incident report:

I was running the elevator and I was called to pick up on the
12 Floor for 12G when I got there Sebastain was waiting
there with a sofa. He told me to take him to 11E. I asked the
front desk if it was OK to move 12G to 11E.

Respondent maintains that, in addition to the fact that Chris-
topher had been on suspension and not authorized to be in the
building, he used the freight elevator without securing the per-
mission of building management. Christopher maintains that
the tenant was responsible for obtaining such permission and
had assured him that he would do so. I further note that alt-
hough Perez testified, herein, she offered no testimony about
what occurred on this occasion.
On June 28, Christopher was at his post when Moricone ap-
proached him and instructed him to go home; that the building
did not need him anymore. Christopher testified that as he was
downstairs changing, Moricone came downstairs and told him
that although Habib had been suspended as well, he had not
gone to CSR or the Union.
Respondent introduced into evidence a letter documenting
Christopher’s termination. Dated June 29 and signed by
Mehmedovic, it reads in relevant part:

On June 24, 2009 you were suspended, without pay, for two
days for the incident that occurred on June 22, 2009. At that
time, you were informed that your insubordination will no
longer be tolerated. As I clearly stated when we spoke on
June 22, 209, you were required to report to myself in Rob-
ert’s absence personally regarding building business.

On June 27, 2009 you had the audacity during suspension to
come to the building on a non work related day without in-
forming nor receiving approval from the Resident Manager or
myself to take part in an in house transfer from unit 12G to
11E. Clearly knowing that employees are not permitted to
perform additional work other than assigned duties even dur-
ing their days off. All employees have been informed that
they are not to access the building to report to work for their
assigned duties. In addition all employees were reminded of
this policy during our last staff meeting that was held on June
2, 2009.

On June 28, 2009 Robert Moricone informed me that when
he questioned you as to why you blatantly went against build-
ings [sic] policy by coming to the building on Saturday June
27, 2009 to assist a homeowner with an unscheduled in house
move. According to Robert you did not produce a legitimate
explanation and showed no remorse regarding this matter.

On April 29, 2009 you did not attend a mandatory refresher
course held in cooper squares [sic] learning center. At no time
did you contact Robert Moricone, the Resident Manager, or
myself with an explanation as to why you were not able to at-
tend. Additionally, on April 29, 2009 you left your post to go
to a homeowners [sic] unit without approval and [were] seen
wandering the building on several different occasions. I per-
sonally spoke to you and reminded you that you are not to go
upstairs in the elevator and leave your post. In the event an
elderly or handicap[ped] person needed assistance you or the
Concierge on duty were informed to radio a porter for assis-
tance.

Both the Resident Manager and I have sat down and talked to
you on several occasions. We have explained what was ex-
pected of you. Your actions have clearly indicated that you
have no interested in retaining employment here at Atelier.

Your repeated insubordination and lack of dishonesty [sic]
has confirmed that you cannot be trusted as you are fully
aware that your duty is to entrust the safety of Atelier and its
homeowners. Your actions will no longer be tolerated and
therefore you are terminated effective immediately.

Christopher denied receiving this letter. With regard to the
additional two incidents referred to in the termination letter,
Christopher denied leaving his post unattended or receiving
discipline about it. With regard to the alleged failure to report
for training, Christopher stated that he had received permission
from Moricone and Mehmedovic to miss the training because
he had to attend a doctor’s appointment for his son.
Mehmedovic did not testify either of these alleged incidents on
April 29 or about her verbal warning to Christopher. She also
failed to offer testimony regarding any other verbal counseling
she may have issued to him on any other occasion, either by
herself or together with Moricone. Neiditch testified that Chris-
topher was discharged because he was suspended and returned
to the building while on suspension to do work. Neiditch main-
tained he had no involvement in the issue. He did not offer
testimony as to the other incidents referred to in Christopher’s
letter of termination.
F. The Allegedly Unlawful Lawsuit
1. Background
In early July 2009, a group of Atelier owners filed a lawsuit
against Neiditch, Mehmedovic, and other members of the Atel-
ier board of managers, CSR, and Neiditch’s real estate compa-
ny seeking to set aside, allegedly as ultra vires and product of
collusion and bad faith, the control and purported manipulation
of sales and leasing of the Atelier units. The complaint alleged
corruption, bribery, extortion and payoffs as part of the scheme
and demanded that the conduct be enjoined.
The same day the lawsuit was filed, Moricone committed su-
icide by a self-inflicted gunshot wound. Shortly thereafter,
postings regarding the alleged brokerage scheme and Mori-
cone’s suicide appeared on a website called “Atelierown-
ers.wordpress.com.” which claimed to be a “new networking
site created to help Atelier residents counter corruption.” An-
other post on the site was entitled “Atelier Building . . . site of
Corruption Mess and One Man Dead So Far.” These posts
(which are set forth in further detail below) discussed Mori-
cone’s suicide and the alleged corruption and other misdeeds
engaged in by Neiditch and Mehmedovic. On July 6–7, several
other anonymous posts were made on a website maintained by
Ning.Com which once again discussed the death of Moricone
and the subjects of the lawsuit filed on July 1.
On July 4, a series of emails including quotes from and links
to the websites were exchanged between Mehmedovic and
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other CSR representatives. In one message, Mehmedovic iden-
tifies the “sick people” responsible for the postings: “I think its
[sic] nick and ali jafari.” The email string ends with
Mehmedovic writing: “We need to act on this immediately!”
On July 8, Neiditch, using his River to River email address,
distributed this memorandum to the building residents:

Subject: FW: Important Message From Atelier Board
My fellow home owners,

It is very sad that I am writing in regard to a disturbing web-
site and emails that have been going around the building.
What is being written is libelous at best and is damaging to
the building’s name because the home page is public. The
lies/slander written hurt the reputation of the building, proper-
ty values, its workers and our residents with their despicable
actions. Nothing written has made any sense or has any truth
and I’m truly sorry it is out there and that it is hurting so many
people especially Robert’s family.

I know that this has been a horrible time for everyone in the
Atelier and the demeaning website—a couple owners created
along with former employees have led to more damage—
making an already sad time even harder. This despicable
website has come in a time of my friend/our beloved Robert’s
passing (coming out on the day of his death) in order to stir
propaganda to discredit Sabrina, Cooper Square, the board
and myself in order for those responsible to gain passage for
illegal business in our home. The people involved in creating
this site have been acting in illegal activities in the building
such as weekly/daily rentals, using private building infor-
mation (such as the emails people have received) and allow-
ing dangerous criminals to rent apartments in the building
without board approval. This has all been done with their in-
tentions for personal financial gain and the utter disregard for
the safety on us all. They will stop at nothing to turn the
building into a short term hotel.

As the board and management, we have a zero tolerance poli-
cy towards hotel-style rentals. We have been committed to
stopping these individuals and keeping our building safe and
free from danger. We have continuously caught these indi-
viduals and continually fine them. These owners and former
employees have most recently let a FBI wanted criminal in
the building, we are aware of the situation and working with
the FBI and local NYPD authorities to stop these individuals
from committing any further fraud or defamation within the
Atelier. One of the people involved Charlar Acar was arrested
today. Other arrests will follow in this ongoing investigation.
They have a frivolous lawsuit against the building to allow
hotel rentals in Atelier. They have used the private building
information they acquired to try and use the death of Robert
to discredit Sabrina, the board and myself with false horren-
dous accusations. The home owners involved Adrian Zaini
(owner 4L) who is disgruntled about not being elected to a
position on the board, Chrysanthe Nelson and Michael
Denktsis (owners of six units), Carl (former board member)
and Orly Ellner (owners of six units) (also have housed Char-
lar Acar and Ben Harush for the last 2 years and allowed
them to commit the illegal rental in the building). These own-
ers currently have $10,000.00 in illegal subletting fines be-
tween them plus $30,000+ in fines pending. They are the
primary culprits of the hotel rentals we have faced since the
buildings inception. The brokers Charlar Acar’s (arrested to-
day) and Ben Harush’s company is responsible for over 10
fines to owners for improper management. Former disgrun-
tled employees fired for helping this illegal scam operations,
are also involved and had been taking bribes to help facilitate
illegal rentals to take place for these home owners/brokers to
commit fraud and hotel stays. They did not consider the
harmful or damaging repercussions of their actions, which
caused criminals to be put in our homes and upon being
caught were terminated immediately.

We must be strong and move forward from this tragedy and
disturbing behavior as we are a family here at the Atelier. The
board, Sabrina, and the management team will continue
working hard to make sure that the Atelier continues to be a
wonderful home for all of our residents. We have lowered
rental application fees for all owners to make it easier to go
through the proper channels to make sure our building is safe.
All applications are approved with safety in mind and all ap-
plications are approved and evaluated equally. I have worked
hard for the position of the Atelier board president for two
consecutive years and the building has been extremely finan-
cially successful during my tenure. My years of property
management and brokerage experience have been a tremen-
dous benefit to our home’s values staying high and could
have easily have been another 10–15 percent lower from
where they currently are without a real estate professional
knowledge. The board and I have kept our building one step
ahead of the rental and sales competition and understand the
importance of amenities & activities which allow the building
to stay occupied. We also continually brand our building’s
name and image to preserve the stature and property integrity.
My being a real estate professional has also given me the abil-
ity to spot real estate fraud and other illegal broker activities.
We have caught numerous apartments doing illegal activities
with their units. The board, staff, Sabrina and I have personal-
ly caught them on our own personal free time to ensure all
our safety. This is what has been the cause of all these false
rumors and allegations: so the real fraudulent people can con-
tinue to do whatever they like to without any regard for any-
one else. I have a vested interest to all home owners to keep
prices high and common charges low. We are one of the only
buildings to ever reduce common charges in a NYC condo.
This rare occurrence has happened by the board’s countless
hours of hard work and continued efforts to cut costs, while
seeking out new and creative ways to save money. From our
energy initiatives, in-house training of staff to cut outside
vendor costs, and overall budget cuts we have managed to
keep what is important to the owners. At the same time we
have achieved the ability to add countless new creative amen-
ities and features to the building. Some great features have
been the BBQ, tennis court, bike room, and storage spaces to
name only a few. We have a very financially strong and solid
building and the financials are available for all home owners
to see and appreciate the work we have accomplished in a
ATELIER CONDOMINIUM & COOPER SQUARE REALTY 985
short amount of time. We have also made it a mission to have
many wonderful events and activities for home owners to en-
joy and create a family-friendly environment. We will contin-
ue to have art events, BBQ’s, holiday parties, children’s mov-
ie nights, bowling nights, and more. This is our home and we
cannot let a few horrendous people/owners ruin it for the rest
of us.

Moving forward in the future, the Board, Sabrina, and I will
continue to work hard. We will lower building costs, common
charges, and keep property values steady through this tough
economy. Security is our number one issue and will continue
to fight these owners/brokers who want hotel rentals at all
costs for our safety. We appreciate all the support of the hun-
dreds of owners who have emailed the board and me and we
will continue to make you proud of the hard work we put in.
We cannot control people making up lies and these false alle-
gations will be in the hand of the law.

The board, Sabrina and I are always available at anytime to
speak on matters and issues that arise. To contact the board
please email us at Atelierboard@gmail.com Or contact Sabri-
na at Sabrina.Mehmedovic@coopersquare.com. My heart
goes out to Robert’s family and our dear friend will always be
missed.

Regards,
Dan Neiditch

President
Atelier Condos

Thereafter, on July 29, an unverified complaint (index num-
ber 110783/2009) was filed against two residents of the Atelier
(one owner and one renter) and several internet service provid-
ers (Twitter, Wordpress.com, Ning.com, and Go Daddy.com)
for hosting the allegedly defamatory content. Also named as
defendants in the lawsuit were three former employees: Laura
Qoku, Blerta Behluli, and Christopher, as well as anonymous
defendants John Does 1 through 10 and Jane Does 1 through
10. The lawsuit alleged 15 counts of libel per se and 1 count of
tortuous interference with business relations. The complaint
states that it is an action alleging libel per se brought to redress
serious injury to the reputations of “Plaintiff Daniel Neiditch (a
condo building president), Sabrina Mehmedovic (the condo
building’s property manager) and the Estate of Robert E. Mori-
cone (the estate of the former condo Resident Manager). From
a campaign of false and defamatory statements . . . accusations
of the serious crimes of murder, bribery, extortion, illicit pay-
offs and corruption.”
Under the following section identifying “The Parties” to the
lawsuit, the plaintiffs were identified as follows:

Plaintiff Daniel Neiditch is an individual who is the President
of River 2 River Realty Inc. and the President of the Board
for the Atelier Condos Building and who maintains an office
at the Atelier Condos Building located at 635 West 42nd
Street, New York, New York 10036.

Plaintiff Sabrina Mehmedovic is an individual who is the
Property Manager at the Atelier Condos Building at located at
635 West 42nd Street, New York, New York 10036.

Plaintiff Estate of Robert E. Moricone Jr. is being adminis-
tered by his mother, Catherine Saliani, who resides on Long
Island, New York.

At this time, the attorneys of record were Nesenoff & Mil-
tenberg, LLP. Shortly after the lawsuit was filed, the alleged
defamatory statements were removed from the various web-
sites.
Atelier’s general counsel, Jeffrey Dweck, took over the
prosecution of the lawsuit in September 2009. Dweck is a gen-
eral business practitioner who practices property law and com-
mercial litigation. Dweck testified that he withdrew the com-
plaint against the various internet companies because they had
pointed the plaintiffs’ attention to a statute which protects in-
ternet service providers from such lawsuits. Dweck further
withdrew the claim against an individual defendant, Adrian
Zaini. In his testimony at trial, Dweck maintained that this was
because Zaini had filed a sworn statement claiming that he did
not have computer access, did not know how to use the inter-
net, and had not posted defamatory material on the internet. In
fact, through his attorneys, Zaini had filed a 29-page notice of
motion to dismiss the matter as to him, which highlights pur-
ported legal errors and insufficiency of the pleadings in the
lawsuit and requests summary judgment in his favor. Zainy’s
affidavit, submitted in connection with these pleadings asserts
that: he is not the author of any of the statements; he has never
posted anything on any of the websites named in the complaint
or any other website or blog naming Neiditch, Mehmedovic, or
Moricone; that he has not ever had user accounts for the named
websites and he is not the administrator, nor does he edit or
control the content of the named websites. Dweck admitted that
he did not want to spend time and money responding to Zainy’s
motion.
On February 26, 2010, the Acting General Counsel of the
NLRB issued a complaint against Respondent alleging that the
discharges of Christopher, Qoku, and Behluli were unlawful.21
Dweck testified that he attended two court conferences in
early 2010. In February, there were no appearances for any of
the defendants, and the court put the conference over until
March. In that subsequent conference with the judge assigned
to the matter, Dweck stated that he did not know if the individ-
ual defendants had filed appearances. The matter was then put
over until June 2010. One day prior to this scheduled confer-
ence, Dweck received a telephone call from an attorney pur-
porting to represent some of the defendants. The attorney re-
quested that Dweck allow him time to file an answer to the
complaint, and Dweck agreed to do so. The attorney, whose
name Dweck could not provide, represented that he would
attend the conference scheduled for the following day and ob-
tain an adjournment of the matter. It appears that this attorney
failed to keep his word and when Dweck called the court to
obtain the adjourned date, he was told that the lawsuit had been
taken off the calendar because no party had attended the con-
ference. Christopher, however, testified that he obtained notice
21 Qoku and Behluli were subsequently severed from this matter.
The complaint allegations were dismissed insofar as they pertained to
these individuals on September 3, 2010.

