Boro Management Corp.

National Labor Relations Board - Board DecisionsAug 16, 1982

263 N.L.R.B. 421 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boro Management Corp. and Redell Alford. Case 29-CA-7858 August 16, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On March 9, 1982, Administrative Law Judge James F. Morton issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a reply brief in opposition to Re- spondent's exceptions. 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 Administrative Law Judge concluded that Respondent violated Section 8(a)(1) of the Act by discharging Supervisor Redell Alford.2 We find merit in Respondent's exceptions to the Adminis- trative Law Judge's conclusion. In 1977 Respondent recognized Local 32B-32J, Service Employees International Union, AFL- CIO, herein the Union, as collective-bargaining representatives for its maintenance employees and supervisory building superintendents, including Su- pervisor Alford, and thereafter signed master con- tracts negotiated between the New York City Real Estate Board and the Union. 3 During the latter part of 1979, the Union reached agreement with the New York City Real Estate Board for a renew- al contract. Subsequently, the Union informed its members, including Alford, that building superin- tendents would be receiving a wage increase, effec- tive November 1979. Alford began to receive the wage increase in February 1980, but was unable to secure any retroactive pay. In March 1980, Alford filed a written grievance with the Union for the retroactive pay. Shortly thereafter, he was dis- charged. I Respondent 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. a All parties agree that Alford is a supervisor within the meaning of Sec. 2(1 1) of the Act. S The New York City Real Estate Board is authorized to bargain on Respondent's behalf 263 NLRB No. 56 Based on credited testimony, the Administrative Law Judge found, and we agree, that Alford was discharged for attempting to enforce the terms of the collective-bargaining agreement through the grievance machinery. Finding the natural conse- quence of Respondent's discharge of Alford was to cause the maintenance employees at Respondent's facility to fear that they too would be discharged if they availed themselves of the contractual griev- ance machinery, the Administrative Law Judge concluded that Respondent's act violated Section 8(a)(1). We disagree with the analysis of the Ad- ministrative Law Judge. In our recent decision in Parker-Robb Chevrolet, Inc., 262 NLRB 402 (1982), we held that the pro- tection of the Act does not extend to supervisors who are disciplined or discharged as a result of their participation in union or concerted activity. In so doing, we recognized that the discharge of a supervisor for engaging in union or concerted ac- tivity almost invariably has secondary or incidental effect on rank-and-file employees, but this inciden- tal effect is insufficient to warrant an exception to the general statutory provision excluding supervi- sors from the protection of the Act.4 We conclude, for the reasons fully set forth in Parker-Robb, that there is no basis for finding the discharge of Super- visor Alford unlawful. 5 Accordingly, we shall dis- miss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 4 It is important to note that the instant case involves the discharge of a supervisor who filed a grievance under the collective-bargaining agree- ment on his own behalf. As we clearly set forth in Parker-Robb, discharg- ing or disciplining a supervisor for testifying at a proceeding under a col- lective-bargaining agreement involving an employee's grievance is unlaw- ful as it directly interferes with the employee's Sec. 7 rights. s See also Roma Baking Company, 263 NLRB 24 (1982), and Rain- Ware. Inc., 263 NLRB 50 (1982). DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge: On March 17, 1980, Redell Alford filed the unfair labor practice charge in this case and alleged in his charge that Boro Management Corp. (herein called Respondent) dis- charged him from its employ on March 5, 1980, because he had attempted to enforce the provisions of a collec- tive-bargaining agreement between Respondent and Local 32B-32J, Service Employees International Union, AFL-CIO (herein called the Union). Alford. in his charge, contends that Respondent, in discharging him, 421 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). On May 28, 1980, the complaint was issued in this case. In brief, it alleges that Respondent manages apart- ment buildings and that Respondent violated Section 8(a)(1) and (3) of the Act by having discharged Alford on March 3, 1980, because he had filed a grievance with the Union. Respondent's answer, filed on June 5, 1980, admits the commerce allegations in the complaint and the allegation that Alford was discharged on March 3, 1980. Its answer denies that Alford's discharge was for unlawful reasons. The hearing opened in Brooklyn, New York, before Administrative Law Judge Robert W. Leiner on May 26, 1981. Counsel for the