Lasell Junior College

National Labor Relations Board - Board Decisions

Jul 22, 1977

230 N.L.R.B. 1076 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lasell Junior College and John Guglielmi. Case I-
CA-11635
July 22, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On January 5, 1977, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
CHAIRMAN FANNING, dissenting:
My colleagues do not reach the "supervisory-
managerial" issue relative to alleged discriminatee
Guglielmi but adopt the Administrative Law Judge's
finding that, assuming he was a rank-and-file
employee, he was discharged for cause. I disagree.
In my view, Guglielmi ceased to be a supervisor in
September 1975, when James Rardin was promoted
to superintendent of buildings and grounds. Prior to
this time, Guglielmi was foreman of the maintenance
department which consisted of 12 employees and
which was included within buildings and grounds.
Upon Rardin's promotion, however, the mainte-
nance department was reduced to three employees:
Guglielmi for boiler repair, Campbell for plumbing,
and Sinerate for electrical work. That Guglielmi was
not formally divested of the title of foreman of
I We find it unnecessary to pass on the Administrative Law Judge's
findings concerning Guglielmi's alleged supervisory-managerial status, in
view of our agreement with his conclusion that the General Counsel has
failed to establish by a preponderance of the evidence that Guglielmi's
discharge was unlawfully motivated. While we share our dissenting
colleague's concern that Guglielmi's discharge was suspicious, mere
suspicion cannot substitute for proof of an unfair labor practice. See, e.g.,
Kings Terrace Nursing Home and Health Related Facilitr. 229 NLRB 1180
( 1977); DSL Mfg., Inc., 202 NLRB 970 (1973).
230 NLRB No. 166
maintenance is hardly decisive. Based upon the
record testimony, therefore, I would find that after
September 1975, and at the time of his discharge,
Guglielmi was an employee.
I also take issue with the Administrative Law
Judge's reasoning that, in terminating Guglielmi, the
Employer was merely looking for a scapegoat to
blame for the damage resulting from the winterizing
of the three unused buildings, and Guglielmi's
discharge for that reason was not discriminatory.
Rather, what appears most striking is that the college
singled out for discipline the catalyst of the Union's
organizational drive. Significant in this vein is that,
after listening to the maintenance department em-
ployees discuss their interest in union representation
at coffee and lunch breaks, Guglielmi took the first
step in organizing by contacting a security guard,
who was then represented by the Union, and asking
him to have a union representative come to the
college. Thereafter, Guglielmi signed an authoriza-
tion card, spoke several times with the Union
representative, and discussed unionization with other
maintenance employees. Although the Employer
employs guards and telephone operators who are
unionized, President Griffin had been at the college
only a few months and made clear his opposition to
unionization during the campaign for a unit of
buildings and grounds employees. Two days before
the election, Griffin met with the 10 or 11 employees
being sought to ask if there were any questions about
Respondent's position on the issue. Except for a
question or two, the employees were apparently
loathe to talk even when asked if they had any gripes.
It was not until Guglielmi took the lead in expressing
why the employees were seeking union representa-
tion that other employees then discussed matters
further.2 Respondent was also aware that Guglielmi
voted in the election and was challenged by the
Board agent. The next day, Superintendent Rardin
informed Guglielmi that he was discharged, purport-
edly for his negligence with respect to the winterizing
work on the three houses.
In my judgment, the record does not support
Rardin's explanation. Rardin's own testimony indi-
cates that he did not think Guglielmi should be
involved in union activity and that his view was quite
likely expressed to Board Agent Pulcini.3 Although
Rardin may have considered Guglielmi to be part of
management, I am persuaded, as indicated above,
2 Though not questioning Gugliemi's active role at this meeting, the
Administrative Law Judge assessed it only as consistent with the approach
of a "knowledgeable supervisor."
3 It seems reasonable to infer that, had Rardin not known of Guglielmi's
union activity, he never would have told Pulcini that he was aware of it, and
were he not aware of it, he certainly would not have admitted while
testifying that he possibly made such a statement.
