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

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