Federal Management Co., Inc.

FEDERAL MANAGEMENT CO., INC. Federal Management Co., Inc. and Vincent Morales and Julio Torres. Cases I-CA-18400(l) and I- CA- 18400(2) September 24, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On March 31, 1982, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed a 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 briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The complaint in this case alleges, inter alia, that: On a date uncertain in late September of 1980 or early October of 1980, Respondent, acting through Joseph McVay, at its 362 Rindge Avenue, Cambridge, Massachusetts facility, told an employee that Respondent would be keeping a file on him because of his support and assistance to the Union. At the hearing Julio Torres testified that, at a meeting in late August or September 1980, Re- spondent's operations manager, Joseph McVay, told employees that he was going to begin keeping files on employees to use against them. The Ad- ministrative Law Judge found that McVay institut- ed this new filing system in reprisal for the employ- ees' vote to be represented by the Union. Howev- er, the Administrative Law Judge then observed that, because Torres' testimony was unclear as to the exact timing of McVay's announcement and the date of the announcement was not otherwise clari- fied, the General Counsel had not established that the statement had been made within 6 months of the filing of the first charge in this case on March 5, 1981. He therefore dismissed this allegation in the complaint. Section 10(b) of the Act provides, in relevant part, that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made." Sec- tion 10(b) is a statute of limitations and is not juris- 264 NLRB No. 23 dictional in nature. It is an affirmative defense and, if not timely raised, is waived. McKesson Drug Company, 257 NLRB 468, 1 (1981). Here Respond- ent did not raise the 10(b) issue in its pleadings or at the hearing. The Administrative Law Judge raised the issue, sua sponte. Since Respondent had waived the defense by not raising it, the Adminis- trative Law Judge's action was in error and we re- verse him on this point and conclude that McVay's statement violated Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Federal Management Co., Inc., Cambridge, Massa- chusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling employees that it will begin keeping files on them in retaliation for their voting to be represented by a union. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative actions which the Board finds will effectuate the policies of the Act: (a) Post at its 364 Rindge Avenue, Cambridge, Massachusetts, place of business copies of the at- tached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 1, after being duly signed by Re- spondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent taken to comply here- with. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the w'ords in the notice reading "Posted by Order of the National Labor Relations Board" shall read 'Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 107 IDECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONA. LABOR REL.ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT tell employees that we will begin keeping files on them for the purpose of retaliating against them for their vote in favor of union representation. WE WIU.L NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights as guaranteed in Section 7 of the Act. FEDERAL MANAGEMENT CO., INC. DECISION STATEMENT OF IHE CASE DAVID S. DAVIDSON, Administrative Law Judge: The charges in this case were filed on March 5, 1981, by Vin- cent Morales and Julio Torres, and the complaint issued on April 17, 1981. The complaint alleges that Respond- ent violated Section 8(a)(l) and (3) of the Act by dis- charging Torres and Morales and independently violated Section 8(a)(1) of the Act by coercive statements to em- ployees. A hearing was held before me in Boston, Massachu- setts, on January 6 and 7, 1982. The General Counsel and Respondent filed post-hearing briefs. I Upon the entire record in this case including my ob- servation of the witnesses and their demeanor, I make the following: I After close of the hearing, and in accord with arrangements made at the hearing, counsel for the General Counsel moved for the introduction of G.C. Exhs. 12 through 21, which were taken from Respondent's per- sonnel files. Respondent has filed no objection. The General Counsel's motion is granted and the exhibits have been received. FINDINGS AND CONCI.USIONS 1. THE BUSINESS OF RESPONDENT Respondent manages residential properties in Boston and Cambridge, Massachusetts. Respondent has annual gross revenues in excess of $500,000 and receives goods valued in excess of $300,000 from points outside Massa- chusetts. