Michael I. Schaffer Co.

National Labor Relations Board - Board Decisions

Sep 19, 1979

245 N.L.R.B. 24 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michael I. Schaffer Co., Inc. and Alphonse Arpino.
Case 2-CA- 15971
September 19, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On June 27, 1979, Administrative Law Judge Max
Rosenberg issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting briefs,
and Respondent filed an answering brief in support of
the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' 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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I The General Counsel and Charging Party have excepted to certain credi-
bility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the rel-
evant evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing his
findings.
DECISION
MAX ROSENBERG, Administrative Law Judge: This pro-
ceeding was heard before me in New York, New York, on
May 23, 1979, upon a complaint filed by the General Coun-
sel of the National Labor Relations Board and an answer
interposed thereto to Michael 1. Schaffer Co., Inc., herein
called Respondent.' At issue is whether Respondent vio-
lated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended, by certain conduct to be detailed
hereinafter. Briefs have been received from the General
Counsel and Respondent which have been duly considered.
I The complaint, which issued on December 8, 1978, is based upon a
charge filed on November 1, 1978, and served on November 3. 1978.
Upon the entire record made in this proceeding, includ-
ing my observation of the demeanor of each witness while
testifying, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, maintains its prin-
cipal office and place of business in the city and State of
New York, where it is engaged in the management and
operation of office buildings, including the office building
here involved located at 19 Rector Street, New York, New
York. During the annual period material to this proceeding
Respondent derived gross revenues in excess of $1 million
of which $50,000 was received from tenants, including
Chemical Bank, who in turn meet one of the Board's discre-
tionary direct standards for the assertion of jurisdiction.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZArION INVOI.VED
The International Union of Operating Engineers, Local
30, AFL CIO, herein called the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)(l) and (3) of the Act by discharging employee Al-
phonse Arpino on September 22, 1978,2 because he invoked
and participated in the grievance procedures set forth in a
collective-bargaining agreement between Respondent and
the Union and because of his membership in and activities
on behalf of the Union. Respondent's answer denies the
commission of any labor practices banned by the Act.
Respondent is engaged in the business of managing real
estate and acts as an agent in the operation of the property
located at 19 Rector Street in New York City. Donald El-
lenberg occupies the post of senior vice president of Re-
spondent. In this capacity he is responsible for renting
space in that building to tenants and maintaining the prem-
ises in a habitable condition. To accomplish this goal Ellen-
berg hires engineering personnel who perform the mechani-
cal upkeep chores.
Alphonse Arpino, the Charging Party herein, filed an ap-
plication for employment with Respondent on March 30,
1970, as a maintenance mechanic. In response to a question
on the form as to whether the applicant has ever had a
compensable accident while employed Arpino answered in
the affirmative and indicated that he had suffered a back
injury. In this connection it appears that Arpino had fallen
and hurt his back while working for another employer in
1967 and was hospitalized for 9 weeks. After a 2-year con-
valescence he was pronounced fit for work and, following a
stint as a draftsman, found his way to Respondent's em-
ployment offices. During his entrance interview of March
30 Arpino mentioned the back injury to Respondent's chief
2 Unless otherwise indicated all dates herein fall in 1978.
245 NLRB No. 6
24
MICHAEL I. SCHAFFER CO.
mechanic, and he was instructed to obtain a doctor's note
certifying that he was physically capable of performing the
required work assignments. On April 1. 1970, Arpino vis-
ited Dr. Runsdorf, his personal physician, and received a
medical note which recited that "Mr. Arpino has been un-
der my care and has made full recovery and may return to
work."
Upon receipt of this note Respondent put Arpino to
work on April 2, 1970, as a maintenance mechanic. In this
position he toiled under the direction of the chief mechanic,
maintaining such equipment as air conditioning and heat-
ing units, hanging venetian blinds, and installing towel
racks. On occasion his duties included lifting heavy objects
weighing in excess of 100 pounds. Despite performing these
lifting chores Arpino's back problems did not again mani-
fest themselves.
