College of Mount Saint Vincent

National Labor Relations Board - Board Decisions

Jan 27, 1995

316 N.L.R.B. 152 (N.L.R.B. 1995)

152
316 NLRB No. 30
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Objections to the conduct of election were filed in Case 2–RC–
21126. On May 29, 1992, the Regional Director issued an order con-
solidating cases and notice of hearing on objections.
2 Based on our findings we sustain the following union objections:
Objection 2: threatening employees with discharge and other repris-
als because of their membership in and activities on behalf of Local
74; and Objection 6: other conduct designed to destroy laboratory
conditions necessary for the holding of an election in an atmosphere
free of interference, restraint, and coercion.
1 Unless indicated otherwise, all dates referred to herein relate to
the year 1992.
College of Mount Saint Vincent and Local Union
74, Service Employees International Union,
AFL–CIO, CLC. Cases 2–CA–25615 and 2–RC–
21126
January 27, 1995
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On February 2, 1993, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondent filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as modi-
fied.
Representation Case
The judge failed to rule on the Union’s objections
to the election.1 The issues raised by the unfair labor
practice charge decided by the judge were coextensive
with the Union’s objections to the election. The judge
found that the Respondent committed numerous viola-
tions of Section 8(a)(1) of the Act including creating
the impression that the employee’s union activities
were under surveillance, interrogating employees re-
garding their union activities, threatening employees
that they would be replaced by outside contractors if
they supported the Union, and threatening employees
with discharge. We find that these violations prevented
employees from voting in a representation election free
of intimidation. Dal-Tex Optical Co., 137 NLRB 1782,
1786–1787 (1962); Super Thrift Markets, 233 NLRB
409 (1977). Accordingly, we sustain the objections and
find the election must be set aside and a new election
directed.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Col-
lege of Mount Saint Vincent, New York, New York,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
IT IS FURTHER ORDERED that the election in Case 2–
RC–21126 is set aside and that the case is severed and
remanded to the Regional Director for Region 2 to
conduct a new election whenever he deems appro-
priate.
[Direction of Second Election omitted from publica-
tion.]
Nancy K. Reibstein, Esq. and David Pollack, Esq., for the
General Counsel.
Stephen F. Hannigan, Esq., for the Respondent.
Ronald Goldman, Esq. (Manning, Raab, Dealy & Sturm), for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on November 9 and 10, 1992,1 in New
York, New York. The complaint herein, which issued on
May 28 and was based on an unfair labor practice charge
filed on March 10 by Local Union 74, Service Employees
International Union, AFL–CIO, CLC (the Union), alleges
that the College of Mount Saint Vincent (Respondent) en-
gaged in surveillance of the union activities of its employees,
interrogated its employees regarding their union activities,
threatened them that they would be discharged or replaced
by outside contractors if they voted for the Union, and told
them that it would be futile to vote for the Union, in viola-
tion of Section 8(a)(1) of the Act. The complaint further al-
leges that on about March 2, Respondent nullified an agree-
ment that it had with employee Felix Aponte wherein he
would receive pay for travel time to and from work for work
after normal working hours, and that on about March 5 Re-
spondent discharged Aponte. It is alleged that the agreement
was nullified and Aponte was discharged due to his activities
on behalf of the Union, and that Respondent therefore vio-
lated Section 8(a)(1) and (3) of the Act.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, with an office and
place of business in Riverdale, New York (the facility),
which is Respondent’s Riverdale campus, has been engaged
as a private independent college. Annually, in the course and
conduct of this operation, Respondent derives gross revenues
in excess of $1 million and purchases and receives goods,
products, and materials valued in excess of $5000 from
points directly outside the State of New York. Respondent
admits, and I find, that it is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
153COLLEGE OF MOUNT SAINT VINCENT
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE FACTS
Respondent is a private independent college with a campus
located in Riverdale, in the Bronx, New York. The campus
contains numerous buildings housing administration and fac-
ulty offices, classrooms, and student dormitories. These
buildings, and the campus grounds, must be maintained and,
for that reason, Respondent employs maintenance employees
in different categories to maintain and repair the building and
equipment at the facility. Felix (also called Alex) Aponte
was employed by Respondent as a plumber from August
1991 until March 5. Respondent’s maintenance employees
were not represented by any union. In about early January,
Richard Bennardo, business agent for the Union, attempted
to make contact with these employees and gave his business
card to an employee, who then gave it to Aponte. That
evening Aponte called Bennardo and told him that he was
interested in unionizing the maintenance employees, and that
he would speak to his fellow employees and get back to him.
