Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1976

224 N.L.R.B. 829 (N.L.R.B. 1976)

MISSION OF THE IMMACULATE VIRGIN 829
Mission of the Immaculate Virgin for the Protection
of Homeless and Destitute Children , Inc and Dis-
trict Council 1707, Community and Social Agency
Employees Union , American Federation of State,
County and Municipal Employees , AFL-CIO Case
29-CA-4643
June 15, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On April 7, 1976, Administrative Law Judge Anne
F Schlezmger issued the attached Decision in this
proceeding Thereafter, General Counsel filed excep-
tions and a supporting brief
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order
Director for Region 29 (Brooklyn, New York), issued a
complaint and notice of hearing on November 28 The
complaint alleges in substance that Mission of the Immac-
ulate Virgin for the Protection of Homeless and Destitute
Children, Inc, herein called the Respondent, since on or
about September 23, provided an employee, Charles
Browning, with less employment than he previously re-
ceived and less than he normally would have received be-
cause of his union and other concerted activity, and more
strictly enforced the reporting time requirements for em-
ployees in its intake department to discourage membership
in or activities on behalf of the Union or other concerted
activity, and thereby engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended
The Respondent, in its answer duly filed, admits some of
the factual allegations of the complaint, but denies that it
has engaged in the alleged unfair labor practices
Pursuant to due notice, a hearing was held before me at
Brooklyn, New York, on February 9, 1976 All parties ap-
peared at the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to
introduce relevant evidence The General Counsel present-
ed opening and closing statements while the other parties
waived the opportunity to do so Subsequent to the hear-
ing, on or about March 9, 1976, the General Counsel filed
a memorandum and the Respondent filed a brief, which
have been fully considered 2
Upon the entire record in this proceeding and from my
observation of the witnesses, I make the following
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety
i The General Counsel has excepted to certain credibility 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 credibili
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products Inc 91
NLRB 544 (1950) enfd 188 F 2d 362 (CA 3 1951) We have carefully
examined the record and find no basis for reversing her findings
DECISION
STATEMENT OF THE CASE
ANNE F SCHLEZINGER, Administrative Law Judge Upon
a charge filed on October 21, 1975,1 by District Council
1707, Community and Social Agency Employees Union,
American Federation of State, County and Municipal Em-
ployees, AFL-CIO, referred to herein as the Charging Par-
ty or the Union, the General Counsel, by the Regional
i All dates hereinafter refer to 1975 unless otherwise indicated
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material
herein, a corporation duly organized under, and existing by
virtue of, the laws of the State of New York It maintains
its principal office and place of business at Staten Island,
in the city and State of New York, and various other places
of business in the city and State of New York, where it is
engaged in providing residential care and social services
for destitute and neglected children The Respondent, in
the course and conduct of its business, annually derives
gross revenues in excess of $1 million, and purchases and
causes to be transported and delivered to its places of busi-
ness equipment and other goods and materials valued in
excess of $50,000, of which goods and materials valued in
excess of $50,000 are transported and delivered to its
places of business in the State of New York directly from
other States The complaint alleges, the Respondent in its
answer admits, and I find that the Respondent is, and has
been at all times material herein, an employer engaged in
2 The General Counsel also filed a motion to correct the official report of
proceedings in three respects Counsel for the Respondent filed an oppose
Lion to one of the proposed changes asserting that he recalled the language
in question and it was correctly reflected by the transcript My notes and
recollection do not indicate that the transcript is incorrect in that regard
The motion to correct is therefore hereby granted with regard to the items to
which there is no opposition and errors in the transcript have been noted
and corrected
224 NLRB No 109
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce within the meaning of Section 2(2),(6), and (7)
of the Act
II THE LABOR ORGANIZATION INVOLVED
I find, as the complaint alleges and the Respondent in its
answer admits, that District Council 1707, Community and