Arpino continued to work for Respondent without inci-
dent until November 5, 1973, when he quit his job without
notice because of some personal conflict with the chief me-
chanic. Thereafter, Ellenberg sought to contact the em-
ployee but without success. On November 12. 1973. Arpino
appeared at Ellenberg's offices to seek reinstatement. After
explaining to Arpino that Respondent did not countenance
his actions in quitting work without affording it appropriate
notice Ellenberg decided to reemploy the mechanic.
Events abided until December 28. 1976. when Arpino
again left his job without explanation. Some weeks later
Arpino returned to the building and asked Ellenberg for his
job back, admitting that he had done a stupid thing by
leaving in the manner that he did. Because this was the
second occasion on which Arpino had left without prior
notification Ellenberg was reluctant to take him back.
Moreover, no vacancies existed at the 19 Rector Street
building at the time. Nevertheless, Ellenberg relented be-
cause Arpino was unemployed and offered him a position
as the superintendent of a smaller building at another loca-
tion which was then available. Believing that he would be
unable to cope with the added responsibilities involved Ar-
pino rejected the offer.
On July 20, 1977, Arpino once again presented himself at
Ellenberg's office in quest of employment. Because a va-
cancy existed and the air conditioning season was at its
height Ellenberg agreed to rehire Arpino on condition that
he deport himself in a proper manner and stay on the job.
Shortly thereafter Ellenberg had need for a chief mechanic
and offered the post to Arpino. Arpino eschewed the pro-
motion, stating that he did not desire to undertake the re-
sponsibilities which it entailed. In so doing Arpino in-
formed Ellenberg that the former did not intend to
cooperate with any new chief, remarking, "He'll learn the
building the same way I learned it. Nobody told me any-
thing, and I'm not telling anything to any chief mechanic."
Meanwhile, on July 7, 1977, the Union filed a petition
with the Board's Regional Office seeking an election among
all mechanics employed at 19 Rector Street. On August 2.
1977, the parties entered into a consent election agreement,
and on August 17 the balloting was conducted. So far as
appears, Respondent's four mechanics. Robert O'Neil,
Aniello Rego, Bruno Shrotter, as well as Arpino. cast their
votes. The tally of ballots revealed that the Union had won
the election by a vote of three to one and, in consequence
thereof, received a Board certification. Thereafter, the
Union and Respondent entered into a collective-bargaining
agreement which was effective from September 1,. 1977, to
December 31, 1980, and contained provisions for the pro-
cessing of employee grievances culminating in arbitration.
Continuing the narrative, one of the mechanics. Robert
O'Neil, quit his job in December 1977. leaving only Arpino,
Aniello Rego, and a handyman named Brown available for
maintenance duty. As the summer of 1978 approached Ar-
pino became disenchanted with the prospect of overtime
work which lay in store as a result of the normal air condi-
tioner malfunctions. On June 15 the mechanic encountered
Ellenberg in a hallway in the building and launched into a
heated discussion with his superior in which he complained
about overtime work for the summer period. In an agitated
state Arpino profanely informed Ellenberg that the employ-
ees were overworked, and that he would absolutely refuse
to work overtime except in a dire emergency. Adverting to
Respondent's largest tenant whose lease guaranteed over-
time air conditioning repair services. Arpino demanded that
Ellenberg refuse to provide these amenities, in derogation
of the rental agreement. Because of Arpino's excited state
Ellenberg decided to defer responding to his tirade until
Arpino was more composed.
Ellenberg next met with his mechanic on June 30. At the
outset of their conversation Ellenberg expressed his dismay
over the manner and tone with which the employee had
castigated his superior in public. After Arpino offered an
apology Ellenberg reminded the former of Respondent's
contractual commitment to the tenant. Arpino replied.
