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Less Than Super

It was a nightmare that no one at the Upper West Side co-op had expected. Wanting to reward a handyman who had worked diligently at his job for five years, the board offered him the position of superintendent when it became vacant, a union job with a probationary six months. The handyman took the promotion, but within three months it was clear, recalls a board member, that it wasn't working out. "He didn't interface well," says the director, a tactful euphemism for the handyman's inability to balance the multiple demands of the job. At the end of six months, the super was dismissed.

As news of the firing filtered through the building, the fallout was quick and hot. Two emergency meetings were called by a group of shareholders that attempted to recall the board. Although a "no confidence" vote failed, the reverberations lingered on. At the annual meeting this past year, one board member was not re-elected, one refused to run again, and one announced she would step down at the end of her term.

"It was one of the most horrible, horrible situations that I have ever been through. It was very hurtful. It was very ugly," the board member remembers.

Ask any board director to list the most important characteristic of a good superintendent and rather than one answer, you'll probably get four or five: someone who can work well with the residential manager, respond diplomatically to shareholder complaints, inspire other employees to excellence, and anticipate the future needs of the building - and all with a cheerful, confident, "can-do" manner. In short, a super must juggle being handyman, manager, diplomat, and strategist.

Finding a good super is crucial. Conversely, firing a bad super is just as critical, and boards need to be prepared to respond to shareholder anger as much as they need to be ready to document legally why the super didn't work out.

"It's been our experience that a super very quickly develops a following in the building and while there are people who are upset with what the super did or didn't do, there [is] probably another group that is always pleased, and can't understand why the super is getting fired," observes attorney Marc Luxemburg, a partner at Snow Becker Krauss. Firing a super, even during a trial period, upsets the flow of day-to-day life in a building, adds the attorney, and shareholders worried about how the building is operating are quick to seize on the change as evidence that the board doesn't know what it is doing.

"It is critical that the board be aware of the probationary period and take action within that period," says Arthur Weinstein, a co-op attorney. "They must be focused, because if they let the probationary period pass, then any of their decisions may be subject to a union proceeding and arbitration and they have missed the opportunity to have complete control of the employment of their super. Even when the super is fired within the probationary period, he can make assorted claims against the building and therefore the building should keep proper evidence of the process that resulted in the firing. I know of a case where super was fired and threatened age discrimination. He was not successful but he made the claim. But, of course, the building was able to say they knew his age when they hired him, and they had evidence of how they made the decision."

From a legal standpoint, it's easiest to fire a union super during the first six months on the job, the probationary period during which time the board can pretty much dismiss a super for any reason, except discrimination, says Jeffrey Goldberg, a partner at the labor, employment, and real estate law firm Greenberg Traurig. While union contracts include a "just-cause" provision that delineates the steps an employer must take before firing an employee, the contract gives strong consideration to lack of cooperation between the super and management as a reason.

"The union has no interest in making residents unhappy by forcing workers on them they do not wish to have," John Hamill, deputy communications director for 32BJ, the building services union says. During the six-month probationary period, "supers can be fired for any work- or performance-related issue, so long as the firing does not represent illegal discrimination." While Hamill says that the union believes the number of probationary supers fired during the trial period is quite small, few contact the union when they have been fired at that time.

But, if it is technically easy to dismiss, it can also be politically unpopular, warns attorney Theresa Racht, a partner at of Rosen & Livingston, and boards need to be prepared for a shareholder revolt. "Firing a super is very difficult, whether it's at the end of a probationary period or after a long time. People will come out of the woodwork. You need to be ready with answers."

If a super isn't being hired at the end of probation, one method a board can employ, suggests Racht, is to write a letter saying that the super wasn't showing the skills the board expected or that the building's needs are different from the skills possessed by the probationary super.

However the letter is phrased, it must be done with finesse. Boards must realize that the superintendent, no matter how short a stay, will probably have supporters, and that the shareholders need to be given as much information as possible to feel that the board was making an informed and fair decision about such a crucial position.

The experience of the Upper West Side cooperative is instructive. One problem was that the board was overly secretive and shareholders were frustrated at the lack of information, "so it denigrated into a 'he said-she said' situation," says a board member. "It created huge dissension in the building." First, the decision was made in an executive session. Then, under the advice of counsel, the managing agent sent out a letter about the firing that was, in hindsight, very cryptic.

"It should have been a much different type of letter that would have talked as much as we legally could have about what we did, why we promoted him to begin with, why this wasn't working out for the individual and why he couldn't be returned to his original position," admits the director. "[It should have] invited comments and advice." In short, it should have made the residents understand the decision-making process.

"There are lawyers who don't want their clients to say too much," Luxemburg notes, "but I think in this case you are caught between a rock and a hard place, and I think it's probably better to be more open to the shareholders, even though everything will probably get back to the super by his friends in the building."

One of the ways that the board could have defused some of the anger was to hold a meeting and let people vent their feelings, adds Luxemburg. By not having that gathering, a small group of shareholders who habitually complained about the board found an opening in which to try to oust the current board from power. And they took advantage of the situation.

The director of the co-op adds that some of the shareholders who were angriest at the board were those who didn't feel the handyman should have been promoted at all. Rather than support the firing, however, they were still upset over the original promotion.

Summing up the situation with marked understatement, the director concludes: "I think the board could have done a better job of information- sharing.

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