Social Agency Employees Union, American Federation of
State, County and Municipal Employees, AFL-CIO, is,
and has been at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Issues
The issues are whether the Respondent, since on or
about September 23, discontinued Browning's Sunday em-
ployment because of his union activity or for lawful cause,
and whether it did or did not more strictly enforce the
reporting time requirements for employees in its intake de-
partment, and, if it did, whether it was for a lawful or a
discriminatory reason
Browning was the only social worker with a degree in
social work in the intake department The other five em-
ployees in the department were case aides or clerical em-
ployees James O'Dea was the director of the intake de-
partment and the supervisor of the Sunday visiting
program The General Counsel called as witnesses, in addi-
tion to Browning, Kathleen Kennedy, a case aide in the
intake department who also, as did Browning, worked at
times during the period here in issue on the Sunday visiting
program, and Mary Burns, a clerical employee, who
worked only on Sunday and had done so for about 10
years O'Dea was the Respondent's only witness
B Organization of the Union
Browning has been employed by the Respondent about
6 years and in the intake department about 2-1/2 years He
was one of a group of employees who, beginning in the
spring of 1975, met after work and discussed union organi
zation, and one of the six employees who formed an orga-
nizing committee on or about August 13 As Browning tes-
tified, the committee names, with Browning listed first,
appeared on a union leaflet distributed to the employees on
August 13, and a registered letter naming the committee
was sent about that time to "the Monsignor, the Executive
Director of the Agency "
Browning testified that, in early September, Patterson,
who was director of the Respondent's diagnostic center,
and O'Dea, director of the intake department, called the
child care staff and intake department personnel to a meet-
ing at which Patterson announced that the summer was
over and it was time to plan for the new school year, that
at the end of the meeting Patterson asked if everyone knew
there would be a union election on September 19, and that
Patterson stated "that he personally wanted everybody to
vote no he wanted everybody to vote, whether they
voted yes or no He said that he especially wanted people
to be informed about the issues involved, and he said that
he had copies of all of the material that had come out from
the Union and anything that the Mission had put out
about the Union election " There is no evidence that
O'Dea said anything at this meeting
An article that appeared on September 10 in the `Staten
Island Advance," a local newspaper, about the union cam-
paign, quoted comments by Browning and another mem-
ber of the organizing committee critical of some of the
Respondent's practices Browning testified that, on the fol-
lowing day, he made several attempts to engage O'Dea in
conversation, that O'Dea rejected these attempts, that fi-
nally, as Browning persisted, O'Dea commented that he
thought what Browning did was "unconscionable", that
Browning said he did not know his comments to the re-
porter would appear in the paper, and O'Dea asked what
Browning expected when he talked to a reporter, and that
when Browning continued to urge that they discuss the
matter, O'Dea finally agreed, and they went to Browning's
office where they talked for about an hour According to
Browning, O'Dea was critical of the newspaper article as
possibly harmful to the work of the Mission There was no
reference to the Union
The parties stipulated that, pursuant to an election peti-
tion filed by the Respondent on June 11 (Case 29-RM-
466), a Board election was held on September 19 among
the Respondent's caseworkers, which the Union lost
Browning was one of the union observers at the election
No objections to the election were filed
C The Sunday Visiting Program
Parents and friends may visit the children at the Mission
on Sunday afternoons The employees on duty set up a
visitors desk in the auditorium in one of the schools When
the visitors arrive, frequently in large groups as many come
by bus, the children who have visitors are notified and are
brought from their cottages to the auditorium As some of
the parents as well as some of the children have serious
emotional and behavioral problems, the visiting program
must be closely supervised There are generally three em-
ployees on duty, two who handle visitors and one who does
the clerical work, but there may be only two on duty dur-
ing holiday periods, when there are fewer visitors, or if one
of the employees is absent
An employee named Carol Volpe had worked for some
time on the Sunday visiting program, but became ill in
about December 1973 and has been on leave of absence
