Damon House, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 143 (N.L.R.B. 1984)

DAMON HOUSE, INC.
Damon House, Inc. and Peter Deykerhoff and Wil-
liam Maldonado. Cases 22-CA-11765 and 22-
CA-11789
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 18 July 1983 Administrative Law Judge
James F. Morton issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a reply to the Gen-
eral Counsel's exceptions and exceptions with a
supporting brief.
The National Labor Relations Board has delegat-
ed 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,l and
conclusions and to adopt the recommended Order.
Contrary to the judge, we find that the counsel-
ors were addressing matters which had a direct
impact on their job interests when they protested
against "Arbitrary Administrative Practices," em-
bracing promotions, demotions, and continuing
threats of discharge, and that this portion of their
activity was, therefore, protected by Section 7 of
the Act. Nevertheless, we agree with the judge's
ultimate conclusion that the General Counsel failed
to establish that the counselors were discharged for
engaging in protected concerted activity. Despite
the reference to arbitrary administrative practices,
the overwhelming majority of concerns expressed
in the letter were not directly related to job inter-
ests. The letter opened with the assertion that the
"whimsical, arbitrary, irrational and unethical ad-
ministrative practices" of Director Gregory Marra
had a "devastating impact on the welfare of the
residents, the morale of clinical/social service staff
members, and the overall functioning and integrity
of Damon House." The letter went on to accuse
Marra of using adolescent residents to repair his
i Chairman Dotson would exercise the Board's discretion under Sec.
14(cXI) of the Act to decline jurisdiction over this Employer. He would
return to the rule explicated in Ming Quong Children's Center, 210 NLRB
899 (1974), and Cornell University, 183 NLRB 329 (1970), that the Board
will not exercise jurisdiction over nonprofit charitable institutions except
where it finds that a particular class of such institutions has a "massive
impact on interstate commerce."
The Board's jurisdictional rule announced in St. Aloysius Home, 224
NLRB 1344 (1976), was not based on any evidence of the impact on
interstate commerce of operations such as the Employer's in this case,
and the Board has yet to consider evidence which could establish "mas-
sive impact." See the dissenting opinion of Chairman Dotson in Alan
Short Center, 267 NLRB 886 (1983); dissenting opinion of then Chairman
Murphy and then Member Penello in St. Aloysius Home, 224 NLRB 1344,
1346 (1976).
270 NLRB No. 26
own home without adequate compensation; arbi-
trarily promoting, demoting, and threatening to dis-
charge counselors; sending adolescents out "for
long hours without supervision and with little
food"; and charging expensive meals and drinks on
his business credit card. The letter closed with a
plea to the board of directors to take action "to put
an end to the obviously unethical and unconscion-
able practices of the Executive Director." Despite
the reference to arbitrary demotions and threats to
discharge, the overall thrust of the letter is an
attack on Marra's ethics and his impact on the ado-
lescent residents. An attack which, as the judge
found, expressed a genuine concern for the resi-
dents' living conditions but was not directly related
to the employees' working conditions.
In these circumstances, we must conclude that
the portions of the letter that are job related are
outweighed as factors leading to the discharge and
that the Respondent, therefore, has established that
it would have discharged the employees for unpro-
tected concerted activity even in the absence of
their protected activity.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. Upon
a charge filed on July 21, 1982, by Peter Deykerhoff,
and a charge filed on August 5, 1982, by William Mal-
donado, a consolidated complaint was issued on Septem-
ber 30, 1982, by the Regional Director for Region 22 of
the National Labor Relations Board, on behalf of the
General Counsel. The complaint, as later amended, al-
leged that Damon House, Inc. (the Respondent) violated
Section 8(aXI) of the the National Labor Relations Act,
by having:
(a) Discharged Peter Deykerhoff on July 19, 1982
(b) Suspended John Zambri and William Maldonado
on July 26, 1982
(c) Discharged Zambri on August 2, 1982
(d) Discharged Maldonado on August 4, 1982
The Respondent's answer, filed on October 12, 1982,
averred that it is not an employer within the meaning of
the Act and denied that the Respondent had engaged in
any unfair labor practices. The hearing was held before
me on March 21, 22, and 31, 1983.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respond-
ent, I make the following
143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a nonprofit corporation of the State
of New Jersey which provides drug rehabilitation and
related services to individuals at its facilities in New
Brunswick, New Jersey, Paterson, New Jersey, and
Brooklyn, New York. It annually receives funds in
excess of $250,000 of which $208,000 were received by
the Respondent in 1982 from the State of New York at
the Respondent's principal office located in New Bruns-
wick, New Jersey, for use in connection with the Brook-
lyn facility. I find that the Respondent's operations meet
the applicable jurisdictional standard set by the Board.'
