College Of The Holy Cross

National Labor Relations Board - Board Decisions

Nov 21, 1989

297 N.L.R.B. 315 (N.L.R.B. 1989)

COLLEGE OF THE HOLY CROSS 315
Trustees of the College of the Holy Cross and Ken-
neth R. Jewett and William Breault. Cases 1-
CA-25465 and 1-CA-25806
November 21, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
On July 27, 1989, Administrative Law Judge
Claude R Wolfe issued the attached decision The
Charging Parties filed exceptions and a supporting
brief The Respondent filed an answering brief
The_National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, 1 and
conclusions and to adopt the recommended Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed
I The Charging Parties have excepted to some of' the Judge's credibil
ity findings The Board s established policy is not to overrule an adminis-
trative law judge s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are Incorrect Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cu.
1951) We have carefully examined the record and find no basis for re-
versing the findings
Joseph F Griffin, Esq , for the General Counsel
David M Mandel and Jeffrey H May, Esqs , counsel for
Trustees of the College of the Holy Cross
DECISION
STATEMENT OF THE CASE
CLAUDE R WOLFE, Administrative Law Judge This
consolidated proceeding was litigated before me at
Boston, Massachusetts, on May 8, 9, and 10, 1989, pursu-
ant to charges and amended charges timely filed on
April 28, May 19, and September 23, 1988, and timely
served, and consolidated complaint issued November 22,
1988 The complaint alleges the Trustees of the College
of the Holy Cross (Respondent) has violated Section
8(a)(1) and (3) of the Act by issuing written warnings to
William Breault and failing to employ Kenneth Jewett as
an on-call bartender The refusal to employ Jewett is also
alleged as a violation of Section 8(a)(4) of the Act Re-
spondent denies it has committed any unfair labor prac-
tices
After carefully considering the evidence, the compara-
tive testimonial demeanor of the witnesses, and the post-
tnal briefs filed by the parties, I am persuaded, for rea-
sons set forth below, that General Counsel has not
proved the allegations of the complaint by a preponder-
ance of the credible evidence, and the complaint must
therefore be dismissed
I JURISDICTION
Trustees of the College of the Holy Cross (Respond-
ent) is a corporation engaged in the operation of a non-
profit institution of higher learning at Worcester, Massa-
chusetts Respondent, in the course and conduct of these
business operations, annually purchases and receives at
its Worcester, Massachusetts facility goods and materials
valued in excess of $50,000 from points outside of Massa-
chusetts, and annually derives gross revenues in excess of
$1 million from said business operations, which does not
include contributions which are not available for operat-
ing expenses due to limitations placed thereon by the
grantor Respondent is now, and has been at all times
material to the event considered herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act
II LABOR ORGANIZATION
Service Employees International Union, Local 254,
AFL-CIO-CLC (the Union) is now, and has been at all
times material, a labor organization within the meaning
of Section 2(5) of the Act -
III SUPERVISORS AND AGENTS
The complaint alleges, Respondent admits, and I find
the following named persons have occupied the positions
set forth opposite their respective names, and are now,
and have been at all times material, supervisors of Re-
spondent within the meaning of Section 2(11) of the Act
William Wachur—Manager, Hogan Food Service
Thomas Wiegand—Director, Hogan Campus
Center
Richard Gough—Administrative Assistant
Arthur Korandarus—Director of Food Service to
July 1, 1987, Director of Auxiliary Services since
July 1, 1987
John Donovan—Chief of Security
William R Durgin—Vice President Business Af-
fairs and Treasurer
Neil Carmody—Lieutenant, Security Department
It is settled that an employer is bound by the acts and
statements of its supervisors whether specifically author-
ized or not 1
IV THE ALLEGED UNFAIR LABOR PRACTICES
William Breault has been a night custodian at Re-
spondent's Hogan Campus Center since 1976 Kenneth
Jewett began his employment with Respondent in 1977
After working as a full-time student pub supervisor for
some time, Jewett became a part-time bartender at the
Hogan Campus Center in January 1988 He has not been
called in to work since March 26, 1988
'Dorothy Shamrock Coal Co, 279 NLRB 1298, 1299 (1986)
297 NLRB No 49
316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The parties stipulated and I find (1) that Respondent
became aware of union activity in February 1987 (2)
that a representation petition in Case 1-RC-18867 was
filed with the Board in March 1987, (3) that Respondent
knew from mid February 1987 that Jewett and Breault
were leading supporters of the union organizing cam