He talked about the Union with other employees at the facil-
ity while on breaks, at meals, or on jobs and called Bennardo
and a meeting was scheduled at Aponte’s apartment on Janu-
ary 24 at about 5 p.m. Bennardo, Aponte, and two or three
of his fellow employees attended the meeting. They spoke
about the employees’ concerns and the Union’s benefits.
Bennardo also distributed union literature. Another meeting
was scheduled for January 30, also at Aponte’s apartment.
This time about 10 coworkers attended. Bennardo again ex-
plained the benefits that the Union could obtain for the em-
ployees and answered employees’ questions. He then told the
employees about authorization cards and that the Union
needed a certain amount of signed authorization cards before
they could obtain recognition or an election. Aponte and oth-
ers signed cards at that time. Bennardo needed additional
cards and gave some blank cards to Aponte and Juan Torres
to distribute. During about the next week to 10 days, Aponte
obtained an additional 14 authorization cards from his fellow
employees and Bennardo picked them up at his apartment.
The Union sent Respondent a letter requesting recognition on
February 11 and filed a petition with the Board on February
13. A hearing was conducted on March 20 and an election
was held on May 1. Violet Paretti, Respondent’s chief finan-
cial officer, testified that she did not know ‘‘specifically’’
which of the employees was involved with the Union, but
she had an ‘‘assumption’’ that Aponte was involved.
Aponte and, presumably, the other maintenance employees
worked a schedule of 8 a.m. to 4:15 p.m. However, because
of the nature of Respondent’s operation with students resid-
ing in the dormitories and classrooms being used after 4:15
p.m., it was necessary to ensure that some of these mainte-
nance employees were available to come to the facility to re-
pair equipment outside of their regular work hours. For this
reason, Aponte, and a few other maintenance employees
were ‘‘on call’’ during their off hours and were given a
beeper in order for Respondent to contact them. Aponte testi-
fied that during the summertime he received few calls of this
nature, but during the heating season he received about 10
hours of overtime weekly in this manner. The procedure that
was followed with these calls was that the security guard at
the main gate to the facility called or beeped Aponte or one
of the other maintenance employees and told him of the
problem. The employee then went to the facility, repaired the
problem, and returned home. The instant matter was caused
by the confusion (or disagreement) on how the employees
were to be paid for these calls. For example, Aponte lived
about 10 minutes from the facility. If he was called and re-
paired the malfunction in 30 minutes, should he be paid for
30, 40, and 50 minutes (including travel time both ways), or
more and should he be paid the regular hourly rate or at
time-and-a-half?
Aponte testified that about 2 to 3 weeks after he began
working for Respondent, Vincent Girardi, chief engineer and
supervisor for Respondent, who is no longer employed by
Respondent and did not testify herein, told him that if he got
called, the guard at the gate was to punch his timecard when
he hung up on Aponte, and he would receive an hour travel-
ing time plus a minimum of 2 additional hours pay. Any-
thing over 3 hours would be paid at time-and-a-half. He tes-
tified that this arrangement was made between he and
Girardi; he is not aware of who else knew of it or if any
of the other maintenance employees had the same arrange-
ment. Paretti testified that she was unaware of this arrange-
ment until a month after Aponte was fired. At that time,
counsel for Respondent told her that he was informed of it
at that time by Donald McCaffery, security guard for the Re-
spondent. She testified that in about September 1991 she
asked Girardi if it was fair that the employees were only
being paid (at time-and-a-half, she testified) for the actual
time that it took them to perform the repairs, not travel time
and with no minimum. She testified that Girardi’s response
was: ‘‘Time and one half is plenty.’’
McCaffery, who worked at the main entrance to the facil-
ity, testified that the normal procedure was that when the
maintenance employee arrived at the main gate, he punched
in his timecard, and when he passed the main gate as he was
leaving, he punched his card out as well. He does not recall
ever doing it differently for any of the maintenance employ-
ees. He testified that in about February or March, when
Aponte was on his way out past the main gate he told
McCaffery that when he called him to come in on a call he
was to punch him in as soon as he hung up. McCaffery
asked him who said so and Aponte said that Girardi said so.
