Nathan Katz Realty

National Labor Relations Board - Board Decisions

Apr 27, 1995

317 N.L.R.B. 73 (N.L.R.B. 1995)

73
317 NLRB No. 11
NATHAN KATZ REALTY
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
Nathan Katz Realty Co. and NMR Realty and
Local 32B-32J, Service Employees Inter-
national Union, AFL–CIO and Local 187, Fac-
tory and Building Employees Union, Party in
Interest. Cases 29–CA–16378 and 29–CA–16390
April 27, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On September 27, 1994, Administrative Law Judge
Eleanor MacDonald issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of the
judge’s decision.
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Nathan Katz Realty Co.
and NMR Realty, Queens, New York, their officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified below.
1. Add the following sentence to paragraph 1(d) of
the Order.
‘‘. . . This should not be construed to require or
permit the varying or abandoning of any provision that
increased wages and benefits over those which pre-
viously existed.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT instruct you not to contact labor orga-
nizations.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Local 32B-32J Serv-
ice Employees International Union, AFL–CIO or any
other Union, and we will not inform you that you are
being discharged because you joined the Union.
WE WILL NOT assist or contribute support to Local
187, Factory and Building Employees Union, by rec-
ognizing such labor organization as the exclusive rep-
resentative of our employees for the purpose of collec-
tive bargaining at a time when such labor organization
does not represent a majority of our employees in an
appropriate unit.
WE WILL NOT give effect to, perform, or in any
other manner enforce the collective-bargaining agree-
ment executed with Local 187 on or about February
15, 1992, or any modification, extension, renewal, or
supplement thereto, or any superseding agreement.
This should not be construed to require or permit the
varying or abandoning of any provision that increased
wages and benefits over those which previously ex-
isted.
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 offer Joseph Kutyla immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify him that we have removed from our
files any reference to his discharge and that the dis-
charge will not be used against him in any way.
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Miriam Katz, a principal of Respondent NMR Realty, attended
the instant hearing and testified on behalf of Respondent Katz.
2 My findings herein are based on the record made at the hearing
and, as to Respondent Katz, they are also based on the stipulation
of March 2, 1994. My findings as to Respondent NMR are based
on the record and on the allegations in the amended consolidated
complaint which are deemed admitted by NMR.
3 Kutyla’s native tongue is Polish and he testified through an inter-
preter.
WE WILL withhold recognition from Local 187, Fac-
tory and Building Employees Union as your represent-
ative unless it has been certified by the Board as your
exclusive collective-bargaining representative.
NATHAN KATZ REALTY CO. AND NMR
REALTY
Laura H. Kriteman, Esq. and Rhonda Aliout, Esq., for the
General Counsel.
Robert Lipman, Esq. (Lipman & Plesur), of Jericho, New
York, for Respondent Nathan Katz Realty Co.
Ira A. Sturm, Esq. (Manning, Raab, Dealy & Sturm), of New
York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Brooklyn, New York, on January 13, 1994.
