Association of Community Organizations for Reform Now (ACORN)

National Labor Relations Board - Board Decisions

Mar 27, 2003

338 N.L.R.B. 866 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 866
Association of Community Organizations for Reform
Now (ACORN) and Sarah A. Stephens and Erin
Marie Howley and Gigi Nevils. Cases 16–CA–
21007–1, 16–CA–21007–2, and 16–CA–21173
March 27, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
On June 24, 2002, Administrative Law Judge Jane
Vandeventer issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed a brief answering the exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In light of our finding that the Respondent, by Kimberly Olsen, vio-
lated Sec. 8(a)(1) on March 1, 2001, by interrogating employees Sarah
Stephens, Erin Howley, and Cledell Kemp about their union activities,
we need not decide whether Olsen unlawfully interrogated Stephens
and Howley on February 26, 2001, as any such finding would be cumu-
lative.
Chairman Battista agrees with his colleagues that Olsen’s March 1
statements to Stephens, Howley, and Kemp that the Union would bring
Respondent down, and that she was willing to work with employees
individually, violated Sec. 8(a)(1) of the Act. He notes, however, that
Olsen’s remarks are more aptly characterized as an implied threat of
closure, rather than a threat of futility.
For all the reasons given by the judge, we adopt her finding that the
Respondent violated Sec. 8(a)(3) and (1) by laying off Gigi Nevils,
Sarah Stephens, and Erin Howley. We find particularly significant the
following: the timing of Nevils’ layoff shortly after she informed Su-
pervisor Kent Smith that Dallas employees were supporting the Union,
notwithstanding assurances of continued employment she had been
given by Supervisor Olsen; the timing of the layoffs of Sarah Stephens
and Erin Howley shortly after their meetings with Olsen about the
Union and employee concerns about working conditions; the lack of
urgency with which the Respondent addressed the financial manage-
ment of the Dallas office, until employees began pressing for union
representation; the “uncharacteristic” and unprecedented decision to
layoff employees in response to its “relatively commonplace financial
crises,” as shown by National Field Director Helen O’Brien’s testimony
that she was unaware of any layoffs from any Respondent offices dur-
ing her employment at the Respondent; and O’Brien’s sudden “specific
and directive” instruction to Olsen to lay off two employees, without
consideration or discussion of the fact that several employees had re-
cently quit, and without resort to traditional methods used by ACORN
to improve finances, such as increased fundraising activity and volun-
tary layoffs. The Respondent has not explained why it did not employ
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Association of Community
Organizations for Reform Now (ACORN), Dallas,
Texas, its officers, agents, successors, and assigns, shall
take the action set forth in the Order, except the attached
notice is substituted for the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT imply to that selecting a union to repre-
sent you would be futile.
WE WILL NOT threaten you with discharge if you try to
organize a union.
WE WILL NOT interrogate you about your union activi-
ties or your reasons for supporting a union.
WE WILL NOT inform you that employees have been
discharged because of their union activities.
WE WILL NOT layoff or discharge employees because
they support the Union or try to organize a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Gigi Nevils, Sarah Stephens, and Erin How-
ley full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.

these traditional tools to improve its financial picture. We agree with
the judge that, far from proving the Respondent’s defense that it would
have laid off these employees even in the absence of their union activi-
ties, the facts show the opposite.
2 We correct the inadvertent misspelling of employee Gigi Nevils’
name in par. 2(b) of the judge’s Order. We have conformed the admin-
istrative law judge’s notice to her Order.
338 NLRB No. 129
ASSN. OF COMMUNITY ORGANIZATIONS FOR REFORM NOW (ACORN) 867
WE WILL make Gigi Nevils, Sarah Stephens, and Erin
Howley whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoffs of Gigi Nevils, Sarah Stephens, and Erin
Howley, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the lay-
offs will not be used against them in any way.

ASSOCIATION OF COMMUNITY ORGANIZATIONS
FOR REFORM NOW (ACORN)

Laurie Hines-Ackermann, Esq., for the General Counsel.