986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the conference and went to court. When the plaintiff failed to
appear the judge took the case off the calendar.
Corroborating Christopher’s account of events is an order
signed by Judge Debra James for case index number
110783/2009 dated June 3, 2010, which states the following:
“ORDERED that this action is DISMISSED pursuant to Rule
202.27 and plaintiffs’ attorney has not appeared and defendants
pro se SEBASTAIN CHRISTOPHER and LAURA QOKU
have appeared. It is the order of the court.” The order is signed
by both Christopher and Qoku.
As Dweck testified, he considered whether to attempt to re-
instate the original lawsuit, but decided that simply filing an-
other lawsuit would be less cumbersome, time-consuming and
costly. He was also running up against the expiration of the
statute of limitations for defamation, and the filing of the new
complaint would allow him to clean up the pleadings to remove
references to prior defendants who he no longer intended to
include in the cause of action. Thus, on June 8, Dweck filed a
new lawsuit (index number 150122/2010) with Neiditch and
Mehmedovic as plaintiffs naming Christopher, Qoku, Behluli,
and 10 John Does as defendants. Neiditch and Mehmedovic
are identified in the same fashion as in the original lawsuit, as
set forth above.22
The lawsuit, which seeks damages in the amount of $190
million ($12 million for each of the first 15 causes of action
and $10 million for the 16th, is predicated upon the following
allegations:

ALLEGATIONS COMMON TO ALL CAUSES OF
ACTION

9. The Atelier Condos Building at 635 West 42nd
Street in New York City has been a desirable residence in
Manhattan. The policy of the owners and management of
the Building, reflected in the building rules, has been to be
opposed to stays under 90 days, which still has been and is
relatively lenient because in many buildings in Manhattan,
the minimum lease term is for one year. In November
2008, it was decided by the Condo Board that no rental
would be allowed under 90 days in order to safeguard the
building’s reputation and maintain standards in the build-
ing.
10. Plaintiff Daniel Neiditch, as the President of the
Atelier Condos Building at 635 West 42nd Street in New
York City, and Plaintiff Sabrina Mehmedovic, as Property
Manager of the Atelier Condos Building, have diligently
exercised their respective responsibilities in the operations
of the 635 West 42nd Street building; and, in the course of
doing so, they have cracked down and enforced the Condo
Board’s decision not to allow renters for less than 90 days
in accordance with building rules. Plaintiff Daniel Nei-
ditch and Plaintiff Sabrina Mehmedovic also have cracked
down and enforced the building rules against occupants
engaging in business activities in the building. In these ef-
forts, Plaintiff Daniel Neiditch and Plaintiff Sabrina
Mehmedovic had the full working cooperation of Robert
22 The other building resident was also dropped as a defendant, but
the record does not establish why.
E. Moricone, Jr., the Resident Manager of the Atelier
Condos Building who had held that position many years.
These efforts, however, made unhappy certain owners,
who were desirous of renting their condo apartments for
less than 90 days and running businesses in the building.
These efforts also made unhappy certain now former em-
ployees, such as Defendants Laura Qoku and Blerta Beh-
luli, who were fired for neglecting their job duties.
11. In response to the salutary efforts of Plaintiff Dan-
iel Neiditch and Plaintiff Sabrina Mehmedovic to enforce
building rules, a number of web sites popped up that car-
ried posts and comments by Defendants Laura Qoku,
Blerta Behluli, Sebastain Christopher and John Does 1
through 10 who falsely, and without basis, accused Plain-
tiff Daniel Neiditch and Plaintiff Sabrina Mehmedovic of
criminal activity, including murder, bribery, corruption
and extortion. Such accusations constitute aggravated har-
assment in the second degree in violation of New York
Penal Law § 240.30. The websites were created through
Ning.com and Wordpress.com; and “urIs” operating as
masking sites maintained by GoDaddy.com forwarded
computer users to the aforesaid websites through
Ning.com and Wordpress.com. In addition, the same
comments were “twittered” via the service provided by
Twitter, Inc. and further forwarded by email to Atelier
Condos Building residents.
12. As stated above, the Resident Manager of the Atel-
ier Building at 635 West 42nd Street for many years was
one Robert E. Moricone, Jr. On July 1, 2009, Robert E.
Moricone,
Jr. tragically committed suicide by self inflicted gun-
shot wound. Plaintiff Daniel Neiditch, as the Condo Board
President, issued an announcement with “deepest regret”
to Atelier Condos Building residents that Robert E. Mori-
cone, Jr. had passed away at age 32, that our “heart and
prayers go out to his family” and that he “will be truly
missed always.”
13. The response to this appropriate announcement in-
cluded a post made, on information and belief, by Defend-
ants Laura Qoku, Blerta Behluli, Sebastain Christopher
and John Does 1 through 10 at atelierowners. word-
press.com by Defendant Wordpress.com under the head-
line” Atelier Building, . . ., site of Corruption Mess and
One Man Dead So Far” that accused Plaintiff Daniel Nei-
ditch and Plaintiff Sabrina Mehmedovic of “corruption,
bribery, extortion, payoffs, etc.” The post went on to state:

“Involved, said to include: Atelier Board President,
Daniel Neiditch, down to Super, Robt. & mangr, Sabrina
Mehmedovic. Leads to ONE DEAD!!!

“All the best & nicest Atelier Bldg employees are rou-
tinely instantly fIred, only the worst and most complicit
employees are retained.”

Atelier Board Pres. Daniel Neiditch runs a corrupt op-
eration.”

The post falsely continued:

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 987
“Wow! This just in: There was a heated closed-door
meeting between Sabrina, Dan & Robert.

“When they all came out, Robert looked so terribly
upset, no one had ever seen him that upset before.

“Robert kept mumbling, I can’t take this any more . . .
Many assume Robert was asked to do more corrupt cover-
up type things, lies, etc.

. . . .

“But, many say, these sort of lies, cover-ups, scams,
tyranny are all the norm for the corruption with Atelier
board pres. Daniel Neiditch.”

After quoting Plaintiff Daniel Neiditch’s announcement of
Robert Moricone’s death, the post stated:

“Is it laughable . . .? Or cryable? Many Atelier residents are
asking themselves.

. . . .

“The two faced lies from Daniel Neiditch (Pres., Atelier Con-
dos) and his Nazi-like paid staff like Sabrina Mehmedovic,
are just sickening.

“Many Atelier residents know what’s been going on for some
time & are demanding Criminal Charges be levied against
Daniel Neiditch, . . . Sabrina Mehmedovic, and a few other
conspirators.

“For the latest breaking news updates, follow us on Twitter at
http://twitter com/atelier corrupt.”

On information and belief, what was “twittered” were the
same false, defamatory statements; and masking sites main-
tained by GoDaddy.com identified above sent computer users
to the post described in this paragraph.

14. That same day, July 1, 2009, another post was made, on
information and belief, by Defendants Laura Qoku, Blerta
Behluli, Sebastain Christopher and John Does 1 through 10 at
atelierowners.wordpress.com by Defendant Wordpress.com
under the headline “New Networking Web Site Created to
Help Atelier Residents Counter Corruption,” stating, among
other things, that:

“It is still unclear at this point whether the death of the build-
ing’s Resident Manager, Robert Moricone, today was a mur-
der, a suicide, or something else altogether. However, rumors
are flying that Mr. Moricone’s death happened immediately
after a meeting with the building’s Board President, Daniel
Neiditch, and his “right-hand-man”, Sabrina Mehmedovic.”

“For the latest breaking news updates, follow us on Twitter at
http://twitter.comlatelier_corrupt.”

This statement was false. There was no lack of clarity to the
circumstances of Robert E. Moricone, Jr.’s suicide death; the
statement about lack of clarity and possible murder was made
to insinuate, falsely, that Plaintiffs Daniel Neiditch and Sabri-
na Mehmedovic were responsible for the death of Robert E.
Moricone, Jr. On information and belief, what was “twit-
tered” were the same false, defamatory statements; and mask-
ing sites maintained by GoDaddy.com identified above sent
computer users to the post described in this paragraph.

15. Meanwhile, in the days that followed on July 6-7, 2009, at
a site maintained by Ning.com, and further transmitted by
Twitter, Inc. and GoDaddy.com, the following false state-
ments were made, on information and belief, by Defendants
Laura Qoku, Blerta Behluli, Sebastain Christopher and John
Does 1 through 10:

“[Q]uestions are being raised and rumors are flying that Nei-
ditch and Sabrina Mehmedovic’s scandalous corruption has
finally led to it’s [sic] first real death.”

“It is so sad that people like Sabrina and Daniel think they can
play with people life’s Poor Robert had to deal with them and
look what happened to him. Don’t you people wonder why he
wanted [S]abrina in his apartment she was causeing [sic] him
pain pain [sic] he never felt before she’s the reason he’s
Dead.”

“[S]abrina and [D]aniel did nothing but steal the buildings
money and cause pain to people’s lives.”

“[S]abrina and [D]aniel drove Robert Moricone my very
close friend to his death.”

“[E]very employee who does not participate in Dan’s and Sa-
brina’s little crime syndicate—or who work here long enough
to “know too much”are routinely fired.”

“Daniel Neiditch is a CROOK he should be behind bars.”

“We need to retaliate against Daniel Neiditch and Sabrina
Mehmedovic. They killed Robert Moricone so now we
should get revenge.”

“[Y]es, he steals . . . Daniel Neiditch should be behind bars,
he is the biggest crook in the world, he bribed the front desk
with money all the time and threaten job security if they did
not send him clients who were looking to rent or buy. “

“[O]ne of Roberts close friends whose name will stay unsaid
was there when [S]abrina went up to his apartment hearing
Rob say “look what you did to me look where this is lead-
ing!”

“[I]t breaks my heart to know that his death may have been
caused by terrible, greedy people.”

“Some don’t like the word murder. I feel that you can call it
whatever you want to call it, but I strongly feel that Dan and
Sabrina and company are directly responsible for Robert’s
death. If they end up sued for $100,000,000 by Robert’s fami-
ly, that would not be a drop in the bucket toward bringing
poor Robert back. And if Dan and Sabrina and company are
capable of all of this, I believe that if under enough pressure
they are totally capable of murder. We already know that they
enter people’s apartments when they are not home, they re-
move property, they could just as easily plant something in
your apartment. Or just hide in your apartmet [sic] and wait
for you to get home. These are not petty criminals we’re deal-
ing with. Bernie Madeoff [sic] stole people’s money, but as
far as I know he didn’t enter people’s homes or murder any-
one. He was directly responsible for some suicides though,
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
wasn’t he.”

On information and belief, the same false, defamatory state-
ments were “twittered”; and masking sites maintained by
GoDaddy.com identified above sent computer users to the
post described in this paragraph.

16. By e-mail dated July 8, 2009, Plaintiff Daniel Neiditch
wrote to Ning.com complaining specifically of the last quoted
post in paragraph 23 above. Also, by letter dated July 8, 2009,
legal counsel to Plaintiffs Daniel Neiditch and Sabrina
Mehmedovic wrote to Ning.com:

“By this letter you are hereby on notice that the site contains
outright false statements of fact, knowingly made, which are
likely to damage those about whom the . . . statements are
made. As such, the website contains defamatory and libelous
remarks which could subject both those authoring such state-
ments and those aiding in its publication to severe civil liabil-
ity.

“We note with special severity, outright threats being made
against individuals and insinuations correlating the tragic
death of Robert Maricone [sic] with false allegations of the
Atelier’s board’s conduct.

. . . .

“As attorneys we value free speech, assembly and the benefits
of both, especially in a context that utilizes the gifts of modem
technology in such a manner as to help elicit as much discus-
sion, exchange and opinion as possible.

“We do not endorse the use of such technology irresponsibly
or to damage people, however.”

17. After the communications by Plaintiff Daniel Neiditch
and counsel sent to Defendant.Ning.com, the campaign of
harassing defamation continued. On July 9, 2009, at a site
maintained by Ning.com, and further transmitted by Twitter,
Inc. and GoDaddy.com, the following false statements were
made, on information and belief, by Defendants Laura Qoku,
Blerta Behluli, Sebastain Christopher and John Does 1
through 10:

“Maybe Robert wanted Sabrina to be there to watch him kill
himself so that she would be even more haunted by what she
has done to cause this, and she would have more vivid night-
mares about how her and Dan’s actions killed him this way.”

On information and belief, the same false, defamatory state-
ments were “twittered”; and masking sites maintained by
GoDaddy.com identified above sent computer users to the
post described in this paragraph.

There are no hard copies of any of the allegedly defamatory
posts attached to the complaint and none were otherwise pro-
duced by Neiditch, Mehmedovic, or Respondent; thus the only
evidence of the alleged libel and alleged interference with
business relations to support the lawsuit are those excerpts
from the websites and various posts, set forth above, which are
quoted in the unverified complaint, as supplemented by the
testimony at the instant hearing. It does not appear that there
has been any discovery commenced with regard to the lawsuit
or any further action taken in prosecution thereof.
On July 22, 2010, Christopher went to the courthouse and
received assistance in filing a pro se answer to the lawsuit pos-
ing a general denial, asserting the action is frivolous, that the
action is brought maliciously and requesting punitive damages
in the sum of $85 million.
Dweck testified that he represents Neiditch and Mehmedovic
in the lawsuit and that he did not charge nor did Atelier pay
him for services rendered in connection with the lawsuit. Under
questioning from the General Counsel it was established that at
the time Dweck was representing Neiditch and Mehmedovic in
the lawsuit over the alleged defamation, he was also represent-
ing Atelier and CSR in the present matter before the Board,
writing position letters and attending at least one settlement
conference. As Dweck explained, he was also counseling Nei-
ditch and Mehmedovic at the same time as they were repre-
sented by Nesenoff and Miltenberg, LLP, but those lawyers
were chosen to file the initial pleadings. He did not state why
that was the case.
Neiditch’s testimony about retaining counsel for the lawsuit
was as follows:

Q. [by counsel for Respondent] Did you formally re-
tain Mr. Miltenberg (sic)?
A. Yes
Q. Who pays or paid, if they were paid, Miltenberg?
A. Me personally
Q. And do you know who retained Jeffrey [Dweck] if
anyone?
A. Me
Q. And who pays or will pay –
A. Me
Q. Has the obligation to pay Jeffrey?
A. I do
Q. And just to be clear does Atelier Condominium pay
Jeffrey Dweck for this litigation?
A. Absolutely not.
Q. Has the Board in the past paid Jeffrey Dweck for
this litigation that we are talking about ?
A. No
Q. Has the Atelier Board paid Miltenberg for their liti-
gation of GC 13 or GC 9?
A. Absolutely not
Q. Why not?
A. Because it has no relevance to them
Q. Why do you say that.

. . . .

A. Because it’s a personal lawsuit that I brought, not
involving Atelier, the Square or anyone else, except the
other people involved in the party: Sabrina and Rob’s es-
tate.

Dweck failed to attribute any statement alleged to be defam-
atory in the newly-filed complaint to Christopher. Neiditch
testified that Christopher was named as a defendant in the law-
suit because: “we have reason to believe that he put up postings
on the site.” When asked what led to that conclusion, Neiditch
stated, “Well, there was a posting up there with his name on it.
ATELIER CONDOMINIUM & COOPER SQUARE REALTY 989
And just [illicit] stuff that he was saying.” When asked whether
he had a copy of any such document, Neiditch replied, “Not on
me, no.” When asked where it would be, he replied, “It would
have been on the site.” Thus, Neiditch failed to specifically
identify any such statement which might have appeared on any
website, or in the lawsuit as originally or subsequently filed,
which contained Christopher’s name or was otherwise en-
dorsed by him. From the text of the complaint, as set forth in
detail above, there does not appear to be any specific statement
which bears Christopher’s name or otherwise would be clearly
attributable to him. Christopher denied posting any material on
any of the named websites or anywhere else relating to Mori-
cone’s death or the conduct of business at Atelier.
F. Neiditch and Respondent’s Alleged Noncompliance
with Subpoenas and General Counsel’s Motions to
Preclude Testimony and to Seek Sanctions
A subpoena ad testificandum addressed to Neiditch was
served at the Atelier on October 3, 2011. The subpoena was
sent via registered mail, and upon delivery it was signed for at
the Atelier on October 5, 2011.23 No petition to revoke this
subpoena was filed.
Subsequently, the parties had a series of communications re-
garding the postponement of the hearing in this matter.24 The
parties agreed on a date of November 15, 2011. This date was
agreed to after Respondent’s counsel received confirmation
from his client that this date was agreeable. On November 10,
2011, Respondent requested a further postponement of the trial,
because Neiditch, a necessary witness, had plans to be out of
the country on November 15. The General Counsel opposed
the request and on November 10, 2011, Acting Associate Chief
Judge Steven Fish issued an order denying Respondent’s re-
quest for a further postponement, specifically noting that Nei-
ditch was under subpoena to testify and that no motion to quash
had been filed.
At the hearing, after the resolution of preliminary matters,
the General Counsel called Neiditch as its first witness. He was
not in attendance. At this time, in response to certain motions
made by counsel for the General Counsel, Respondent pointed
out that Neiditch’s name had not been spelled correctly on the
subpoena ad testificandum. 25 Respondent also claimed that it
could not identify the individual who had signed the postal
return receipt. Counsel for Respondent further represented for
the record that, after speaking with Neiditch, his understanding
was that Neiditch had not received the subpoena.26
Neiditch did attend the final day of hearing where, over the
objection of the General Counsel, he was allowed to testify on
behalf of the Respondent. In his posthearing brief, General
23 As General Counsel notes, the same individual signed the return
receipt for the other subpoenas which were served upon the custodian
of the records at the Atelier on the same day.
24 As the record reflects, there had been prior postponements due to
settlement discussions, religious holidays and the medical condition of
one of Respondent’s attorneys of record.
25 The subpoena was addressed to “Dan Neiditich.”
26 The record reflects that courtesy copies of the subpoena had been
sent to counsel for Respondent by regular and certified mail as well as
by email.
Counsel argues generally that Neiditch’s failure to comply with
its subpoena ad testificandum warrants a preclusion order strik-
ing his testimony and unspecified adverse inferences. Although
General Counsel cites authority to the effect that a preclusion
order would have been warranted under Board law, acting in
my discretion to fully develop the record, I allowed Neiditch to
testify and hereby reaffirm that ruling.27
As will be discussed below, I have however, drawn certain
inferences and conclusions from Neiditch’s initial failure to
comply with the subpoena ad testificandum.
On October 3, 2011, the General Counsel also served Re-
spondent with a subpoena duces tecum seeking documents
relevant to the lawsuits. Generally, the subpoena sought pro-
duction of all documents (1) relating to Respondent’s investiga-
tion of the alleged defamatory comments; (2) that would show
who authored or authorized the alleged defamatory comments;
(3) that will show the calculation of damages sought in the
complaint; and (4) that were filed in relation to the lawsuits.
The General Counsel has requested that I strike those portions
of Neiditch’s and Dweck’s testimony relating to the lawsuits
based on Respondent’s noncompliance with the subpoena.
Again, I decline to do so.
Respondent argues that it did not have and did not produce
documents responsive to the subpoena because the lawsuits
were brought by Neiditch and Mehmedovic in their individual
capacities, and not as agents of Respondent. 28 This contention
will be addressed below.
III. ANALYSIS AND CONCLUSIONS
A. General Credibility Principles
It is not unusual for an administrative law judge to credit
some but not all of any particular witnesses’ testimony, and this
is the case here. Moreover, though I may have credited one
version of events over another, that does not necessarily resolve
the issue of whether the account offered by the credited witness
is sufficient to show unlawful motivation or conduct or, alter-
natively, a defense to such allegations. Thus, the relative
strength of the credited evidence is another matter to consider.
As a general proposition, there are certain principles regard-
ing the assessment of credibility which guide my analysis here.
In particular, while uncontradicted testimony need not be au-
tomatically accepted, the absence of any rebuttal to specific
testimony is a significant factor to consider. “Although the
Board may dismiss or disregard uncontroverted testimony, it
may not do so without a detailed explanation.” Missouri Port-
land Cement Co. v. NLRB, 965 F.2d 217, 222 (7th Cir. 1992).
27 In this regard, the only specific argument claim of prejudice made
by the General Counsel in connection with Neiditch’s initial failure to
appear that it was precluded from being able to call him as its first
witness to confront him with a document which, as General Counsel
asserts, was not produced pursuant to a valid subpoena. This document
is an email where Neiditch recommends Christopher to perform side
work for Lisandro, as has been discussed above. I overruled the Re-
spondent’s objection to this document and have noted that Neiditch
admitted its content in his testimony.
28 There is one exception: an email chain showing various represent-
atives of Respondent commenting on the websites, which has been
discussed above.