General Counsel informed Admin- istrative Law Judge Leiner that Respondent's attorney of record then had just notified her that he no longer repre- sented Respondent. The hearing was adjourned until June 1 to afford Respondent the opportunity to obtain a new attorney. On June 1, I replaced Administrative Law Judge Leiner and granted the General Counsel's motion to amend the complaint. Respondent's new counsel en- tered his appearance. The amended complaint alleges, in essence, that, although Alford was a supervisor as de- fined in the Act when in Respondent's employ, his dis- charge on March 3, 1980, for filing a grievance was vio- lative of Section 8(a)(l) of the Act as his discharge for that reason interfered with the rights of employees cov- ered by the Act to act in concert for their mutual aid and protection. Respondent's counsel sought and was granted time to prepare his defense and to file an amend- ed answer. The amended answer which was filed on June 3, 1981, raises the issues set out below. The hearing resumed before me on July 1, 1980. Because of (a) conflicting commitments, (b) a long hiatus during which the General Counsel filed a petition in the U.S. district court to en- force a subpoena duces tecum as discussed in detail below, and (c) the need to secure materials subpoenaed from third parties, this hearing in this case was held on various dates in August, November, and December 1981. It closed on December 23, 1981; the parties made oral ar- gument and waived the filing of briefs. The issues raised by the pleadings, as amended at the hearing, are:I 1. Whether Respondent meets the Board's jurisdiction- al standard for real estate management firms. 2. Whether Respondent's labor relations policies at the apartment complex involved are so controlled by the Federal Government that Respondent is exempted from the coverage of the Act. 3. Whether the General Counsel can proceed against Respondent alone, without having made the owner of the apartment complex where Alford worked a party to this case. I Respondent placed in evidence a document signed by Alford, the Charging Party, on May 18, 1980, entitled, "release" and therein he ac- knowledged receipt of checks issued by Respondent for $330.58. The "re- lease" also states, "This check represents any and all claims." That docu- ment does not bar the instant case as it in no way purports to remedy the alleged violations. In that regard, see N.LR.B. v. Armstrong Tire and Rubber Company. The Test Fleet Branch, 263 F.2d 680 (5th Cir. 1959); Loren A. Decker, d/b/a Decker Truck Lines, 139 NLRB 65 (1962). 4. Whether Alford was discharged for having filed a grievance. 5. Whether, in the circumstances of this case, the fact that Alford at all times was a supervisor as defined in Section 2(11) of the Act requires dismissal of the com- plaint. Upon the entire record in this case, including my ob- servations of the demeanor of the witnesses and after due consideration of the oral arguments presented by the General Counsel and by Respondent, I make the follow- ing: FINDINGS OF FACT 1. JURISDICTION AND THE UNION'S STATUS Respondent is a New York corporation with its princi- pal office at 2095 Broadway, New York City. It is en- gaged in the business of managing apartment houses, in- cluding two adjacent buildings located in Brooklyn, New York, and referred to jointly herein as Magnolia Plaza. Alford had been working as the building superintendent of Magnolia Plaza and had two porters and a handyman under him when he was discharged in March 1980. Respondent urges that only the Magnolia Plaza oper- ations should be considered in determining whether juris- diction should be asserted. Magnolia Plaza has 102 apart- ments. It is owned by a nonprofit firm, St. Ambrose Housing Development Fund Co., Inc. (herein called St. Ambrose). The officers and directors of St. Ambrose are tenants of Magnolia Plaza and are elected. The agreement between Respondent and St. Ambrose discloses that Government National Mortgage Associ- ation holds the mortgage on Magnolia Plaza and that the U.S. Department of Housing and Urban Development (herein HUD) insures that mortgage. HUD receives monthly financial reports from Respondent and supple- ments the rentals collected each month in order that the mortgage payments are met. HUD inspectors also visit Magnolia Plaza about twice a year. Respondent has the responsibility for hiring, and has hired, all maintenance employees at Magnolia Plaza, in- cluding the building superintendent. The agreement be- tween St. Ambrose and Respondent provides that Re- spondent shall comply with the requirements set out in a HUD "Management Plan," the essential parts of which have been summarized in the agreement between Re- spondent and St. Ambrose. Thus, paragraph 15 of that agreement notes that the management plan "prescribes the number, qualifications and duties of the personnel to be regularly employed in the management of [Magnolia Plaza] .. . ." Paragraph 15 also states that all such per- sonnel will be employees of Respondent and not St. Am- brose