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent treats over 100 drug and alcohol
abusers, many of whom are minors and on parole. They,
for the most part, reside at the New Brunswick and Pa-
terson facilities and take part in various vocational pro-
grams, operated by the Respondent, one of which has to
do with the performance of construction work and uses
the trade name, Damon Enterprises.
The residents undergo an 18-month treatment program
which is aimed at encouraging them to develop a posi-
tive outlook on their lives by the use of a combination of
self-help, counseling, and peer pressure. New residents
are said to be in "Peer 1"; as they progress in their atti-
tude and treatment, they move to "Peer 2" where they
are more on their own; as they come toward that end of
the program, they are in "Peer 3."
The Respondent's executive director is Gregory
Marra. He is responsible for all aspects of its operations.
In mid-1982, Ted Del Guercio held the title, director of
residential services. In that capacity, he appears to have
run the day-to-day operations as he was director of resi-
dential services at New Brunswick and Paterson and also
handled the negotiations for the contract which provided
for the opening of the Brooklyn facility.
Most of the funding for the Respondent's operations
comes from public sources and from private donations.
A not insignificant part, however, also comes from raf-
fles held on tickets sold by residents from May to Octo-
ber each year.
B. The Accusation Against the Respondent's Executive
Director
The three alleged discriminatees in this case, Peter
Deykerhoff, John Zambri, and William Maldonado were
employed by the Respondent as counselors when they
were discharged in the summer of 1982. All dates hereaf-
ter are for 1982 unless noted otherwise.
Deykerhoff had worked for the Respondent for about
1-1/2 years until his discharge, at which time he was
screening new residents as the "intake coordinator," and
also counseling outpatients. He testified that in May al-
l See East Oakland Community Health Alliance, 218 NLRB 1270
(1975).
leged discriminatee Zambri had complained at a staff
meeting that residents assigned to him were being used in
the Damon Enterprises program on a regular basis to
repair Executive Director Marra's house and that those
residents were at the entry level, Peer 1. It appears that
Peer 3 residents normally are used in the operation of
Damon Enterprises. Deykerhoff related that Zambri re-
ported then that he had problems dealing with those resi-
dents when they returned to the Paterson facility after
being in the field all day.
Zambri's account was detailed. He testified that six
residents assigned to him were working for Damon En-
terprises for weeks at a time so that he barely saw them.
Zambri related that he took his job seriously and that
that arrangement made his job very difficult.
Another matter discussed among the staff counselors
pertained to the sale of raffle tickets. Deykerhoff,
Zambri, and Maldonado had talked at various times
about the fact that many residents, including those in
Peer 1, were sent to shopping malls and other public
areas to sell those tickets. According to the testimony of-
fered they held Executive Director Marra responsible for
those assignments. Those residents were reportedly as-
signed to those locations for 12 to 14 hours a day, 3 days
a week and that they were unsupervised. The accounts
of Deykerhoff, Zambri, and Maldonado indicated that
they believed that those residents were also not given
enough food or money for their meals during those ex-
cursions and, just as important, they were being exposed
to a great deal of adverse pressures. In particular, the
testimony of the alleged discriminatees indicated that the
Peer I residents were being placed in locations where
they readily could be charged with shoplifting or with
"acting out sexually" (as it is phrased) or with other im-
proper behavior and that that environment was "emo-
tionally draining" on the counselors.