since then O'Dea testified, as did Kennedy and Roth, that
Volpe retained the option, upon her return, to resume the
Sunday work, and that Kennedy and various others, who
were assigned to this work at times, were told they were
serving as substitutes pending Volpe's return Browning de
coed, however, that he was told this when he began to work
Sundays on a regular basis
Browning also testified, as to his Sunday assignment, "I
worked a few times in the fall of 74, I can't remember
exactly how many times, but kind of on a replacement
basis in case somebody else couldn't be in Then, I believe
beginning in February of `75, I began to work on a regular
basis, namely every Sunday, and I think from then until
the 21st [of September] I worked all but maybe two or
MISSION OF THE IMMACULATE VIRGIN 831
three Sundays " On cross-examination, Browning testified
that he could not recall whom he first replaced on Sunday
work He admitted there were various replacements, before
and after he began, some of whom he named He stated
that he could not recall if Kennedy, who later replaced him
on Sundays, did any of the Sunday work at that time, then
recalled that she did in August and some days before that,
and was not sure about June but thought she very likely
did then also, and that she might have worked every Sun
day in August
Those who worked on this Sunday program always re
ported their hours on the timesheets as 12 noon to 6 p m,
and were paid for 6 hours, but in practice came after 12
and left before 6 Browning testified that he was told by
Volpe, who first scheduled him to work on Sunday, that
the visiting hours were 1 to 4 30, that he did not recall
O'Dea, who was his supervisor "to all intents and purpos-
es" on Sundays also, making any `direct statement" about
the hours, and that, as was the practice for those working
on Sunday, he signed the timesheet from 12 to 6
Kathleen Kennedy, who has been a case aide in the in-
take department since July 1974, and who replaced Brown
ing on the Sunday visiting work, testified that she worked
since about the summer, possibly before, as a substitute,
and regularly since September 28, that she was asked to do
this work regularly on the Monday after the election, that
when she asked the reason, O'Dea said "there was no need
for another MSW to work on Sunday" in addition to him-
self, and that O'Dea told her she was to sign the timesheet
from 12 to 6, but to arrive at 1 and to leave probably at
4 30 She testified, however, at a later point that these were
her hours as a substitute, but that O'Dea changed them,
after she began this work on a regular basis, to 12 30 to
4 30
O'Dea testified that the visiting on Sunday usually start-
ed at 1 and ran until 4 30 or a little later, but that the staff
began at 12 30 to make the advance preparations before
the visitors began arriving He denied that he ever told
Kennedy to report for work on Sunday at 1, and main-
tained that the assigned starting time for Sunday work has
been 12 30 for the almost 11 years he has been doing this
work He made a notation on the September 21 timesheet,
however, that Browning, who arrived at about 1 30, was a
half hour late O'Dea also testified that the visiting period
is chaotic as the visitors, most of whom are on public assis-
tance, come by bus and arrive in numbers between 12 30
and 2, with a few waiting when the school opens at 12 30,
and that some of the parents and children have serious
emotional disturbances and addictions, there are occasion-
al fights, and, as the visits have to be carefully supervised,
it generally requires two persons to handle the visitors in
addition to the clerical employee to handle the records
D The Respondents Alleged Discrimination
1 Events of Sunday, September 21
Browning, who was the only social worker in the intake
department, worked Monday through Friday He testified
that his hours on this job were 9 to 5 but were flexible, and
that it was common practice to come some time between 9
and 9 30 and to leave when the day's work was completed
Browning also worked at times, until September 21, on the
Sunday visiting program with O'Dea and with Burns, a
clerical employee
Browning testified that on Sunday, September 21, the
first Sunday after the election, he was ready to leave for
work when he received a personal telephone call which
continued for about 30 minutes, that when it concluded he
called the Mission, but was told by the operator who an-
swered the telephone that 0 Dea was on the premises but
not at a telephone, that he asked her to give O'Dea the
message that he would be there about 1 30, and that he did
arrive about 1 30 and, as he generally started work on Sun-
days at 1, he was a half hour late Browning also testified
that the time that the visitors first arrived varied He admit
ted he did not know when they arrived on September 21