990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In addition, it has been held that general denials will not ordi-
narily suffice to refute specific and detailed testimony from an
opposing side’s witness. See, e.g., Williamson Memorial Hos-
pital, 284 NLRB 37, 39 (1987); Emerson Electric Co. v. NLRB,
649 F.2d 589, 592 (8th Cir. 1981). In a similar vein, a pro-
fessed lack of recollection does not suffice as a rebuttal to de-
tailed and specific testimony. Indian Hills Care Center, 321
NLRB 144, 150 (1996). See also Precoat Metals, 341 NLRB
1137, 1150 (2004) (lack of specific recollection, general deni-
als and comparative vagueness is generally insufficient to rebut
more detailed testimony); Mercedes Benz of Orlando Park, 333
NLRB 1017, 1035 (2001), enfd. 309 F.3d 452 (7th Cir. 2002)
(“It is settled that general or ‘blanket’ denials by witnesses are
insufficient to refute specific and detailed testimony advanced
by the opposing side’s witness.”).
Moreover, the Board has further found that when a witness
fails to deny or only generally denies without further specificity
certain testimony from an opposing witness an adverse infer-
ence is warranted. LSF Transportation, Inc., 330 NLRB 1054,
1063 fn. 11 (2000); Asarco, Inc., 316 NLRB 636, 640 fn. 15
(1995), modified on other grounds 86 F.3d 1401 (5th Cir.
1996).
Bearing these general principles in mind, I have assessed the
credibility of the witnesses herein, as discussed below
B. Independent 8(a)(1) Allegations
Section 8(a)(1) of the Act makes it an unfair labor practice
“for an employer to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in Section 7.” In
considering the lawfulness of communications from an em-
ployer to employees, the Board applies the “objective standard
of whether the remark tends to interfere with the free exercise
of employee rights.” In determining whether an interrogation
violates Section 8(a)(1) of the Act, the Board considers
“whether under all the circumstances the interrogation reasona-
bly tends to restrain, coerce or interfere with rights guaranteed
by the Act.” Bloomfield Health Care Center, 352 NLRB 252
(2008), quoting Rossmore House, 269 NLRB 1176, 1178 fn. 20
(1984), enfd. sub nom. HERE Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985). This is an objective standard, and it does
not turn on whether the “employee in question was actually
intimidated.” Multi-Ad Services, 331 NLRB 1226, 1228 (2000),
enfd. 255 F.3d 363 (7th Cir. 2001); Miller Electric Pump &
Plumbing, 334 NLRB 824 (2001).
Among the factors that may be considered in making such an
analysis are the identity of the questioner, the place and method
of the interrogation, the background of the questioning, the
nature of the information sought, and whether the employee is
an open union supporter. Stevens Creek Chrysler Jeep Dodge,
357 NLRB 633 (2011) (incorporating by reference, in relevant
part 353 NLRB 1294, 1295 (2009)); See also Bourne v. NLRB,
332 F.2d 47, 48 (2d Cir. 1964) (relevant factors include the
background of the parties’ relationship, the nature of the infor-
mation sought, the identity of the questioner, the place and
method of interrogation and the truthfulness of the reply).
In his posthearing brief, has counsel for the General Counsel
identified several instances where unlawful conduct was al-
leged to have taken place. These involve allegedly unlawful
interrogations as well as instances where employees were
threatened with discharge and with unspecified reprisals for
supporting the Union.29
In arguing that the instances of alleged interrogation by Nei-
ditch or Mehmedovic were unlawful, the General Counsel con-
tends that the coercive aspect of these encounters are highlight-
ed by several factors including the fact that a number of these
conversations included statements of hostility toward unions or
union activities. Parts Depot, 332 NLRB 670, 673 (2000);
Cumberland Farms, Inc., 307 NLRB 1479 (1992); Advance
Waste System, 306 NLRB 1020 (1992). The General Counsel
further notes that it was the manager involved who initiated the
discussion of unionization, a further indication of coercive
conduct. Gloria Oil & Gas Co., 337 NLRB 1120, 1122 (2002);
Sundance Construction Management, 325 NLRB 1013(1998).
Counsel for the General Counsel further points to the fact that
in a number of instances the employees either did not answer or
did not give truthful replies and declined to discuss the activi-
ties of others. See Westwood Health Care Center, 330 NLRB
935, 940 (2000); Grass Valley Grocery Outlet, 338 NLRB 877
fn. 1 (2003); E-Z Recycling, 331 NLRB 950 at fn. 6 (2000).
Finally, the General Counsel contends that the totality of the
circumstances, including the number of instances of alleged
unlawful conduct viewed in light of other alleged unlawful
threats taken as a whole imbued each individual conversation
with heightened impact. Westwood Health Care, supra at 940.
See also Patagonia Baking Co., 515, 516 (2003) (otherwise
lawful interrogation occurring in the context of other unfair
labor practices deemed unlawful); Timsco, Inc., 819 F.2d 1173
(D.C. Cir. 1987) (cumulative effect of seven exchanges found
to be coercive).
As noted above, Respondent simply denies that any of these
exchanges took place. Thus, Respondent points to testimony,
elicited through guided questioning, that Mehmedovic denied
having any conversation with Alovic or Alaj in 2009 regarding
Local 32BJ or with any employees regarding their support for
the Union in March 2009, April 2009 or June 2009. Neiditch
did not speak with either Christopher or Alovic about Local
32BJ or unions in 2009. He spoke with no other employees in
29 In his posthearing brief, counsel for the General Counsel alleges
as unlawful certain promises of benefits made to employees. However,
this allegation was not set forth in the complaint; nor was it referred to
in the General Counsel’s opening statement. Counsel for the General
Counsel did not seek to amend the complaint at any time during the
hearing, and these additional allegations surfaced for the first time in
his post-hearing brief. I note that Respondent did not seek to question
Neiditch or Mehmedovic about whether they either impliedly or explic-
itly promised benefits to employees to encourage them to forego union-
ization. Under these circumstances I find that these new allegations
were not fully litigated and decline to consider them as independent
violations of the Act. To the extent I credit witness testimony that such
promises of benefits were made, however, I can and will consider them
as evidence of animus in light of my findings and conclusions regard-
ing the alleged 8(a)(3) violations here. See American Packaging Corp.,
311 NLRB 482 fn. 1 (1993) (“law is well-settled that conduct that
exhibits animus but that is not independently alleged to violate the Act
may be used to shed light on the motive for, or underlying character of,
other conduct that is alleged to violate the Act”); Meritor Automotive,
328 NLRB 813 (1999) (same).

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 991
2009 regarding Local 32BJ. Respondent further relies upon
testimony adduced from Perez and Lopez regarding the fact
that neither Mehmedovic nor Neiditch ever spoke to them
about the Union.
As a general matter, I find the broad denials issued by
Mehmedovic and Neiditch are not sufficiently convincing from
an evidentiary standpoint to rebut certain other specific testi-
mony proffered by the General Counsel’s witnesses. While I
am cognizant that this puts Respondent in the difficult position
of proving a negative, the General Counsel adduced sufficient
detail about various interactions such as timeframe, place, the
presence of other individuals and specific testimony as to what
was said which would have enabled Respondent’s clearly
skilled counsel to adduce factually-based denials. Certain of
these alleged interrogations involved both Mehmedovic and
Neiditch and here I find that they would have been in a position
to offer mutually corroborative substantive evidence to rebut
the testimony proffered by the witnesses for the General Coun-
sel, but failed to do so.
In addition, I found Mehmedovic to be evasive and dissem-
bling.30 Moreover, when she actually did offer affirmative tes-
timony regarding a discrete event it was presented in an exag-
gerated fashion that generally did not have the ring of truth.
As for Neiditch, I find his initial failure to appear as required
by the subpoena ad testificandum issued to him demonstrates a
lack of regard for Board processes which, in my view, detri-
mentally impacts upon his credibility. He, too, was needlessly
evasive on various occasions. For example, during his cross-
examination, the General Counsel sought to adduce evidence
that Neiditch was known at the Atelier, seemingly to rebut
Respondent’s suggestion that the minor misspelling of his last
name had adversely affected proper service of the subpoena.
When questioned whether he was known at the building, Nei-
ditch responded, “I don’t know what the definition of that is.
By who?” As there is no dispute that Neiditch lives, owns
property, runs a real estate brokerage business from an office at
and is president of the Board at the Atelier, such a response is
frivolous. In addition, whatever scant testimony Neiditch of-
fered regarding the basis for including Christopher in the law-
suit lacked specificity and at times seemed to border on palpa-
ble scorn. When asked whether he maintained a copy of the
post allegedly authored by Christopher, Neiditch replied, “Not
on me, no.”31 When asked whether he had written the letter to
30 By way of example, when asked if she was familiar with Local
32BJ, Mehmedovic pointed to the fact that family members had been
members of that union. In light of the fact that it is undisputed that the
Union has sought to represent the building service employees at the
Atelier for years, that CSR has numerous collective-bargaining agree-
ments with the Union and that the instant matter involves employees
allegedly fired for their support for Local 32BJ, I find this answer to be
nonresponsive and deceptive.
31 I would be hard-pressed to find this to be a serious or thoughtful
answer to a clearly germane question going directly to the issue of
whether there was some legitimate basis for naming Christopher as a
defendant in the lawsuit. In this regard, I note that while Respondent
has argued that it is not responsible for the lawsuit, a claim which will
be addressed below, Respondent has also raised a number of affirma-
tive and substantive defenses to the allegations of the complaint, which
such evidence would tend to support.
his fellow homeowners which is set forth above, Neiditch
hedged, responding, “[p]ossibly, but I don’t recall.” It was only
after being shown the letter in question that Neiditch was com-
pelled to acknowledge authorship of it. Under all the circum-
stances here, I cannot credit the apparent contention that Nei-
ditch would have failed to recall writing this very extensive
letter, about clearly serious and sensitive matters, to the resi-
dents of Atelier.
By contrast, I credit the testimony of Alaj regarding his in-
terrogations by both Neiditch and Mehmedovic, (as well as the
promise of benefits made to him should he forgo unionization).
As an initial matter, while I note that Alaj is Alovic’s brother, I
also have considered that he is a current employee who ap-
peared pursuant to subpoena. As the Board has acknowledged,
when a current employee offers testimony contrary to the inter-
ests of his or her employer, such testimony tends to be reliable.
As the Board has stated: “the testimony of current employees
which contradicts statements of their supervisors is likely to be
particularly reliable because these witnesses are testifying ad-
versely to their pecuniary interests . . . [t]hus, a witness’ status
as a current employee may be a significant factor, but it is one
among many which a judge utilizes in resolving credibility
issues.” Advocate South Suburban Hospital, 346 NLRB 209
fn. 1 (2006), citing Flexsteel Industries, 316 NLRB 745 (1995),
enfd. 83 F.3d 419 (5th Cir. 1996); International Automated
Machines, 285 NLRB 1122, 1123 (1987). See also Blooming-
ton-Normal Seating Co., 339 NLRB 191, 193 (2003) (when
employees testify contrary to the interests of their employer,
they subject themselves to the possibility of recrimination and
the perils of such are greater if such testimony should prove to
be false).
Aside from any such legal presumptions, however, I found
Alaj to demonstrate an impressive demeanor during his testi-
mony: he was direct and forthright and his testimony contained
specific details relating to his encounters with the members of
management at issue.
Thus, Alaj testified to two encounters, which are set forth
above. One took place in February or March 2009 while Alaj
was stationed at the front desk of the lobby. Both Neiditch and
Mehmedovic were present on this occasion and Neiditch asked
Alaj if he wanted the Union and pressed him to explain why. I
note that at this point in time Atelier management would have
had no way of knowing whether Alaj was a supporter of the
Union, and there is no evidence that he held himself out as one
until he responded to Neiditch’s questioning. I find that the
circumstances of this interrogation, conducted in tandem by the
Board president and the property manager—the most highly
ranked supervisor at the building—was sufficiently coercive to
be unlawful. Adding to the coercive atmosphere created by the
initial questioning was the fact that Neiditch persisted in prob-
ing whether Alaj would forgo unionization if the benefits at the
building were to improve.
In rejecting Respondent’s general denials, I also find that it
would be unlikely for Alaj to fabricate testimony regarding an
interaction with two members of management. Neiditch and
Mehmedovic could have provided specific, corroborative tes-
timony that no such interrogation took place. Their failure to do
so is telling.