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATION INVOI.VED District 40, Community, Educational and Social Agency Employees (herein called the Union), is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent manages a group of apartments known as the Fresh Pond Apartments in Cambridge, Massachu- setts, where Joseph McVay is operations manager and Laura Ensler2 is assistant manager. In May 1980, the Union began an organizing campaign among Respond- ent's maintenance employees at the Fresh Pond Apart- ments, and in early August 1980 an election was held which resulted in a vote of eight for the Union and none against. Vincent Morales made the initial contact between the employees and the Union and later held organizing meet- ings in his apartment at Fresh Pond. Julio Torres attend- ed the union meetings and spoke to all of the employees at one time or another in favor of the Union. Torres also served as union observer at the election. After the elec- tion, a negotiating committee was formed consisting of Julio Torres, Wilfredo Morales, and Steve Morris. Torres attended three or four negotiating committee meetings with Respondent's management before his dis- charge in October 1980. In addition, he served as shop steward for the Union and represented Wilfredo Morales in a grievance. After Torres was discharged, Vincent Morales replaced him on the negotiating committee. There is no evidence to show that Respondent was aware of the preelection union activities of Vincent Mo- rales or Torres, but Respondent was aware of their other union activities. Before the election, Respondent held two employee meetings concerning the election. At the first meeting, McVay told employees, among other things, that, if the Union came in, Respondent would lay off its employees and hire a private cleaning company to do the work. At the second meeting, on the day before the election, McVay and Respondent's vice president, Timmons, told employees that the Union could do nothing for them and that if the Teamsters Union went on strike the mainte- 2 As exhibits from Respondent's files make clear, Ensler's first name is consistently misspelled in the transcript. 108 FEDERAL MANAGEMENT CO., INC. nance employees would have to go on strike also causing everyone to lose money.3 B. The Promotion of Laura Ensler and Alleged Independent Violations of Section 8(a)(l) Before August 7, Laura Ensler served as a secretary in Respondent's rental office at the Fresh Pond Apart- ments. On August 7 she was promoted to assistant man- ager. In that capacity, Ensler had authority to give orders to maintenance men and porters. Before her pro- motion, Ensler had maintained comradely relations with the maintenance men and often talked and joked with them at her desk before regular working hours and during breaks. There was substantial give and take be- tween them, and vulgar language was commonly used. After Ensler became assistant manager, she complained to McVay that she was having trouble establishing her authority with the maintenance personnel and that the maintenance men were not following her directions. As a result McVay called a meeting of all the maintenance employees in which he spoke to them about Ensler's pro- motion and told them that they were expected to follow her directions. On September 18, 1980, a memo was given to some or all of the employees confirming that employees were to "respond to her direction quickly and efficiently, without argument or lack of respect." At a meeting with maintenance employees in late August or early September, possibly the same meeting, McVay also told the maintenance employees that Re- spondent was going to start to keep a file on them "so that he could use it against" them. McVay said that he had not been keeping records up until then but was going to start doing so because they were leaving early and things of that nature. 4 The General Counsel contends that McVay announced the new policy of keeping files in reprisal for the em- ployees' vote to be represented by the Union. As de- scribed in Torres' uncontradicted testimony and in the context of McVay's earlier antiunion statements, that purpose is clear. However, as the timing of McVay's an- nouncement is left vague by Torres' testimony and not otherwise clarified, I find that it has not been established that the announcement came within the 6-month period preceding the filing of the charges. Accordingly, I base no finding of a violation of the Act on it. After McVay met with the maintenance employees about Ensler's promotion, she continued to complain to him that she was having difficulty establishing her au- thority with the maintenance employees and gaining their respect. On September 30, McVay held a second meeting with the maintenance employees. McVay re- minded the maintenance employees that Ensler was the assistant manager and told them that they were to re- spond to her direction quickly and efficiently and with the respect that her position required. He told the em- 3 These findings are based on the uncontradicted testimony of Torres. The statements made by McVay and Timmons at these meetings are not alleged as independent violations of Sec 8(a)(I) of the Act. and no find- ing of violation is based on them as both meetings took place more than 6 months before the charges were filed 4 Torres' testimony concerning McVay's statements about keeping files was uncontradicted. ployees that when Ensler gave them an order to clean an apartment or to perform a specific task it should be done without argument or excuse and that they should report back to Ensler that it had been done and done correctly. McVay also told the maintenance men that vulgar or bad language was not to be used in the rental office where other people or tenants could hear it and that he would not tolerate it.5 Shortly after this meeting on October 2. McVay ad- dressed a memo to the maintenance personnel in which he stated, among other things: It was pointed out to all of you, that Miss Ensler is now the Assistant Manager, and acts in that capac- ity in the absence of the Manager with complete au- thority. She