because he was not present when they came
O'Dea testified that he opened up at 12 30 on September
21 with Roth, who, as a clerical, is not involved in the
visiting, that the situation was particularly chaotic that
Sunday because, among other problems, one visiting moth-
er was so intoxicated he had to call the security people
about her, that Browning arrived after that, about 1 40,
said he was late because his car broke down, and said noth-
ing about being delayed by a telephone call, that he told
Browning to take care of the people at the desk while he
handled the drunk parent, who was accusing a boy of steal-
ing her purse while others maintained the boy could not
have done so, and the police had to be called, and that he
was tied up by this situation in the security office until
about 7 p in 0 Dea testified that he telephoned Browning
that afternoon from the security office, said he would be
tied up for quite a while but if things got too hectic Brown
ing should call and he would come and help, and that he
also told Browning to sign in for that day as of the time of
arrival
Browning testified that O'Dea, who was in the security
office with a visiting mother, did call him on Sunday af-
ternoon at the visiting desk "and he said he wanted me to
sign in that day from 12 30 until 6 00, because I had ar-
rived half an hour late I was a little upset by it but, you
know, I said, you know, okay, I will talk to you later, and
I hung up the phone That day I left the Agency at some-
where between 5 00 and 5 15 I stayed to pick up the tables
and chairs in the auditorium A mother had left a package
for one of her kids, which I took over to the cottage and
delivered to the child In addition, the Security Department
did not come right in at 4 30 to lock up the auditorium So
I wound up staying to about 5 00 or 5 15 I did not go back
and change my time sheet because I was thinking if there
were any problems I could talk to Mr 0 Dea about it the
following day
O Dea admitted, on cross-examination, that he made a
notation on the September 21 timesheet that Browning
came a half hour late and stayed a half hour late to make it
up, that he never at any other time made such a notation
about Browning on a timesheet, and that there are no
other records that would show whether employees came
late or left early
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 Events immediately after September 21
Browning testified that, as soon as he came in on Mon-
day, September 22, O'Dea asked to see him, that he asked
if he could get some coffee first and O'Dea agreed, that
when he came back he saw the Sunday timesheet on
O'Dea's desk, that O'Dea asked if he had understood what
O'Dea said about signing in the day before, that "'I said
yes I did, but I didn't get away until 5 15 So since I-you
know, since I worked at least a half hour late, I didn't think
that there was any need to sign in half an hour late ' And
he said, `Well, I am afraid that I can't have you working
Sunday visiting any more' And I said, `Well, didn't
the operator tell you that-didn't you get the operator's
message that I was going to be in at 1 30?' And he said,
`No, that it doesn't matter because you are always calling
in late' and I said, Well, that is not really the way I see it
I don't recall calling in late any time in the last two
months, at least' And he said that he disagreed with that-
that is not the way he said it He said that he was tired of
taking care of the first batch of visitors himself I said at
some point, `Well, at what time does Mary usually get
there?' And he said 12 45 I said, Well, what time do vis-
itors usually get there?' And he said 12 30 And I said,
`Well, that is not the way I see it' At some point I said, `I
think that you are really angry and you are just taking it
out on me' He denied that "
Browning testified further that, in the course of this con-
versation, O'Dea "mentioned to me that, he said, `You
know, we usually get 25 referrals at CRU on Fridays, but
this week we only got six"', that, when he asked why
O'Dea was telling him this, O'Dea "said, Well, because
you are involved in the Intake and, you know, you have
been covering for me at CRU And then he said, `You
know, I got a formal complaint about you at CRU on
Friday and I was concerned"' There was further discus-
sion of this complaint, which related to case records not
properly reported on computer cards Browning testified
that he said "I really tried to do my best at covering that
responsibility while you were on vacation, and I don't re-
member not filling out the computer cards, but if that is
actually the case I feel very badly about that "
Browning testified that O'Dea then "said, `From now on
things are really going to shape up around here, tighten up
around here, and from now on I am going to run this de-
partment like a business office and people will be in from
