General Services

National Labor Relations Board - Board Decisions

Aug 25, 1998

326 N.L.R.B. 312 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 312
General Security Services Corporation and Alfred
Cracolici. Cases 21–CA–31218 and 21–CA–31262
August 25, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX, LIEBMAN,
HURTGEN, AND BRAME
On June 30, 1997, Administrative Law Judge Albert
A. Metz issued the attached decision. The Charging
Party and the General Counsel filed exceptions and sup-
porting briefs. The Respondent filed an answering brief.
The General Counsel filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions only to the extent consistent with
this Decision and Order.
The judge found that Charging Party Cracolici, whom
the Respondent employed as an assistant lead court secu-
rity officer,2 was a supervisor and that his transfer, demo-
tion, suspension, and termination therefore did not vio-
late Section 8(a)(3) and (1) of the Act. The General
Counsel and the Charging Party have excepted to this
finding. We find merit in these exceptions. For the fol-
lowing reasons, we find that Cracolici is not a supervisor
and that the Respondent’s treatment of Cracolici violated
the Act.
In concluding that Cracolici was a supervisor,3 the
judge found that he had, and exercised, the authority to
responsibly direct the Respondent’s other court security
officers (CSOs), and that he had, and exercised, the au-
thority to discipline those CSOs. The judge also relied
on his finding that Cracolici had the authority to schedule
the work of other CSOs.
The Board has observed that, in enacting Section
2(11), Congress stressed that only persons with “genuine
management prerogatives” should be considered supervi-
sors as opposed to “straw bosses, leadmen . . . and other
minor supervisory employees.” Chicago Metallic Corp.,
273 NLRB 1677, 1688 (1985). Therefore, the Board has
a duty to employees not to construe supervisory status
too broadly because the employee who is deemed a su-
pervisor is denied . . . rights which the Act is intended to
protect.” Id. at 1689. Further, the burden of proving that
an employee is a supervisor within the meaning of the
Act rests on the party alleging that such status exists.
Ibid.

1 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The Respondent provides security services to the federal court-
house in Santa Ana, California, under a contract with the United States
Marshal Service.
3 The Act provides in Sec. 2(11) that:
The term supervisor means any individual having authority, in
the interest of the employer, to hire, transfer, suspend, lay off, re-
call, promote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.
We find, contrary to the judge, that the Respondent has
failed to present sufficient evidence to establish that Cra-
colici possessed these Section 2(11) indicia of supervi-
sory authority. With regard to Cracolici’s alleged author-
ity to schedule work, the record indicates that Lead CSO
Phil Elder, an admitted statutory supervisor, prepared the
work schedules in advance, and that Cracolici made only
occasional and routine changes to them either in response
to requests from the United States Marshal Service
(USMS) or as required because of illnesses or vacations.
Accordingly, he did not exercise “independent judg-
ment” within the meaning of Section 2(11) with regard to
scheduling work. Auto West Toyota, 284 NLRB 659
(1987) (parts manager not supervisor where his “schedul-
ing” of other employees amounted only to an uncompli-
cated and regular rotation of them).
Similarly, although Cracolici testified that other CSOs
asked him questions about their duties, he was unable to
cite an instance in which this occurred or in which he
responsibly directed the work of another CSO. Indeed,
both Cracolici and Elder stated that the other CSOs
needed very little supervision.
Although Cracolici speculated at the hearing, in re-
sponse to hypothetical questions, as to what he might do
if a serious problem arose with a member of the public,
none of those hypothetical situations (e.g., a medical
emergency) had actually occurred. Further, in the specu-
lative example of a medical emergency, the action Cra-
colici suggested he might take (calling for medical assis-
tance) would require no independent judgment and could
be taken by anyone who happened to be at the scene.
As to discipline, the only examples Cracolici could cite
were two oral reprimands. In both cases, he simply told
CSOs to return to their assigned posts. He intimated no
consequences in the event that they failed to do so. Nei-
ther incident was reported to Elder. Neither incident
resulted in discipline or had any effect on the employees’
jobs. This is the sum and substance of Cracolici’s al-
leged “disciplinary authority.”
Because Cracolici exhibited no primary indicia of su-
pervisory authority, the secondary indicia (higher com-
pensation, the perceptions of others, and the fact that, if
Cracolici was not a supervisor, the CSOs were unsuper-
vised at times) noted by the judge are not determinative.
Juniper Industries, 311 NLRB 109, 110 (1993). In sum,
we find that on this record, the Respondent has failed to
sustain its burden of establishing that Cracolici was a
326 NLRB No. 42
GENERAL SECURITY SERVICES CORP. 313
supervisor within the meaning of Section 2(11) of the
Act.4
As Cracolici was not a supervisor but an employee, it
remains for us to decide whether his discharge (and, by
extension, the earlier adverse actions taken against him
by the Respondent) violated Section 8(a)(3) and (1) of
the Act. As the judge found, the Respondent learned that
Cracolici did not remain neutral during the union cam-
paign as the Respondent had directed him to do. Rather,
Cracolici supported the Union, favored employees who
supported the Union, and shunned employees who did
not. About 2 weeks before Cracolici’s discharge, the
Respondent suspended him. The letter of suspension
stated, among other things, that Cracolici “participated
and supported in an effort to bring a union into our work
environment which was contrary to the directions you
were given by management.” Cracolici’s termination
letter stated that his . . . “actions during the recent cam-
paign for the Union was such that you are no longer suit-
able to continue as a supervisor for this company.” We
also note that Andrew Pierucki, the Respondent’s vice
president, who made the decision to terminate Cracolici,
testified that one reason for Cracolici’s termination was
that, “I think that he showed favoritism towards some of
the employees that were trying to form a Union here. I
think he actually participated in that.” In these circum-
stances, we find that the General Counsel has made a
prima facie showing that Cracolici’s union activity was a
motivating factor in the Respondent’s treatment of him.
Wright Line, 251 NLRB 1083 (1980), affd. 662 F.2d 899
(1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).
The Respondent contends that it would have dis-
charged Cracolici even in the absence of his union activi-
ties because he violated its telephone-abuse work rule.
We note that, although Cracolici’s suspension letter men-
tioned this subject, his termination letter simply stated
that his “actions during the recent campaign for a union
were such that you are no longer suitable to continue as a
supervisor for this company or our contract with the gov-
ernment.” Because the General Counsel has made a
showing sufficient to support the inference that protected
conduct was a motivating factor in the Respondent’s de-
cision, the Respondent has the burden to show that it
would have taken the same action even in the absence of

