833 Central Owners Corp./CO BRG Realty

National Labor Relations Board - Administrative Judge Opinions

Sep 14, 2012

29-CA-070910 (N.L.R.B. Sep. 14, 2012)

JD(ATL)-22-12
Far Rockaway, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
833 CENTRAL OWNERS CORP.
and Case 29–CA–70910
LOCAL 621, UNITED WORKERS
OF AMERICA
Michael Berger, Esq.,
for the Acting General Counsel.1
Ernest R Strolzer, Esq. and
Hilary L. Moreira, Esq.,
for the Respondent.2
Bryan C. McCarthy, Esq.,
for the Charging Party.3
DECISION
Statement of the Case
WILLIAM NELSON CATES, Administrative Law Judge. This case was tried in
Brooklyn, New York, on May 7 and 8, 2012.4 The Union filed a charge initiating this matter on
January 15, 2012 (thereafter amended), and the Acting General Counsel issued the complaint on
February 21, 2012.5 The government alleges the Company engaged in various acts of
interference with its employees protected rights. The government also alleges the Company
issued four written warnings on the same day to its employee Ezra Shikarchy (Shikarchy), later
suspended him for 3 days and thereafter discharged him because of his support for the Union.

1 I shall refer to counsel for the Acting General Counsel as counsel for the government and to the National
Labor Relations Board (Board) as the government.
2 I shall refer to counsel for the Respondent as counsel for the Company and I shall refer to the Respondent
as the Company or cooperative.
3 I shall refer to counsel for the Charging Party as counsel for the Union and I shall refer to the Charging
Party as the Union.
4 All dates are 2011, unless otherwise indicated.
5 The government amended the complaint at the beginning of the trial to add two additional 8(a)(1)
allegations.
JD(ATL)-22-12
2
The Company contends it warned, suspended, and terminated Shikarchy because he was
not effectively and efficiently fulfilling his job duties.
The parties were given full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, and to file briefs. I carefully observed the demeanor of 5
the witnesses as they testified and I rely on those observations in making credibility
determinations here. I have studied the whole record,6 and based on the detailed findings and
analysis below, I conclude and find the Company violated the Act as alleged in the complaint.
Findings of Fact10
I. Jurisdiction, Supervisory/Agency Status, and Labor Organization Status
The Company is a domestic corporation with an office and place of business at 833
Central Avenue, Far Rockaway, New York, where it has been, and continues to be, engaged in 15
the operation of a cooperative apartment building. During the past year, a representative period,
the Company derived gross revenues in excess of $500,000; and, purchased and received at its
Far Rockaway location goods, products, and materials valued in excess of $5000 directly from
points outside the State of New York. The parties admit and I find the Company is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor 20
Relations Act (Act).
It is admitted that, at all times material herein, Mark Hertzberg was the Company Board
president and Steven Friedman was a Board member and that both are agents of the Company. It
is admitted Jeffrey Herskovitz, an employee of Benedict Realty Group, LLC (BRG), serves as 25
property manager responsible for the day-to-day operations of the Company. It is admitted
Herskovitz is an agent of the Company. The parties, in a posttrial document received in
evidence, stipulated Walter Berger was Company Board treasurer and an agent of the Company.
The parties admit and I find the Union is a labor organization within the meaning of 30
Section 2(5) of the Act. It is admitted Steven Sombrotto, at times material here, was president of
the Union

6 At the conclusion of evidence on May 8, 2012, I adjourned the trial to allow government counsel to review
certain documents pursuant to subpoena. I established a resumption date, if necessary, of June 5, 2012.
Government counsel filed a Motion on May 25, 2012, moving I close the record subject to accepting a
stipulation of the parties resolving the agency status of Walter Berger and the admission of a 3-page
document provided by the Company pursuant to subpoena. In an Order dated May 29, 2012, I received in
evidence the parties signed stipulation as GC Exh. 27 and the 3-page document as GC Exh. 26 and closed
the hearing.
JD(ATL)-22-12
3
II. Alleged Unfair Labor Practices
A. Facts
1. Background5
The cooperative’s apartment building has 56 units. A majority of the tenants are senior
citizens many of whom are widows. The cooperative operates through a Board of directors
elected by the property shareholders. Membership on the Board is voluntary and unpaid. The
Board has final authority with on all matters pertaining to the cooperative. About 7 years ago,10
the Board hired BRG to manage the day-to-day operations of the cooperative including payroll,
financials (making sure the money comes in, and as appropriate, paid out), preparing monthly
and annual budgets, monitoring calls/complaints from the property, and enforcing the bylaws and
proprietary leases of the cooperative. The cooperative employs seven staff members and
provides 24/7 service that includes porters, doormen, handymen, and a superintendent. All 15
employees, including the superintendent, are represented by the Union and have been since 2003.
The parties’ most recent collective-bargaining agreement expired November 2010. The parties
currently are in negotiations for a successor agreement.
Shikarchy was hired as superintendent at the Company on February 1, 2010, by his friend 20
of 20 years Board Member Friedman. Shirkarchy is paid $17.50 per hour and works a 40-hour
week (7 a.m. to 3 p.m.), Monday through Friday schedule. He is available on call at all times.
Shirkarchy, while employed, was provided an apartment on the property. Shikarchy was
supervised by BRG Manager Herskovitz.
25
2. Governments evidence
Shikarchy testified that about a month and a half after he was hired Board Member
Friedman told him union people were very bad and cost the cooperative a lot of money that
otherwise needed to be saved. Friedman told Shikarchy the cooperative was going to install 30
security cameras, fire everyone, and not need the Union anymore. According to Shikarchy,
Friedman explained he hated unions because his father had lost a business as a result of a union.
Shikarchy testified Friedman also told him Company Treasurer Berger did not like union people
either because Berger’s father had also lost a business because of a union.
35
Shikarchy testified, that in December 2010, as he was riding with Board President
Hertzberg to BRG Manager Herskovitz’s home, Hertzberg told him they had to go meet with the
Union regarding the Company’s discharge of employees Kenny Boykin and Jason Gomez.
Hertzberg said the Union was no good and cost the Company a lot of money. Hertzberg
explained the Company was going to install security cameras at its facility and get rid of the 40
Union. Hertzberg told Shikarchy the cooperative could not save money, could not do what they
wanted and they did not like the Union and wanted to get rid of it. Shikarchy testified he and
Hertzberg actually rode with BRG Manager Herskovitz from his home to the meeting with the
Union. During the drive Herskovitz showed Shikarchy his cell phone and explained the
Company was going to install security cameras allowing them to observe the facility via45
telephone and they would not need workers or doormen. According to Shikarchy, Herskovitz
JD(ATL)-22-12
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told him he did not like Union President Sombrotto and the union people and they were going to
get rid of the Union. Shikarchy testified Herskovitz stated that when he had to fire anyone that
was very good with him.