will be treated with respect and atti- tude that her position demands. At the September 30 meeting there were also other items on the agenda pertaining to specific work tasks. work hours, building assignments, response to beeper calls, and so forth. During the discussion McVay said that he did not want any "fucking" union telling him how to run his business.6 The General Counsel contends that the latter state- ment violated the Act because it constitutes an anticipa- tory refusal to bargain, citing East Belden Corporation, 239 NLRB 776, 794 (1978). However here, unlike that case, an election had already taken place and Respondent was bargaining with the Union. While this remark may reenforce other evidence showing McVay's hostility to the Union, it did not independently violate Section 8(a)(l) of the Act. C. The Discharge of Torres Julio Torres started to work for Respondent as a main- tenance man in July 1979. Before the summer of 1980 McVay talked to Torres about becoming the immediate supervisor of the maintenance employees and about man- aging another property for Respondent in Lawrence, Massachusetts. Torres declined both jobs. Torres had never been disciplined by Respondent, although he was included in the group to which McVay spoke after Ensler's complaints about her treatment. On October 30, 1980, Torres was assigned some emer- gency work orders. These were high priority work orders which had to be completed during the same workday and which required Torres to replace locks on apartments from which the occupants had been evicted. On that day he was also carrying the beeper with which maintenance men were signaled when their services were needed. Torres testified that, when working on emergen- cy orders, he was not required to answer the beeper. 5 These findings are based on the credited testimony of McVay and Ensler Although Wiltredo Morales initially testified that MlcVay said nothing at this meeting about using bad language, his testimony, on cross- examination ultimately corroborated McVay in this regard 8 Torres so testified without contradiction Although Torres recalled only one meeting concerning Ensler and seemed generally to have a hazy recollection of the timing of the events before the day of his discharge, there is no reason to discredit his testimony as to this statement which both McVay and Ensler were in a position to contradict. 109 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, he conceded that, normally when the beeper sounded, an employee called the office to find out what had to be done, and Torres acknowledged that he was to follow orders from either McVay or Ensler no matter what he was working on. That morning before starting work, Torres asked Ensler to see a number of personnel files following advice from a union representative which Torres had so- licited after McVay's earlier statements about keeping files. Ensler told him that she knew nothing about giving him any files and would ask McVay about it.7 At or about 10 o'clock in the morning, Torres was at work on the 22d floor of one of the buildings when his beeper sounded. Torres walked down to the 13th floor where there was a telephone and called the office. Ensler told him that she wanted him to come down and unload a truck. He explained to her that he was doing emergen- cy work and said that there were others doing lower pri- ority work who could unload the truck. She repeated her instruction, and Torres replied that he was not the shipping and receiving person. Torres told her that he would see her tomorrow and hung up.8 After her conversation with Torres, Ensler found some others to unload the truck. It was necessary to do so because it was the customer's obligation to unload it, and the driver would not wait long. Approximately 15 to 20 minutes after Ensler first called Torres, he went to the first floor and looked for the truck which was nowhere to be seen. He then went to the rental office.9 As he entered the office, Torres asked Supervisor Julio Cruze where the truck was. Cruze told him that the truck had already left. Although Ensler was not visible in the room, Torres said loudly and angrily, "Laura, you're an a-s-s-h-o-l-e" spelling out the word. Cruze asked him what he had said, and he re- peated his statement one or two more times. He then left the office and returned to work. Torres did not see Ensler while he was in the office, but assumed correctly that she was in her office which was enclosed and at one side of the rental office. While Torres was in the office, Cruze was standing in front of 7 Ensler so testified. Torres placed this conversation before the Sep- tember 30 meeting and testified that he construed a reference by McVay to the men at that meeting about giving Ensler a hard time as a reference to his request for the files. I have credited Ensler. Apart from the fact that McVay was clearly referring to Ensler's treatment by the men in general, Ensler had nothing to gain by placing Torres' request on the day of his discharge, and I believe her recollection was more accurate. a Torres initially testified that he said "see you later" rather than "to- morrow," as Ensler testified However, in an affidavit he indicated uncer- tainty as to which he said, and, on October 31, McVay wrote in a memo. a copy of which was given Torres, that Torres had conceded in an inter- view that he told Ensler he would unload the truck "tomorrow" Wheth- er or not Torres read the copy McVay gave him, I