4 As to the scheduling issue raised by our dissenting colleagues, al-
though Cracolici made occasional minor and routine changes to al-
ready-prepared schedules, as occasioned by absences and requests by
the USMS, there is no evidence that these minor changes in the sched-
ule were anything but routine or otherwise required the exercise of
independent judgment. Nor is there evidence that Cracolici exercised
independent judgment in assigning overtime, whether that overtime
was occasioned by illness or USMS needs. Moreover, although our
dissenting colleagues correctly point out that Cracolici was often at the
worksite when Elder was not, his mere presence is insufficient to sus-
tain the Respondent’s burden of proving that he engaged in activities
that might qualify him as a statutory supervisor. See, e.g., Billows
Electric Supply, 311 NLRB 878, 879 (1993).
the protected conduct. That is, in order to rebut the
prima facie case, the Respondent cannot simply present a
legitimate reason for its action but must persuade by a
preponderance of the evidence that the same action
would have taken place even in the absence of the pro-
tected conduct. Roure Bertrand Dupont, Inc., 271 NLRB
443 (1984).
Although the judge did not actually find that Cracolici
violated the Respondent’s telephone policy, he did find
that Pierucki concluded that Cracolici condoned the
abuse of the government telephone assigned to the Re-
spondent for official business. Even assuming that this
belief on the Respondent’s part constituted a legitimate
reason for its actions towards Cracolici, we find that on
the record before us the Respondent has failed to carry its
burden of showing by a preponderance of the evidence
that it would have taken the same actions in the absence
of Cracolici’s union activities. Accordingly, we find that
the Respondent’s treatment of Cracolici violated Section
8(a)(3) and (1) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, General Security Services Corporation, Los
Angeles, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Transferring, demoting, suspending, or terminating
Alfred Cracolici because of his union activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Alfred Cracolici full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Alfred Cracolici whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, computed on a quarterly basis
from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful transfer, de-
motion, suspension, and termination, and, within 3 days
thereafter, notify Alfred Cracolici in writing that this has
been done and that the transfer, demotion, suspension,
and termination will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 314
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in Santa Ana, California, and Los Angeles,
California, copies of the attached notice marked “Appen-
dix.”5 Copies of the notice, on forms provided by the
Regional Director for Region 21, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since February 29, 1996.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

CHAIRMAN GOULD, concurring.
I agree with my colleagues that Assistant Lead Court
Security Officer Cracolici is not a supervisor within the
meaning of Section 2(11) of the Act and that the Re-
spondent violated Section 8(a)(3) and (1) by transferring,
demoting, suspending and discharging him because of
his union activities. I write separately because I would
find violations of Section 8(a)(1) even if Cracolici were a
statutory supervisor.
The judge, having found that Cracolici was a supervi-
sor, dismissed the complaint under Parker-Robb Chevro-
let, 262 NLRB 402 (1982), affd. sub nom. Automobile
Salesmen’s Union Local 1095 v. NLRB, 711 F.2d 888
(D.C. Cir. 1988), a decision where the Board first an-
nounced the test to resolve supervisory discharge cases.
I do not subscribe to this test. Instead, I would extend
the protection of the Act to supervisors when the dis-
charge has a chilling effect on employees’ rights to en-
gage in protected or union activities and when their su-
pervisory status is uncertain and they engage in protected
or union activity in the good-faith belief that they are
statutory employees protected by the Act. I address each
of these issues in turn.

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

First, I would not grant the Respondent immunity from
its actions against Cracolici under the test set out in
Parker-Robb, but would find these actions unlawful be-
cause of their chilling effect on employees’ rights to en-
gage in concerted or union activity. In this regard, in
Parker-Robb, 262 NLRB at 404, the Board announced
that:

The discharge of supervisors as a result of their partici-
pation in union or concerted activity—either by them-
selves or when allied with rank-and-file employees—is
not unlawful for the simple reason that employees, but
not supervisors, have rights protected by the Act. [Em-
phasis in original.]