Another subject discussed among Deykerhoff, Zambri,
and Maldonado was their view that the Respondent's ex-
ecutive director Marra created morale problems by regu-
larly threatening counselors, directly and indirectly, with
discharge, often times without merit.
At various points, the three alleged discriminatees had
discussed bringing to the attention of the Respondent's
board of directors their complaints as to the abusive
practices of Executive Director Marra. Deykerhoff testi-
fied that about 2 weeks before he wrote to the Respond-
ent's chairman, as related next, he told Zambri that such
an approach might get something done with "the pro-
gram" and Zambri agreed they should try. On July 14,
Deykerhoff sent a long letter with attachments to Philip
Befumo, chairman of the Respondent's board of direc-
tors. It appears that he did not inform Zambri or Mal-
donado just before he sent the letter out, that he had pre-
pared it or that he was going to send it. Copies however
were mailed to all counselors including Zambri and Mal-
donado. In addition, Deykerhoff sent copies to the par-
ents of all the residents and copies also to various state
and county offices.
The Respondent's director of residential services Ted
Del Guercio had given Deykerhoff the names and ad-
144
DAMON HOUSE, INC.
dresses of the parents of the residents so that he could
mail them copies of his letter.
C. The July 14 Letter
The opening paragraph reads:
I have worked as a counselor, outreach coordina-
tor and program director at Damon House's Pater-
son residential facility for the past one and one-half
years. During that period of time, I have thorough-
ly enjoyed my work with adolescent polysubstance
abusers and hope to continue the same type of work
in the future. However, I feel very strongly that, at
this point in time I cannot continue that work at
Damon House and maintain any semblance of per-
sonal and professional integrity while this agency
remains under the administrative direction of Mr.
Gregory Marra. His often whimsical, arbitrary, irra-
tional and unethical administrative practices have
had and continue to have a devastating impact on
the welfare of the residents, the morale of
clinical/social service staff members, and the overall
functioning and integrity of Damon House. I would
like to express what I feel are very grave concerns
that demand some form of immediate redress.
The remainder of Deykerhoff's letter is divided into
four parts. The first part contains the allegation that
Marra used adolescent residents to repair his own house
and that he did not give them "adequate compensation."
He was accused of having committed an "obvious viola-
tion of the Therapeutic Communities of America Code
of Ethics."
Deykerhoff, as a second point in his July 14 letter, as-
serted that Marra was guilty of "Arbitrary Administra-
tive Practices." In particular, the letter stated that Marra
had appointed him, Deykerhoff, to a responsible post,
but provided him with no training for or guidance in
handling those responsibilities and then summarily and
"arbitrarily" demoted him, from that post. Deykerhoff
then related in his letter that various staff memos issued
by Marra exemplified Marra's "arbitrariness." Attached
to the July 14 letter was a memo of March 29 signed by
Marra warning the Paterson counselors that they may be
looking elsewhere for work in 30 days. Deykerhoff's
letter noted that Deykerhoff's work for March was
praised by a "regional supervisor." Again, Deykerhoffs
letter referred to a memo from Marra also in March
which was apparently critical of the operation in that
month of the admissions program, an area for which
Deykerhoff had a measure of responsibility. Deykerhoff's
letter notes that, if Marra had any knowledge of what he
was talking about, he could easily have seen that for that
month, the retention rate was the highest in the preced-
ing 2 years.
The third point in Deykerhoff's letter pertained to his
complaint that adolescents had been sent out in 1980 and
1981 to push the sales of raffle tickets, "perhaps" to raise
money to "pay (Marra's) salary; finance his numerous
'business trips,' or pay for the construction work on his
house." Deykerhoff stated in his letter that Marra sent
out the adolescents for long hours, without supervision
and with little food which resulted in "numerous prob-
lems ... (i.e.-use of drugs, arrest)."
In the fourth part of the letter, Deykerhoff accused
Marra of having referred to several staff members as "in-
competent, fat slobs"; of having been intoxicated while
vacationing in San Francisco, at which time Marra alleg-
edly had ruined the engine of a rented car; and of charg-
ing an expensive meal with drinks on his business credit
card, in violation of the Respondent's rules.