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LASELL JUNIOR COLLEGE
that, after September 1975, and thus at all critical
times here, Guglielmi was an employee entitled to the
protection of the Act. Nor does it suffice to say that
management may harbor the attitude that an
employee should not be involved in a union. While
an attitude of opposition to unionism is permissible,
management is not entitled to convert this attitude to
action designed to rid itself of a union adherent.
That Respondent seized upon the freeze damage to
the three buildings as a pretext to terminate an active
union supporter is evidenced by the situation leading
to Guglielmi's discharge. Guglielmi had objected to
President Griffin's decision to save fuel by draining
the water pipes in these buildings and had cautioned
Griffin against the risk of damage posed. When
Guglielmi had suggested instead that the college
merely follow its past practice of lowering the
temperature in these buildings to between 45 and 55
degrees, Griffin replied that he would take responsi-
bility for draining the pipes.4 The actual work of
draining the pipes was then performed by mainte-
nance employee Campbell. Guglielmi only poured
antifreeze into the toilet tanks and drains, with
Superintendent Rardin responsible for having the
city cut off the water supply. In these circumstances,
the Administrative Law Judge himself expressed
reservations as to why the entire blame for the
consequent damage was placed on Guglielmi.
Particularly suspect is the timing of Guglielmi's
discharge, Superintendent Rardin knew, at least
before February 6, 1976, 5 that broken pipes and
valves had caused extensive damage to the plumbing,
walls, ceilings, and floors of the three buildings in
question. As a maintenance man with 29 years of
experience, Rardin was also aware, prior to the
winterizing work, that improperly drained pipes
would result in considerable damage to the college
amounting to thousands of dollars. Rardin admitted,
moreover, that he immediately informed President
Griffin of the damage and the need for expensive
repairs and that he kept Griffin informed of
subsequent measures taken to repair the damage.
When Griffin asked who was responsible, Rardin
blamed Guglielmi. Nevertheless, it was not until
April 9, 1976, the day after the election which the
Union won by a vote of 8 to 2, that Rardin informed
Guglielmi of his discharge. Between discovery of the
damage and his discharge, Guglielmi was never
warned or reprimanded for the damage by either
Rardin or Griffin. Against this background, Griffin's
contention that Guglielmi's discharge emanated from
a "coincidental" conversation between Griffin and a
plumbing contractor a day or so before the election is
unpersuasive.6 Rather, I would conclude that Gug-
lielmi's discharge, so soon after the election and the
employee meeting with Griffin at which Gulgielmi
made statements in favor of a union, was motivated
by knowledge of Guglielmi's leaning toward union-
ism. Accordingly, I would order him reinstated. 7
This statement was made in the presence of both Guglielmi and
Superintendent Rardin.
' On this date, Rardin signed a work order for the repair of a cracked
main stop valve and a sprinkler line in one of the buildings.
s Griffin maintained that he did not realize that the damage was truly
heavy until this conversation.
I My colleagues purport to be "suspicious" of the Guglielmi discharge
but decline to substitute "suspicion" for proof. Proof. like beauty, may be
said to be in the eye of the beholder. Unlike the cases cited by my colleagues
for their proposition, to me the proof here is quite clear. I participated in
dismissing DSL Mfg., Inc., 202 NLRB 970 (1973). The alleged discnminatee
there was a constant complainer with a poor work attitude. In Kings Terrace
Nursing Home and HIealh Related Iacdiah, 229 NLRB 1180 (1977). the panel
majonty, as pointed out by Member Jenkins in his partial dissent.
inexplicably declined to see a nexus between finding a threat to discharge an
employee in violation of Sec. 8(aX I) and an employer's subsequent denial of
any work to that employee.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge:
Lasell College fired John Guglielmi who worked in its
buildings and grounds department. There are two ques-
tions; (a) whether he was a supervisor or a managerial
employee, and (b) assuming he was not, the reason for his
discharge, whether because he was active in the Union, or
for incompetence. I find he was a supervisor, and even if he
was not, it is not established he was fired for union activity.