find the affidavit and the memo which Torres had the opportunity to challenge corroborate Ensler's version, and I do not credit Torres a Torres testified that immediately after speaking to Ensler he took the elevator to the first floor taking him perhaps 7 or 8 minutes. Ensler testi- fied that it was about 45 minutes after their conversation when she heard Torres enter the office. At an unemployment compensation hearing she estimated the time at 20 to 30 minutes. It is clear that Torres did not arrive until after the truck was gone, and, although he testified that he proceeded to the first floor immediately, his own estimate of 7 or 8 min- utes makes it clear that he did not rush. On the other hand, Ensler's testi- mony was clearly based on a rough estimate and also appears exaggerat- ed. the secretary's desk behind a counter, and the secretary, Lucy Echivari, was seated at her desk. t' After Torres left the office, Ensler went directly into McVay's office which was next to hers and told McVay what had happened. McVay had not heard the incident as he had been talking on the telephone with his door closed. McVay did nothing further about it that day, but the next morning, at or about 9:30, he called Torres into his office. He asked Torres a series of questions based on Ensler's report of the previous day, and Torres replied affirmatively to each of them. After sending Torres back to work, McVay questioned Cruze and the secretary, Lucy Echivari, about the incident. At that point McVay decided to terminate Torres and prepared a letter to Torres giving the reasons for the discharge. He then went to Respondent's Boston office to obtain a final pay- check for Torres. After he obtained the check, McVay returned to the rental office and called Torres in a second time. He gave Torres the check and the letter which read as follows: This letter is to confirm our conversation on this date regarding several incidents which took place on Thursday, October 30, 1980. On Friday morning, I asked you to come into my office to discuss these incidents. I asked you if a conversation took place between you and the As- sistant Manager (Miss Laura Ensler) on the phone regarding a request for you to assist in unloading a truck with supplies. You answered "yes." I then asked you if you replied to that request in words similar to: "This is not the shipping and receiving Dept., and I will do it tomorrow." You answered "yes" I then asked you if you called Miss Ensler an asshole three times by spelling it out, you replied "yes." This took place in front of several witnesses in the office at 364 Rindge Avenue. This type of behavior and total insubordination will not be tolerated, therefore, you are hereby ter- minated. Torres handed his keys over to McVay and left the office. He did not appear to read the letter before he left. I 'O Torres and Ensler testified to this incident which Ensler did not see but heard from her office to which the door was open Their testimony differed only as to whether Torres repeated his statement a total of two or three times, whether he walked past her door while in the office, and whether his tone had been joking or angry Of these, the first two differ- ences are not material, but the last is, and I hase credited Ensler. Torres testified that he spoke in a "kidding" manner in a normal tone of voice. Ensler testified that his tone was angry. No other witness was called. Torres never explained what his statement swas ittended to convey, but the circumstances suggest hostility, rather than amusement, at Ensler either for having the work done before he got there or for having called him in the first place The very form used by Torres, a statement ad- dressed to a person not visible but beliered to be in the next room, indi- cates not a private joke with Cruze, but a rebuke meant for Ensler's ears. " These findings are based on the credited testimony of McVay. Torres testified that he met with McVay in his )ffilce only once that morning, at which time McVay both questioned him about the previous day and handed him the memo and final check which had been previous- ly prepared. From the content of the memo it is clear that McVay's rec- ollection was more accurate than Torres'. 110O FEDERAL MANAGEMENT CO., INC. A status change form was filled out by McVay and placed in Torres' personnel file stating that he had been terminated "for disrespectful behavior and insubordina- tion." The General Counsel contends that Torres was dis- charged because of his union activities. Respondent con- tends that he was discharged for legitimate business rea- sons. Torres was clearly one of the leading union activists. Apart from his preelection activities of which Respond- ent may not have known, Torres assumed a visible lead- ership role at and after the election which identified him as a union spokesman to Respondent. Although there is no evidence of a widespread campaign against the Union by Respondent, there is evidence that McVay expressed Respondent's union animus to employees on more than one occasion. Before the election, McVay threatened to replace all employees with an outside contractor if the Union won. Following the election, he told employees he would start keeping records to use against them and expressed his hostility to having the Union tell him how to run his business. The General Counsel contends that these circum- stances rather than Torres' alleged misconduct explain Torres' discharge because analysis of the