UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD REGION 29. Case Nos. 29-CA CA

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1 UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD REGION 29 VERTICES HOLDINGS LLC AND SHINDA MANAGEMENT CORPORATION, JOINT EMPLOYERS and Case Nos. 29-CA CA SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 32BJ ORDER CONSOLIDATING CASES, CONSOLIDATED COMPLAINT, AND NOTICE OF HEARING Pursuant to Section of the Rules and Regulations of the National Labor Relations Board (the Board) and to avoid unnecessary costs and delay, IT IS ORDERED that Case Nos. 29-CA and 29-CA , which are based on charges filed by Service Employees International Union, Local 32BJ, (Charging Party) against Vertices Holdings, LLC, (Respondent Vertices), and Shinda Management Corporation, (Respondent Shinda), collectively called Respondents, are consolidated. This Order Consolidating Cases, Consolidated Complaint and Notice of Hearing, which is based on the above charges, is issued pursuant to Section 10 of the National Labor Relations Act (the Act), 29 U.S.C. Section 151, et seq., and Section of the Board Rules

2 and Section of the Rules and egulations, and alleges that Respondents have violated the Act as described below. 1. The charge in Case 29-CA was filed by the Charging Party on April 21, 2015, and a copy was served on Respondent Vertices by U.S. mail on April 23, The first amended charge in Case 29-CA was filed by the Charging Party on May 18, 2015, and a copy was served on Respondents by U.S. mail on May 19, The charge in Case 29-CA was filed by the Charging Party on June 11, 2015, and a copy was served on Respondents by U.S. mail on June 11, At all material times, Respondent Vertices has been a domestic corporation with a principal place of business located at Fulton Street and Chauncey Street, Brooklyn, New York, herein called the 1711 Fulton complex, and an office located at th Avenue, Suite 400, Brooklyn, New York, where it has been engaged in the ownership and operation of a residential apartment complex. 4. Based on a projection of its operations since on or about March 3, 2015, at which time Respondent Vertices co menced its operations described above in paragraph 3, Respondent Vertices will: Annually derive gross revenues in excess of $500,000; and Annually purchase and receive goods, products, and materials valued in excess of $5,000 directly from suppliers located outside the State of New York. 2

3 5. At all material times, Respondent Shinda has been a domestic corporation with a principal place of business located at Jamaica Ave., Queens, New York, where it has been engaged in the business of property management services. 6. During the past twelve-month period, which period is representative of its annual operations generally, Respondent Shinda, in the course and conduct of its business operations described in paragraph 5 above: Derived gross annual revenues in excess of $500,000; and, Purchased and received goods, products, and materials valued in excess of $5,000 directly from suppliers located outside the State of New York. 7. At all material times, Respondent Vertices has been an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 8. At all material times, Respondent Shinda has been an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 9. At all material times, Respondent Vertices and Bushburg Properties, Inc., have been parties to a contract which provides that Bushburg Properties, Inc. is the agent for Respondent Vertices in connection with the management of the properties located at the 1711 Fulton complex. Bushburg has delegated its authority to act as an agent for Respondent Vertices in connection to the management of the properties located at the 1711 Fulton complex to Respondent Shinda. 10. At all material times, Respondent Shinda has exercised control over the labor relations policy of Respondent Vertices and administered a common labor relations policy with Respondent Vertices for the employees of the 1711 Fulton complex. 3

4 11. At all material times, Respondent Vertices and Respondent Shinda have been joint employers of the employees at the 1711 Fulton complex. 12. At all material within the meaning of Section 2(5) o 13. At all materi times, the Charging Party has been a labor organization the Act. 1 times, the following individuals have occupied the positions set forth next to their respective names and have been supervisors of Respondents within the meaning of Section 2(11) f the Act and/or agents of Respondents within the meaning of Section 2(13) of the Act: Francis o Lazaro Site Manager Vanessa Peterson Area Supervisor (c) Gabriel Rodriguez Asset Manager (d) Carolina Ortiz Actual Title Presently Unknown 14. The following employees of Respondents, herein called the Unit, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 of the Act: All full-time superintendents, handymen, and porters, and excluding all other employees, clerical employees, managerial employees, guards, and supervisors as defined in the Natio0a1 Labor Relations Act, employed by Respondents at the 1711 Fulton complex described above in paragraph At all material times until about March 3, 2015, E&M Management Company, (E&M), was engaged in property management services of the 1711 Fulton complex and employed the employees in the Unit, described above in paragraph 14. 4