paign (4) that both testified in the representation case in
April 1987 (5) and that Breault was an election observer
for the Union at the August 27 1987 election in Case 1-
RC-l8867 which the Union lost
On November 2 1987 Administrative Assistant
Gough issued a written warning to Breault for taking an
unauthorized break with Tom Holden another custodi
an on October 28, 1987 and for taking another on No
vember 1, 1987 Holden also received a wntten warning
for an unauthorized break with Breault on October 28
1987 These warnings are not alleged as unfair labor
practices, and there is no evidence they were unlawfully
motivated Breault and Holden next received written
warnings on March 29 1988 for talung unauthorized
breaks to sit and talk with Jewett on March 26, 1988
The warning to Breault is alleged to be a violation of
Section 8(a)(3) and (I) of the Act The warning to
Holden is not so alleged
Jewett has not been used as an on call bartender since
March 26, 1988, and this is alleged as a violation of Sec
tion 8(a)(1) (3), and (4) of the Act
Finally Respondent, by Director of Auxiliary Services
Korandams, issued a written warning to Breault on Sep
tember 27, 1988, which is alleged as a violation of Sec
tion 8(a)(1) and (3) of the Act
There is no evidence that any of Respondent s agents
ever overtly displayed hostility toward employee union
activity or testified before the Board General Counsel
recognizes this fact, arguing that unlawful motivation for
the conduct alleged as unfair labor practices should be
inferred from the pretextual reasons therefor proffered
by Respondent Citing Shattuck Denn Mining Corp v
NLRB, 362 F 2d 466 470 (9th Or 1966) General Coun
sel asserts Motive which is a state of mind, can be in
ferred from the circumstances and if the reasons for dis
charge are false, then even an unlawful motive can be in
ferred This is an incomplete formulation of what the
court said in Shattuck Denn which was that if the stated
motive for a discharge is false the trier of fact can infer
an unlawful motive where the surrounding facts
tend to reinforce that inference 2 The Board citing
Shattuck Denn recently stated in Fast Food Merchandis
ers 291 NLRB 897 (1988) It is well settled that when a
respondent s stated motive for its discipline of an em
ployee is found to be false, the circumstances may war
rant an inference that the true motive is an unlawful one
that the respondent desires to conceal Both the Board
and the court require something more than a bare show
mg of a false reason 1 e the support of surrounding cir
cumstances The Board has long emphasized the necessi
ty of something more than discredited reasons to estab
lish motivation Thus in Garrett Flexible Products 270
NLRB 1147, 1148 (1984) (and see Pullman Power Prod
ucts 275 NLRB 765, 767 (1985)) it held However, the
2 362 F 2d 466 470 (9th Cir 1966)
question of motivation where an unlawful discharge is al
leged is not answered by discrediting a respondent s as
serted reason for the discharge Rather the answer to
that question rests upon an evaluation of all the relevant
evidence More recently the Board in Wackenhut
Corp 290 NLRB 212 (1988) (failures to lure), and
Raysel Ide Inc 284 NLRB 879 (1987) (failure to retain)
has reaffirmed the rationale set forth in Briarwood Hilton
222 NLRB 986 991 (1976) as follows
The employer s explanation for a discharge is a
factor which is weighed in determining whether the
action was unlawful However a feeble reason for
the termination, alone or together with evidence
that the employer knew of the dischargees union
sympathies and was opposed to an ongoing orgam
zational campaign does not spell out an unlawful
discharge To find a violation of Section 8(a)(3) the
evidence must permit a positive finding (which may
be based on circumstantial evidence) that union ac
tivity was a contributing factor in the decision to
discharge the employee Suspicion that such was
the case is not enough
It is therefore not only the reasons put forth for Re
spondent s conduct that must be examined in the search
for unlawful motivation but also the attendant circum
stances With this in mind I now turn to an examination
of the circumstances surrounding the conduct corn
plamed of and the justification advanced for such con
duct
The March 29 1988 Warning to Breault
The warning issued to Breault on March 29 reads as
follows
DATE 3/29/88
TO William Breault
FROM Thomas W Wiegand, Director
Hogan Campus Center
RE Disciplinary Action
Saturday, March 26 1988
6 30 PM Unauthorized break from work duties
sitting in Main Lounge talking with Ken Jewitt
645 PM Still sitting in Main Lounge talking with
Ken [sic] Jewitt—contmued unauthonzed break
from work duties
845 PM Unauthorized break from work duties—
Sitting in Room 443 talking with Ken Jewitt
2nd written warning
Corrective action needed Immediately refrain
from taking unauthorized breaks at unauthorized
times
Failure to adhere to stated written policy will