In overruling contrary precedent,1 the Board explained that
while “the discharge of a supervisor for engaging in union
or concerted activity almost invariably has a secondary or
incidental effect on employees,” such an effect is “insuffi-
cient to warrant an exception to the general statutory provi-
sion excluding supervisors from the protection of the Act.”
Id. at 404. The Board added that:

[I]t is irrelevant that an employer may have hoped, or
even expected, that its decision to terminate a supervi-
sor for his union or concerted activity would cause em-
ployees to reconsider, and perhaps abandon, their own
concerted or union activity. No matter what the em-
ployer’s subjective hope or expectation, that circum-
stance cannot change the character of its otherwise law-
ful conduct.2

Thus, the Board announced, in effect, that even when an
employer’s “decision to terminate a supervisor for his union
or concerted activity would cause employees to reconsider,
and perhaps abandon, their own concerted or union activ-
ity,” such a chilling of employees’ Section 7 rights has no
more than an “incidental or secondary effect on the employ-
1 See, e.g., Brothers Three Cabinets, 248 NLRB 828, 828–829
(1980), and Fairview Nursing Home, 202 NLRB 318, 324 fn. 34
(1973). As explained in Pontiac Osteopathic Hospital, 284 NLRB 442,
443 (1987):
In Parker-Robb [the Board] overruled the “integral part” or “pattern
of conduct” cases in which [it] had held that the discharge of a supervi-
sor, as part of an overall plan to discourage employees from exercising
their Section 7 rights, violated the Act. While recognizing that the
discharge of a supervisor for engaging in union or concerted activity
almost invariably has a secondary or incidental effect on employees,
[the Board] reasoned that such conduct is insufficient to warrant an
exception to the general statutory provision excluding supervisors from
the protection of the Act.
For the reasons set forth in my dissent, I would find that when the
discharge of a supervisor has a chilling effect on the Sec. 7 rights of
statutory employees, the discharge is unlawful. In my view, the deter-
mination of this issue is best decided by an examination of the facts in
each case and without reliance on “magic” terms such as “integral part”
or “pattern of conduct.” Accordingly, I refrain from using these terms
here.
2 Parker-Robb Chevrolet, 262 NLRB at 404 (fn. omitted).
GENERAL SECURITY SERVICES CORP. 315
ees” and therefore does not render the discharge of the su-
pervisor unlawful. Id. I hold a different view of the Act.
As I have previously explained elsewhere,3 I would
find that discrimination against a statutory supervisor
violates the Act when it reasonably may be inferred that
the discrimination will chill the concerted or union
activities of statutory employees. In my view,
discrimination by an employer that has the effect of
coercing employees to abandon their protected or union
activities should never be construed as lawful on the
ground that the employees’ abandonment of protected or
union activities is merely an “incidental or secondary
effect” of such discrimination. To the contrary, the
chilling of employees’ rights to organize and to
participate in union activities goes to the very heart of the
Act and undermines the very employee rights which the
Parker-Robb Board purported to protect. In this regard,
I find it inherently contradictory for the Board to rely on
the proposition that “employees, but not supervisors,
have rights protected by the Act,” when the result of such
a reliance is to leave employers free to chill the rights of
statutory employees with impunity. Accordingly, for
these reasons, I would overrule Parker-Robb and find
that an employer violates the Act when it reasonably
may be inferred that its discharge of a statutory
supervisor has a chilling effect on the concerted or union
activities of statutory employees. Such an inference is
clearly warranted here. Accordingly, I would find that
the Respondent’s discharge of Cracolici violated Section
8(a)(1) of the Act even assuming Cracolici was a
statutory supervisor.
In finding that the Respondent’s discharge of Cracolici
had a chilling effect on the union activities of unit em-
ployees, I emphasize that Cracolici actively participated
in the employees’ efforts to seek union representation
and that the Respondent discharged him specifically be-
cause of his union activities. Statutory employees could
reasonably fear that they would suffer the same fate as
Cracolici if they persisted in their efforts to seek union
representation.
Even when a supervisor’s discharge does not have a
chilling effect on other employees, the supervisor may
still enjoy the protection of the Act under certain circum-
stances not present here. Where an individual’s status as
a statutory supervisor is genuinely uncertain and is con-
tested before the Board in a union organizational cam-
paign, that individual does not lose the protection of the
Act if, in effect, he guesses wrong and is subsequently
determined to be a statutory supervisor. I do not believe
that extending the protection of the Act to such individu-
als would undermine the objective which Congress in-
tended when in 1947 it amended the definition of “em-
ployee” in Section 2(3) to exclude those denominated as

3 See Cincinnati Truck Center, 315 NLRB 554, 556 fn. 11 (1994).
supervisors under Section 2(11).4 In this regard, in
Beasley v. Food Fair of North Carolina, 416 U.S. 653,
661-662 (1973), the Supreme Court, after reviewing the
legislative history of the relevant amendments, stated
that:

This history compels the conclusion that Con-
gress’ dominant purpose in amending §§ 2(3) and
2(11) . . . was to redress a perceived imbalance in la-
bor-management relationships that was found to
arise from putting supervisors in the position of serv-
ing two masters with opposed interests.