The proceedings were initiated by charges of unfair labor
practices filed by Guglielmi on April 12, 1976. Based on
these charges a complaint issued May 24, 1976 alleging that
Lasell Junior College (herein called the College or
Respondent) had engaged in unfair labor practices within
the meaning of Section 8(aX3) and (1) of the National
Labor Relations Act, as amended, by discharging Gugliel-
mi on April 9, 1976. The College filed an answer admitting
the discharge but denying it harbored an unlawful motive
therefore, asserting instead that it had legitimate reasons
for the discharge, and in any case that Guglielmi was a
supervisor and also that he had never requested reinstate-
ment. The case was heard before me in Boston, Massachu-
setts, on December 1, 1976.
Based on the entire record, including my observation of
the witnesses, and consideration of the briefs filed by the
General Counsel and the Respondent, I make the follow-
ing:
FINDINGS OF FACT
I. THE EMPLOYER
The Respondent operates a junior college at Auburndale,
Massachusetts. The complaint alleges and the answer
admits that in the course of providing edu .tiona4 services
it uses large quantities of goods which are purchased and
transported in interstate commerce from various States
outside Massachusetts; that its annual gross revenues
exceed $1 million; that it annually receives within Massa-
chusetts directly from points outside Massachusetts goods
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
valued in excess of $50,000; and that it is engaged in
commerce within the meaning of the Act. I so find.
The College operates a campus including 49 buildings,
approximately three-quarters of which are small structures,
initially having been family dwellings. Three of these
buildings, the Vista, Hoag, and Briggs houses are involved
in this case. The principal official responsible for its
operations is Arthur Griffin, its president. James Rardin,
the superintendent of buildings and grounds is immediately
subordinate to Griffin. Until his discharge Guglielmi
worked under Rardin.
11. THE LABOR ORGANIZATION INVOLVED
The parties agree that the labor organization involved is
Service Employees International Union, Local 254, AFL-
CIO (herein called the Union) and that it is a labor
organization within the meaning of Section 2(5) of the Act.
For some time past the Union has been the recognized
collective-bargaining representative of the security guards
and also the telephone operators employed by Respondent.
On February 25, 1976, the Union requested that
Respondent recognize it as the collective-bargaining
representative of its maintenance employees in its buildings
and grounds department. That same day Respondent
rejected that request and the Union filed with the Board a
petition seeking an election. Thereafter, on March 15,
Respondent and the Union entered into a Stipulation for
Certification Upon Consent Election in which they agreed
that a Board election would be conducted on April 8, 1976,
among Respondent's employees included in the following
appropriate collective-bargaining unit:
All maintenance employees in the building and
grounds department including groundsmen, painters,
carpenters, electricians, and dispatcher but excluding
office clerical employees, foremen, guards and supervi-
sors as defined in the Act.
As agreed the election was conducted on April 8 with the
Union winning by a vote of 8 to 2. John Guglielmi, who as
a foreman was excluded from the agreed unit description,
cast a challenged ballot.
On April 15 Respondent moved to stay the certification
of the Union and to revoke its certification as representa-
tive of the unit of guards and the unit of telephone
operators. The following day, April 16, the Regional
Director for the Board's Region I denied that motion and
certified that Union as the exclusive representative of the
employees in the above-described maintenance unit.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Supervisory or Managerial Status of Guglielmi
The Respondent contends that it cannot be held
accountable for any discrimination against Guglielmi
because he was a supervisor and held managerial status so
that the Act does not protect him from discrimination.
Whether he held supervisory or managerial status is a
close question because in some respects he was a rank-and-
file employee while in others his job had supervisory and
managerial characteristics.
Guglielmi began working for Respondent in 1967. In
1969 he was named foreman of the maintenance depart-
ment. At the time of his discharge in 1976 the department
was staffed by himself, as a licensed boiler repairman,
Richard Campbell, who was knowledgeable in plumbing,
heating, building, and welding, and Charles Sinerate, a
licensed electrician. All three were paid an hourly wage.
Guglielmi received the highest wage, but it was only 5 cents
per hour more than Sinerate received. All received
overtime when they worked overtime.
