FiveCAP, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1165 (N.L.R.B. 2000)

FIVECAP, INC. 1165
FiveCAP, Inc. and General Teamsters Union Local
No. 406, International Brotherhood of Team-
sters, AFL–CIO. Cases 7–CA–37182, 7–CA–
37192, 7–CA–37296(1), 7–CA–37296(2), 7–CA–
37296(3), 7–CA–37514, 7–CA–37581(1), 7–CA–
37581(2), 7–CA–37581(3), 7–CA–37581(4), 7–
CA–37581(5), 7–CA–37581(6), 7–CA–37629, 7–
CA–37771, and 7–CA–37779
August 25, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On January 31, 1997, Administrative Law Judge Ste-
ven B. Fish issued the attached decision. The Respon-
dent filed exceptions and a brief in support and the Gen-
eral Counsel filed an answering brief.
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 as modified below.2
1. A primary issue in this case is whether the Respon-
dent is exempt from the Board’s jurisdiction as a political
subdivision. We agree with the judge that the Respon-
dent is not exempt from the Board’s jurisdiction, but only
for the reasons set out below.
Section 2(2) of the Act provides in relevant part that
“[t]he term ‘employer’ shall not include . . . any State or
political subdivision thereof[.]” Under the Board’s test
as described in NLRB v. Natural Gas Utility District of
Hawkins County, 402 U.S. 600, 604–605 (1971), entities
are exempt from the Board’s jurisdiction as political
subdivisions if they are “either (1) created directly by the
state, so as to constitute departments or administrative
arms of the government, or (2) administered by individu-
als who are responsible to public officials or to the gen-
eral electorate.” There is no contention here that the Re-
spondent was created directly by the State. Therefore, to
constitute a political subdivision, the Respondent must be
“administered by individuals who are responsible to pub-
lic officials or to the general electorate.” The Board will
find that an entity is an exempt political subdivision if a
majority of its board of directors “[is] responsible to pub-
lic officials or to the general electorate.” Economic Se-
curity Corp., 299 NLRB 562, 565 (1990). See also
Woodbury County Community Action Agency, 299
NLRB 554, 555 (1990).3 Thus, to decide whether the
Respondent is an exempt political subdivision, we must
determine whether a majority of its board of directors is
responsible to public officials or to the general electorate.
Before addressing this issue, we will briefly set out the
relevant facts.

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.
2 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144 (1996),
as modified in Excel Container, Inc., 325 NLRB 17 (1997).
The Respondent is a nonprofit corporation engaged in
the operation of Head Start programs, energy assistance
and housing programs, and meal assistance and related
programs. The Respondent serves four counties in
Michigan and has its principal office in Scottville,
Michigan. As a nonprofit community action agency that
receives federal funds pursuant to the Community Ser-
vices Block Grant (CSBG) Act, the Respondent is re-
quired to have a board of directors with a tripartite struc-
ture, with one-third of its members elected public offi-
cials or their representatives, one-third chosen from the
private sector, and one-third “persons chosen in accor-
dance with democratic selection procedures adequate to
assure that they are representatives of the poor in the area
served[.]”4 The State of Michigan incorporated this tri-
partite structure into law. Thus, Michigan Public Act
230, section 400.1111, requires that “[o]ne-third of the
members” of the board of a nonprofit community action
agency be chosen from each of these groups. Section
400.1111 also provides that “[c]onsumer representatives”
(i.e., the representatives of the poor in the area served)
“shall be selected through a democratic process[.]” The
Respondent’s bylaws also provide for a tripartite board
structure, with the three sectors defined as public sector,
private sector, and “group to be served.” The Respon-
dent’s bylaws do not, however, provide that the represen-
tatives of the group to be served be selected in accor-
dance with a democratic election procedure as required
under Federal and State law.
The Respondent’s bylaws merely require that to be a
candidate to represent the group to be served on the
board, an individual submit a petition to the board signed
3 While, as explained below, these cases were overruled in Enrich-
ment Services Program, Inc., 325 NLRB 818 (1998), the Board there
adhered to the principle that “[f]or an entity to be deemed ‘administered
by’ individuals responsible to public officials or to the general elector-
ate, those individuals must constitute a majority of the board.” Id. at
819 (footnote omitted).
4 The Community Services Block Grant Act, 42 U.S.C. § 9904(c)(3)
provides, in relevant part, that:
each board will be selected by the community action agency or non-
profit private organization and constituted so as to assure that (i) one-
third of the members of the board are elected public officials, currently
holding office, or their representatives, except that if the number of
elected officials reasonably available and willing to serve is less than
one-third of the membership of the board, membership on the board of
appointive public officials may be counted in meeting such one-third
requirement; (ii) at least one-third of the members are persons chosen
in accordance with democratic selection procedures adequate to assure
that they are representative of the poor in the area served; and (iii) the
remainder of the members are officials or members of business, indus-
try, labor, religious, welfare, education, or other major groups and in-
terests in the community[.]
331 NLRB No. 157
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1166
by 20 residents of the county from the group to be
served. The Respondent’s bylaws also require that the
board’s nominating and credentials committee draw from
such properly filed petitions to fill any vacancy on the
board. In theory, if there were more candidates from the
group to be served than board vacancies for that group,
the board would vote to fill the vacancies from among
the candidates whose petitions had been submitted for
consideration. In fact, however, as Mary Trucks testified
without contradiction, the number of petitions from the
group to be served never exceeded the number of board
vacancies for that group.
In asserting that it was a political subdivision of the
State of Michigan and therefore exempt from the Board’s
jurisdiction, the Respondent argued to the judge that it
was similar to the community action agencies which the
Board found were exempt from its jurisdiction in Wood-
bury, supra, and Economic Security Corp., supra, cases
in which the entities at issue also received Federal funds
pursuant to the CSBG Act and also had tripartite boards
of directors. In those cases, the resolution of the issue of
whether the employers were exempt political subdivi-
sions depended, as here, on whether a majority of their
boards of directors was responsible to public officials or
to the general electorate. Since it was undisputed in each
case that the one-third of the board composed of elected
public officials were responsible to the general electorate
and that the one-third of the board composed of commu-
nity leaders was not responsible to public officials or to
the general electorate, the determinative issue was
whether representatives of the poor in the area served
were responsible to the general electorate. See Economic
Security Corp., supra, 299 NLRB at 563; Woodbury,
supra, 299 NLRB at 555. In finding that they were, the
Board explained in Economic Security Corp., supra, 299
NLRB at 563, that
[since] the composition of the Employer’s board of di-
rectors is established by both Federal and state statutes,
including the requirement that one-third of the mem-
bers be “representative of the poor” and be chosen in
accordance with “democratic selection procedures[,]”
[i]n our opinion, the Federal and state statutes envision
an election by the poor of one-third of the members of
the board, and we find that individuals so chosen are
“responsible” by law “to the general electorate” within
the meaning of Hawkins County.
Similarly, in Woodbury, the Board found the one-third of
the board required to be elected by persons whose incomes
were “at or below poverty level” was also responsible to the
general electorate. In reaching this conclusion, the Board
relied on its decision in Economic Security Corp., supra, for
the proposition that “[t]he Hawkins County phrase ‘general
electorate’ has been broadly defined to encompass such
limited groups of electors as those in Woodbury, Iowa.”
Woodbury, 299 NLRB at 555 fn. 8.
In the present case, the Respondent contended, in ef-
fect, that to be consistent with its decisions in Economic
Security Corp., supra, and Woodbury, supra, the Board
was required to find that a majority of the Respondent’s
board of directors is responsible to the general electorate
and that therefore the Respondent is an exempt political
subdivision.
The judge, however, rejected this contention because
he found that the Respondent’s method of choosing
board members from the group to be served was suffi-
ciently different from that in Woodbury and Economic
Security Corp. to require a contrary result. In this regard,
the judge found that these board members were not de-
mocratically elected because they were chosen through a
petition procedure which he found “inherently coercive”5
and that therefore such representatives were not respon-
sible to the general electorate within the meaning of
Hawkins County, supra, and its progeny. Accordingly,
the judge found that a majority of the Respondent’s
board was not “administered by individuals who are re-
sponsible to public officials or to the general electorate,”
and that therefore the Respondent was not an exempt
political subdivision of the State of Michigan.
After the judge issued his decision in this case, the
Board rendered a decision in Enrichment Services Pro-
gram, Inc., 325 NLRB 818 (1998), in which the Board
reconsidered whether an entity which receives funds un-
der the CSBG Act is an exempt political subdivision. In
determining whether a majority of the board of such an
entity was comprised of individuals responsible to public
officials or to the general electorate, the Board framed
the issue as “whether the one-third of the board required
to be ‘representative of the poor’ [was] responsible to the
general electorate.” Id. at 819 (footnote omitted). Over-
ruling Woodbury, supra, and Economic Security Corp.,
supra, and all subsequent cases in which the Board had
found that CSBG Act antipoverty service programs were
exempt political subdivisions in circumstances where
“‘representative of the poor’ members of the tripartite
board were elected by limited groups of voters,” the
Board found that “individuals are responsible to the gen-
eral electorate under Hawkins County only if the relevant
electorate is the same as that for general political elec-
tions.”6 Id. at 820 and fn. 13 (footnote omitted) (empha-
sis added).

5 The judge found that while the petitions were supposed to be circu-
lated by the candidates themselves, the Respondent’s employees at food
distribution centers frequently circulated the petitions at times when the
Respondent’s clients received their discounted food. Since the Re-
spondent took no steps to assure its clients that there was no connection
between their signing the petitions and their receiving discounted food,
the judge found that at least some of the clients would likely perceive
that there was a connection between the two procedures. On this basis,
he concluded that the method of obtaining signatures was inherently
coercive.
6 The Board went on to explain, however, that its holding was not
inconsistent with the Board’s decisions in Salt River Project, 231
FIVECAP, INC. 1167
Applying this standard to the facts of Enrichment Ser-
vices, the Board found that the employer’s directors who
were “elected by the poor” were not “responsible . . . to
the general electorate” within the meaning of the Haw-
kins County test because the electorate comprised only
members of various low income neighborhoods, and
such an electorate was not the same as the electorate for
general political elections. 325 NLRB at 819–820. Ac-
cordingly, the Board found that the employer was not an
exempt political subdivision because less than a majority
of the employer’s board was comprised of public offi-
cials or individuals responsible to the general electorate.
Applying the Enrichment Services analysis to the facts
of this case, we find that the determinative issue here, as
in Enrichment Services, is “whether the one-third of the
board required to be ‘representative of the poor’ is re-
sponsible to the general electorate.” Enrichment Services,
325 NLRB at 819. This issue need not detain us long.
For, as the judge found, the Respondent’s bylaws require
that to be a candidate to represent the group to be served
one must only submit a petition signed by 20 residents of
the county from the group to be served. Since individu-
als chosen by such a procedure are not elected by an
electorate that “is the same as that for general political
elections,”7 we find that they are not responsible to the
general electorate under Hawkins County. Thus, since
less than a majority of the Respondent’s board is com-
posed of public officials or individuals responsible to the
general electorate, we find that the Respondent is not an
exempt political subdivision and that it is an employer
under Section 2(2) of the Act.
In another case involving the same Respondent cur-
rently pending review at the Board, Case 7–CA–39503,
et al., in which Administrative Law Judge James L.
Rose’s decision (JD–201–98) issued December 17, 1998,
the Respondent contended before the judge that it had
amended its bylaws to provide for democratic election of