The consolidated complaint, which named Nathan Katz Real-
ty Co. as the only Respondent, alleged that Respondent Katz,
in violation of Section 8(a)(1), (2), and (3) of the Act, di-
rected employee Joseph Kutyla to refrain from joining or
supporting Local 32B-32J; informed Kutyla that his dis-
charge was due to his membership in Local 32B; and dis-
charged Kutyla because he joined Local 32B. The complaint
also alleged that Respondent Katz recognized Local 187 and
entered into a collective-bargaining agreement with Local
187 notwithstanding that Local 187 did not represent a ma-
jority of its employees. On March 2, 1994, a stipulation was
entered into by the General Counsel, Local 32B-32J, and Re-
spondent Katz. On March 21, 1994, on motion of the Gen-
eral Counsel, the complaint was amended by adding certain
allegations and by adding NMR Realty to the caption of the
case as a Respondent. Respondent Katz filed an answer to
the amended consolidated complaint. Although it was served
with the General Counsel’s notice of motion and other rel-
evant documents, and although it was served with the order
amending the consolidated complaint, NMR Realty did not
file any opposition nor any answer herein.1 Thereafter, on
May 16, 1994, the record was closed and a date for the sub-
mission of briefs was set.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and by Respondent Nathan
Katz Realty Co. in June 1994, I make the following2
FINDINGS OF FACT
I. JURISDICTION
Nathan Katz Realty Co., a partnership with its principal
office at 41-33 75th Street, Elmhurst, New York, is engaged
in the management of residential apartment buildings, includ-
ing a residential apartment building located at 35-65 86th
Street, Jackson Heights, New York. NMR Realty, a partner-
ship with its principal office at 41-33 75th Street, Elmhurst,
New York, is engaged in the ownership and rental of a resi-
dential apartment building located at 35-65 86th Street, Jack-
son Heights, New York. Respondent Katz manages the Jack-
son Heights building owned by Respondent NMR, collects
all rental payments from the Jackson Heights building on be-
half of Respondent NMR, hires and fires all employees em-
ployed at the Jackson Heights building, is the payroll agent
for the Jackson Heights building and is reimbursed by Re-
spondent NMR for payroll expenses at the Jackson Heights
building, and conducts all labor relations for employees who
work at the Jackson Heights building. Annually, Respondent
Katz and Respondent NMR collectively derive gross rental
revenues in excess of $500,000 and receive at their New
York locations, goods and materials valued in excess of
$50,000 directly from points outside the State of New York.
Both Respondents herein admit, and I find, that Respondents
are joint employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act. It is not disputed,
and I find, that Local 32B-32J, Service Employees Inter-
national Union, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act, and that Local 187, Fac-
tory and Building Employees Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Nathan Katz testified that he is the owner of Nathan Katz
Realty and a principal in NMR. For a number of years, the
building at 35-65 86th Street had been served by a resident
superintendent named Al Perfetti. According to Nathan Katz,
Perfetti was ‘‘a 32B man,’’ and an outstanding superintend-
ent. Perfetti occupied a superintendent’s apartment on the
first floor of the building. He was covered by a collective-
bargaining agreement between Respondent Katz and Local
32B-32J which provided on April 21, 1988, for a weekly
wage of $376.20 with annual increases thereafter in 1989 and
1990. In addition, payments were made on Perfetti’s behalf
to union funds for pension and medical insurance, and
Perfetti was given paid holidays and vacation time. Perfetti
was a full-time, 8 hours a day superintendent who was ap-
parently much respected by the tenants of the building; he
retired in September 1991.
Nathan Katz controls about 20 buildings through Nathan
Katz Realty and NMR. As will be seen below, he makes all
of the personnel decisions and controls the finances of the
buildings.
2. Hiring of Joseph Kutyla
Joseph Kutyla testified that in September 1991, he was
interviewed for the position of resident superintendent at the
building located on 86th Street.3 Kutyla was interviewed by
Nathan Katz and by Jerzy (George) Gorczyn, the mainte-
nance foreman of Nathan Katz Realty, who acted as inter-
75NATHAN KATZ REALTY
preter between Kutyla and Katz. Kutyla was informed of the
duties of the superintendent’s position and was informed that
the job was his. Kutyla was told not to contact a union or
other organization. In response to this instruction, Kutyla
stated that if someone came from the Union, he would in-
form Katz and Gorczyn. Kutyla began work in September
and he was given an apartment on the sixth floor of the
building.
Kutyla testified that his immediate supervisor was
Gorczyn. The latter visited the building once a week or once
every 2 weeks and Kutyla saw him in the office once or
twice a week when he went to request parts, supplies, and
oil and to pick up checks. Gorczyn ordered all the supplies
for the building. Kutyla was taught to operate the boiler by
Gorczyn, the previous super and a mechanic from the oil
company. In addition, Miriam Katz, the daughter of Nathan
Katz and a principal in NMR, visited the building once every
3 or 4 weeks to instruct Kutyla to fix vacant apartments and
remove the coin receipts from the laundry room.