"That's your problem and you're not going to make our
problem my problem." Ellenberg then broached the subject
of Arpino's performance of his duties as a fire director in
the building. In this connection, as a result of a disastrous
fire in an office building in New York City in the early
1970s the city passed an ordinance requiring that landlords
of such structures provide trained personnel licensed to
serve essentially as fire marshalls to assist in the evacuation
of tenants in case of a fire emergency. When he was hired in
1970 Arpino was trained and assigned to this duty. During
their meeting on June 30, Ellenberg informed Arpino that
Respondent had recently been cited by the fire department
for its failure to have a fire director assigned to the building.
and the vice president sought to persuade the employee to
undertake this task again. Arpino flatly refused the assign-
ment. Upon learning that Arpino had refused o ertime
work and had declined to accept the fire director's post
Ellenberg announced that he had no choice hut to dis-
charge the mechanic, and the employee was terminated on
that date.
Following his separation on June 30 Arpino contacted
his union shop steward, Aniello Rego. and a determination
was made to process the matter pursuant to the grievance
procedures set fborth in the collective-bargaining agreement
between the Union and Respondent. Concurrently. Arpino
filed a claim for unemployment compensation with the
New York State Department of Labor. On September 13 a
hearing was held before an arbitrator on Arpino's griev-
ance, during which he was represented by union delegate
Joe Bialkowski. During a recess in the proceeding the par-
ties negotiated a settlement of the grievance, pursuant to
25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which Respondent agreed to reinstate Arpino on September
20 with the payment of 4 weeks' wages and to acquiesce in
an unemployment compensation award which had initially
been denied to Arpino. When the meeting broke up Ellen-
berg instructed Arpino to report to Richard Rubino, the
chief mechanic who had been hired for this position on July
7.
On the evening of September 13 Arpino visited his physi-
cian to undergo a blood test in contemplation of his im-
pending marriage. It is Arpino's testimony that after he
took the test he suddenly remembered that he had read a
local newspaper article in July about Richard Rubino,
whom Respondent had hired after Arpino's discharge on
June 30. This journalistic item reported that Rubino had
been arrested at the building in connection with the theft of
$2,000,000 in negotiable securities from a Wall Street firm.
According to Arpino, he had "this whole thing on my mind
and I asked Dr. Runsdorf (his personal physician) to give
me a note in regard to my back. That I had read this article
about Mr. Rubino and I was apprehensive about going
back there." Despite the fact that Arpino had never met
Rubino he testimonially added, "I only asked the doctor for
a note because I was nervous, I thought I'd be, you know,
bothered at work, you know, just pushed. So I thought I
could reason with Mr. Rubino." When pressed on the mat-
ter Arpino finally confessed that his reason for seeking the
note was not because of any fear of Rubino due to his
criminal background but because, "At a meeting with the
[Union] lawyer and then later at the arbitration, both [the
Union's and Respondent's] lawyers had told me that you
can't turn down anything your employer tells you, you have
to do everything they say, the only choice you have is to
make a grievance after the fact of whatever would happen
to you." Arpino then revealed that having once been dis-
charged for shirking his duties, "you don't want it [to hap-
pen] again."
Although Arpino further confessed that his back had
completely healed since his accident in 1967 and that he
was physically capable of performing all of the duties which
he had previously undertaken for Respondent, he neverthe-
less persuaded Dr. Runsdorf to draft a medical note con-
cerning his back which was totally unsupported by any di-
agnostic examination given by that physician. This note,
dated September 13, recited:
To whom it may concern: Alphonse Arpino has had a
permanent injury to his Lumbo Sacral Joint and is not
be [sic] permitted to do any heavy lifting.
On September 15 Arpino visited the Rector Street build-
ing to introduce himself to Chief Mechanic Rubino and
find out what his work assignments would be. When he
arrived Arpino noticed that a considerable amount of air
conditioning equipment lay dismantled, and he learned
from Rubino that Respondent had planned to perform the
maintenance work with its own crew on overtime rather
than to utilize independent contractors. Arpino made no
comment upon receiving this intelligence and left the build-
ing.
Arpino further testified that on September 20 he reported
for work in accordance with the arbitral agreement. Upon
arriving Rubino asked the employee to obtain their morn-
ing coffee. When he returned Arpino handed Rubino the
doctor's certificate. Rubino, who had no reason to know of
any back problems which Arpino might have experienced.
asked what the document was, and Arpino identified it.