His letter concluded with the following observation:
One could continue on ad infinitum regarding
Mr. Marra's egocentric, condescending and com-
pletely disrespectful personal behavior-including
repeated attempts to interfere in the personal lives
of certain staff members.
In closing I can only implore the members of the
Damon House Board of Directors to take some
form of definitive action to put an end to the obvi-
ously unethical and unconscionable practices of the
Executive Director. I, for one, have spoken to rep-
resentatives of outside agencies regarding this
matter and will continue to do so.
The Respondent asserts that the July 14 letter con-
tained willful, malicious falsehoods. Relevant thereto, it
adduced evidence that Marra had sent a memorandum to
the staff in early 1982 stating that new residents were not
to be sent out on raffle sales. The testimony however is
uncontroverted that the practice of assigning new resi-
dents to such sales continued after Marra's memo had
been sent and it appears that Marra himself was directly
responsible for the functioning of the raffle program.
The Respondent separately contends that Deykerhoff's
letter was not part of a concerted action by employees.
Relevant to that contention, Deykerhoff answered, in the
affirmative, in the course of his cross-examination, when
asked if he had written the July 14 letter "in his own
behalf." I do not construe that answer as a denial that it
was written in behalf of other counselors. On redirect ex-
amination, Deykerhoff noted that the complaint as to
Peer I residents working on Damon Enterprises could
not have affected his own duties as intake counselor; the
testimony of Zambri relevant to that aspect of the July
14 letter has been noted above.
D. The Discharge/Suspensions
On July 19, Deykeroff was told by Marra that he was
discharged for writing and sending copies of his letter to
the parents of the residents at Paterson. Deykerhoff has
stated that he would not work for the Respondent so
long as, in effect, Marra was in charge.
On July 18 Zambri received his copy of the July 14
letter. He then telephoned about 20 parents of the resi-
dents. Most of them informed him that they had already
received copies of the letter. Zambri urged them to write
their own letters to the Respondent's board of directors
urging support for the views expressed by Deykerhoff.
On July 19, Zambri was suspended for I week for
having left work early.2 On July 27 he was present at a
' That suspension is not alleged as a violation.
145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting of the Respondent's board of directors. He had
been told that he would be asked at the board meeting
about the matters set out in the July 14 letter. Instead, he
was asked only about the reasons behind his suspension
19 July. He was informed on July 27 that he could
report back to work on August 2. The General Counsel
alleges that the failure by the Respondent to reinstate
Zambri on July 27 constituted a discriminatory suspen-
sion which culminated in his discharge on August 2. On
August 2, the Respondent's program director William
Bryant asked him about the discussions he had held on
July 19 with the parents of the residents at Paterson. He
replied that he had urged the parents to write to Philip
Befumo, the Respondent's chairman. He was thereupon
discharged. His discharge had been authorized by the
Respondent's board of directors.
On July 22, Maldonado had shown his copy of the
July 14 letter to two residents at the New Brunswick fa-
cility, both of whom were about 26 years of age. Mal-
donado was told on July 26 that he was suspended pend-
ing a decision of Respondent's board of directors. Later
that day, he was told by the Respondent's chairman
Philip Befumo that the accusations against him were that
he had held a sitin at the Brooklyn facility, that he had
spoken to residents about the July 14 letter, and that he
had held clandestine staff meetings. Befumo told him that
he would be told later the status of his suspension. On
August 9 he telephoned Befumo to inquire as to his
status and was told then that he was discharged because
his interests were no longer those of the Respondent's.
Respecting the "sit-in" referred to by Befumo on July
26, the only evidence that seems related to that matter is
the testimony of the Respondent's executive director
Marra that there had been a sitin staged at the Respond-
ent's facility in Brooklyn by people living in the vicinity
of that facility, that the sitin was their way of protesting
the location of the facility there and that the Respond-
ent's "information was that a staff member over there
was responsible for inciting these people against Damon
House" and that Maldonado had been assigned "2 days a
week . . . to New York (where he) spent most of his
time working on some kind of newspaper route."