As the Court explained, Congress excluded supervisors
from protection under the Act “because [they] were man-
agement obliged to be loyal to their employer’s interests,
and their identity with the interests of rank-and-file employ-
ees might impair that loyalty . . . .” Id. at 659–660. Since I
would find protected only the union activities of employees
whose supervisory status is uncertain at the time they en-
gage in such activities, it follows that their obligation to be
loyal to management is not yet clearly established and there-
fore their union activity would not “impair” that loyalty. In
these circumstances, an employer risks relatively little if it
awaits impartial resolution of the supervisory issue before
insisting that the employee, if found to be a supervisor,
cease from union activity.
On the other hand, under current law it is the employee
whose supervisory status is in doubt who must risk eve-
rything when, upon an employer’s mere assertion that the
employee is a supervisor, the employee must choose
either to surrender his Section 7 right to engage in pro-
tected or union activity or to subject himself to possible
discharge by continuing to engage in that activity. Fur-
ther, employees’ union activities are adversely affected
even if they are ultimately found not to be supervisors.
Thus, to the extent employees fear they may be found to
be supervisors they are inhibited in the exercise of their
rights under the Act. Additionally, the rest of the unit is
impacted by not having the benefit of the full participa-
tion of the affected employees. I would remove this risk
by finding unlawful an employer’s demand that an em-
ployee cease his protected or union activity and any dis-
cipline imposed if the action was taken as a result of such
activities prior to a Board determination of his job status.
The facts here, however, do not appear to warrant this
approach.
4 Sec. 2(3) provides in pertinent part:
The term “employee” shall include any employee . . . but shall
not include . . . any individual employed as a supervisor . . . .
Sec. 2(11) provides:
The term “supervisor” means any individual having authority, in
the interest of the employer, to hire, transfer, suspend, lay off, re-
call, promote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 316
Cracolici’s status was not contested in the union’s or-
ganizational campaign. The stipulated election agree-
ment specifically excluded Cracolici’s position, Assistant
Lead Court Security Officer, from the bargaining unit.
Cracolici did not attempt to vote in the election and had
been instructed by the Respondent to remain neutral in
matters involving the election. Cracolici, therefore, is
not an individual who held a good-faith belief that he
was an employee entitled to the protection of the Act
who expected his status to be resolved by the Board at
the time of the election.
Accordingly, assuming Cracolici’s supervisory status,
I would find that the Respondent actions toward him
violated Section 8(a)(1) because of their chilling effect
on employees’ rights to engage in protected or union
activities. As noted earlier, I also fully agree that Cra-
colici is not a supervisor for the reasons set forth in the
majority opinion and that the Respondent’s treatment of
him violated Section 8(a)(3) and (1) of the Act.

MEMBERS HURTGEN AND BRAME, dissenting.
The issue here is whether the Charging Party, Alfred
Cracolici, was a statutory supervisor, and therefore out-
side the protection of the Act, when the Respondent dis-
charged him for engaging in union activity.
Finding that the Respondent had satisfied its burden of
showing that Cracolici was a statutory supervisor, the
judge further found that the Respondent did not violate
the Act when it discharged him for engaging in union
activity.1 The judge therefore dismissed the complaint.
The majority, reversing the judge, finds that Cracolici
was a statutory employee and that the Respondent vio-

