Medical Investors Association

National Labor Relations Board - Board Decisions

Mar 15, 1982

260 N.L.R.B. 941 (N.L.R.B. 1982)

NI')tDICAI INVI ST()RS ASS()CIA I ()N
Medical Investors Association and I.ocal 32B-32J,
Service Employees International Union, AFL-
CIO. Case 29-CA-8131
March 15, 1982
DECISION AND ORDER
BY CHAIRMAN VAN I)E WATIIR ANI)
MIMBERS JENKINS ANI) HUNTER
On October 26, 1981, Administrative Law Judge
Winifred D. Morio issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, ' and
conclusions 2 of the Administrative Law Judge and
to adopt her recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, and
hereby orders that the Respondent, Medical Inves-
tors Association, New York, New York, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for
that of the Administrative Law Judge.
Respondent has excepted to certain credibility findings made by the
Administrative L aw Judge It is the Board,' established polio) not to
overrule an administrative las judge's rcsolulions tullh respect to credi-
hility unless the clear preponderance of all cif the relevant csidence con-
· inces us that the resolutions are incorrect Standard Dry 1Wall Products,
Inc. 91 Nl RH 544 (1950), enfd 188 F2d 3h2 (3d Cir 1951) 'We have
carefully examined the record and find no basis for re[ersing her find-
Ings
2 Since wke agree swith the Administrative Laaw Judges cornclusion that
Mihail (Michael) Muraciov is a superv'isor within the meaning of Sec
2(1 I)of the Act. s:e find it unnecessary to consider vwhether in oither re-
spects his duties made him an agent of Respondenl
' In her notice, the Administrative Lav Judge iniadxerlcnltls omitted a
portion of the cease-and-desist order Accirdingl), we have attached a
corrected notice
APPENDIX
NOTICE To EMPI OYEES
POSTElD BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
260 NLRB No. 124
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE Wi ll NOT coercively interrogate our
employees concerning their membership in and
activities on behalf of Local 32B-32J, Service
Employees International Union, AFL-CIO, or
any other labor organization.
WE WILl. NOT discourage membership in the
Union, or any other labor organization, by dis-
charging our employees, or in any manner dis-
criminating against them in regard to their
tenure of employment or any term or condi-
tion of employment.
WE WILL NOT refuse to recognize or bar-
gain with the Union as the exclusive bargain-
ing representative of the employees in the unit
described below.
WE WIL L NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section
7 of the Act.
WE WIlL. offer Jimmie Sosa, Amada Colon,
Amjad Ali Choudri, and Tahizjan Ruzehaji
immediate and full reinstatement to their
former positions or, if such positions no longer
exist, to substantially equivalent ones, without
prejudice to their seniority and other rights
and privileges, and make them whole for any
loss of pay, together with interest thereon, due
them by reason of their discharge.
WE wILt , upon request, bargain collectively
with the Union as the exclusive bargaining
representative of all the employees in the bar-
gaining unit described below with respect to
rates of pay, wages, hours of employment, and
other conditions of employment, and, if an un-
derstanding is reached, embody such under-
standing in a written, signed agreement. The
bargaining unit is:
All superintendents, handymen and/or por-
ters employed by the Employer at its prem-
ises located at 34-33 90th Street, Queens,
New York, exclusive of office clerical em-
ployees, guards and supervisors as defined in
the Act.
All our employees are free to become or remain,
or refuse to become or remain, members of the
Union or any other labor organization.
MEDICAL INVESTORS ASSOCIATION
941
I)1 C ISI()NS ()0 NA I I()NAI I AB()R R I.A IO()NS II()ARI)
DECISION
SI tAII-.M:NI OF( ItIt CAS.
WINIFRI .) D. MORIO, Administrative Law Judge: This
case was heard before me on March 25, 26, 27, 30, and
31, 1981, in Brooklyn, New York, pursuant to a com-
plaint issued by the Regional Director for Region 29 on
August 18, 1980. The complaint, based on charges filed
by Local 32B 32J, Service Employees International
Union, AFL-CIO (herein called the Union) on July 2,
1980, against Medical Investors Association (herein
called the Respondent) alleges, inter alia, violations of
Section 8(a)(l), (3), and (5) of the Act in that Respond-
ent interrogated its employees and discharged them for
their participation in and activities on behalf of the
Union; refused to recognize and bargain with the Union
although a majority of the employees had designated and
selected the Union as their bargaining representative; and
refused, with one exception, to reinstate discharged em-
ployees. The complaint also alleges that Respondent, by
engaging in such conduct, has made the holding of a fair
election impossible. Respondent denies that it has en-
gaged in the conduct as alleged.
All the parties were given a full opportunity to partici-
pate in the proceeding, to introduce all relevant evi-
dence, to cross-examine witnesses, to argue orally, and to
file briefs. Briefs were filed by both parties.