Guglielmi had responsibility for assigning maintenance
and repair work to the appropriate workman when work
orders for such jobs came into the shop. Such authority is
an attribute of a supervisor as defined in Section 2(11) of
the Act. The General Counsel would not accord him
supervisory status on that basis because the assigning of
work was a rather routine matter. Often the particular
workman involved would simply come into the mainte-
nance department office and pick up a work order for the
type of work in which he was competent without need of
supervisory direction. Nevertheless, on occasion Guglielmi
specifically assigned specific work orders to specific
workmen on the basis of his understanding of their ability
to perform the job. If more then one man was required, he
teamed workmen together (including himself on occasion)
in a manner calculated to accomplish the task. Among
other things he determined whether more than one man
was needed for the job. If superiors at the College indicated
the need for speed on a particular job, he followed those
instructions. But when no higher instructions as to relative
need had been transmitted he decided which among the
ongoing regular maintenance jobs should be handled first.
In the course of a day as many as 35 specific work orders
would be assigned. During the course of a days work he
had authority to transfer men from job to job and, in the
event of an emergency or a new superseding priority, to
pull men off a job and assign them to one with greater
priority.
It was Guglielmi's responsibility to decide whether
overtime work was necessary. He authorized the overtime
work and signed the overtime slips. He also had authority
to assign weekend work. He did not, however, have
authority independently to authorize workmen to perform
jobs in the absence of a work order from higher authority.
Nor did Guglielmi have broad power to hire and fire.
Such authority was reserved to James Rardin, superinten-
dent of buildings and grounds. But Guglielmi did partici-
pate in the process. Thus, when applicants were being
considered for employment in his department, Rardin
brought the applicant to him for further interview and
recommendation. In his brief the General Counsel con-
tends that Guglielmi lacked authority to effectively
recommend hiring. That is not precisely the case because
he admitted effectively recommending that applicants be
put to work on a trial basis in order to test them. Such work
on a trial basis was employment, albeit probationary
employment. Also, on one occasion he effectively recom-
mended the transfer of employee Jack Tegliani from the
grounds department to the carpenter shop under Gugliel-
mi. I do not credit his generalizations that he never
1078
LASELL JUNIOR COLLEGE
recommended that anyone be hired or transfered into or
out of the maintenance department.
And, although he had no authority to discharge people,
he could recommend discharge and on one occasion did
recommend discharge of employee Philip Reynolds. He
also had authority to discipline employees in his depart-
ment by verbal warnings and if necessary written warnings
although it does not appear that he ever in fact issued a
written warning to anyone.
It is undisputed that at one time Guglielmi was foreman
of a staff of 12 workmen in the maintenance department.
At the time of his discharge Respondent's maintenance
staff had been reduced to three, including Guglielmi. It is
the General Counsel's contention that when James Rardin
was promoted in September 1975 to superintendent of
buildings and grounds (which included the maintenance
department), Guglielmi no longer continued to be a
supervisor because Rardin played an active supervisory
role toward each workman in the maintenance department
including Guglielmi. I agree that Rardin took an active
role. I also agree that Guglielmi's supervisory role was less
then it had been earlier. In part, at least, this resulted from
the smaller size of the staff. It is also true that at all times,
irrespective of any supervisory function he filled, Guglielmi
also worked with his hands as did other employees in the
department.
The question is whether his supervisory functions were
either always so minor, or after Rardin's promotion were
reduced to such an extent, that he cannot be considered a
supervisor. I find that he was a supervisor from the time he
was given the title of foreman and that he continued to be a
supervisor until the time of his discharge. In reaching this
finding I note that he never was divested of the title of
foreman. Further, I think he continued to possess sufficient
supervisory functions until his employment terminated.
This result is buttressed by the undisputed fact that he had
certain managerial responsibilities including responsibility
for an annual inventory. During the year, and within the
limitations of a predetermined departmental budget of
approximately $80,000 he prepared orders for the purchase
of needed materials and supplies and could commit
Respondent's credit, subject to the approval of Rardin.