992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The second instance of alleged interrogation involving Alaj
took place in June, apparently in response to the receipt of the
union petition. Mehmedovic called Alaj, told him she knew
that employees had signed for the Union and asked him who
the ringleaders were. She further inquired as to how he had
come to sign for the Union. Again, these questions, about
Alaj’s union activities and those of others, which Alaj sought to
avoid answering, coming from the most highly placed employ-
er representative at the facility and initiated by her, would rea-
sonably tend to restrain, coerce, or interfere employees with
rights guaranteed by the Act.
Accordingly, I find that by interrogating Alaj in about March
and again in June 2009 about his union activities and the union
activities of others, Respondent violated Section 8(a)(1) of the
Act.
I further credit Christopher’s testimony that on certain occa-
sions he was interrogated, particularly by Neiditch, about the
Union. In this regard, I found Christopher to be a generally
credible witness who exhibited a serious and thoughtful de-
meanor. In its posthearing brief, Respondent argues that during
his cross-examination Christopher demonstrated “evasive tes-
timony which was commented upon by Judge Landow as cast-
ing doubt over its veracity.” I have reviewed the cited portion
of the transcript carefully in light of Respondent’s contentions.
It is true that at that point I was obliged to give a specific in-
struction to Christopher to confine his answers to what was
asked of him and further advised him that his refusal to do so
could raise questions about his testimony. However, this was a
cautionary instruction to a lay witness, who exhibited a meas-
ure of emotional distress during his testimony and who ap-
peared to be reacting to the apparent implications of the ques-
tions asked of him rather than any sort of comment on his cred-
ibility in general.
I credit Christopher’s account of his January 2009 automo-
bile ride with Neiditch.32 Admittedly, this is prior to the onset
of organizing by employees as testified to by Christopher and
Alovic. However, I note that the Union had by then contacted
management seeking to meet to discuss the representation of
building service employees and that this matter had been the
subject of discussion in at least two board meetings. Thus, the
fact that the Union sought an entry into the Atelier was well
known to management.
Moreover, Christopher provided sufficient probative detail
about this encounter so that Neiditch could have been ques-
tioned about, and provided a specific denial to Christopher’s
assertions, which he failed to do. As for the substance of the
encounter, I find that the circumstances were coercive. Christo-
pher was not yet known as a prounion employee and he was
being questioned by the president of the board of managers of
(and stipulated supervisor at) the building. The questioning
took place in an enclosed automobile with no other individuals
32 Contrary to the suggestion of the General Counsel on brief, Chris-
topher testified that this took place in January, not March. While the
complaint does not allege that any interrogation of employees took
place in January, considering the record as a whole, I find that this
matter was fully litigated at the hearing. In particular, Respondent
adduced denials from Neiditch that he spoke with Christopher or
Alovic in 2009, and did not limit this inquiry to any specific month.
present and was coupled with an expression of antiunion sen-
timent. Under these circumstances, I find the interrogation was
coercive. See Advance Waste Systems, 306 NLRB 1020 (1992).
I further credit Christopher’s account of a subsequent inter-
rogation, which occurred sometime after he signed a Union
card. On this occasion, Neiditch, not only asked Christopher
whether he wanted a union, but also stated that Mehmedovic
did not want a union in the facility and further stated that man-
agement was trying to give employees a pay raise. Again, Nei-
ditch did not offer a specific denial to this detailed account of
their discussion. I find that even though Christopher had identi-
fied himself as a union supporter by that time, the ancillary
comments made by Neiditch, which impliedly offered benefits
should employees forgo unionization, contributed to the coer-
cive nature of this discussion sufficiently to place it within the
ambit of Section 8(a)(1) of the Act.
Accordingly, I find that on both of these occasion, Neiditch
unlawfully interrogated Christopher about his union activities
in violation of Section 8(a)(1).33
In addition, I generally rely on Alovic’s testimony of an en-
counter in the building lobby occurring in March where Nei-
ditch initially stopped by to question Alovic about his business
cards. Shortly after, Mehmedovic joined them and the conver-
sation shifted to the Union and Mehmedovic accused Alovic of
trying to bring the Union into the building, and told him that no
union could protect him should he be fired. Neiditch told
Alovic to “be careful.” Alovic was also asked about Christo-
pher’s support for the Union. Again, this is a situation where
two management officials, in a position to mutually corroborate
each other, offered no specific evidence to counter Alovic’s
detailed account of this conversation. I additionally find it in-
herently improbable that Alovic would have fabricated such a
story from whole cloth. The coercive nature of this interroga-
tion is enhanced by the fact that the two managers participated
in the questioning in tandem, Alovic was asked about the union
activities of other employees and that statements about the
union’s inability to protect employees from discipline were
made.
In addition, Neiditch’s admonition to Alovic to “be careful”
adds to the coercive nature of the foregoing exchange. The
Board has held that admonitions to an employee to “be careful”
or other similar words, in the context of a union organizing
campaign “convey[s] the threatening message that union activi-
ties would place an employee in jeopardy.” Gaetano & Associ-
ates, 344 NLRB 531, 534 (2005); St. Francis Medical Center,
340 NLRB 1370, 1383–1384 (2003) (supervisor’s statement to
employee to “be careful” in context of union activity held to be
unlawful); Jordan March Stores Corp., 317 NLRB 460, 462
(1995) (supervisor’s statement to “watch out” are unlawful
implied threats). Based on the foregoing, I find that Respondent
interrogated Alovic about his union activities and those of other
employees, and threatened him with unspecified reprisals for
33 On a third occasion testified to by Christopher, it appears that he
initiated the discussion of the Union in response to Neiditch’s remark
that he looked sad. By that time, Christopher had already declared his
support for the Union to Neiditch. Accordingly, I decline to find that
Neiditch coercively interrogated him on this occasion.

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 993
his support of the Union in violation of Section 8(a)(1) of the
Act.
However, I fail to conclude, as General Counsel contends,
that Mehmedovic specifically threatened Alovic with discharge
on this occasion. While Alovic testified on direct examination
that Mehmedovic stated that he would be fired for bringing in
the union, such a claim is not present in his pretrial affidavit.
Respondent argues that this discrepancy is sufficient to discred-
it Alovic entirely, but I do not agree with this assertion. I note
that the relevant portions of Alovic’s affidavit read into evi-
dence by Respondent, apart from this one omission, otherwise
corroborates his testimony about what was said to him on this
occasion. Although I think it is entirely possible that Alovic
may have understood Mehmedovic’s comments to be tanta-
mount to a threat of discharge, it is also possible that he elabo-
rated this incident in his subsequent recollection based upon
other comments Mehmedovic made at the time. In this regard, I
note that the General Counsel failed to obtain an explanation
from Alovic pertaining to the discrepancy between his testimo-
ny and his pretrial statement. In sum, I have concluded it is
appropriate to adopt the version of events as initially stated by
Alovic in his affidavit, which were made at a time far more
proximate to the events in question. Accordingly, I find that
Mehmedovic did not unlawfully threaten Alovic with dis-
charge, as alleged in the complaint.
Alovic further testified that in late April, he was in the lobby
with Mehmedovic. She asked him if he had been the one to
bring the Union into the building. When Alovic stated he did
not know anything about it, Mehmedovic persisted and asked
who had signed cards. Alovic again demurred. Mehmedovic
persisted and in the face of Alovic’s silence, eventually retreat-
ed to her office. There was no specific denial on Mehmedovic’s
part to any of the particular allegations made by Alovic as to
their encounter on this occasion. Again, I find that this persis-
tent interrogation by the resident manager as to the union activ-
ities of Alovic and other employees was in violation of Section
8(a)(1).
The record reflects that in June, after the Union sent its letter
with the employee petition attached, other violations of Section
8(a)(1) occurred. In particular, Mehmedovic asked Alovic
about the petition and when he acknowledged that he had
signed it, asked him who had brought it to the building. Alovic
denied knowing who had showed it to him. Mehmedovic stated
she will see who signed it and “we will see what happens.” I
find under the totality of the circumstances this exchange was
sufficiently coercive to constitute an unlawful interrogation.34
Alovic also testified to two interactions with Moricone in
June which will be discussed in conjunction with the analysis
of his discharge.
34 Citing Saint Jean Des Pres Restaurant, 279 NLRB 109, 118
(1986), counsel for the General Counsel asserts that Mehmedovic’s
comment constitutes a threat of unspecified reprisals. Had this been
alleged in the complaint, I would agree. While I make no independent
finding of a violation, which would be cumulative in any event, I find
that such comments constitute evidence of antiunion animus. Ameri-
can Packaging Corp., supra; Meritor Automotive, supra.
C. The Alleged Unlawful Discharges
1. The Wright Line standard
Allegations of discrimination which turn on Employer moti-
vation are analyzed under the framework set forth in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). To establish a viola-
tion of Section 8(a)(3) under Wright Line, General Counsel
must first show, by a preponderance of the evidence, that the
employee engaged in protected concerted activity, the employ-
er was aware of that activity, and the activity was a substantial
or motivating reason for the employer’s action. Wright Line,
supra; Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999).
Proof of an employer’s motive can be based upon direct evi-
dence or can be inferred from circumstantial evidence, based
on the record as a whole. Ronin Shipbuilding, 330 NLRB 464
(2000); Robert Orr/Sysco Food Services, 343 NLRB 1183
(2004); enfd. mem. 179 LRRM (BNA) 2954 (6th Cir. 2006);
Embassy Vacation Resorts, 340 NLRB 846, 848 (2003); The
Board has long held that where adverse action occurs shortly
after an employee has engaged in protected activity an infer-
ence of unlawful motive is raised. See McClendon Electrical
Services, 340 NLRB 613, fn. 6 (2003) (citing La Gloria Oil,
337 NLRB 1120 (2002), enfd. mem. 71 Fed Appx. 441 (5th
Cir. 2003). As part of its initial showing, the General Counsel
may offer proof that the employer’s reasons for the personnel
decision were pretextual. Pro-Spec Painting, Inc., 339 NLRB
946, 949 (2003); see also Laro Maintenance Corp. v. NLRB, 56
F.3d 224, 229 (D. C. Cir. 1995); Real Foods Co., 350 NLRB
309, 312 fn. 17 (2007) (unlawful motivation demonstrated not
only by direct, but by circumstantial evidence such as timing,
disparate or inconsistent treatment, expressed hostility, depar-
ture from past practice and shifting or pretextual reasons being
offered for the action). In addition, proof of an employer’s
animus may be based upon other circumstantial evidence, such
as the employer’s contemporaneous commission of other unfair
labor practices. Amptech, Inc., 342 NLRB 1131, 1135 (2004).
Once the General Counsel establishes its prima facie case,
the burden of persuasion then shifts to the employer to
“demonstrate that the same action would have taken place even
in the absence of the protected conduct.” Septix Waste, Inc.,
346 NLRB 494, 496 (2006); Williamette Industries, 341 NLRB
560, 563 (2004); Wright Line, supra. To meet its Wright Line
burden, “[a]n employer cannot simply present a legitimate
reason for its action but must persuade by a preponderance of
the evidence that the same action would have taken place even
in the absence of the protected activity.” W.F. Bolin Co., 311
NLRB 1118, 1119 (1993), petition for review denied 70 F.3d
863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996).
See also Manno Electric, Inc., 321 NLRB 278, 280 fn. 12
(1996).
2. Application of the Wright Line standards
I begin here with a general discussion of the General Coun-
sel’s prima facie case as relates to both Alovic and Christopher
and will then analyze the circumstances surrounding their dis-
charges individually.
As has been discussed above, the General Counsel has ad-
duced evidence of Alovic’s and Christopher’s activities in sup-

994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
port of Local 32BJ. Alovic and Christopher were the two indi-
viduals who made contact with the Union and solicited the
support of their coworkers. Alovic distributed, and both he and
Christopher collected authorization cards and Christopher ob-
tained employee signatures for the Union’s petition. I have
credited Christopher’s testimony that, as early as January, he
told Neiditch that he supported the Union. I find that
Mehmedovic’s interrogations of Alovic tend to suggest that she
thought he was involved as well. Neiditch also admonished
Alovic to “be careful.” I further note that that neither
Mehmedovic nor Neiditch denied knowledge of the Union
activities undertaken by these employees.35
And certainly, once the petition was presented to the Board
of Managers in early June, Respondent was clearly aware that
both Alovic and Christopher supported Local 32BJ. In re-
sponse, Mehmedovic confronted Alovic demanding to know
who had brought the petition to the facility, assuring him she
will find out who had done so and that “we will see what hap-
pens.” Mehmedovic also demanded that Alaj tell her who the
ringleaders were.
The General Counsel has also adduced evidence of animus
toward these employees’ organizing activities. I rely in part on
the history of Respondent’s support for Local 670, notes of
minutes in which Board members express a preference for
Local 670 as opposed to Local 32BJ and the credited evidence
of comments made by Neiditch to Christopher about manage-
ment’s preference that there not be a union at the facility. In
particular Neiditch told Christopher that management did not
want a union and impliedly promised him a raise if he were to
forego the Union. As discussed in further detail above, there
were repeated interrogations of Alaj, Alovic, and Christopher
by Mehmedovic and Neiditch both before and after the Union
sent its petition to the board of managers. These independent
8(a)(1) violations constitute evidence of animus. See Austal
USA, LLC, 356 NLRB 363, 363–364 (2010).
Moreover, it cannot escape notice that both Alovic and
Christopher were discharged shortly after the presentation of
the Union’s petition to the board of managers. Timing of an
employer’s action has long been considered as evidence of
unlawful motive. Manorcare Heath Services–Easton, 356
NLRB 202, 204, 227 (2010), enfd. 661 F.3d 1139 (D.C. Cir.
2011) (discipline of employee “just days” after initial public
support for the union indicative of unlawful motivation); La
Gloria Oil & Gas Co., 337 NLRB 1120, 1124 (2002); How-
ard’s Sheet Metal, Inc., 333 NLRB 361 (2001). In this regard, I
note that both Alovic and Christopher were long-term employ-
ees of the Atelier, who had been specifically recruited to work
there by Moricone, who clearly was familiar with their work
history.
Respondent attempts to rebut this evidence by arguing that,
had Alovic and Christopher actually been fired for their Union
35 Neither Mehmedovic nor Neiditch testified about the Union’s
June petition, and it appears from the scant records produced by Re-
spondent pursuant to subpoena that there was no discussion about it in
any subsequent meeting of the Board of Managers. I must note that I
question whether this would have been the case, as it seems to me to be
more likely than not that there would have been some discussion of
such matters at a meeting of the Board.
activities, the “next logical and expected step would have been
for Local 32BJ to file a new unfair labor practice charge, as
they had when their earlier organizing campaign had been al-
legedly impaired.” Respondent further argues:” [w]ith the set-
tlement agreement obtained by Local 32BJ, signed cards from
the majority of the workforce and the discharge of the two
allegedly lead organizers the pursuit of injunctive relief and a
bargaining order should have been a virtual certainty.” Re-
spondent thus argues that I infer from this failure to take action
that Local 32BJ viewed the discharges of Alovic and Christo-
pher as legitimate.
I decline to draw the conclusion Respondent suggests from
such a categorical negative implication. There is nothing in the
record to support these assertions, and such speculation in the
absence of evidentiary support is unwarranted. I further note
that, whatever opinion Local 32BJ may have regarding the
discharges, Alovic and Christopher each have individual rights
under the Act to seek an investigation of their claims and re-
dress before the Board. The determinative factor here is not
what Local 32BJ may believe or not believe or whether, as
Respondent suggests, the Union slept on its rights, but what the
probative and credible evidence adduced at the hearing estab-
lishes.
Respondent further suggests that the activities of the Atelier
Board of Managers rebut any implication of anti-union animus.
Respondent relies on the fact that emails sent in May 2008
indicate that the costs of a union contract with Local 32BJ had
already been taken into account in the building’s budget by
CSR (and Kotler in particular). However the minutes of the
June 2008 meeting of the Board also establish that when Kotler
suggested that Neiditch meet with Local 32BJ, Neiditch re-
sponded by stating that Local 670 would be less expensive for
the building. It was only when he was informed that Local 670
would not be interested in the Atelier that Neiditch agreed to
meet with Local 32BJ. In fact, there is no evidence that he ever
did so. Then, in the November 2008 Board meeting, when Ko-
tler inquired as to the status of a contract with Local 32BJ,
Board member Gohari again brought up Local 670, suggesting
a contract with that union as it would be less expensive. Again,
Kotler was obliged to explain that Local 670 will not get in-
volved at the Atelier. The Board then discussed current em-
ployee wages and benefits and decided to hold off on signing a
contract at that time. Thus, viewing the evidence in the light
most favorable to the Respondent, it appears that while Kotler,
and quite possibly CSR, accepted the reality that Local 32BJ
was a force that would have to be reckoned with, the Atelier
Board members resisted dealing with the Union and decided to
defer doing so, primarily for financial reasons.
To the extent Respondent attempts to argue that evidence of
animus is undercut by the fact that other employees testified
that they were not spoken to about the Union or that other sig-
natories to the petition were not disciplined or discharged, such
arguments are unpersuasive. The Board has long recognized
that a failure to retaliate against all who engage in protected
conduct does not preclude a finding of unlawful motivation as
to others. See Volair Contractors, Inc., 341 NLRB 673, 676 fn.
11 (2001). Moreover, here it is unrebutted that Alovic and
Christopher took a preeminent role in organizing on behalf of