Upon the entire record in this case, and my observa-
tion of the demeanor of the witnesses, and after careful
consideration I make the following:
FINDINGS OF FACT
1. JURISDICTION
Medical Investors Association is a limited partnership
with general partners B. Chary and Medical Investors
Corp. Its principal place of business is located at 510
West 110th Street, and 950 Third Avenue, New York
City, New York, at the office of Robeson and Miller,
where it is and has been at all times material herein in-
volved in the investment business and in owning and
providing apartment management services and related
services for six buildings located at 34-33 90th Street,
Queens, New York. Respondent, during the course and
conduct of its business operations, owned and operated
apartment buildings and derived gross revenues and rents
therefrom annually in excess of $500,000. Respondent,
also annually, in the course and conduct of its business
operations purchased and caused to be delivered to its
apartment buildings oil and other goods and materials
valued in excess of $50,000, of which goods and materi-
als valued in excess of $50,000 were transported and de-
livered to it and received from other enterprises, includ-
ing, inter alia, Cibro Oil Co., located in the State of New
York, each of which enterprises had received said goods
and materials in interstate commerce directly from States
of the United States, other than the State in which it is
located. The parties admit and I find that Respondent is,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. I HI I AHOR ORGANIZAtlION INVOI.VII)
The parties admit and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
III. (ONItNIIONS OF IiHlI PARTII[S
It is the contention of the General Counsel that on
June 13 the Union was selected as the collective-bargain-
ing representative by a majority of the superintendents,
porters, and/or handymen employed by Respondent at
its apartment complex in Queens.' Thereafter the Union
notified Respondent, by letter on or about June 18, of its
representative status in this appropriate unit of employees
but Respondent refused to accept the letter. The Union
then filed a petition with the State Labor Relations
Board on June 24, a copy of which was forwarded on
that day to Respondent. Upon receipt of this letter, Re-
spondent interrogated its employees about their union ac-
tivities, and between June 26 and 30 discharged Jimmie
Sosa, Amada Colon, Amjad Ali Choudri, Guillermo
Wong, and Tahizhan Ruzehaji.2 This conduct made the
holding of a fair election impossible.
Respondent takes no position with respect to the ap-
propriateness of the unit, it leaves the issue to the
Board's determination. However, it denies any knowl-
edge of union activities by its employees prior to the dis-
charges which, it contends, took place on June 24. It as-
serts that the discharges were caused solely by the in-
competent work performance of the discharged employ-
ees. Further Respondent contends that even if there had
been a dual motive for the discharges it is clear, based on
the record, that even absent the protected activity the
discharges would have occurred.
IV. rHE ALL.EGED UNFAIR I.ABOR PRACTICES
A. Background
The events in this case occurred at a six-building com-
plex consisting of 300 to 324 apartments, located at 90th
and 91st Street, Jackson Heights, Queens, New York.
Vasudev Nayak, a general partner of the business, testi-
fied that Respondent became the owner and operator of
the complex in January by payment of the sum of
$500,000 in cash with the remainder of the purchase
price secured by a mortgage. Nayak retained Michael
Muraciov and Nelson Diaz, both of whom had been em-
ployed by the prior owner, in his employ but he dis-
charged all other employees and began hiring new em-
ployees about March. The new employees included
Frank Gotay, Jimmie Sosa, Amada Colon, Tahizjan Ru-
zehaji, Amjad Ali Choudri, and Guillermo Wong. The
status of Muraciov and Gotay is in dispute; all the other
employees are conceded to be either porters and/or
handymen.
'All dates refer to 1980.
- the complaint was amended during the hearing to delete the name of
Guillerril We ong It was also amended to delete that portion of par 19
which alleges that Respondenit conditioned reinstatement of the dis-
charged emplosees upon the renouncement of their membership in and
adherence to the Uni on
"42
NIF)ICAS I S[ SIfRS ASSOCI IHION
B. The Stlu of1 .Muraucio and Goai',
Respondent contends that the employees wyere super-
vised by Vasudev Nayak, that Muraciov was the head
superintendent who had no supervisory authority, and
that Gotay , as an independent contractor. The record
does not support these contentions.
Initially it should be noted that Nayak testified that he
had little direct contact swith the porters and my obser-
vation of Nayak leads me to the conclusion that it would
be totally out of character for him to supervise porters.
Further the record establishes that Nayak was not at the
complex every day and when he did come to the office
it would be around 10 am. while the workdav for the
other employees commenced at 8 a.m. 4 Finally the esi-
dence establishes that Nayak's time, while at the office,
was spent doing paper work Thus in order to accept
Respondent's contention that it was Nayak who super-
vised the employees it becomes necessary to accept the
premise that this employer permitted employees to
remain totally unsupervised for days at a time, with little
or no contact with management. This type of laissez-faire
management is very odd w hen one considers Respond-
ent's basic defense, i.e., the employees were discharged
because they were not and had not been performing their
work in a proper fashion. I do not credit that Nayak or
any other businessman operates a business in this fashion
and I do not, therefore, accept Respondent's contention
that Nayak supervised the porters. The porters, there-
fore, were supervised by either Muraciov or Gotay. Re-
spondent claims that Muraciov performed some work
similar to that performed by the other employees and
that he was the head superintendent.' Gotay and the
other employees denied that Muraciov ever performed
work similar to that performed by them. All denied that
they had ever heard the term, head superintendent, prior
to the hearing. All the employees, throughout their testi-
mony, referred to Muraciov as the manager of the build-
ing and to Gotay as the superintendent. Further they all
claimed that Muraciov did work in the office with the
Nayaks. Muraciov admitted that at least a portion of his
time was devoted to office work, that he took care of
the violations and handled the mail. It was also his testi-
mony that he supervised the porters. The testimony of
Gotay and the other employees supports that testimony.
Gotay claimed that Muraciov assigned the work, using
independent judgment, not only to him but to the other
employees. Muraciov testified initially that he prepared
the work assignments for the employees. Thereafter he
testified that both he and Gotay prepared the assign-
ments and that together they checked the work of the
other employees. I do not credit that Gotay made such
assignments or checked the work of other employees
except at Muraciov's direction. Muraciov does not speak
Spanish while Gotay does and it was in his capacity as a
: Nayak icould not recall the name of any porter itilhoul the use of hi,
payroll records Hie also testified that due to hi, upbringing hc I o iuld not
even see the porters if theN came hefore him
It was Nayak's testinony that he usually came to the office 1on
Wednesday Muractiev testified that initial assignments aere given io em-
ployees around 8 a m each daN
s Nayak testified that although he never .am Mturaciti do the o rk. he
believed that he maintained the hoilers
translator for Muraciov that Gioiay occasionally spoke to
the Spanish-speaking employees about their work This
fact is best demonstrated bv Muracio%'s own testimony.