and that they "will be hired, paid, supervised and discharged by [Respondent]" subject to four specified conditions. The first and fourth conditions have no im- mediate bearing on the issues in this case. The remaining two provide that (1) the compensation of the building su- perintendent, the maintenance employees, and any others employed at Magnolia Plaza by Respondent shall be "as prescribed in the Management Plan" and (2) St. Ambrose will reimburse Respondent for that compensation. The 422 BORO MANAGEMENT CORP. testimony of Respondent's president indicates that, in practice, the accepted compensation amounts are those negotiated on a multiemployer basis through association- wide bargaining as discussed in further detail below. The agreement between Respondent and St. Ambrose further provides that Respondent will keep its records on the Magnolia Plaza operations in accordance with the directives issued by HUD and that, overall, Respondent's operations at Magnolia Plaza will be consistent with HUD directives. From the terms of the agreement be- tween Respondent and St. Ambrose, it appears that HUD requires managing agents of HUD-insured proper- ties to follow an "affirmative marketing plan" and to make a conscientious effort to employ and train "mem- bers of minority groups who are not initially qualified." All paychecks and other checks drawn by Respondent which are directly allocable to Magnolia Plaza are issued by it "as agent for St. Ambrose." Respondent cannot spend more than $500 for nonrecurring, nonemergency expenses without the approval of St. Ambrose. The annual gross income derived from Magnolia Plaza, including HUD supplements, is less than $500,000; Respondent's income therefrom is less than $50,000 annu- ally. Respondent manages other apartment buildings. The aggregate rentals of all apartment buildings managed by Respondent exceed $500,000 a year; Respondent's aggre- gate annual management fees from all its apartments exceed $50,000. In managing all those apartments, Re- spondent purchases oil and other items, which are deliv- ered to the State of New York locations from outside New York and the value of those purchases exceeds $50,000 annually. The Board has considered and rejected the same con- tention that Respondent now makes. 2 In that case, the Board determined that the aggregate of rentals from all apartment buildings managed by an employer will be used in determining whether the $500,000 gross annual volume standard for asserting jurisdiction has been met. I thus must reject Respondent's view. Respondent contends, in the alternative, that it effec- tively shares HUD's exemption from the Act's coverage. The evidence is clear, however, that Respondent has participated in bargaining collectively with the Union on a multiemployer basis, that it hires and discharges em- ployees on its own initiative, and that it effectively ad- ministers the labor relations policies governing the em- ployees at Magnolia Plaza. As Respondent has control of those labor relations matters, it can effectively bargain with the Union.3 Respondent has challenged the General Counsel's right to proceed against it without having made St. Ambrose a party to this case. That matter is considered in a separate discussion in the section entitled '"The Remedy," infra. As Respondent's aggregate rentals collected annually exceed $500,000, as essential legal jurisdiction has been shown, and as Respondent can effectively bargain collec- tively with the Union, I find that Respondent's oper- ations meet the Board's applicable jurisdictional standard, · James Johnston Property Management, 221 NLRB 301 (1975) s That is the essential issue to be decided. See Moderate Income Man- agement Company, Inc., and Marineview Housing Company No. 1,. 256 NLRB 1171 (1981). that it will effectuate the policies of the Act for the Board to assert jurisdiction, and that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also find that the Union is a labor organization as de- fined in Section 2(5) of the Act. II. THE ALLEGED UNIAWFUL DISCHARGE OF ALFORD A. Contentions The pleadings disclose that the General Counsel ini- tially had contended that Alford was an employee of Re- spondent and that his discharge violated Section 8(a)(1) and (3). That contention was modified when the General Counsel stipulated that Alford, at the time of his dis- charge, was a supervisor as defined in Section 2(11) of the Act. The General Counsel then withdrew the 8(aX3) allegation but has continued to assert that Alford's dis- charge interfered with employee rights under Section 7 of the Act, and thus violated Section 8(a)(1). In particu- lar, the General Counsel asserted at the hearing that Alford was discharged as of March 5, 1980, because he had filed a grievance with the Union for moneys asser- tedly due him under the collective-bargaining agreement between Respondent and his Union. Respondent con- tends that Alford was discharged on March 3, 1980, solely because his work as a supervisor was, in general, inadequate and, in particular, was clearly