result in further disciplinary action, up to and in
cludmg termination
The warning issued to Holden on the same date refers
only to the alleged 8 45 p m incident but is otherwise
identical and is not alleged to be unlawful
I 1 [
COLLEGE OF THE HOLY CROSS 317
Breault and Holden were working as night custodians
on the 2 30 pm to 11 p m shift at the Hogan Campus
Center on March 26, 1988 Wiegand issued the written
warnings on the basis of information furnished by Food
Service Manager Wachur Wachur testified that at 6 30
p m on March 26, 1988, he observed Breault and Jewett
sitting on a couch in the main lounge with Holden stand-
ing behind them According to Wachur, Jewett was
eating, Breault was talking to him, Holden was Just
standing, all three were doing the same thing when he
came by at 645 p m Then, testifies Wachur, he saw the
three of them in room 433 at 845 p m Holden was in a
lounge chair smoking a cigarette, Jewett was leaning
against a railing, and Breault ' was sitting in a lounge
chair
Breault and Holden agree with Jewett that they were
working in the main lounge at about 6 30 p m when
Jewett entered with some hot dogs which, after an offer
to share which was declined, Jewett proceeded to eat
Jewett and Holden agree that Jewett sat while eating
Although Holden and Breault testify generally to work-
ing their entire shift, except for Holden's acknowledge-
ment that he was sitting on a couch in Wachur's pres-
ence, neither specifically denies Wachur's testimony re-
garding what he observed at 6 30 p m, 645 p m, and
8 45 p m Wachur's testimony on this score is simply not
rebutted, and I therefore cannot and do not find that
General Counsel has shown the reasons assigned in the
warnings to Holden and Breault are false Moreover,
Breault concedes the following break schedule for the
night shift was distributed to the employees at a January
15, 1987 meeting
NIGHT SHIFT
Afternoon Coffee
4 00-4 15 1st man
4 15-4 30 2nd man
Dinner Break
6 30-7 00 1st man
700-7 30 2nd man
Evening Coffee
9 15-9 30 1st man
9 30-945 2nd man
The record does not reflect which of the two, Breault
and Holden, was the first man and who the second man
In any event, neither should have been on break at 8 45
p m, and Breau/t and Holden agree they were not on
break when Jewett came in shortly after 6 30 p m If, as
Wachur's essentially unrebutted testimony fairly estab-
lishes, the two were conducting themselves as though
they were on break at a time they were not in fact on an
authorized break, Respondent's judgment that warnings
were warranted does not appear unreasonable or vindic-
tive where both recipients had previously received warn-
ings for the same type of offense, and there is no evi-
dence Holden was or suspected to be a union adherent
The Failure to Call Jewett to Work
Wachur became responsible for the supervising and
scheduling of bartenders in January 1988 Jewett had
previously had these duties, but surrendered them when
he was put on an on-call status on or about January 8,
1988 Respondent continued to pay Jewett at the super-
visory rate and to pay part of his health insurance until
March 1, 1988, when he began to receive the lesser rate
of an on-call bartender Jewett agrees that for these 2
months he received benefits other on-call bartenders
would not have received Noting that Wachur assumed
Jewett's supervisory authority, I find the two disagreed
on the use of certain equipment, and Jewett derogatorily
referred to Wachur as "Weasel" when discussing him
with others, I have a notion that Jewett neither respect-
ed nor liked Wachur
In any event, when Wachur became responsible for su-
pervising the bartenders he orally promulgated guide-
lines providing the on-call bartender would punch in 2
hours before a wedding and 1-1/2 hours for functions
with less than 100 participants Jewett tangentially con-
firms this was the case by his testimony that his practice
was to come in 1-1/2 or 2-1/2 hours prior to a scheduled
function, depending on its size, the number of bartenders
needed, and other relevant details On March 26, 1988,
Wachur called Jewett in to work on a Black Student
Union function commencing at 10 p m with less than
100 participants, and gave Jewett a setup time of 1-1/2
hours Wachur's credible testimony that he gave these in-
structions is partially corroborated by Jewett's recall the
function was scheduled for 10 p m and he went to his
work station between 8 and 8 30 p m Jewett states he
punched in at 7 p m Wachur says Jewett's timecard
shows he punched in at 7 15 p in By either version,
Jewett punched in more than 1 hour before he sould
have for such a function
According to Jewett, Wachur told him privately, at 9
or 9 30 p m, that when he called Jewett in to do a job
he expected Jewett to do that, and he did not want
Jewett socializing with maintenance employees as he had
been frequently doing of late Jewett testified that he