Thus he testified that he had an occasion to criticize
Colon for coming to work late but because he could not
speak Spanish and Colon could not speak English he re-
quested Gotay to speak to Colon about the matter. Niur-
aciox also testified that after receiving tenant complaints
about Sosa's work it was he w·ho reprimanded Sosa. Sosa
stated that Muracioy interviewed him and that the deci-
sion to hire him was made by Muraciov. Both Colon and
Sosa claimed that Muraciov discharged them. Gotay
further testified that Muraciov, on his own authority,
had permitted him to leave work early.7 The employees
testified that it was Muraciov who gave them their pay-
checks and Nayak testified that Muraciov, on occasion,
prepared paychecks.
Based on the testimony in this record I find that Mura-
ciov possessed and exercised the authority to hire em-
ployees, to assign work using independent judgment, to
issue warnings to employees, and to grant permission for
time off to employees. Accordingly, I find that Muraciov
is a supervisor within the meaning of Section 2(1 1) of the
Act and an agent of Respondent acting on its behalf."
Assuming arguendo that Muraciov did not possess or ex-
ercise the indicia of supervisory status, I would neverthe-
less find that he was an agent of Respondent acting on
its behalf. This record establishes that Nayak, by virtue
of his absence from the premises for days at a time and
the authority he had given to Muraciov, had placed
Muraciov in such a position that the employees could
reasonably believe that Muraciov spoke for Respondent.9
As noted, it is Respondent's contention that at the rele-
vant times Frank Gotay was an independent contractor.
This record refutes this contention.
Gotav was hired in March 1980 by Nayak. Nayak did
not testify directly concerning Gotay's status.i Gotay
testified that he was hired as a superintendent at a
weekly salary of $225 to maintain the boilers and per-
form general maintenance work, including plumbing and
carpentry, at the complex. The other employees referred
to Gotay as the superintendent and agreed that his basic
responsibility was to maintain the boilers. In addition,
and as is usual in the case of a superintendent, Gotay was
given an apartment at the complex as a part of his com-
pensation. The terms of the lease for the apartment were
set by Muraciov as were the hours Gotay worked, i.e.,
from 8 a.m. to 5 p.m., 5 days a week. Gotay testified that
he was also on call 24 hours a day at the complex. Mura-
ciov did not testify with respect to these statements.
l'hese dlsharges u.dl be discussed helio, Muraclos does admit that
he pers..all) told Sosa he ",as discharged albeit he did It at Nayak's dl-
rettion
(Gola; claimed that both Nanyaks also had permitted him toi lease
sork early
' (iuraol La a ftilnl, Itn_. 24 NLRB b5g (1I801
*II1m / )R , Prak. In. 24q' NI RB 725. 72q (IQI8O)
Respondenti', iounsel stated that (ioiiai uas all Inldependent contrac-
tlr Nail) k lneer referred to (ieta? itt this fashion but at onte point irt his
leolirllirl there a% all inference that he called Gotay an allsistant super-
inrlteTdetil Ihtlu Nasak testified. "He [Mitracilo' il as the superinlendenI,
huil sinlt he swas senior. the man aho as, there for the tllinger periodt of
tlte, sotLI oildd conilsider th ir suiperlltiiCe detI '
DI CISIO)NS OF NATIO)NAL I.AB()R RELATIIONS O()ARI)
Gotay also claimed that on occasion he performed addi-
tional work for Nayak for which he received moneys
beyond his weekly salary. Although Respondent's couin-
sel argued that these additional moneys establish that
Gotay was an independent contractor, the fact remains
that neither Nayak nor Muraciov testified in contradic-
tion to Gotay's testimony that the money was paid solely
for work he performed beyond his usual duties. This
record also fails to disclose that Gotay could determine
what work he wanted to do, could refuse to do assigned
work, or could unilaterally change any other term or
condition of his employment. There is no evidence that
Gotay determined the salaries for other employees or the
deductions that were to be made from their salaries. In
view of the total lack of control by Gotay over his em-
ployment conditions, I do not consider the fact that state
and Federal deductions apparently were not made from
his salary to be evidence of an independent contractor
status." In sum there is no evidence that Gotay could
control the manner and means by which the work was to
be performed, a requirement necessary to establish an in-
dependent contractor status within the meaning of
Section 2(3) of the Act. ' Respondent does not contend
that Gotay was a supervisor and this record fails to es-
tablish that Gotay possessed or exercised, at the relevant
times, any of the indicia of supervisory status. As noted
above Gotay did, at times, act as a conduit for messages
that Muraciov wanted to relay to the Spanish-speaking
employees but this conduct, absent other evidence of su-
pervisory status, is insufficient to warrant a conclusion
that Gotay was a supervisor within the meaning of the
Act.
C. The Appropriate Unit
On June 13, Respondent had in its employ one super-
intendent, Frank Gotay, and six porter/handymen, in-
cluding Nelson Diaz, Jimmie Sosa, Amada Colon, Tahiz-
jan Ruzehaji, Amjad Ali Choudri, and Guillermo Wong.