1 In finding that Cracolici’s discharge did not violate the Act, the
judge cited Parker-Robb Chevrolet, 262 NLRB 402 (1982), affd. sub
nom. Automobile Salesmen’s Union Local 1095 v. NLRB, 711 F.2d 888
(D.C. Cir. 1988). In Parker-Robb, 262 NLRB at 404, the Board ex-
plained that “[t]he discharge of supervisors as a result of their participa-
tion in union or concerted activity . . . is not unlawful for the simple
reason that employees, but not supervisors, have rights protected by the
Act.” (Emphasis in original.) We agree with the judge that the Board’s
decision in Parker-Robb is applicable here and that under that decision
statutory supervisor Cracolici’s discharge would not be unlawful.
We find without merit Chairman Gould’s criticism of Parker-Robb
and reject his attempt to extend the protection of the Act to statutory
supervisors who are discharged for engaging in union activity. As
stated in Parker-Robb, 262 NLRB at 402 (fn. omitted), “down through
the years the Board has consistently held that a supervisor may be
discharged for union activity.” We would find that that is all that has
happened here. To find such conduct unlawful, we would be required
to look beyond the conduct, lawful in itself, and find it unlawful on the
basis of the consequences of that conduct, i.e., whether it had an ad-
verse effect on employees. For the reasons articulated in Parker-Robb,
we decline to adopt such an analysis. Finally, we reject Chairman
Gould’s attempt to find that the discharges of supervisors would be
unlawful if their supervisory status were uncertain prior to the Board’s
resolution of that issue. As Chairman Gould notes, Congress amended
the definition of “employee” in Sec. 2(3) of the Act to exclude “super-
visors.” Congress did not contemplate extending the protection of the
Act to a further category of “gray-area” supervisors, and we decline the
Chairman’s invitation to fashion such a category now.
lated Section 8(a)(3) and (1) by discharging him. We
disagree.
The Respondent operates a security guard business.
As part of that business, the Respondent, under a contract
with the United States Marshal Service, furnishes secu-
rity guards, called Court Security Officers (CSOs), to
certain federal courthouses in southern California, in-
cluding the Santa Ana Federal Court House at issue here.
A lead CSO, the highest ranking official of the Respon-
dent at the work site, supervises the CSOs. At sites that
employ more than 10 CSOs, such as the Santa Ana facil-
ity, an Assistant Lead CSO assists the Lead CSO. At all
times relevant, Phil Elder was the Lead CSO at the Santa
Ana facility and Cracolici was the Assistant Lead CSO.
It is admitted that Elder was a statutory supervisor. As
explained above, the issue here is whether Cracolici was
also a statutory supervisor.
In his analysis of this issue, the judge correctly found
that Cracolici was in charge of courthouse security at the
Santa Ana Federal Court House after Lead CSO Elder
left each day at 1:30 p.m. Since Cracolici stayed at work
until approximately 6 p.m., he was, in fact, in charge of
courthouse security for approximately 4.5 hours each
day. Further, in our view, the judge also correctly found
that certain facts—(1) that the Respondent’s contract
with the Marshal Service required the Respondent to
have a supervisor on duty during periods of public access
to the courthouse, i.e., until 6 p.m. each day, and (2) that
Cracolici, as the Respondent’s highest ranking official at
the court house after 1:30 p.m., satisfied this supervisory
requirement—support a finding that Cracolici was a su-
pervisor within the meaning of the Act.
That Cracolici’s status was indeed that of a statutory
supervisor when he was in charge of the courthouse is
evidenced by the fact that in Elder’s absence Cracolici
would schedule and assign the work of the CSOs. Thus,
although Elder may have prepared work schedules in
advance, there were times when the Marshal Service
would request changes after Elder had left. Cracolici had
the authority to decide how to comply with those re-
quests.
Cracolici’s authority to assign overtime further evi-
dences Cracolici’s status as a statutory supervisor. In
this regard, Elder testified, without contradiction, that
when Cracolici was in charge of courthouse security, he
had the authority to call in CSOs, which call-ins could
result in overtime pay. See, e.g., Sun Refining Co., 301
NLRB 642 fn. 2 (1991) (authorizing and assigning over-
time is a supervisory function under Section 2(11)).
Further, as the Respondent’s highest ranking official at
the facility for much of the day, Cracolici had the author-
ity to act for the Respondent if a serious problem or an
emergency arose. Such action would include the direc-
tion of the CSOs in their response to the problem or
emergency. Although the majority attempts to disparage
Cracolici’s use of such authority on the ground that no
GENERAL SECURITY SERVICES CORP. 317
such emergency had yet arisen, their arguments do not
alter the fact that Cracolici possessed such authority. We
find that this factor also supports a finding that Cracolici
was a statutory supervisor.2
Contrary to the suggestion of our colleagues, our view
that Cracolici was a statutory supervisor is not based on
his “mere presence” at the work site when supervisor
Elder was absent. Rather, we emphasize that Cracolici
was in charge of the Respondent’s operations in Elder’s
absence, that he was the highest-ranking onsite represen-
tative of the Respondent at those times, and that his re-
sponsibilities included the summoning of additional
CSOs as needed, which could result in overtime pay.
Those responsibilities also included changing work
schedules. With particular reference to this last respon-
sibility, the Marshal Service would request changes, but
the decision as to what changes were to be made was
entirely up to Cracolici.
Finally, our finding that Cracolici was a statutory su-
pervisor is further evidenced by the presence of “secon-
dary” indicia of Cracolici’s supervisory status, i.e., Cra-
colici was paid more than the rank-and-file CSOs, and he
was perceived as a supervisor by them.
For all these reasons, we agree with the judge that Cra-
colici was a statutory supervisor. Accordingly, we would
dismiss the complaint.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT transfer, demote, suspend, discharge, or
otherwise discriminate against any of you for supporting
the International Union, United Government Security
Officers of America, Local 74 or any other union.

2 Cf. Quadrex Environmental Co., 308 NLRB 101, 101 (1992),
where the Board found that leadmen were not statutory supervisors
because, inter alia, if the leadmen encountered nonroutine problems,
they had to report them. By contrast, Cracolici had the authority to act
on the Respondent’s behalf if a nonroutine problem arose.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Alfred Cracolici full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed
and WE WILL make him whole for any loss of earnings
and other benefits resulting from his transfer, demotion,
suspension, and discharge, less any net interim earrings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful transfer, demotion, suspension, and discharge of Al-
fred Cracolici, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the
transfer, demotion, suspension, and discharge will not be
used against him in any way.