deficient on March 3, 1980, when, it asserts, the Magnolia Plaza com- plex ran out of heating oil due to his negligence. B. Background The testimony offered at the hearing shows that there is general agreement on the material facts except for those pertinent to Alford's last week in Respondent's employ. Respondent became managing agent at Magnolia Plaza in August 1977 and hired Alford then as its building su- perintendent. Alford's job was to maintain the building with the help of two porters and a handyman whom he supervised. Respondent, in 1977, recognized the Union as the col- lective-bargaining representative for the building superin- tendent and other maintenance employees at Magnolia Plaza and has signed master contracts negotiated be- tween the New York City Real Estate Board and the Union. Respondent has authorized the New York City Real Estate Board to bargain on its behalf with the Union for the employees at Magnolia Plaza. There is no evidence that Alford or any of the mainte- nance employees at Magnolia Plaza participated in any union activities for virtually all of 1979. In the latter part of 1979 the Union reached agreement with the New York City Real Estate Board for a renew- al contract effective from November 1, 1979, to April 20, 1982. The Union informed its members, including Alford, that building superintendents would get an $18 weekly increase retroactive to November 1, 1979. Alford was earning $204 a week and lived in a rent free apart- ment at Magnolia Plaza with all utilities paid. On several occasions in late 1979 and early 1980, Alford asked Re- 423 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's president, Leslie Ware, for the $18 increase and for retroactive pay. Ware told him on several occa- sions that he had not received a signed contract and thus could not put the increase in effect. On one visit to Re- spondent's office, Alford noticed that there was a signed contract there. He then asked Ware for the $18 increase. Ware told him that the contract was in error as it listed Alford's wages at $210 a week, not $222. (The contract received in evidence indicates that Respondent signed it on January 4, 1980, and it provides that superintendents are to receive a minimum of $210 a week and an $18 in- crease.) In any event, Alford began to receive the $18 in- crease on or about February 1, 1980. He asked Ware and also the Union then and on other occasions in February about the retroactive moneys. The Union's business agents told him those moneys were due him. Respond- ent's president told him that the wage increase was not retroactive. Incidentally, the signed contract provided, "effective 11-1-79, superintendents . . . shall receive an $18 weekly increase .... " C. Alford's Discharge in March 1980 The credibility issue posed in this case pertains to the events on March 3, 4, and 5 as testified to by Alford for the General Counsel and by Leslie Ware and Herbert Borum for Respondent. The respective accounts of these witnesses are set out below, followed by a summary of the relevant documentary evidence. 1. Alford's version Alford testified as follows respecting the events in early March. On Monday, March 3, he visited the Union's office to press his claim for retroactive pay and was told that he had to submit a grievance. He signed a typewritten grievance, a copy of which was received in evidence. He gave a union official the telephone number of Respondent's office and was present when the Union's representatives telephoned Respondent and spoke to its president, Ware. The union representative told Ware that Alford was present then at the Union's office and had just filed a written grievance for his retroactive pay. Alford then heard the union representative say, "You'll pay." The union representative also stated to Ware that the case would go to arbitration if the grievance were not satisfied. On the following day, March 4, Alford was visited by Herbert Borum, Respondent's agent who was Alford's immediate supervisor. Borum handed Alford a letter which was dated February 4 (not March 4). That letter was on Respondent's stationery and was signed by Borum. The letter read: I regret to inform you that your services are no longer required. Effective as of April 4, 1980. This action is being taken due to your lack of responsibil- ities in taking care of the project. 4 Alford identified the representative by the sound of his last name. Counsel for the General Counsel supplied the exact name and then ad- vised that that individual is no longer employed by the Union and that the General Counsel has been unsuccessful in locating him. A copy of that letter had been sent by certified mail to Alford by Respondent on the preceding day March 3 as disclosed by the postmark on the envelope. Alford worked for Respondent until March 5 when he was terminated. 