asked if he did not get a 2-minute break, and advised he
was discussing the room temperature and the illegal loca-
tion of the bar Wachur responded, says Jewett, by
asking if Jewett did not like it there, and by stating he
did not want to have to worry about Jewett when he ws
called in to do a job and if Jewett did not like it there
why did he not quit and get a job elsewhere for which
Wachur would give him a good recommendation Jewett
says he replied that he liked it there, was going to keep
his job, and Wachur need never worry about him again
Wachur's testimony, although phrased differently, agrees
with that of Jewett, with the exception that Wachur
states that his suggestion Jewett go elsewhere was preci-
pitated by Jewett's comment that he thought it was a
"chicken shit" operation Given Jewett's demotion and
his disgruntlement at Wachur and his instructions to
Jewett, I am persuaded Jewett probably did make the
remark attributed to him by Wachur According to
Wachur, he initiated the conversation with Jewett be-
cause the bar had not even been set up at 845 p m
318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wachur is credited that the bar was not set up at 8 45
p m because (1) Jewett did not testify otherwise and af-
firmatively testified he arrived at the room scheduled for
the function between 8 and 8 45 p m, (2) Holden places
Wachur in the room at 8 45 p m, (3) Wachur credibly
testified Jewett was leaning against a railing at 8 45 p m
while Holden and Breault sat in lounge chairs, which
Holden admits he did, (4) Wachur was more believable
than Jewett as a witness, and (5) I conclude it could
have appeared Jewett was socializing rather than work-
ing at 8 45 p m on March 26, 1988
Jewett was not again called to work as a bartender
Wachur states he decided not to again use Jewett be-
cause he could not trust Jewett unless he directly super-
vised him, and no occasion arose when he considered it
appropriate to use Jewett In short, when Wachur decid-
ed not to use Jewett except in very exceptional circum-
stances not reasonably likely to occur in the foreseeable
future, Jewett was effectively severed as an employee of
Respondent I can discern nothing in the evidence to
warrant a conclusion Wachur's reason for not calling
Jewett is false
The September 27, 1988 Warning to Breault
The warning at issue is signed by Korandarus and
reads as follows
Re Theft at Hogan Campus Center and Missing Keys
Dear Mr Breault
After investigating the above matter, I have de-
termined that the appropriate course of action is to
issue you this final written warning
Facts
On Monday, September 12, 1988 a student turned
in to you a lost set of keys to the Hogan Campus
Center You told the student that they belonged to
the Building Supervisor (you claim to have said that
they belonged to the "foreman") In fact, you now
admit that you knew (or assumed) that the keys be-
longed to William Wachur
For reasons that are unclear, you did not notify
anyone about the keys or turn them in Rather, you
took them home with you
That night, there was a theft from the Campus
Center in which two doors were unlocked without
forced entry The keys you took home included
keys to both doors
The next afternoon, you turned in the keys to Se-
curity, and told Lt Carmody that you thought the
keys belonged to Mr Wiegand or another mainte-
nance employee You told Mr Wiegand that you
thought the keys belonged to Jesse Baptista
On September 20, 1988, we met and I questioned
you about the inconsistence [sic] in your stories
You first told me a confusing and implausible story
about two sets of keys being lost Finally, you ad-
mitted that you had known the keys were Mr Wa-
chur's
Discussion
Your course of conduct in this matter was highly
inappropriate You took home keys when you
should have reported their recovery and/or turned
them in When you turned them in, you intentional-
ly gave false information to Security and Mr Wie-
gand These actions obstructed the theft investiga-
tion, put you in the position of being a suspect in
the theft, and delayed Mr Wachur's recovery of his
keys Because you took the keys home, and because
we cannot be sure what you did with them, the
College is in the position of having to re-key the
Campus Center, for an estimated cost of $5,000
The false statements to Security and Mr Wiegand
were especially grievous, because in your job you
are entrusted with keys and access to the building
and the College therefore needs to have full confi-
dence in your integrity
Action
Lying about a security issue is an offense for
which termination would be justified However, I
have also given consideration to your long-term
service to the College, the fact that you finally did
admit that you knew that the keys belonged to Mr
Wachur, and the fact that there is no proof you
were involved in the theft Accordingly, after seri-
ous thought, I have decided not to terminate you
but instead to issue this formal written warning