When the supplier of such materials billed Respondent, the
bills were channeled to Guglielmi for verification and
identification with the appropriate budget code number
before being submitted to Respondent's business office for
payment.
Finding, as I do, that Guglielmi was a supervisor and a
managerial employee, his discharge was not an unfair labor
practice, irrespective of Respondent's motive. Dexter
Foods, Inc., d/b/a Dexter IGA Foodliner, 209 NLRB 369,
370-373 (1974); and General Dynamics Corporation, Con-
vair Aerospace Division, San Diego Operations, 213 NLRB
851, 857 (1974). Accordingly the complaint should be
dismissed on that basis. However, because his status is a
close question, it is appropriate to make findings of fact on
those issues which would be presented if he were not a
supervisor and a managerial employee.
B. Union Activity
According to the uncontradicted testimony of Guglielmi
he first became aware of an interest in a union among
employees in the buildings and grounds department in
December 1975 or January 1976 when he heard employees
discussing that topic during coffeebreaks and lunchbreaks.
When he asked them how serious they were, they indicated
they were very serious about getting the Union (which
already represented the guards and the telephone opera-
tors) to represent them. Guglielmi then spoke to a security
employee about having a union representative meet with
the staff. On January 20 a representative of the Union met
with the buildings and grounds employees in Respondent's
security office. At this meeting the employees discussed
their desire for a union. The union representative handed
out authorization cards. Guglielmi signed one and the next
day three or four other maintenance employees handed
him their signed cards for transmission to the Union. From
time to time thereafter the employees, including Guglielmi,
discussed the Union. According to him he spoke four or
five times with the union representative and attended one
union meeting after February 20.
During the preelection campaign (for the election
referred to in section II, above) Respondent's management
opposed the Union. Among other things Respondent's
President Arthur Griffin met with the employees of the
buildings and grounds department on Tuesday, April 6, 2
days before the election. He asked those present if they had
any questions about the forthcoming election or the letters
he had sent employees stating his position on unionism and
collective bargaining. After other employees had asked
questions and been answered, Guglielmi stated what the
employees had been complaining about during the coffee-
breaks and lunchbreaks. Other employees then discussed
matters further. As Guglielmi testified, "There were other
people asking questions. I wasn't asking all the time."
According to the General Counsel's brief Guglielmi's
conduct at this meeting "clearly portrayed his leadership of
the employees in the union campaign." The evidence
respecting events at that meeting does not strike me as
establishing Guglielmi's leadership of the union movement
among the employees. It shows that he was knowledgeable
about employee gripes and interested in transmitting them
to management. But he was not the first to ask questions.
Substantial discussion among others apparently occurred
before he opened his mouth. His role was as consistent with
that of a knowledgeable supervisor as it was with a union
activist. Accordingly, I find that the inference is not
warranted that he stood out at that meeting as a union
leader.
Some time during the election campaign an unnamed
maintenance employee informed Rardin that a union
campaign was underway. But there is no direct evidence
that he knew that Guglielmi was involved in anyway with
the Union until he voted in the election. Also, by April,
Gritfin knew an organizing drive was in progress, but he
testified credibly that he did not know Guglielmi was
active in it.
Although not asserted at the hearing, the General
Counsel in his posttrial brief argues that under the so-
called small plant doctrine management's knowledge of
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guglielmi's union activity may be inferred from the
circumstances. I find the circumstances here do not
warrant such an inference. While it is true that the first
meeting between the union representative and the employ-
ees in buildings and grounds department occurred in the
office of the security department, that is not such an event
as would necessarily, or even likely, come to the attention
of management when consideration is taken of the fact that
the Union already represented the security guards and the
telephone operators. The various buildings in which
maintenance employees work number around 50. They are
spread throughout a campus covering an area of approxi-
mately 3-by-5 city blocks. Except for the evidence of the
one meeting in the security office, there is no evidence that
union activity occurred in a confined area where manage-
ment likely would learn of it.
Based on the foregoing, I find that there is insufficient
evidence to establish knowledge on the part of manage-
ment of union activity by Guglielmi prior to the time of his
voting in the election on April 8. Ralston Purina Company,
166 NLRB 566, 570 (1967). Whether management's
knowledge of his participation in the election is sufficient
to warrant a finding of discriminatory motivation in the
discharge is discussed later herein.