McCaffery said that he would check with Girardi. As Girardi
was driving past the main gate that day McCaffery told him
what Aponte had said and asked if he should do so. Girardi
threw up his hands, mentioned a few curse words, and said:
‘‘Yes, do it.’’ Girardi never told him to do it for any other
employee. He never did punch Aponte in as requested be-
cause a few days later, Harry Sommer, Respondent’s head of
security, told him that Paretti said that nobody was to be
punched in until he was at the gate in front of him.
Torres, who has been employed by Respondent since 1987
as a maintenance employee for electrical work, principally,
and plumbing as well, testified that when he came in on a
call, the guard punched him in when he arrived and punched
him out when he left. He did not receive any extra com-
pensation for his calls, except that he was paid time-and-a-
half for the time he actually spent at the facility, but he was
aware of Aponte’s arrangement with Girardi. Liam McHugh,
who has been employed by Respondent as a maintenance
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
electrician for 3 years, testified that on none of the occasions
that he was called was he punched in at the time of the call.
Rather, on each of these occasions, he punched his timecard
in and out when he arrived at and left the facility. He also
testified that he was unaware that Aponte had a different ar-
rangement for his calls because to his knowledge the Re-
spondent’s procedure was to punch an employee in when he
arrived at the facility not when he received the call. He
spoke to Girardi two or three times about this situation, once
when Aponte was present and once when he was not present.
On these occasions he told Girardi that the employees should
get a minimum of 4 hours’ pay regardless how long the call
took. On each occasion Girardi responded that he could not
give it.
Security guard, Alan O’Brien, testified that on those occa-
sions that he works at the main gate at the facility, the proce-
dure is that when the maintenance employee comes through
the main gate the guard punches his timecard. Aponte (on
February 29 as will be discussed below) was the only em-
ployee who ever asked him to punch his card from over the
telephone.
There are a number of 8(a)(1) allegations herein. Aponte
testified that Respondent sent him to take a course with the
Department of Health to be certified for operating swimming
pools. The course was given from February 24 through 27.
When he returned home on that last day, he called Girardi
and told him that he had passed the course and had been cer-
tified. Girardi said that he knew he would pass. Girardi then
asked him if he had anything to do with the union activities
on the campus; Aponte denied it, because he was afraid.
Girardi then said that a union could not come on to the facil-
ity because, if it did, Respondent would get rid of everybody
and hire outside contractors like they did at Manhattan Col-
lege. Aponte, again, denied knowledge of the union activi-
ties, and that was the extent of the conversation. On the fol-
lowing day, while Aponte was in Girardi’s office, without
any other employee present, Girardi again told him that if the
Union came in Respondent would hire outside contractors to
perform the work. Torres testified that sometime before
Aponte was fired (while Torres was a credible witness, he
had a very poor recollection of dates), while he was alone
with Girardi in his office, Girardi said that he knew about
some meetings taking place, and he asked Torres if he knew
who was giving out cards for the Union. Torres said that he
did not know anything about it, and Girardi said that he
hoped that Torres was not involved, because, if he was, he
would probably be fired. Girardi also said that he knew that
it was either he or Aponte that was involved with the Union.
Torres testified further that after Aponte was fired, while he
was in Girardi’s office, Girardi told him that he knew that
he was running the union plans, and if he was involved in
it, he will soon be the second one to go out.
Aponte was terminated on March 5, allegedly because of
an incident that occurred the prior evening. However, as
background, there was testimony about an incident that oc-
curred on February 29. O’Brien was the security guard on
the main gate that day and he was informed that there was
a problem in the boilerroom of the administration building.
Classes were taking place and he was told that people were
complaining about the lack of heat. He had the names of
people to call, and he called Aponte. He told Aponte that he
was needed because there was no heat in the administration
building. Aponte told him that he would be there in 10 min-
utes, and that O’Brien should punch him in. He did it, ‘‘be-
cause I wasn’t familiar with anything . . . I didn’t know. But
then I got suspicious.’’ Aponte did the work and ‘‘left quite
early,’’ at 2 p.m. or earlier, and on the way out told O’Brien
to clock him out at 4 p.m. O’Brien said nothing, but did not
clock him out because he felt that it would have been im-
proper to do so. Instead, he left Aponte’s card on the side
and, later, informed Sommer of what had occurred. Sommer
told him to prepare an incident report on what had occurred,
and he did so.
As February 29 was a Saturday, the first workday after
this incident was Monday, March 2. Paretti testified that
when she arrived at the facility that morning she walked into
the maintenance office and heard Aponte and Girardi talking
to Liz Milligan, the secretary to the maintenance department.