NLRB 11 (1977), and Electrical District Number Two, 224 NLRB 904
(1976), cases in which the Board found that it did not have jurisdiction
over special purpose districts created under State law to provide elec-
tricity to landowners in designated counties of a State although the
electorate in those cases did not include all persons eligible to vote in
general political elections. The Enrichment Services board distin-
guished these cases because it found that “other significant factors were
present” in those cases which established that the entities at issue were
political subdivisions:
These entities, which were considered to be political subdivisions un-
der state law, were created after the filing of an election petition with
the county board of supervisors, and upon an election among the tax-
paying property owners within the district’s geographical borders. In
addition, the entities had the power to levy taxes and to condemn pri-
vate and public property. The Board relied on these factors in finding
that these entities were exempt political subdivisions of the state in
which they were created.
Enrichment Services, supra at 820 (footnotes omitted). In finding that
the employer in Enrichment Services was not an exempt political sub-
division, the Board there noted that such factors were not present in that
case. Id.
7 Enrichment Services, 325 NLRB at 820.
the representatives of the group to be served as required
in Woodbury, supra, and Economic Security Corp., supra,
and that it was therefore exempt from the Board’s juris-
diction as a political subdivision. Applying the analysis
set out in Enrichment Services, supra, however, the judge
found that even after the amendment of its bylaws, the
Respondent was still subject to the Board’s jurisdiction
because its bylaws, as amended, provided for election of
the representatives of the poor by a limited group of vot-
ers, and therefore the one-third of the Respondent’s
board required to be representatives of the poor was not
responsible to the general electorate as required under
Enrichment Services, supra.
In its exceptions to the judge’s decision in that case,
the Respondent concedes, in effect, that the amendment
of its bylaws is not sufficient to establish that it is an
exempt political subdivision after Enrichment Services.
Rather, the Respondent now contends that it is an exempt
political subdivision because, like the entities found to be
political subdivisions in Salt River Project and Electrical
District Number Two, discussed above at footnote 6,
other significant factors are present which render it an
exempt political subdivision, i.e., (1) that the State of
Michigan considers it to be a political subdivision; (2)
that the public has access to its meetings and records; (3)
that there is “some form of public accountability” such as
the requirement that financial reports be made and be
available to the public for inspection; (4) that it is exempt
from most Federal and state taxes; and (5) that it is estab-
lished by a petition filed with the county board of super-
visors. For considerations of administrative economy,
we shall address these issues here. For the following
reasons, we find the Respondent’s arguments to be with-
out merit.
In support of its contentions that the State of Michigan
regards it as a political subdivision and that it is required
to allow the public access to its meetings and records, the
Respondent asserts that the Michigan Open Meetings
Act, which applies to “public bodies”—a term which the
Respondent contends, in effect, is synonymous with the
term “political subdivision”—applies to it and that under
its provisions it is required to grant the public access to
its meetings and records. We find this contention with-
out merit because, even assuming, as the Respondent
contends, that the term “public bodies” must be synony-
mous with the term “political subdivision,” the Michigan
Open Meetings Act does not by its own terms apply to
community action agencies like the Respondent. Rather,
section 14(1) of the Michigan Economic and Social Op-
portunity Act of 1981, the state law under which the Re-
spondent operates, provides that community action
agency meetings be conducted in compliance with the
Michigan Open Meetings Act. Obviously, if the State of
Michigan regarded the Respondent as a “public body”
(i.e., a “political subdivision”), the Michigan Open Meet-
ings Act would have applied by its own terms to non-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1168
profit community action agencies such as the Respondent
and the legislature would not have needed to include
section 14(1) in the Michigan Economic and Social Op-
portunity Act. Further, the Economic and Social Oppor-
tunity Act itself does not describe a nonprofit corporation
like the Respondent, i.e., one which has been designated
as a community action agency, to be a political subdivi-
sion. In these circumstances, we find that the fact that
the Respondent is required to hold open meetings pursu-
ant to the Michigan Open Meetings Act does not estab-
lish that it is a political subdivision. Similarly, the fact
that the Respondent is required to keep financial records
and to make them available for public inspection signi-
fies only that the Respondent is a recipient of public
funds and that it is therefore required to account for those
funds to the public. The mere receipt of public funds
with the requirement that the Respondent account to the
public for the spending of those funds, however, does not
establish that the Respondent is a political subdivision.
As to the Respondent’s contention that its exemption
from most taxes evidences its status as a political subdi-
vision, we find precisely the opposite. The Respondent
concedes that it is a nonprofit corporation established
under the laws of Michigan and that its tax exempt status
is pursuant to 26 U.S.C. § 501(c)(3), which applies to
nonprofit charitable entities. This exemption turns on the
Respondent’s nonprofit status, not its political subdivi-
sion status. The Board routinely exercises jurisdiction
over other entities which are, like the Respondent, ex-
empt from Federal taxes pursuant to § 501(c)(3). En-
richment Services, 325 NLRB at 820; Concordia Electric
Cooperative, 315 NLRB 752, 755–756 (1994). We find
that the Respondent’s tax exemption under these circum-
stances does not support, and indeed tends to negate, a
finding of political subdivision status. Enrichment Ser-
vices, 325 NLRB at 820.
As to its contention that it must be considered a politi-
cal subdivision because, as in Salt River, supra, it is es-
tablished by a petition filed with a county board of su-
pervisors, we find the facts in the present case readily
distinguishable from those in Salt River. In Salt River,
the State of Arizona had created by statute the proce-
dures, including the filing of a petition with the county
board of supervisors, for establishing an agricultural im-
provement district and, by acquiring such status, “secur-
ing . . . the rights, privileges, exemptions, and immunities
granted political subdivisions of the State of Arizona[.]”
Id. at 11. In the present case, by contrast, the Respon-
dent must file a petition with a county board of supervi-
sors to gain approval to serve as the community action
agency in that county. But the Respondent’s status as a
community action agency does not transform this non-
profit corporation into a political subdivision, nor has the
Respondent identified any provision of Michigan law
which would suggest otherwise. Accordingly, we find
without merit the Respondent’s contention that the fact
that it must file a petition with a county board of supervi-
sors evidences its status as a political subdivison.
Finally, as noted above at footnote 6, the Board in En-
richment Services observed that in both Salt River Pro-
ject, supra, and Electrical District Number Two, supra,
there were other factors which the Board relied on in
finding that the entities at issue there were political sub-
divisions, especially the power to levy taxes and to con-
demn private and public property. Such special factors
are not present here. Accordingly, we find that the Re-
spondent is not an exempt political subdivision on these
bases also.
2. In section 12 of his decision, the judge found, inter
alia, that the Respondent violated Section 8(a)(3) and (4)
of the Act by refusing to recall David Monton, the crew
leader in its weatherization department, and Arthur
Burkel, a laborer in that department, “in August” 1995,
i.e., on and after August 17, 1995.8 The judge also found
that Burkel’s layoff from August 3 to 17 was unlawful.
The Respondent excepts, inter alia, to the judge’s finding
that Burkel’s layoff from August 3 to 17 was unlawful.
For the reasons set out below, we adopt the judge’s find-
ing of this violation.
The Respondent hired Burkel as a laborer in its weath-
erization department in November 1994 to replace Mon-
ton whom the Respondent had promoted to crew leader
in that department. They were under the overall supervi-
sion of Paula Clark, the weatherization director, and of
Tom Belongia, a statutory employee, who was the field
supervisor in the weatherization department. Dale
Smith, also a statutory employee, was an inspector in the
weatherization department. Clark resigned her position
in April. After the Respondent discharged Smith and
Belongia in May and June respectively—discharges
which the judge found, and we agree, were unlawful—
Monton and Burkel worked alone. In mid-July, how-
ever, Monton went out on sick leave due to an injury that
he suffered at home. After Monton went out on sick
leave, Burkel worked by himself for several days to fin-
ish up a project on which he and Monton had been work-
ing. On one of those days, Russell Pomeroy, the Re-
spondent’s fiscal officer, came to a jobsite to assist
Burkel. Burkel, on 3 or 4 other days, rode around with
Ron Knoblock, a subcontractor who had been hired by
the Respondent to perform inspections for the weatheri-
zation department.
On August 3 Pomeroy handed Burkel a letter which
stated that Burkel would be laid off due to “lack of
work.” The letter further stated: “The recent loss of your
supervisor to an injury at home would mean that you
would be working alone. For safety reasons this is not
acceptable.” (GC Exh. 63.) The letter concluded by
stating that since the Respondent did not know when
Monton would return to work, the layoff would extend

8 All dates are in 1995 unless otherwise noted.
FIVECAP, INC. 1169
until further notice.9 Subsequently, on August 16 Mon-
ton told Pomeroy that he had been cleared by his doctor
to return to work. Pomeroy told him to report to work
the next day, August 17. To Monton’s inquiry of when
Burkel would be recalled, Pomeroy replied that Burkel
would be recalled as soon as jobs were preinspected.
When Monton reported for work on August 17, however,
Pomeroy told Monton that he had spoken to Mary
Trucks, the Respondent’s executive director, and it had
been decided that it would be best if Monton not report
for work until the new director was “up on his feet.”
Pomeroy estimated that Monton would be recalled in
about a week. As of January 31, 1996, the date of their
testimony in this case, Burkel and Monton testified that
they had not received recall letters from the Respon-
dent.10
For the reasons set out in section 12(b) of his decision,
the judge found, and we agree, that the General Counsel
has carried his burden under Wright Line11 of showing
that the Respondent’s refusal to recall Monton and
Burkel in August 1995, i.e., on and after August 17, was
unlawfully motivated and that the Respondent failed to
meet its burden in rebuttal. In his Wright Line analysis,
the judge considered and rejected the Respondent’s con-
tention that the layoffs arising from its August 17 refusal
to recall Monton and Burkel were caused by a lack of
work. The judge also found the layoffs unlawful for
“another reason,” i.e., that but for the discharges of
Smith and Belongia, Monton and Burkel would not have
been laid off. In finding the layoffs of Monton and
Burkel unlawful under this theory, the judge reasoned

9 The full text of the August 3 letter (GC Exh. 63) states:
Effective August 3, 1995 at 5:00 p.m. you will be laid-off due
to lack of work.
The recent loss of your supervisor to an injury at home would
mean that you would be working alone. For safety reasons this is
not acceptable.
At this time we do not know when and if Dave will return to
work. Until further notice you are on lay-off.
10 Pomeroy testified, however, that the Respondent sent Monton and
Burkel letters on January 26, 1996, requesting that they report to work
on February 5, 1996. We leave to compliance the resolution of this
issue.
11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), overruled in part on other
grounds, Director, Office of Workers’ Compensation Programs v.
Greenwich Collieries, 512 U.S. 267, 276–278 (1994). As explained in
Regal Recycling, Inc., 329 NLRB 355, 356 (1999) (fns. omitted):
Under the test set out in Wright Line, in order to establish that
the Respondent unlawfully discharged the . . . employees based
on their union activity, the General Counsel must show by a pre-
ponderance of the evidence that the protected activity was a moti-
vating factor in the Respondent’s decision to discharge. Thus, the
General Counsel must show that the employees engaged in union
activity, that the Respondent had knowledge of that activity, and
that the Respondent demonstrated antiunion animus. Once the
General Counsel has made the required showing, the burden shifts
to the Respondent to demonstrate that it would have taken the
same action even in the absence of the protected union activity.
that since he had found that the discharges of Smith and
Belongia were discriminatorily motivated, it followed
that the layoffs of Monton and Burkel, which had been
caused by these unlawful discharges, were also unlawful.
In reaching these conclusions, the judge specifically
considered and rejected the Respondent’s assertion in its
August 3 letter to Burkel that the reason for his layoff on
that date was “lack of work.” As the judge observed, it
was undisputed that there was plenty of work for the
weatherization crew to perform, but the Respondent had
chosen instead to assign all the work to subcontractors.
The judge then characterized the next portion of the Re-
spondent’s August 3 letter (set out at footnote 9 above)
as stating that there would be no one to supervise Burkel
since Monton was out on sick leave. Thus, the judge
found that Burkel’s layoff on August 3, as well as the
Respondent’s failure to recall him on and after August
17, was unlawfully motivated.
The Respondent excepts to the judge’s finding that the
layoff of Burkel from August 3 to 17 was unlawful on
the ground that the judge erred in finding that the as-
serted reason for the layoff was a lack of work for the
weatherization department as a whole. Rather, the Re-
spondent contends that the “lack of work” referred to in
the letter is to the “work” of Burkel in particular. Thus,
the Respondent asserts that no matter how much work
there might be for the weatherization crew to perform, as
explained in its August 3 letter, with the absence of Mon-
ton, his supervisor, it would have been unsafe for Burkel
to work during this period because he would have had to
work alone.
We find merit in this contention. We find that the Re-
spondent has shown that it laid off Burkel on August 3
because of its legitimate concern for Burkel’s safety if it
permitted him to work alone. However, that does not
end our analysis. Assuming that Burkel himself was not
a target of discrimination on August 3, but was simply a
“neutral” employee, we agree with the judge that
Burkel’s layoff was unlawful in any event. But for the
prior unlawful discharges of Smith and Belongia, Burkel
would not have had to work alone and therefore would
not have been laid off from August 3 to 17. Thus, his
layoff was the direct result of action that the Respondent
clearly took for an unlawful motive. In this regard,
Burkel’s situation was not unlike that of employees who
are discharged or otherwise disciplined as the result of a
facially unlawful rule or a rule or change in policy which
an employer institutes for unlawful reasons. Even if
those employees are not direct targets of the employer’s
discrimination, disciplinary action taken against them is
nevertheless unlawful because it is, in effect, “the fruit of
the poisonous tree.” See Opryland Hotel, 323 NLRB
723, 728–729 (1997) (disciplinary action taken pursuant
to an unlawful no-solicitation rule is unlawful); McClain
of Georgia, Inc., 322 NLRB 367, 377 (1996) (discipline
imposed as a result of a change in drug testing policy
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1170
implemented in retaliation for union activity is unlawful;
“where a policy or rule is changed in retaliation for union
activity by some employees, every individual affected by
the changed policy is discriminated against, regardless of
their individual union sentiments”). Similarly, the action
taken against Burkel was the direct consequence of the
discriminatory and unlawful layoffs of Smith and Be-
longia, and thus was itself unlawful.
Our dissenting colleague asserts that, by analogizing
the Respondent’s treatment of Burkel to the “fruit of the
poisonous tree” principle, we have “abandoned” the
Wright Line analysis. Applying a Wright Line analysis to
Burkel’s layoff, the Respondent could not prove that it
would have laid him off even absent its discriminatory
motive. The Respondent has not met this burden of
proof simply by asserting that its true reason for laying
off Burkel was nondiscriminatory, i.e., its safety concern
that Burkel should not be working alone. For without its
discriminatory motive, the Respondent would not have
discharged Smith and Belongia in the first place, and it
was their discharges that led to the layoff of Burkel.
Thus, even under a Wright Line analysis, the Respondent
has not met its burden, and its layoff of Burkel therefore
violated Section 8(a)(3) and (1) of the Act. See Hicks
Oil & Hicksgas, 293 NLRB 84, 85 (1989), enfd. 942
F.2d 1140 (7th Cir. 1991) (“[u]nder Wright Line, an em-
ployer cannot carry its burden of persuasion by merely
showing that it had a legitimate reason for imposing dis-
cipline against an employee, but must show by a prepon-
derance of the evidence that the action would have taken
place even without the protected conduct”).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Five-
CAP, Inc., Scottville, Michigan, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(j):
“(j) Within 14 days after service by the Region, post at
its main office in Scottville, Michigan, and at all its other
facilities in Michigan, copies of the attached notice
marked “Appendix.”56 Copies of the notice, on forms
provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices 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 Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since January 1995.”
2. Delete paragraph 2(l).