The parties did not resolve the status of Boykin and Gomez at the December mediation 5
meeting. Shikarchy testified Board Member Friedman had told him how he could trap employee
Boykin into doing something wrong so they could fire him. Shikarchy said Friedman wanted
Boykin fired because he was lazy and because of the Union. Shikarchy testified he and Board
Member Friedman later pushed to have Friedman’s son, Joseph, replace Boykin. Shikarchy said
they wanted Joseph hired so he could spy on the Union adding “that’s how to get rid of the 10
union.” Shikarchy testified that during that time he believed what the cooperative managers
were telling him about unions and concluded union people were bad and he hated Union
President Sombrotto also. Union President Sombrotto testified he considered Shikarchy to be a
“henchman” for the cooperative at that time. He said he always got complaints from employees
regarding harassment by Shikarchy.15
After some delays an arbitration hearing concerning the discharge of employees Boykin
and Gomez was set for June 20. Shikarchy testified that Board Member Friedman’s telling him
how to trap Boykin into doing wrong so he could be fired bothered him and as of the day of the
arbitration he wanted no more of it. Shikarchy testified Board Member Friedman, BRG Manager 20
Herskovitz, and Board President Hertzberg asked him to prepare for and testify at the arbitration.
Shikarchy said he tired to prepare for the arbitration with Herskovitz and the cooperative’s
lawyer shortly before the June 20 arbitration but added “I was not prepared for it.” Shikarchy
explained he did not prepare because “all this was wrong” “terrible” “[t]hey put me in a bad
position against my will.” Shikarchy testified Board Member Friedman told him at the 25
arbitration that he was a bad witness because he didn’t prepare and they might have to reinstate
Boykin. Friedman blamed Shikarchy for not preparing to testify. Shikarchy said his view of the
Union changed on arbitration day. Shikarchy said he even tried to signal to Boykin and the
Union he was sorry for what he had done and wanted to apologize but they could not believe
him. Union President Sombrotto acknowledged Shikarchy basically gave him a “thumbs up” at 30
the arbitration. The parties settled the Boykin/Gomez grievance with each being paid $5000 and
Boykin reinstated part time and Gomez waiving reinstatement.
Shikarchy testified Board Member Friedman had not harassed him before the June 20
arbitration but afterward began to do so. Shikarchy said BRG Manager Herskovitz had praised 35
his work prior to the June arbitration hearing saying he was the best superintendent he ever had,
invited him to a party and gave him a bonus, but, he said all that changed after the arbitration
hearing.
Shikarchy testified that during the last week in June Board Treasurer Berger told him 40
they had a Board meeting and Board President Hertzberg and Member Friedman wanted
Shikarchy out because he was switching to the Union and could do a lot of damage. Berger told
Shikarchy they had a plan and wanted him out. Shikarchy testified Berger told him they felt his
switching to the Union brought about Boykin and Gomez being reinstated and paid backpay.
Shikarchy testified Board Treasurer Berger also told him they were going to destroy him because 45
he switched to the Union and “they are going to do everything they can and they can do
JD(ATL)-22-12
5
everything they want.” Berger advised Shikarchy to “leave quickly . . . for [his] own benefit.”
Shikarchy testified that about this time Board Member Friedman and his son, Joseph Friedman,
began to constantly harass him followed him cursed and yelled at him and interfered with his job
duties. Shikarchy testified that on July 6 he suffered a stroke as a result of the harassment.
5
Shikarchy testified he became very active for the Union after June 20. Shikarchy
explained he signed up an employee for the Union, joined the Union’s negotiating team and
distributed union fliers to employees and shareholders at the cooperative. Union President
Sombrotto testified Shikarchy began to attend negotiation sessions as the employees only
representative in early October. Sombrotto explained Shikarchy was responsible for reporting 10
back to the employees what took place at the negotiating table. Sombrotto said he provided
Shikarchy with fliers which Shikarchy distributed starting October 6. Shikarchy testified that at
various times Board President Hertzberg, BRG Manager Herskovitz, and Board Treasurer Berger
told him to stop distributing the fliers with Hertzberg telling Shikarchy he was “so evil” and that
what he was doing was “all [a] lie” and he should stop.15
Shikarchy testified the harassment continued and on August 14 in the lobby of the facility
Board Member Friedman screamed at him and accused him of “torturing” and “making his son
[employee Joseph Friedman] miserable.” Shikarchy testified Board Member Friedman told him
he was going to Shikarchy’s ex-wife’s attorney and testify in the Shikarchy child custody matter 20
so Shikarchy would never see his children again. Shikarchy testified Board Treasurer Berger
was present and told him to call the Union, which he did. The next day Union President
Sombrotto filed a grievance for Shikarchy alleging harassment and a threat to interfere in the
Shikarchy custody matter by Friedman. This grievance was still pending as of the trial here.
25
Shikarchy testified BRG Manager Herskovitz telephoned him “very upset” about the
grievance asking how he could do this “terrible” thing. Shikarchy explained Board Member
Friedman had said he would destroy him, take away his children, damage his children by
testifying against him in his custody proceeding with his ex-wife. Shikarchy told Herskovitz he
would, however, telephone Union President Sombrotto and have Herskovitz’s name removed 30
from the grievance. Herskovitz told Shikarchy to drop the grievance and if he did not Herskovitz
would get him back. Shikarchy said he thereafter asked Sombrotto to do so but was told
Herskovitz was part of management and would remain a part of the grievance. Shikarchy
telephoned Herskovitz and told him he had tried but was unsuccessful. Herskovitz responded
“you better drop it [the grievance]” or “I [will] get you back”] and hung up.35
Between mid-August and early December, Shikarchy and Board Treasurer Berger spoke
several times about Shikarchy’s employment with the Company. Shikarchy testified Berger told
him:
40
I told you to leave, leave. You’re with the Union now. I hate the Union. They
going to destroy you. They going to destroy your reputation. If you go to any
job, you want to get the job, you will have a bad record. Leave for your own
benefit, leave the job. I worry about you. They going to do something to you.