5 16. At all material times until about March 3, 2015, Fulton Park Four Associates, LP, (Fulton Park Four), was the owner of the 1711 Fulton complex. 17. At all material times since at least July 2, 2013, until on or about March 3, 2015, the Charging Party was the exclusive collective-bargaining representative of the employees in the Unit described above in paragraph 14, at the 1711 Fulton complex, for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment and other terms and conditions of employment, and was recognized as such representative by Fulton Park Four. Such recognition was embodied in a series of collective bargaining agreements, the most recent of which was effective from April 21, 2014 to April 20, At all material times until on or about March 3, 2015, based on Section 9 of the Act, the Charging Party was the exclusive collective bargaining representative of the Unit of employees employed by E&M and Fulton Park Four. 18. On or about March 3, 2015, Respondent Vertices acquired an equitable interest in the 1711 Fulton complex from Fulton Park Four. On or about March 3, 2015, E&M and Fulton Park Four relinquished the management of the 1711 Fulton complex described above in paragraph On or about March 3, 2015, Respondents hired all of the employees in the Unit described above in paragraph 14 who were previously employees of E&M and Fulton Park Four and were covered by the Charging Party's collective bargaining agreement with Fulton Park Four, described above in paragraph 17. Respondents hired the employees, as described above in paragraph 19, pursuant to the Displaced Building Service Workers Protection Act. 5

6 20. Since on or about March 3, 2015, Respondent Vertices has exercised control over matters and decisions rdated to the terms and conditions of employment of the Unit described above in paragraph 14 on a day to day basis. 21. Since oh or about March 3, 2015, Respondent Shinda has served as the property management agent at the 1711 Fulton complex. Since on or about March 3, 2015, Respondent Shinda has exercised control over matters and decisions related to the terms and conditions of employment of the Unit described above in paragraph 14 on a day to day basis. 22. By virtue of the conduct described above in paragraphs 18 through 21, Respondents have continued the employing entity and are successor employers. 23. At all material times, based on Section 9 of the Act, the Charging Party has been the exclusive collective-bargaining representative of Respondents' employees in the Unit described above in paragraph By letter datli March 4, 2015, the Charging Party requested that Respondents recognize and bargain Itvith it as the exclusive collective-bargaining representative of the Unit. 25. Since about March 4, 2015, Respondents have failed and refused to recognize and bargain with the Charging Party as the exclusive collective bargaining representative of the Unit. 26. By letter datedlmarch 2, 2015, Respondent Vertices announced new terms and conditions of employment for its employees in the Unit, to go into effect on March 3, 2015, with respect to the following: Wages; Vacation time; 6

7 (c) (d) (e) (f) (g) (h) Sick leave; Holidays; Heath insurance; Pension; Work schedules; and Work hours. (i) The subjects set forth above in paragraph 26-(h) relate to wages, hours and other terms and conditions of employment of the Unit and are mandatory subjects for the purpose of collective bargaining. (j) Respondents engaged in the conduct described above in paragraph 26 (h), without prior notice to the Union and without affording the Union an opportunity to bargain with Respondents with respect to this conduct and the effects of this conduct. 27. On March 3, 2015, Respondents, by Carolina Ortiz, in the office at the 1711 Fulton complex, engaged in the following conduct: Threatened employees with discharge because of their support for the Charging Party; and Threatened employees that Respondents would not deal with a union. 28. On March 3, 2015, Respondents, by Francisco Lazaro, in the office at the 1711 Fulton complex, threatened employees with discharge because of their support for the Charging Party. 29. On or about March 9, 2015, Respondents, by Vanessa Peterson, in a courtyard at the 1711 Fulton complex, engaged in the following conduct: Threatened employees with discharge because of their support for the Charging Party; 7