Arthur J. Martin, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
JANE VANDEVENTER, Administrative Law Judge. This case
was tried on December 3 and 4, 2001, in Ft. Worth, Texas. The
complaint alleges Respondent violated Section 8(a)(1) of the
Act by interrogating employees about a union, threatening em-
ployees with the futility of organizing a union, and threatening
termination of employees because of the union. The complaint
also alleges Respondent violated Section 8(a)(3) of the National
Labor Relations Act (the Act) by laying off or discharging three
employees, the three individual Charging Parties. The Respon-
dent filed an answer denying the essential allegations in the
complaint. After the conclusion of the hearing, the parties filed
briefs which I have read.1
Based on the testimony of the witnesses, including particu-
larly my observation of their demeanor while testifying, the
documentary evidence, and the entire record, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Arkansas nonprofit corporation with ap-
proximately 37 offices in 23 States, including offices in Dallas,
Texas, and Portland, Oregon. During a representative 1-year
period, Respondent received at its Dallas, Texas location goods
and services valued in excess of $50,000 directly from points
outside Texas.
Accordingly, I find, as Respondent admits, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The International Workers of the World (referred to in the
record herein and in this decision as the Union, the IWW, or the
Wobblies) is a labor organization within the meaning of Section
2(5) of the Act.

1 The General Counsel also filed a reply brief which I have not relied
on, as the filing of such additional arguments with the administrative
law judge is not provided for in the Board’s Rules and Regulations.
II. UNFAIR LABOR PRACTICES
A. The Facts
1. Respondent’s operation
Respondent’s activities include organizing community
groups and individuals, primarily low and moderate income
families. Respondent seeks to serve this constituency by orga-
nizing around issues of importance to these individuals and
groups in efforts to make political and economic changes bene-
ficial to its constituency. Examples of issues it has worked on
in the past few years include lobbying banks to lend money in
communities it serves, i.e., not to engage in “red-lining” certain
areas, and working on behalf of “living wage” city ordinances.
Respondent operates under its bylaws, and has a national
head, called the chief organizer. Each local office has a head
organizer, who runs the office on a day-to-day basis, including
the hiring of employees. Both the national organization and the
local organizations are supervised by elected boards of direc-
tors. Local offices have employees called field organizers who
perform organizing functions and raise money with which to
support these functions. The three individuals involved in these
proceedings were employees of the Dallas, Texas office. Kim-
berly Olsen was the head organizer of that office. Some over-
sight of local offices was provided by Helene O’Brien, Re-
spondent’s national field director. During the latter part of
2000 and all of 2001, some financial oversight of local offices
was provided by former Texas organizer, Liz Wolff.
At the time of the events herein, field organizers were ex-
pected to work long hours each week—54 hours—and were
paid at a salary of $16,000 annually until January 2001, when
the salary was raised to $18,000 for field organizers nationally.
Their work consisted of: (1) recruiting members and collecting
membership dues from them; (2) canvassing, which means
knocking on doors in more affluent neighborhoods in order to
request donations; (3) organizing campaigns and actions around
issues; and (4) for some employees, attempting to secure grants
from foundations, churches, businesses, and other organiza-
tions. The first two tasks are referred to as “internal” fundrais-
ing, and the last one is called “external” fundraising.” It ap-
pears from the record evidence that various Dallas employees
could raise as much as half of their own salaries, and possibly
more than half. Some employees were more successful than
others at recruiting members and securing donations. The em-
ployees generally worked in afternoons, evenings, and week-
ends.
Respondent nationally, and certainly at the Dallas office, had
an extremely high turnover rate among employees. In 2000,
significantly less than 10 percent of Dallas office employees
stayed in the job for as long as 6 months. Most did not even
complete their training period, but quit within a few days or
weeks of being hired.
Respondent operated its finances centrally, but each office
was expected to be self-sustaining. Each office had an account
from which its bills were paid. The head organizer was ex-
pected to manage the office’s finances: to make a budget and
keep to it, to make sure that all income was sent to the central
finance administration in New Orleans, and that all obligations
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 868
were submitted for payment to the same place. As will be de-
scribed below in more detail, the head organizer of the Dallas
office was singularly inept at performing this function.
During 2000, the Dallas office staff varied between ap-
proximately 5 and 10 employees at any given time. Head Or-
ganizer Kimberly Olsen hired several employees each month,
and nearly as many quit each month. Two of the employees
hired in 2000 were Charging Parties Sarah Stephens and Erin
Howley, in August and September, respectively. Both these
employees continued their employment until they were laid off
by Respondent on March 2, 2001. Stephens worked full time
as a field organizer, and gradually increased her effectiveness
until she could recruit two or three members each week and
raise about $100 each day she canvassed. In 2000, field organ-
izers canvassed about once a week, although there were other
offices around the country in which they did so more often.