You cannot win. They, no way out with them.45
JD(ATL)-22-12
6
Shikarchy testified Berger told him they had made him sick once, and reminded him of
his stroke, and asked if he wanted to be sick again.
Shikarchy testified Board Member Friedman spoke with him about the grievance on three
or four occasions in August and September in person and on the telephone. According to 5
Shikarchy, Friedman told him he better drop the grievance or something bad was going to
happen to him that he would be fired. Shikarchy testified Board President Hertzberg, in August,
asked him how he could do this to his friend Freidman. Hertzberg told Shikarchy he was a bad
evil person and told him to drop the grievance against Friedman or something bad was going to
happen to him “You’re going to be fired.”10
Shikarchy was called on September 7 to a meeting with BRG Manager Herskovitz and
BRG Owner Daniel Benedict in Herskovitz’s office. Herskovitz told Shikarchy he had to drop
the grievance and he did not want to hear anything about it. Shikarchy testified he tried to
respond and was told to be quiet, to drop the grievance, and he did not want to hear anything 15
about it. Shikarchy was handed four written disciplinary warnings. Shikarchy said he was
shocked and could not believe it. Each of the four warnings was a letter signed by Herskovitz,
addressed to Shikarchy dated September 7. Benedict explained to Shikarchy that if he became
neutral and remained quiet for 3 months he would tear up the warnings.
20
The first warning asserted Shikarchy had not maintained correct hours of work for the
employees. The second warning asserted Shikarchy had missed a meeting with an architect and
an engineer at the facility on June 21, at 3:30 p.m. The third warning asserted Shikarchy was
insubordinate because he asked Board members for authorization to order equipment, do work,
or utilize outside contractors rather than consulting with BRG Manager Herskovitz. The fourth 25
warning, labeled “Final Warning” asserted Shikarchy had falsely accused employee Joseph
Friedman of attacking him in the lobby of the facility on August 24. Shikarchy testified he was
not asked his position on the four warnings.
On October 27, Shikarchy was given a letter of suspension. The letter advised Shikarchy 30
he was suspended for 3 days without pay starting October 31, to November 2. In the letter
Shikarchy was reminded he had been given four warning letters earlier about his job duties. In
part the letter stated “you have not handled your basic duties and responsibilities such as
arranging for requested repairs on a timely basis, leaving your post without coverage. In
addition, your treatment of a number of residents has been insulting and improper. You have 35
ignored or not complied with many directives from management and the Board of Directors.”
Shikarchy was told if his performance did not improve there would be additional disciple up to
and including discharge.
Shikarchy testified he notified Union President Sombrotto of the October 27 suspension 40
and it was added to his August grievance and the September 7 warnings were also added.
On December 5, Shikarchy telephoned Board Treasurer Berger about his situation with
the Company. Shikarchy, without Berger’s knowledge, recorded the conversation. The
recording, as well as a certified transcript, was received in evidence. In the conversation Berger 45
told Shikarchy that if he would drop his charges with the Union involving Board Member
JD(ATL)-22-12
7
Friedman and not attend the mediation meeting scheduled for that Wednesday (December 7), the
Company would know he was no longer having anything to do with the Union and was on the
Company’s side and things could be worked out. Berger said those were two conditions
Shikarchy needed to meet in order for things to be worked out. Berger told Shikarchy that if he
came back with the Company then the Company would have better bargaining power with the 5
Union to get whatever it wanted. Berger, at various points in the conversation, repeatedly told
Shikarchy if the conditions were met “we can work it out” and you “won’t be harassed . . .
anymore” and “you’ll have a job.” Shikarchy asked Berger several times what would happen to
him if he stayed with the Union’s side. Berger told Shikarchy they will “probably fire you.”
10
On December 6, BRG Manager Herskovitz emailed Company Treasurer Berger that
Shikarchy was going to attend the scheduled mediation the next day. Berger responded
Herskovitz would have to do what he had to do.
On December 12, BRG Manager Herskovitz emailed the Board he would be by the 15
cooperative that day to terminate Shikarchy’s employment with the Company.
Shikarchy testified he received an email from his ex-wife that since he was no longer
going to have a job with the Company he could go to Florida to look for work if he wanted to.
Shikarchy immediately telephoned Board Treasurer Berger to find out what was going on.20
Shikarchy secretly recorded the conversation and the voice, as well as, a transcription thereof
was received in evidence. Shikarchy asked Berger how the Company could fire him. Berger
was surprised Shikarchy had not already been fired because Berger had received an email from
BRG Manager Herskovitz the day before that Herskovitz was going to the cooperative then to
personally discharge Shikarchy. Shikarchy asked Berger if what Berger had told him in a 25
previous conversation was correct, that if he did not leave the Union and come over to the
Company’s side, he would be fired. Berger wanted to know if Shikarchy had attended the
December 7 mediation meeting. Shikarchy told Berger he had but that nothing was said about
him (Shikarchy) at that meeting. Berger told Shikarchy he was going to write BRG Manager
Herskovitz about Herskovitz’s termination email concerning Shikarchy to inform him that the 30
building had never looked as clean and nice as it currently did and to inform Herskovitz that if
Shikarchy was fired and he sued the Company, he would back up Shikarchy.
Shikarchy testified he received a telephone call from BRG Manager Herskovitz on
December 13 requesting a meeting with him in the lobby at the cooperative. When they met 35
Herskovitz handed Shikarchy a termination letter. The letter stated:
I regret I have been asked to inform you that after 4 written warnings including a
suspension, 833 Central Owners Corps is hereby giving you this notice of
termination of employment.40
Upon hand delivery receipt of this notice, you are demanded to vacate the
premises within 3 days since your apartment was contingent upon your
employment. You are no longer able to work within the property.
45
JD(ATL)-22-12
8
3. Company’s evidence
The Company called, as its sole witness, BRG Manager Herskovitz and presented some
32 emails of interactions between Herskovitz and Shikarchy in support of its defense that 5
Shikarchy’s discharge resulted from his inability to perform his duties in an effective and
efficient manner and that he was unable to effectively oversee and operate the facility.
Herskovitz, stated that at one point during Shikarchy’s employment he believed he was a
wonderful and attentive employee as well as a good mechanic also expressed that opinion to
Union President Sombrotto.10
In as much as the Company contends it based its actions against Shikarchy, incuding his
discharge, on the issues discussed in and the facts surrounding the emails presented in evidence,
I have set forth such here. The emails cover July 26, to December 13.