8 Directed employees not to engage in protected concerted activity; and, (c) Told employees that it would be futile for them to be represented by a union. 30. On or about March 9, 2015, Respondents, by Vanessa Peterson, in the office of the 1711 Fulton complex, thh eatened employees with discharge because of their support I for the Charging Party. 31. On or about March 9, 2015, Respondents imposed more onerous and rigorous terms and conditions of employment on the employees in the Unit by changing their work schedule. 32. On a date in or around the end of March 2015, Respondents, by Vanessa Peterson, at the 1711 Fulton complex, engaged in the following conduct: Threatened employees with discharge because of their support for the Charging Party; and Threatened employees with discharge because they engaged in protected concerted activity. 33. On a date in or about the middle of March 2015, Respondents, by Francisco Lazaro, at the 1711 Fulton complex, threatened employees with the imposition of more onerous working conditions ip retaliation for the employees' support for the Charging Party. 34. On about a date in April 2015, Respondents, by Gabriel Rodriguez, outside the 1711 Fulton complex building, engaged in the following conduct: 8

9 Threatened employees with discharge because the employees engaged in protected concerted activities; Threatened employees with discharge because of the employees' support for the Charging Party; (c) Threatened employees with physical violence because of the employees' support for the Charging Party; (d) Threatened employees with physical violence because the employees engaged in protected concerted activities; (e) Told employees that it would be futile for them to be represented by a union; and, (f) Impliedly threatened employees with discharge because of their support for the Charging Party. 35. On about a date in April 2015, and after Respondents engaged in the conduct described above in paragraph 34, Respondents, by Gabriel Rodriguez, outside the 1711 Fulton complex, engaged in the following conduct: Threatened employees with discharge because the employees engaged in protected concerted activities; Threatened employees with discharge because of the employees' support for the Charging Party; (c) Threatened employees with physical violence because of the employees' support for the Charging Party; (d) Threatened employees with physical violence because the employees engaged in protected concerted activities; 9

10 (e) Told employees that it would be futile for them to be represented by a union; and, (f) Threatened employees that there would never be a union at the 1711 Fulton complex. 36. On multiple dates between March 3, 2015 and June 1, 2015, Respondents, by Vanessa Peterson, at the 1711 Fulton complex, engaged in the following conduct: Threatened employees with discharge because of the employees' support for the Charging Party; and I Told etployees that there will never be a union at the 1711 Fulton complex. 37. On multiple dates between March 3, 2015 and June 1, 2015, Respondents, by Francisco Lazaro, at the 1711 Fulton complex, threatened employees with discharge because of the employees' support for the Charging Party. 38. On or about the dates set forth opposite their names, Respondents issued written warnings to the employees named below: Cory Coppage March 30, 2015 Cory Coppage April 10, 2015 (c) Cory Cpppage April 11, 2015 (d) Cory Coppage April 23, 2015 (e) Cory Coppage May 18, 2015 (0 William Ray Highsmith April 30, 2015 (g) William Ray Highsmith May 10, 2015 (h) Williar in Ray Highsmith May 12,

11 (i) William Ray Highsmith May 13, 2015 (j) William Ray Highsmith May 18, 2015 (k) Gary Sparrow March 16, 2015 (1) Gary Sparrow May 20, 2015 (m) Gary Sparrow June 4, 2015 (n) Lamont Starkey May 2015, exact date being presently unknown (o) Lamont Starkey June 4, 2015 (p) Willie Hill March 11, 2015 (q) Willie Hill March 16, 2015 (r) Willie Hill April 24, 2015 (s) Willie Hill April 27, 2015 (t) Willie Hill June 4, 2015 (u) Luis Perdomo June On or about the dates set forth opposite their names, Respondents suspended the employees named below: Willie Hill April 29, 2015 Cory Coppage April 29, On or around May 1, 2015, Respondents, by Gabriel Rodriguez, in a store near the 1711 Fulton complex, threatened employees with physical violence because the employees engaged in protected concerted activities. 41 On or around May 4,2015, Respondents, by Vanessa Peterson, at the 1711 Fulton complex, threatened employee with more onerous working conditions because the employees engaged in protected concerted activities. 11