The Union secured authorization cards from all of them
on that day. The record reveals that the six
porter/handymen all performed general maintenance
work, and Gotay, who did not possess or exercise any
indicia of supervisory status, performed some of the
maintenance duties performed by the porters and handy-
men. Accordingly, I find that a unit consisting of super-
intendents, porters and/or handymen exclusive of all
office clerical employees, guards and supervisors as de-
fined in the Act constitutes an appropriate unit for col-
lective-bargaining purposes within the meaning of
Section 9(b) of the Act. 3
D. The Events
On June 13, as a result of a phone call by Gotay, An-
thony Poccio, a business agent for the Union, met with
Gotay and the six above-named employees in Gotay's
apartment, which was in the complex. After an explana-
" It appears from the record that Respondent failed to have the proper
withholding forms signed by some of its employees
2 Air lranisit. Inc., 248 NLRB 1302. 1306, 1309 (1980)
,3 Kenneth and Ilarald lorsoc d/h/a Longvri- lirrauc (io.. 208 Nl RH
099, 7(X (1974)
tion by Poccio of the union benefits and a discussion
among the employees concerning union membership, the
six porters and Gotay signed authorization cards designa-
ting the Union as their representative. " Thereafter, ac-
cording to Thomas Latimer, a contract director for the
Union. he forwarded a certified letter, return receipt re-
quested, on June 18 to Respondent advising it that the
Union represented its employees." The letter was re-
turned unopened to the Union. " The envelope contain-
ing the returned letter had a checkmark next to the
"return to sender" box and bears the words "refused"
across the front of the envelope. The name and address
of the Union is clear on the face of the envelope. Re-
spondent denies that such a letter was delivered to it or
refused by it. However, Sosa, one of the discharged em-
ployees, claimed that sometime between June 13, when
he signed the authorization card for the Union, and the
day he was discharged, which was around June 26, he
was in the office waiting for work to be assigned to him.
At the time, Gotay. Muraciov, and the Nayaks were in
the office. Sosa testified that he observed a Spanish mail-
man hand a letter to Gotay and heard him ask for a sig-
nature. Gotay gave the letter to Muraciov but Nayak
asked to see the letter. The letter was given to him, he
looked at it and returned it to Muraciov who then gave
it to the postman without opening or signing for it.
Nayak and Muraciov deny that any such incident oc-
curred." Gotay did not testify with respect to this inci-
dent. Thereafter, on June 24 the Union filed a represen-
tation petition with the State Labor Relations Board. " A
representative from that board testified that, in accord-
ance with their usual procedures, a conference letter was
sent to the parties on the same date the petition was
filed, June 24.'9 According to Nayak this letter from the
State Board was not received until July 2. However,
Gotay, Diaz, Sosa, and Colon all testified that Respond-
ent's representative interrogated them about the Union
on or about June 26 and 27.
According to Jimmie Sosa on June 26 about 8 a.m. he
went to the office to secure the equipment necessary to
do his work. When he entered, he saw Muraciov and
questioned him as to whether he knew where the brooms
were because he could not find them. Muraciov replied
that he did not know and the conversation ended. Sosa
left the office, went to the basement and there found the
broom and a shopping cart so he proceeded to sweep the
sidewalk in front of the building. Within a few minutes
Muraciov came out and told him that he should not be
doing that work. When Sosa asked whether there was
something else that he wanted him to do Muraciov told
him he was terminated, as were all the other employees.
"(i (C sxhs 2 through 8 I credit Pocco 's teslimony that he told the
emplosees that there w is a; 60) initiation fee and a monthl) fee of $10
therer Is i1o c%\ldelice t ihat GJ.ai , during the meeting, took a more active
pa(t thilal all of t(he ither emphirees il the meeting
"ieC Exh
9
(a)
( (iC I xh 9(hl
Ho lth testified that the perso n X hho liade regular mall deliseries to
Ihe pieriiises ~as a black wtonlall named I.ula
I Ih tl Ulliol apparentll did noi realiie thit Respondent "as within
the lurlsdlchtio n of this Board
'I (i C' I xhs Il(a) and (b)
944
MEDICAL INVESTORS ASSOCIATION
When Sosa questioned him as to the reason for the termi-
nations Muraciov did not respond directly to him but did
say as he walked away, "You shouldn't have joined the
Union." Sosa waited at the premises until about 10:30
a.m. to speak with Nayak as to the reason for his termi-
nation. He met with Nayak but could not recall if Mrs.
Nayak also was present. When he asked the reason for
his discharge, Nayak told him that Muraciov did not
want him and did not w ant Amada Colon and that he,
Nayak, "listened" to his manager and that was going to
be it. Sosa claimed that Nayak said that he knew Sosa
was a good worker and he would be glad to give him a
letter of recommendation.20 Amada Colon testified that
on either June 26 or 27, the day he was discharged, he
reported for work to the office as usual. Muraciov was
there and told him that Nayak did not want the Union,
and that since he joined the Union there was no longer
work for him and he should go home.
Frank Gotay also testified about a conversation he had
with Nayak concerning the Union about 10:30 a.m. on
June 26. During this conversation Nayak showed him a
letter with the words "Labor Board" on it and ques-
tioned him as to whether he had joined a union. When
Gotay replied that he had joined, it was no "big deal,"
he wanted the union benefits, Nayak told him that he
wanted to fire all the porters and he asked to see them. 2'
Nelson Diaz claimed that around June 26 he was
called to Nayak's office about 11 a.m. Frank Gotay also
was present. Nayak asked him whether he had signed a
union card and he replied that he had signed in order to
get the benefits. Nayak did not say anything but sent him
back to work. Gotay, although initially testifying that he
was not present, recalled subsequently that he was pres-
ent and heard this interrogation.