Any further incidents involving unacceptable per-
formance or behavior on your part will result in
your dismissal from the College
The chain of events leading to this warning began at
about 7 p m on September 12, 1988, when Wachur mis-
laid his keys while working at Hogan Campus Center
The keys included a master key which provided entry to
food and drink stores and other secured food service
areas and was easily recognizable to employees as a
master key by the number on it At about 8 30 p m, a
student 3 gave William Breault, who was cleaning a room
in the Center, a set of keys he had found including a
master key Earlier that evening, Breault had retrieved a
set of keys which he found sticking in employee Jesse
Baptista's locker at about 5 45 p m This set contained no
master key About 15 minutes after receiving the second
set of keys from the student, Breault telephoned Baptista,
a former foreman, and described the keys to him Baptis-
ta immediately recognized the keys left in the locker as
his He then told Breault, after Breault described the
other set, that it contained a master key for the Hogan
Campus Center, but he did not know whose it was
Breault made no effort to contact any supervisor at the
Center that night Wachur and another supervisor were
still present in the building when he went home at 10 55
p m, and Breault knew this Breault concedes he knew
when he took the keys home, as he did, that whoever
they belonged to would get in trouble, and that it would
not have made him sad if Wachur got in trouble He
denies knowing the keys were Wachur's That same
3 The student was not called to testify
COLLEGE OF THE HOLY CROSS 319
' might there was a theft of several cases of beer from a
locked cooler in the Center There was no evidence of
forced entry Wachur's master key could have unlocked
the door and thus permitted the theft
When Breault reported to work on September 13, he
went to Administrative Assistant Gough's office at about
2 25 p m as usual to receive his assignment for the day
Breault began the conversation by asking Gough if any-
thing had happened the night before, and jiggled Wa-
chur's keys which Breault carried in his pocket In reply
to Gough's "Why" Breault showed him Wachur's keys
Breault explained he had received them from a student
the night before Gough directed Breault to turn the
keys in to the secunty office I credit Breault because I
find it probable that Gough told him the keys were Wa-
chur's
At about 2 45 p m, Breault met with Lieutenant Car-
mody in the security office 4 Breault handed Carmody
the keys and told him they were the keys Carmody was
looking for Carmody asked where he got them, and
Breault explained a student had given them to him the
night before Then Carmody asked whose they were
Breault said he had thought they belonged to Holden or
another maintenance employee and advised he had taken
them home Breault then volunteered his opinion that
Respondent handled lost keys in two ways, one for man-
agers and another for employees, clearly implying he
thought managers were better treated in such circum-
stances Wachur's name was not mentioned during the
discussion
Later the same afternoon, Director of Secunty Dono-
van advised Wiegand, the center director, and Director
of Auxiliary Services Korandanis that Breault had turned
Wachur's keys in to Carmody at Gough's instruction
Korandams instructed Wiegand to investigate how
Breault got the keys Wiegand then went to Breault's
work station and asked where he got them Breault ex-
plained the student had given them to him at about 8 30
p m and he had then taken them home Breault also told
Wiegand he had found Baptista's keys Wiegand says
Breault told him he had thought the keys (i e, Wachur's
keys) were Baptista's keys and Breault had therefore
taken them home According to Breault, he told Wie-
gand he forgot to leave Baptista's keys in the box pro-
vided for the return of the keys daily issued to employ-
ees for their use, but containing no master key, because
he had put them in the same pocket as the other keys,
forgot them, and took them both home I have consider-
able difficulty with Breault's claim he simply forgot he
had the keys He certainly knew the loss of a master key
was of some importance He admits he knew it would
cause somebody trouble By his question of Gough on
September 13 whether anything had happened the night
before, all the while jiggling the keys to draw Gough's
attention to them, he revealed he knew the loss of the
master key was a senous matter He knew O'Malley and
'Carmody' account of this meeting is credited There is no great dis-
agreement with It by Breault, but to the extent there is some minor dis-
agreement Carmody's recollection and direct and very professional
matter-of-fact recitation without any hint of invention was more impres-
sive and believable in the details than that of Breault, who does not recall
with certainty whether he gave the keys to Gough or Carmody