MEMBER BRAME, concurring in part and dissenting in
part.
I agree with my colleagues that the Respondent is an
employer under Section 2(2) of the Act. I also agree
with my colleagues that the Respondent committed the
unfair labor practices found by the administrative law
judge,1 except that I would not find that the Respondent
violated Section 8(a)(3) and (1) by laying off weatheriza-
tion department crewman Arthur Burkel from August 3
to 17, 1995.2
As explained by the judge, Tom Belongia, a statutory
employee, was the field supervisor-inspector, and Dale
Smith, also a statutory employee, was an inspector in the
Respondent’s weatherization department. David Monton
was the crew leader and Burkel was the laborer on a two-
person crew which performed the labor on the weatheri-
zation jobs at the homes of the Respondent’s clients.
After the Respondent discharged Smith and Belongia on
May 4 and June 8, 1995 respectively,3 Monton and
Burkel continued to work until mid-July, when Monton
went out on sick leave. After that, Burkel worked by
himself to finish a job that he and Monton had been
working on together. On one of these days, Russ
Pomeroy, the Respondent’s fiscal officer, came to the job
site with a ladder to assist Burkel in completing the job.
Burkel, on 3 or 4 days, rode around with Ron Knoblock,
a subcontractor hired by the Respondent to perform in-
spection work. Finally, on August 3, Pomeroy handed
Burkel a letter which stated that Burkel would be laid off
due to lack of work. The letter also stated that it was not
acceptable for safety reasons for Burkel to work alone in
Monton’s absence and that since the Respondent did not
know when Monton would return to work, Burkel’s lay-
off would extend until further notice.
The issue here is whether the Respondent’s decision to
lay off Burkel on August 3 was unlawfully motivated. In
cases that turn on employer motivation, the Board ap-
plies the test set out in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied

1 Since I agree with my colleagues that the Respondent violated Sec.
8(a)(1) by discharging employee Verna Fugere for engaging in pro-
tected concerted activity by participating in the circulation of a petition
calling for the dismissal of Mary Trucks, the Respondent’s executive
director, and Russell Pomeroy, the Respondent’s fiscal officer, I find it
unnecessary to pass on whether Fugere’s discharge was also violative
of Sec. 8(a)(3) of the Act.
2 Since I agree with my colleagues that the Respondent’s refusal to
recall Monton on August 17 and thereafter was unlawful, I also find
that the Respondent’s refusal to recall Burkel after that date was also
unlawful because after that date the Respondent’s legitimate reason for
placing Burkel on layoff, i.e., its concern for his safety if he continued
to work alone, would no longer apply.
3 All dates hereafter refer to 1995.
FIVECAP, INC. 1171
455 U.S. 989 (1982), approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983), overruled
in part on other grounds Director, Office of Workers’
Compensation Programs v. Greenwich Collieries, 512
U.S. 267, 276–278 (1994).4 Applying that analysis here,
I agree with my colleagues that the Respondent has es-
tablished that it laid off Burkel on August 3 for nondis-
criminatory reasons, i.e., a legitimate concern for his
safety if he were allowed to work alone. On this basis, in
my view, the Respondent has successfully rebutted the
General Counsel’s prima facie showing that Burkel’s
layoff was unlawfully motivated. Since the Respondent
has met its Wright Line burden, I would dismiss this al-
legation of the complaint.
My colleagues, however, having conceded that
Burkel’s layoff was for a lawful reason, i.e., a legitimate
concern for his safety if he worked alone, reach out to
find the violation under an alternate theory suggested by
the judge, albeit under a different rationale, i.e., that
since Burkel would not have been laid off on August 3 if
Smith and Belongia had not previously been unlawfully
discharged, the Respondent’s unlawful motivation in
discharging Smith and Belongia must extend to Burkel’s
layoff and thus renders that layoff also unlawful.5

4 As explained in Regal Recycling Inc., supra (footnotes omitted):
Under the test set out in Wright Line, in order to establish that
the Respondent unlawfully discharged [or laid off] . . . employees
based on their union activity, the General Counsel must show by a
preponderance of the evidence that the protected activity was a
motivating factor in the Respondent’s decision to discharge [or
lay off]. Thus, the General Counsel must show that the employ-
ees engaged in union activity, that the Respondent had knowledge
of that activity, and that the Respondent demonstrated antiunion
animus. Once the General Counsel has made the required show-
ing, the burden shifts to the Respondent to demonstrate that it
would have taken the same action even in the absence of the pro-
tected union activity.
5 In finding that the Respondent’s unlawful motivation in discharg-
ing Smith and Belongia extended to Burkel’s August 3 layoff, the judge
relied on Dawson Carbide Industries, 273 NLRB 382 (1984), enfd. 782
F.2d 64 (6th Cir. 1986), and Bay Corrugated Container, 310 NLRB
450 (1993), enfd. mem.12 F.3d 213 (6th Cir. 1993). Those cases are,
however, readily distinguishable.
In Dawson Carbide Industries, supra, the Board found that the re-
spondent there had unlawfully laid off employee Carol Ann Kustosz
because of her union activities. In order to disguise the unlawful nature
of Kustosz’ layoff, the respondent laid off Howard Churchwell, an
employee who had not engaged in union activity but who had less
seniority than Kustosz. In considering the issue of whether Church-
well’s layoff was also unlawful as part of “an unlawful design” to dis-
charge Kustosz, as the General Counsel argued, the judge explained
that
[t]he Board has held in the context of a union organizing drive that an
employer’s discharge of uncommitted, neutral, or inactive employees
in order to “cover” or to facilitate discriminatory conduct against a
targeted union-supporting employee or to discourage employee sup-
port for the union is violative of Section 8(a)(3) of the Act. . . . Neces-
sarily, such findings depend on inferences arising from the surround-
ing circumstances as such employees, like Churchwell, are pawns in
an unlawful design, rather than direct targets. Id. at 389.
Drawing the inference “that in Respondent’s angry resolve to terminate
Kustosz it unlawfully removed Churchwell to validate such action,”
In finding a violation under their alternate analysis, my
colleagues assert that “[b]ut for the prior unlawful dis-
charges of Smith and Belongia, Burkel would not have
had to work alone and therefore would not have been laid
off from August 3 to August 17.” On the basis of this
“but for” analysis, my colleagues find that since Burkel’s
August 3 layoff was a “direct result” of the Respondent’s
unlawfully motivated discharges of Smith and Belongia,
Burkel’s layoff was also unlawful because it was, in ef-
fect, “the fruit of the poisonous tree.” For the following
reasons, this analysis must fail.
Under my colleagues’ analysis of the issue, there must
be a “tree,” i.e., some active policy or rule which, be-
cause it is either unlawful on its face or was unlawfully
implemented, renders any disciplinary action also unlaw-
ful when the “primary justification” for the disciplinary
action is based on the unlawful rule or policy.6 In the
present case, however, the primary justification for

. Id.
the judge found that the respondent violated Sec. 8(a)(3) by laying off
Churchwell. Id. at 389.
In Bay Corrugated Container, 310 NLRB 450, enfd. mem.12 F.3d
213 (6th Cir. 1993), the respondent discharged three employees assert-
edly for a printing error in which all three were involved. The Board
found that the General Counsel had established a prima facie case un-
der Wright Line, supra, that the respondent had discharged two of those
employees, Rick Bartee and Don Moyur, because of their union activi-
ties. Relying on Dawson Carbide Industries, supra, the Board further
found that the General Counsel had established a prima facie case that
the respondent had discharged the third employee, Adam Gibson, who
had not openly supported the union, in an effort to cover up its dis-
criminatory discharges of Bartee and Moyur. Bay Corrugated Con-
tainer, 310 NLRB at 451. As the Board there explained:
Here, the Respondent would have had no justification for not
terminating Gibson along with the two known union supporters for
the printing error in which all were involved. Thus, we find that the
General Counsel has shown that the protected conduct of Moyur and
Bartee was a motivating factor in the Respondent’s decision to dis-
charge Gibson
Finding that the respondent failed to rebut the General Counsel’s prima
facie case, the Board found that the Respondent violated Sec. 8(a)(3)
and (1) by discharging Gibson as well as Bartee and Moyur. Id. at 452.
In the present case, in contrast to the facts in Dawson Carbide Indus-
tries and Bay Corrugated Container, Burkel’s August 3 layoff was not
contemporaneous with Smith’s and Belongia’s discharges, but occurred
3 months after Smith’s discharge and 2 months after Belongia’s. It
cannot be said, therefore, that Burkel was a “pawn” in some unlawfully
motivated “design” that required that he be laid off to disguise the
unlawful nature of Smith’s and Belongia’s discharges. Thus, the judge
erred in finding the violation under this theory. In this regard, I note
that my colleagues apparently agree that the judge’s analysis of the
issue is flawed because they have abandoned the “pawn” of the unlaw-
ful design theory advanced by the judge to find the violation under a
different theory, i.e., that Burkel’s layoff was unlawful because it was,
in effect, “the fruit of the poisonous tree.” As explained below, how-
ever, this theory is equally inapplicable here and therefore my col-
leagues err in finding a violation on this basis.
6 As stated in NLRB v. McCullough Environmental Services, 5 F.3d
923, 931 fn. 9 (5th Cir. 1993):
Because we find that the no-solicitation rule violates § 8(a)(1), we en-
force that part of the NLRB’s order directing McCullough to remove
the reprimand from Bennett’s file. See [NLRB v.] Roney Plaza, 597
F.2d [1046,] 1050–1051 [(5th Cir. 1979)] (stating that a disciplinary
action cannot stand where the primary justification for it is based on
an unlawful rule).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1172
Burkel’s layoff was not based on such an unlawful rule
or policy. Thus, there is simply no “tree” here, frugivo-
rous or otherwise, and therefore “the fruit of the poison-
ous tree” analogy must prove barren.
However, if my colleagues are, in reality, advancing a
“fruit of the poisonous conduct” analysis, i.e., that
Burkel’s layoff was the “fruit” of Smith’s and Belongia’s
unlawful discharges, that analysis must also fail. Assum-
ing arguendo that such an analysis were appropriate here,
it would only be valid if the “primary justification” for
the alleged disciplinary action (Burkel’s August 3 layoff)
was the prior unlawful conduct (Smith’s and Belongia’s
unlawful discharges), or, as my colleagues assert, if
Burkel’s layoff was the “direct result” of Smith’s and
Belongia’s discharges (i.e., “but for” the unlawful dis-
charges of Smith and Belongia, Burkel would not have
been laid off).
In finding that the Respondent had met its Wright Line
burden of showing that Burkel’s layoff was not unlaw-
fully motivated, however, my colleagues have already
agreed that the primary justification for, the “but for”
cause of, Burkel’s layoff was not the discharges of Smith
and Belongia at all, but rather concerns for Burkel’s
safety if he worked alone during Monton’s absence.
Having embraced this Wright Line analysis to find that
Burkel’s layoff was not unlawful,7 my colleagues cannot
then abandon it to find Burkel’s layoff unlawful under an
alternate theory of contradictory logic. Since Smith’s
and Belongia’s unlawful discharges were neither the
primary justification for nor the “but for” cause of
Burkel’s layoff, my colleagues’ attempt to find a viola-
tion under their “fruit of the poisonous conduct” analysis
must also fail. For all these reasons, I find my col-
leagues’ arguments without merit. Accordingly, I would
reverse the judge and find that the Respondent’s August
3 layoff of Burkel was not unlawful.

A. Bradley Howell, Esq., for the General Counsel.
Terry J. Mroz, Esq. (McShane & Bowie, P.L.C.), of Grand Rap-
ids, Michigan, and Timothy J. Ryan, Esq. (Miller, Johnson,
Snell & Cummiskey, P.L.C.), of Grand Rapids, Michigan,
for the Respondent.