15
BRG Manager Herskovitz testified that in a July 26 email Shikarchy sought direction on
purchasing certain needed materials locally. Herskovitz responded no local purchases were to be
made that he had already provided Shikarchy with a list of suppliers from which Shikarchy could
make purchases. That same day Herskovitz and Shikarchy exchanged emails regarding whether
Shikarchy had received some fire escape plaques to be installed at the facility that were delivered 20
to Company Porter Joseph Friedman. Shirkarchy replied he had not received them from
Friedman but had instructed Friedman to install the plaques. In the email Herskovitz directed
Shikarchy to install the plaques himself that it was the superintendent’s job.
BRG Manager Herskovitz received an email from Shikarchy on August 2 asking for a 25
meeting. The two met the next day and discussed keeping correct records for employees
regarding vacation and work scheduling. Herskovitz testified Shikarchy was deciding on his
own and reporting who worked what hours. He noted Shikarchy would deduct an hour from an
employee’s time if the employee was up to 20 minutes late for work. Herskovitz explained to
Shikarchy he was not entitled to do that, on his own, that everyone was late to work from time to 30
time. In an August 4 email, Shikarchy told Herskovitz an employee had received 2 days of
vacation pay but wanted two other paid days. Herskovitz testified Shikarchy had not provided
enough information for him to authorize payment and added “[m]y simple response to him was
in effect no big deal” just have a form filled out justifying the 2 extra days. Herskovitz said
Shikarchy had “stacks of that form in his office.”35
Herskovitz testified that while Shikarchy was to work a 40-hour week certain
accommodations were allowed in his schedule. Shikarachy could vary his starting and quitting
hours and the Company allowed him to travel on Fridays to New Jersey to pick up his children
for visitation rights without worktime deductions. Herskovitz and Shikarchy exchanged emails 40
on August 9, wherein Shikarchy wanted to take additional time on a particular day and
Herskovitz told him he could but he would not be paid for it. Shikarchy asked for clarification
about whether he could take the time off. Herskovitz said he could and that Shikarchy knew the
procedure for doing so before he asked and took up valuable time doing so.
45
JD(ATL)-22-12
9
Herskovitz testified it was Shikarchy’s duty to order supplies for the facility from a list of
distributors updated and provided and he did not need permission to, for example, order a wall
pack floodlight for the exterior of the facility. Notwithstanding that fact Shikarchy on August 16
emailed Herskovitz that he needed a fluorescent light and had even checked with an employee
about one. Herskovitz testified this only adds time to getting the job done, confuses employees,5
and it was Shikarchy’s duty to order and install the lights. Herskovitz testified he had already
informed Shikarchy about this procedure.
BRG Manager Herskovitz sent Shikarchy an email on August 22 advising him he had
received a complaint from a resident at the facility that Shikarchy had not properly fixed a 10
leaking window in the resident’s unit. Herskovitz said Shikarchy had told him he had done all he
could but could not repair the window. Herskovitz informed Shikarchy his job was never done
until the resident said the job was completed to the resident’s satisfaction. Herskovitz then
provided Shikarchy the name of a contractor to assist with the repairs. Herskovitz testified it had
been Shikarchy’s duty all along to arrange for the outside contractor and complete the job.15
Herskovitz testified he received telephone calls from property residents and Company
Board members about an incident between employee Friedman and Shikarchy in the lobby of the
facility on August 26. Shikarchy sent Herskovitz an email indicating he had found himself on
the floor of the lobby that Friedman “came after” him as they were discussing the whereabouts of 20
a vacuum cleaner. Herskovitz testified he and the Company board investigated the incident
including viewing the lobby security cameras and concluded Shikarchy’s version of the incident
was totally false. The Company Board directed Herskovitz to include the findings in
Shikarchy’s personnel file for future reference.
25
Herskovitz testified he received an email from Shikarchy on September 1 requesting
approval to repair a leaking window in one residence and a broken window in another.
Herskovitz said he again had to remind Shikarchy he did not need to come to him for approval
that the repairs were part of his job duties. Herskovitz said the more a superintendent had to ask
him these type questions the more he believed the superintendent did not understand his job-30
related responsibilities.
BRG Manager Herskovitz testified he received many complaints from employees about
their vacation schedules and vacation pay. Herskovitz sent Shikarchy a September 2 email
requesting he be provided a log indicating which doormen had requested vacation time and the 35
corresponding request forms otherwise he could not authorize payment for vacation times.
Herskovitz testified it was Shikarchy’s job to keep him so informed but had not.
Herskovitz testified that on September 7, he and BRG Owner Benedict met with
Shikarchy in Herskovitz’s office and issued him 4 written warnings. Herskovitz said their40
discussions centered around Shikarchy’s lack of understanding of his position at the property and
his misunderstanding of directions given to him by management. Herskovitz testified they told
Shikarchy to stop asking Company Board members to order equipment and/or authorize work.
Herskovitz acknowledged, on cross-examination, it could at first be confusing for a
superintendent to understand what priority to give requests from resident owners some of which 45
are “pushy.” Herskovitz even requested Board Member Freidman cease all communications
JD(ATL)-22-12
10
with Shikarchy and acknowledged many other tenants frequently asked Shikarchy to perform
repairs for them. Herskovitz said they also explained to Shikarchy it was Shikarchy’s duty to
keep up with work hours for the employees at the facility but told Shikarchy management would
be assuming that task for a while. Herskovitz testified they discussed the fact he had given
Shikarchy permission to have lunch with his children at noon on June 21, but that Shikarchy had 5
not told him he had an appointment to meet with an architect, engineer, and a Board member at
3:30 p.m. that afternoon. Herskovitz testified Shikarchy did not attend the meeting and informed
the Board member involved that Herskovitz had excused him from the meeting. Herskovitz
testified that was not true. Herskovitz, on cross-examination, stated he had not set up nor did he
know about the meeting ahead of time. Herskovitz did not know which Board member had in 10
fact set up the meeting nor how far in advance it was arranged and to his knowledge there was no
documentation showing Shikarchy was ever specifically directed to attend the meeting.
Herskovitz acknowledged the meeting was set for 3:30 p.m. even though Shikarchy’s work day
ended at 3 p.m. on that date. Herskovotz said however, that not showing up for a scheduled
meeting was a serious offense but acknowledged no report of the incident was made except in 15
the September 7 warning letter. Herskovitz testified they also told Shikarchy they were giving
him a final warning because he falsely claimed employee Friedman had knocked him down in
the lobby of the facility.