After a few months, Olsen assigned Stephens the additional
task of keeping track of the members and fundraising amounts
which each employee secured, and of preparing bank deposits
to be sent to the central financial office. During 2000 and the
first few months of 2001, Olsen and some of the Dallas office
staff were spending a great deal of their time and attention
working on behalf of a “living wage” ordinance which was
being considered by the Dallas City Council.
Howley began work as a full-time field organizer, but soon
requested to change to a part-time employee. Olsen granted her
request to work part time, and assigned her to writing applica-
tions for grants and other “external” funding. According to
Stephens, Howley was the most effective canvasser on the Dal-
las staff, able to raise more than $100 per night.
In January 2001, Olsen hired Gigi Nevils as a field organ-
izer. Nevils expressed great enthusiasm for the job, and Olsen
was eager to add her to the staff, believing that she would be an
effective employee. By January 2001, Olsen had begun to
realize that her office was in poor financial condition, she made
an arrangement for Nevils to train in the Portland, Oregon of-
fice. It is undisputed that having new employees train in other
offices is not uncommon at Respondent. Olsen bought Nevils a
bus ticket from Respondent funds, and Nevils traveled to Port-
land to begin her training under Portland Head Organizer Kent
Smith in early February 2001. Smith had agreed with Olsen
that the Portland office would cover Nevils’ paycheck.
2. Union activity
At the end of 2000, Respondent convened a national meeting
of its field organizers and management staff, along with repre-
sentatives of the boards of directors. When not in larger meet-
ings, attendees could choose to attend smaller meetings (cau-
cuses), one of which involved discussion among employees
about the possibility of having a staff union at Respondent.
Stephens attended this caucus. She testified that the employees
made no efforts to hide their union interest from the supervisors
and managers, but discussed it openly with them.
Within a month of that meeting, an employee newsletter
entitled To Gather began to appear in the Dallas office. It was
published by an employee in the Philadelphia office of Respon-
dent, and sent to other offices. The newsletter reported on un-
ion organizing efforts and working conditions which the em-
ployees wished to discuss with management through a union,
such as lateness of paychecks, safety of employees when walk-
ing alone at night, and the lack of any weekends off.
Stephens, Howley, and another employee, John Rees, testi-
fied to seeing copies of the newsletter in the Dallas office dur-
ing early February 2001, and to reading it. They and other
employees in the Dallas office discussed the union organizing
effort among themselves and with a tenant in a neighboring
office, Kenneth Stretcher, who worked for the Service Employ-
ees International Union. The employees also discussed the
issue of safety when they canvassed alone at night; they wanted
to be allowed to canvass in pairs. They also wanted to have 1
weekend off each month, rather than working every Saturday.
Employees made no effort to hide these discussions, and be-
lieved that some discussions about the Union took place in
Olsen’s presence.
3. Allegations of 8(a)(1) violations
The first conversation which is in issue took place on the
evening of February 26, 2001,2 between Olsen and John Rees.3
On that date, it had become common knowledge that employ-
ees in the Seattle, Washington office had gone on strike. Also
on that date, Olsen had telephoned Nevils in the Portland office
and laid her off. Olsen and Rees agreed to meet after work for
a drink and to talk about the IWW drive away from the office.
They met at the Lakewood Landing Bar for about half an hour.
Rees told Olsen that in his opinion, a democratic organization
like Respondent should practice its principles internally. Olsen
responded that the IWW was “trying to destroy” Respondent.
She said she shouldn’t have to take orders from employees.
She told Rees that people are getting fired in Seattle for union
organizing, that Nevils was fired because of the Union, and that
Rees was to blame. Olsen then told Rees that she was assign-
ing him to open a new office for Respondent in Forth Worth the
following month. According to Olsen, she also told Rees “this
is where the rubber hits the road,” and that he had to help her.4
Rees responded by saying that he could not continue to work
for such a hypocritical organization, and that he was quitting.