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 995
Local 32BJ.
Accordingly, I conclude that the General Counsel has estab-
lished the elements of a prima facie case as to union activity,
employer knowledge and animus toward Alovic and Christo-
pher’s protected conduct. Under Wright Line, the burden now
shifts to the Respondent to prove, by a preponderance of the
evidence, that it would have discharged these employees not-
withstanding their protected conduct.
3. Alovic
Respondent urges that I discredit Alovic’s “decidedly unique
accounting” of his activities on June 19, which ultimately led to
his discharge. In this regard, Respondent points to the purport-
ed inconsistencies between Alovic’s testimony at the hearing
and that which was provided in his affidavit to the NLRB dur-
ing its investigation of his unfair labor practice charge.36
Respondent also points to certain inconsistencies in Alovic’s
testimony at the hearing. In particular, Respondent contends
that Alovic’s testimony, adduced on cross examination, that he
left union cards in the employee cafeteria on the evening of
June 18 for employees to sign and return to him the next day
(and which were seen by Moricone) is counter to his testimony
that the efforts to collect union cards ceased in early May 2009.
Thus, as Respondent alleges, Alovic’s testimony that he was
leaving cards for employees in June should be discredited, as
should his account of what Moricone told him. Respondent
further argues that Alovic’s testimony as to the conversation he
had with Perez upon his return from the employee cafeteria is
not worthy of credit. While Alovic testified that he told Perez
he was going on his break prior to leaving his post, on his re-
turn he failed to inquire why Perez was repeatedly asking about
his whereabouts. Respondent argues that Perez’s testimony
should be credited, and that her account of events is corrobo-
rated by the incident report she wrote contemporaneously to the
events in question.
In urging that I discredit Alovic, Respondent further points
to Habib’s testimony that he saw Alovic in the employee cafe-
teria at approximately 1:45 or 2 p.m. on June 19 and that
Alovic engaged in a verbal altercation with Moricone which
culminated in his cursing at Moricone and throwing food in the
cafeteria.
In short, Respondent argues that the bulk of the credible evi-
dence shows that Alovic was discharged for engaging in offen-
sive, disruptive and aggressive behavior in the building lobby,
including telling Perez to “mind your own fucking business,”
thus intimidating both Perez and three clients who were waiting
to see Neiditch. Respondent further contends that Alovic had
previously been warned about similar conduct in the past and
had been informed that future misconduct would result in his
termination. As Respondent argues, there is no credible evi-
dence which links his discharge to any union activity.
In arguing that there is insufficient probative evidence to
meet Respondent’s burden under Wright Line, General Counsel
relies on the version of events reported by Alovic: that there
was a protocol by which the doorman and concierge would
36 As noted above, the only inconsistencies in the record adduced by
Respondent in this regard concern Alovic’s testimony that
Mehmedovic expressly threatened him with discharge.
relieve each other for meal breaks; that Alovic followed this
protocol on the day in question; that Moricone came to the
employee cafeteria at about 12:25 p.m. complaining that Perez
kept calling him asking for Alovic’s whereabouts and that,
upon being informed that Alovic was taking his lunch break,
Moricone said “OK” and left the cafeteria.
Later that afternoon, at about 2 p.m., after Perez had returned
from her break and Alovic returned to the door, Moricone came
to him and stated that Alovic had worked for him a long time,
that he had seen cards in the cafeteria, and asked him if he was
the one trying to bring in the Union. Alovic claimed not to
know anything about it, but Moricone persisted asking if he
was the one who signed the card. Alovic admitted he had, and
Moricone then went to Mehmedovic’s office. Moricone then
came out shortly thereafter and discharged Alovic, making
reference to his support for the Union.
Although, as discussed above, I have credited certain aspects
of Alovic’s testimony, I find that his account of events leading
to his discharge is inherently unlikely, and the General Counsel
has failed to adduce sufficient evidence to establish otherwise
or explain the improbabilities. As Respondent has noted, the
signing of authorization cards for the Union had been conclud-
ed the prior month. Alovic failed to explain and General Coun-
sel fails to offer any reason as to why Alovic or anyone else
would be leaving cards for employees in the employee cafeteria
at this point in time. In this regard, I note that earlier in his
cross-examination, Alovic testified that he spoke with employ-
ees for about 2 weeks about signing cards, that it continued to
May 2009 and that he was then done. In addition, I do not think
inherently likely any employee would have just left the Union
cards sitting on the table, in the open, in an area where they
would surely have been seen by Moricone and possibly by
other supervisory personnel. By June 19, the Union petition
had been delivered to the Atelier. Alovic’s name, along with
others, was listed. There would have been no reason for Mori-
cone to have extensively interrogated Alovic on this occasion
as to whether he had signed a Union card when his support for
the Union would have been apparent.37 Thus, I fail to credit
Alovic’s version of events and conclude, as Respondent sug-
gests, that he engaged in some misconduct on the day in ques-
tion, and is trying to conceal that. This does not end the in-
quiry, however, because Respondent has the burden of estab-
lishing, by a preponderance of credible evidence, that not only
did Alovic engage in misconduct, but that it would have fired
him for this misconduct absent his union or other protected
activities.
I begin first with a discussion of Alovic’s prior discipline.
As noted above, Alovic testified that his only prior discipline
was a 3-day suspension in January when both he and Qoku
were accused of abandoning their posts. Respondent relies on
Alovic’s admission that Mehmedovic had warned him that he
would be fired for subsequent infractions, but I do not find this
37 For the foregoing reasons I decline to find that Moricone unlaw-
fully interrogated Alovic about his union activities and the union activi-
ties of others. As there is no other evidence that Moricone interrogated
any other employee about the Union, I recommend dismissal of these
allegations of the complaint.

996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
necessarily dispositive. As I have noted above, Mehmedovic
tends to speak in exaggerated terms. Moreover, the disciplinary
records introduced into evidence by the General Counsel show
warnings to employees for various infractions which purport to
be so-called “final warnings” intended to result in serious dis-
cipline upon further violations, but which in actuality did not
result in suspension or termination upon the next event.38 Thus,
it appears from the record that Respondent’s pattern and prac-
tice of disciplining employees is somewhat arbitrary and nei-
ther Mehmedovic nor Neiditch offered any evidence to rebut
this conclusion.
I credit Alovic’s testimony that he never saw the April 6 dis-
ciplinary notice prepared by Mehmedovic. It is not signed by
him, and I note that as demonstrated by the other disciplinary
notices in the record, and as Christopher’s testimony reflects,
Respondent generally made a practice of having employees
sign such notices when they were administered. The vast ma-
jority of employee write ups in the record before me are signed
by the employees to whom they were issued (GC Exhs. 21, 24,
25, 26). I also note that Mehmedovic failed to offer any testi-
mony about this warning, or any specific testimony about the
misconduct which culminated in her preparation of the April 6
disciplinary notice notwithstanding the fact that it was written
and signed by her. Her only comment was that it had been
maintained in Alovic’s personnel file. Again, as the manager
who actually wrote the warning, I find that Mehmedovic would
have been in the best position to explain the underlying events
or misconduct giving rise to such, and find such an omission
and her otherwise nonspecific testimony fails to sufficiently
rebut and actually tends to support Alovic’s version of events.
As has been noted above, a witnesses’ failure to provide specif-
ic testimony about such disputed matters will support an infer-
ence that such testimony, if truthful would not support the pro-
pounded version of events. See LSF Transportation, supra at
1063 fn. 11; Asarco, supra at 640 fn. 15. Moreover, here
Mehmedovic failed to offer any specific evidence to show that
Alovic had a history of misconduct, as Respondent has alleged.
As for Alovic’s alleged misconduct on the day of his dis-
charge, Respondent relies largely on Perez’s account of events
and her incident report. Indeed, Perez’s account is quite de-
tailed. It is, however, inherently improbable in some respects
38 For example Qoku, the employee suspended with Alovic in Janu-
ary was, like Alovic, given a “final warning” at that time. She then
received another “final warning” in March for several infractions in-
cluding leaving her post unattended. The warning states: “Today on
March 11, 2009, the last verbal warning and written notice is given. If
this pattern persists Laura will be terminated.” Qoku was terminated in
May, but her discharge letter cites seven incidents between her suspen-
sion in January and her discharge in May, five of which occurred after
the March 11 “final warning.” The penultimate incident occurred on
May 9 when the Mehmedovic noticed Qoku was missing during her
shift and Moricone waited for her for a period of some 2 hours. Finally,
on May 13, Qoku arrived 40 minutes late for her shift. Mehmedovic
and Moricone met with her to obtain an explanation for her actions and
when she failed to provide one, a decision was made to terminate her.
(GC Exh. 25.) Another employee, Vincent Polo, received a “final
warning” for tardiness in March, and warned that further infractions
would result in suspension or termination. In August he was again
given a written warning for similar infractions. (GC Exh. 24.)
and at other times not corroborated by additional evidence
adduced in this record, in particular by Respondent’s own wit-
nesses.
Thus, according to Perez, at about noon, Alovic disappeared
from his post and she noticed his car, usually parked out front,
was missing. About 20 minutes later, Moricone asked where
Alovic was and Perez stated that she thought he might have
been in the restroom. Of course, if this was a typical hour for a
lunch break, it is open to question as to why Moricone would
have been inquiring as to Alovic’s absence in the first instance.
In any event, as Perez testified, she failed to tell Moricone that
Alovic’s car was missing, and did not explain in her testimony
why she failed to mention that to him. I find it unlikely, if
Alovic’s car was gone, and he was missing without explana-
tion, that Perez would have assumed he was using the restroom
or that she would not have reported this to Moricone at the
time. Another unlikely aspect of Perez’s account is the fact
Moricone did not call Alovic, and while Perez asserts that she
did, she failed to leave any message for him.
According to Perez, building service personnel continued to
notice and comment on Alovic’s absence over the next two
hours. Both she and Ozey tried to call him. After he was gone
for close to two hours, Perez called Mehmedovic and Neiditch.
Neiditch came downstairs to wait for Alovic, who eventually
arrived back at his post.
At this time, as Perez recounts, Alovic was directed to go to
the backroom by Neiditch and after he emerged he began pac-
ing, screaming, slamming drawers and cursing at her in the
presence of three of Neiditch’s clients. Perez then called
Mehmedovic and Moricone. Moricone then escorted Alovic to
the backroom.
Perez asserts that she recorded all of this contemporaneous-
ly, in her incident report. I do not credit her in this regard. I
sincerely doubt that she would have had the time, given the
lateness of the hour, the time her shift ended (3 p.m.) and the
fact that she was the only concierge on desk duty at a large
building for the entire period of time, during which she did not
take any personal or meal breaks. I find it far more likely that
this report was written after-the-fact, in an attempt to assist
Respondent document the reasons for Alovic’s discharge.39
However, even if I were to credit Perez to the effect that she
wrote her account at the time she asserts, I would still find that
it is in some respects uncorroborated and, in fact, contradicted
by other evidence in the record.
Contrary to Perez, Neiditch failed to testify that he had any
involvement in the Alovic incident, and stated that he only
learned of it when Mehmedovic called to inform him that
Alovic was to be fired. He did not corroborate Perez’s testimo-
ny that she called him to the front desk where he waited for
Alovic to return, or that he instructed Alovic to report to the
“back room” or Mehmedovic’s office. I find that this is some-
39 Respondent has asserted that Perez and Habib are “disinterested
witnesses.” I do not necessarily find these current employees to be
disinterested. Rather, it could be argued and common sense suggests
that under the circumstances of this case, where the charging parties are
individuals without any power or authority to protect these current
employees, their pecuniary interests lie in supporting the account of
events suggested by their employer.

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 997
thing Neiditch would have recalled, had it actually occurred. I
additionally note that Neiditch did not testify that his clients
reported any unusual occurrence in the lobby as they waited for
him on this occasion.
Although Habib offered testimony about an altercation be-
tween Alovic and Moricone which took place in the employee
cafeteria, which culminated in Alovic cursing and throwing
food, these contentions, which were not part of Habib’s initial
testimony, are not supported by Moricone’s memorandum to
Mehmedovic which memorializes the reasons for Alovic’s
discharge. In this memorandum, Moricone states that: Alovic
left his post without informing Perez, that he was not present at
his post for more than one hour (not two hours, as claimed by
Perez); that Alovic was found in the cafeteria, only partially in
uniform and speaking with employees; that Mehmedovic and
Moricone spoke with both Perez and Alovic; that Perez com-
plained that Alovic was slamming the doors at the concierge
desk, telling to keep her “FN” mouth [shut]; that Moricone
proceeded to the lobby and witnessed his “terrible behavior”
which Perez stated had been worse prior to his arrival and that
Alovic continued to act “out of line” and “carry on with hostili-
ty.” Thus, Moricone asked Alovic to collect his belongings and
leave the building. There is no mention of any altercation,
food-throwing or cursing in the employee cafeteria.
While I find that Moricone’s email to Mehmedovic, written
one week after Alovic’s discharge, has some self-serving and
possibly exaggerated elements to it, I do think that it offers
some insight into what happened on that day. In reaching this
conclusion I have considered the varying accounts, or lack of
clarity in the accounts offered by various witnesses, and the
extent to which they corroborate each other. Thus, based upon
the record as a whole, I conclude that Alovic did disappear
from his post without checking with Perez; that Moricone later
found him in the employee cafeteria; that Alovic became angry
with Perez for reporting him to management and slammed the
drawers at the concierge desk and cursed at her. While I find
that Alovic did engage in some measure of misconduct on that
day, I have also concluded that the account offered by Re-
spondent is exaggerated and, in some respects, false.
In discrediting Respondent’s account of events, I note that
Mehmedovic testified that during the meeting she and Mori-
cone held with Alovic, Alovic was cursing and screaming to
such an extent that Ozey (who was also present) had to take
him downstairs. Apart from the fact that I have found
Mehmedovic to be an unreliable witness with a propensity for
hyperbole, her account is not corroborated by anything in
Moricone’s report about Alovic’s conduct on that day, and I do
not credit it. I find further evidence that Respondent’s charac-
terization of Alovic’s misconduct is pretextual in comparing
Mehmedovic and Neiditch’s account of their discussion regard-
ing Alovic’s termination. As Mehmedovic testified, she told
Neiditch that she could not believe it, that Alovic was acting up
again, that they could not have this anymore and that Moricone
was furious and was going to terminate him. As Mehmedovic
testified, Neiditch concurred that they had to do what was best
for the building. However, Neiditch testified that he asked
Mehmedovic to give Alovic another chance. Had Alovic’s
conduct been as outrageous as Respondent now suggests, and
this had been reported to Neiditch at the time, I do not think
Neiditch would have done so.
Having made the foregoing credibility resolutions, I must
now conclude whether Respondent has met its burden under
Wright Line. In examining the record as a whole, I find that it
has not.
I note that during the meeting immediately preceding his
termination, as Mehmedovic admitted, Alovic invoked his right
to union representation when he claimed to be entitled to a
lunch break, and angrily stated that a “representative” would
bring him back to work. Mehmedovic clearly showed that she
knew what Alovic was referring to when replied that no union
would bring him back.
In arguing that Respondent has not met its burden under
Wright Line, the General Counsel points to the disciplinary
record of Blerta Behluli (GC Exh. 26), asserting that it shows
disparate treatment toward Alovic. Behluli’s personnel record
contains notations of a variety of infractions which occurred
prior to her discharge on May 27. For example, there is a com-
plaint from a building tenant that on February 12, Behluli told
him to “go fuck yourself” and had to be restrained as she tried
to hit him. She subsequently received a “second warning” on
March 20 for handing out keys without having them signed for.
On May 7, she received a “final warning” for not being at her
post and smoking in the employee cafeteria. On May 21, Beh-
luli received another “final warning” for an incident on May 19
which included “us[ing] inappropriate language and causing a
scene in the lobby.” When asked to leave the lobby, Behluli,
“refused and continued to carry on in an unprofessional manner
and continued to curse while pacing back and forth in the lobby
in a manner that was full of rage.” Then, on May 28,
Mehmedovic received an email from a tenant complaining that
one of his guests overheard Behluli using racial epithets. Only
then was she terminated.40
I agree that the foregoing is some evidence that Respondent
tolerated misconduct, some of it quite substantial, from its em-
ployees short of termination. By way of another example, as
has been noted, Qoku was absent from her post for some two
hours without being suspended or terminated. And, as set forth
above, Behluli had a problematic employment history which
included cursing, pacing and acting in an inappropriate manner
in the lobby area of the building. Notwithstanding all of the
above, she was not immediately discharged. It does not escape
notice that these are essentially the same behaviors that Alovic
has been accused of and accordingly such evidence of disparate
treatment is of more than marginal relevance.
In an effort to support its decision to terminate Alovic, Re-
spondent attempts to paint him as a problem employee with a
history of disruptive conduct. Respondent has failed to adduce
sufficient probative evidence to support these contentions. As
an initial matter, I note that Neiditch testified that prior to
Alovic’s discharge he had no involvement with issues regard-
ing his conduct or performance. It stands to reason, however,
that if Alovic had been a problem employee, Neiditch would
40 Behluli’s termination letter misstates the month of her termination
as March. Under all the evidence, it is apparent that she was terminated
in May.