circumstances surrounding his discharge shows that Torres did not refuse to perform an assignment, because Torres was never warned for using profanity before his discharge, because the use of profanity was generally tolerated, be- cause no other employee was discharged for giving Ensler a difficult time, and because Respondent tolerated equally serious conduct on the part of other experienced employees like Torres. With respect to Torres' response to Ensler's instruc- tion to unload the truck, the facts indicate that, whatever Torres' intent in going to the first floor of the building after speaking to Ensler, he gave her sufficient reason to believe after their conversation that he had no intention of unloading the truck and that he refused to do so. He did not go to the first floor so quickly as to negate the impression he left, and indeed took sufficient time so that Ensler not only found others to unload the truck but they managed to complete the job before he appeared. In addition, while his visit to the office might have been used to correct the impression left by the telephone call, it was not. His vulgar outburst was never explained either at the time or at the hearing. If he was annoyed because she had others do the work after telling him to do it, that was never expressed to her. Rather, after his closing statement to her on the phone that he would see her tomorrow, the remarks addressed to the not visible Ensler were more likely to be construed as a continu- ation of his argument with her for having called him in the first place and a further rejection of her authority. I find that Respondent had cause to conclude that Torres had refused to unload the truck after Ensler told him to do so. With respect to the use of profanity, there was consid- erable testimony as to the use of profanity by mainte- nance employees in their conversations with Ensler both before and after she became assistant manager. However, there was evidence that McVay had sought to put a stop to the practice, particularly in the rental office, and there was testimony that the customary use did not entail hos- tile name calling. Indeed, employee Wilfredo Morales testified that he called Ensler "asshole once in a serious way" and on that occasion went back to her and apolo- gized. Otherwise he used the term only jokingly with her. Moreover, McVay not only told the maintenance men that he would no longer tolerate bad language in the rental office, but at two meetings and through two memos he told them that Ensler was to be treated with the respect and attitude that her position demanded. Torres' outburst was a clear violation of that instruction. While no warning may have been directed at Torres in- dividually before his discharge, he was put on clear notice along with the others of what was expected of him. Although he appears to have been the only employ- ee discharged for his treatment of Ensler, there is no evi- dence that any other employee similarly challenged her authority after the September 30 meeting. The General Counsel seeks to establish that Torres was treated differently from other employees by distin- guishing the discipline of recently hired employees from its treatment of employees like Torres who worked a year or more, a relatively long period in a work force characterized by high turnover. However, accepting the General Counsel's contention that Respondent was quicker to terminate recent hires than those with longer service, I do not believe the records taken from Re- spondent's personnel files make the case that equally or more serious misconduct was tolerated in other employ- ees with service similar to that of Torres. To be sure em- ployees were warned prior to discharge for failure to complete assignments, poor workmanship, absenteeism, and loud parties in their apartments in Respondent's buildings. However, no employee was warned for refusal to perform an assignment or insubordination. 2 To con- clude that Torres' conduct was no more serious than the conduct of those who were warned requires a substitu- tion of judgment in an area where reasonable men may well differ. The difference in treatment of Torres from the treatment of other employees does not lead to the conclusion that Torres would not have been discharged for the Ensler incident absent his union activities. In sum, while the evidence of Torres' union activities and Respondent's hostility to the Union raises some sus- picion, the evidence does not warrant the conclusion that Torres' discharge was discriminatory. D. The Discharge of Vincent .orales Vincent Morales worked as a porter for Respondent from August 1978 to February 25, 1981. He started at a wage of $3.25 an hour and received one raise to $3.75 an hour in 1980. Sometime in January 1981, Morales asked McVay for a raise. McVay replied that he could not do *2 While there was testimony that Wilfredo Morales had refused to complete an assignment and was not disciplined, it is clear from his testi- mon) that he was excused from completing the work after he com- plained to his supervisor. His testimony does not establish that insubordi- nation was tolerated by Respondent. III DECISIONS OF NATIONAL LABOR RELATIONS BOARD anything because the Union was still there and they had not completed negotiations. On the morning of February 25, 1981, it was raining hard, and the mother of Morales' daughter asked him if he could drive the girl to the day care center she attend- ed because of the rain. He