BRG Manager Herskovitz emailed Shikarchy on September 9 directing him to do his job 20
and assign someone to fill in a vacancy that had developed for the porter position. Herskovitz
said he had received telephone calls about the situation which required his time on matters
Shikarchy should have taken care of.
Herskovitz testified he emailed Shikarchy on September 14 explaining to him that if he 25
had to go for a court appearance in a child custody matter with his ex-wife on September 16, he
should go but he would not be paid for that time. Herskovitz testified he and BRG Owner
Benedict had previously told Shikarchy he could go but they were having to spend valuable time
telling him again.
30
BRG Manager Herskovitz testified about another incident that contributed to Shikarchy’s
discharge which involved Shikarchy requesting authorization to fill a pot hole in the parking lot
at the facility. Herskovitz emailed Shikarchy on September 15 to fill in the hole. Herskovitz
testified he had previously given Shikarchy a contractor to call to repair the hole and Shikarchy
did not need further permission and time was lost in his doing so.35
Herskovitz emailed Shikarchy on September 16 following up an email from Shikarchy
regarding work hours for Company porter Friedman. Herskovitz told Shikarchy he had
misunderstood his earlier directions and added, “You have a serious communication problem
that has been addressed for months now . . . [s]top making up stories, asking for clarification 40
every day regarding every direction and stop creating controversy where there is none.”
JD(ATL)-22-12
11
Herskovitz sent Shikarchy an email on Wednesday, September 28, asking that he replace
a light bulb and said it should have been done on Monday. Shikarchy said he was sick at the
time. Heskovitz then responded for Shikarchy to replace the bulb that it should not take 2 days to
do so.
5
On October 4, Shikarchy emailed Herskovitz that he had an appointment on October 6,
and would be away from work. Herskovitz replied that he needed more information and
informed Shikarchy he would have to arrange for someone to fill in for him. Herskovitz said all
these situations were taken into consideration in disciplining Shikarchy.
10
On October 17, Herskovitz sent Shikarchy 2 emails. The first informed Shikarchy work
orders were made up by management not by Shikarchy and that overtime for himself had to be
authorized by the Board or management. Herskovitz testified that in this case Shikarchy had
made up his own work order and performed work pursuant to it without approval. The second
email advised Shikarchy to fix a slamming door on the side of the facility. Herskovitz said he 15
had examined the door himself and it only needed an armature adjustment at the top of the door
and that he had asked Shikarchy “weeks before” to fix it. Herskovitz testified he had been
contacted by shareholders complaining the slamming door awakened them at night. Herskovitz
could not recall, by name, any of those complaining.
20
BRG Manager Herskovitz testified Shikarchy was given notice by a Board member on
October 27 he was suspended from work for 3 days without pay. The suspension was effective
from October 31, through November 3. Herskovitz testified Shikarchy was given the
suspension, in part, because of “his absences from the property which follows to items not being
fixed or upgraded as needed, schedules not being adhered to.” Herskovitz said he met with 25
Union President Sombrotto and Shikarchy around November because he was “inundated every
day” by shareholders and Board members that repairs at the facility were not getting made.
Herskovitz testified he told Shikarchy the property was quite literally going to fall apart.
BRG Manager Herskovitz received an email form Shikarchy on November 3 advising he 30
had checked the air valves in one of the properties and was seeking permission to replace them.
Herskovitz said if he did not respond Shikarchy would not do the repairs but added Shikarchy
did not need further authorization.
Herskovitz testified he emailed Shikarchy on Monday, November 11, to order alarms for 35
the roof top doors and install them the following Monday. Herskovitz said Shikarchy did not
install them and he had to be given a direct order to do so even though it was the type work to be
performed by the superintendent.
BRG Manager Herskovitz said there were some broken benches at the back of the 40
property but the Board had not made a decision regarding what to do with them. Herskovitz
testified Shikarchy took it upon himself to place yellow tape around the benches that created an
eye sore at the property. Herskovitz was asked by Board members why he had told Shikarchy to
place tape on the benches. Herskovitz told them he had not done so and emailed Shikarchy on
November 16 directing he move the benches to a corner of the property and remove the yellow 45
JD(ATL)-22-12
12
tape. On November 22, Herskovitz emailed Shikarchy asking why he had still not taken care of
the matter or removed the tape.
Herskovitz testified that over the evening hours on December 1 he received many voice
mails from shareholders and/or tenants complaining Shikarchy was taking out garbage at night. 5
Herskovitz emailed Shikarchy asking why he was making noise taking out the garbage at 9 p.m.
Herskovitz said Shikarchy explained he was helping employee Friedman whose job it was to
take out the garbage.
Herskovitz testified one of the reasons Shikarchy was interviewed and hired was his 10
claim he was very mechanically inclined. Herskovitz said he asked Skhikarchy to fix the leaf
blower and lawnmower and to be sure the snow plow, which Shikarchy had assembled when it
was purchased, was in working order. Herskovitz testified he received an email from Company
porter Friedman on December 2 stating Shikarchy had instructed him, by Horskovitz’s authority,
to fix the lawnmower and leaf blower. Herskovitz emailed Friedman he had not so instructed 15
Shikarchy and emailed Shikarchy that day instructing him to do the jobs.
Herskovitz testified that in an email dated December 5, he directed Shikarchy to cover for
the porter in the porter’s absence. Herskovitz testified Shikarchy had, in the past, stated he was
capable of doing both his and the porter’s job. Herskovitz said Shikarchy, in a reply email the 20
same day, argued that in the past they had always obtained a fill in for the porter. Herskovitz
testfied Shikarchy was always arguing with him.
Herskovitz emailed Shikarchy on December 8 advising him not to direct an outside
roofing contractor to do interior repairs in an apartment which was well beyond Shikarchy’s 25
authority that Shikarchy was to do inside repairs himself or obtain an interior contractor to
perform the work. Herskovitz testified that again on December 11, Shikarchy requested
authorization to schedule a fill in porter at the facility even though he did not need further
authorization because he had already given him full authorization. Herskovitz testified this
troubled him because he feared Shikarchy was not properly and timely scheduling positions to be 30
covered.
BRG Manager Herskovitz testified the Board of Directors voted on December 12 to
terminate Shikarchy and he was terminated on December 13. Herskovitz testified Shikarchy was
terminated because of his absences from work, his inability to follow instructions, and because 35
“at that point in time [the building] was falling apart.”