According to Miriam Katz, Kutyla was hired as a part-
time superintendent to work about 20 hours per week. Na-
than Katz, whose responsibilities include negotiating all con-
tracts for the buildings, hiring and firing all employees, mak-
ing all required contributions under any collective-bargaining
agreements, and signing all the paychecks, stated that he did
not apply the Local 32B contract to Kutyla. The record
shows that Kutyla was paid $200 per week; apparently no
contributions were made to any funds in his behalf.
3. Kutyla’s tenure as superintendent
Kutyla testified that after he had been at work for 1
month, Gorczyn permitted a painter named Kazic (Kazimierz
Gurga), to live in the basement. Kazic had keys to the build-
ing. Kazic sometimes painted apartments in the building and
he performed work in other buildings as well.
The front door of the building is kept locked and all the
tenants have keys to this door. There is no doorman, but a
buzzer and intercom system permits visitors to gain admit-
tance to the building. Tenants in individual apartments press
a button which unlocks the front door to admit visitors. A
dentist has an office in the building; according to Kutyla, the
dentist often buzzes people into the building without know-
ing their identity. The basement has side and back doors
which are locked by means of a fire safety mechanism. The
mechanism permits the door to be opened from the inside
without a key, but a key is necessary to open the door from
the outside. It is possible to prop the basement doors open
with a device so that they will remain open.
Kutyla stated that he did not get complaints from the ten-
ants about his work. Kutyla acknowledged however, that on
January 9, 1992, Gorczyn gave him a letter when he went
to the office. The letter, which is on Nathan Katz Realty let-
terhead and is signed by Nathan Katz, states:
We were informed by the tenants that you are not
maintaining the building the way it should be.
1. The building is not kept clean.
2. The security of the building is lax by not making
sure all doors around the surrounding buildings are
locked.
3. You have friends that are drunk and sleep in pub-
lic areas.
4. The washing machine has been broken into, which
has never happened before.
5. There have been robberies which has never hap-
pened before.
6. You have been told to maintain the boiler by
cleaning the oil filters once a week, you did not even
do it once.
This is a warning to advise you that if you do not
maintain the building you will be terminated from the
job.
According to Kutyla, when he asked Gorczyn about the
letter, Gorczyn replied that Kutyla should not worry about it.
Kutyla testified that he cleaned the oil filters on the burn-
ers once a week as he had been instructed to do. He ac-
knowledged that there had been a break in to the laundry
room. He denied that he permitted any one to sleep in the
public areas of the building, and he pointed out that others
had keys to the building and could have admitted strangers.
Miriam Katz, who testified that she visits all the buildings
managed by Respondent Katz in order to check on the main-
tenance and investigate tenant complaints, stated that she vis-
ited the building on 86th Street about once a week. Miriam
Katz testified that while Perfetti had been the superintendent,
the building was very clean, the brass and mirrors were pol-
ished, the floors were clean and she never had complaints
from the tenants. Once Kutyla began working in the building,
it looked run down, the halls, stairs and lobby were dirty,
there were cigarette butts and candy wrappers on the floors,
the brass turned black, garbage compactor areas were over-
run with roaches, and she got complaints from the tenants.
Kutyla did not report elevator or roof alarm problems
promptly, the basement doors were open, a drunk man was
found in the laundry and garbage, and debris piled up. In ad-
dition, Kutyla did not perform simple jobs that he should
have done such as replacing a washer.
Miriam Katz kept a diary of her visits to the various build-
ings controlled by her family. The diary shows that she made
11 entries about the building on 86th Street beginning on Oc-
tober 15, 1991, and ending on January 21, 1992. Miriam
Katz testified that the purpose of keeping notes was to help
her take any action that was required, to remind her to speak
to Gorczyn and so that she could instruct Gorczyn to issue
warnings to the supers. According to Katz, 99 percent of the
times she visited a building, she wrote a note in her diary.
The 11 entries relevant herein may be summarized as fol-
lows:
October 15, 1991: elevator did not close on the 2nd
and 3rd floors, dumpster required for garbage in back.
November 6, 1991: sidewalk and laundry room were
dirty.
November 15, 1991: building is filthy with dirt on
the floors and roaches.