Also on February 26, Stephens and Howley approached Ol-
sen and told her that they wanted to be constructive and to dis-
cuss issues of local interest, such as canvassing in pairs and
getting their paychecks. Olsen asked them why they needed a
union. She agreed to meet with them in a few days’ time.
On March 1, Olsen met with Stephens, Howley, and Cledell
Kemp, another employee, at the request of Stephens and How-

2 All dates hereafter are in 2001, unless otherwise specified.
3 While Respondent introduced some evidence at the hearing with
the apparent view to showing that Rees was a supervisor, Respondent
did not contend in its brief that he was a supervisor. From all the evi-
dence, it is clear that Rees was, at most, a lead person. He did train
new employees, but most field organizers with any experience partici-
pated in training to some degree. I find that he was an employee.
4 The General Counsel contends that this last statement of Olsen’s,
although unalleged in the complaint, violates the Act because it was
requesting Rees to stop talking about or organizing for the Union. The
General Counsel urges that it was fully litigated, and should be found a
violation of Sec. 8(a)(1). I disagree. From the context, the remark
appears to refer to opening a new office in Forth Worth, rather than to
Rees’ admitted union support.
ASSN. OF COMMUNITY ORGANIZATIONS FOR REFORM NOW (ACORN) 869
ley. Kenneth Stretcher was also present. Howley began by
discussing the issue of safety while canvassing alone at night.
Olsen defended the safety of the neighborhoods in which they
worked and scoffed at the employees’ fears. Stephens sup-
ported Howley’s contention, and opined that canvassing in
pairs would also provide moral support for one another, would
decrease employee turnover, and would help employees de-
velop a relationship with the community. The subject of em-
ployees having 1 weekend a month off was also raised. Olsen
said that she might consider the 1 weekend a month off, and
allowing trainees to canvass in pairs for the first month. She
said she was willing to work with them individually. Olsen
then raised the issue of the union drive in other offices, and
asked the employees what they thought of the Union, and why
they needed it. Stretcher spoke generally about the benefits of
having a union. Olsen responded that he had mentioned only
positive aspects; there were negative aspects, too. Olsen said
that employees did not need a union to accomplish their goals,
that a union would just “bring ACORN down.” She called the
employee who wrote the union newsletter a “poison pill” and
told the employees that they were not workers, but were people
who believe in “The Movement” and who should make sacri-
fices for this. Finally, Olsen appeared to lose interest, began to
read her mail, and said, “[T]his isn’t going anywhere.” She
ended the meeting.5
4. Layoff of Gigi Nevils
Nevils was hired at the end of January by Olsen, and for her
first week trained by accompanying Dallas employees in fund-
raising and signing up members. She exceeded her goals for
members and for fundraising. During that time, she recalled
that Olsen commented on a letter which had appeared on the
IWW website about the union organizing drive at Respondent.
She joked about a member of Respondent who had been a
“Wobbly” and wondered if he would picket the office. She
also stated that if John Rees organized the employees, he was
organizing against her.
On about February 7, Nevils went to Portland and began her
training there. She kept in touch with Olsen and with Rees by
telephone. Rees openly discussed the Union with Nevils and
told her that all the Dallas employees were in favor of the Un-
ion. During the second week in February, Nevils participated
in a training session with the Seattle head organizer and Seattle
employees. After the training, she and the other employees
discussed the Union and the work issues raised by the Union.
During this time, Nevils was unhappy being away from Dallas,
and repeatedly asked Olsen if she could return to Dallas. After
a couple of weeks, Olsen told her that she would have to finish
her training in Portland. During the succeeding week, Nevils
and other Portland employees discussed a rumor that an em-

5 I have credited Erin Howley, a most impressive witness, as to this
conversation. Her testimony is corroborated by Sarah Stephens and
Cledell Kemp. Wherever the testimony of Olsen differs from the testi-
mony of these witnesses, or of John Rees, it is discredited. Olsen was a
casual witness who barely paid attention to the questions asked of her,
and who took no trouble to respond either fully or carefully. I do not
credit her testimony in any respect where it differs from that of any
other witness.
ployee in the Philadelphia office was fired for union organiz-
ing. Head Organizer Kent Smith denied that this was the rea-
son for her discharge. He commented that the union trouble
would now be over because of her discharge. Nevils said that it
was not over, because the Dallas employees were organizing.