Herskovitz testified he had no discussions with Company Treasurer Berger in December
regarding the Company being willing to not terminate Shikarchy if Shikarchy stopped supporting
the Union. Herskovitz also denied authorizing Berger to offer such a resolution to Shikarchy.40
It is appropriate to address the credibility of Shikarchy even though his testimony related
to Company Board President Hertzberg and Board Member Friedman was not challenged as
neither testified. Further certain critical statements Shikarchy attributed to BRG Manager
Herskovitz and Board Treasurer Berger were not specifically responded to or refuted. I credit 45
Shikarchy’s testimony. In arriving at my conclusion on Shikarchy’s credibility I was greatly
JD(ATL)-22-12
13
impacted by impressions I formed as I observed him testify. While Shikarchy frequently
answered questions with more, or beyond, what he was asked, a fact I cautioned him about more
than once, I nonetheless concluded he attempted to testify truthfully. I am persuaded his
extended answers were an attempt to tell what he perceived to be a full account of what had
transpired rather than to exaggerate or misspeak facts. It was clear observing Shikarchy testify 5
he has strong feelings as to the correctness of his cause and he sometimes expressed himself
loudly and with gesticulations. I did not find such to indicate an attempt to misspeak the truth
but rather to convey emphasis. On the other hand, I am persuaded, after observing Company
Treasurer Berger testify, he did so with a self-imposed and deliberate failure to recall certain
facts and dates. Nonetheless, I rely on certain portions of Berger’s overall testimony, namely the 10
recorded conversations between he and Shikarchy. To the extent, if any, there are conflicts, real
or perceived, between Shikarchy’s testimony and that of Berger or Herskovitz I credit Shikarchy.
Furthermore, I am specifically unwilling to credit Herskovitz’s denial he had no discussions with
Berger in December about any willingness on the part of the Company not to discharge
Shikarchy if he disavowed his support for the Union or Herskovitz’s denial he ever authorized 15
Berger to convey such an offer to Shikarchy. I have not commented on but I have considered all
testimony and exhibits in deciding the facts herein.
III. Discussion, Analysis, and Conclusions
20
A. The 8(a)(1) Issues
It is alleged that around August or September, Company Board President Hertzberg, at
the facility, threatened an employee with discharge and unspecified reprisals if he continued to
engage in union activities.25
Shikarchy credibly testified, without contradiction [Hertzberg was not called to testify],
that after he filed a grievance in August against Board Member Friedman for harassment that
Hertzberg asked Shikarchy how he could do this to his friend Freidman, and told Shikarchy he
was a bad evil person and directed Shikarchy to drop his grievance against Freidman or30
something bad was going to happen to him that he was going to be fired. First, I note
Shikarchy’s filing a grievance constituted concerted protected activity. NLRB v. Disposal
Systems, Inc. 465 U.S. 822, 836 (1984). Hertzberg’s threatening Shikarchy that bad things
would happen to him if he did not withdraw his grievance constitutes a threat of unspecified
reprisals for engaging in protected conduct and Hertzberg’s telling Shikarchy he would be fired 35
if he did not withdraw his grievance constitutes an unlawful threat of discharge and I so find.
It is alleged that about August or September, Company Board Member Friedman, at the
facility, threatened an employee with discharge if he continued to engage in union activities.
40
Shikarchy credibly testified, without contradiction [Freidman was not called to testify],
that Friedman on three or four occasions told him either in person or on the telephone he better
drop his grievance against Freidman or something bad was going to happen to him he would be
fired. It is clear and I find that Freidman, on these occasions, unlawfully threatened Shikarchy
with discharge if he did not withdraw his grievance against Freidman.45
JD(ATL)-22-12
14
It is alleged that about August or September BRG Manager Herskovitz in a telephone
conversation, and at the offices of BRG, threatened an employee with discharge if he continued
to engage in union activities.
Shikarchy credibly testified [Herskovitz did not specifically deny], that Herskovitz 5
telephoned him shortly after he filed the August grievance against Board Member Freidman and
asked how he could do such a terrible thing. Shikarchy explained Freidman had said he would
destroy Shikarchy, take away his children by testifying against Shikarchy in custody proceedings
with his ex-wife. Herskovitz told Shikarchy to drop the grievance and if he did not he would get
him back. Shikarchy told Herskovitz he would try to get his name removed from the grievance.10
Shikarchy telephoned Union President Sombrotto but was unable to get Herskovitz’s name
removed and telephoned Herskovitz telling him he could not. Herskovitz again told Shikarchy to
drop the grievance and if he did not he would get him back and hung up the telephone. On
September 7, at a meeting in Herskovitz’s office, Herskovitz yet again told Shikarchy he had to
drop the grievance and added he did not want to hear anything more about it. While the 15
comments of Herskovitz may not actually constitute threats to discharge Shikarchy for his
protected activity I find the comments constitute threats of unspecified reprisals against
Shikarchy.
It is alleged that about September or October Company Treasurer Berger, in a telephone 20
conversation, and at the Company facility, threatened an employee with unspecified reprisals
because of his support for, and activities on behalf of, the Union.
Shikarchy testified, without contradiction [Berger testified but did not address these
matters], that between mid-August and early December, Berger spoke with him several times 25
about his employment with the Company. Berger told Shikarchy to leave his employment that
he was now with the Union and he hated the Union. Berger told Shikarchy the Company was
going to destroy him and his reputation and if he wanted a job elsewhere he would have a bad
record. Berger implored Shikarchy to leave for his own benefit that he worried about him and his
health. Berger told Shikarchy they had made him sick once and reminded him of his stroke and 30
asked if Shikarchy wanted to be sick again. Berger told Shikarchy they were going to do
something to him that he could not win that there was no way out for him. By telling Shikarchy
the Company was going to destroy him and do something to him that he could not win and had
no way out Berger clearly threatened Shikarchy with unspecified reprisals in violation of the Act
and I so find.35
It is alleged that about December 5 Company Treasurer Berger, in a telephone
conversation, threatened an employee with discharge and unspecified reprisals because of his
support for the Union and impliedly promised the employee benefits to discourage him from
supporting the Union40
It is undisputed that Shikarchy telephoned Berger and recorded their December 5
conversation. In the exchange Berger told Shikarchy if he would drop his charge with the Union
against Board Member Friedman and not attend a mediation on the matter scheduled for
December 7, they would know he no longer was having anything to do with the Union but rather 45
was back on the Company’s side and things could then be worked out for him. Berger explained
JD(ATL)-22-12
15
that with Shikarchy back on the side of the Company the Company would have better bargaining
power with the Union to get whatever it wanted. Berger told Shikarchy, more than once, that if
he did as they asked “we can work it out,” he would not “be harassed . . . anymore,” and would
“have a job.” When Shikarchy asked what would happen if he stayed with the Union Berger
responded the Company would probably fire him. It is clear Berger threatened Shikarchy with 5
discharge if he did not abandon his support for the Union. Berger also specifically promised
employee benefits to Shikarchy if he dropped his support for the Union namely he would no
longer be harassed, everything would be worked out, and he would continue to have a job.