November 22, 1991: Super to be instructed to empty
garbage compactor at least once a day or as necessary.
November 29, 1991: halls dirty again, Super to be
warned.
December 4, 1991: Gorczyn to talk to Super about
sweeping sidewalk.
December 16, 1991: garbage chutes filthy and over-
run with roaches.
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Gorczyn stated that Kutyla had performed well during his proba-
tion but that his work deteriorated thereafter; however, Gorczyn did
not say when the probation ended.
5 Kutyla was evicted from his apartment a few months later.
6 Neither Kazic nor Szuba testified herein; Szuba was still em-
ployed at the time of the instant hearing.
December 27, 1991: front door locks broken yester-
day.
January 7, 1992: two washers not working and Super
did not notify office.
January 14, 1992: Super could not be found and
building was filthy.
January 21, 1992: elevator stuck since last evening,
Super did not notify office. Also various notes for ren-
ovating an empty apartment including note that Super
should be taught to regrout the tub.
Miriam Katz testified that she asked Gorczyn to instruct
Kutyla to keep the building clean and to mop and polish the
floors, and that the latter reported back to her on four or five
occasions that he had transmitted her instructions to Kutyla.
Miriam Katz stated that the tenants were upset because the
building was less clean and was infested with roaches and
there was a drunken man in the laundry room. She also
found that the sidewalk was dirty and that the back of the
building was full of debris. Miriam Katz acknowledged that
other buildings required extermination services for roaches.
Miriam Katz testified that she recommended to her father
that Kutyla be discharged in November because he was fail-
ing to maintain the building, but that her father replied that
Kutyla should be given another chance. She also rec-
ommended Kutyla’s discharge at about the time of a tenant
petition dated January 6, 1992. The petition was addressed
to Nathan Katz and demanded that Kutyla be replaced as su-
perintendent because he was failing to maintain the building.
Miriam Katz admitted that she typed this petition and that
she went around the building and asked tenants to sign it
after a tenant who did not have the requisite language skills
asked her to write a petition. Various tenants of the building
testified about the signing the petition: none of these wit-
nesses could recall when they signed the petition, with one
witness stating that the petition was signed after Kutyla was
discharged, and another witness stating that it was signed in
November or December 1991. These witnesses all testified
about their dissatisfaction with the performance of Kutyla as
superintendent of the building and their belief that he was re-
sponsible for a decline in security.
Jerzy Gorczyn testified that he has been employed by Katz
Realty since July 1990. As the maintenance foreman he
checks on the condition of the buildings and hires contractors
to perform work. Gorczyn testified that the tenants in the
86th Street building complained about a lack of cleanliness
and a lack of security in the building after Kutyla was hired.
Gorczyn found that the back doors were open, the garbage
compactor rooms were filthy, and that the oil filters on the
boiler had not been changed. Miriam Katz told Gorczyn
about problems in the building and Gorczyn spoke to Kutyla
and instructed him to do a better job. But Kutyla did not im-
prove his performance.4 On four or five occasions, Gorczyn
told Nathan Katz to fire Kutyla but Katz told Gorczyn to
give Kutyla another chance. According to Gorczyn, Nathan
Katz has fired between 6 and 10 superintendents on his rec-
ommendation. Gorczyn denied knowledge of Kutyla’s mem-
bership in Local 32B-32J and he denied ever discussing the
Union with Kutyla. Gorczyn stated that Nathan Katz had
given permission for the painter Kazic to live in the base-
ment, and that Kazic had keys to the front door of the build-
ing but not to the back door. Gorczyn testified that Kutyla
lived on the sixth floor of the building in contrast to the pre-
vious superintendent who had lived on the first floor; he said
that Kutyla was supposed to check the lobby and the front
door a few times a day but that it was not his job to stand
in the lobby.
Kutyla testified that on February 7, 1992, Gorczyn told
Kutyla that he was dismissed and he gave Kutyla a paycheck
and a letter. Gorczyn told Kutyla that he was fired because
he joined the Union and that he should not have signed the
card for the Local 32B-32J. The letter signed by Nathan Katz
as ‘‘Landlord,’’ was entitled ‘‘Notice of Termination of Su-
perintendent Employment and Surrender of Apartment 6E.’’