Wachur were at work and available when the keys were
found, clearly disliked Wachur, knew the loss of the
master key would cause somebody trouble, admits he
would not be sorry if Wachur got in trouble, and, I am
persuaded, by all of the foregoing factors and the plain
unlikelihood of Breau/t forgetting he had keys of consid-
erable importance in his possession which were not Bap-
tista's, that Breault's claim he forgot cannot be credited
Wiegand says he asked why Breault had not turned the
keys over to Supervisor O'Malley who was working that
night According to Wiegand, Breault replied he had
mishandled the situation Breault's version is that Wie-
gand asked if he had any problem returning the keys im-
mediately to a supervisor, and was he aware O'Malley
was working To this, testifies Breault, he replied that
nobody from Wachur to O'Malley had asked him about
keys and he felt the whole key situation was being mis-
handled Wiegand then again asked, according to
Breault, if he had a problem with returning the keys im-
mediately and, receiving a "No, I don't" answer, gave a
funny look and walked away The differences in the tes-
timony of Breault and Wiegand regarding who mishan-
dled what is due I believe to different interpretations of
what was said in that regard and is of no great conse-
quence to the decision in this case The two are in basic
agreement that Wiegand asked how Breault got the keys
and why he didn't turn them in to a supervisor, and
Breault responded Breault's claimed reply to the latter
question is evasive and impliedly concedes Wachur and
O'Malley were available to receive the keys or at least
notice they had been found Inasmuch as this reply could
not enhance his position vis-a-vis the handling of the
keys, and could only work to Breault's detriment, and I
do not believe it likely Breault would knowingly fabri-
cate testimony detnmental to his cause, I am persuaded
Breault's testimony in this regard is entitled to credit I
have no doubt Wiegand did, after hearing this explana-
tion from Breault, give him a "funny look" and walk
away
On September 19, Lieutenant Carmody had Gough
send Breault to the security office where Carmody and
Breault talked for less than 15 minutes Carmody asked
Breault how he had come about the keys and who he
thought they belonged to Breault told him how he got
them and said that he had thought they belonged to Bap-
tista Carmody then asked if Breault had reported his
find to Hogan Campus Center Supervisor O'Malley
Breault answered he had not and it had slipped his mind
Carmody prepared a report on his investigation of the
lost keys, and forwarded it to Director of Security
Donovan
On the afternoon of September 20, at about 3 p m,
Donovan and Korandanis met with Breault in the securi-
ty office for about half an hour 5 At the beginning, Kor-
andanis told Breault the reason for the meeting was that
Breault had given inconsistent statements regarding to
whom the keys belonged Breault asked if he was a sus-
5 The three participants agree in general regarding what transpired
Where they differ I credit Donovan, a calm, direct, concise, believable
professional who was the most impressive witness of the three and whose
testimony is corroborated by that of Korandams
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pect in the beer theft Donovan explained he was be-
cause he had the keys in his possession at the time of the
theft Donovan asked if Breault had copied the keys,
given them to anyone else to copy, or lent them to
anyone else Breault answered that he had not Donovan
and Korandams agree, and find, that during this discus-
sion Breault admitted he knew the keys belonged to
Wachur, and added that if he had known there was a
theft he would not have kept the keys overnight Ac-
cording to Breault, whose version I do not credit, he
stated that if he had known of vandalism "maybe I
would have turned the keys in I said, everything is great
in hindsight Maybe I did know whose keys Maybe I
could have assumed I didn't" During this meeting,
Breault also protested that he was following policy
whereby Wiegand had said to return any lost keys to
him or Gough
After this meeting, Korandanis visited Wiegand's
office, told him Breault had admitted knowing the keys
belong to Wachur, and asked about the policy Breault
had referred to Wiegand testifies that he does not recall
stating that was the policy Breault and Baptista, at
Breault's request, joined Wiegand and Korandams Bap-
tista, a straightforward and believable witness, agreed
with Breault that about 2 years prior to this meeting
Wiegand had told employees to turn found master keys
in to him or Gough personally Thomas Holden, who
was not present at this meeting, also recalls Wiegand
stating in 1986 or 1987 that master keys should be turned
in to Wiegand or Gough Wiegand told Baptista, Breault,
and Korandanis he did not recall so stating A "do not