The clandestine meeting Befumo referred to may have
to do with a meeting Maldonado attended at the
Wooden Nickle restaurant in the vicinity of the Re-
spondent's facility in New Brunswick. Maldonado testi-
fied that he and several other counselors met there in
June and discussed the complaints they had against
Marra, which essentially paralleled most of those dis-
cussed in the July 14 letter. Maldonado testified in es-
sence that they discussed "possible alternatives to re-
place" Marra as executive director. At one point in his
account, Maldonado indicated that this subject had been
discussed on several occasions with the apparent hope on
his part and of the others present that the Respondent's
board of directors would replace Marra, possibly with
Del Guercio.
The Respondent presented two witnesses, Alvin Wynn
and Michael Kerton, who testified that Maldonado told
them in July that there would be some changes made
when Respondent's board of directors would replace
Marra and others in the administration and that Maldon-
ado expressed the view that Maldonado, Deykerhoff, et
al. would then be in charge. Insofar as their testimony
may be said to conflict with that of Maldonado's, I reject
their version as the counselors did not impress me as
being particularly concerned with personal aggrandize-
ment. It seems unlikely to me that they would then or
ever have seriously entertained any idea of there being a
massive transfer of administrative personnel.
E. Analysis
The evidence clearly establishes that Deykerhoff,
Zambri, Maldonado, and others discussed among them-
selves the complaints they had about Marra, and that
they discussed the feasibility of Deykerhoff's reducing
those complaints to writing for submission to the Re-
spondent's board of directors. The evidence shows that
Deykerhoff then drafted the letter and sent it to Befumo,
the parents, to other counselors, to state and county offi-
cials and to others. The Respondent urges that since
tleykerhoff did not review directly that letter with any
other employee prior to his sending it out, the General
Counsel has failed to prove that the alleged discrimina-
tees were engaged in a concerted endeavor. Taking the
sending of the letter in context, including the matters
that preceded its issuance and those subsequent, and
noting particularly Zambri's efforts to solicit parental
support and Maldonado's attempts to involve the resi-
dents, it seems clear to me that the alleged discriminatees
were engaged in concerted activities, of which the letter
was a part. s
The Respondent separately contends that the General
Counsel has not shown that the Respondent had knowl-
edge of the fact that the alleged discriminatees acted
concertedly. This contention overlooks the reference in
the July 14 letter to staff morale and to the disparate
treatment allegedly accorded staff personnel and over-
looks too, the contemporaneous, supportive acts of
Zambri and Maldonado on which the Respondent predi-
cated their suspensions and, later, their discharges. I find
that the General Counsel has sustained the burden in that
regard. 4
There remains for consideration whether or not the
activities of these three individuals is protected. There
are two aspects to that issue. The first has to do with the
Respondent's contention that the three counselors were
concerned only with their own personal advancement
under a new executive director of their own choice,
i.e.-Del Guercio. I find it difficult to accept that con-
tention. Individuals, such as these counselors, who wait
around to collect urine samples from drug abusers and
who have chosen to spend their adult lives working with
parolees and others classified as "incorrigibles" would
not likely weave such an elaborate, unprincipled conspir-
acy as the Respondent would have me find. Under all
the circumstances of this case, I find that the July 14
letter could be at most "rhetorical hyperbole" and that it
was not thereby removed from the Act's protection.5 I
3 Richboro Community Mental Health Council, 242 NLRB 1267 (1979).
4 See McDonnell Douglas Corp., 260 NLRB 1354 (1982).
' See Mount Desert Island Hospital, 259 NLRB 589 (1981); Richboro,
supra.