It stated:
PLEASE TAKE NOTICE that your employment by
me is hereby terminated effective as of February 7,
1992. Notice is hereby given that you are required to
remove from and surrender up possession of apartment,
occupied by you under the agreement of employment
on or before February 14, 1992.5
Kutyla testified that Gorczyn did not tell him that he was
fired for poor work performance. Gorczyn did not testify
about his conversation with Kutyla on the day the latter was
discharged.
Kutyla testified that for some time after he was fired on
February 7, 1992, Kazic was the acting superintendent. Later,
a man named Szuba became the building superintendent.6
Tenant Beatrice Mehlman testified that Kazic was the tem-
porary superintendent for a few months after Kutyla’s dis-
charge. Tenant Albert Anavi testified that Kazic was the
super for a few months before Szuba was hired. Tenant
Grigori Krishtul testified that Kazic was the temporary super-
intendent for 1 or 2 months after Kutyla was fired.
Nathan Katz testified that at the time he discharged
Kutyla, he had never before fired any of the superintendents
at the buildings he controls. With respect to Kutyla, Katz
stated that he had many complaints about his performance
from tenants, from his daughter and from Gorczyn. Each
time Gorczyn urged him to fire Kutyla, Nathan Katz would
tell the latter to give the super another chance. Eventually,
Nathan Katz decided to fire Kutyla and he wrote the letter
on February 7, 1992, which informed Kutyla of his dis-
charge. Nathan Katz testified that he discharged Kutyla be-
cause he had received too many complaints about him. Katz
stated that he did not know Kutyla was a member of Local
32B-32J when he fired him and Katz denied ever discussing
the Union with Kutyla.
4. Local 32B-32J’s efforts to represent the employees
of Respondents
Anthony Spataro, a business agent for Local 32B-32J, tes-
tified that he called Nathan Katz in August 1991. Nathan
Katz had signed the 1988–1991 collective-bargaining agree-
ment with the Union on behalf of the building on 86th Street
77NATHAN KATZ REALTY
7 By contrast, the Local 32B-32J contract provides for payments
to various funds on behalf of the employee.
pursuant to which the previous superintendent, Perfetti, had
been compensated. In July 1991, the Union had sent Nathan
Katz a proposal for a successor agreement but it had received
no response. When Spataro spoke to Nathan Katz in August
1991, Katz said he had not yet had a chance to sign the suc-
cessor agreement because of medical problems. Spataro
called Katz again in November or December 1991, and Na-
than Katz told him that he had not been able to find the con-
tract in his files but that he would get back to him. Spataro
did not hear from Katz thereafter, and on January 24, 1992,
he visited the building on 86th Street. Spataro was surprised
to encounter Kutyla on the premises because he did not
know that Perfetti had retired. Spataro asked Kutyla if he
wanted to join the Union; Kutyla said that he did and he
signed an authorization card. Spataro testified that he tried to
reach Nathan Katz and that he eventually spoke to him on
February 6, 1992. Spataro asked Nathan Katz about signing
the new contract, but Katz replied that there was a new man
on the job who did not want to be in the Union. When
Spataro responded that Kutyla had already signed a card for
Local 32B, Katz expressed surprise and asked Spataro to
meet him at his office. On February 18, 1992, Spataro went
to Nathan Katz’ office and asked the latter to sign the suc-
cessor agreement. Katz said he would not sign the contract
and he informed Spataro that he had signed a contract with
Local 187. Katz told Spataro that his mind was made up and
that he had spoken to his attorney about the matter. Katz did
not inform Spataro that he had discharged Kutyla nor did he
mention that there had been problems with Kutyla’s perform-
ance.