12 42. On or around May 4, 2015, Respondents, by Francisco Lazaro, at the 1711 Fulton complex, threatened employees that Respondents would force them to resign because of their support for the Charging Party and because the employees engaged in protected concerted activities. 43. On or labout May 11, 2015, Respondents discharged employee Ronnie Coppage. Since on or about May 11, 2015, Respondents have refused to reinstate or to offer to reinstate Ronnie Coppage to his former position of employment. 44. On about June 1, 2015, Respondents discharged the following employees: (c) (d) (e) (f) Willie fiill I William Ray Highsmith Cory 6oppage Luis Pe,rdomo Gary SParrow; and Lamor4 Starkey. 45. Since June 1, t 015, Respondents have refused to reinstate or to offer to reinstate the employees named above, in paragraph 44 to their former positions of employment. 46. On June 1, 2015, Respondents changed employee Willie Hill's terms and conditions of employment by directing Hill to vacate his apartment. 47. Respondents engaged in the conduct set forth above in paragraphs 31, 38, 39, and 43 through 46 because the named employees of Respondents assisted the Union and engaged in protected concerted activ,ities and to discourage employees from engaging in these activities. 12

13 48. Respondents engaged in the conduct set forth above in paragraphs 43 through 45 in order to avoid its obligations to recognize the Union and bargain with the Union as the collective bargaining representative of the Unit. 49. On or around May 18, 2015, Respondents issued an employee rule book titled "General Rules and Responsibilities for All Building Staff Members" and since then has maintained the following overly broad rules: Section I(A)(2)-"Report to the building each workday early enough to change into your uniform and be ready to work as soon as your shift begins. However, do not report to the building more than thirty (30) minutes prior to the start of your shift." Section I(A)(5)-"Leave the building promptly at the end of your shift. Do not socialize or interfere in any way with any co-worker who is still working at the end of your shift." (c) Section IV(E)(2)-"Be discreet. Do not talk to anyone about any resident living in the building and do not give out any information regarding any resident. The names of building residents are confidential and are not to be shared with anyone for any reason. Refer all such inquiries to management. Do not talk to anyone about Management, Business, or Policies." (d) Section IV(E)(4)-"Avoid over familiarity with residents and visitors. No overly loud conversations, backslapping, etc. are allowed with anyone including other staff members." (e) Section IV (E)(8)-"There should be no conversations with nonresidents." 13

14 (f) "Any v olation of the following rules will be grounds for immediate discharge: i. Solicitiation Inappropriate behavior Breach of confidentiality iv. Ounching out before or after your shift or having another employee punch out for you v. Inappropriate behavior to employees, residents, or visitors. vi. Or such other conduct which would render an employee unfit to continue as a building service employee." 50. The subjects set forth above in paragraphs 25, 26, 31, 38, 39, 43, 44, 45, 46, 48 and 49 relate to wages, hours and other terms and conditions of employment of the Unit and are mandatory subjects for the purpose of collective bargaining. Respondent engaged in the conduct set forth in paragraphs 25, 26, 31, 38, 39, 43, 44, 45, 46, 48 and 49 without giving notice to and without bargaining in good faith with the Union about these matters to 'a good faith impasse or to an agreement. 51. By the conduct described above in paragraphs 27 through 30, 32 through 37, 40 through 42 and 49, Respondents have been interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section of the Act in violation of Section 8(1) of the Act. 52. By the conduct described above in paragraphs 31, 38, 39, and 43 through 47, Respondents have been discriminating in regard to the hire or tenure or terms or conditions 14