Tahizjan Ruzehaji testified that at some point after he
signed a union card he reported for work as usual at 8
a.m. He was told by Muraciov to return home because
there was no work for him. Ruzehaji did not recall what
date this occurred, but it was after he signed a card for
the Union. The complaint alleges that Ruzehaji was dis-
charged on or about June 27 and the answer admitted
this allegation although during the hearing it was the po-
sition of Respondent that all employees were discharged
on June 24 22
Nayak admitted talking to Gotay about a letter from
the Labor Board but places this as occurring in July. 23
Both he and Muraciov deny all other statements about
the Union attributed to them by the employees. Re-
spondent contends that the discharges were caused by
the problems it was having with various government
agencies, which problems were attributable to the poor
work performance of the employees. There is no dispute
20 Sosa etlerfied that he suhsequenltly asked for ,,ork but re[celed rio(
response
21 Golay milially set the dale iof this Colncrsainlon as August He uhbse-
quently testified Ihal it occurred onl June 26 It is ohxious from the col-
tent.s of the cou. ersation that. if it oc urredl., ii ould riot ha'e been in
August 1There is no dispute .hai thte employees cre ditchargcd i June
22 Ruzehail is ho did not speak nglish. left the premise,. and returnied
later that dla) ls ih. . relaliie Ruzehali then l as reinrtaled a.ndi has, .on-
tinued It .sork
: MuraLlc l i llso recallecd N;a i uk qlcestilillrlg (i tils. ibltl tie letter
from the L abh r itoid hut hie Iot placed it it Jul!
that Respondent was receiving summonses for building
violations. The employees did not deny that there were
violations. Nayak testified that there had been some vio-
lations found as early as March but the number increased
significantly so that by April and May he was receiving
as many as 20 summonses a week. Muraciov also testified
that there were violations, he recalled one day in the
month of April when he received 18 summonses for vio-
lations at the building entrances.
Nayak claimed that he never spoke to the employees
directly about anything. As noted, Muraciov recalled
that sometime in May he asked Gotay to speak to Colon
about coming in late and at some point he spoke to Sosa
about his poor work performance. He also claimed that
he spoke to Guillermo Wong and Amjad Ali Ghoudri
about their unsatisfactory performance. However, it does
not appear that Respondent, during the month of April
when the number of summonses increased, made any
effort to replace the employees. It is unclear, based on
this record, whether these summonses were given be-
cause of work poorly performed by the employees or
were due to conditions over which the employees had
no control. In any event there was a rent strike by the
tenants at some point in April or May. On June 23,
Nayak signed a voluntary agreement with the
Department of Housing. Preservation, Development
wherein he agreed to correct the violations by Septem-
ber 1980. Nayak alleged that he was told that if the cor-
rections were not made he would lose the building.
When told this, Nayak explained to the court that he had
six employees who were responsible for the upkeep of
the building. He was advised that it was his responsibility
to maintain the building and that if he had incompetent
people he should "fire them." Nayak claimed that, after
executing the agreement, he immediately contacted an
employment agency on June 24 and requested that new
employees be sent to him. Thereafter, although normally
he did not go to the office until Wednesday, he went di-
rectly to the office on June 24 to discuss the matter with
Muraciov and Gotay. According to Nayak, during this
meeting with Gotay and Muraciov he told both that if
people were not working to "get rid" of them but not to
do so all at once. Nayak explained that in his native
country they had a saying, "When a husband goes to the
market to buy cloth for clothes, the wife doesn't burn all
the saris hoping the husband is going to bring a sari from
the market."24 In other words, Nayak told them not to
discharge employees until at least some new employees
were hired. According to Nayak, neither Gotay nor
Muraciov said anything about the employees during the
meeting although he (Nayak) specified that Colon was to
be discharged. 2s At the conclusion of the meeting he
signed the last payroll checks on June 24 for all the em-
ployees and that day was the last day of their employ-
ment. He left the checks to be distributed by Gotay and
Muraciov to the employees. At that point, Respondent
had not hired new employees.
Nil ;lk ane. t tron Indi.a
Na islk 1 Jmedll that prioer Io this di he had ()hscrsed C olon running
artralTd. upparcntli ntet dieliig .INi sitirk
945
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Muraciov's recollection of the meeting differed some-
what from that of Nayak. According to Muraciov,
Gotay was present during the conversation and Nayak
did show them a paper and did tell them something
about losing the building if the violations were not cor-
rected. However, contrary to Nayak's testimony, Mura-
ciov claimed that both he and Gotay specified the em-
ployees they thought should be discharged. Gotay ex-
pressed his opinion that Wong and Choudri should be
discharged and he said tht he thought Sosa should be
discharged. Subsequently Muraciov testified that it was
agreed that he would tell Wong and Choudri that they
were discharged and Gotay would tell Colon and Sosa.
Muraciov also testified that at the conclusion of the
meeting, "I prepared the payroll for the next day be-
cause Mr. Nayak told me he wanted to leave the place
early and that I should come the next [sic] for to sign the
check." Muraciov claimed that on June 25 when he gave
paychecks to Wong and Choudri he told them they were
discharged and on June 26 he discharged Sosa.21' Thus it
appears from Muraciov's testimony that the payroll
checks were dated June 25.27
Gotay denied that he was present at any meeting
where the discharge of employees was discussed.
ANAl YSIS AND CONCLUSIONS
I. The discharges
Respondent's first argument is based on its claim that
it had no knowledge of any union activities on June 24
when it discharged its employees for incompetent work
performance and it therefore could not have discharged
them because of their union activities. The second argu-
ment is that even if it is assumed that this case presents a
dual motive situation the Board's holding in Wright Line.
a Division of Wright Line, Inc., 251 NLRB 1083 (1980),
precludes a violation being found because this record
clearly establishes that, absent protected activity, the
same action would have occurred. Insofar as the bargain-
ing order issue is concerned, Respondent contends it was
under no obligation to bargain, it could allow the normal
processes of the State Labor Relations Board to continue
based on the petition filed by the Union.
With respect to Respondent's argument concerning
lack of knowledge of union activities prior to July 2,
Gotay, Sosa, Diaz, and Colon all testified that Respond-
ent's representative spoke to them about the Union on or
about June 26 or 27. However, Respondent argues that
Sosa, Diaz. and Colon should not be credited for a vari-
ety of reasons and that Gotay was mistaken as to the
date Nayak spoke to him about the Union. We will con-
sider the various reasons advanced by Respondent for
not crediting the four witnesses.