Kutyla testified that Local 32B-32J business agent visited
him at the building on January 24, 1992, and asked about his
work and his pay. Kutyla told Spataro that he had to tell
Gorczyn if a union contacted him, and he telephoned the of-
fice but Gorczyn was not present. Then, Kutyla signed a
membership card for Local 32B-32J. On this occasion,
Spataro also called the office and asked to speak to Nathan
Katz, but the latter was out. Two or three days after the
meeting with Spataro, Kutyla told Gorczyn that he had
signed a card for the Union. Gorczyn said that Kutyla ‘‘did
not do well’’ by signing, that it was unnecessary and that the
boss did not like it that he had signed for the Union.
Nathan Katz testified that he has about 20 buildings and
that many of these are covered by collective-bargaining
agreements with Local 187. Respondent introduced into evi-
dence a request for recognition from Local 187 dated Feb-
ruary 8, 1992, a statement from Szuba that he was a member
of Local 187 dated February 8, 1992, and an authorization
card signed by Szuba dated February 8, 1992. The card states
that Szuba commenced his employment at the building on
February 7, 1992. Nathan Katz testified that he could not re-
call how he received these documents. A signed contract
with Local 187 covering the building was introduced into
evidence. The contract states on its face that it is effective
commencing February 15, 1992, for a term of 3 years, and
the body of the document discloses that the contract was en-
tered into on February 12, 1992. There are no dates next to
the signatures on the document. Nathan Katz testified that he
negotiated the contract over the telephone. Katz claimed not
to recall anything about this contract except that it provided
for a semi-monthly wage of $275 and he professed not to re-
call anything about the provisions of the contracts with Local
187 for the other buildings under his control. He was unable
to state whether any of his employees received medical in-
surance or pension contributions. In fact, the printed matter
in the instant contract providing for medical insurance has
been crossed out and there is no language dealing with a
pension.7
B. Discussion and Conclusions
Nathan Katz was an uncooperative witness: on cross-ex-
amination, he professed not to recall certain facts relating to
the most basic knowledge about his real estate operations. In
contrast, he was readily able to recall information that was
helpful to Respondents’ case. Further, Katz claimed never to
have fired a superintendent while his foreman, Gorczyn, tes-
tified that Katz has fired between 6 and 10 supers on his rec-
ommendation. I find that Nathan Katz was not a credible
witness and I shall not rely on his testimony where it is con-
tradicted by more reliable evidence. Gorczyn recalled many
facts about Kutyla’s employment. I observed, however, that
he was very eager to tell the same story as Nathan Katz and
that he was able to testify on direct without the benefit of
hearing the question before he began his answer. I am con-
vinced that Gorczyn came prepared to give only that testi-
mony which would support Respondents’ interests herein. I
shall not rely on Gorczyn’s testimony where it is contra-
dicted by more credible evidence. I shall rely on the testi-
mony of the other witnesses; I find that they did their best
to recall events that took place a long time before the instant
hearing.
I find, as alleged in the amended consolidated complaint,
that Respondent Nathan Katz Realty Co. exercises control
over the labor relations policy of NMR Realty and that it ad-
ministers a common labor policy with NMR Realty.
I credit the testimony of Kutyla that when he was hired,
he was instructed not to contact a labor organization. By
issuing this instruction, Respondents violated Section 8(a)(1)
of the Act.
The facts show that the building on 86th Street was well
cared for and clean during the tenure of Perfetti, the full-time
superintendent, prior to his retirement in September 1991.
Perfetti had been paid $376 per week and full benefits pursu-
ant to the Local 32B-32J contract. After Perfetti left, how-
ever, Respondents hired Kutyla to work 20 hours per week
at a wage of $200. The tenants soon began to complain that
the building was dirty and that maintenance was not up to
the former standard. Miriam Katz documented these defi-
ciencies. She and Gorczyn repeatedly urged Nathan Katz to
fire Kutyla, but Nathan Katz kept saying that Kutyla should
be given another chance. Although Nathan Katz testified that
he wanted to give Kutyla another chance and justified this
attitude by stating that he was unaccustomed to firing supers,
Gorczyn’s testimony shows that this is not true. Rather, I be-
lieve that Nathan Katz was aware that Kutyla could not pos-
sibly do the work in 20 hours that Perfetti had done in 40
hours, but Nathan Katz hoped that Kutyla could be made to
produce more in 20 hours per week and that the tenants
could be made to accept less in the way of cleanliness and
service. For this reason, Nathan Katz kept refusing requests
that Kutyla be fired. Indeed, I find that Nathan Katz con-
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
doned Kutyla’s failings and informed his daughter and fore-
man that Kutyla was to be kept on and trained to do a better
job. After the warning letter of January 9, 1992, Miriam Katz
noted in her diary on January 14, 1992, that the building was
dirty and that she could not find Kutyla and she noted on
January 21 that the elevator had been stuck overnight. On
January 21, however, Miriam Katz also made extensive notes
relating to the renovation of a vacant apartment, including
the note that Kutyla was to be taught how to regrout a tub.