998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have become aware of such difficulties. The memorandum
written by Moricone to Mehmedovic regarding Alovic’s termi-
nation fails to mention any prior disciplinary issues. And, as
has been discussed above, Mehmedovic failed to offer any
substantive testimony regarding the additional alleged incidents
of misconduct outlined in her April 6 disciplinary notice. I
conclude therefore, that Alovic’s only prior discipline consisted
of his January suspension and the history of performance prob-
lems relied upon by Respondent is a posthoc justification, a
piling on of false reasons for Alovic’s discharge, which sup-
ports the conclusion that it was discriminatory. ADS Electric
Co., 339 NLRB 1020, 1023 (2003); Limestone Apparel, 255
NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). (A find-
ing of pretext means that the reasons advanced by the employer
did not exist or were not in fact relied upon, thereby leaving the
inference of unlawful motivation.) In Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966), the court ob-
served that if the trier of fact “finds that the stated motive for a
discharge is false, he certainly can infer that there is another
motive. More than that, he can infer that the motive is one that
the employer desires to conceal—an unlawful motive.” 362
F.2d at 470.
In short, although I do find that Alovic engaged in some
misconduct on June 19, Respondent has not met its burden of
proof under Wright Line to come forward and show, by a pre-
ponderance of credible evidence, that it would have discharged
this long-term employee absent his Union activities. The testi-
mony of Respondent’s witnesses and the other documentary
evidence of what occurred on June 19 is not mutually corrobo-
rative in several salient respects. Respondent tolerated at least
equally or more egregious conduct from other employees with-
out implementing an immediate discharge. Respondent’s prof-
fered reasons have been shown to be exaggerated at the least
and in clearly pretextual in other respects. Accordingly, I find
that Respondent discharged Alovic in violation of Section
8(a)(1) and (3) of the Act.
4. Christopher
Respondent contends that Christopher was discharged be-
cause he returned to the building while serving a disciplinary
suspension to perform unauthorized side work during that peri-
od of time. Respondent points to the fact that Christopher’s
suspension, alleged as an unfair labor practice, was dismissed
by the Region and that dismissal was affirmed by the NLRB
Office of Appeals. Respondent further relies upon the fact that,
as Christopher admitted, Mehmedovic initially considered dis-
charging Christopher rather than suspending him, but chose not
to do so. Respondent argues that, had Respondent bore Chris-
topher animus because of his union activities, the incident lead-
ing to his suspension was a prime opportunity to rid itself of
him. To the contrary, I find that Mehmedovic’s initial response,
which was to threaten to discharge Christopher upon his first
infraction in over 5 years of employment, is contrary to the
record evidence as to how Respondent treats its other employ-
ees and demonstrates animus toward Christopher for his (by
then) well known union activities.
The General Counsel contends that Respondent’s proffered
defense is pretextual. As an initial matter, as the General Coun-
sel notes, Christopher was not on suspension when he per-
formed the side job, he was actually on a scheduled day off
from work. General Counsel further relies on the email in
which Neiditch recommends Christopher to perform the work,
albeit in his off hours.
Here, the objective and credited evidence tends to support
the General Counsel’s version of events. Christopher’s letter of
suspension clearly delineates a 2-day suspension commencing
on June 24. The side job in question took place on June 26, a
Saturday, and Christopher’s testimony that Saturday was one of
his days off was unrebutted. Christopher was in the building,
not as an employee, but as an invitee of a resident, and he was
allowed entry at the time. There is no evidence that any em-
ployee was spoken to or disciplined for allowing him into the
building on that occasion.
I further note that Lopez’ account, upon which Respondent
generally relies, actually tends to support Christopher’s version
of events. Thus, Lopez testified that he was called by the front
desk to run the freight elevator for the move. On the next day,
Moricone called him into the office and asked whether he knew
that Christopher had been on suspension asked him why he
moved the freight elevator for Christopher when he was sus-
pended. Notably, Lopez failed to testify that Christopher’s use
of the freight elevator had not been authorized; nor did he testi-
fy that Moricone criticized him for unauthorized or unsched-
uled use of the freight elevator. Further, the incident report
Lopez completed, as instructed by Moricone, fails to mention
any unauthorized use of the freight elevator on that day. Rather,
in this report Lopez states that he was running the elevator, was
called to the 12th floor where Christopher was waiting for a
sofa and that Lopez “asked the front desk if it was OK to move
12G to 11E.” I further note that Lopez was issued no discipline
for unauthorized use of the freight elevator or for any other
misconduct on that day. Nor was Perez, the concierge on duty
that day. I further find that Respondent’s failure to adduce tes-
timony regarding this issue from Perez, it’s own witness, sup-
ports an inference that her account, if truthful, would not sup-
port Respondent’s contention that Christopher’s use of the
service elevator on behalf of a building tenant was unscheduled
or unauthorized.
In sum, the evidence tends, in my view, to corroborate
Christopher’s testimony that the tenant told him he would make
the necessary arrangements, and did in fact do so. Of course,
this would make sense under all the circumstances because it
was the tenant who was moving and would be obliged to obtain
the necessary clearances from the building.
Christopher’s termination letter references two other inci-
dents, both of which allegedly occurred on April 29.41 Christo-
pher was accused of failing to attend a refresher course held at
CSR’s facility without contacting either Mehmedovic or Mori-
cone with any explanation as to why he was unable to attend.
Christopher testified that he had told Moricone that his son had
a doctor’s appointment, and was excused from attending the
course. The second allegation concerns Christopher’s leaving
his post to go to a homeowner’s unit without approval, and
41 I credit Christopher’s assertion that he never received a letter of
termination.

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 999
wandering the building. Christopher denied that this took place
or he was ever spoken to about any such incident. In Christo-
pher’s termination letter, Mehmedovic asserts: “I personally
spoke to you and reminded you that you are not to go upstairs
in the elevator and leave your post.” She further claims: [b]oth
the Resident Manager and I have sat down and talked to you on
several occasions. We have explained what was expected of
you. “Yet again, as I am obliged to note, Mehmedovic failed to
offer any testimony about these two additional infractions or
any interactions she may have had with Christopher about
them, or any verbal counseling of Christopher whatsoever.
These are matters about which Mehmedovic clearly would
have been competent to testify, as they would have been within
particularly within her own personal knowledge, and her failure
to do so detracts from the probity of Respondent’s defense.
Thus, under the facts adduced here, Christopher’s assertion that
he was not spoken to or disciplined for any alleged prior mis-
conduct is essentially unrebutted. I therefore conclude that
these two additional assertions of misconduct, as set forth in
Christopher’s termination letter, are post hoc justifications of
recent invention. As has been noted, a “piling on” of unsub-
stantiated reasons for disciplinary action taken against an em-
ployee is evidence of unlawful motivation. Shattuck Denn Min-
ing Corp. v. NLRB, supra at 470.42
Accordingly, in agreement with the General Counsel, I find
that Respondent’s asserted reasons for discharging Christopher
are false. Notably, where “the evidence establishes that the
reasons given for the Respondent’s action are pretextual –that
is either false or not in fact relied upon—the Respondent fails
by definition to show that it would have taken the same action
for those reasons, absent the protected conduct. . . . Rood
Trucking, 342 NLRB 895, 898 (2004), quoting Golden State
Food Corp., 340 NLRB 382, 385 (2003) (finding it unneces-
sary to perform the second part of the Wright Line analysis).
Accordingly, I find that Respondent has failed to meet its
burden to show, by a preponderance of the evidence, that it
would have discharged Christopher notwithstanding his union
and other concerted protected activities. Accordingly I con-
clude that his discharge violated Section 8(a)(1) and (3) of the
Act.
D. The Allegedly Unlawful Lawsuit
The General Counsel argues that by filing a lawsuit against
Christopher,43 the Respondent violated Section 8(a)(1)and (4)
42 I further note that, Christopher testified that when discharging
him, Moricone made specific reference to the fact that Christopher had
gone to the Union to protest his suspension. I n unfair labor practice
proceedings the Board will consider evidence of statements made by
now-deceased individuals after subjecting such evidence to “the closest
scrutiny” before deciding what weight should be given to it. See, e.g.,
Metro Transport LLC, 351 NLRB 657, 703 (2007). Here, I have de-
cided that it is appropriate to credit, and give probative weight to Chris-
topher’s testimony regarding Moricone’s comments upon his dis-
charge.
43 The allegations of the complaint allege that the lawsuit is unlawful
as to two other former employees: Qoku and Behluli. However, these
individuals did not testify and the record on whole is insufficient for
me to make a finding as to the reasonableness of or motive in naming
these former employees of Respondent in the lawsuit. Moreover, the
of the act, asserting that the lawsuit lacked a reasonable basis in
law or fact and was retaliatory for Christopher’s seeking re-
dress before the Board. The Respondent argues that the General
Counsel has failed to establish an agency relationship permit-
ting a conclusion that the Respondents have brought a lawsuit
against Christopher, that the General Counsel has failed to
show that the lawsuit lacks a reasonable basis in fact or law and
was filed with retaliatory intent and that the claim is time-
barred under Section 10(b) of the Act. Respondent further ar-
gues that under applicable Supreme Court precedent, the Board
is not empowered to enjoin an ongoing lawsuit unless that law-
suit is preempted by Federal labor law and that the allegations
of the complaint are contrary to public policy and inconsistent
with the guidance of the Office of the General Counsel.
1. The agency status of Neiditch and Mehmedovic
As an initial matter, I must decide whether the lawsuit is at-
tributable to Respondent or solely to Neiditch and Mehmedovic
in their individual capacities. Respondent has argued that all of
the evidence proffered in this matter establishes that Neiditch
and Mehmedovic brought the defamation lawsuit on their own
behalf. Respondent argues that the lawsuit relates to defamato-
ry statements against Neiditch and Mehmedovic personally and
that neither Atelier nor CSR are parties to the lawsuit. Re-
spondent further contends that, aside from their formal titles,
there is no evidence that either Neiditch or Mehmedovic acted
on behalf of the Atelier or CSR in filing the lawsuit. Respond-
ent further argues that Dweck has been retained and compen-
sated by Neiditch.
The General Counsel contends that under traditional agency
principles, the lawsuit can be attributed to Respondent even
though it was brought by two individual supervisors. In support
of this contention, the General Counsel relies upon Braun Elec-
tric Co., 324 NLRB 1, 2 (1997), where the Board delineated
factors to be considered in making such a determination:
whether the employer has held the supervisor as authorized to
speak and act on its behalf, whether the lawsuit directly relates
to an employment matter and took place on company property,
and whether the supervisor engaged in other coercive conduct
violative of Section 8(a)(1). The General Counsel argues that
these criteria have been met here.
In general agreement with the General Counsel, I have con-
cluded that in prosecuting the lawsuit Neiditch and
Mehmedovic were acting as agents of Atelier and CSR and, as
such, it is properly attributable to Respondent.
Section 2(13) of the Act provides:
In determining whether any person is acting as an “agent” of
another person so as to make such other person responsible for
his acts, the question of whether the specific acts performed
were actually authorized or subsequently ratified shall not be
controlling. Legislative history dictates that the Board is to
apply common law principles of agency in determining who is
an agent under the Act. See Longshoremen ILA (Coastal Steve-
doring Co.), 313 NLRB 412, 415 (1993), remanded 56 F.3d
General Counsel has represented that it is not seeking a remedy as to
them. Because the status of the lawsuit as against these individuals was
not fully litigated herein, I decline to consider the allegations of the
complaint as it relates to these other employees.

1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
205 (D.C. Cir. 1995). In Longshoremen ILA (Coastal Stevedor-
ing Co.), supra, the Board noted that “when applied to labor
relations, however, agency principles must be broadly con-
strued in light of the legislative policies embedded in the Act.”
Moreover, in Shen Automotive Dealership Group, 321 NLRB
586, 593 (1996), the Board held that the “common law princi-
ples of agency incorporate principles of implied and apparent
authority.” The Board has held that the burden of proof is on
the party asserting that an agency relationship exists. Id.
The mere fact that neither Atelier nor CSR as institutional
entities are named in or appear to support the lawsuit is not
controlling. In Nemacolin Country Club, 291 NLRB 456, 458
(1988), enfd. 879 F.2d 858 (3d Cir. 1989) (discussed in Braun,
324 NLRB at 2), the Board found that the respondent, through
its president and a member of the board of governors, commit-
ted a number of 8(a)(1) violations, rejecting the respondent’s
contention that the president and the board member were not
authorized to act on their own. Consistent with the above-cited
provisions of the Act and its legislative history, the Board held
that a party may be bound by conduct of those it holds out to
speak and act for it, even though there is no proof that specific
acts were actually authorized or subsequently ratified. In find-
ing the president an agent, the Board focused on an antiunion
letter from him to employees. The Board concluded that the
fact that he was the respondent’s president and had signed the
letter on the respondent’s stationery clothed him with apparent
authority sufficient to bind the respondent by his conduct.
Additionally, the Board has noted that it often finds elected
or appointed officials of an organization to be agents of that
organization,: “While the holding of elective office does not
mandate a finding of agency per se, such status is persuasive
and substantial evidence which will be decisive absent compel-
ling contrary evidence.” Nemacolin, supra at 459 (quoting
Electrical Workers Local 453 (National Electrical), 258 NLRB
1427, 1428 (1981)).
Here, the two individuals who filed the lawsuit are stipulated
agents of Respondent: individuals who are authorized to “speak
and act” for Atelier and CSR. Neiditch was designated to rep-
resent the condominium in contract negotiations with Local
32BJ. Moreover, in his capacity as president of the condomini-
um board, Neiditch is involved in the day-to-day operations
and functioning of the building. As property manager,
Mehmedovic similarly is responsible for the daily supervision
and discipline of the building service staff and more generally
for the operation of the building.
Moreover, in the lawsuit itself, the plaintiffs are identified
not as two aggrieved individuals but rather in their professional
capacities and as agents of Respondent:

Plaintiff Daniel Neiditch is an individual who is the President
of River 2 River Realty Inc. and the President of the Board
for the Atelier Condos Building and who maintains an office
at the Atelier Condos Building located at 635 West 42nd
Street, New York, New York 10036.

Plaintiff Sabrina Mehmedovic is an individual who is the
Property Manager at the Atelier Condos Building at located at
635 West 42nd Street, New York, New York 10036.

The four corners of the text of the lawsuit further support the
finding that it was brought by the plaintiffs as agents of Re-
spondent. Thus, the initial paragraphs of the complaint set forth
the following:

The Atelier Condos Building at 635 West 42nd Street in New
York City has been a desirable residence in Manhattan. The
policy of the owners and management of the Building, re-
flected in the building rules, has been to be opposed to stays
under 90 days, which still has been and is relatively lenient
because in many buildings in Manhattan, the minimum lease
term is for one year. In November 2008, it was decided by the
Condo Board that no rental would be allowed under 90 days
in order to safeguard the building’s reputation and maintain
standards in the building.
Plaintiff Daniel Neiditch, as the President of the Atelier Con-
dos Building at 635 West 42nd Street in New York City, and
Plaintiff Sabrina Mehmedovic, as Property Manager of the
Atelier Condos Building, have diligently exercised their re-
spective responsibilities in the operations of the 635 West
42nd Street building; and, in the course of doing so, they have
cracked down and enforced the Condo Board’s decision not
to allow renters for less than 90 days in accordance with
building rules. Plaintiff Daniel Neiditch and Plaintiff Sabrina
Mehmedovic also have cracked down and enforced the build-
ing rules against occupants engaging in business activities in
the building. In these efforts, Plaintiff Daniel Neiditch and
Plaintiff Sabrina Mehmedovic had the full working coopera-
tion of Robert E. Moricone, Jr., the Resident Manager of the
Atelier Condos Building who had held that position many
years. These efforts, however, made unhappy certain owners,
who were desirous of renting their condo apartments for less
than 90 days and running businesses in the building. These ef-
forts also made unhappy certain now former employees, such
as Defendants Laura Qoku and Blerta Behluli, who were fired
for neglecting their job duties.

From the foregoing, it is apparent that the state court com-
plaint, by its terms, references the internal dispute occurring
among the owners and residents relating to short term rentals,
the damage such practices has on the reputation and standards
of the building, and the unhappiness of certain owners who
sought to avoid the rules imposed by the Board (of which Nei-
ditch was president) to curtail such activities.
The communications issued by Mehmedovic and Neiditch
relating to the web postings provide further evidence that the
lawsuit was undertaken by them as agents of CSR and Atelier,
and not simply in their individual capacities. For example,
Mehmedovic cautions representatives of CSR that they should
be “concerned” about the postings. More tellingly, in his letter
to Atelier residents, Neiditch makes references to the effect of
the alleged defamation as follows:

The lies/slander written hurt the reputation of the building,
property values, its workers and our residents.

. . . .

This despicable website has come in a time of my friend/our
beloved Robert’s passing (coming out on the day of his death)
in order to stir propaganda to discredit Sabrina, Cooper
ATELIER CONDOMINIUM & COOPER SQUARE REALTY 1001
Square, the board and myself in order for those responsible to
gain passage from illegal business in our home.

. . . .

We also continually brand our building’s name and image to
preserve the stature and property integrity. My being a real es-
tate professional has also given me the ability to spot real es-
tate fraud and other illegal broker activities. We have caught
numerous apartments doing illegal activities wit their unit.
The board, staff, Sabrina and I have personally caught them
on our own personal free time to ensure all our safety. This is
what has been the cause of all these false rumors and allega-
tions: so the real fraudulent people can continue to do what-
ever they like to without regard for anyone else. I have a vest-
ed interest to all home owners to keep prices high and com-
mon charges low.

. . . .

We appreciate all of the support of the hundreds of owners
who have emailed the board and me and we will continue to
make you proud of the hard work we put in. We cannot con-
trol people making up lies and these false allegations will be
in the hand of the law.