A few days later, on about February 23, Smith told Nevils
that the Dallas office was “out of money,” but told Nevils that
they would “work it out” so that she could stay employed. On
February 26, Olsen called Nevils on the telephone and told her
that she had to lay her off because Portland was out of money
and they can’t have her there without paying her. Nevils asked
how could they have money the previous Friday, but not on
Monday. Nevils offered to go to another office to continue her
training, but Olsen told her that there wasn’t an office that she
could train in. Nevils said that there must be something more
going on that Olsen was not telling her. Olsen agreed that there
was.
Nevils learned the following day from John Rees what Olsen
had told him about the reason Nevils had been laid off.6
5. Layoff of Sarah Stephens and Erin Howley
On March 2, Olsen informed Stephens and Howley that they
were laid off. She met with each one separately. She told
Howley she was laid off because the organization did not have
enough funds to keep her, not because of the Union. She told
her that she might be called back to work in a month or so, but
there was no guarantee. Howley then saw Olsen take a letter
supporting the Union which was in the office, crumple it, and
throw it in the trash. Olsen told Stephens that the organization
was “broke,” and told her the same thing about a possible re-
call.
6. Respondent’s economic defense
Respondent’s finances, always in somewhat straitened cir-
cumstances, became unusually precarious during mid-2000
through mid-2001. As outlined above, Respondent’s income
comes entirely from dues, fundraising of various kinds, and
grants. According to the testimony of Liz Wolff, who was a
generally credible witness, the entity which handled the bank
accounts, bill paying, and bookkeeping for all the local offices
was not doing its job properly and basically collapsed. Wolff
was Respondent’s Texas coordinator in 2000, but was drafted
by the national organization to help straighten out the account-
ing and bookkeeping shambles which occurred in 2000. While
many of Respondent’s offices were in poor financial shape, the
Dallas office was among the worst off, Wolff testified, because
Olsen had failed to submit certain expenses, such as employee
health insurance contributions, which were expected to be paid
out of the Dallas office’s funds. She had also neglected to have
her staff do an appropriate amount of fundraising, according to
Assistant Director Helene O’Brien, because she was so busy
with the Dallas “living wage” campaign. According to Re-
spondent, it was this unusual financial situation which caused
Olsen to lay off Nevils, Howley, and Stephens. O’Brien testi-
6 On cross-examination, Nevils testified about her postlayoff re-
quests to be allowed to continue her training in another office and about
Respondent’s responses to these requests. I leave this issue to the com-
pliance stage of the proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 870
fied that she instructed Olsen to lay off two additional employ-
ees after the layoff of Nevils. I do not credit Olsen as to her
testimony that she did not inform O’Brien about the prounion
sentiments of Howley and Stephens. In any case, Olsen’s
knowledge of their prounion sentiments is imputed to Respon-
dent.
B. Discussion and Analysis
1. Olsen’s meeting with Rees
I find that Olsen’s statements to Rees on February 26 to the
effect that employees in Seattle were being fired because of the
Union, and that Nevils was fired for this reason were coercive
and violated the Act. In addition, her remarks to the effect that
the Union was “trying to destroy” Respondent and that she
should not have to take orders from employees demonstrate her
determined animus towards the Union and employee attempts
to support the Union.
2. Olsen’s meetings with Stephens and Howley
Olsen’s questions to Howley and Stephens on February 26
and again on March 1, as to why they needed a union, and what
its benefits would be are coercive interrogation and violate the
Act. Rossmore House, 269 NLRB 1176 (1984); Twin City
Concrete, Inc., 317 NLRB 1313, 1317 (1995). Although How-
ley and Stephens openly supported the Union, supervisory
questioning as to the motives or reasoning underlying employ-
ees’ sentiments about the Union have been held to be coercive.
Her statement that the Union would bring Respondent down,
joined with her stated willingness to work with the employees
as individuals (implying rather than dealing with the Union)
was a threat that selecting the Union would be futile. It is well
settled that threats of serious harm in text of other unfair labor
practices are coercive and violate Section 8(a)(1). Reno Hilton
Resorts Corp., 319 NLRB 1154, 1155 (1995). Her reference in
the same conversation to the employee who wrote the union
newsletter as a “poison pill” is an expression of animus towards
the Union and its employee supporters.