Rubino then inquired, "Does this mean you want light
work?" and Arpino replied, "No, I just wanted you to know
I had a problem and I rather not have it happen again. If I
ask for a hand, I need a hand and I'm not trying to hurt
your operation." According to Arpino the chief mechanic
simply said "okay" and dispatched him to a job.
Rubino testified that when Arpino reported for duty on
September 20 the latter placed a doctor's note on the chief
mechanic's desk. Rubino read the document and noticed
that it recited that Arpino had a permanent injury to his
back. When Rubino inquired into what the doctor had
meant by his notation that the employee was not to engage
in any heavy work Arpino pointed to a piece of pump
which weighed about 35 pounds and stated that he was not
supposed to lift any material of that weight. Rubino then
asked how long Arpino's physical deferment from heavy
duty was expected to last, and Arpino responded that it
could continue for I day or indefinitely. Rubino was trou-
bled by this response because in the regular course of their
duties the maintenance mechanics were routinely called
upon to lift objects weighing 35 pounds, and Rubino was
concerned that he could not efficiently maintain the build-
ing without the availability of able-bodied mechanics. Be-
cause he was unwilling to assume the responsibility for hav-
ing caused an injury to Arpino's back Rubino decided
temporarily to assign the mechanic to the light task of in-
stalling towel racks in the bathrooms for that day.
Although Arpino had insisted that the medical note was
for Rubino's "eyes only," the chief mechanic felt impelled
to report this intelligence to Vice President Ellenberg due to
the potential for liability which might befall Respondent.
Rubino proceeded to Ellenberg's office, turned over the
note to his superior, and repeated the contents of his earlier
conversation with Arpino. After doing so Rubino com-
plained that unless he had a crew composed entirely of
able-bodied men he would be unable to handle the mainte-
nance work in a satisfactory manner.
Ellenberg testified without contradiction and I find that
since Arpino's hire on April 2, 1970, until September 20 the
employee had never informed him that Arpino was unable
to perform any heavy lifting work. Accordingly, upon read-
ing the doctor's certificate Ellenberg concurred in Rubino's
assignment of light duty for Arpino because of the possible
liability involved. Ellenberg thereupon telephoned union
delegate Bialkowski and read the contents of the note to
him. Bialkowski expressed shock over this development and
apologized for having put Ellenberg through the trouble of
the recent arbitration proceeding on Arpino's behalf. Bial-
kowski assured Ellenberg that the Union would have no
objection to any personnel action which Respondent
deemed appropriate in order to protect itself against possi-
ble legal liability and advised that the union agent would
visit the building that morning and speak to Arpino about
the matter.
Later on the morning of September 20 Bialkowski visited
the building. Calling Arpino aside, the union representative
heatedly inquired whether the employee had obtained the
26
MICHAEL 1. SCHAFFER CO.
doctor's certificate in order to qualify for a medical disabil-
ity or whether Arpino had intended to perform only light
duties by his own choice. When Arpino replied that he
"was just afraid of the situation" Bialkowski instructed him
to contact Ellenberg to resolve the situation because the
Union could be of no assistance in light of the circumstance
that the matter involved a "medical case."
Shortly thereafter, Ellenberg summoned Arpino to his of-
fice. When he arrived Ellenberg informed the mechanic that
unless he could procure a certificate from his physician giv-
ing him a clean bill of health Ellenberg would be compelled
to discharge him. Arpino replied that he could not dictate
the terms of a medical opinion to his doctor and left the
office. After Arpino departed Ellenberg telephoned his at-
torney, read the physician's note to counsel, and sought her
advice. Counsel replied that in her opinion Respondent
would be legally liable to Arpino in the event he reinjured
his back and concluded that Ellenberg had no alternative
but to terminate the employee. Upon receiving this advice
Ellenberg decided to heed counsel's suggestion, and he pro-
ceeded to draft a letter addressed to Arpino which informed
the latter of his termination.