Moreover, the sole basis for including Christopher in the
state court action was by virtue of his employment relationship
with Respondent. Otherwise, he would have had no nexus to
any of the events forming the backdrop for the lawsuit. Fur-
ther, as I have found above, both Neiditch and Mehmedovic
engaged in other conduct otherwise violative of Section 8(a)(1)
and (3) directed specifically toward Christopher, demonstrating
their animus toward his protected conduct.
Respondent points to testimony that Dweck was retained by
Neiditch and either has, or will be paid by him. However, it
does not escape notice that there was a lot of “wiggle room” in
the manner in which questions on this point were posed to Nei-
ditch. In this regard, I note that Neiditch never testified that he
actually paid Dweck specifically for his representation in the
lawsuit; nor did Dweck testify that he has been so paid. Since
Dweck has, since the filing of the lawsuit, taken virtually no
action to prosecute it, not even to commence discovery, I tend
to think that he has not been compensated for his services in
this regard. As the General Counsel has noted, at the time
Dweck was representing Neiditch and Mehmedovic in the law-
suit, he was also acting in a representative capacity for Atelier
and CSR before the NLRB.
With regards to Dweck’s testimony, I find that he demon-
strated a failure of knowledge with respect to this lawsuit
which leads me to question its overall accuracy. For example,
Dweck testified that after he failed to appear for a court-
ordered conference in June 2010, the lawsuit was “marked off”
the calendar, and during cross-examination specifically denied
that it had been dismissed. In fact, Judge James’ order states
that the case is dismissed for the failure of the plaintiffs’ attor-
ney to appear. Dweck, a self-described general practice practi-
tioner, does not appear from the record to have expertise in
matters pertaining to defamation law, leading to the inference
that he was selected to prosecute the lawsuit based upon his
ongoing business relationship with Atelier and CSR.
Neiditch appeared similarly uninformed about the lawsuit.
When asked by counsel for Respondent about the status of the
initial filing, Neiditch replied, “It is my understanding that it
was taken off and the status of it is still pending.” When asked
if there was new litigation in the matter, he responded: “No,
there’s no new litigation. I understand that there was an attor-
ney representing [Christopher] but he, by accident, reopened it
instead of reissuing it. It’s the same case. The case never
changed.” I find that this apparent unfamiliarity with the status
of the case, runs contrary to Neiditch’s claim that the lawsuit
was brought and is being prosecuted by him personally.
In conclusion, I find that there is simply no “compelling con-
trary evidence” that Neiditch, as an elected president of the
condominium board, or Mehmedovic as the highest-ranking on
site manager were not acting in an agency capacity with regard
to the lawsuit against Christopher. Accordingly, I conclude that
the General Counsel has met its burden of establishing that
Neiditch and Mehmedovic were acting as agents of Respondent
in the filing and continued prosecution of the lawsuit.
2. The lawsuit is not barred by the applicable statute
of limitations
It is well settled that Section 10(b) is an affirmative defense
and the party asserting such a defense bears the burden of
proof. See Leach Corp., 312 NLRB 990, 991, 992 (1993), enfd.
54 F.3d 802 (D.C. Cir. 1995). It is equally well settled that this
affirmative defense must be pled in the answer or raised before
the hearing closes. Because Respondent’s 10(b) defense was
not pled in the answer or articulated by Respondent during its
opening statement at the hearing, and was not raised by Re-
spondent prior to the filing of its post hearing brief, this defense
was not raised in a timely manner and, therefore, has been
waived.44 Harco Trucking, LLC, 344 NLRB 478, 479 (2005);
Dayton Newpapers, Inc., 339 NLRB 650, 653 fn. 8 (2003),
enfd. in part 402 F.3d 651 (6th Cir. 2005).
Moreover, even if I were to conclude that Respondent’s Sec-
tion 10(b) defense had not been waived, I would find Respond-
ent’s contentions to lack merit. Pursuant to Section 10(b) of the
Act, a violation of the NLRA cannot be found, “which is ines-
capably grounded in events predating the limitations period.”
Machinists Local 1424 v. NLRB, 362 U.S. 411, 422 (1960).
However, events outside the 10(b) period can be used to shed
light on critical events within the 10(b) period. Id. at 416. The
crucial distinction between these principles is that the Board
may not give “independent and controlling weight” to the pre-
44 Respondent’s answer raises four affirmative defenses: the com-
plaint fails to state a claim upon which relief may be granted; the
charging parties engaged in unprotected conduct; the allegations in the
complaint are barred by laches; and General Counsel’s pursuit of por-
tions of the complaint is contrary to Federal law and an abuse of pro-
cess. While it could be argued that Respondent adduced evidence going
toward a 10(b) affirmative defense, in particular to support its conten-
tion that the second lawsuit was merely a continuation of the first, the
fact remains that Respondent did not specifically argue the applicability
of this defense during its opening statement or at any other time during
the course of the hearing. In fact, the only reference in the record to
Sec. 10(b) occurred during the General Counsel’s opening statement.
The General Counsel, of course, is neither obligated nor empowered to
raise affirmative defenses for a respondent.

1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10(b) evidence. Id. at 417.
Despite Respondent’s assertions to the contrary, the second
lawsuit, which was commenced in June 2010, is not a mere
continuation of the initial lawsuit, and does not require me to
give “independent and controlling weight” to events outside the
limitations period. As noted above, there are several differences
between the two causes of action including the named plaintiffs
and the named defendants. Most importantly, the June 2009
lawsuit was dismissed by the court in June 2010. A court order
issued so declaring. Thereafter a new lawsuit naming only three
former employees and 10 other anonymous defendants was
filed. The lawsuits have different index numbers. In this regard,
I note that Dweck testified that he could have attempted to
reinstate the original cause of action, but due to a number of
factors such as cost, difficulty, the initial naming of defendants
who cannot be properly sued for defamation and the looming
expiration of the applicable statute of limitations, he deter-
mined that filing a new lawsuit was the most expeditious
course of action.
Based upon all the factors here, I conclude that Respondent
has failed to meet its burden to show that the lawsuit filed by
Dweck in June 2010 was a mere continuation of the prior law-
suit rather than a separate and distinct legal action. According-
ly, the charge filed by Christopher alleging that the lawsuit was
unlawful, filed on August 12, 2010, is timely.45
3. Respondent’s constitutional and public policy arguments
In its posthearing brief, Respondent has argued that under
Bill Johnson’s, the Board is not empowered to enjoin an ongo-
ing lawsuit unless that lawsuit is preempted by Federal labor
law. In support of these contentions, Respondent relies on San
Diego Building Trades Council v. Garmon, 359 U.S. 236, 244–
245 (1959). Respondent’s contentions in this regard constitute
a misapprehension of Bill Johnson’s and the applicability of
Garmon to the instant case.
Contrary to Respondent’s apparent assertions, Bill Johnson’s
holds that “it is an enjoinable unfair labor practice to prosecute
a baseless lawsuit with a retaliatory motive.” 461 U.S. at 744.
Respondent seemingly has confused the Court’s clear holding
in this regard with commentary set forth in so-called “footnote
5” of the Bill Johnson’s decision which describes an exception
to the above-expressed rule. There, the Court stated:

It should be kept in mind that what is involved here is an
employer’s lawsuit that the federal law would not bar ex-
cept for its allegedly retaliatory motivation. We are not
dealing with a suit that is claimed to be beyond the juris-
45 Relying on Geske & Sons, 317 NLRB 28, 32 (1995), counsel for
the General Counsel further argues that even if one were to assume that
the June 2010 lawsuit is a continuation of the prior one, the mere
maintenance and prosecution of an unlawful lawsuit amounts to a con-
tinuous violation of the Act. Thus, General Counsel argues that the fact
that the initial lawsuit was filed more than 6 months prior to Christo-
pher’s unfair labor practice charge is of no moment. I note however,
that in Geske, the administrative law judge relied on the fact that that
the applicable 10(b) period included the last 3 days of a 9-day state-
court hearing, thus concluding that the charge timely encompassed the
respondent’s conduct in maintaining and prosecuting the lawsuit. In my
view, this distinguishes Geske from the instant matter.
diction of the state courts because of federal law preemp-
tion, or a suit that has an objective that is illegal under
federal law. Petitioner concedes that the Board may enjoin
these latter types of suits.

461 U.S. at 738, fn. 5.
The Court, however, did not limit the Board’s authority to
enjoin state court lawsuits to those that are either illegal or
preempted under Federal labor law. Garmon, relied upon by
Respondent, is inapposite to the circumstances here. There, the
Court deals with the preemption doctrine—the issue of protect-
ing the primary jurisdiction of the National Labor Relations
Board by displacing state court jurisdiction over conduct which
is arguably encompassed by Section 7 or Section 8 of the Act.
Thus, when conduct is arguably violative of the Act, state rul-
ings and actions must defer to the “exclusive competence of the
National Labor Relations Board if the danger of state interfer-
ence with national policy is to be averted.” 359 U.S. at 245.
Such authority has no relevance to the instant case where the
General Counsel has not contended, and no party has argued,
that the state court defamation lawsuit falls within the parame-
ters of “footnote 5.” The instant case was not litigated on that
theory and the evidence does not support the necessary conclu-
sion that the controversy underlying the state court defamation
lawsuit was one that is similar in any fundamental respect to
one that could have been presented to the Board. See Operating
Engineers v. Jones, 460 U.S. 669, 682–683 (1983); Sears, Roe-
buck & Co., v. Carpenters, 436 U.S. 180, 187 (1978).
Respondent further argues that the General Counsel has
failed to follow its own internal guidelines for the investigation
of allegedly retaliatory lawsuits, citing memoranda from the
Office of the General Counsel. In particular, Respondent cites
to GC Memo 02-09 which, in part, directs the Regions to defer
action on allegations of unfair labor practices relating to ongo-
ing lawsuits when they are in the early stages of litigation. Of
course, the decision of whether such guidance should obtain in
the instant case is an internal matter within the discretion of the
General Counsel. Moreover, memoranda issued by the General
Counsel do not constitute precedential authority and are not
binding on the Board. See Fun Striders, 250 NLRB 520, 520
fn. 1 (1980) (advice memorandum does not constitute prece-
dential authority).
In short, I conclude that there is no constitutional impedi-
ment, or overarching consideration of public policy which pre-
cludes me from considering the issues relating to the defama-
tion lawsuit on their merits.
4. The Lawsuit is unlawful
The General Counsel has alleged that the state court defama-
tion lawsuit filed against Christopher violates Section 8(a)(1)
and (4) of the Act. Section 8(a)(4) of the Act provides that it is
an unfair labor practice for an employer “to discharge or oth-
erwise discriminate against an employee because he has filed
charges or given testimony under this Act.” Conduct violating
this provision discourages employees’ Section 7 rights and
derivatively violates Section 8(a)(1) of the Act. In addition, an
unlawful state court lawsuit reasonably tends to chill the exer-
cise of employees’ Section 7 rights and therefore independently
violates Section 8(a)(1).

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 1003
In Bill Johnson’s Restaurants Inc. v. NLRB, 461 U.S. 731
(1983), the Court articulated a standard for evaluating an al-
leged retaliatory lawsuit. For ongoing lawsuits (as is the case
here), the Court held that the Board may, consistent with the
First Amendment, only halt prosecution of an ongoing lawsuit
if it lacks a reasonable basis in fact or law and was brought
with a retaliatory motive. Id. at 748–749. In Bill Johnson’s, the
Court ruled that while the Board’s inquiry need not be limited
to the bare pleadings, the Board could not make credibility
resolutions or draw inferences from disputed facts so as to
usurp the fact-finding role of the jury or judge. However, while
“genuine disputes about material historical facts should be left
for the state court, plainly unsupportable inferences from the
disputed facts and patently erroneous submissions with respect
to mixed questions of fact and law may be rejected.” 461 U.S.
at 746 fn. 11. Further, the Board may not determine “genuine
state-law legal questions.” These are legal questions that are
not “plainly foreclosed as a matter of law or otherwise frivo-
lous.” Id. at 746. Thus, a lawsuit can be deemed baseless only
if it presents unsupportable facts or unsupportable inferences
from facts, or if it depends upon “plainly foreclosed” or “frivo-
lous” legal issues.
In BE& K Construction Co. v. NLRB, 536 U.S. 516 (2002),
the Court held that the First Amendment protects reasonably
based lawsuits even if filed with a retaliatory motive. The
Court noted that the right to petition the government includes
the right of access to the courts. It held that, for purposes of
protecting legitimate petitioning, the proper focus of the in-
quiry is the reasonableness of the petition from the perspective
of the plaintiff at the time the lawsuit was filed. 536 U.S. at
532. On remand, in BE& K, 351 NLRB 450, 450 (2002), the
Board held that “the filing and maintenance of a reasonably
based lawsuit does not violate the Act, regardless of whether
the lawsuit is ongoing or is completed, and regardless of the
motive for initiating the lawsuit.” The Board also held that “a
lawsuit lacks a reasonable basis or is ‘objectively baseless’ if
‘no reasonable litigant could realistically expect a success on
the merits.’” Id. (quoting Professional Real Estate Investors,
Inc. v. Columbia Pictures Industries, 508 U.S. 49, 60 (1993)).
In applying this standard, the Board has found that it will be
guided by the Court’s discussion, in Bill Johnson’s, of the rea-
sonable-basis inquiry in the context of ongoing suits. See Ray
Angelini Inc., 351 NLRB 206 (2007) (quoting Bill Johnson’s,
461 U.S. at 745, 747).
a. The lawsuit lacks a reasonable basis in fact
In Milum Textile Services, 357 NLRB 2047 (2011), the
Board, among other determinations,46 remanded to the admin-
istrative law judge the issue of whether a complaint filed in
Federal district court alleging five causes of action,47 which
46 In particular, the Board agreed with the judge that the respond-
ent’s motion for a TRO was unlawful, and that the respondent had
committed other violations of the Act unrelated to the TRO or the
discontinued lawsuit.
47 The five causes of action alleged in the complaint included illegal
secondary boycott, intentional interference with economic relations,
intentional interference with prospective economic advantage, libel,
and fraud.
was thereafter voluntarily discontinued, had been brought in
violation of Section 8(a)(1). In doing so, the Board discussed
what the General Counsel must show to establish, in the first
instance, that a lawsuit was baseless. Id. slip op. at 2052–2053.
As an initial matter, the Board made clear that the General
Counsel has the burden of proof that the lawsuit at issue is
baseless. The Board noted that at the complaint stage, where a
lawsuit has not already been litigated:

[T]he question is whether a plaintiff, with the factual infor-
mation in its possession and whatever additional factual in-
formation a reasonable potential litigant would have acquired
prior to filing, would reasonably have believed it had a cause
of action upon which relief could be granted. This does not
mean that a plaintiff must possess all the evidence necessary
to prove its case at the time of filing. Some necessary evi-
dence is not within the possession or control of the plaintiff
and cannot be acquired without discovery. . .

Id.
Here, because no action has been taken on the lawsuit and
there are no contemporaneous affidavits or other documentary
evidence attached thereto, the complaint constitutes the entire
evidentiary record before the state court in this matter. There is
no state court determination as to the adequacy of the pleadings
or going toward any evidentiary dispute. Accordingly, in ana-
lyzing whether the lawsuit was reasonably based, my conclu-
sions are necessarily based upon the four corners of the com-
plaint as supplemented by the evidence which has been ad-
duced by the parties in the hearing held before me.
For a number of reasons, discussed below, I have found that
as to the filing of the instant lawsuit against Christopher, the
General Counsel has met its burden of proof that the lawsuit
lacked a reasonable basis and that Respondent has failed to
come forward with any evidence to suggest that the lawsuit
raises any genuine or material issue of fact or that it could have
acquired such evidence through discovery.
As an initial matter, I look toward the letter Neiditch sent to
fellow owners at the Atelier, shortly after, and in response to,
the allegedly defamatory comments which suggests that legal
proceedings will be commenced. In this letter, there is a refer-
ence to “former employees who recently let a FBI wanted crim-
inal into the building” and thereafter to “[f]ormer disgruntled
employees fired for helping this illegal scam operations [sic],
[who] are also involved and had been taking bribes to help
facilitate illegal rentals to take place for these home own-
ers/brokers to commit fraud and hotel stays.” Here, there is no
contention and no evidence that Christopher was known to
have been involved with, or had been disciplined for, letting
criminals enter the building or taking bribes or otherwise par-
ticipating in the facilitation of “hotel-style” rentals. As Re-
spondent has alleged, Christopher was discharged only for
returning to the building during a suspension, to perform unau-
thorized work for a tenant (one who does not appear to be in-
volved in this intra-building dispute.) Accordingly, I conclude
that Neiditch initially failed to identify Christopher as someone
connected to his dispute with those who posted the allegedly
defamatory remarks. Moreover, Respondent has failed, subse-
quently, to come forward with any evidence that Christopher

1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was so involved, or that Respondent had any reason to think he
was.
Moreover, the four corners of the complaint fails to establish
that Respondent, or Neiditch and Mehmedovic, as its agents,
had any knowledge that Christopher authored, edited, spon-
sored or ratified any postings referred to in the lawsuit.
In particular, I note that in the section of the complaint con-
taining allegations common to all causes of action, which is set
forth above, the intra-building dispute over “hotel-style” rentals
is clearly referenced as are the efforts of the plaintiffs to restrict
them. Certain discharged employees are named as disgruntled
parties, as follows: “These efforts, however, made unhappy
certain owners, who were desirous of renting their condo
apartments for less than 90 days and running businesses in the
building. These efforts also made unhappy certain now former
employees, such as Defendants Laura Qoku and Blerta Behluli,
who were fired for neglecting their job duties.” Again, Chris-
topher is not named as someone with any connection to this
underlying dispute. I find this to be a telling omission and
admission.
Further, the initial lawsuit was filed against various internet
service providers,48 one renter, one owner, three former em-
ployees and 20 fictitious defendants. There was no specific
attribution of any defamatory statement to any particular indi-
vidual. The second lawsuit named only the three discharged
employees, who at the time were the subjects of an outstanding
unfair labor practice complaint, and 10 fictitious defendants.49
Similarly, in this new lawsuit there was no attribution of any
particular statement to any particular individual. There is no
indication that the plaintiffs have made any attempt toward
discovery at any relevant time; notwithstanding the decision to
name 10 unknown persons. Thus, Christopher has not been
specifically alleged to be the author of any of the allegedly
defamatory statements set forth in the complaint and there are
no specific statements otherwise attributable to him as set forth
in the testimony or other evidence adduced at hearing. Nor has
there been any offer of proof as to what discovery in this case
might reveal or uncover. See Geske & Sons, Inc. v. NLRB, 103
F.3d 1366, 1376 (7th Cir. 1997), cert. denied 522 U.S. 808
48 In this regard, the lawsuit was apparently ill conceived. I take ad-
ministrative notice of Section 230 of the Communications Decency Act
[47 USC Section 230] which grants interactive online services broad
immunity from certain types of liability—including defamation—
stemming from content created by others. In addition, naming the Es-
tate of Robert Moricone as plaintiff was legal error as well. Under New
York law, an estate is not able to sue for defamation of the deceased.
See Rose v. Daily Mirror, Inc., 284 N.Y. 335, 337–338 (1940).
49 Under New York state law, a complaint for defamation must al-
lege that the defendant published the defamatory words as well as the
time, manner and persons to whom the publication was made. See e.g.
Murphy v. City of New York, 59 A.D. 301, 301 (1st Dep’t 2009) (dis-
missing defamation complaint where “it failed to establish all the ele-
ments of defamation, inasmuch as the plaintiff did not allege the time,
the manner and the persons to whom the publication was made
. . . nor did he identify the person who made it.”) (emphasis supplied);
Simpson v. Village Voice, Inc., 58 A.D. 421(1st Dep’t. 2009), leave to
appeal denied 12 N.Y.3d 710 (2009). However, this is a matter of state
law outside my purview and which, under Bill Johnson’s and its proge-
ny, should be left for a state court to decide.
(1997), enfg. 317 NLRB 28 (1995) (Board may enjoin prosecu-
tion of a state law suit prior to discovery where the respondent
provides no evidentiary basis for the lawsuit and fails to de-
scribe what evidence it expects to obtain through discovery.).
As the General Counsel notes in his posthearing brief:

Respondent’s only evidence attributing Christopher to the de-
famatory statements is Neiditch’s testimony that one of the
posts had Christopher’s name on it. Neiditch did not provide
any documentary evidence to corroborate this assertion. In
addition, the [state court] complaint does not assert that Chris-
topher’s name appeared on one of the postings. If Christo-
pher’s name appeared on an allegedly defamatory posting,
and he is being charged with authoring same, it is inexplica-
ble why Respondent would not include the statement in their
complaint or allege that in its complaint.