7 My colleagues contradict their own finding that Burkel’s layoff
was occasioned by a legitimate safety-related concern to assert that
under a Wright Line analysis, “the Respondent could not prove that it
would have laid [Burkel] off even absent its discriminatory motive.”
To reach this conclusion, my colleagues, in the guise of applying a
Wright Line analysis, simply graft their metaphorical “fruit of the poi-
sonous tree” analysis into the Wright Line context and hope that it
survives scrutiny. It does not. For my colleagues’ metaphorical “tree”
cannot hide their own admission that the layoff at issue here was occa-
sioned by a legitimate concern for Burkel’s safety if he were permitted
to work alone. Nor can it obscure the fact that by establishing that
Burkel was laid off for a legitimate reason, the Respondent has satisfied
its Wright Line burden.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
various charges and amended charges filed by General Team-
sters Union Local No. 406, International Brotherhood of Team-
sters, AFL–CIO (the Union, or the Charging Party) in the
above-entitled cases, the Director for Region 7 of the National
Labor Relations Board (the Board) issued an order consolidat-
ing cases, fourth amended consolidated complaint and notice of
hearing on December 4, 1995,1 alleging that Five CAP, Incor-
porated (Respondent) violated Section 8(a)(1), (3), (4), and (5)
of the Act.
The trial with respect to the allegations raised by the above-
consolidated complaint was held before me in Cadillac and
Grand Rapids, Michigan, on January 29 through February 2,
and 4 through 8, 1996.
On June 5, 1996, I granted the request of Terry J. Mroz,
Esq., to be removed as counsel for Respondent.
Subsequently, Timothy J. Ryan entered an appearance as at-
torney for respondent, and filed a supplemental brief on July 1,
1996, requesting that the complaint be dismissed for lack of
statutory jurisdiction.
The General Counsel, after conducting an investigation of
Respondent’s contentions, requested that the record be re-
opened for the purposes of adducing evidence with respect to
the jurisdictional issue. I granted the motion, and the reopened
hearing was held on October 2, 1996.
Briefs have been filed by the General Counsel and Respon-
dent, after the hearing was initially closed, and again after the
close of the reopened hearing and all of the briefs have been
carefully considered. Based upon my review of the entire re-
cord,2 I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a nonprofit corporation with its office and
principal place of business in Scottville, Michigan, as well as
various other facilities throughout the counties of Manistee,
Lake, Mason, and Newago, Michigan, where it is engaged in
the operation of Head Start educational programs, energy assis-
tance and housing programs, meal assistance programs, and
related programs.
During the calendar year ending December 31, 1994, Re-
spondent derived gross revenues in excess of $1 million and
received Federal funds directly from outside the State of Michi-
gan in excess of $50,000.
In its answer, as well as in the related representation case re-
ferred to below, Respondent admitted that it is and has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
As noted above, however, Respondent after its change of
counsel, asserted that the Board has no jurisdiction over the
operations of Respondent, and claims that it is not an employer
under Section 2(2) of the Act.
1 All dates hereinafter are in 1995 unless otherwise indicated.
2 While every apparent or nonapparent conflict in the evidence may
not have been specifically resolved below, my findings are based on my
examination of the entire record, my observation of the witnesses’
demeanor while testifying, and my evaluation of the reliability of their
testimony. Therefore, any testimony in the record which inconsistent
with my findings is discredited.
FIVECAP, INC. 1173
The basis for Respondent’s revised position is the contention
that Respondent is a subdivision of the State of Michigan and
therefore excluded form the definition of an employer under
Section 2(2) of the Act. Lima & Allen Community Action
Commission, 304 NLRB 888 (1991); Albany County Opportu-
nity, 300 NLRB 886 (1990); Woodbury Community Action
Agency, 299 NLRB 554 (1990); and Economic Security Corp.,
299 NLRB 562 (1990).
Respondent, similar to the agencies involved in the cases
cited above, is a nonprofit community action agency that ad-
ministers publicly funded antipoverty programs, and receives
funding from state and Federal funds.
Federal law (The Community Services Block Grant Act)
(CSBG) requires that the employer have a board of directors
with a tripartite structure comprised of one-third of its mem-
bers, elected public officials, or their representatives, one-third
of its members officials or members of business, industry, la-
bor, religious, welfare, education or other groups of interest in
the community, and one-third of the members must be “persons
chosen in accordance with democratic selection procedures
adequate to assure that they are representatives of the poor in
the area served.”
The State of Michigan, in accordance with Federal law re-
quirements, has incorporated this tripartite structure into its
law, Michigan Public Act 230. The law provides that the
community action agency shall establish a governing board of
directors consisting of between 15 and 51 members, with one-
third of the members from each of the areas set forth in the
Federal statute. With respect to the one-third of its members in
issue here, the State law provides as follows:

One-third of the member shall be lwo income, elderly or
handicapped consumers residing in the service area of the
community action agency. Consumer representatives shall be
selected through a democratic process pursuant to guidelines
established by the department.” 3

The Michigan law also reflects that the legislature shall not
be required to appropriate funds from the general fund for the
continued performance of the provisions of the Act, if Federal
funding as designated by the bureau and funded by the commu-
nity development block grant is eliminated.
Respondent’s bylaws attempt to comply with these State and
Federal requirements by providing for a 24-member board of
directors consisting of 8 members from each of three sectors.4
The three sectors as defined in the bylaws are public sector,
private sector, and “group to be served.” The group to be
served is further defined as “representaitves of the poor in each
county.” The bylaws further require that “a letter documenting
such board member as representatives of the poor shall be on
file at the corporation office and must be eligible for services
when seated.”
It is notable that the bylaws do not make any specific refer-
ence, as does both the Feceral and state laws to any requirement
that the group to be served members be chosen in accordance
with “democratic selection procedures” (Federal) or “selected
through a democratic process” (State).
However, the bylaws do provide that the bylaws should not
be interpreted or enforced to be in violation of/or in conflict

3 “Department” is defined in the statute as the department of labor.
4 The eight members from each sector are further divided into two
members from each of the four counties served by Respondent.
with Michigan Public Law 30 or any other Federal law or
agency having authority over the corporation.
The bylaws also set forth the procedure to be followed for
applying for membership on the board from the group to be
served sector, as well as the private sector. The bylaws state as
follows:

Section 11—Petitioning the Board for Membership

Individual citizens for representatives of groups wish-
ing representation on the Corporation Board shall petition
their desire, with no less than twenty (20) signatures of
residents of their county, for membership from the appro-
priate sector, Private or Group to be Served. Should a va-
cancy occur and at the regular annual elections such
proper petitions shall be qualified nominations for mem-
bership. The Nominating and Credentials Committee
Must draw from among such proper petitions to the appro-
priate sector to fill any vacancy and such proper petition-
ers must be nominees among candidates for election to
Board membership, to the appropriate sector at the annual
or special elections.
To assure adequate representation, petitioners provid-
ing convincing arguments for a seat on the Board will be
seated after compliance with the rest of this section. In
order to assure PA 230-CSBG compliance, additional
seats will be added to the other sectors as required, not to
exceed a total Board size of 51. The By Laws will be
amended accordingly. Petitions are to be sent to the Cor-
porate Headquarters.

According to Respondent’s executive director, Mary Trucks,
the way that this nomination procedure is designed to work, is
for a number of petitions to be submitted to the board for each
vacant position. After the credentials committee decides
whether the petitioners meet the eligibility standards, the board
of directors’ votes from among those deemed eligible. In that
connection the bylaws provide that a meeting is deemed valid
with a quorum present, consisting of 50 percent of the mem-
bers.
However, Trucks also testified that in practice, there has
never been a contest for a vacant seat on the board, and that the
board has never been called upon to make a selection between
more than one candidate. Also, according to Trucks, she could
not recall the credentials committee ever rejecting any “group
to be served” candidate for membership based on eligibility
deficiencies.
The General Counsel adduced evidence from a number of
former employees and board members of Respondent, which
detailed actions of Respondent in general and Mary Trucks in
particular, with respect to the selection process for “group to be
served” members. The credible testimony of these various
witnesses was largely undenied by Respondent and I conclude
that such evidence establishes the following.
Paul Kirk had prior to January 1995 been serving on Re-
spondent’s board as a public sector representative. However,
when he lost his position as county commissioner for Newago
County, he therefore would not be entitled to a seat on the
board on that basis.
Sometime in early January 1995 Mary Trucks handed to
Mary Jo Klomp, Respondent’s community support director, a
petition for nomination to the board for Paul Kirk, with Kirk’s
name typed in at the top. At the time that Trucks gave the peti-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1174
tion to Klomp, she said to Respondent’s fiscal director, Russ
Pomeroy, “[D]on’t you think he’d make a good board mem-
ber?” Pomeroy agreed. Trucks instructed Klomp to give the
petition to community support workers who were under her
supervision, and to in turn, instruct the community support
workers to obtain 20 signatures on the petition from clients
when they came to the centers for food distribution.5
The petition when it was given to Klomp contained no signa-
tures. Klomp complied with Trucks’ instructions and gave the
blank petition to community support worker Lori Murphy,
along with the instructions from Trucks to obtain 20 signatures.
Shortly, thereafter Murphy called Klomp, and told her that she
had left the petition on a table at Bitely Center, but that the
clients would not sign because they did not like Paul Kirk.
Klomp reported to Trucks what Murphy had told her. Trucks
told Klomp to tell Murphy to get those signatures, adding, “I
know she can do it.” Klomp in turn, reported her conversation
with Trucks to Murphy.
Subsequently Murphy returned the petition to Klomp, with
20 signatures, all dated January 23, 1995.
Murphy did not inform Klomp where or how she had ob-
tained the signatures. However, Klomp assumed that Murphy
had obtained the necessary signatures at Respondent’s senior
center in White Cloud, which is also in Newago County, and
which usually services 600 people to pick up food, as opposed
to Bitely, which ordinarily has 120 individuals picking up food
at that center.
During this same period of time, Klomp pursuant to direction
from Respondent, gave petitions to Ann Walters, community
support worker for Lake County, to distribute on behalf of in-
cumbent board members Robert Williams and Bernice
Culpepper, and to Norma Johnson, community support worker
in Manistee County, to distribute on behalf of incumbent board
member, Violet Beatty. Klomp instructed Walters and Johnson
that Trucks had ordered that they obtain 20 signatures from
clients at the food distribution centers in their respective coun-
ties. Klomp did not instruct any of the community support
workers precisely what to say to clients at the time of their
obtaining signatures. Nor did she instruct the employees to tell
the clients that it was strictly voluntary for them to sign or that
their signing had no connection with obtaining the food.
Klomp gave no such instructions, since no such instructions
were given to her by Trucks or any other official of Respon-
dent.
However, Ann Walters, the community service worker for
Lake County, testified that when she obtained signatures, pur-
suant to Klomp’s direction, she would leave the petitions in the
area where the clients would be picking up their food. A volun-
teer would explain to the clients that the petition was for nomi-
nation to the board of directors and they would be asked to
sign.
At times Walters would be present when the clients would
sign the petitions while getting their food. On those occasions,
Walters explained to the clients that if they wished to sign the
petition they could, but that they did not have to sign, and their
signing had nothing to do with their obtaining their food. Wal-
ters told this to the clients on her own, without any instructions
from any supervisors, because apparently at times that question

5 One of the programs that Respondent administers consists of the
distribution of food at discount prices to low income clients at Respon-
dent’s facilities in the four county area.
had been asked by clients (i.e., whether there was any connec-
tion between signing the petitions and the obtaining of the
food).
Walters obtained 20 signatures on petitions for Culpepper
and Williams, and Johnson did the same for Beatty. These
petitions along with a petition for Kirk, were presented to and
approved by Respondent’s credentials and nominating commit-
tee at a meeting on February 23, 1995.
On the same date, February 23, the board conducted its an-
nual membership meeting. The minutes of the meeting indicate
that six members were present, including Kirk, Beatty, and
Culpepper, and four were absent, including Williams.6 The
minutes also reflect that the board, pursuant to motion, voted to
approve the committee recommendations by a vote of 6 to 0.
Thus, Culpepper, Kirk, and Beatty voted for themselves to be
approved as board members.
Carol Griffin had been a volunteer at a facility of Respon-
dent in Mason County. In 1988, she was asked by Norma Re-
cobb, a community support worker, if she would be interested
in serving on the board of directors. Griffin agreed. Recobb
prepared and circulated a petition on Griffin’s behalf at that
time, and Griffin became a board member. In subsequent
years, petitions on her behalf were circulated by Respondent’s
employees without Griffin ever requesting or even seeing these
petitions.
Verna Fugere, became the community worker in Mason
County starting in August 1988. During her employment there
she was directed by either her supervisor (the community sup-
port director) or the executive secretary to Mary Trucks, on
several occasions to obtain signatures on petitions for Carol
Griffin, as well as for Ken Harper, both when they were incum-
bent members of the Board. Fugere was given petitions with
only the names of the individuals filled in, and Fugere solicited
the signatures at the time that clients came to food distribution
centers to pick up their food. Fugere asked the individuals as
they were picking up their orders if they would sign the petition
to keep these people on the board. She did not inform them
that there was no connection between the signing and the pick-
ing up of the food, nor did she tell them that there was a con-
nection or that they had to sign. In fact, hundreds of people
come through the center to pick up their food, and most of them
were not interested in and did not sign the petitions. Eventu-
ally, Fugere was able to obtain the necessary 20 signatures for
both candidates.
On June 28, 1993, Harper tendered his resignation as a board
member. He was not replaced.
In early 1994 Fugere was given a petition by Trucks’ execu-
tive secretary, and instructed to obtain 20 signatures on behalf
of Griffin. Fugere had previously been told by Griffin that she
no longer wanted to be a member, since she planned to move
because of her husband’s illness. Fugere after receiving the
petition, confirmed Griffin’s intentions about being on the
board, and returned the petition without any signatures on it to
Trucks’ secretary, with an explanation that Griffin no longer
wished to be a board member.
Shortly thereafter, Trucks called Fugere to her office.
Trucks informed Fugere that it was not Fugere’s place to make
decisions for people on the board, and that if Griffin did not
want to be on the board, she should contact Trucks directly.
6 The minutes indicate that a quorom was present.
FIVECAP, INC. 1175
Trucks ordered Fugere to obtain the signatures on Griffin’s
behalf, notwithstanding Griffin’s desires not to be a member.
Fugere complied with Trucks’ instructions, and obtained 20
signatures on the petition for Griffin to be on the board from
clients picking up their food. She returned the petition to
Trucks’ secretary.
Shortly thereafter, Fugere and Griffin were engaged in a
telephone conversation primarily dealing with a food order of
Griffin’s. During this conversation Griffin complained to
Fugere about being on the board, and made comments critical
of Mary Trucks’ conduct at these meetings. Trucks, who ap-
parently had picked up the extension in her office, interrupted
the conversation. Trucks criticized Griffin for speaking that
way about the board, particularly considering all the good that
Respondent had done for her and her family. Trucks added that
if Griffin felt that way about the board, she did not have to be a
board member anymore, and that Griffin would no longer be a
board member. Trucks also told Griffin that she did not want to
see her in the building anymore, and that she need not volunteer
either. Griffin made no attempt to attend any further meetings
after this conversation, since she was not interested in retaining
her seat.7
It does not appear that Griffin’s petition was submitted to the
board or that the board took any action to remove Griffin.
Since her term expired, she was simply not reappointed, nor has
she been replaced as a board member.
Trucks did not substantially dispute any of the testimony set
forth above, concerning her involvement in the petition process.
She testified, however, that it is Respondent’s policy to make
petitions available at food distribution centers for any interested
candidate, and that in some cases in the past, board candidates
have circulated their own petitions. Trucks did not explain why
she had ordered employees to obtain signatures for incumbent
candidates, but she did testify that Respondent has consistently
had difficulty in filling vacancies on the board, and that the
board has obtained waivers from the State to allow some in-
cumbent members to serve more than 10 years, which is con-
trary to state law. She further testified that she was interested
in getting petitions signed and having a full board to “stay le-
gal.”
In connection with the issue of filling vacancies testimony
was adduced concerning alleged efforts by Respondent to re-
cruit candidates and to notify potential candidates of board
openings. Mary Trucks testified that Respondent, prior to
board elections, routinely posts at its centers a form, a blank
copy of which was introduced into the record. The form an-
nounces that Respondent is seeking concerned low-income
residents to serve on the board. The form also details the re-
quirement for a petition to signed by 20 residents and adds that
blank petitions are available at Respondent’s county offices.
Accord-ing to Trucks, these forms are maintained at county
offices, and it is the responsibility of the county director to
make sure that the forms are properly filled out and posted at
Respondent’s centers a month or two prior to the time that the
nominating committee meets. Trucks further testified that ei-

