Recently, I was retained by the corporate owner (the “Company” or “my corporate client”) of a six-story residential apartment building in Bronx County, Manhattan City, to defend a charge which the building’s former superintendent had filed, with the National Labor Relations Board’s Manhattan, NYC office, against the Company. The ex-superintendent’s Charge Against Employer (the “unfair labor practice charge” or the “charge”) asserted that the Company, in violation of sections 8(a) of the National Labor Relations Act (the “NLRA” or the “Act”), 29 U.S.C. § 158(a), had fired the superintendent “because of his [alleged] activities on behalf of Local 32BJ, SEIU [Service Employees International Union]” and because of the superintendent’s unspecified, supposed “other protected, concerted activities.”
In other words, the former superintendent charged that the Company — the workplace of which was not unionized — had terminated his employment because the superintendent (purportedly) sought to join, and sought to persuade the Company’s other workers to join, a union local.
By way of background, section 7 of the NLRA, 29 U.S.C. § 157, bestows on employees the right to form, to join, and to solicit others to join labor unions as well as the right to take part in collective bargaining. Section 8 of the NLRA bars employers from interfering with an employee’s exercise of section 7 rights and from discriminating against an employee for engaging in protected union activities.
These activities are protected against employer interference whether or not the employer’s workforce is unionized.
The National Labor Relations Board (the “NLRB” or the “Board”) enforces the NLRA. The Board has jurisdiction over employers in retail businesses — including owners of residential apartment buildings, such as my corporate client — if the employers have a gross annual revenue of $500,000 or more.
I interviewed, at length, the Company’s managing member and the ex-superintendent’s former supervisor. Moreover, I obtained from my corporate client, and reviewed, the Company’s letter terminating the superintendent’s employment, the Company’s rent receipt reports, and the Company’s Income and Expense Schedules for Rent Producing Property (Forms TC-201).
In interviewing the managing member and the ex-superintendent’s former supervisor, I learned that all of the Company’s apartment building’s units were either rent-controlled or rent-stabilized, and that the building’s monthly rents ranged from the low $200s and up. Further, my review of the relevant books and records suggested that my corporate client had a gross annual revenue — consisting of rental income and government subsidies — of less than $500,000.
Moreover, the evidence tended to show that, contrary to the superintendent’s charge’s allegations, the Company did not fire the superintendent because of his purported activities on behalf of Local 32BJ, SEIU or because of the superintendent’s other supposed, protected union activities.
Rather, the evidence suggested that my corporate client discharged the superintendent “for cause” within the meaning of section 10(c) of the NLRA, 29 U.S.C. § 160(c). More particularly, the Company’s managing member’s and the superintendent’s former supervisor’s oral accounts tended to show that the Company fired the superintendent because of his lackadaisical and incompetent job performance and because the superintendent, on numerous occasions, acted in direct disregard of the directions received from his supervisor.
I drafted, and filed with the NLRB, a written Statement of Position and Affirmative Defenses (the “Statement of Position” or the “written statement”) responding to the ex-superintendent’s unfair labor practice charge and to the Board’s initial letter to my corporate client.
In the written statement to the Board which I prepared, I explained, and I attached rent schedules and rent receipt reports demonstrating, that the Company had a gross annual revenue — consisting of rental income and government subsidies — of less than $500,000, such that the NLRB lacked jurisdiction over the Company.
Further, my Statement of Position persuasively maintained that the ex-superintendent’s assertion in the charge that was engaged in activities on behalf of Local 32BJ of the SEIU was a dubious one; that even if the superintendent had been soliciting other workers to join Local 32BJ, the Company had not known of any such solicitations; and that the Company did not fire the superintendent because of his supposed activities on behalf of that union local.
Rather, my written statement to the NLRB convincingly set forth that the Company fired the superintendent for cause.
My Statement of Position explained, in great detail, that among the wrongful acts by the superintendent constituting cause for termination were that (1) the superintendent made it extremely difficult for his supervisor timely to communicate with the superintendent; timely to transmit, to the superintendent, work orders and Notices of Violation; and timely to receive, from the superintendent, work orders and Notices of Violation, signed by the tenants of the building’s apartments, signifying that the superintendent had made the repairs or remedied the violations, as applicable, in that the superintendent unduly delayed in purchasing, and failed to maintain in working condition, a fax machine; failed to maintain a reliable cellular telephone number; and failed to obtain and maintain a home telephone number, and (2) the superintendent failed to make repairs in the apartments of the tenants of the Company’s apartment building in a timely fashion or, in some cases, at all.
So, too, my written statement set forth, at considerable length, that among the wrongful conduct by the superintendent comprising cause for termination was that (3) the superintendent lacked the ability to perform basic plumbing tasks, such as fixing leaks, in the building’s tenants’ apartments, and (4) shortly before the superintendent’s firing, the individual who had managed the apartment building under the building’s prior owner advised the Company’s managing member that the superintendent had been a terrible worker who was incapable of performing, or unwilling to perform, his job duties.
After reviewing and considering my written statement responding to the ex-superintendent’s unfair labor practice charge, the NLRB’s Acting Regional Director, by letter, refused to issue a complaint against my corporate client, because “The projected gross annual income to [the Company] from all sources is less than $500,000, which is below the Board’s jurisdictional standard for apartment buildings.” In other words, the Board dismissed, for lack of jurisdiction, the ex-superintendent’s unfair labor practice charge against my corporate client.
On the ex-superintendent’s administrative appeal from the Board’s Acting Regional Director’s refusal to issue a complaint against the Company, the Board’s Office of Appeals affirmed the Acting Regional Director’s decision.
This dismissal, without the issuance of a complaint and without an evidentiary hearing, of the ex-superintendent’s unfair labor practice charge against my corporate client was the best outcome obtainable. Further, this optimal outcome kept, to the lowest possible amount, the attorneys’ fees incurred by my corporate client.
David S. Rich is the founding member of the Law Offices of David S. Rich, LLC,
a Manhattan Employment and Business Litigation Law Firm, in New
York City and in Englewood Cliffs, New Jersey...View Profile