BENJAMIN H. REALTY CORP

National Labor Relations Board - Board Decisions

May 7, 2015

22-RC-087792 (N.L.R.B. May. 7, 2015)

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May 7, 2015
Re: Benjamin H. Realty Corp.
Case 22-RC-087792
ORDER

The Employer’s Motion for Reconsideration and Motion to Reopen the Record
are denied.1 The Employer asserts that the record should be reopened to receive a
complaint filed in New Jersey state court on June 30, 2014 on behalf of employee Justo
Pastor Perea alleging, inter alia, that the Employer discriminatorily demoted him in
January 2013 and July 2013. Based on Perea’s credited testimony, the Board found in
this representation proceeding that Perea was demoted in March 2012, prior to the
November 8, 2012 election in this case, when the Employer hired Moshe Weiss as its
manager.
A party seeking to introduce new evidence after the record of a representation
proceeding has been closed must establish (1) that the evidence existed but was
unavailable to the party before the close of the proceeding; (2) that the evidence would
have changed the result of the proceeding; and (3) that it moved promptly upon
discovery of the evidence. Manhattan Center Studios, Inc., 357 NLRB No. 139, slip op.
at 3 (2011). We assume arguendo that the Employer has shown that the complaint was
unavailable at the time the hearing closed and that it moved promptly upon its
discovery. However, the Employer has not shown that the contents of the complaint
would have changed the outcome of the proceeding. The complaint was signed by
Perea’s counsel, and there is no indication on the face of the document that Perea

1 The Board’s policy with respect to responses to motions is to permit the party that filed
the original motion to file a reply to any opposition to the motion, just as a party filing
exceptions under Sec. 102.46 is permitted to file such a brief. See Sec. 102.46(h). In
consideration of the need for administrative finality, however, sur-replies are generally
not permitted, except by special leave of the Board. See D. L. Baker Electric, Inc., 330
NLRB 521, fn. 4 (2002). Compare Faurecia Automotive Seating, 353 NLRB No. 5
(September 10, 2008). Here, no circumstances were presented warranting the General
Counsel’s April 3, 2015 “sur-reply” to the Employer’s reply to the General Counsel’s
opposition to the Motion to Reopen and Motion for Reconsideration. Accordingly, that
document was not considered by the Board.
United States Government
NATIONAL LABOR RELATIONS BOARD
1099 14th STREET NW
WASHINGTON DC 20570

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verified or subscribed to its allegations. Perea’s counsel asserts that the allegations are
erroneous, and that he wishes to amend the complaint. Most importantly, the Employer
does not dispute that Weiss was hired in March 2012. Based on the credited testimony
in this case, the Board determined that there was a substantial change in Perea’s duties
and responsibilities after Weiss was hired. The fact that a complaint signed by Perea’s
counsel, alone, alleged that Perea was demoted on subsequent dates does not
“compel[] a different result.” Manhattan Center Studios, Inc., above, slip op. at 5.
By direction of the Board:

Farah Z. Qureshi
Associate Executive Secretary