7 In fact, Trucks had no power to remove Griffin from the board.
The bylaws provide that removal of board members must be voted on
by the board and lists certain specified reasons as causes for removal.
These causes include disloyalty to the agency, usurping authority of the
executive director and dealing directly with agency staff, missing two
meetings without excuse, and failure to attend board training.
ther she or her secretary will tell the supervisor when an elec-
tion is scheduled so that they can make sure that the form was
posted. However, Trucks could not recall ever seeing such a
notice posted. Nor did Respondent produce any copies of filled
out forms that were allegedly posted at any of its centers.
Moreover, Respondent adduced no testimony from any com-
munity support worker or director or anyone at all that they had
ever seen a copy of this notice posted at any of Respondent’s
facilities. On the other hand, the General Counsel adduced
testimony from Fugere, Walters, and Klomp that they had never
seen such a notice posted at any of Respondent’s facilities,8 nor
were they ever instructed to distribute or post such a form. In
fact, none of them had ever seen such a form, prior to October
1996 when they were shown it during the testimony.
Further, Klomp who was a community support director,
whose responsibility it was according to Trucks to make sure
the form was distributed, denied ever being told that such was
the case. Klomp also denied Trucks’ testimony that the form
was included in a job manual that she was given when she was
first employed.
Klomp also denied that she had ever been informed by
Trucks what the deadline for petitions was, or when and if there
were vacancies on the board. Her only involvement in the
process was as detailed above, instructions from Trucks to ob-
tain signatures on the petitions and get them back as soon as
possible.
Trucks further testified that it is the responsibility of staff
members, particularly community support workers, to recruit
candidates for board membership. However, Trucks admitted
that she did not have time to monitor or make sure that employ-
ees fulfill this responsibility. While some corroboration of
Trucks’ testimony can be found in Griffin’s testimony that she
was asked by a community support worker if she was interested
in becoming a board member, Respondent produced no other
employee or supervisor to testify that it was part of the respon-
sibility of employees to recruit new board members.
Once again, Fugere, Walters, and Klomp all emphatically
deny ever being informed by anyone from Respondent that they
were expected to recount or to solicit clients to become board
members. They also deny that the subject ever came up at any
training sessions or meetings of Respondent that they attend.
Additionally, Respondent distributes to clients a monthly
newsletter, which details news and events concerning Respon-
dent, including section entitled “Mark your calendar” which
sets forth important dates and other announcements of interest
to its clients. Trucks admits that Respondent has never made
any reference to board elections in this newsletter, nor made
any solicitation in the newsletter for clients to apply for mem-
bership on the board. Moreover although Respondent has
placed ads in the newspaper for the purpose of soliciting em-
ployees for hire, it has not placed any notices in newspapers
with respect to board elections or to solicit candidates for such
positions.
There have been two vacancies in the Mason County “group
to be served seats,” which have not been filled since Griffin left
the board in 1994. The roster of board members in 1995–1996
was comprised of six “groups to be served members, with two
8 Walters was employed by Respondent from 1989–1996, Fugere
from 1988–1995, and Klomp from October 1994 to May 1995.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1176
vacancies in Mason County, four private sector members,9 and
six public sector members, with two vacancies.
Trucks also testified that Respondent sent a letter to its cli-
ents in Lake County, dated July 17, 1996, inviting them to
community information, meeting in Baldwin, one of its facili-
ties in that county. Trucks testified that this meeting was con-
ducted, during which she explained Respondent’s petition
process, and encouraged them to serve as board members.
Trucks also testified that Respondent plans to hold similar
meetings in all counties in the future.
The first issue to be decided with respect to Respondent’s as-
sertion of lack of jurisdiction, is whether or not such claim has
been raised in a timely fashion. While in certain instances, the
Board will find that an assertion of lack of jurisdiction has been
waived by a failure to raise such a contention in the representa-
tion case, Ryder Student Transportation, 297 NLRB 371, 372
(1989), where, as here, the issue is the Board’s assertion of
statutory jurisdiction, i.e., whether Respondent is an employer
under Section 2(2) of the Act, such a contention may be raised
any time. Chelsea Catering Corp., 309 NLRB 822 (1992);
International Total Services, 270 NLRB 645 fn. 1 (1984); and
Anchortank, Inc., 233 NLRB 295 fn. 1 (1977).
Therefore, I conclude that Respondent has not waived its
rights to contest jurisdiction either by its failure to raise the
claim at the representation case or by admitting jurisdiction in
its answer to the unfair practice proceeding here.10
Turning to the merits of Respondent’s assertions, the issue to
be determined is the applicability of the so-called Hawkins
County11 test to the operations of Respondent. In Hawkins
County, the Supreme Court in reviewing a Board determination
of whether an employer was “political subdivision” of a State,
set forth a test for evaluating this issue, while quoting from the
Board’s brief in that case. “The Board . . . has limited the ex-
emption for political subdivisions to entities that are either (1)
credited directly by the State, so as to constitute departments or
administrative arms of the Government, or (2) administered by
individuals who are responsible to public officials or to the
general electorate.” 402 U.S. at 604–605.
It is significant to note that the phrase “administered by indi-
viduals who are responsible to . . . the general electorate” was
the brief writer’s paraphrase, and was not actual language from
any previous Board case. See Woodbury County, supra at 556
fn. 3.
Nonetheless, the Board has followed this Hawkins County
test in subsequent cases, including the four cases, cited by Re-
spondent. Woodbury County, supra; Lima, supra; Economic
Security, supra; and Albany, supra. In each of these cases,
community action agencies engaged in operations similar to
Respondent, and in fact with structures mandated by the same
Federal statute, were found to have been administered by indi-
viduals who are public officials or who are responsible to the
general electorate, and were therefore exempt political divi-
sions of the various states in which they were located, and not
employers within the meaning of Section 2(2) of the Act.