146
DAMON HOUSE, INC.
find instead what seems to be obvious-that the counsel-
ors were genuinely concerned for the welfare of their
charges and that they believed that Marra's performance
as executive director was not in the best interests of the
residents. Insofar as the General Counsel may be urging
that the main purpose of their actions is to promote their
own working conditions, I must also reject that conten-
tion. The language of the July 14 letter and the tenor of
the testimony given by the General Counsel's witnesses
themselves make it clear that the perceived impact of
Marra's policies on the working conditions of the coun-
selors was an ancillary concern. That fact does not there-
by render their activities unprotected. The essential ques-
tion is whether the General Counsel has proffered evi-
dence that connects (a) the "philosophical" or policy dif-
ferences the counselors had with management with (b)
their working conditions, while noting that mere asser-
tions that managements policies place an "undue burden"
on the counselors would be insufficient to make such a
connection. s The activity must have a direct impact on
their job interests.7 The phrase "job interests" clearly
embraces more than the immediate employment relation-
ship as otherwise the Section 7 phrase "other mutual aid
or protection" would be read out of the Act.8 The ques-
tion of whether or not concerted activities by employees
to protest the selection or termination of a supervisor is
protected "depends on the facts of each case."9 Activi-
ties to protest the retention of a supervisor, as in the in-
stant case, should in my view be subject to the same con-
cept as retention is but another facet of a supervisor's
tenure, as are obviously his selection or dismissal.
Board cases provide some guidance as to what consti-
tutes protected activities in this area and what does not.
Thus, in one case, it was held that a strike by employees
to protest the discharge of a working supervisor was
protected as the production work performed by that su-
pervisor had an obvious, immediate effect on the work
done by the employees themselves. °I That concept was
later extended to a strike to protest the discharge of a
line foreman where the evidence disclosed that the line
foreman himself had made an extra effort beyond the
more customary supervisory responsibilities to establish a
rapport with the employees who later sought to aid
him.1" The Board however has declined to extend that
concept to an employee protest as to the discharge of a
supervisor and as to related concerns where the evidence
disclosed only that the employees viewed those actions
as placing an "undue burden" on them and that there
was no other connection between their protest and their
working conditions. 12 Where a low-level supervisor is
identified by employees as supportive of their interests
against those of "top management," a strike by these em-
ployees in support of that supervisor "had an identifiable
6 The principle is set out in the opinion of the panel majority in Phase,
Inc., 263 NLRB 1168 (1982).
' American Federation of State, County and Municipal Employees, 262
NLRB 946.
s G d W Electric Specialty Co., 154 NLRB 1136, 1138 (1965).
9 Puerto Rico Food Products Corp., 242 NLRB 899, 900 (1979).
1o Plastilite Corp., 153 NLRB 180 (1965).
" Puerto Rico Food Products Corp., supra.
]" Phase, Inc., supra.
direct impact on the employees' own job interests." ' 3 On
the other hand, an effort to remove "top management"
in order to resolve a broad community problem unrelat-
ed to working conditions was held unprotected.' 4 Very
recently, the Board found unprotected repeated criti-
cisms by two employees as to their own supervisor's as-
serted ability to manage a grant of state money, even
though the employees complained that the supervisor in
question, by his mismanagement made their jobs "more
difficult.""
In the case before me, the counselors' activities chal-
lenged the Respondent's retention of Marra as its execu-
tive director, that is, these activities sought "to effect a
change in top management," to use the Board's lan-
guage."' Yet, the basic question seems to remain the
same' 7-whether their activities were nonetheless direct-
ly related to their job interests and the merits thereof
depend on the facts of this case. It is necessary then to
make as detailed an analysis of those facts as is possible.
In doing so, I shall examine into the specific matters
complained of in the July 14 letter in deciding whether
or not they are directly connected with the counselors'
job interests. The opening paragraph has a reference to
staff morale. In my judgment, that statement is too vague
for it to be given significant weight.
The first charge made against Marra in the July 14
letter is that he engaged in "resident exploitation." There
is no reference under that heading of employee working
conditions. While Deykerhoff observed that staff mem-
bers were discharged in the past for exploiting residents,
he obviously is not objecting to that but rather is urging
that Marra be shown the same courtesy. It seems to me
that that protest is indirectly related to the working con-
ditions of the counselors, at best.