Thus, as late as January 21, Nathan Katz was not intending
to discharge Kutyla and plans were still being made to give
further training to Kutyla. No precipitating factor has been
cited by Respondents for discharging Kutyla on February 7,
and no evidence has been presented to show that any unusual
event took place in the 17 days between January 21 and Feb-
ruary 7 that would have caused Kutyla’s dismissal. The only
event shown to have occurred during this time was the con-
versation between Spataro and Nathan Katz on February 6,
1992, when Spataro informed Katz that Kutyla had joined
Local 32B-32J and when Spataro asked Nathan Katz about
signing the new collective-bargaining agreement. I credit
Kutyla that Gorczyn told him that he was fired because he
joined the Union. Thus, I find that Respondents had knowl-
edge of Kutyla’s union membership when Kutyla was dis-
charged and I find that the discharge was caused by the rev-
elation that Kutyla had joined the Union. Although Kutyla
had not been a fully satisfactory employee until that day, Re-
spondents had condoned Kutyla’s failings and had sought to
improve his performance and to offer him further training. I
find that Kutyla’s inferior performance is cited as a pretext
by Respondents to mask the real reason for his discharge—
the fact that he joined Local 32B-32J. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983). Further-
more, Respondents have not shown that they would have dis-
charged Kutyla in the absence of his union activity; Nathan
Katz seemed determined to keep Kutyla and train him until
Katz learned of Kutyla’s membership in the Union. I find
that by discharging Kutyla and by informing Kutyla that his
discharge was due to the fact that he had joined Local 32B-
32J, Respondents violated Section 8(a)(3) and (1) of the Act.
It is clear to me that the building was not as well main-
tained during Kutyla’s tenure as it had been under Perfetti.
As I emphasized above, Perfetti had worked twice the hours
worked by Kutyla. Further, it is evident that Kutyla was not
an experienced superintendent since Gorczyn was training
him to perform many tasks. Moreover, many of the tenant
complaints were not necessarily attributable to Kutyla’s
failings. It has not been shown that Kutyla was responsible
for any break in to the building. A painter had been given
permission to sleep in the basement and any failure of secu-
rity or unauthorized persons present in the basement might
have been attributable to the painter. Problems in the lobby
could have been caused by the dentist who admitted people
to the building without checking their identities. Also, Kutyla
was not given an apartment on the first floor and was living
far from the lobby, thereby making it more difficult for him
to be aware of what was going on there. Finally, as a part-
time employee, Kutyla was not expected to be on the prem-
ises during a full-time work day; therefore he could not be
expected to see security problems and correct them as quick-
ly as Perfetti might have.