GENERAL SECURITY SERVICES CORPORATION

Ami Silverman, Esq., for the General Counsel.
Robert A. Boonin, Esq., for the Respondent.
Alfred Cracolici, for the Charging Party.
DECISION
INTRODUCTION
ALBERT A. METZ, Administrative Law Judge. This case was
heard at Los Angeles, California, on April 7–8, 1997.1 Alfred
Cracolici, an individual, has charged that General Security
Services Corporation (Respondent) violated Section 8(a)(1) and
(3) of the National Labor Relations Act (Act) by transferring,
demoting, suspending, and terminating him. I find that Cra-
colici was a supervisor within the definition of the Act and that
Respondent’s actions did not violate the Act.
The Respondent admits that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the International Union, United Government
Security Officers of America and it Local 74 (jointly referred to
as the Union) are labor organizations within the meaning of
Section 2(5) of the Act.
I. BACKGROUND
The Respondent operates a security guard business. Part of
that business provides security services at Federal courthouses
throughout the country including the southern California area.
This function involves protecting the Federal judiciary, court
employees, and the public, including jurors. The Respondent is
responsible for protecting the Federal courthouses in Los Ange-
les, San Bernadino, Pasadena, Santa Ana, and Santa Barbara,
California. The Respondent’s work is performed under contract
with the United States Marshal Service (USMS). Respondent’s
guards are called Court Security Officers (CSOs) and they are
supervised by a Lead CSO who is the highest ranking company
official on the worksite. Typically at sites that employ more
than 10 CSO’s an Assistant Lead CSO is employed to assist the
Lead CSO. This was the situation at the Santa Ana Federal
Courthouse and Federal Office Building complex in April
1 All subsequent dates refer to 1996 unless otherwise stated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 318
1995. At that time Lead CSO, Phil Elder, was in charge of the
Santa Ana courthouse. Charging Party Cracolici worked under
Elder as the Assistant Lead CSO. Elder had appointed Cracolici
as his assistant to substitute for Herb Johnson who was on an
extended medical leave. It was apparent as early as August
1995 that Johnson would not be able to return to work. Cra-
colici thus worked as the Assistant Lead CSO for 11 months
from April 1995 until his discharge in March 1996.
The Respondent’s District Supervisor is Richard Caven who
oversees several courthouse locations in southern California.
Caven was responsible for supervising Elder and Cracolici.
Caven’s office is located in Los Angeles. The Government’s
complaint alleges, and the Respondent admits, that Elder and
Caven are supervisors within the meaning of Section 2(11) of
the Act.
In late 1995 and early 1996 the Union was attempting to or-
ganize the CSO’s at the Santa Ana courthouse. Eventually an
election was scheduled for January 25, 1996. The stipulated
election agreement specifically excluded Lead and Assistant
Lead CSOs from the bargaining unit. Cracolici did not attempt
to vote in the election and had been instructed by the Respon-
dent through Elder that they both were to remain neutral in
matters involving the election. They were only to discuss the
Union with CSOs if the employee had a question about the
matter.
II. RESPONDENT’S INVESTIGATION
In January the Respondent received a complaint from the
USMS that there may be problems with CSOs at the Santa Ana
courthouse misusing the government telephone, and perhaps
other problems. A supervisor, James Russell (who did not work
at the Santa Ana courthouse) was assigned to investigate the
complaints. He interviewed the Santa Ana personnel and this
resulted in the Respondent learning that some employees may
have abused telephone privileges. Additionally, it was learned
Cracolici may have solicited support for the Union in the elec-
tion campaign, made derogatory remarks about the Respondent,
and behaved abusively towards two women CSOs under his
supervision.
III. CRACOLICI’S TRANSFER, DEMOTION, AND SUSPENSION
On February 29, Caven issued a memo notifying the em-
ployees that a new lead and assistant lead were assuming those
duties at the Santa Ana courthouse commencing March 4. Cra-
colici was told to report to the Los Angeles office and on
March 4 he met with District Supervisor Caven who gave him a
letter of suspension. Cracolici was suspended pending further
investigation of his recent conduct. The letter listed several
problem areas including his and subordinates’ telephone abuse,
making statements against the Respondent, and showing favor-
itism towards certain employees. The letter also alleged he
“participated and supported in an effort to bring a union into
our work environment which was contrary to the directions you
were given by management.” Cracolici was invited to submit a
written reply to the listed allegations. He prepared such a reply
and this was considered by management in making its decision
to terminate him. While Cracolici denied he did anything that
was supportive of the Union’s organizational efforts, I do not
credit his denials. The credited evidence and testimony estab-
lish that Cracolici was vocal in supporting the Union and abu-
sive to subordinates who disagreed with his opinion.
IV. DISCHARGE
On March 14 the Respondent terminated Cracolici.2 The
termination decision was made by Andrew Pierucki, Respon-
dent’s vice president, who offices in Minneapolis, Minnesota.
Pierucki testified that he made the decision to terminate Cra-
colici after a review of the information that was submitted to
him. This included supervisor Russell’s investigation reports,
employee statements, and Cracolici’s written response. Pierucki
did not find Cracolici’s response was truthful and considered it
to be confrontational and evasive rather than responsive to the
inquiry. Pierucki concluded that Cracolici condoned the abuse
of the government telephone assigned to the Respondent for
official business. Pierucki believed that Cracolici showed fa-
voritism towards some of the employees that were pro-union.
This included condoning CSOs using Government and com-
pany time to conduct Union business. Pierucki also determined
that Cracolici abused some employees by his refusal to com-
municate with them. Pierucki was very concerned by the com-
plaints of two women CSOs (detailed more fully below) that
they were going to file EEOC charges against Cracolici because
of his abusive behavior towards them. Pierucki concluded that
the totality of Cracolici’s conduct required his termination.
Cracolici’s termination letter states that his “actions during the
recent campaign for the Union were such that you are no longer
suitable to continue as a supervisor for this company” Thus,
Cracolici was terminated on March 14.
V. THE CSO’S WORK AND SUPERVISION
All CSOs are deputized by the Government to serve as Dep-
uty U.S. Marshals. They are armed and have arrest powers. The
CSOs perform duties of checking the public entering the court-
house, providing roving patrols, courtroom security, guarding
juries, and other tasks requested by the USMS. CSOs are as-
signed on an hourly basis to either occupy a stationary post
(e.g., the X-ray machine at the courthouse entrance) or a roving
post (e.g., patrolling the hallways and courtrooms). This sched-
uling was done by Elder, Cracolici, and a CSO who was adept
at arranging the schedule on his computer. Approximately 17
CSOs were supervised by Elder and Cracolici.
The contract between the U.S. Marshal Service and the Re-
spondent states in pertinent part:

3.2.2 On-Site Supervision
[T]he Contractor shall employ a Supervisory/Lead CSO at
each facility to provide supervision on a daily basis. This per-
son shall, at a minimum, be responsible for coordinating with
the U. S. Marshal or his designee at that facility on a daily ba-
sis:

i. to determine any changes which may be required
that day;
ii. to assure all CSOs are in proper uniform, and all
Government property is accounted for;
iii. to provide a degree of supervision for the daily
working of the CSOs;
iv. to be contact between the Contract Supervi-
sor/Manager and the U.S. Marshal or his designee.

In most cases, this “Lead CSO” shall function simultaneously
as a full-time working CSO. Where 24-hour coverage exists,
it shall be necessary to provide one or more assistant Lead

2 Elder was demoted at the same time.
GENERAL SECURITY SERVICES CORP. 319
CSO to provide supervisory coverage on all shifts. (Emphasis
added.)

The Santa Ana CSOs work shifts that cover a period from 5
a.m. to 10 p.m. The public hours of the Santa Ana Courthouse
are approximately 7 a.m. until 6 p.m. Elder typically worked
from 5 a.m. until 1:30 p.m. because certain judges started work
at 5:30 a.m. Cracolici commonly started work at 9:30 a.m. Cra-
colici testified that, “After Elder left at 1:30 p.m. I took over his
duties as Lead CSO. When employees needed guidance while
Elder was out they would call me.” A number of CSOs did not
start work until 2 p. m.
Cracolici did some daily log reports which document the
employees that worked on particular days and how long they
worked. He would request additional personnel from upper
management to staff his courthouse. He occasionally approved
vacation payments to employees but did not give them the va-
cation time off. Cracolici would assist Elder in the preparation
of scheduling employees. When Elder was not working the
scheduling would be done by Cracolici or a CSO who was
skillful at the task. The prior schedule was usually used as the
basis for the new schedule requiring only a minimal amount of
changes.
Cracolici testified that he reprimanded CSOs as needed and
recited two instances. He considered one of the instances to be
a particularly serious situation. The reprimand resulted from the
CSO being away from his post in the Clerk’s office. The officer
was in a position where he could not see his post. At times
when Elder was not at the courthouse CSO’s would come to
Cracolici with questions about their duties. Cracolici would use
Elder’s office to write his reports and to use the telephone.
Cracolici admitted that Elder told him that there was going to
be a union election, and that the two of them, as part of man-
agement, would not be able to vote. He was instructed not to
talk about the election unless someone asked him a question.
Cracolici recalled that on about 20 occasions employees came
to him wanting to discuss the Union. He denied ever encourag-
ing any employee to support the Union.
Elder testified that Cracolici’s job responsibility was to run
his end of the shift and make sure that CSOs were doing their
jobs and to be in charge at times when Elder was not present.
Elder stated the USMS would contact the Lead or Assistant
Lead CSO if they had any problems with security and would
expect them to take care of the problems. When Cracolici was
in charge he was the direct contact with the USMS. If the
USMS had additional security needs it was up to the Lead or
the Assistant Lead to staff that security which could result in
overtime pay. If there was a serious problem with a member of
the public the Lead or the Assistant Lead was to oversee the
situation. Elder noted that when Cracolici was promoted to the
Assistant Lead position he received a 90-cent-per-hour wage
increase. His radio call sign was changed to reflect that he was
“S2” or the supervisor under Elder.
CSO Lumila Wren testified that she considered Cracolici to
be a supervisor, because “he’s the supervisor that gave us or-
ders, gave us the direction.” Wren observed Cracolici also
doing some of the scheduling. She complained that Cracolici
was leaving early on occasions and was thus not available to
the CSOs. Wren stated in writing during the Respondent’s in-
vestigation that Cracolici was the evening supervisor and when
he left early this caused problems because there were times
when decisions had to be made such as who would be assigned
to work overtime if a court was going to be in session late. (R.
Exh. 3.) Wren noted that Cracolici was available to answer
questions and was on roving patrol more frequently than other
officers in order to keep track of the overall security situation in
the two Santa Ana buildings. Wren recalled discussing the Un-
ion in front of Cracolici in approximately December 1995 and
expressing her opinion that she did not favor union representa-
tion. Cracolici told her, “You women don’t understand any-
thing.” Thereafter Cracolici became very hostile towards her.
This hostility was expressed in part by refusing to answer her
questions and walking away from her. Wren noted that her
assignments changed so she was given long periods on fixed
posts which was highly unusual. Prior to the union discussion
with Cracolici she would get a couple of roving assignments a
day. At one point she went to Cracolici and told him she
wanted to discuss her scheduling. He refused to speak to her
and walked away. She testified that CSOs who favored the
Union were getting the roving assignments. She complained of
her treatment to Elder who said he would check into the matter.
They discussed the situation later and Elder’s reply was that she
knew Cracolici and he did what he wants. Wren told Elder that
she and CSO Marjorie Appel were prepared to file an EEOC
complaint about the hostile work environment to which Cra-