The General Counsel introduced evidence of management e-
mail communications in March 2001 in which Helene O’Brien,
among others, expressed some antipathy to the union organiz-
ing effort. While this evidence is from a period after the three
layoffs at issue here, it was shortly after the layoffs and I find
that it is some evidence of animus on the part of Respondent.
3. Olsen’s layoff of Gigi Nevils
During her 3 weeks in Portland, Nevils displayed her support
for the Union openly, telling the Portland supervisor, Kent
Smith, that the Dallas employees (of whom she was one) all
supported the Union. The General Counsel has therefore estab-
lished the first two prongs of a prima facie case under Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1982), cert. denied 455 U.S. 989 (1982). The third element,
that of antiunion animus, has been shown by the remarks of
Olsen about the Union described above.
Olsen laid off Gigi Nevils after weeks of assuring her that
even though the Dallas office was low on funds, that something
would be worked out. She was laid off shortly after Kent
Smith’s assurances to her that she would be kept on, and within
a day or two of her remark to Kent Smith that the Dallas em-
ployees were supporting the Union. Thus, the timing of her
layoff tends to show a connection between her avowed union
support and her layoff. Other evidence of such a nexus can be
found in the fact that on the same day Olsen informed Nevils of
her layoff, Olsen told John Rees that the reason Nevils was
fired was the Union. I find that the General Counsel has estab-
lished a prima facie case that Nevils was discharged because of
her announced support for the Union.
4. The layoffs of Howley and Stephens
As with Nevils, it is clear that both Howley and Stephens
showed Olsen that they supported the Union, both by talking
about their support openly, and by requesting a meeting with
Olsen to discuss implementing some of the Union’s demands in
the Dallas office. Again, Olsen demonstrated her animus to-
wards the Union. The timing of the two layoffs, coming within
a day of the meeting concerning the Union and the employees’
desires for changes in some of their working conditions, is evi-
dence of a connection between the decision to lay off Howley
and Stephens and their union support and activities. I find that
the General Counsel has established a prima facie case that
Howley and Stephens were laid off because of their support for
the Union.
5. Respondent’s defenses
Respondent has raised two primary defenses, first, that it
could not have been motivated by antiunion animus in its sepa-
ration of the three employees because of its principles as an
organization, and second, that the financial condition of Re-
spondent was the only motivating factor, or was such that the
three employees would have been laid off even absent any un-
ion activities.
Respondent’s defense that it could not possibly have har-
bored antiunion animus nor acted upon such animus because to
do so would have been against its principles is entitled to very
little weight. Respondent is presumed to be neither more nor
less prone to unfair labor practices than any other respondent.
Respondent’s status as a nonprofit organization rather than as a
for-profit enterprise endows it with no extraordinary presump-
tions in the eyes of the law. Furthermore, its avowed pursuit of
ameliorative works in the community does not insure that every
individual in its organization will invariably act in accord with
complete moral and legal correctness. Human nature is more
complicated than that.
Respondent’s economic defense requires careful considera-
tion. It is clear that the Dallas office was in extremely poor
financial shape in February 2001. It is not clear, however, that
its financial condition at that time was significantly worse that
its financial condition during the preceding 12 months. If it
was worse, the evidence does not show in what proportion it
differed from the financial condition of the recent past, or that
layoffs were the only or even the normal response to the situa-
tion.
The Dallas office had been operating without sufficient
funds for several months at the time of the layoffs. Late pay-
checks for the employees were relatively commonplace at the
Dallas office, and were not unknown at many other offices. Liz
Wolff testified that she had informed Olsen of the severity of
ASSN. OF COMMUNITY ORGANIZATIONS FOR REFORM NOW (ACORN) 871
the financial problem repeatedly from December 2000 through
February 2001. Wolff and O’Brien both urged Olsen to come
up with a plan to deal with the financial shortfall. Another
Respondent supervisor, Beth Butler, suggested increased fund-
raising strategies to Olsen. Olsen ignored this advice, and in
both December 2000 and January 2001 hired additional em-
ployees. On cross-examination, she testified that she “didn’t
realize” the office was $20,000 behind in its accounts, and
didn’t remember to allocate money for required costs such as
health insurance. Neither Wolff nor Helen O’Brien told Olsen
that she could not hire employees, nor did either of them give
Olsen specific directives about finances.