exactly 9 00 o'clock and if they are not then their pay
checks will be docked' He pointed to a schedule on the
wall that was a schedule for supervisory sessions, and
he said, you know, `You are going to report to supervision
on a weekly basis at your appointed time' And, again, you
know, at about this time I said, `I think that you are really
angry at me and you are just taking it out on me' And he
said, `No, I am not' And he denied it At about this time I
believe I said, `Well, you know I don't think that we really
have anything further to talk about' And he said, No, I
guess not' And I left the office "
Kennedy testified that, after the election, O'Dea told her
individually and "in a unit meeting" that "we were to sign
in from 9 00 to 5 00 and that we would be docked if we
were late " Browning made no reference to such a meeting
Kennedy admitted, on cross-examination, that she came
late a few times before the election and a few times after
the election, and that she was never docked for lateness
O'Dea testified, however, that Kennedy has never been late
on Sundays since she assumed those duties Roth, who
worked only on Sundays, testified that she has been late a
few times in the 10 years of her employment, that she did
not think it was ever as much as an hour, and that she was
generally punctual
O'Dea testified that he checked the Sunday timesheet on
Monday morning, September 22, and found that Browning
signed in from 12 to 6 on Sunday, that he did not speak to
Browning about it on Monday, but did have a conversa-
tion with Browning on Tuesday about the late arrival on
Sunday and the failure to sign in as directed, that "I told
him at that point that I had sort of had it with him coming
in late, that this certainly was not the first time he had
come in late and, in fact, he came in about 50 per cent of
the time late', that Browning became very angry, and ac-
cused him of being angry with Browning, that he referred
to the timesheets showing Browning late weekdays and
Sundays, but Browning became more angry, vulgar in his
language, and repeatedly asserted that O'Dea was angry
with him, and that "I then told him that I didn't see any
point in trying to continue the conversation, and that I
would have to get somebody else to try to do the Sunday
visiting,' and Browning responded with more vulgarity
and walked out of the office
O Dea denied that he said, on or about September 23,
that he was going to run the intake department like a busi-
ness office or threatened to dock employees for being late
He also denied that he enforced the reporting time require-
ments more strictly after September 23 as to any employ-
ees, and that he ever docked any employee for coming late
Both Browning and Kennedy admitted they came late dur
mg the period in question and were never docked in pay
There is no indication that they were disciplined in any
other way therefor
3 Events in October
Browning testified that he had no further conversation
with O'Dea about the Sunday work after he was taken off
that assignment until on or about October 15, when he
asked to speak with O'Dea, who agreed and came into his
office, that "I asked him if I was going to be working on
Sunday visiting any more, you know, what was the deal?'
He said, Well, I don't even know if I am going to be work-
ing on Sunday visiting any more, they are planning to reor-
ganize the program and at this point, you know, I don t
know what the plan is, and you probably know as much as
I do' So I said, `Well, I think that I ought to tell you that
I am going to go to the National Labor Relations Board
about this, because I feel like my rights have been infringed
upon' And he basically said, `Well, I guess if that is what
you are going to do, that is what you are going to do' And
you know, then again we had about half an hour, 45 min-
ute meeting, discussing various things back and forth I
don't remember saying too much I remember him at some
point saying `Well, I am not really too worried about it
because the worse that the Mission can do is put the whole
MISSION OF THE IMMACULATE VIRGIN 833
thing on to me and fire me And he in responding to me
saying that I was going to the National Labor Relations
Board, he said, `I don't think that it is going to do much
good, since the program is going to be reorganized, as far
as I understand it "
Browning also testified that O'Dea told him later that
same day that there had been some discussion with CRU
about putting in writing the complaint that O'Dea had
mentioned in an earlier conversation, but O'Dea had de-
cided not to do so, that the next day he got a message to
call O'Dea at the Respondent's city office, that, when he
did, O'Dea "said that since we were being upright and hon-
est with each other about, you know, our various actions,
he said that he felt that it was only fair to tell me that
because I had decided to take the action that I had told