Berger’s promises and threats violate the Act and I so find.
10
B. The Warnings, Suspension, and Discharge of Shikarchy
In cases alleging violations of Section 8(a)(3) and (1) of the Act where the employer’s
motive is in issue, as is the case here, the Board applies the analytical framework set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.1981), cert. denied 455 U.S. 15
989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
Under Wright Line, the Acting General Counsel must first prove, by a preponderance of the
evidence, that the employee’s protected conduct was a motivating factor in the employer’s
decision. Once the Acting General Counsel makes that showing by proving the employee’s
union or protected activity, employer knowledge of the union or protected activity, and employer 20
animus against the employee’s protected conduct, the burden of persuasion shifts to the employer
to demonstrate it would have taken the same action even in the absence of the protected conduct.
See Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004). If, however, “the evidence
establishes that the reasons given for the employer’s action are pretextual—that is, either false or
not in fact relied upon—the employer fails, by definition, to show that it would have taken the 25
same action for those reasons, absent the protected conduct, and thus there is no need to perform
the second part of the Wright Line analysis.” Rood Trucking Co., 342 NLRB 895, 897–898
(2004) (citations omitted); see also Austal USA, LLC, 356 NLRB No. 65, slip op. at 2 (2010) (if
proffered reason for discharge is pretextual, employer necessarily fails to establish Wright Line
defense).30
Applying the above, I address each element of the government’s burden of proof as to
whether Shikarchy’s union activities was a motivating factor in the Company’s decision to warn,
suspend, and discharge him. The evidence establishes Shikarchy supported the Union. Although
Shikarchy, early in his employment with the Company, supported the Company’s position 35
related to the Union, he later changed to supporting the Union. Shikarchy’s first support for the
Union, established here, began when Shikarchy did not prepare for his anticipated testimony on
behalf of the Company at an arbitration hearing on June 20 involving the discharge of employees
Boykin and Gomez. Shikarchy not only did not testify but openly displayed his support for the
Union’s position by giving a thumb’s up to the Union. On August 14, Shikarchy claimed 40
harassment by Board Member Friedman because he supported the Union. A grievance was filed
for Shikarchy the next day against Friedman asserting harassment by Friedman including
Friedman threatening to interfere in a custody matter involving Shikarchy and his ex-wife. The
filing of a grievance constitutes conduct protected by the Act NLRB v. City Disposal Systems,
Inc., 465 U.S. 822, 836 (1984). After June 20, Shikarchy signed up an employee for the Union, 45
JD(ATL)-22-12
16
joined the Union’s negotiating team around October, and distributed various union flyers to
employees and shareholders of the Company regarding negotiations and employee concerns.
The Company was aware of Shikarchy’s union activities. Shikarchy’s lack of preparation
for the June 20 arbitration indicated to the Company Shikarchy no longer supported the 5
Company’s position. Board Member Friedman told Shikarchy, at the arbitration, that his not
preparing to testify might result in the Board having to reinstate Boykin. Board Treasurer Berger
told Shikarchy during the week of June 20 that at the Board’s most recent meeting Board
President Hertzberg and Board Member Friedman had stated they wanted Shikarchy out because
he was switching his support to the Union and could do a lot of damage to the Company. Berger 10
also told Shikarchy they felt his switching to the Union’s side brought about employees Boykin
and Gomez being offered reinstatement with backpay. The Company was fully aware Shikarchy
distributed flyers for the Union to its employees and shareholders. Company Board President
Hertzberg, BRG Manager Herskovitz, and Board Treasurer Berger told Shikarchy to stop
distributing the flyers with Hertzberg telling Shikarchy it was evil for him to distribute union 15
flyers. The Company clearly knew Shikarchy was participating at the negotiation sessions on
behalf of the Union’s committee. The Company was given a copy of the Shikarchy grievance.
The government established the Company harbored animus specifically against
Shikarchy’s protected activities and against the Union in general. Starting in mid-March 2010,20
Board Member Friedman told Shikarchy union people were very bad and cost the Company lots
of money and the Company was going to install security cameras, fire everyone, and no longer
need the Union. Friedman also told Shikarchy he hated unions. In December 2010, Board
President Hertzberg told Shikarchy the Union was no good, cost the Company money, prevented
them from doing what they wanted, they did not like the Union and wanted to get rid of it. On 25
that same occasion BRG Manager Herskovitz told Shikarchy he did not like Union President
Somborro and the union people and they were going to get rid of the Union. Board Treasurer
Berger told Shikarchy, between June and September, the Board was going to destroy him
because he switched to the Union and told him the Board could do anything they wanted. Berger
urged Shikarchy to leave the Company for his own benefit because he was with the Union and30
told Shikarchy he hated the Union. Berger also told Shikarchy the Board was going to do
something to him that there was no way out for him and he could not win. Board Member
Friedman repeatedly told Shikarchy in August and September he should drop his grievance
against Friedman or something bad would happen to him that he would be fired. Board
President Hertzberg told Shikarchy in August he was evil for filing the grievance against 35
Friedman and to drop it or something bad would happen to him he would be fired. When
Shikarchy was given four written warnings on September 7, he was told by BRG Manager
Herskovitz he had to drop the grievance against Friedman and he did not want to hear anything
more about it.
40
Board Treasurer Berger told Shikarchy on December 5 that if he would drop his
grievance against Board Member Friedman and not attend a mediation session on the matter
scheduled for 2 days later the Company would know he was no longer with the Union and on the
Company’s side and things could be worked out. Berger told Shikarchy the Company would
have better bargaining power with Shikarchy on their side and the Company could get what ever 45
it wanted in the negotiations and Shikarchy could have a job, but, if he stayed with the Union he
JD(ATL)-22-12
17
would probably be fired. Shikarchy attended the mediation session and approximately a week
later was fired.
Based on all the above, I find the record amply demonstrates government counsel has
sustained his initial Wright Line burden of showing that Shikarchy’s involvement in the union 5
and protected activities was a motivating factor in the Company’s decisions to warn, suspend,
and discharge him.