C. Union Animus
The General Counsel contends that the record shows an
attitude of union animus on the part of Respondent. I
disagree.
There is no contention here that the Respondent is guilty
of any independent violations of Section 8(aX)() of the Act
or that it engaged in any objectionable conduct during the
campaign preceding the Board election on April 8.
It is true that Respondent opposed the Union. President
Griffin frankly admitted that he opposed a union at the
College because he did not beleive it was in the best
interests of the College or of the employees. That attitude is
reflected in the literature distributed by the College among
the employees during the election campaign.
In addition, Rardin admitted during his testimony that
he did not think Guglielmi should be involved in union
activity. If, as I have found above, Guglielmi was a
supervisor, Rardin's view is understandable. But even if he
was not a supervisor, a management attitude that an
employee should not be involved in a union reflects an
attitude of opposition to unionism. Management is entitled
to harbor that attitude.
In sum, the record shows that Respondent's management
opposed the Union. But it cannot be said that Respondent
demonstrated such hostility toward the Union that its
attitude may be described as one of union animus. To put
it another way, nothing in this record suggests that
Respondent's opposition to the Union was so strong as to
impel it to violate the law in order to keep the Union out.
See Monmouth College, 204 NLRB 554 (1973), enfd. sub
nom. Weinberg v. Monmouth College, 491 F.2d 752 (C.A. 3,
1974).
Further, the degree of opposition to the Union must be
measured in the light of the Union's existing incumbency
as the representative of Respondent's guards and telephone
operators. This is a situation in which the Union's role in
Respondent's affairs is being enlarged rather than one in
which the Union is appearing on the scene for the first
time.
D. Cause for Discharge
As already noted, Respondent's campus includes many
old structures which at one time were private dwellings.
Three of these, known as Vista, Hoag, and Briggs,
respectively, were not in use during the 1975-76 academic
year. As a cost and fuel saving measure President Griffin
decided in the autumn of 1975 to have them "winterized"
by cutting off the heat and draining the pipes. He made this
decision over the objections of Guglielmi (and probably
also against the counsel of Rardin). Guglielmi suggested
something might go wrong, to which Griffin replied that he
would take the responsibility. Griffin testified that his
assumption of responsibility was limited to the risk of fire
since they were speaking about cutting off the sprinkler
systems. On the other hand, Guglielmi, and apparently
Rardin also, understood that he was assuming responsibili-
ty for any damage resulting from cutting off the heat. This
seems more logical to me and I so find.
As a result of Griffin's decision, a work order was
prepared for winterizing the houses and forwarded to
Guglielmi in the maintenance department. The actual work
of draining the pipes was performed by maintenance
employee Richard Campbell. Guglielmi performed that
portion of the work which involved pouring antifreeze into
drains and traps. Rardin was responsible for having the
city water department turn off the water outside the
buildings.
In spite of the measures taken, water either remained in
the pipes or seeped into them later so that when the winter
season brought subfreezing temperatures the water in the
lines in all three buildings froze, bursting the pipes and
valves.
The resulting damage was not immediately discovered
nor was the full extent apparent until some time later.
Rardin first discovered the damage shortly before Febru-
ary 6, 1976, when, during a routine inspection tour, he
slipped on ice in the basement of one of the houses. Further
inspection revealed damage extensive enough to require the
services of an outside plumbing contractor which Rardin
arranged for.
Rardin informed Griffin immediately when he discov-
ered the frozen pipes and kept him informed also of
measures taken to repair the damage. When Griffin
inquired who was responsible, Rardin blamed Guglielmi.
Although he was kept informed by Rardin, Griffin did
not immediately understand the full extent of the damage,
which eventually cost Respondent nearly $5,000. Griffin
testified credibly, and I find, that he came to the realization
that the damage was truly heavy only when he talked with
the contracting plumber as he was making a tour of the
campus. The plumber told him it was a mess and the cost
was running into many thousands of dollars. This conver-
sation occurred a day or so before the election on April 8.