him about the day before, he was going to have to cover
himself, he said, in order to kind of work the whole thing
out with CRU, and that he was going to have to follow
through on that complaint He said, just so there was no
misunderstanding and so on," he had requested that a
meeting be arranged the next morning with CRU officers,
Browning, and himself Browning testified that he protest-
ed several times during this conversation that he did not
see "what this has to do with Sunday visiting", that O'Dea
"said that `I have an interest in protecting myself
obviously my position is going to be that your lateness and
somewhat shoddy performance made you an ineffective or
unsatisfactory worker' I said, `Well are you talking about
Sunday or are you talking about all the time9' And he said,
`No, I am talking about Sundays' And I said, `Well, I still
don't understand what Sunday visiting has to do with, you
know, with CRU' But I said, `Let me call you back' So I
called him back in a few minutes and I told him I would be
at the meeting " Browning testified that he had earlier dis-
cussed this matter with someone at CRU, who said there
was a problem but CRU had worked it out There is no
testimony as to what occurred at the meeting Browning
filed his charge with the Board on October 20
O'Dea testified that, when Browning said he was going
to the Board, O'Dea replied that that was Browning's pre-
rogative, as Browning's testimony also indicates, and that
he, O'Dea, did not feel he had done anything wrong He
denied that he said he had an interest in protecting himself
He also testified that the CRU matter had no connection
with the Sunday work program
4 Browning's lateness record
When the General Counsel asked if Browning had ever
been warned previous to September 21 about being late, he
answered, "I have, you know, a vague memory of some
time, several months before him possibly saying something
like, you know, could I try to get in a little earlier, and I do
remember him saying that at one point to Mary, again,
several months before " At a later point, Browning testi-
fied, in apparent justification for coming late and leaving
early, that he usually left on Sundays at 4 30 but some-
times "a little after," and that he sometimes worked during
the week after 5 but could not even approximate how often
` only to say several " Asked if he was ever warned about
coming in late during the week, Browning answered, "I
can t remember exactly, but over-I don't know, two and a
half years that I have worked in the Intake Department
there were times when, you know, something would be said
about the hours and coming in on time I don't remember
exact times or, you know, exactly what was said, but I
remember that there were-I couldn't give you a number
It was a low number, I'd say maybe three over a period of
two and a half years'
Browning asserted that a change was made in the report-
ing practice as he was at that time signing in, but then
admitted he did this before at times, that he occasionally
failed to do so after September 23 when he forgot, that this
could have occurred as frequently as once or twice a week,
he could not recall exactly, that he could not recall if on
about 11 days he failed to sign in or out, but would not
deny it, that at times he signed in but not out, but did not
recall how often, and that, as to specific incidents of late-
ness, he did not recall but would not deny that he was
possibly as late as 2 30
Browning admitted, on cross-examination, that he has
come to work at 11 and "one day, at least," at 12, but
stated that he did not remember "specifically" coming at
2 30 When asked if, as alleged in the complaint, the Re-
spondent enforced the reporting time requirements more
strictly after September 23, Browning asserted that he did
not know what counsel meant by "enforced" and then
what was meant by "requirements " Browning finally ad-
mitted he came late after September 22 but was never
docked in pay therefor Kennedy also testified that she
came late and her pay was not docked
O'Dea testified that he checked "Browning's sign in after
September 23' , that Browning on about 1 I or 12 occasions
did not enter any starting or quitting time, and on a num-
ber of other occasions signed in but not out, and that
Browning, who worked a 9-to-5 shift, came late on occa-
sions ranging from 10 30 a in to 2 30 p in Browning de-
scribed his 9-to-5 schedule as "flexible "
Concluding Findings
I found Browning an evasive, hesitant, and unconvinc-
ing witness While I also found O'Dea a self-contradictory
and unimpressive witness, the General Counsel has the
burden of establishing the alleged unfair labor practices by
a preponderance of the evidence
The record shows that Browning was engaged in union
activity for several months before the election, and that,
about a month before the election, Browning became one