I find the Company failed to meet its Wright Line burden of showing Shikarchy would
have been warned, suspended, and discharged for legitimate business reasons even if he had not 10
engaged in union and/or protected activities. The credited evidence clearly establishes the
Company’s proffered reasons for warning, suspending, and discharging Shikarchy were
pretextual—that is, they were not in fact relied upon. Rather, the evidence shows, as clearly
stated by Board Member Berger, the discipline against Shikarchy and his discharge was based on
his union and protected activities. Berger told Shikarchy that everything involving him could be 15
worked out, the harassment against him stopped and he could have his job, but, he had to make a
choice and drop his support for the Union and be on the Company’s side or be unemployed.
Further evidence demonstrates the pretextual nature of the Company’s defense.
Shikarchy’s record was that of an attentive employee without discipline until he engaged in 20
protected activities and shifted his support to the Union. All of the email evidence proffered by
the Company to support its defense involved incidents that occurred after Shikarchy’s support
for the Union was known to the Company. The Company advanced no justifiable explanation
for issuing four written warnings to Shikarchy on 1 day, September 7, for events dating back to
June 21, 1 day after Shikarchy made his support for the Union known. In early October,25
Shikarchy took on a greater role for the Union becoming the sole employee member on the
Union’s negotiating committee and the one responsible for keeping employees informed of the
status of negotiations through fliers and other means. On October 27, Shikarchy was suspended
for 3 days without pay for not properly handling his job duties and mistreating residents. Again
the timing of the Company’s action is suspicious and the Company failed to satisfactorily 30
establish sufficient details regarding complaints of residents being improperly treated or how
Shikarchy’s job performance declined quickly. I find it unnecessary to address, in detail, each of
the asserted defenses raised by the Company because the evidence is compelling Shikarchy was
warned, suspended, and discharged for his union activities and that the reasons advanced by the
Company were pretextual. I find the Company violated Section 8(a)(3) and (1) of the Act by 35
warning, suspending, and discharging its employee Shikarchy.
CONCLUSIONS OF LAW
REMEDY40
Having found the Company has engaged in certain unfair labor practices, I find it must be
ordered to cease and desist and to take certain affirmative action designed to effectuate the
policies of the Act. Specifically, to remedy the unlawful conduct toward Ezra Shikarchy, the
Company must, within 14 days of the Board’s Order, offer him reinstatement to his former job, 45
or if his former job no longer exists, to a substantially equivalent job without prejudice to his
JD(ATL)-22-12
18
seniority or other rights and privileges previously enjoyed, and make him whole for any lost
wages and benefits as a result of his October, 27, 2011 suspension, and December 13, 2011
discharge, with interest. Backpay will be computed as outlined in F. W. Woolworth Co., 90
NLRB 289 (1950) (backpay computed on quarterly basis). Determining the applicable rate of
interest will be as outlined in New Horizons for the Retarded, 283 NLRB 1173 (1987) (adopting 5
Internal Revenue Service rate for underpayment of Federal taxes). Interest on all amounts due to
the employee shall be compounded on a daily basis as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010), enf. denied on other grounds sub. nom. Jackson Hospital Corp.
v. NLRB, 647 F.3d 1137 (D.C. Cir 2011). I also recommend the Company, within 14 days of the
Board’s Order, be ordered to remove from its files any reference to its October 27, 2011 10
suspension and December 13, 2011 discharge of Ezra Shikarchy and, within 3 days thereafter,
notify Ezra Shikarchy in writing it has done so and his suspension and discharge will not be used
against him in any manner. I also recommend the Company be ordered, within 14 days after
service by the Region, to post an appropriate “Notice to Employees” in order that employees
may be apprised of their rights under the Act, and the Company’s obligation to remedy its unfair 15
labor practices.
On these findings and conclusions of law and on the entire record, I issue the following
recommended7
20
ORDER
The Company, 833 Central Owners Corp., Far Rockaway, New York, its officers, agents,
successors, and assigns, shall
25
1. Cease and desist from
(a) Warning, suspending, discharging, or otherwise discriminating against
employees for engaging in union activity protected by the Act.
30
(b) Threatening employees with discharge or unspecified reprisals because of
their support for and activities on behalf of a union.
(c) Impliedly promising employees benefits to discourage them from
supporting and/or engaging in activities on behalf of a union.35
(d) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the40
Act.

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
JD(ATL)-22-12
19
(a) Within 14 days from the date of the Board’s Order, offer Ezra Shikarchy
full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Ezra Shikarchy whole for any loss of earnings and other benefits 5
suffered as a result of the discrimination against him, in the manner set forth in the remedy
section of this decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files
any reference to the unlawful warnings, suspension, and discharge of Ezra Shikarchy, and within 10
3 days thereafter, notify him in writing that this has been done and that the warnings given him
and his suspension and discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated by 15
the Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of the records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its Far Rockaway, New 20
York facility, copies of the notice marked “Appendix.”8 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by the Company’s authorized
representative, shall be posted by the Company and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed electronically, such as 25
email, posting on an intranet or an internet site, or other electronic means, if the Company
customarily communicates with its employees by such means. Reasonable steps shall be taken
by the Company 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 Company has gone out
of business or closed the facility involved in these proceedings, the Company shall duplicate and 30
mail, at its own expense, a copy of the notice to all current employees and former employees
employed by the Company at any time since September 2011.
Dated at Washington, D.C. September 14, 2012
35
__________________________________
William Nelson Cates40
Administrative Law Judge

8 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 the
United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(ATL)-22-12
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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT suspend, discharge, or otherwise discriminate against any of you for engaging
in union activity protected by the Act.
WE WILL NOT threaten any of you with discharge or unspecified reprisals for engaging in
union activity protected by the Act.
WE WILL NOT impliedly or otherwise promise any of you benefits to discourage you from
supporting and engaging in union activities protected by 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 this Order, offer Ezra Shikarchy full reinstatement
to his former job, or, if that job no longer exists, to a substantially equivalent position without
prejudice to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Ezra Shikarchy whole for any loss of earnings and other benefits resulting
from his suspension and discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful suspension and discharge of Ezra Shikarchy, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that the suspension and discharge
will not be used against him in any way.
833 CENTRAL OWNERS CORP.
(Employer)
Dated: _________________ By __________________________________________
(Representative) (Title)
JD(ATL)-22-12
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
Two Metro Tech Center, Suite 5100, 5th FL, Brooklyn, NY 11201–3838
(718) 330-7713, Hours: 9:00 a.m. to 5:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (718) 330–2862