Griffin testified that it was mere coincidence that he
learned this at or about the time of the election.
After talking with the contracting plumber, Griffin
decided Guglielmi should be discharged and initiated the
1080
LASELL JUNIOR COLLEGE
steps whereby Rardin implemented that decision. On April
9 (the day after the election), Rardin told Guglielmi to
hand over his keys and informed him he was terminated as
of the end of that work day. The reason Rardin gave to
Guglielmi for his discharge was that he was negligent in
failing to follow up on the work of Campbell in winterizing
the three houses. He denied that the Union had anything to
do with the decision.
In testifying Rardin also ascribed Guglielmi's atrocious
attendance record as a partial reason for his discharge. I
find, however, that although his bad attendance would
have been a valid reason for discipline, or even discharge, it
was not such in this case. Rardin did not mention that
cause at the time of discharge. Nor was poor attendance a
problem peculiar to the period immediately before April 9.
It had long been a problem with Guglielmi. He had
received a written reprimand because of it on November 5,
1975, and another written reprimand on January 21, 1976,
which was designated as a final notice and included a
warning of possible discharge. But nothing further with
respect to the attendance problem happened between then
and April 9 so that it appears that but for the alleged
negligence in winterizing the three houses, Guglielmi would
have continued in his job. In these circumstances poor
attendance cannot be said to be a cause of his discharge.
But obviously Guglielmi's bad attendance record made the
decision to cashier him on other grounds easier.
E. Discussion Regarding Motive
The General Counsel argues that Guglielmi should not
have been blamed for the freezeups of Vista, Hoag, and
Briggs and that firing him for that declared reason was a
pretext to mask a secret intent to get rid of him because he
supported the Union. The record raises some questions as
to why the entire blame for the fiasco was thrust on
Guglielmi. Campbell, who performed most of the winteriz-
ing work, was not disciplined in any way. Rardin
explained, with some logic, that he blamed Guglielmi
because he was the foreman of the maintenance crew and,
therefore was responsible.
That, however, is not a complete explanation. The record
does not demonstrate exactly what Guglielmi should have
done that he failed to do. If Campbell did not perform
properly and Guglielmi as his supervisor is responsible for
his failure, then it would seem also that Rardin is in some
measure responsible. And even Griffin would seem to bear
some responsibility. This record, it seems to me, reveals a
situation where the higher and more influential supervisors
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
needed some one besides themselves to blame for the
winterizing ploy which turned to disaster, so they settled on
Guglielmi as the one whose hide should be nailed to the
barn door. Although not equitable, that was not an illegal
motive and it was not a discriminatory motive if, as I find,
the timing immediately after the election was a mere
coincidence. It does not amount to "an affirmative and
persuasive reason why" the College was motivated by a
desire to discriminate because of union activity rather than
a wish to find someone to blame for the frozen pipes. See
N.LR.B. v. Billen Shoe Co., 397 F.2d 801, 803 (C.A. I,
1968). The circumstances of timing alone is not sufficient
to support the allegation of discriminatory motive. See
Lawrence Institute of Technology, 196 NLRB 28 (1972).
I reach this result because the Respondent has not
demonstrated a disregard for employee rights by commit-
ting other unfair labor practices nor does the record show
such union animus as would impel the Respondent to
discriminate because of union activity. Another aspect of
the case which influences me is that management's
knowledge respecting Guglielmi's union activity was
limited to knowledge that he voted in the Board election
and was challenged by the Board agent. Respondent, of
course, had no way of knowing how he voted. In view of
these various circumstances I find that a preponderance of
the evidence does not establish that Guglielmi was
discharged because he supported the Union or even
because he tried to vote in the election.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce 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. As of April 9, 1976, John Guglielmi was a superviso-
ry and managerial employee of Respondent.
4. Respondent has not committed unfair labor practic-
es within the meaning of Section 8(aX3) and (1) of the Act
by discharging John Guglielmi on April 9, 1976, and by
thereafter not reinstating him.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The complaint is dismissed in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1081