agreed to do so. Seeing no one around from whom to ask permission, he left, took the child to the day care center, and returned to his job. He had punched in that morning at 8 o'clock, and it was about 8:20 when he left. He returned immediately and es- timated that it took him no more than 10 minutes. He did not punch out on the timeclock when he left. According to Morales, there were no supervisors present at that time of the morning, and he knew that the office staff did not arrive until 8:30. He therefore concluded that he should go without permission since his absence would be brief. He testified that he normally obtained permission when he was to be gone for longer periods and that this was the first time that he left Respondent's premises during working time without permission. As Morales left the driveway in his car, Laura Ensler was walking to the building from her bus and saw Mo- rales leaving. When Ensler entered the building, she went directly to the maintenance shop and asked Mo- rales' supervisor, Tom Barber, if he knew where Morales was going. He did not. Ensler saw Morales back at the building 10 or 15 minutes later. She did not speak to him at that time about his absence, but she reported the inci- dent to McVay, telling him that Morales had not punched out and that there was no indication that he re- ceived permission from anyone to leave the premises. According to McVay, he then looked for Morales but could not find him. He next asked other porters and Barber if they had seen Morales to which they replied negatively. McVay testified that he did not know what time Morales came back to work. Without speaking to Morales, McVay decided to ter- minate him and went to Respondent's Boston office to obtain a final check for him. When Morales returned from lunch, McVay called him into his office. McVay asked him if he had left the property in the morning, and Morales said that he had, explaining that it was raining very hard and that he had to take his daughter to the day care center. He added that he was only gone for 10 minutes. McVay told Morales that he was not supposed to be outside during working hours without permission and that he had no alternative but to terminate him. The change of status form in Morales' file states: "Mr. Mo- rales was terminated on 2/25/81 because after repeated warnings, Mr. Morales failed to request permission or notify his superiors that he was leaving work. On 2/25/81 Mr. Morales was observed by the assistant man- ager leaving the property by car. This was approximate- ly 8:30 a.m. Mr. Morales started to work on 2/25/81 at 8 a.m. and never indicated that he was leaving." There is no question that employees generally knew that they were not to leave the premises during working time without permission. Indeed Torres testified that McVay mentioned this requirement at the September 30 meeting of maintenance men, and both he and Wilfredo Morales appeared to believe that McVay's permission was generally required before an employee could leave the premises during working hours. Wilfredo Morales testified that on some occasions, notwithstanding that belief, he left the premises without receiving permission and that he had been told by McVay that as long as he got his work orders done he could "goof off." 13 Vincent Morales received one warning in July 1980 for drinking beer during his break, and that warning was reflected in a memorandum in his personnel file. In addi- tion, about a week before Morales' discharge McVay spoke to him in the laundry room of 362 Rindge Avenue about leaving the property without permission or with- out punching out with reference to a specific incident.1 4 The General Counsel contends that Morales' short ab- sence from his job was not the true reason for his dis- charge, but that his discharge was caused by his union activities. Respondent contends the opposite. As set foth above, Morales' membership on the negoti- ating committee was clearly known to Respondent, and that activity identified him as a leading union activist. As found above, McVay had also demonstrated hostility to the Union both before and after the election. The Gener- al Counsel contends that the reason given for Morales' discharge was pretextual because he had been employed for over 2 years, because he had only one previous writ- ten warning, because other employees left the premises without permission, and because of a conflict between McVay's and Ensler's testimony as to the length of Mo- rales' absence from the premises. The evidence establishes that Morales had relatively long tenure with Respondent compared to others whose work histories were developed on the record. There is only one written warning in Morales' personnel file, but McVay spoke to Morales about a week before his termi- nation about leaving the premises without permission or punching out to pick his wife up from the hospital or from work. Although Wilfredo Morales on occasion left the premises without permission, there is no evidence that McVay knew of his practice. There can be little doubt that Respondent had a rule prohibiting employees from leaving the premises without permission and with- out punching out, and Wilfredo Morales' testimony does '' While Morales' testimony on cross-examination is less clear than on direct, he reaffirmed that he had left the premises without permission. and his testimony was not contradicted by McVay. However, although he initially testified that McVay told him