colici was subjecting them.
CSO, Marjorie Appel, testified that her regular shift was 2
p.m. to 10 p.m. and that she rarely saw Elder who typically left
at 1:30 p.m. She stated that she considered Elder and Cracolici
to be supervisors who were responsible for enforcing work
rules and possibly disciplining employees if they violated work
rules. Appel noted that they were the highest company author-
ity on the worksite. Appel also had discussions with Cracolici
about the Union. She told him that she was not sympathetic to
the organizational drive. Corroborating Wren’s testimony, Ap-
pel likewise experienced Cracolici refusing to speak to her after
she expressed her lack of enthusiasm for the Union. She con-
sidered his treatment to be abusive and talked to Wren about
their filing a discrimination complaint with the EEOC.
Andrew Pierucki, Respondent’s vice president, testified that
in the absence of the Lead CSO an Assistant Lead CSO is the
highest ranking company official at a courthouse. Leads are
responsible for directing employees and being in charge during
any emergency. Pierucki emphasized the seriousness of the
CSO’s duties and noted that two of Respondent’s CSOs had
been killed in the line of duty. Pierucki testified that because of
the gravity of the work it was important to have supervisors in
place, particularly during the public hours when there is the
highest likelihood of an emergency. Pierucki stated that the
supervisory requirement of having Assistant Lead CSOs was
mandated by the USMS in the contract and that they was re-
sponsible for the supervision of the CSOs.
VI. ANALYSIS OF THE SUPERVISORY ISSUE
The Government contends that Cracolici was not a supervi-
sor within the Act’s definition and that his discharge which, in
part, was motivated by his union activity was a violation of the
Act. The Respondent asserts that Cracolici was a statutory su-
pervisor and his union activities did not protect him from dis-
charge. Section 2(11) defines a supervisor as: “Any individual
having authority in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign, reward,
or discipline other employees, or responsibly to direct them or
to adjust their grievances, or effectively to recommend such
action, if in connection with the foregoing the exercise of such
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 320
authority is not of a merely routine or clerical nature, but re-
quires the use of independent judgment.” The burden of prov-
ing supervisory status rests with the party who alleges its exis-
tence. Health Care Corp., 306 NLRB 63 fn. 1 (1992).
Cracolici was the only supervisor present on a daily basis af-
ter Elder left at 1:30 p.m. Cracolici would also be solely re-
sponsible for the courthouse security at times when Elder was
absent from work for reasons such as vacations, management
meetings, or illness. Cracolici had the authority to schedule and
direct the work of CSOs. He had the authority to discipline
CSOs and cited instances when he did verbally reprimand em-
ployees. He was responsible for being the Respondent’s repre-
sentative to the USMS when Elder was absent and work as-
signments had to be accommodative to USMS’s needs.
Cracolici received a 90-cent-per-hour wage increase when he
was appointed Acting Assistant Lead CSO. He was assigned a
supervisory radio call as Assistant Lead CSO. He directed the
work of the CSOs as he saw appropriate and the staff viewed
him as a supervisor. The need for supervision of the CSOs,
especially during public hours, was readily demonstrated. The
CSOs are armed deputy U. S. Marshals. The Respondent has
had two CSOs killed in the line of duty. The CSOs perform a
vital service in protecting the courthouses from serious threats.
If Cracolici were not found to be a supervisor the CSOs would
be unsupervised during half of the day while providing this
critical courthouse protection.
The contract with the USMS, while not dispositive of Cra-
colici’s supervisory status, is supportive of the intent that he
was to work as supervisor within the meaning of the Act. The
USMS requires that the Respondent have a supervisor on duty
during the court’s public hours. I find that Cracolici had the
authority to responsibly direct the CSOs and exercised that
authority. Additionally, I find that Cracolici had and exercised
the authority to discipline employees.
The Respondent received reports that Cracolici was support-
ing the Union’s organizational efforts, and, contrary to instruc-
tions, was not remaining neutral during the campaign. The Re-
spondent chose to credit these reports over Cracolici’s denial
that he had engaged in any union activity. I likewise do not
credit Cracolici when he denies that he engaged in union activ-
ity. I found the testimony of CSOs Appel and Wren to be credi-
ble that Cracolici supported union representation, and shunned
them because they did not share his views.
I find that the Respondent has met the burden of showing
that Cracolici was employed as a statutory supervisor. I further
find that because of his supervisory status the Respondent did
not violate the Act when it discharged him. Parker-Robb Chev-
rolet, Inc., 262 NLRB 402, 404 (1982).
CONCLUSIONS OF LAW
1. General Security Services Corporation is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The International Union, United Government Security
Officers of America and its Local 74 are labor organizations
within the meaning of Section 2(5) of the Act.
3. The Charging Party, Alfred Cracolici, at all material times
was employed by the Respondent as a supervisor within the
meaning of Section 2(11) of the Act and his transfer, demotion,
suspension, and termination did not violate the Act.
[Recommended Order for dismissal omitted from publica-
tion.]