Sosa should not be credited, according to Respondent,
because he deceived a governmental agency, fabricated a
story about seeing a letter delivered, and gave contradic-
tory testimony about the duties of Frank Gotay and
21 Mluractl, caimied Ihal il Wia, (Goiaa ',ho discharged Colonl
27 Muracio, ttilied hat li he did not prepire a pa ,roll check Ior an
employee until Ihe day Ihat he ,uaa going to glre the check 1io Ihe em-
ployee
about the last day of his discharge and the events that
occurred on that day.
The record establishes that Sosa was employed by Re-
spondent under the name of Huberto Mercado while si-
multaneously receiving unemployment checks under his
correct name, Jimmie Sosa.28 It is this conduct which
demonstrates the propensity to deceive, and which re-
quires all of Sosa's testimony to be discredited. Sosa ad-
mitted that he was receiving unemployment checks
while working for Respondent. He testified that he had
been receiving unemployment benefits prior to com-
mencing work with Respondent and he did not disclose
to the unemployment agency that he had a job because
he was not sure that the job would continue and he thus
would have neither the benefits nor the job. Needless to
say such conduct cannot be condoned but it does not
follow, as Respondent contends, that one who is false in
one thing must be considered false in all things. An ad-
ministrative law judge need not reject the testimony of a
witness because the witness is not credible in all areas.29
This is particularly true when other evidence tends to
support the testimony of the witness. Diaz, Colon, and
Gotay all testified that the Union was mentioned to them
on or about June 26 and June 27. In addition, the repre-
sentative from the State Labor Relations Board testified
that a letter was sent on June 24 to Respondent notifying
it of the Union's claim to representative status. Thus in-
dependent evidence tends to support Sosa's testimony.
With respect to the alleged fabrication of the delivery
of the union letter of June 18, the fact remains that the
envelope in which the letter was sent was marked
"return to sender" and does contain the word "refused"
on it. Respondent implied that the Union was responsible
for these notations. However, a very similar situation
happened with respect to the charge in the instant case.
Respondent, in its answer, denied receipt of the charge
and the envelope, which was returned to the Board, has
the word "refused" on the front of it. Certainly there can
be no assertion that the Board was responsible for the
notations on this returned envelope. 30
Respondent claims that Sosa's testimony with respect
to Gotay and his duties was contradictory. The record
does not support this assertion. An examination of the
record establishes that Sosa admitted being in the office
with Gotay and going to the office with Gotay. He
denied, as did all other employees, that he ever saw
Gotay working at a desk in the office.31 The whole line
of questioning dealt with the identity of the individuals
who worked at desks in the office. Gotay, as did all
other employee witnesses, testified that only Muraciov
and the Nayaks worked at a desk in the office.
The other alleged discrepancies in Sosa's testimony
relate to the day of his discharge. Sosa did testify that he
was discharged on June 26, without stating the day of
:" It appears that Respondent had some knowledge that Sosa used a
diffcrenl first name Muracloxs said that he was told Sosa's name was
Jimmie anid the heeck stubs he prepared for May 14 and May 28 have the
name Jimmie onrl them ((;iC Exhs 25(h) and (c))
B" .\. Beard (ormpanv. 248 NLRB 198. 204 ( q8(0)
" (iC. tF h I(h)
[Soa al
'
, ,sln ,wer Wsas glvetl In respionse to questiolls piosed hv the Ad-
nlilrnllsirmlosc iis Judge
946
MEDICAL INVESTORS ASSOCIATION
the week. That day was a Thursday, which Sosa on
cross-examination testified was his normal day off. Mura-
ciov, Respondent's witness, testified that he personally
discharged Sosa on Thursday, June 26. 3 2 However,
whether it is Sosa or Muraciov who is mistaken as to the
date of the discharge is not of importance. I do not view
such a minor discrepancy, if there was one, to be
grounds to discredit Sosa's testimony. With respect to
other events on that day, Respondent contends that
Sosa's testimony differed from statements he made to the
Board in the investigation, This is not supported by an
examination of both the testimony and the affidavit. An
examination establishes that Sosa testified substantially in
accordance with the affidavit. Respondent claims that
the affidavit contains the following statement, "I believe
I was fired because I signed with the Union although I
cannot prove it." 33 It is true that affidavit contains such a
statement but it also contains the statement, which Sosa
testified to, that Muraciov mumbled, "You should not
have joined the Union."
According to Respondent, Nelson Diaz should not be
credited because he denied that there was a rent strike
although admitting that he had not paid rent for 6
months. The witness, although not terming it a rent
strike, did testify that he was aware that the tenants had
an action in court, and that some did not pay their rent.
In similar vein Respondent claims that Diaz, in his testi-
mony, denied that Gotay discharged him, while in the
affidavit he gave to the Board he stated that it was
Gotay who let him go. In reality, an examination of both
his testimony and his affidavit establishes that it was
Diaz' belief that although Gotay said the words to him,
it was actually the owners who made the decision to dis-
charge him. 34 I do not consider that these and similar
minor variations warrant discrediting the testimony
given by Diaz. It should also be noted that Gotay sup-
ported the testimony of Diaz.