Aponte said that the guard made a mistake on his card and
he should be entitled to overtime for working on Saturday.
When Paretti got to her office she received a call from Pam
Lubbers, Respondent’s director of adult education, who said
that the weekend college had to be canceled on Saturday be-
cause the building was ‘‘absolutely freezing.’’ Shortly there-
after, Sister Margarite told her that the students were sent
home because of the cold and the lack of heat, although she
thought that she heard some steam earlier in the morning.
She asked for, and received, a report from Lubbers on what
had occurred on Saturday. Later that morning, when Paretti
saw Aponte and Girardi, she asked Aponte if there was heat
on Saturday and if he went upstairs to see if it was coming
through. He said that he did not, but he had checked a riser
on the floor and it had heat. Shortly thereafter, Sister Doris
Smith, Respondent’s president, told Paretti that she was at
the facility on Saturday afternoon and there was no heat in
the administration building. On the basis of these conversa-
tions, she told Girardi to have Aponte prepare a report on
what he did on Saturday. On the next day, Girardi told
Paretti that Aponte did not want to write the report; Paretti
told Girardi: ‘‘If I have to report to people about it . . . he
has to report to me. I said he has to write it up.’’ Aponte
refused to do it so Girardi wrote the report, by date of Feb-
ruary 1. Meanwhile, on Monday, after telling Girardi that she
wanted Aponte to write up the events of Saturday, she told
Sommer to check on Aponte’s whereabouts on Saturday. On
the following day Sommer told her that O’Brien said that
when he called Aponte to come in, Aponte told him to punch
him in over the phone and when he was leaving, to punch
him out a few hours later. Paretti told Sommer to have
O’Brien prepare a report on the incident and told him: ‘‘I
hope all your men know that they punch in when a person
comes to the gate and punch out when a person leaves.’’
Sommer said that he would make sure his men knew of that.
Aponte testified that he received a call about the lack of
heat in the administration building on February 29; he told
the guard with whom he spoke to punch in his timecard
(which he did) and he went to the facility, although there is
no testimony about what work he did that day. On Monday,
Girardi told him that he was instructed to ask him to write
a report on what he did on February 29 because there was
no heat in the building on that day. Aponte asked how can
there have been no heat on that day when nobody called him
about it, and there was heat on Monday morning.
155COLLEGE OF MOUNT SAINT VINCENT
Admittedly, McCaffery, the security guard at the main
gate, called Aponte on the evening of March 4 to report to
the facility to repair the boiler at Seaton Hall, a dormitory
housing about 60 students. Admittedly, Aponte (who lives
about 10 minutes from the facility) did not report as re-
quested because McCaffery refused to punch his timecard
over the phone. What is in dispute, and may be of some im-
portance, is the time of the call. Respondent’s witnesses testi-
fied that the call was made between 8 and 8:30 p.m. (at the
latest). Aponte and Bennardo testified that Aponte received
the call between 9 and 9:30 p.m. The timing is important be-
cause, pursuant to law, the boiler (which controls the heat
and hot water in the building) would have automatically
turned off at 11 p.m. The argument of the General Counsel
and the Charging Party is that even if Aponte had gone to
the facility, he would not have arrived there until 9:30 to 10
p.m. If it took him 30 minutes to an hour to repair the boiler,
it would automatically cut off shortly thereafter, thereby
making little difference in the comfort of the dorm residents.
Curtis Lanton, head resident of Seaton Hall, and Anthony
Esposito, resident assistant at Seaton, testified to the situation
on March 4. The resident assistant sits at the front desk at
the dorm beginning at 8 p.m. to oversee the people going in
and out of the dorm. When Lanton returned to Seaton Hall
between 7 and 7:30 p.m. there were notes on his door com-
plaining about the lack of heat. When Esposito arrived at 8
p.m., he and Lanton called the security guard at the main
gate, told him that there was no heat, and asked him to call
maintenance to have somebody repair the situation. About 10
minutes later the security guard called back and said that he
called maintenance, told him of the problem, but they said
that they could not do anything about it that night. About 5
minutes later Lanton called the security guard again and told
him that it was very cold and something had to be done. The
guard said that he would attempt to get the guard to come
out, but the way he sounded the first time he did not think
that he would come. Lanton left for a 9 p.m. engagement he
had that evening at about 8:30 p.m.; it was a distance of
about 15 to 20 minutes. He arrived before 9 p.m. On the fol-
lowing morning Lanton wrote a report about the incident.