2. Borum's account Borum testified as follows. While Alford performed satisfactorily in 1978 and early 1979, he began neglecting his work in mid-1979 and was given a written warning thereon on August 1979. In October, November, or De- cember 1979, Alford left work for a week without per- mission. On another occasion, Alford had refused to repair a toilet and had tried to get the tenant to pay him directly for that repair job. On many occasions when Borum visited Magnolia Plaza, he had been unable to locate Alford. Borum was asked to explain why the letter to Alford notifying him of his discharge was dated February 4 but mailed on March 3. His testimony in response was un- clear. He stated initially that the incident that caused that letter to be written was the one in which Alford "goes and lets the oil run out." According to Respondent, that incident occurred on March 3. It could not have ac- counted for the letter being written on February 4. Borum then testified that that letter was written when Alford "left, when he got back from South Carolina." That testimony seems to relate to earlier testimony by Borum that in late 1979 Alford had disappeared for a week and, upon his return, explained that he had to leave suddenly because of a death in his family which lived in the South. Borum testified further that, in early February 1980, Alford had acknowledged receiving in the mails the letter dated February 4. (No satisfactory explanation was offered to account for the March 3 postdate on the enve- lope in which that letter had been mailed.) Borum testified also that in early March 1980 he re- ceived a call to go to Magnolia Plaza to check out signs posted in the hallways. He did so and observed signs in- forming the tenants that "they had no oil" and advising them to call the city complaint bureau. One of the por- ters told Borum that Alford posted the signs. Borum then telephoned Respondent's president, Ware, who di- rected him to have the signs taken down and discarded. Borum had a porter do that. On the following day, Borum talked to Alford. Borum testified that he then simply asked Alford if oil had been delivered and that Alford told him it was. Borum testified at one point that he was the one who fired Alford and that Ware "sup- ported" that decision. Borum testified that Alford was discharged because of "the incident dealing with the oil and as he was lacking doing his duties." 3. Ware's account Respondent's president, Leslie Ware, testified as fol- lows. He does not remember the circumstances leading up to the preparation of the letter dated February 4 which was mailed to Alford on March 3. That letter was sent to Alford about a week before he was fired. Ware himself fired Alford "in no uncertain terms" on March 3 424 BORO MANAGEMENT CORP. when he learned that day from a tenant that the building was out of oil and that Alford had posted signs advising the tenants to call the city complaint bureau. When Alford called him later that March 3 morning and con- firmed that information, he fired Alford effective right then and there. Later, Ware told Borum that he had fired Alford. Ware called either Morgan Oil Company or Belcher Oil Company on March 3 and saw to it that an emergen- cy oil delivery was made to Magnolia Plaza that same day. 4. Alford's testimony as to the reasons given by Respondent for his discharge Alford testified that he never saw the letter dated Feb- ruary 4 until after he had filed the grievance on March 3, that the building had not run out of oil on March 3, that there was no oil delivery made there on March 3, and that the only oil delivery in March 1980 at Magnolia Plaza was made on March 5. 5. Other evidence preferred and other relevant considerations Respondent asserts that an oil delivery was made on Monday, March 3, in support of its contention that Alford was discharged that day because he let the oil run out. The General Counsel contends that this reason was a clear pretext as oil was not delivered on March 3 but was, instead, delivered on March 5. The hearing was recessed to afford the parties the opportunity to secure and subpoena documentary evidence as to the precise date the oil was delivered. During the recess, Respondent's counsel wrote me a letter, with a copy to the General Counsel, and enclosed an invoice with the imprint of Morgan Oil Company thereon and which had typewritten material on it indi- cating that the oil delivery was made by Morgan Oil on Monday, March 3, at Magnolia Plaza. When the hearing resumed counsel for the General Counsel declined to stipulate to the authenticity of the invoice and advised that she intended to present evidence to the contrary. I then returned the invoice and accompanying letter to Respondent's counsel. After a further adjournment, the record evidence, as disclosed by testimony of representatives of Morgan Oil and Belcher Oil, and their respective accounting and de- livery records established that no oil was delivered to Magnolia Plaza on March 3, that the first delivery that month that was made at Magnolia Plaza was on March 5, and that the earlier "invoice of Morgan Oil" sent me by Respondent was not prepared by anyone connected with that company. There was one other piece of relevant documentary evidence. Counsel for the General