Respondent did not attack the credibility of Gotay
with respect to the interrogation. In fact Nayak admitted
asking Gotay about the Union but placed the incident as
occurring in July after, he claims, the letter was received
from the Labor Board. As noted, a representative of the
State Labor Board testified credibly that their letter noti-
fying Respondent of the Union's claim of representation
was prepared and sent on June 24 in accordance with the
established practice of that agency. The letter is dated
June 24. Respondent claims it did not receive that letter
until July 2, some 8 days later. I am mindful that there
have been some delays in the mail deliveries but the fail-
ure of mail delivery to this business establishment seems
a bit unusual to say the least. The Union's letter of June
18 was not received, the charge sent by the Board was
not received, and the letter from the State Labor Rela-
tions Board took 8 days to arrive. I do not credit Re-
spondent's claim that it had no knowledge of the union
activities of its employees until July 2. Rather I credit
:" In an affida It gll.en lo the Utnlion on June 27. Sos'a latied thai he
had been discharged 11n June 27 IRep 1 :h 3)
:'GC Fxh 12 par 12
'' [ laz - a, Ierni.led Iii Augulo .after tihe Vt IllT qletiliT1 h.ld !'-
curred (iltaS' t.t i t tha i t h palilt ii tiie is nolt material. to thie i-iel
herein
the testimony of the four employees, which testimony es-
tablishes that Respondent had knowledge of the union
activities of its employees prior to the discharges. 35 Ac-
cordingly, I do not find validity to Respondent's first ar-
gument that it could not have discharged the employees
because of their union activities because it had no knowl-
edge of such activities. Therefore, consideration must be
given to Respondent's second argument that this case is
controlled by the decision in Wright Line and thus there
can be no violation because it would have discharged the
employees even absent their protected activities.
The first issue to consider with respect to this argu-
ment is whether in fact Wright Line is applicable to this
case. In Wright Line the Board stated that there was a
clear distinction between a "pretext" case and a "dual"
motive case. The Board explained that in those cases
where the reason adduced was pretextual an examination
of the alleged legitimate business reason establishes that
it either did not exist or that it was not relied on for the
action taken by the employer. In the "dual motive" situa-
tion there exists the "good" (legitimate business) and the
"bad" (antiunion) reason for the discharge.
I am not persuaded, based on this record, that the de-
cision in Wright Line is controlling in the instant case.
However, assuming that it is applicable, I do not find
that Respondent has sustained the burden of demonstrat-
ing that the same action would have occurred even in
the absence of the protected conduct.
It is undisputed that the employees had signed for the
Union on June 13. Respondent contends that it was not
this fact which caused the discharges but rather the dis-
charges were caused by its fear of losing the building
and the agreement it signed on June 23. Both Sosa and
Colon credibly testified that they were told by Muraciov
that they were discharged because of the Union. Gotay
credibly testified that Nayak said he wanted to discharge
the porters because of the Union. However, even absent
this direct testimony, there is sufficient evident to estab-
lish that the discharges would not have occurred at all
or would not have occurred when they did absent the
union activities of the employees.
The fact that the buildings had numerous violations
and that Respondent was involved in legal action be-
cause of this was well known to Respondent long before
June. Both Muraciov and Nayak testified that summons-
es were received as early as March and in fact the bulk
were received in April.36 The alleged rent strike by the
tenants commenced several weeks before late June. Nev-
ertheless, Respondent did not discharge the employees or
seek to replace them. There is no evidence that any em-
ployee received a written reprimand although Muraciov
claims that he did speak to Choudri, Wong, and Sosa
about their poor work performance. Nayak never spoke
to the employees about their performance. Thus, it ap-
pears that until the advent of the Union Respondent was
lenient with this allegedly poor work performance. Re-
'I It I,s oh , iol% Ihal hein Nayak received the State Board letter he
realized that immediate actlin Vl'a necessarsy it no longer a. as matter
otf onls the UInlToll
'" lutralio,. a: , nited, tetified that in April he rcce'led 18 summonses
in olae da T
947
DECISI()NS OF NATIO()NAL LABOR RELATIONS BOARD
spondent's failure to discharge the employees in April or
May indicates that the violations were caused, at least in
part, by factors outside of the control of the employees.
Nayak and Muraciov both testified that at least some of
the problems were caused by the tenants. This record is
insufficient to establish a direct relationship between the
violations and the work performance of the employees.
In addition to these factors, an examination of the tes-
timony of Nayak and Muraciov as to what occurred on
the day the alleged decision to discharge was made re-
veals some interesting contradictions. Nayak testified that
the only specific employee actually discussed at this
meeting was Colon. He specifically denied that Gotay
and Muraciov spoke about any employee. He also
claimed that he signed the checks on June 24, an evident
effort to establish that the decision to discharge was
made before receipt of the letter from the State Labor
Relations Board. Muraciov, on the other hand, testified
that several employees were discussed, that both he and
Gotay named the employees who should be discharged
and determined which one would tell which employee
he was discharged. He also testified that the checks were
prepared for June 25 and in fact he gave the checks on
June 25 to Wong and Choudri.3 7 It is evident that there
could not be such contradictions on these very important
points if such a meeting actually occurred. Furthermore,
although Nayak testified that he explained to Muraciov
and Gotay that he did not want all the employees dis-
charged at the same time, he nevertheless claimed that
he signed all the final checks for all the employees on
June 24. Aside from the fact that such an action would
be contrary to his alleged philosophy of not burning the
old sari until the new one arrived, it is difficult to under-
stand how he could have determined what amount to
pay the employees on June 24 since he did not know
what day they actually would be discharged. Moreover,
why the need for such quick action. The agreement he
signed allowed him until September to correct the viola-
tions. The more normal procedure to follow would have
been to retain even poor employees until new employees
were hired. It is impossible to understand how the situa-
tion at the complex could be improved with two em-
ployees attempting to perform the work of seven em-
ployees. 3
Based on my evaluation of the evidence and the de-
meanor of the witnesses, I find that the reason advanced
by Respondent was not the real reason for the discharge.