Lanton and Esposito each testified that they called the guard
at the main gate at about 8 p.m., but no later than 8:30 p.m.
McCaffery testified that he received the call from Lanton at
about 8 p.m., but he was positive that it was no later than
8:30 p.m., and within 5 to 10 minutes he beeped Aponte,
who called him in less than 10 minutes. When asked whether
it was possible that he did not call Aponte until 9:30 p.m.,
he testified: ‘‘No, no, the place would have been freezing by
then.’’
Aponte testified that on the evening of March 4, at about
9:30 p.m., while he was on a telephone call with Bennardo,
he was beeped by the guard at the main gate. He hung up
with Bennardo, called the main gate and was told of the lack
of heat at the Seaton dorm. Bennardo testified that between
9 and 9:30 p.m. that evening he called Aponte and it was
during that call that Aponte was beeped by the guard at the
gate. Bennardo places the time in that area because March
4 was Ash Wednesday. He and his wife went to church, got
out a little after 8 p.m., dropped off his wife’s aunt, stopped
for a slice of pizza, and then went home, which would have
been between 9 and 9:30 p.m.
Putting aside the time of the call, there is general agree-
ment on the remaining events that evening. When Aponte
called McCaffery, McCaffery told him that the boiler at
Seaton was out and that he should come in to fix it. Aponte
said: ‘‘I’ll work on it. Hit me in right now.’’ McCaffery said
that he could not do that and Aponte said: ‘‘If you don’t hit
me in, I am not coming in.’’ McCaffery said that he wasn’t
hurting him, he was hurting the students because the dorm
was freezing. Aponte then asked for Girardi’s home tele-
phone number, which McCaffery gave him and then
McCaffery called Lanton and said that he could not get any-
body to repair the boiler. After ending the phone conversa-
tion with McCaffery, Aponte called Girardi, but he was not
home. He left a message with Girardi’s wife. Aponte did not
go to the facility that evening to repair the boiler at Seaton
dorm.
He reported for work, as usual, the following morning.
When he met Girardi at 8 a.m. he informed him of what oc-
curred the prior evening and Girardi told him not to worry,
that he would take care of it. At about 10 a.m., Girardi told
him that Paretti wanted to speak to him. At this meeting,
which was attended by Paretti, Sommer (who, that morning,
told Paretti of the prior evening’s events), Blanche Marrin,
Respondent’s personnel assistant, Girardi, and Aponte, Paretti
asked Aponte if he had gotten a call the prior evening about
a heating problem at Seaton dorm; he said that he did. Paretti
testified that he said that he got the call at about 11 a.m.;
Aponte testified that he told Paretti that he got the call at
about 9:30 a.m.. Paretti told him that her information was
that he was called at about 8 a.m. Paretti asked him if he
told the guard that he would not come in unless he was
clocked in by phone and (she testified) he said that he did.
Aponte testified that he does not recall responding in that
manner. Aponte then told her that he had an agreement with
Girardi providing that he would be clocked in by phone
when the call was made. Paretti asked Girardi if that was so,
and he said that it was not. Paretti told Aponte that if he had
a problem with the alleged agreement that he had with
Girardi, he should have come to work, performed the work
and discussed it with Girardi the next day. She told him that
he was fired and gave him a letter stating that he was dis-
missed for refusing to respond to an emergency call.
The record establishes that up until February 29, Aponte
had an unblemished work record. This is illustrated by the
fact that Respondent chose him, among all of its maintenance
employees, to take the pool certification course.
Respondent defends that, even if Aponte had an agreement
with Girardi that he would be clocked in when he received
a call (which they did not learn of until later), Aponte’s obli-
gation was to come in and do the call and to later grieve the
loss of hours. In this regard, Respondent introduced into evi-
dence its staff handbook, which provides for a grievance pro-
cedure. Step 1 provides that the employee discusses the situ-
ation with his/her immediate supervisor. Step 2 is a com-
plaint to the administrator in charge of personnel. If the em-
ployee is not satisfied with that response, the next step is an
appeal to a grievance committee composed of ‘‘3 peers se-
lected by the grievant and 2 administrators not involved in
the grievance. The latter will be asked to serve by the Ad-
ministrator in charge of the Personnel Office.’’ After hearing
the matter, the grievance committee submits a written report
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Because Respondent was unaware of this arrangement at the
time, I recommend that the allegation that Respondent nullified the
agreement between Aponte and Girardi in violation of Sec. 8(a)(3)
of the Act be dismissed.
to the Respondent’s president, or designee, whose decision is
final.