All of the reliable testimony shows that Kazic, the painter,
was the temporary superintendent of the building for some
period of time after Kutyla was discharged. The witnesses
who testified on the matter recalled that Kazic performed his
duties for 1 or more months. Thereafter, Szuba became the
superintendent of the building. The credible evidence leads
to the inescapable conclusion that Szuba was not employed
at the building on February 8, 1992, the day after Kutyla was
fired and the day Szuba purportedly signed an authorization
card for Local 187 and the day Local 187 purportedly re-
quested recognition from Nathan Katz. The credible evidence
also leads to the conclusion that Szuba was not employed by
Respondents on February 12 nor on February 15, 1992, the
days, respectively, when the contract with Local 187 was
signed and became effective. I note especially that Nathan
Katz testified that he could not recall how he received the
request for recognition nor could he recall much about his
purported negotiations with Local 187. Finally, no credible
evidence was introduced showing when Szuba actually began
working for Respondents, and Respondents did not call their
superintendent to testify about this issue. It is clear that,
Kutyla having been discharged unlawfully, he was still an
employee on February 12 and 15, 1992. Thus, when Re-
spondents entered into the contract with Local 187 on Feb-
ruary 12, 1992, Local 187 did not represent any employee
employed at the building. By recognizing Local 187 as the
exclusive collective-bargaining representative of employees
at the building and by entering into a collective-bargaining
agreement with Local 187 when Local 187 did not represent
any employees at the building, Respondents rendered unlaw-
ful assistance and support to Local 187 in violation of Sec-
tion 8(a)(2) and (1) of the Act.
I decline to defer the issue of Kutyla’s discharge to arbi-
tration as requested by Local 32B-32J because that issue is
intertwined with other issues herein that are inappropriate for
deferral.
CONCLUSIONS OF LAW
1. Respondents Nathan Katz Realty Co. and NMR Realty
are joint employers and Nathan Katz Realty Co. exercises
control over the labor relations policy of NMR Realty and
administers a common labor policy with NMR Realty.
2. By instructing their employee Joseph Kutyla not to con-
tact a labor organization, Respondents violated Section
8(a)(1) of the Act.
3. By discharging their employee Joseph Kutyla and by in-
forming Kutyla that his discharge was due to the fact that
he joined Local 32B-32J, Respondents violated Section
8(a)(3) and (1) of the Act.
4. By recognizing Local 187, Factory and Building Em-
ployees Union as the exclusive bargaining representative of
employees at the 86th Street building and by entering into
a collective-bargaining agreement with Local 187 at a time
when Local 187 did not represent any employees, Respond-
ent violated Section 8(a)(2) and (1) of the Act.
THE REMEDY
Having found that the Respondents have engaged in cer-
tain unfair labor practices, I find that it must be ordered to
79NATHAN KATZ REALTY
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
The Respondents having discriminatorily discharged an
employee, it must offer him reinstatement and make him
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
I shall recommend that Respondents, to dissipate the ef-
fects of their unfair labor practices, withdraw and withhold
all recognition from Local 187 and cease giving effect to the
collective-bargaining agreement dated February 15, 1992, or
to any renewal, modification, or extension thereof.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondents, Nathan Katz Realty Co. and NMR Real-
ty, Queens, New York, their officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Instructing employees not to contact labor organiza-
tions.
(b) Discharging employees because they joined a labor or-
ganization and informing employees that their discharge was
due to the fact that they joined a labor organization.
(c) Assisting or contributing support to Local 187, Factory
and Building Employees Union, or any other labor organiza-
tion, by recognizing such labor organization as the exclusive
representative of any of its employees for the purpose of col-
lective bargaining at a time when such labor organization
does not represent the majority of employees in an appro-
priate unit.
(d) Giving effect to, performing, or in any other manner
enforcing the collective-bargaining agreement executed with
the aforesaid labor organization on or about February 15,
1992, or any modification, extension, renewal, or supplement
thereto, or any superseding agreement.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Joseph Kutyla immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the
manner set forth in the remedy section of the decision.
(b) Remove from their files any reference to the unlawful
discharge and notify the employee in writing that this has
been done and that the discharge will not be used against
him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Withhold recognition from Local 187, Factory and
Building Employees Union as the representative of their em-
ployees unless the Union has been certified by the Board as
their exclusive collective-bargaining representative.
(e) Post at their building at 35-65 Street, Jackson Heights,
New York, and at their office at 41-33 75th Street, Elmhurst,
New York, copies of the attached notice marked ‘‘Appen-
dix.’’9 Copies of the notice, on forms provided by the Re-
gional Director for Region 29, after being signed by the Re-
spondents’ authorized representative, shall be posted by the
Respondents immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondents to ensure that
the notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondents have
taken to comply.