9 There were four vacancies for these positions.
10 Whiel Respondent has not made a formal motion to mend its an-
swer in the instant proceeding, I deem its motion to dismiss on the
grounds of lack of jurisdiction to be an implicit request to amend its
answer, which I shall grant.
11 NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S.
600, 604–605 (1971).
Here, there is no dispute that Respondent is a community ac-
tion agency, which is mended by both Federal and state law to
be governed by a tripartite board of directors, of which one-
third must be from public sector, one-third from the private
sector, and one-third consumers residing in the service area of
the agency. It is also not contested that Respondent’s bylaws
and practice have adhered to these Federal and State require-
ments, since one-third of its members have been chosen from
each of the sectors as required by the statutes as well as Re-
spondent’s bylaws.
Respondent argues that these facts are sufficient to establish
that it is an exempt political subdivision of the State of Michi-
gan, since a majority of its board is comprised of directors who
are responsible to public officials or to the general electorate.
The General Counsel argues however that in order to meet
the requirements in Hawkins County that Respondent is admin-
istered by individuals who are responsible to the general elec-
torate, it must also be established that these individuals were
selected by democratic procedures or processes.
Respondent, in response to this assertion, contends that since
Respondent is required by State (and Federal) law to utilize
democratic procedures to select its “consumer” or”group to be
served,”12 representatives, that it is not essential nor relevant to
inquire into whether or not these representatives were in fact
selected by democratic procedures or processes. Crestline
Memonal Hospital v. NLRB, 668 F.2d 243, 245 (6th Cir. 1982)
([d]ecision on exemption depends on whether directors are
responsible by law to the electorate).
I disagree.
I note that in Woodbury County, Albany and Economic
Secunty, supra, cited by Respondent, the Board emphasized and
detailed the elaborate and comprehensive election procedures
that were utilized by the various agencies involved in selecting
their consumer representatives. I also note that Economic
Secunty, supra, states specifically, “In our opinion the Federal
and state statutes envision an election by the poor of one-third
of the members of the board, and we find that individuals, so
chosen are ‘responsible’ by law ‘to the general electorate’
within the meaning of Hawkins County.” Id. at 563 (emphasis
added). While Lima, supra, does not refer to any elaborate elec-
tion procedure utilized by the agency therein, the decision re-
flects that “representatives of the low income groups on the
Employer’s board of trustees were selected by a democratic
process by their respective organizations. (Emphasis added.) In
fact, the Board dealt specifically with the contention made by
the Petitioner Union that notwithstanding the Employer’s by-
laws and the applicable laws requiring selection of representa-
tives of the poor in accordance with democratic procedures,
that in fact such representatives were not elected by democratic
process.
Finally, I would also note Concordia Electoc Cooperative,
315 NLRB 752 (1994), where in the course of evaluating
whether an electrical cooperative was an exempt political sub-
division, the Board discussed its prior decisions such as Wood-
bury and Economic Secunty, supra. The Board concluded
therein as follows: “Likewise, the Board’s decisions in Wood-
bury and Economic Security Corp. emphasized that the exempt
12 I shall utilize the term consumer representatives rather than “group
to be served” representatives in any subsequent discussion of this issue,
since the state statute utilizes that term, and it is easier to use than
“group to be served.”
FIVECAP, INC. 1177
entity’s governing board was elected using ‘democratic selec-
tion procedures.’” Id. at 254 (emphasis added).
Respondent’s citation of Crestline, supra, is not dispositive.
There the court upheld the Board’s decision of declining to find
that an employer was a political subdivision based on its asser-
tion that it was “responsible to the electorate,” since all citizens
of the city were eligible to vote for its board of directors. The
court agreed with the Board’s reasoning that the directors are
not responsible by law to the electorate since no city or local
laws govern the operations of the Hospital, and that the deci-
sion to allow all citizens to vote is voluntary and subject to
change by the Hospital. This decision stands only for the
proposition that the requirement of being “responsible to the
electorate” must be mandated by law in order to qualify for the
exemption. This is an obvious conclusion, since the basis for
the exemption is the implicit understanding, that since the se-
lection requirements are mandated by state law, that in effect
the State is controlling how the entity is govemed.
However, the converse is not necessarily true. The case does
not say that state law requirements as to how the Board is se-
lected is enough in and of itself to establish exempt status. In
my view, the other Board cases cited above, read in conjunction
with Crestline makes it clear that in order to come within the
political subdivision exemption, an Employer must (1) be man-
dated by state law to select directors who are “responsible to
the general electorates,” (which includes the requirement that
they be chosen by democratic election procedures) and (2) have
in fact utilized democratic election procedures to select its di-
rectors.
Indeed, any other conclusion would render any of the state
requirements subject to the whims of the Employer. The state
mandate to select directors by a democratic process is no dif-
ferent than the other requirements, such as the one-third, one-
third ratio, or the necessity that a majority of the board mem-
bers be either public sector or “responsible to the general elec-
torate.” Thus, if Respondent’s argument is accepted, one would
have to conclude that it does maker whether or not in fact Re-
spondent complied with the required ratio or whether in fact a
majority of the board members were from the public sector or
consumers residing in the service area of the county served by
Respondent. Moreover, it would also not matter whether or not
for example all of the consumer representatives were appointed
by the board or even by Mary Trucks herself. Clearly, it is rele-
vant to consider whether these requirements were in fact com-
plied with by Respondent, and it is also relevant to examine
whether in fact Respondent chose its consumer respresentatives
by democratic procedures or processes.
I shall, therefore, proceed to examine that question. It is
highly questionable whether or not Respondent’s procedure as
outlined in its bylaws meets the test for establishing democratic
procedures necessary to conclude that these representatives are
responsible to the general electorate. Initially it is noted, that
unlike the bylaws of the agencies in Economic Secunty, Wood-
bury, Albany, and Lima, which specifically incorporated state
law requirements that consumer representatives be selected by
democratic processes or procedures, Respondent’s bylaws do
not make any specific reference to such democratic procedures
or processes for selection of its representatives. Thus, in this
connection Respondent’s bylaws require only that one-third of
the representatives must be representatives of the poor, and that
the candidate must submit a petition signed by 20 residents of
the county from the group to be served sector.
Sensitive to the failure of Respondent’s bylaws to require
democratic procedures or processes, Respondent points to the
bylaws provision which states that the bylaws shall not be in-
terpreted or enforced as to be in violation and/or conflict with
policies, procedures, and regulations of the Michigan statute or
Federal agencies. However, I do not believe that this “savings”
clause is sufficiently specific to require compliance with the
State mandate for selection of consumer representatives
through a democratic process.
In any event, regardless of whether or not this clause is
found to incorporate the democratic process requirement, I am
not persuaded that Respondent’s attempt to comply with this
requirement has succeeded.
Thus, I note that no election day any consumers is contem-
plated by Respondent’s procedures, other than the two con-
sumer representatives per county on the board, who vote to seat
the prospective members, or choose amongst the candidates if
there are more than one vacancy. Moreover, the petition proc-
ess employed by Respondent, requires only twenty signatures
out of the hundreds of consumers in each county served by
Respondent. I hardly think that such a procedure can be con-
strued as sufficient to qualify the candidate so chosen as re-
sponsible to the general electorate or as a “democratic proce-
dure.”
However, regardless of whether the procedure itself can be
considered democratic, the way that Respondent has in fact
enforced and applied this procedure convinces me that the con-
sumer representatives of Respondent have not been selected by
a democratic process.
The credible evidence demonstrates that Respondent made
little if any efforts to comply with the state requirement for a
democratic process in its selection procedures. In that connec-
tion, to the extent that credibility issues existed as between
witnesses called by the General Counsel and Mary Trucks, I
credit the former witnesses. Thus, Klomp, Fugere, Walters, and
Griffin produced mutually corroborative and believable testi-
mony concerning the matters that they recounted. Trucks on the
other hand, was the sole witness produced by Respondent in the
reopened proceeding, and no corroborating witnesses or evi-
dence was produced by Respondent in support of her testi-
mony.
The main area of dispute between the witnesses, dealt with
Trucks’ assertion that Respondent regularly posted a notice at
all relevant centers, 2 months before the annual board meeting
where candidates for membership are chosen, announcing the
vacancy on the board, and encouraging prospective candidates
to apply. While Respondent, through Trucks introduced a blank
copy of the form, which she claims was regularly posted, Re-
spondent was unable to produce a filled out or dated copy of
such a form, or any supervisor, employee, board member, or
any witness who saw such a form posted or was even aware of
the existence of such a form. Indeed, even Trucks herself ad-
mitted that she never actually saw such a form posted at any of
Respondent’s centers.
In these circumstances, I credit the mutually corroborative
testimony of Fugere, Walters, and former supervisor, Klomp,
that they never saw or were aware of such a form, and conclude
that Respondent has not established that such a form was ever
posted at Respondent’s centers or otherwise distributed to con-
sumers in the counties served by Respondent.
Moreover, Respondent adduced no probative evidence of
any other significant effort to notify or recruit prospective can-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1178
didates for board membership. I find it most significant in this
regard, Respondent’s inexplicable and unexplained failure to
provide in its monthly newsletter, where it includes a section
entitled “Mark Your Calendars,” a notification of the pending
board meetings wherein candidates for membership are to be
selected, and an encouragement to prospective candidates to
apply.
While Trucks also testified that Respondent’s staff members
and supervisors are instructed to recruit potential board mem-
bers, this testimony is refuted by the mutually corroborative
denials of Fugere, Walters, and Klomp, that they were ever
instructed by Respondent to do so. While Trucks’ testimony did
receive some support from Griffin, who conceded that she had
been asked by a staff member if she was interested in becoming
a staff member, this corroboration is insufficient to establish
Trucks’ contention that all employees were regularly instructed
to encourage consumers to apply for board membership. I find
it significant in this regard, the failure of Respondent to pro-
duce any written memo or document to staff members indicat-
ing that they were expected to recruit or encourage applicants
for board membership.
Respondent also in this connection points to its new recruit-
ment program as exemplified by its July letter and meeting with
consumers in Lake County, wherein Trucks testified that she
explained the eligibility requirements for board membership
and encouraged those present to apply. However, since this
meeting was both scheduled and held in July 1996 after Re-
spondent had made its assertion concerning jurisdiction, I con-
clude in agreement with the General Counsel that this action
was taken in contemplation of litigation and cannot be consid-
ered as significant, particularly, since Respondent never held
such meetings in the past, even in Mason County where it had
two vacancies for over 2 years.
Even more disturbing than Respondent’s failure to properly
notify consumers of the procedures to apply for board member-
ship, is the evidence of involvement of Respondent in general,
and Trucks in particular in the allegedly “democratic” selection
process of submitting petitions.
Thus, the evidence discloses that the petitions that Respon-
dent relies on to select board members, and which are supposed
to be circulated by the candidates themselves, are in fact fre-
quently circulated by Respondent’s employees at food distribu-
tion centers at the time that the clients receive their discounted
food. While as Respondent argues, no evidence was presented
that any consumers were coerced into signing these petitions,
the evidence also discloses that Respondent took no steps to
ensure that consumers were assured that there was no connec-
tion between their signing the petition and their receipt of dis-
counted food. It seems to me that such a system of obtaining
signatures is inherently coercive. When an employee of Re-
spondent requests that a consumer sign the petition at the same
time that they receive food, without a clear explanation that
there is no connection between the two events, it is reasonable
to conclude that at least some of the consumers would be likely
to perceive that such a connection was indeed present. I do not
believe that this type of a procedure can be construed as part of
a “democratic” process, and it seriously hinders any contention
that board members selected on the basis of such petitions are
“responsible to the general electorate.”
Moreover, the credited evidence of the personal involvement
of Mary Trucks in the selection of board members Paul Kirk
and Carol Griffin further reinforces this conclusion. Thus, not
only did Respondent order Klomp to obtain the necessary sig-
natures for the candidacy of Kirk from consumers, but when it
was reported by Murphy to Klomp that clients did not want to
sign a petition for Kirk because they did not like him, Trucks
insisted that Klomp tell Murphy that she, Trucks, knew that
Murphy could get the signatures. This conduct by Trucks
hardly bespeaks of democratic procedures or processes.
Similarly, Trucks insisted that Fugere obtain signatures on
behalf of Griffin, even where Griffin had informed Fugere that
she was no longer interested in being a board member. How-
ever, after Trucks heard Griffin criticize the board in general,
and Trucks in particular, Trucks demanded that Griffin no
longer appear at Respondent’s premises and that in effect her
services as board member were no longer required.
This evidence, as well as other instances where Respondent
ordered employees to obtain signatures generally for incumbent
board members are also contrary to any reasonable construction
of democratic processes.
While Trucks seems to be attempting to justify Respondent’s
excessive involvement in the petition process, by asserting that
she and it were merely attempting to secure compliance with
statutory mandates with respect to the number of board mem-
bers, I find such an explanation unconvincing. I do not quarrel
with Trucks’ testimony that Respondent has consistently had
difficulty in filling board vacancies, and in fact that it has never
had a contested election for such a vacancy. However, I attrib-
ute that difficulty in substantial part to Respondent’s own fail-
ure to adequately inform and encourage potential candidates to
apply for these vacancies, as I have outlined above. Even if that
were not so, it would not justify Respondent’s excessive and
inherently undemocratic involvement in the petition process as
described above.
Respondent places substantial reliance on the Board’s deci-
sion in Lima, supra, where the Board found that an agency
similar in structure to Respondent, and subject to similar statu-
tory requirements was an exempt political subdivision of the
State. As Respondent correctly observes, the Board made such
a finding notwithstanding the fact that no general election was
conducted by the employer therein to select board members.
Nor did the evidence therein establish elaborate election proce-
dures and notifications as in Albany, Economic Secunty, and
Woodbury. The procedure utilized by the Employer in Lima
was to permit community organizations to select representa-
tives from their organizations to represent the low-income
group sector on the agency’s board. Respondent also correctly
notes that no evidence was adduced in that case of any wide-
spread notice given to people of their right to be considered for
positions on the board. Thus, based on the above, Respondent
argues that Respondent’s procedures and policies are in fact
more democratic than the agency in Lima, and that therefore
Respondent should also be found to be an exempt political
subdivision of that State.
However, Respondent ignores crucial findings and conclu-
sions that were made by the Board in Lima. The Board relied
on the testimony of Lima’s executive director that its personnel
membership committee had regularly exercised its responsibil-
ity to assure that the representatives of the poor “were selected
by a democratic process.”13 The Board further observed that the

13 I once again note that the bylaws of the agency in Lima, unlike
here, specifically require representatives of the poor be selected by a
democratic election process.
FIVECAP, INC. 1179
“record contains no evidence to the contrary, i.e., that the repre-
sentatives of the poor were in fact not selected by such a proc-
ess.”
Therefore, the Board made a finding that based on the unre-
butted testimony of the executive director, that the low-income
members, although selected by community organizations, were
chosen by a democratic process. While the record in Lima,
apparently did not reflect the specifics of the democratic proc-
ess utilized by the community organizations, the Board credited
the conclusionary, but unrefuted testimony that such procedures
were followed. Moreover, the Board noted that no contrary
evidence was presented, unlike here, where substantial evi-
dence was adduced, as outlined above that the consumer repre-
sentatives for Respondent, “were in fact not selected by such a
process.” Lima, supra at 889.
Finally, Respondent argues that the Board’s jurisdiction can-
not be dependent on factors which can change at any time.
Thus, Respondent asserts that since any finding that is made
that Respondent has employed insufficiently democratic proce-
dures could easily be changed by Respondent by changing its
bylaws and/or by employing more efficient notification poli-
cies, the Board could easily be divested of jurisdiction by the
next election cycle. Respondent claims, therefore, that stable
labor relations would not be promoted if an employer could
move in and out of the Board’s jurisdiction so easily, and that
“it is ludicrous to claim that the Board’s statutory jurisdiction is
dependent upon factors which can be so fleeting.”
While Respondent does have a point, the same argument can
be made in numerous other situations where changes in how an
employer operates its business can bring it in and out of juris-
diction, or change a unit determination by the Board. However,
the Board decides cases on the facts before it at the time, and
whether Respondent is to be considered an exempt political
subdivision of the State of Michigan, must be determined by
considering the facts present on this record.
I therefore conclude, based on the foregoing analysis and au-
thorities, that since Respondent does not select its consumer
representatives by using democratic processes or procedures,
such representatives are not responsible to the general elector-
ate within the meaning of Hawkins County and its progeny.
Therefore, since a majority of its board does not consist of pub-
lic officials or consumer representatives which are responsible
to the general electorate, Respondent is not a political subdivi-
sion of the State of Michigan, and therefore is an employer
within the meaning of Section 2(2) of the Act.
While I have rejected Respondent’s argument concerning the
ease of Respondent divesting the Board of jurisdiction, I do
think that the Board could consider such a contention in assess-
ing whether or not to continue to adhere to the “second prong”
of Hawkins County, supra, as a basis for deciding statutory
jurisdiction. I would note that the Board has recently reversed
or modified previous decisions to decline jurisdiction, based on
a reevaluation of applicable precedent. Management Training
Corp., 317 NLRB 1355 (1995); and Concordia Electric, supra.
I would note in this regard the dissenting opinion by Chair-
man Stephens in Woodbury, supra, which he adhered to in Al-
bany, supra, which in my view lays out a persuasive and cogent
rationale for reversing prior precedent. Thus, as this.opinion
points out, Hawkins County does not require the Board to ad-
here to the position that political exemption is warranted where
the majority of the board is “responsible to the general elector-
ate.” Indeed as noted therein, that statement of Board law as
outlined in Hawkins County did not come from any Board case,
but only from the brief of the Board attomey.
Frankly, while I have examined much of the caselaw on this
subject, I can find no cogent rationale set forth for exempting
an otherwise private employer from the Board’s jurisdiction,
merely because a majority of its board members are, as man-
dated by state law, “responsible to the general electorate.” I
would note that state statutes also mandates that one-third of
the governing board be representatives of the private sector,
including representatives of business, labor, and civil organiza-
tions. Yet the representatives of these organizations, although
similarly mandated by the State, are not considered significant
in establishing exempt status.
Thus, the consumer or representatives of the poor portion of
the board it seems to me are little more connected to the State
than the private sector representatives. The only distinction
between these two groups, seem to be that the consumers are
deemed responsible to the general electorate, because they are
selected by a mandated democratic procedures. I find that a
rather slender reed to be the determinative factor in defining an
employer and thereby establishing the presence or absence of
Board jurisdiction.
This is especially true, since as Member Stephens observed
in Woodbury, the mandate for the State to elect a portion of its
board by using democratic procedures, “merely reflects the
State’s compliance with Federal restrictions on the use of funds
provided to the States under the Community Services Block
Grant Act.” Id. at 556. Since as also noted by Member
Stephens, the “exemption for political subdivisions of a State
“has as its ultimate basis in . . . Tenth Amendment considera-
tions of state sovereignty and the Eleventh Amendment grant of
judicial immunity to the states,” Id. at 559, citing Crestline,
supra at 246 fn. 1, there is little rationale for finding such an
impingement on state sovereignty by asserting Board jurisdic-
tion, where Federal requirements already mandate the State’s
composition of its board.
Indeed the Board has recently recognized this argument in
Concordia, supra, where it held that the 2(2) exemption “was
intended to exempt only entities which were closely identified
with state government bodies.” 315 NLRB at 754. The Board
then cited the Supreme Court’s opinion in Hawkins County that
“Congress enacted the Section 2(2) exemption to except from
Board cognizance the labor relations of federal, state and mu-
nicipal govemments since government employees did not usu-
ally enjoy the right to strike. Hawkins County, supra at 609
(emphasis added).
Thus, current Board law finds that an employer like Respon-
dent, would be “closely identified” with the State of Michigan,
merely because a majority of its board as mandated by the State
is “responsible to the general electorate” (i.e., where part of this
majority consists of consumer representative who are elected
democratically).
I find this proposition of dubious validity and agree with
Member Stephens when he observes, “I cannot accept this
proposition that Iowa’s incorporation of this Federal require-
ment into State law erects a state sovereignty barrier against a
Federal agency’s assertion of jurisdiction over an otherwise
private corporation.” 299 NLRB at 560.
It is also significant to note, as again set forth by Member
Stephens that Congress in the Block Grant Statute itself distin-
guished between “political subdivisions of the State,” and non-
profit private community organizations, thereby giving some
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1180
indication that Congress did not view these community organi-
zations as political subdivisions of the State.
I am also of the opinion that pertinent in this instance is Re-
spondent’s argument that assertion of jurisdiction here would
allow an employer to divest itself of jurisdiction by simply
changing its election procedures, and that this does not promote
stability in labor relations. While I rejected this argument as a
defense to Respondent’s failure to follow democratic proce-
dures, I do believe that this problem is another reason for the
Board to reconsider its prior precedent. Thus, current law re-
quires an evaluation of democratic processes employed by the
employing agency. As Respondent argues, if an employer
changes its election procedures and then easily divests itself of
jurisdiction of the Board, which is not a result that promotes
stability in labor relations matters. Moreover, it requires the
Board to delve into, as I have done above, the issue of how
democratic a procedure the agency utilizes in its selection proc-
ess for board membership. This is primarily a political question,
and is not an issue which I believe the Board’s expertise in
labor matters would be of much value, and is an area which I
believe the Board should not be involved in evaluating.
Accordingly, for the above reasons, I would urge the Board
to reconsider its prior interpretation of Hawkins County as re-
flected in Member Stephens’ dissent in Woodbury14 and assert
jurisdiction on that basis. However, as I have noted above, even
under current Board law, Respondent’s board is not comprised
of a majority of members who are responsible to the general
electorate (since the consumer representatives were not selected
democratically), and is an employer under Section 2(2) of the
Act.
It is also admitted and I so find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. FACTS AND ANALYSIS
A. The Representation Case
In the fall of 1994 the Union began its organizational cam-
paign amongst Respondent’s employees. On January 20, 1995,
the Union filed a representation petition in Case 7–RC–20509
seeking to represent Respondent’s employees at its various
facilities in the four counties of Michigan. A representation
hearing was thereafter held with respect to this petition on Feb-
ruary 10, 13, and 14.
Prior to the hearing, 13 employees of Respondent were sub-
poened by the Union to testify at the hearing. These employees
included Thomas Belongia, Carolyn Burba, Karla Clegg, Flor-
ence Feliczak, Verna Frigure, Bruce Kent, Melissa Kukla,
Amanda Lange, David Monton, Dabe Smith, Marva Taylor,
Julie Wiegard, and Melissa Larson-Anderson.
Belongia Fugere, Kukla, Monton, Smith, Burba, and Taylor
were called as witnesses by and testified on behalf of the Un-
ion. Lange and Anderson attended the hearing, but were not
called to testify.
While the parties were in agreement with respect to the in-
clusion and exclusion of several categories and classifications
of employees in defining an appropriate unit, there was dis-
agreement concerning a number of classifications, such as