Counsel served a sub- poena on Respondent's president, Ware, for relevant payroll records. Respondent declined to honor the sub- poena. The hearing was recessed to permit the General Counsel to file a petition in the U.S. district court to en- force the subpoena. I was advised that such petition was filed and that Respondent produced the payroll records thereafter. Those payroll records were received in evi- dence by me when the hearing in this case resumed pur- suant to an order I issued. Those records disclosed that Alford had worked a full 40-hour week for the payroll period ending March 5, 1980. As noted earlier, Respond- ent has contended that Alford was terminated on March 3. No evidence was proffered by it to explain the fact that its payroll records indicated that Alford worked through March 5. The last consideration warranting comment is the de- meanor of the witnesses. Alford's account was given openly and is generally inherently consistent. He did not give a pat recital and he was subjected to a vigorous cross-examination. Borum appeared confused and his record testimony re- flected that. Ware's attitude was striking. He got angry when his authority appeared challenged. On two occasions, he had refused to answer clearly proper questions put to him by the General Counsel. Only the intercession of Respond- ent's counsel and the granting of extraordinary requests by him that he discuss the matter privately with Ware obviated the need to consider the General Counsel's motion to strike Ware's entire account. It appeared to me also that Ware bore the responsibility for Respondent's unwillingness to produce the subpoenaed payroll records discussed above and that it was only when the matter was immediately before the U.S. district court that Ware relented. 6. The credibility resolution The basic issue of credibility is whether Alford was discharged on March 3 and whether an emergency oil delivery was made that same day as Respondent con- tends or whether Alford was notified on March 4 or 5 that he was discharged as the General Counsel asserts. The relevant documentary evidence received from the oil delivery companies corroborates Alford's account that no oil was delivered on March 3, as Respondent as- serts. The payroll records also controvert Respondent's assertion that Alford was actually discharged on March 3. Further, Ware's account and Borum's account are in contradiction as to which one decided to discharge Alford. Taking all the relevant testimony and documentary evidence into account, I credit Alford's account. D. Analysis The credited evidence discloses that Alford had been for a long time deficient in his work as a supervisor. It also shows that Alford was discharged shortly after he filed a grievance on March 3, of which Respondent had then been made aware. The credited evidence also estab- lishes that the reason Respondent offered for discharging Alford (that he had let the oil run out on March 3 and had posted signs that day urging the tenants to call the city complaint bureau)5 was not supported by the facts 8 To belabor the credibility issue, it seems to me that Respondent's contention may also be inherently inconsistent. It argues that Alford had let the oil run out without having taken the trouble to notify Respond- ent's office that the oil level was dangerously low. It seems unlikely to Continued 425 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and was an afterthought. That that reason was a pretext is also evident from the March 3 date on the envelope addressed to Alford which contained the letter of termi- nation, inexplicably dated February 4. There is no direct evidence of union animus. The evi- dence would indicate that Respondent may not have been threatened in any way from a monetary standpoint with the grievance Alford filed. His retroactive pay claim was for about $300 ($18 x 16 weeks) and that sum would ultimately have been reimbursed to Respondent out of rentals collected or HUD supplements paid. Notwithstanding those economic considerations, I am satisfied that the General Counsel has sustained the burden of persuading me that Alford was discharged be- cause he filed the grievance on March 3. The credited evidence unequivocally establishes critical elements-Al- ford's activity, Respondent's knowledge of it, the timing of the discharge in relation to that activity, and the clear pretextual nature of the reason given by Respondent for its actions. A fair inference from these circumstantial fac- tors is that Alford's discharge was due to the grievance he filed. On the basis of the credited evidence, that infer- ence has not been rebutted. Rather, my observation of Respondent's president at the hearing tends to corrobo- rate the discriminatory motive behind Alford's discharge. Ware has given me the distinct impression that he does not brook any challenge to his authority and that he will take whatever action he deems necessary to confront any such challenge. The credited evidence also discloses that the mainte- nance employees under Alford were aware