Respondent, I find, discharged the employees because
they joined the Union and this conduct is violative of
Section 8(a)(l) and (3) of the Act. However, assuming
arguendo that Respondent had been dissatisfied with the
work performance of its employees and had contemplat-
ed discharging them at some point, I find that the union
activity of the employees was the trigger which caused
the final determination for discharge to be made. This
:" Muraciuo\ testified that it uwas his praclice to, prepare a pa roll check
for all employee oii on the day that he .atually gave it to the eniploycee
: Respondent argues ha tha the fact that it retained (iota anid L)la is
cidecllt' thaia LInilo cmLllsideratioll did 1nolI plaN a part in its declsioll 11 is
mnore likely that it retained ton enmpllS ece hccallwe it Ivectiedcd %Ile t'll
ployees, parlicularly the mhldlldual rcspolsbllle It the behler peratilon. ill
order ito C, lltullti OIpera.tii g at all
conduct is violative of Section 8(a)(l) and (3) of the
Act. : Y
2. The refusal to bargain
On the basis of this record, I find that on June 13 the
Union secured a total of seven cards from the seven em-
ployees in the unit herein found to be appropriate. I fur-
ther find that the cards submitted in support of the
Union's majority status are clear and unambiguous and
reflect the desire of the employees to be represented by
the Union for purposes of collective bargaining. As set
forth above, Respondent denies that Gotay was a super-
visor within the meaning of the Act and for reasons al-
ready delineated I find that he was not a supervisor.
However, assuming that Gotay had been found to be a
supervisor, this fact, in the circumstances existing herein,
would be insufficient to taint the Union's majority status.
This is so because this record contains no evidence that
the employees signed authorization cards because Gotay
misled them into believing that Respondent favored the
Union. Nor does it establish that he coercively induced
any employee to sign a union card because they feared
supervisory retaliation by him.40 Accordingly I find that
the Union represented a majority of Respondent's em-
ployees in an appropriate unit since June 13, 1980.
The Union, after securing the authorization cards, for-
warded a letter to Respondent wherein it made a
demand for recognition and bargaining as a collective-
bargaining representative of Respondent's employees. I
do not credit Respondent's assertion that the letter was
not delivered to it. However, there is no contention that
the letter was opened. The issue then is whether in these
circumstances it can be argued that Respondent not only
had knowledge of the Union but also knowledge of the
Union's demand. On this issue of an employer's determi-
nation to avoid knowledge of a demand made by a union
the court, in N.L.R.B. v. Regal Aluminum, Inc., 436 F.2d
525, 527 (7th Cir. 1971), stated the following:
. . .Under a statute requiring cooperative attitudes
to achieve industrial peace, common sense dictates
that artificial devices created by the company to
avoid knowledge of that demand cannot succeed.
Upon its refusal to accept the union's letters the
company acted at its own peril as to the contents of
the letters. As Mr. Justice Clifford early observed:
[I]t is well-settled law that a party to a transac-
tion, where his rights are liable to be injuriously af-
fected by notice, cannot willfully shut his eyes to
the means of knowledge which he knows are at
hand, and thereby escape the consequences which
would flow from the notices if it had actually been
received.... The Lulu, 10 Wall, 192, 201, 77 U.S.
192, 201, 19 L.Ed. 906.
I find that Respondent's refusal to accept the Union's
letter was a device to avoid knowledge of the demand
'"B Bo ard ( 'roipan, 248 Nl RBt I9. 21 11 98 ('0)
1 indulirv Pr liwul (nnripanv, 251 Nl RH I180 (1980)
948
MDI)ICAI INVES'I(}RS ASS()t'IAI'I()N
and that it acted at its peril Accordingly. I find that the
Union's letter of June 18 constituted a valid demand.
However, w hile I have found that a demand was
made, I do riot find that the absence of such a demand
would foreclose the Union from a bargaining order.
Thus the Board has stated, ".. It is well established.
however, that a demand is not a necessary predicate to
the granting of a bargaining order as a remedy for an
employer's serious unfair labor practices in violation of
provisions of Sec 8(a)(5)." 4'
There remains the issue of whether the conduct en-
gaged in by Respondent warrants the issuance of a bar-
gaining order. Respondent discharged five of the seven
individuals who had signed cards between June 26 and
30 because of their union activities. By this conduct Re-
spondent has destroyed the unit. It is difficult to con-
ceive of a situation where an employer has committed
more serious and flagrant unfair labor practices. It is evi-
dent that such conduct has the tendency to "undermine
[the Union's] majority strength and impede the election
process."42 The possibility of erasing the effects of Re-
spondent's unfair labor practices and of ensuring a fair
election by use of traditional remedies is impossible. 3
As the Board stated in Trading Port:
[The] main concern in granting bargaining orders
has been, and is, to correct and give redress for an
employer's misconduct and to protect the employ-
ees from the effects thereof. To accomplish that
result, our policy is, and has been, to provide a full
and complete remedy for the unfair labor practices
committed and on which the bargaining order is
predicated. In the instant case, the Employer has
engaged in misconduct, as described above, which
violated not only Section 8(a)(1) and (3) of the Act
but Section 8(a)(5) as well. In views of the nature of
all of the Employer's unfair labor practices, we find
that the Employer violated Section 8(a)(5) of the
Act by refusing to recognize and bargain with the
Union as the majority representative of its employ-
ees while coterminously engaging in conduct which
undermined the Union's majority status and pre-
vented the holding of a fair election.
Accordingly, I find that Respondent has violated
Section 8(a)(5) of the Act. I further find that the bargain-
ing obligation commenced on June 26, 1980.
THE RtMI- I)
As Respondent has been found to have engaged in
unfair labor practices, I shall recommend that it take spe-
cific action, as set forth below, designed to effectuate the
policies of the Act.
In view of the fact that Respondent unlawfully termi-
nated a number of employees, it will be recommended
that it be ordered to offer each immediate and full rein-
" Grandee' Beer Disrlbutor,r. In-. 247 NI RH 1280(1. n 5 (180), lipton
Electrnc Conmpany