Meanwhile, on the evening of September 20, Arpino
called Dr. Runsdorf's office and explained his predicament
to the doctor. Runsdorf directed his patient to consult with
another physician the following day and have his back x-
rayed. On the morning of September 21 Arpino repaired to
the radiologist where x-rays were taken. That evening Ar-
pino returned to Runsdorf's office, where he was given a
second medical note by his doctor. This document recited:
To whom it may concern:
Al Arpino's X-rays taken today reveal no change from
previous X-rays and he is capable of normal occupa-
tional work and lifting of the type that he had been
performing since the past injury.
He has been working continuously without any symp-
tons referrable [sic] to this past injury.
On the morning of September 22 Arpino reported for
work and was greeted by Rubino. Before the mechanic had
an opportunity to dress for work and hand over the second
medical note to Rubino the latter informed him that he had
been discharged. Rubino thereupon proceeded to Ellen-
berg's office and returned with a letter signed by the vice
president and dated September 22. This letter. which Rubi-
no handed to Arpino, read:
Due to your inability to fulfill your duties as mechanic
as described in your note from Dr. H. Norman Runs-
dorf dated September 13, 1978, prohibiting you from
doing any heavy lifting, we regret to inform you that
your employment at 19 Rector Street is herewith ter-
minated, effectively immediately.
Upon receipt of the letter Arpino contacted the Union in
order to press a grievance over his latest discharge, but he
was informed that the matter was not grievable because it
involved a medical problem.
The General Counsel maintains that Respondent selected
Arpino for discharge on September 22 in order to punish
him for having filed a grievance against Respondent pursu-
ant to the contract between Respondent and the Union
over his termination on June 30 and thereby violated Sec-
tion 8(a)( ) and (3) of the Act. On the record before me, I
am far from convinced that the General Counsel had ade-
quately shouldered his burden of proof of this violation.
When he was first hired on April 2. 1970. Arpino sup-
ported his employment application with a doctor's note cer-
tifying that a previous back injur had been successfully
mended and that he was fit to perform all the duties inci-
dential to his job as a maintenance mechanic. Thereafter,
Arpino twice left his job without prior notification, and on
each occasion Respondent went out of its way to reinstate
him and even to offer him an opportunity for advancement.
In June Arpino profanely informed Vice President Ellen-
berg that he would not perform any overtime duty that
summer and even demanded that Respondent abandon its
legal obligation to perform overtime maintenance work for
a tenant. In addition, Arpino flatly refused to serve as a fire
marshall, a post which he had previously held, despite the
urgency of Respondent's need for these services in view of
its recent citation by city fire officials for its failure to desig-
nate a trained employee to undertake this chore. In conse-
quence of Arpino's deliberate failure to perform the duties
required of him Respondent removed him from its employ-
ment rolls on June 30. Through utilization of the contrac-
tual grievance procedures his union agents brought his ter-
mination before an arbitrator. Rather than contest the issue
Respondent voluntarily agreed to settle the matter and rein-
state Arpino, even acquiescing in the reversal of a favorable
unemployment compensation award so that Arpino could
be recompensed for lost wages following his initial dis-
charge on June 30. Despite the fact that Arpino was warned
at the arbitration settlement conference on September 13 by
both union and Respondent's counsel that he would be ex-
pected, upon reinstatement, to perform all the job assign-
ments required of maintenance mechanics, I am convinced
and find that when he visited his physician on September 13
to obtain a premarital blood test Arpino embarked upon a
deliberate scheme to cheat his Employer out of a normal
day's work. I am persuaded and find that when he re-
quested a medical note from Dr. Runsdorf he did so not
because of his fear of Chief Mechanic Rubino's criminal
record but solely because he sought to dupe his supervisor
into affording him the most desirable work assignments. I
find that when Ellenberg learned that Arpino's doctor had
certified that the employee's serious back condition still per-
sisted he sought out legal advice and was counselled to dis-
charge the employee in order to avoid any legal entangle-
ments arising out a future reinjury. In short, I am convinced
and conclude that but for the proffer of the misleading
medical note of September 13 Arpino would have remained
in Respondent's employ. I therefore conclude that Arpino
was terminated on September 22 not because he had filed a
contractual grievance against Respondent but solely be-
cause he claimed a physical incapacity which did not in
truth and fact exist in order to mislead his Employer and
obtain the award of less than his full workload. By doing so
I conclude that Respondent did not violate Section 8(a(1I)
and (3) of the Act.'