he could take time off as long as he did his work and did not "goof off," on cross-examination he testi- fied that, if he finished his work orders, he could "goof off'" for a while and then go back to the office to get more work orders. He affirmed that McVay had told him he needed permission to leave the premises. I find that his testimony does not support a finding that McVay told him he could leave the premises without obtaining permission. " Morales generally denied that he had ever been warned about leav- ing the premises during working hours without permission. However, on cross-examination about this conversation, in contrast to his firm denial that he received other warnings, Morales testified that he had no conver- sation with McVay insofar as he could remember and that he was not sure "because it was about a year ago." I have credited McVay as to this conversation, but I do not credit his further testimony that he spoke to Morales about the same subject on other occasions because McVay's tes- timony in this regard was less specific than that concerning the laundry room conversation. Morales' denials were firm, and no memoranda con- cerning any warnings for leaving the premises were ever placed in Mo- rales' personnel file. 112 FEDERAL MANAGEMENT CO., INC. not establish that Respondent had acquiesced in its viola- tion. 5 The strongest evidence supporting the General Coun- sel's position is the discrepancy in testimony between McVay and Ensler concerning the duration of Morales' absence. Ensler testified that 10 or 15 minutes after she spoke to Morales' foreman, Tom Barber, she saw Mo- rales back at the building. McVay testified that, although he looked for Morales and checked with Barber and other porters to see if they had seen Morales, no one had seen him and he did not know what time Morales re- turned to work. He testified that he did not recall if he asked Ensler if she knew when Morales returned or if she told him that information. When McVay testified that Morales told him at the termination interview that he had only been gone for 10 minutes, McVay added: "The problem was no one saw him when he came back. I never saw him when he came back; and Mr. Barber never saw him when he came back, who at that time was the porter supervisor." Yet Ensler had seen Morales, and it was Ensler who first checked with Barber, checked Morales' timecard, and reported the incident to McVay. It would seem unlikely that Ensler failed to tell McVay everything she knew about Morales' absence or that McVay would fail to recall whether she did. More- over, his own testimony warrants the inference that the duration of the absence was material; otherwise it could not have been "the problem" that no one saw Morales when he returned. In sum, there is evidence to support the General Counsel's contention. However, the question is whether it is strong enough to warrant the conclusion that Mo- rales was discharged because of his union activities rather than his unexcused departure from Respondent's premises. In my opinion, it is not. The evidence of union " Although the General Counsel contends that a note in the personnel file of William Marti shows that Respondent was aware that he left the premises in violation of the rule on one occasion and was not disciplined, the evidence is too fragnmentary to warrant that conclusion The note signed "Johnny" states that he went to see his doctor and would be right back at 10:10 or It o'clock Written on it in another hand is the notation "never came to work" There is no other evidence as to the meaning of the note or the circumstilnccs surrounding it animus in this case shows only statements by McVay before and shortly after the election. The last such state- ment was made approximately 5 months before Morales' discharge. In the interim the parties had been bargaining, and there is no allegation that Respondent was not meet- ing its bargaining obligation. There is no question that Morales had violated a well-understood rule, and I find it telling that only a week before Morales was dis- charged McVay spoke to him about a similar episode. Indeed, Morales' curious lapse of recall of this conversa- tion in contrast to his denial that he received other warn- ings seemed indicative of inward acknowledgment that his position contained a substantial weakness. That McVay had spoken to Morales about a similar incident only a week before and did not discharge him at that time leads to two conclusions. First that McVay was genuinely concerned about violation of the rule, and second that, if he were looking for a pretext to discharge Morales, he could have acted as easily the previous week as on February 25. While the gap between Ensler's and McVay's knowledge of the duration of Morales' absence gives me pause, in the light of the above it is not suffi- cient to warrant the conclusion that McVay used Mo- rales' unauthorized absence from the premises as a pre- text and discharged him for his union activities. Accord- ingly, I find that the General Counsel has not established that Respondent discharged Vincent Morales in violation of the Act. CONCI USIONS OF LAW 1. Federal Management Co., Inc., is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. District 40, Community, Educational and Social Agency Employees, is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish that Re- spondent has engaged in unfair labor practices as alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.) 113