Counsel for the General Counsel adduced testimony to es-
tablish disparate treatment. Torres testified that he did not re-
port for a call on Christmas Eve, 1991 involving a boiler not
working in one of the dormitories. On cross-examination, he
testified that he was beeped at 10 p.m., while he was in New
Jersey on Christmas Eve, after the semester had ended and
Christmas break was taking place. By the time he could have
arrived at the facility, it would have been 11 p.m. and the
boiler would have shut off. He told the security guard that
he would take care of it in the morning, and the guard said
that was fine with him. Employee Angela Marsili, an em-
ployee at Respondent’s library, was given two written warn-
ings in July 1991 for refusing to clean the men’s bathroom
at the Hayes Auditorium. Her explanation was that she did
not want to clean the men’s bathroom. The warning states
that if she refused again, she would be terminated. Mainte-
nance employee Liam Kelly was terminated after receiving
three warnings in early 1991 for not calling in when he was
not going to be at work and for tardiness and an uncoopera-
tive attitude. In November 1989, a maintenance employee
was suspended for a week for insubordination to his super-
visor.
IV. ANALYSIS
Aponte was involved in three conversations with Girardi
involving alleged 8(a)(1) statements; Torres was involved in
two such conversations with Girardi. Girardi, who was sub-
sequently discharged by Respondent, did not testify. Torres,
who has no apparent interest in this matter and is still em-
ployed by Respondent, was a credible, although inexact, wit-
ness and I have no difficulty crediting his testimony regard-
ing these statements by Girardi. Aponte was not as credible
a witness. In answer to questions from the General Counsel,
he was direct and, apparently, forthright. In answer to ques-
tions on cross-examination, however, his testimony was, at
times, vague and guarded. Based upon the failure of Girardi
to testify, and Torres’ credible testimony of similar state-
ments, I credit Aponte’s statements in this regard. I therefore
find that Girardi made these statements as alleged. Case cita-
tions are not needed to establish that by these statements Re-
spondent violated Section 8(a)(1) of the Act. I therefore find
that Respondent violated Section 8(a)(1) of the Act by inter-
rogating its employees regarding their union activities, threat-
ening its employees that they would be replaced by outside
contractors if they supported the Union, threatening to dis-
charge its employees because of their activities on behalf of
the Union, and creating an impression among its employees
that their union activities were under surveillance by Re-
spondent.
The 8(a)(3) allegation is more difficult. Clearly, the Gen-
eral Counsel has sustained its burden under Wright Line, 251
NLRB 1083 (1980). Aponte was the leading supporter for
the Union; he was the employees’ contact with Bennardo, he
appeared to have solicited most of the authorization cards
and had the union meetings at his home. In addition, Paretti
testified that she assumed that Aponte was involved with the
Union. The timing of the discharge is suspicious because it
occurred 1 month after Aponte signed his card for the Union
and within a week of Girardi’s 8(a)(1) conduct. It is also sus-
picious because prior to February 29, Aponte had an unblem-
ished work record, although he had only been employed by
Respondent for about 6 months. The crucial question is
whether Respondent has satisfied its burden of establishing
that it would have fired Aponte even absent his union activi-
ties. I find that it has. Initially, I credit the testimony of
McCaffery, Lanton, and Esposito that McCaffery was noti-
fied of the boiler malfunction about 8 p.m. and beeped
Aponte a few minutes later. Although Bennardo appeared to
be a credible witness, I found McCaffery, Lanton, and
Esposito to each be very credible witnesses with no reason
to lie. I therefore find that Aponte could have gotten to the
facility by 8:30 p.m., with plenty of time to get the boiler
running before it shut off automatically at 11 p.m. He did
not do so because McCaffery refused to clock him in over
the phone. Aponte refused to report rather than reporting, re-
pairing the boiler and then grieving the matter with the Re-
spondent. Carolina Freight Carriers Corp., 295 NLRB 1080
(1989). His decision resulted in the residents of Seaton hav-
ing no heat until the next day. Whereas counsel for the Gen-
eral Counsel minimizes Aponte’s action, I am sure that the
residents of the dorm did not minimize the results of his re-
fusal to appear. It is true that Aponte had an agreement with
Girardi that he would be clocked in over the phone when he
was called in to work, but I credit Paretti’s testimony that
she was unaware of this arrangement until a later time.2 In
fact, it appears that only Torres was aware of this arrange-
ment. McHugh’s attempts to obtain additional compensation
for these calls were rebuffed by Girardi as was Paretti’s in-
quiry as to whether additional compensation was warranted.