Both Wolff and O’Brien testified about other offices around
the country which had severe financial difficulties at the same
time, such as Los Angeles and Denver. In the other offices, the
supervisor of the office increased the fundraising duties of the
employees, in one or more offices assigning employees to do
fundraising 100 percent of the time. Some employees quit
under these circumstances, thus reducing the payroll in those
offices. O’Brien testified that in March 2001, she instructed
Kent Smith to lay off employees in the Portland office. Smith
discussed the situation with the employees, two of whom vol-
unteered for layoff, thus essentially quitting. O’Brien testified
that she was unaware of any layoffs from any Respondent of-
fices in the 3 years she has held a national management position
other than those of Nevils, Howley, and Stephens, and the Port-
land voluntary layoffs.
O’Brien testified that she finally instructed Olsen on March 1
that she had to lay off two employees, and the two most junior
employees, Howley and Stephens, were chosen. There was
apparently no discussion of the fact that several employees,
including John Rees, had recently quit, nor was there any dis-
cussion of alternate strategies for staying afloat, such as the
full-time fundraising being undertaken by other offices. For at
least 2 months, O’Brien had given Olsen no guidance, training,
or directives about how to solve her office’s financial problems,
but had simply continued to urge her to come up with a plan.
Suddenly, she gave Olsen a directive to take specific action—to
lay off two employees. O’Brien changed her approach to Olsen
from scrupulously nondictatorial to specific and directive.
O’Brien gave no explanation for her about face in handling
Olsen’s financial mismanagement. Furthermore, O’Brien did
not explain why Respondent ordered Olsen to lay off employ-
ees in Dallas rather than to undertake one of the alternate
strategies used in other offices, such as full-time fundraising.
The facts that layoff was an uncharacteristic recourse for Re-
spondent in its relatively commonplace financial crises, that
other offices in similar financial condition did not lay off em-
ployees, but instead increased fundraising activities, and the
abrupt about face of Respondent from a hands off approach to
Olsen’s office, to a specific directive to lay off two employees,
are all facts which tend to show how unusual and unprece-
dented the layoffs were. Far from proving Respondent’s de-
fense that it would have acted the same even in the absence of
the employees’ union activities, these facts tend to show the
opposite. I find that Respondent has not carried its burden of
proving its asserted defense. I find that Respondent violated
Section 8(a)(3) of the Act when it laid off Nevils, Howley, and
Stephens.
CONCLUSIONS OF LAW
1. By interrogating employees about their union activities,
by informing employees that other employees have been dis-
charged because of the Union, by threatening employees that
selecting the Union to represent them will be futile, and by
threatening employees with discharge, Respondent has violated
Section 8(a)(1) of the Act.
2. By laying off Gigi Nevils, Sarah Stephens, and Erin How-
ley, Respondent has violated Section 8(a)(3) and (1) of the Act.
3. The violations set forth above are unfair labor practices
affecting commerce within the meaning of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it be required to cease
and desist therefrom and to take certain affirmative action nec-
essary to effectuate the policies of the Act.
I shall also recommend that Respondent be ordered to re-
move from the employment records of Gigi Nevils, Sarah
Stephens, and Erin Howley any notations relating to the unlaw-
ful action taken against them and to make them whole for any
loss of earnings or benefits they may have suffered due to the
unlawful action taken against them, in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in accordance with New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The Respondent, Association of Community Organizations
for Reform Now (ACORN), Dallas, Texas, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities, in-
forming employees that other employees have been discharged
because of the Union, threatening employees that selecting the
Union to represent them will be futile, and threatening employ-
ees with discharge.
(b) Laying off employees because of their support for the
IWW or any other labor organization, or because of their con-
certed protected activities.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 872
(a) Within 14 days from the date of this Order, offer Gigi
Nevils, Sarah Stephens, and Erin Howley full reinstatement to
their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(b) Make Gigi Nevils, Sarah Stephens, and Erin Howley
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set
forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful layoffs of Gigi Nevils,
Sarah Stephens, and Erin Howley, within 3 days thereafter
notify the employees in writing that this has been done and that
the layoffs will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its
Dallas, Texas location copies of the attached notice marked
“Appendix.”8 Copies of the notice, on forms provided by the
Regional Director for Region 16, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since February 26,
2001.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

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