recall" is not enough to rebut the positive and consistent
testimony of the three employees that Wiegand did so
state, and I conclude and find he did After this ex-
change, Wiegand advised Breault that Korandanis had
informed him Breault had admitted he knew the keys
were Wachur's Breault denied saying he knew, and
stated he had merely said he assumed Baptista recalls
that Breault said he had assumed they were food service
keys
On September 21, Wiegand sent Korandams a memo
reciting the times he believed Breault had lied to him
during the investigation After considering Breault's con-
duct, Korandanis decided his options were to terminate,
suspend with a letter of final warning, or a letter of final
warning alone He opted to issue a letter of final warning
in view of Breault's long service with Respondent Kor-
andams states the letter, set forth in full above, accurate-
ly summarizes his reasons for issuing it
The lengthy letter, boiled down to its essentials, com-
plains of Breault's failure to immediately report his pos-
session of Wachur's keys, their retention overnight, and
his conflicting statements regarding who he thought or
knew the keys belonged to Although I have found that
Breault is correct in his claim of instruction by Wiegand
to turn such recovered keys in to Wiegand or Gough, I
note that Breault's statement to Lieutenant Carmody on
September 19 that reporting the find to the On-Duty Su-
pervisor O'Malley slipped his mind is in the nature of a
recognition by Breault that he should in fact have done
so That Breault was aware such action would have been
appropriate is also indicated by his call to Baptista and
his evasive reply to Wiegand's September 13 inquiry as
to whether Breault had any problem with immediately
returning the keys to a supervisor Turning to the ques-
tion of inconsistent statements, I am persuaded that
Breault knew or at least strongly suspected, no later than
his conversation with Baptista, the keys belonged to
Wachur, which did not displease Breault because he
knew loss of the keys would embarrass Wachur, whom
he disliked
Discussion and Conclusions
So far as this record shows there was no union activity
after August 1987 The alleged unfair labor practices did
not occur until 7 and 13 months later Nothing transpired
between August 1987 and March 1988 or March and
September 1988 which would indicate Respondent enter-
tained any lingering animosity toward Breault or Jewett
because they had engaged in union activity or given tes-
timony to the Board In fact, this record contains no evi-
dence Respondent ever entertained such animosity As
Respondent points out, Jewett was permitted to retain
his wage level and insurance benefits for 3 months after
he lost entitlement thereto Similarly, Breault received a
favorable performance evaluation in August 1988 This
treatment does not bespeak an obdurate resolve to retali-
ate against these gentlemen for their past union support,
and the lapse of many months between the protected ac-
tivity and the conduct complained of, with no indication
of unlawful animus in the interim, militates against a con-
clusion Respondent's conduct was the result of such
animus The reasons proferred by Respondent to explain
its conduct under scrutiny in this case have not been
shown to be false, and there are no circumstances
present to support a finding of unlawful motivation I
therefore find General Counsel has not made out a prima
facie case for any of the alleged unfair practices See
Brianvood Hilton and the other cases cited supra More-
over, assuming arguendo a prima facie case has been
made out for any or all of these allegations, Respondent
has shown by a preponderance of the evidence that it
would have taken the action it did even if no union ac-
tivity or Board testimony by the affected employees had
ever existed Wright Line, 251 NLRB 1083 (1980), and
see Klate Holt Go, 161 NLRB 1606 (1966), Stoutco, Inc ,
218 NLRB 645 (1975), P G Berland , Paint City, 199
NLRB 927 (1972), for the proposition that when a
known union activist whom his or her employer plans to
retaliate against engages in conduct for which he or she
would have been punished in any event the punishment
is not unlawful
The facts and the law require a conclusion that the
unfair labor practices have not been proved by a prepon-
derance of the credible evidence
CONCLUSIONS OF LAW
1 Respondent is an employer 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 mean-
ing of Section 2(5) of the Act
COLLEGE OF THE HOLY CROSS 321
3 General Counsel has not established by a preponder-
ance of the credible evidence that Respondent has violat-
ed the Act as alleged in the complaint
On these findings and conclusions and on the entire
record, I issue the following recommended6
ORDER
The complaint is dismissed in its entirety
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur-
. Order shall, as provided in Sec 102 48 of the Rules, be adopted by the poses