Neiditch’s testimony, referred to above by the General
Counsel, was so nonspecific and vague that it convinced me
that he had never actually seen any such defamatory material.
Moreover, the statements referring to Neiditch and
Mehmedovic which have been alleged in the complaint are
startling. It stands to reason that if Neiditch (or Mehmedovic
for that matter)50 had, in fact, seen any such posting ostensibly
authored by Christopher, or any other particular individual,
they would have recalled it. This apparent lack of recollection,
coupled with Neiditch’s failure to produce any statement at-
tributable to Christopher (notwithstanding any issue of whether
he was compelled to produce same pursuant to subpoena)
points to the conclusion that such a statement does not exist.
I further note that Respondent has failed to produce docu-
mentary evidence which would relate to the investigation of the
lawsuit or would establish that Christopher authored or author-
ized any allegedly defamatory statement. The only document
produced by Respondent was an email chain where various
agents of Respondent react to the websites and seek a plan of
action in response thereto. Based upon this failure to produce
clearly relevant documents: those which had been sought by
the General Counsel’s subpoena and which Respondent was
under legal compunction to produce, I conclude that either that
they do not exist, or that to the extent they do, such evidence
would not support Respondent’s contentions here. Neither Nei-
ditch nor Mehmedovic offered any testimony which would
establish that either of them, or any other agent of Respondent,
conducted an investigation of whether Christopher was in-
volved in authoring or disseminating any statement at issue in
the state court complaint. Moreover, in her email to various
representatives of CSR, Mehmedovic identifies two other indi-
viduals whom she believed to be culpable. Thus, from the evi-
dence as a whole I conclude that little, if any, investigation
took place and Respondent has no knowledge that Christopher
participated in any allegedly defamatory commentary in any
way whatsoever. See Diamond Walnut Growers, Inc., 312
NLRB 61 (1993) (retaliatory libel suit against a union involv-
ing a letter calling for a boycott of the employer was baseless
because there was no proof that the union had sent the letter.)
50 Mehmedovic offered no testimony about the lawsuit whatsoever.

ATELIER CONDOMINIUM & COOPER SQUARE REALTY 1005
I credit Christopher’s testimony that he did not author the
statements set forth in the complaint and that did not have ac-
cess to or make use of the web sites or distribute such material
on the internet. In its post-hearing brief, Respondent has argued
that any such resolution of conflicting evidence is improper:
“Christopher can deny those allegations as he has in the instant
matter but his denials are of no moment. It is not for this forum
to adjudicate whether the claim is reasonably based.” While I
disagree with Respondent’s apparent contention that I am not
authorized to make certain credibility resolutions to determine
whether the defamation claim is reasonably based, I am cogni-
zant that the Supreme Court has cautioned that “The Board’s
reasonable basis inquiry must be structured in a manner that
will preserve the state plaintiff’s right to have a state court jury
or judge resolve genuine material factual or state-law legal
disputes pertaining to the lawsuit.” Bill Johnson’s, supra at 749.
Nevertheless, as the administrative law judge presiding over
the instant matter, I am not only authorized, but required, to
assess the credibility of witnesses appearing before me.51 The
history of Bill Johnson’s and its progeny fails to suggest that an
administrative law judge’s responsibilities are abridged pursu-
ant to such claims. In considering similar arguments, the Sev-
enth Circuit has noted: “In order to carry out its mandate under
Bill Johnson’s to determine whether a lawsuit is baseless, the
Board must examine the [state court] plaintiff’s evidence to
determine whether it raises any material questions of fact.”
Geske & Sons, v. NLRB, 103 F.3d 1366, 1376 (1997). With
regard to the role of the ALJ in particular, that court noted the
following: “It is the duty and the prerogative of the ALJ to
choose between conflicting evidentiary submissions.” Id at
1375. This has been the position taken by the Board. In particu-
lar, in Milum, supra, at 2053, the Board panel majority noted as
follows:

In order to determine if the General counsel has carried
[its] burden a judge must determine the elements of the
causes of action that the General Counsel has placed at is-
sue and then evaluate the evidence offered by the General
Counsel to prove that the Respondent did not have, and
could not reasonably have believed it could acquire
through discovery or other means, evidence needed to
prove essential elements of its causes of action and con-
sider also evidence offered by the Respondent to prove to
the contrary, including evidence in the nature of a state-
ment under Fed. R. Civ. P. 56(d).52

51 As the Supreme Court has noted: “Weight is given to the adminis-
trative law judge’s credibility determinations because she sees the
witnesses and hears them testify, while the Board and the reviewing
court look only at the cold records.” NLRB v. Walton Mfg. Co., 369
U.S. 404, 408 (1962).
52 Rule 56(d) provides as follows:
WHEN FACTS ARE UNAVAILABLE TO THE NONMOVANT.
If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the
court may:
1. defer considering the motion or deny it;
2. allow time to obtain affidavits or declaration or to take discovery;
3. issue any other appropriate order.
I further note that in his dissent in Milum, Member Hayes,
citing to the testimony of the respondent’s president, (Milum),
about why he filed the lawsuit noted that: “The General Coun-
sel did not adduce evidence undermining Milum’s credibility,
and the judge did not question his credibility.” 357 NLRB
2047, 2059. On the basis of the above-cited authority I con-
clude that credibility determinations are well within my pur-
view in the context of the instant case to the extent they are
directed toward determining whether, under Bill Johnson’s and
its progeny, the lawsuit has a reasonable basis, i.e. whether
there exists a genuine issue of fact or law to be further deter-
mined in state court proceedings.
In short, I find the evidence on whole establishes that the
lawsuit, as against Christopher, lacked a reasonable basis.
There is no genuine material factual basis for alleging that he is
connected in any way with any allegedly defamatory remark.
He is not named in any communication disseminated by
Mehmedovic or Neiditch about the websites or in connection
with any particular incident of alleged defamation. There is no
evidence that he has any connection to or involvement in the
intra-building dispute over hotel-style rentals and the animus
that engendered among Atelier residents and members of the
Board. Moreover, neither Respondent, Neiditch nor
Mehmedovic has come forward with any credible testimony or
other evidence linking Christopher to any of the websites, post-
ings or underlying circumstances surrounding the state court
complaint. Accordingly, assessing the elements of the causes
of action at issue in the state court lawsuit here, I conclude that
the General Counsel has established that Respondent did not
have, and could not reasonably believe it could acquire through
discovery, the evidence required to prove the essential elements
of its cause of action against Christopher. Milum, supra, slip
op. at 7.
b. The lawsuit was brought with a retaliatory motive
As noted above, however, that does not end the inquiry for it
must also be established that the lawsuit was brought with a
retaliatory motive.
Under all the circumstances here, I conclude that Respond-
ent brought this lawsuit with a motive to retaliate against Chris-
topher for participating in an investigation of charges filed
before the NLRB and for other conduct protected by the Act.
In arguing that the General Counsel has failed to prove that
lawsuit had a retaliatory motive, Respondent argues that Chris-
topher’s charge of unlawful discrimination was not filed until
August 26, approximately 1 month after the original defama-
tion lawsuit was brought in July 2009. While this is true, it is
also the case that Christopher was known to have engaged in
Union activities, to which Respondent had shown animus.
Christopher had been discharged for this conduct in June, just
weeks prior to the initiation of the lawsuit. Moreover, by the
time the initial lawsuit was filed, Qoku had already filed charg-
es against Respondent alleging unlawful interrogations of and
threats to employees for their activities in support of the Union,
among other things, and Christopher had been the subject of
such unlawful conduct. In any event, even if one were to accept
Respondent’s argument at face value, this does not begin to
excuse why Christopher was named in a second lawsuit—one

1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that was filed after he was the subject of an outstanding NLRB
complaint.
Respondent further argues that General Counsel is mistaken-
ly relying upon the “procedural failing of Plaintiff’s counsel for
allowing the case to be marked off the calendar by failing to
attend a June 2010 court conference.” In its post-hearing brief,
Respondent contends that “had Dweck simply taken a default
judgment against Christopher in March 2009 or appeared at a
routine court conference in June 2009, there would be no Bill
Johnson’s claim in this case.” I surmise that this argument
relates back to Respondent’s contention that Christopher’s
claims are time barred, an assertion that I have rejected. In any
event, it is an argument based upon speculation of what might
have or could have occurred, and is not rooted in evidence of
what actually transpired. Similarly, Respondent argues that the
“baselessness” of the General Counsel’s theory is highlighted
by the fact that Alovic was not named in the lawsuit, even
though a complaint on his discharge was issued in February
2010. As Respondent argues: “If there was retaliatory intent in
the refiling, one would fully have expected the refilled lawsuit
to have included Alovic. It did not.” As an initial matter, this
appears to me to be an inadvertent apparent concession that
Respondent bore Alovic animus due to his protected conduct.
In any event, Respondent’s argument is, again, mere specula-
tion. I decline to draw the inference Respondent suggests based
upon what did not occur, absent more.
In Allied Mechanical Services, 357 NLRB 1223, 1232–1233
(2011), the Board considered what type of evidence will suffice
to prove that a baseless lawsuit was brought with a retaliatory
motive. The Board held that retaliatory motive may be inferred
from, among other things, the facts that the lawsuit was filed in
response to protected activity; that the employer-plaintiff bore
animus toward the defendant and particularly toward his pro-
tected activity; and that the lawsuit obviously lacked merit. Id.
As described above, the record reflects a prior history of
support for a union which the Atelier Board considered less
expensive in terms of its contractual obligations. While this
background is not dispositive, it does inform this discussion. In
addition, Christopher was a prime organizer for Local 32BJ,
who was unlawfully interrogated and then unlawfully dis-
charged. By the time the second lawsuit was filed, Christopher
had been the subject of an outstanding unfair labor practice
complaint and the two defendants who were residents at the
Atelier, individuals who arguably were far more likely to have
some involvement with the underlying dispute prompting the
allegedly defamatory statements at issue, had been dropped
from the lawsuit.
I find that the lawsuit’s obvious lack of merit as regards
Christopher, outlined above, is further evidence of Respond-
ent’s retaliatory motive. Moreover, the complaint seeks $190
million in damages and in this regard it cannot escape notice
that the only specifically named defendants are three dis-
charged building service employees. Despite this extraordinary
demand for damages, Respondent has offered no proof, and not
even an indication of what, if any, harm it suffered as a result
of the alleged defamation. In Bill Johnson’s the Court recog-
nized that “the chilling effect of a State lawsuit on an employ-
ee’s willingness to engage in protected activity is multiplied
where the complaint seeks damages in addition to injunctive
relief.” 461 U.S. at 741. The Board has held that an employer’s
request for punitive damages in a suit against a union can itself
be evidence of a retaliatory motive. Diamond Walnut Growers,
312 NLRB 61 (1993); see also Summitville Tiles, Inc, 300
NLRB 64, 66 (1990); H. W. Barss Co., 296 NLRB 1286, 1287
(1989). In BE &K, the Court majority left open the question of
whether a showing of retaliatory motive such as the fact that
the suit would not have been filed “but for” a motive to impose
litigation costs on the defendant, regardless of the outcome of
the case, would suffice to condemn even a reasonably based
lawsuit. 536 U.S. at 536–537. See also Diamond Walnut Grow-
ers, Inc. v. NLRB, 53 F.2d 1097 (9th Cir. 1995) (enfg. 312
NLRB 61); Phoenix Newspapers, Inc., 294 NLRB 47, 49–50
(1989); Machinist Lodge 91 (United Technologies), 298 NLRB
325, 326 (1990), enfd. 934 F.2d 1288 (2d Cir. 1991) (request
for excessive punitive damages can be evidence of retaliatory
motive). Here, the plaintiffs have been represented throughout
by counsel who, no doubt, would have realized that such large
sums of moneys sought as damages would have had no possi-
bility of being granted, or collected, even assuming that there
was any merit to the lawsuit’s contentions. Moreover, the evi-
dence shows that Christopher, facing a demand for damages
that he could not conceivably begin to meet, was obliged to
seek assistance in filing a pro se answer to the lawsuit and go to
the court to defend himself—notwithstanding the fact that the
plaintiffs’ attorney declined to make an appearance at the time.
Based upon the foregoing, I conclude that Respondent brought
this action against Christopher with the intent to use (and
abuse) court processes, regardless of any possible outcome,
with a retaliatory motive.
As has been discussed above, the timing of adverse action
taken against an employee has been found to reflect unlawful
(or retaliatory) motive. Here, such timing is further evidence of
the lawsuit’s retaliatory nature. Christopher was named in the
first lawsuit shortly after his unlawful discharge. The instant
lawsuit was filed in June 2010, 1 year after any allegedly de-
famatory comments had been disseminated and despite the fact
that the websites had been shut down immediately after the
initial lawsuit was filed in 2009. At the time the second lawsuit
was filed, Christopher was no longer an employee and had not
been employed by Respondent for 1 year: the only nexus link-
ing Christopher to Respondent was the extant NLRB complaint
alleging various unfair labor practices.
Taking all factors into account: the timing of Respondent’s
state court lawsuit; the meritless nature of the complaint allega-
tions insofar as they relate to Christopher; the request for ex-
cessive damages; Respondent’s history of animus toward Local
32BJ; the independent violations of Section 8(a)(1) found here-
in; the unlawful discharges and the other evidence and testimo-
ny adduced in this record lead me to the conclusion that Re-
spondent filed this lawsuit with a retaliatory motive under Bill
Johnson’s and its progeny. Accordingly, I find that the state
court lawsuit filed by Neiditch and Mehmedovic, as agents of
Respondent, against Christopher was both baseless and retalia-
tory under Supreme Court and Board law, in violation of Sec-
tion 8(a)(1) and (4) of the Act.
ATELIER CONDOMINIUM & COOPER SQUARE REALTY 1007
CONCLUSIONS OF LAW
1. Atelier Condominium and Cooper Square Realty (Re-
spondent) are joint employers and are engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
2. Local 32BJ, SEIU is a labor organization within the
meaning of Section 2(5) of the Act.
3. By the following conduct, Respondent violated Section
8(a)(1) of the Act.
(a) Interrogating employees about their union activities
and the union activities of others.
(b) Threatening employees with unspecified reprisals if
they supported the Union.
4. By discharging Nazmir Alovic and Sebastain Christo-
pher, Respondent violated Section 8(a)(1) and (3) of the Act.
5. By filing and maintaining a baseless and retaliatory law-
suit naming Christopher as defendant, Respondent violated
Section 8(a)(1) and (4) of the Act.
6. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effec-
tuate the policies of the Act. The Respondent, having discrimi-
natorily discharged Alovic and Christopher, must offer them
reinstatement and make them whole for any loss of earnings
and other benefits. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
at the rate prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010). Respondent
will also be ordered to withdraw its state court lawsuit against
Christopher, reimburse him for any costs associated with that
lawsuit and refrain from instituting or pursuing any state court
lawsuit against employees that lacks a reasonable basis and is
motivated by an intent to retaliate against participation in an
investigation of unfair labor practice charges filed before the
National Labor Relations Board or other activity protected by
Section 7 of the Act.
[Recommended Order omitted from publication.]