The second section of the letter is headed, "Arbitrary
Administrative Practices." The discussion thereunder
pertains to managerial indiscretions on Marra's part: (a)
by his allegedly making personal assignments without
providing appropriate training first and (b) by his alleg-
edly misusing statistical data to support his demand that
the counselors satisfy his work demands. Again, that area
of concern seems to me to be indirectly related to work-
ing conditions.
The third point in the letter relates to the sale of raffle
tickets. The opening sentence thereunder cites the al-
leged overall detrimental impact those sales "have had
on the treatment process." Deykerhoff next observes that
Marra had on May 18 irrationally cut the food and drink
budget for adolescents while out on ticket sales and Dey-
is Mead Corp., 211 NLRB 657 (1974). See also Abilities 4 Goodwill
Inc., 241 NLRB 27 (1979), and Dobbs Houses Inc., 135 NLRB 885 (1962).
1 New York Chinatown Senior Citizens Coalition Center, 239 NLRB 614
(1978). See also Retail Clerks Local 770, 208 NLRB 356 (1974).
I' Good Samaritan Hospital 4 Health Center, 265 NLRB 618 (1982).
' New York Chinatown, supra.
' I note that in Lutheran Social Service of Minnesota, 250 NLRB 35, 41
(1980), it was observed that protests about low-level supervisors may be
protected but not those against "top management." I construe that state-
ment as a general proposition based on experience but not as a rule of
law as the cases cited for that proposition apply the same balancing test
as I have found applicable and as there are too many other cases where
protests against top management have been found to be protected, e.g.,
Philander Smith College, 246 NLRB 499 (1979); Richboro, supra.
147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
kerhoff concludes with the observation that Marra has
put his own personal welfare ahead of the educational
needs of the residents. Again, I note that the expressed
concern for the residents' well being, however laudable,
is a matter at best from the General Counsel's point of
view, one step and perhaps further removed from the job
interests of the counselors.
In the last part of Deykerhoff's letter, Marra is ac-
cused of having at times made derogatory comments
about his "administrative staff; and concludes with de-
scriptions of two incidents, one in which Marra allegedly
became intoxicated in San Francisco while on vacation
and another in which he used a Damon House credit
card in New York City to pay for an expensive dinner."
that aspect of the letter seems to me to have only an in-
direct relation to the job interests of counselors, at best.
Under the applicable case law, I find that the evidence
is insufficient to establish that the counselors' complaints
as to Marra's performance was a matter directly related
to their job interests and hence the General Counsel has
failed to establish that their activities are protected by
Section 7 of the Act. The evidence in the record that
Marra's alleged misfeasance or malfeasance resulted in
the counselors' work being made more difficult is inad-
equate, under the cases discussed above, to bring their
activities within the protection afforded by the provi-
sions of Section 7 of the Act. In the circumstances of
this case, I do not see that that determination places "an
undue premium on (the counselors) ability to assess accu-
rately complex legal issues at a time when they are
acting spontaneously," particularly as the counselors
were "unorganized employees."'8 Had the July 14 letter
articulated clearly the particular job interests of the
counselors that were adversely affected by the various
Is The quoted material is taken from Puerto Rico Food Products Corp.,
supra at 900.
management policies with which they disagreed and had
the related activities of the three counselors been consist-
ent with that approach, presumably the evidence would
be sufficient to find that their acts would then have been
protected; and, presumably also, they would not have
been disciplined therefor.
The General Counsel alternatively asserts that the Re-
spondent's suspension and discharge of Maldonado were
violative of the Act in that the reason proffered therefor
was that he also was responsible for a "sit-in" in Brook-
lyn and for holding clandestine meetings. These were ob-
viously afterthoughts and in any event the evidence is in-
sufficient to establish that the alleged sit-in was a protect-
ed act or that the clandestine meeting referred to one
other than that pertaining to discussions bearing on the
same matters contained in the July 14 letter. I find no
merit in that alternate contention.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Respondent did not violate Section 8(aXl) of
the Act by discharging Peter Deykerhoff, William Mal-
donado, or John Zambri or by suspending Maldonado or
Zambri about July 29.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended I 9
ORDER
The complaint is dismissed.
" 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.
148