The inescapable conclusion is that Girardi was a ‘‘loose
canon’’ who was inconsistent in applying Respondent’s rules.
Counsel for the General Counsel, in her brief, argues that
the testimony regarding the February 29 incident ‘‘seems to
have no point.’’ My initial reaction was similar until I real-
ized that there were two points to this testimony: one was
that Paretti received complaints about Aponte’s work prior to
March 4. More importantly, the confusion in O’Brien’s mind
about Aponte’s requests, caused him to alert Sommers about
the situation (resulting in O’Brien preparing a report on the
situation) which resulted in Sommers telling McCaffery not
to clock anybody in until he arrived at the main gate. Pre-
sumably, because of this order, McCaffery refused to punch
Aponte in on March 4, resulting in Aponte’s refusal to work.
I agree with counsel for the General Counsel that parts of
Respondent’s case are not fully logical. For example, when
Lanton learned about 7 p.m. that there were complaints about
the lack of heat in Seaton, why did he wait until Esposito
came on duty at 8 p.m. to call the guard at the gate to beep
a maintenance employee? I fail to see what Esposito added
to that call. Also unexplained was why McCaffery failed to
call Girardi, another maintenance employee or an outside
contractor to repair the boiler at Seaton after Aponte refused
to work. However, overall, 8(a)(1) and (3) cases are rarely
airtight sure things. Some amount of doubt lingers in most
of these cases, and the instant matter is no exception. How-
ever, an administrative law judge’s responsibility is to decide
whether all the evidence establishes that Respondent would
157COLLEGE OF MOUNT SAINT VINCENT
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
have acted in the same matter even if the discriminatee had
not engaged in protected activity. I find that Aponte’s action
was serious and inexcusable, and resulted in substantial dis-
comfort for the residents of Seaton that evening. The lack of
any animus toward any other employee, and the lack of any
8(a)(1) conduct by any one other than Girardi, convinces me
that Aponte would have been fired even if he was not the
most active union adherent. I also do not find persuasive the
General Counsel’s attempt to establish disparate treatment.
For example, the Torres situation of Christmas 1991 is not
analogous to the instant situation. Torres was in New Jersey
when he was beeped at 10 p.m.; even if he had left imme-
diately, he probably would not have arrived at the facility
much before 11 p.m. In addition, this incident occurred dur-
ing the Christmas break when the students were not in the
dormitory. For these reasons I recommend that the 8(a)(1)
and (3) allegation be dismissed.
CONCLUSIONS OF LAW
1. Respondent has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following activity:
(a) Interrogating its employees regarding their union ac-
tivities.
(b) Threatening its employees that they would be replaced
by outside contractors if they supported the Union.
(c) Threatening to discharge its employees because of their
activities on behalf of the Union.
(d) Creating an impression among its employees that their
union activities were under surveillance by Respondent.
4. Respondent did not violate the Act as further alleged in
the complaint.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, College of Mount Saint Vincent, New
York, New York, its officers, agents, and successors, and as-
signs, shall
1. Cease and desist from
(a) Interrogating its employees regarding their union ac-
tivities.
(b) Threatening its employees that they would be replaced
by outside contractors if they supported the Union.
(c) Threatening to discharge its employees because of their
activities on behalf of the Union.
(d) Creating an impression among its employees that their
union activities were under surveillance by Respondent.
(e) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its administration building at the Riverdale
campus copies of the attached notice marked ‘‘Appendix.’’4
Copies of the notice, on forms provided by the Regional Di-
rector for Region 2, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the 8(a)(3) allegations of the
complaint be dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT interrogate our employees regarding their
activities on behalf of Local Union 74, Service Employees
International Union, AFL–CIO, CLC.
WE WILL NOT threaten our employees that they will be re-
placed by outside contractors if they support the Union.
WE WILL NOT threaten to discharge our employees because
of their activities on behalf of the Union.
WE WILL NOT create an impression among our employees
that their union activities are under surveillance.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
COLLEGE OF MOUNT SAINT VINCENT