of a six-man union organizing committee, the Respondent
was so informed, and he and another committee member
made published remarks critical of the Respondents prac-
tices There is no allegation, however, of unlawful conduct
by the Respondent prior to the Board election, which was
held pursuant to a petition filed by the Respondent, and
which the Union lost
The General Counsel maintains that the Respondent, af-
ter the election, deprived Browning of Sunday work be-
cause of his union and concerted activity, and more strictly
enforced the reporting time requirements for its employees
in the intake department in order to discourage union and
other concerted activities The General Counsel also argues
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent's claim, that Browning was removed
from Sunday work because of lateness in coming to work,
was pretextual, and that the Respondent's denial as to the
stricter enforcing of the reporting time requirements should
not be credited
I find, however, that the record does not establish that
the Respondent had animus against the Union generally or
against Browning because of his union activities Browning
was on the union organizing committee, but so also were
several other employees Browning was quoted in the news-
paper article, but so also was another committee member
And Browning's conversation with O'Dea about the arti-
cle, which took place only because of Browning's persistent
attempts to engage O'Dea in conversation, contained no
reference by O'Dea to the Union Moreover, the Respon-
dent, while discontinuing Browning's Sunday assignment,
which was, I find upon the entire record, a temporary one,
retained him in his Monday through Friday job
As the General Counsel urges, the record also shows that
the Respondent was very lax about employees reporting
late and leaving early, and had tolerated such conduct by
Browning and others for years Browning's lateness, how-
ever, as he reluctantly admitted, was particularly frequent
and on occasions for periods of hours The record also
shows that O'Dea had warned Browning more than once
about excessive lateness, that O'Dea was sufficiently an-
noyed with Browning's lateness on Sunday, September 21,
which proved to be a very difficult day, to direct Browning
to change his signing in to reflect being late, and that he
resented Browning having ignored this directive Neverthe-
less, when Browning asked, about 2 weeks after being tak-
en off Sunday work, if he might resume it, O'Dea did not
reject the idea, but answered only that he did not know,
and that he might not be doing this work himself as he
understood the program was about to be reorganized
I am not convinced, on the evidence in its entirety, that
the Respondent took Browning off Sunday work on or
about September 23 because of his union or concerted ac-
tivity rather than because of his frequent lateness in gener-
al, his lateness in particular on Sunday, September 21, and
his failure to sign in on that day as directed by 0 Dea I am
likewise not convinced that the evidence shows that the
Respondent, since on or about September 23, more strictly
enforced the reporting time requirements for its employees
in the intake department The General Counsel's witnesses
employed in the intake department admitted they came
late at times after that date and were never docked in pay
or otherwise disciplined therefor
In conclusion, therefore, I find, on the basis of the fore-
going and the record as a whole, that the General Counsel
has failed to establish, by a preponderance of credible and
probative evidence, that the Respondent has engaged in
unfair labor practices violative of Section 8(a)(1) and (3) of
the Act as alleged in the complaint 3 I shall, therefore, rec
ommend that the complaint be dismissed in its entirety
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following
CONCLUSIONS OF LAW
1 Mission of the Immaculate Virgin for the Protection
of Homeless and Destitute Children, Inc, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act
2 District Council 1707, Community and Social Agency
Employees Union, American Federation of State, County
and Municipal Employees, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act
3 The General Counsel has failed to establish by a pre-
ponderance of the evidence that the Respondent has, as
alleged in the complaint, engaged in unfair labor practices
violative of Section 8(a)(1) and (3) of the Act
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I issue the following recommended
ORDER4
It is ordered that the complaint herein shall be, and it
hereby is, dismissed in its entirety
3 South Carolina Industries Inc 181 NLRB 1031 (1970) Gilbert Interna
tional Inc 213 NLRB 538 (1974)
4 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
10248 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