14 I would also cite Member Oviatt’s dissent in Economic Security,
supra, where in citing the Supreme Court’s opinion in Hawkins County,
urged that board members cannot be considered responsible to the
“general electorates,” since they are subject to removal only by the
board, and cannot be removed by the electorate.
teachers, head cooks, crew leaders, and pre and postinspectors
in the weatherization department, county community support
workers, program information specialists, and three categories
of coordinators.15
In this connection, Respondent contended that all of the
above employees were either supervisors and/or managerial
employees and should be excluded from the unit. The Union
urged that all of these categories of employees were neither
supervisors nor managerial, should be included in the unit, and
presented the above-named employees as witnesses to testify in
support of the Union’s position in that regard.
On March 31 the Regional Director issued a Decision and
Direction of Election, in which he found that with the exception
of the coordinators positions, Respondent had not established
their supervisory or managerial status, and concluded that these
employees should be included in the unit. He found that the
coordinators were supervisors, and excluded these categories
from the appropriate unit.
The decision therefore ordered an election in the following
appropriate unit:

All full-time and regular part-time teacher aides, weatheriza-
tion laborers, bus drivers, clerks, kitchen aides, drivers for the
Tasty Meals program, assistant cooks, program information
specialists, county community support service workers, field
supervisors/pre-inspectors, post inspectors, crew leaders, head
cooks, Head Start teachers and assistant community workers
employed by the Respondent at its facilities in Lake, Manis-
tee, Mason and Newago counties, Michigan; but excluding
executive directors, Mason County Director for Head Start,
Head Start head teachers, fiscal officers, community support
directors, weatherization directors, Head Start administrative
assistants, fiscal clerks, Head Start parent education coordina-
tors, Head Start disability service coordinators, guards and su-
pervisors as defined in the Act.

Pursuant thereto, the election was held on April 28. Marva
Taylor and Dale Smith acted as observers for the Union at the
election. The results were 38 votes for the Union, 2 no votes,
and 23 challenges, which were not determinative of the elec-
tion. Accordingly on May 8, a Certification of Representative
was issued certifying the Union as the representative of Re-
spondent’s employees in the unit found appropriate.
B. Respondent’s Supervisory Structure
At the apex of Respondent’s supervisory structure was and is
May Trucks its executive director/head start director, who op-
erates out of the main office in Scottville and oversees the gen-
eral operation of all of Respondent’s programs in the four-
county area. Directly below Trucks in the administrative hier-
archy are or were Melba White, head start administrative assis-
tant, Russell Pomeroy, fiscal officer, and Paula Clark, weather-
ization director, who also works or worked out of the Scottville
office.
At its various locations, Respondent employs or employed
community support directors, including Lisa Stankowski and
Mary Jo Klomp, as well as head teachers, including LuAnn
McCraken, April Foley, and Sandra Rotzein.
It is undisputed that all of the above named individuals are or
were during the time of their employment with Respondent,
15 These employees were designated as education parent coordinator,
health service coordinator, and disability services coordinator.
FIVECAP, INC. 1181
supervisors of Respondent within the meaning of Section 2(11)
of the Act and agents of Respondent, within the meaning of
Section 2(13) of the Act.
C. The Alleged Violations of Section 8(A)(1) of the Act and
Expressions of Animus
1. Facts
In early January, on a day that the Union was distributing
cards, and holding union signs about the Union outside Re-
spondent’s office, Belongia testified that he was called into
Trucks’ office. According to Belongia, Trucks asked him to
close the door, and inquired if he had heard about the Union?
She asked him other questions about the Union, including who
had started the Union? Belongia contends that at the end of the
conversation, Trucks informed Belongia that “if the Union was
voted in, she would just fire everybody, that she had done it
once, and she can do it again.”
While Trucks made a general denial that she made any
threats to either terminate or discipline employees if they sup-
ported the Union, she gave no testimony either specifically
denying the statements attributed to her by Belongia, nor pro-
viding a different version of this alleged conversation.
Amanda Lange testified that sometime in January she had a
conversation with Head Teacher Sandra Rotzien, who reported
to Lange that she had just come from a head teacher’s meeting.
Rotzien told Lange that the employees should watch out who
they tell that they are in support of a Union, because if it gets
back to the office, “there might be trouble.”
Although Rotzien testified on behalf of Respondent on other
matters, she did not deny making the above-described remarks,
nor did she furnish any testimony concerning such a conversa-
tion with Lange. Rotzien did testify however that neither
Trucks, nor any member of management ever said anything to
her that employees who supported, voted, or testified for the
Union would be fired.
Lange also testified that after she was subpoened to testify
by the Union at the representation hearing, about a week prior
to the hearing, she notified Rotzien and Trucks about it. Lange
asserts that she called Trucks on the phone and told her that she
had been subpoened by the Union to go to court. Trucks alleg-
edly informed Lange that she must have signed a card and was
a supporter of the Union if she was being subpoened by the
Union.
Trucks specifically denied making the above remarks to
Lange, and added that she never had a conversation with Lange
and did not know who Lange was until someone told her.
David Monton testified that in February, shortly before the
representation hearing, Weatherization Director Paula Clark
told him that Mary Trucks had told her (Clark) that “anybody
who voted in the Union would be eliminated in one year.”
Similarly, Art Burkel testified that in late January, Clark told
him that Mary Trucks always got her way and people got fired
and that if the employees voted in the Union or got involved in
union activities, they would “have to pay the price.”
While Paula Clark testified as a witness for the General
Counsel, she did not corroborate the testimony of Monton or
Burkel concerning these two alleged statements. Nor did Clark
deny making these comments to Monton or Burkel.
Clark also testified to a conversation with Trucks at the
Scottville office in February, shortly after the representation
hearings, in the presence of Mary Jo Klomp. Clark asserts,
substantially corroborated by Klomp that Trucks told them that
those employees who testified at the representation hearings
could not be trusted anymore and could “kiss their jobs good-
bye.” Trucks also added, according to Clark that employees
Smith and Belongia could not be trusted any longer, and that
she was not going to fight for funding for jobs for people that
she could not trust.
Trucks categorically denied making either of the above
statements to Clark or Klomp, and denies having any meeting
or any conversations with Clark or Klomp by themselves, dur-
ing which she discussed the Union or the hearing.
While Trucks also testified that she did not consider anything
that any of the employees said at the representation hearing in
her mind to be a basis for terminating their employment, when
asked by Respondent’s attorney whether she got upset or angry
with any employees because of their testimony, her response
was quite different and quite revealing. Trucks answered:

No more than here. Just that people were—some people were
clearly not—they were faking the truth and they knew that.

At that point her attorney asked if Trucks was of a mind to
fire them “simply because they had subpoenaed by the Union to
testify?” Trucks answered no.
Weatherization employees Monton, Smith and Belongia all
testified that Clark specifically informed them that Trucks had
told her (Clark) that employees who testified at the hearing on
behalf of the Union would have their jobs eliminated. Clark
admits that she made such statements to these three employees,
who were all under her direct supervision.
Ann Walters, a community support worker who works for
Respondent at its Baldwin office, testified concerning an inci-
dent and a conversation that she allegedly had with Trucks on
March 1 outside the Scottville office, where Walters had gone
for a meeting.
According to Walters, at 10 a.m. that morning, in the parking
lot she encountered Trucks, who was with a person introduced
to Walters by Trucks as a monitor from the Chicago Head Start
office. After a brief discussion about work-related matters,
Walters asserts that Trucks told her that it was too bad that she
wasn’t at the office earlier, because she had missed the fun.
When Walters asked what fun, Trucks allegedly replied, “[T]he
Union was here picketing and I’d like to kick their butts.”
Once again, Trucks unequivocally denied making such a
statement to Walters or anyone else. Trucks did recall seeing
Walters at the office on that day when she was leaving the fa-
cility on that day along with the Federal monitor to visit cen-
ters. However, Trucks claims that she had no conversation at
all with Walters on that day, and adds that she would never had
made such a comment to Walters, even is she felt it, particu-
larly in the presence of a Federal monitor.
In that regard, Trucks testified that when she arrived at the
office with the monitor, they encountered the Union picketing
the facility. According to Trucks she said good morning to
Union Representative Holland, and offered him a cup of coffee
and the use of the agency’s restrooms. Trucks further asserts
that the Federal monitor was somewhat concerned about that
the union picketing might contaminate the monitoring process
and suggested that had she known Respondent was having un-
ion problems she would have rescheduled the visit. The moni-
tor also did not want her people talking with Holland.
Trucks argues that in view of the Federal monitor’s ex-
pressed concerns about the union situation, she would never
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1182
had made remarks, it testified to, by Walters, it testified to by
Walters in front of the monitor.
Respondent in connection with assessing the credibility of
the various witnesses concerning the above allegations, relies
upon a number of letters which were prepared by a consultant
(David Parmenta) hired by Respondent, which were sent to its
employees and/or supervisors. More specifically, Respondent
points to the following question and answer in its letter of April
11 to employees.

Question: Will employees who support the union be
discriminated against in any way if the union is voted
down?
Answer: Absolutely NOT! We need to keep an open
mind to the alternatives and issues that confront us. I have
learned a great deal since this situation began. I value the
fact the communication has become more open. No one
will be discriminated against for their support of the union
or for stating their opinions.”

Respondent also calls upon portions of letters that it sent to
all those employees whom it believed to be supervisors, dated
January 23 and 26.

You were cautioned to do nothing that would be per-
ceived as interfering with this activity. Specifically to
avoid actions which might give claim to an unfair labor
practice charge . . . .
The position of the Agency is that it is within the rights
of those who are eligible to participate in a union. To vote
and join if they so desire. They must decide what is in
their best interest, without the benefit of your input . . . .
Again, it is the agency position that eligible employees
have a right to organize a union.”