that he had filed his grievance on March 3 and they obviously knew he was discharged right after that as one of them re- placed Alford as supervisor. It is reasonable to conclude, and I do, that they saw the connection between the filing of the grievance for retroactive pay and Alford's dis- charge. The Board and the courts have had occasion over the years to consider the circumstances under which the dis- charge of a supervisor was violative of the Act and most of those holdings are not applicable to the facts in the instant case.6 There seems to be unanimity in the propo- sition that an employer will be found to have violated Section 8(a)(1) by discharging a supervisor for his acts in furtherance of a grievance machinery where such dis- charge interferes with employee rights by having tended to cause employees reasonably to fear that like action will be taken against them if they too participate in a grievance proceeding. ? me that Alford would have been so indifferent while at the same time. according to Respondent, he was making up and posting signs in the hall- ways of Magnolia Plaza to enlist the tenants' support toward getting oil delivered. 6 For a ready summary of such holdings, see Nevis Industries Inc.. d/b/a Fresno Townehouse, 246 NLRB 1053 (1979), and particularly the discussion at 1054. The Board's order in that case was denied enforce- ment. See N.LR.B. v. Nevis Industries, Inc.. d/b/a Fresno Townehouse, 647 F.2d 905 (9th Cir. 1981). See also N.LR.B. v. Hi-Craft Clothing Co., 660 F.2d 910 (3d Cir. 1981); Downslope Industries Inc, 246 NLRB 948 (1979); and Sibilio's Golden Grill. Inc., 227 NLRB 1688 (1977), for other aspects of the matter. 7 Rohr Industries Inc., 220 NLRB 1029 (1975); Ebasco Services Incorpo- rated, 181 NLRB 768 (1970). I find that the natural consequence of Respondent's discharge of Alford, in the circumstances set out above, was that the discharge tended to cause the maintenance employees at Magnolia Plaza to fear that they too would be discharged if they availed themselves of the contrac- tual grievance machinery. I thus find that Respondent in- tended to, and did, interfere with the rights of its em- ployees at Magnolia Plaza to use the grievance mecha- nism. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization as defined in Sec- tion 2(5) of the Act. 3. By having discharged Alford under the circum- stances found above, Respondent has interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act and Re- spondent thereby violated Section 8(a)(1) of the Act. 4. Respondent's acts set out in paragraph 3 above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY To effectuate the purposes of the Act and to remedy the violations as found above, it is necessary that Re- spondent offer to reinstate Alford to his position at Mag- nolia Plaza with the use of a rent free apartment and paid utilities and without prejudice to any other rights and privileges attendant to that position, or, if that posi- tion is no longer in existence, to a substantially equiva- lent one, removing if necessary the incumbent in that po- sition to reinstate Alford in the event he accepts the offer. Respondent shall also be required to make Alford whole for all losses suffered by reason of his unlawful discharge on March 5, 1980, with backpay to be comput- ed with interest as prescribed in F. W. Woolworth Compa- ny, 90 NLRB 289 (1950), Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). Notwithstanding that the violation in this case goes to the core of the Act, a limited remedial order is appropri- ate in view of the impulsive character of the violation.8 There is one last point for discussion in this section. Respondent has repeatedly contended that only St. Am- brose can remedy any violations in this case as it is the principal and as Respondent had always acted as its agent. That argument misconstrues basic agency law governing the liability of agents. It may be that St. Am- brose has agreed to idemnify Respondent and it is possi- ble that such an agreement may be enforceable. There is nothing in Board precedent barring the entry of an order ' In Nevis Industries, supra, the Board entered a limited order although the Administrative Law Judge had articulated at 1070 the rationale to support a broad order. In Ebasco Services supra, a broad order was en- tered but the violations in that case were the product of considered and deliberate actions over a course of time. 426 BORO MANAGEMENT CORP. 427 against Respondent itself' and nothing contained in this Decision should in any way be construed to suggest that St. Ambrose is in any way liable for any of the costs in- 9 Board precedent indicates that jurisdiction would be asserted to volved herein or responsible for the effectuation of any remedy a Sec. 8 violation by the managing agent of real estate properties. of the remedial provisions set out herein. See Henry R. Mandel d/b/a Mandel Management Company, Managing [Recommended Order omitted from publication Agent for Greenwich Village Community Housing Corp., 229 NLRB 1121 (1977).