Wat erurun (Comrnunia An.tenna. 1ln * N 1_ R B, 587 F 2d 2d (ir 1978)
27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In an apparent attempt to lay the predicate for his con-
tention that another reason for Arpino's discharge on Sep-
tember 22 was due to his membership in and activities on
behalf of the Union the General Counsel drew from Arpino
testimony regarding events which occurred some 15 months
prior to that termination. Arpino testimonially reported
that in June 1977 he had occasion to be in Ellenberg's office
when the vice president suddenly asked Arpino what he
thought "about O'Neal and Rego [Respondent's currently
employed mechanics] bringing in the union." Arpino re-
plied, "I didn't think of it at all." Ellenberg further inquired
whether Arpino "thought a union was necessary," and the
latter answered, "I didn't see any need for a union." Ellen-
berg then stated that "he'd get those two bastards. Espe-
cially Rego," although Arpino confessed that Ellenberg did
not state why he intended do so. Arpino then related a
conversation that he had had with Respondent's elevator
mechanic, an employee named Bruno Shrotter, shortly after
Arpino was rehired by Respondent on July 20, 1977. In this
dialogue Shrotter simply remarked that he was opposed to
the Union.
Finally, Aniello Rego, who became the Union's shop
steward, testified that in June or July 1977 he engaged in a
conversation with Larry Tuchie, Respondent's assistant
building administrator. In the course of their colloquy
Tuchie asked whether Rego had joined the Union. When
the employee answered in the affirmative the supervisor re-
marked that he would convey this information to Vice Pres-
ident Ellenberg. A few weeks later Ellenberg inquired into
the reasons for Rego's enlistment in the Union's ranks. Af-
ter Rego spelled out his quest for security and fringe bene-
fits Ellenberg stated, "if that's what I wanted he wouldn't
opposed it." Despite the fact that Rego was a known union
adherent and had become the union shop steward after the
Union won the election on August 17 he was not thereafter
discharged by Respondent, but instead he quit his job in
December. In a transparent attempt to paint discriminatory
overtones regarding his abandonment of employment. Rego
initially claimed that he had left his job because "I was
getting harassed" by the chief mechanic. In light of the
record evidence that Rubino was a card carrying member
of a sister local of the Union I am persuaded that Rego
must have had reference to Rubino's insistence upon the
performance of overtime work from his mechanics rather
than Rego's union activities. I am fortified in this; conclu-
sion by Rego's added testimony that he had quit his posi-
tion because, "I wanted to find another job." Finally, Rego
recounted that following Arbino's discharge on September
22 he observed Robino laugh and heard him comment "one
down. one to go." However, Rego stated that Rubino did
not explain what he meant by his statement.
In light of the foregoing I am at a loss to understand how
the General Counsel can seriously contend that Arpino's
discharge on September 22 was motivated by his engage-
ment in activities on behalf of the Union. If Arpino's testi-
monv is to be believed at all in this area, his only discussion
concerning the Union with Ellenburg occurred in June
1977, when he was not even an employee of Respondent
and approximately 15 months prior to the discharge which
gives rise to this proceeding. Moreover, none of Ellenberg's
expressed enmity to unionization was targeted at Arpino.
Furthermore. on the record before me there is not a single
shred of evidence pointing to any union activities engaged
in by Arpino other than having voted in the Board election
on August 17. In sum, I am convinced and conclude that
the General Counsel has failed to establish by a preponder-
ance of the evidence on the record as a whole that Respon-
dent singled out Arpino for discharge on September 22 be-
cause of his activities on behalf of the Union. I shall
therefore dismiss the allegation in the complaint which ac-
cuses Respondent of having violated Section 8(a)(1) and (3)
of the Act by discharging Arpino on that date because of
his union involvement.
Having found that Respondent has not engaged in any of
the violations of the statute as alleged in the complaint, I
shall therefore dismiss the complaint in its entirety.
ORDER 4
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
' 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. 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.
28