15 of employment of its employees, thereby discouraging membership in a labor organization in violation of 8(1) and 8(3) of the Act. 53. By the conduct described above in paragraphs 25, 26, 31, 38, 39, 43, 44, 46, 48 and 49, Respondents have failed and refused to bargain collectively with the Charging Party as the exclusive collective bargaining representative of the Unit, and thereby have been engaging in unfair labor practices within the meaning of Section 8(1) and 8(5) of the Act. 54. The unfair labor practices of Respondents described above affect commerce within the meaning of Section 2(6) and (7) of the Act. As a remedy for Respondents' unfair labor practices alleged herein, the General Counsel seeks an Order requiring Respondents to post notices in Spanish in addition to English. Additionally, the General Counsel seeks an Order requiring that Respondents reimburse Ronnie Coppage, Cory Coppage, Willie Hill, William Ray Highsmith, Luis Perdomo, Gary Sparrow and Lamont Starkey for all search-for-work and work-related expenses regardless of whether they received interim earnings in excess of these expenses, or at all, during any given quarter, or during the overall backpay period. Further, as a remedy for the unfair labor practices alleged herein, the General Counsel seeks an Order requiring Respondents to hold a meeting or meetings, scheduled to ensure the widest possible attendance at which the Board's Notice is to be read to employees by responsible management officials of Respondents, in the presence of a Board agent. Also, Respondents shall be required to allow a representative of the Charging Party to be present during such reading or readings of the Notice. Further, as a part of the remedy for the unfair labor practices alleged above in paragraphs 25, 26, 31, 38, 39, 43, 44, 46 and 49, General Counsel seeks an order requiring Respondents to 15

16 restore the terms and conditions of employment of its employees to those in effect under the collective bargaining agreement, described in paragraph 17 above. These terms and conditions should be applied to all discriminatees herein and to the employees employed by Respondents in the Unit as required by the Board in Love's Barbecue, 245 NLRB 78 (1979). The General Counsel also seeks as a remedy for the unfair labor practices alleged herein that Respondents be required to post a "Notice of Explanation of Rights." Finally, the General Counsel further seeks all other relief as may be just and proper to remedy the unfair labor practices alleged. ANSWER REQUIREMENT Respondents are notified that, pursuant to Sections and of the Board's Rules and Regulations, it must file an answer to the complaint. The answer must be received by this office on or before August 6, 2015, or postmarked on or before August 5, Respondents should file an original and four copies of the answer with this office and serve a copy of the answer on each of the other parties. An answer may also be filed electronically through the Agency's website. To file electronically, go to click on E-File Documents, enter the NLRB Case Number, and follow the detailed instructions. The responsibility for the receipt and usability of the answer rests exclusively upon the sender. Unless notification on the Agency's website informs users that the Agency's E-Filing system is officially determined to be in technical failure because it is unable to receive documents for a continuous period of more than 2 hours after 12:00 noon (Eastern Time) on the due date for filing, a failure to timely file the answer will not be excused on the basis that the transmission could not be accomplished because the Agency's website was off-line or unavailable for some other reason. The Board's Rules and Regulations require that an answer be signed by counsel or non-attorney representative for represented parties or by the 16

17 party if not represented. See Section If the answer being filed electronically is a pdf document containing the required signature, no paper copies of the answer need to be transmitted to the Regional Office. However, if the electronic version of an answer to a complaint is not a pdf file containing the required signature, then the E-filing rules require that such answer containing the required signature continue to be submitted to the Regional Office by traditional means within three (3) business days after the date of electronic filing. Service of the answer on each of the other parties must still be accomplished by means allowed under the Board's Rules and Regulations. The answer may not be filed by facsimile transmission. If no answer is filed, or if an answer is filed untimely, the Board may find, pursuant to a Motion for Default Judgment, that the allegations in the complaint are true. Any request for an extension of time to file an answer must, pursuant to Section of the Board's Rules and Regulations, be filed by the close of business on August 6, The request should be in writing and addressed to the Regional Director of Region 29. NOTICE OF HEARING PLEASE TAKE NOTICE THAT on August 19, 2015, 9:30 AM at Two MetroTech Center, Suite 5100, Brooklyn, New York, and on consecutive days thereafter until concluded, a hearing will be conducted before an administrative law judge of the National Labor Relations Board. At the hearing, Respondents and any other party to this proceeding have the right to appear and present testimony regarding the allegations in this complaint. The procedures to be followed at the hearing are described in the attached Form NLRB The procedure to 17

18 request a postponement of the hearing is described in the attached Form NLRB Dated: July 23, 2015 Attachment JAMES G. PAULSEN REGIONAL DIRECTOR NATIONAL LABOR RELATIONS BOARD REGION 29 Two Metro Tech Center Suite 5100 Brooklyn, NY