In this connection it is significant to note that these two let-
ters were sent to a number of employees who were found by the
Board not to be supervisors, such as teachers, weatherization
crew leaders and inspectors, head cooks, and community ser-
vice workers. It is also significant that Respondent failed to
refer the other portions of the above letters to its alleged super-
visors, which stated that supervisors should not be part of a
union, and should not attend union meetings. Moreover, the
letter also threatens that any “supervisor” who attends union
meetings is violating instructions not to do so, and will be dis-
missed.
The remaining 8(a)(1) violations alleged against Respondent
primarily involve the petition being circulated by some indi-
viduals calling for the removal of trucks and Pomeroy, and
Respondent’s reaction to that petition. Since the legality of
Respondent’s actions concerning this petition, is largely de-
pendent upon whether or not activities is largely dependent
upon whether or not activities of employees concerning such
petition are considered to be protected concerted activity. I
shall postpone evaluation of the alleged 8(a)(1) conduct with
respect to the petition to my consideration of the various ac-
tions of Respondent alleged to have been motivated by employ-
ees petition related activity and which are alleged to be viola-
tive of Section 8(a)(3) of the Act.
2. Credibility resolutions and analysis
Based on comparative demeanor considerations, as well as
the corroborative nature of their testimony, I credit the testi-
mony of Belongia, Lange, Monton, and Burkel concerning their
conversations with officials of Respondent, particularly Trucks,
Rotzein, and Clark, as well as the mutually corroborative testi-
mony of Clark and Klomp, concerning what Trucks said to
them about employees who testified at the hearing, as related
above. I note also that Trucks did not specifically deny the
statements attributed to her by Belongia, and that Rotzein did
not deny the comments that Lange testified Rotzein had made
to her.
While I have considered, as requested the letters that Re-
spondent sent at the behest of its consultant to its employees
and/or alleged supervisors, but I do not believe that these letters
are convincing proof that the comments attributed to Respon-
dent’s supervisors and officials were not made. On the con-
trary, although the letters did promise that employees would not
be discriminated against for their support of the Union, the
letters to supervisors also threatened that these alleged supervi-
sors would be dismissed if they attended union meetings. It is
clear that Respondent considered a number of employees in-
volved herein, such as weatherization crew leaders and inspec-
tors, teachers and head cooks who testified at the hearing to be
supervisors, and not eligible for union representation. Indeed
that was the very issue litigated at the representation hearing. It
is also clear based on Trucks’ admission during her testimony
herein that she was upset and angry at the employees who testi-
fied at the hearing on behalf of the Union, that in effect they
were not supervisors and therefore eligible for union represen-
tation, because these employees in her judgment had been
“judging the truth.”
It is therefore logical to conclude, which I do that Trucks
was likely to have made the comments attributed to her by
Clark, Klomp, Belongia, and Lange, all of which in some form
or another indicate her displeasure with these and other em-
ployees whom she improperly considered to be supervisors, for
choosing to be represented by the Union and/or for testifying at
the hearing contrary to Respondent’s position as to their eligi-
bility.
However, with respect to the alleged conversation between
Walters and Trucks as testified to Walters, I credit Trucks’
testimony that such a conversation did not happen. I am per-
suaded as testified to by Trucks and argued by Respondent, that
it is not likely that Trucks would make the comments attributed
to her by Walters in front of a Federal monitor, who had al-
ready expressed sensitivity to the union situation. I also note
that Trucks’ testimony that when she encountered the pickets,
she offered Holland coffee and use of the restrooms, was not
rebutted by Holland and is therefore credited. Some comments
do not indicate that Trucks was disturbed by the picketing, and
lends further support to my conclusion that she would not likely
have threatened to “kick their butts,” in reference to the Union.
Having so concluded, I shall therefore recommend dismissal
of paragraph 10(c) of the complaint, which alleges that Re-
spondent advised its employees that it wanted to engage in
physical violence to representatives of the Union.
However, I have concluded above that in early January,
Trucks told Belongia that “if the Union was voted in, she would
just fire everybody that she had done it once, and she could do
it again.” This remark is a blatant violation of Section 8(a)(1)
of the Act and I so find. Western Health Clinics, 305 NLRB
400, 407 (1991).
During this same conversation, Trucks asked Belongia if he
had heard about the Union, and who started the Union? This
questioning of Belongia by Trucks, the highest management
FIVECAP, INC. 1183
official, Matheson Fast Freight, 297 NLRB 63, 68–69 (1989),
in her office, the focus of managerial authority, Pacesetter
Corp., 307 NLRB 514, 517–518 (1992), and accompanied by
an unlawful threat of discharge. International Door, Inc., 303
NLRB 582, 600 (1991), constitutes coercive interrogation and a
further violation of Section 8(a)(1) of the Act.
In this connection I note that the complaint makes no spe-
cific reference to Trucks having unlawfully interrogated em-
ployees in January. However, “it is well-sealed that the Board
may find and remedy a violation even in the absence of a speci-
fied allegation in the complaint if the issue is closely related to
the subject matter of the complaint and has been fully liti-
gated.” William Pipeline Co., 315 NLRB 630 (1994); citing
Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920
F.2d 130 (2d Cir. 1990).
Here, as in Williams, supra, the complaint does allege that
Trucks made other coercive statements, including other alleged
interrogations, and the union animus I disclosed by this unlaw-
ful interrogation is relevant to the various unlawful discharge
allegations in the complaint, including one with respect to Be-
longia, the subject of the unlawful interrogation. Therefore
there is a close connection between the violation sought and
other subject matters of the complaint.
Moreover, there was no objection to Belongia’s testimony in
this area, and Respondent had an opportunity to cross-examine
the witness and further explore the issue. Accordingly, I con-
clude that the issue was fairly and fully litigated.16 Williams,
supra.
I have also found above that Sanda Rotzein an admitted su-
pervisor of Respondent, told Amanda Lange that employees
should watch out who they tell that they are in support of a
Union, because if it gets back to the office, “there might be
trouble.” I conclude that this statement by Rotzein, can rea-
sonably be construed as an implied threat of reprisal against
employees for their engaging in union activity. Action Auto
Stores, 298 NLRB 875, 897 (1990). I so find.
Once again, although the complaint makes no reference to
this allegation, based upon Williams, supra, it is appropriate to
find such a violation. While the complaint does not allege that
Respondent violated the Act by any conduct of Rotzein, the
complaint does allege and Respondent admitted that Rotzein
was a supervisor and agent of Respondent. Thus, Respondent
was aware that the General Counsel was alleging it to be re-
sponsible for Rotzein’s conduct. Since Lange is one of the
alleged discriminatees herein, the statement which demon-
strates Respondent’s animus towards union activities in general
and Lange’s in particular, and which is similar to other allega-
tions in the complaint, establishes a close connection between
the violation found and the subject matter of the complaint.
Moreover, as in Williams, supra, the issue was fairly and
fully litigated, since Respondent made no objection to Lange’s
testimony in this regard, and had an opportunity to cross-
examine Lange fully and further explore the issue.
I have also found that Trucks informed Supervisors Clark
and Klomp that employees who testified at the representation
hearing could not be trusted anymore, and could “kiss their jobs
good-bye.” Trucks also made specific reference to Belongia
and Smith as employees who could not be trusted any longer,
and added that she was not going to fight for funding for jobs

16 In fact, Respondent’s attorney did cross-examine Belongia con-
cerning his testimony about this conversation with Trucks.
for people that she couldn’t trust. While these statements of
Trucks to Clark and Klomp are important demonstrations of
Respondent’s animus towards employees who testified at the
hearing, and who supported the Union, and is highly relevant in
assessing motivation for subsequent changes in conditions of
employment of its employees, they do not in and of themselves
constitute independent violations of the Act, since they were
made to supervisors of Respondent by Trucks with no employ-
ees present.
However, when Clark subsequently repeated the essence of
Trucks’ remarks to Monton, Smith, and Belongia, Respondent
thereby violated Section 8(a)(1) of the Act.
I have also concluded above that Clark told Monton that
Trucks had informed her that “anybody who voted in the Union
would be eliminated in a year.” Also Clark told Burkel that
Trucks always gets her way, and people get fired, and if em-
ployees voted in the Union or got involved in union activities,
they would “have to pay the price.”
Although Clark did not testify that Trucks made either of
these comments to her, I have concluded that Clark did make
the statements attributed to her by Monton and Burkel. Thus,
since Respondent is responsible for Clark’s statements to em-
ployees, I conclude that it is appropriate to find additional vio-
lations of the Act by Respondent based on these statements of
threatening to discharge and unspecified reprisals in retaliation
for employees’ union activities. I also find
D. The Alleged Violations of Section 8(A)(3) and (4) of the Act
1. The alleged discrimination against Melissa Larson-
Anderson
a. Facts
Melissa Larson-Anderson was employed by Respondent as a
housing coordinator since April 1992, in its Scottville office.
Anderson attended a union meeting on January 17, which
was also attended by Supervisor Rotzein.
On February 2, Larson-Anderson submitted to Respondent a
letter of resignation, indicating that her last day of work would
be February 17, which was a Friday. Subsequently, Larson-
Anderson was subpoenaed by the Union to testify at the repre-
sentation hearing which commenced on February 10. In con-
nection therewith Larson-Anderson was present at the hearing
on February 10, 13, and 14, but was not called as a witness.
However on February 10 and 13 during the course of the hear-
ing and during breaks, Larson-Anderson, in the presence of
Trucks would go over to Union Representative Holland and/or
Union Attorney Darrell Cochran, and ask a question or make a
comment.
At the end of the second day of hearing, on February 13,
Larson-Anderson testified that Trucks summoned her over to
where Trucks was sitting next to her counsel and Pomeroy.
According to Larson-Anderson, Trucks told her that she
(Trucks) no longer wanted Larson-Anderson in the building
that she did not want her in clients’ files or on the premises at
all. Larson-Anderson replied that Trucks was terminating her
because she was not allowing her to make all of her time.
Trucks responded that she was not terminating Larson-
Anderson, but accepting her resignation.
Trucks does not deny the substance of her conversation as
testified to by Larson-Anderson, but asserts that she did not
summon Larson-Anderson. Instead, according to Trucks, Lar-
son-Anderson approached her at the hearing and asked Trucks
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184
when she should report to work. Trucks admits that she replied
that Larson-Anderson need not return to work, and then claims
that she told her attorney, but still in Larson-Anderson’s pres-
ence that she did not want Larson-Anderson to be in the office
going through records.
Clark testified that she had been scheduled to take over the
responsibilities of Larson-Anderson when the scheduled resig-
nation was to have been effective on February. According to
Clark she had an appointment scheduled to meet with Larson-
Anderson on February 16 to go through Larson-Anderson’s
files and to have Larson-Anderson explain to Clark the status of
all of the projects that were being worked on.
Clark further testified that she had a conversation with
Trucks either on February 15 or 16 during which she asked
what had happened to Larson-Anderson. Trucks allegedly
replied that Larson-Anderson was not back, because during the
hearing, Larson-Anderson kept jumping up and talking to the
union representative and the union attorney. Therefore, Trucks
told Clark that she could no longer trust Larson-Anderson and
would not let her come into the office. Clark also asserts that
Trucks stated that she had fired Larson-Anderson.
Trucks for her part, made no specific denial of Clark’s testi-
mony, but did deny that her decision not to allow Larson-
Anderson was in any way motivated by the fact that she had
been subpoenaed to testify by the Union or had appeared at the
representation hearing. According to Trucks, she didn’t want
Larson-Anderson back because there was nothing left for her to
do, and because Larson-Anderson had been angry after an ar-
gument with Clark, which had immediately preceded Larson-
Anderson’s resignation.
Trucks did respond in part to Clark’s testimony by asserting
that Larson-Anderson had completed everything that she had to
do and in fact Clark had already met with Larson-Anderson and
obtained all the necessary information that Clark needed to
complete the transaction. Thus, Trucks claims that although
she had not made the decision not to permit Larson-Anderson
to return to work until the hearing, when she was asked about
it, that she (Trucks) felt that since Larson-Anderson had noth-
ing to do, and she had previously argued with Clark, that it was
better not to bring more tension into the office.
Respondent submitted a number of documents, which Trucks
asserts supports her testimony in this regard. The documents
include memos, which show that Trucks had previously criti-
cized Larson-Anderson concerning her productivity, and Lar-
son-Anderson’s response, plus documents indicating meetings
that were held between Larson-Anderson and Clark concerning
HPG projects even before Larson-Anderson submitted her res-
ignation. A memo dated January 31 from Clark to Trucks,
states that Clark worked with Larson-Anderson on bringing
HPG up to speed, and that they prepared status goals and plans
to reach goals. The memo also states, “This will be submitted
by Melissa.”
Another memo dated February 1 from Clark and Larson-
Anderson to Trucks, refers to their meeting of January 30, and
indicate that they (Clark and Larson-Anderson) will work to-
gether to coordinate and complete HPG and weatherization
projects.
A memo dated February 1 from Clark and Trucks reflects
that Clark had prepared a plan of action as discussed in prior
memos, but that Larson-Anderson appeared to have gotten
offended when Clark urged her to assist in setting goals, and
that Larson-Anderson was defensive, upset and angry. The
memo also indicates that Larson-Anderson apologized and “we
proceeded to prepare plans.”
The next day, as noted above, Larson-Anderson submitted
her resignation, dated February 2, effective February 17.
Clark also submitted another memo to Trucks dated Febru-
ary 14. In this memo, Clark reports that she spent the afternoon
in Larson-Anderson’s office, where she read grants, assessed
job status, reviewed computations, read letters and forms, re-
viewed files, and began a list of questions. The questions, as
reflected in Clark’s memo were:

1) Which guidelines (income) are used for HPG?
2) What is the max spent on an HPG job? Is there a
ceiling?
3) Need to find: forms required, contractor list, work
files that are pending information.

The memo concludes with the following statement by Clark.

Melissa’s office is total chaos. This could take a few days!!

In fact in the memo the word years is written in parenthesis
with a question mark next to it, after the word days, but then
was crossed out, apparently by Clark herself.
It is undisputed that Larson-Anderson did receive her full
pay for the 3 days that she was not allowed to work.
b. Credibility resolutions and analysis
The record reveals a minor dispute between Larson-
Anderson and Trucks, as to whether Trucks summoned Larson-
Anderson over to her, or whether Trucks merely responded to
Larson-Anderson’s inquiry as to when to return to work. How-
ever these variations are inconsequential, and I need not decide
which version is correct, inasmuch as the substance of Trucks
statements to Larson-Anderson are not in dispute. Thus,
Trucks informed Larson-Anderson not to return to work, and
that Trucks did not want her going through Respondent’s files.
However, it is important to assess the credibility of Clark’s
testimony concerning her alleged conversations with Trucks
concerning Larson-Anderson. I found Clark to be a candid and
believable witness, and I credit her testimony here, as well as
her testimony discussed infra, concerning her other conversa-
tions with Trucks. I note that Trucks did not specifically deny
this conversation with Clark, although it could be argued that
she inferentially did so, by denying that the hearing had any
bearing on her actions with regard to Larson-Anderson, and by
Trucks’ assertion that Larson-Anderson had nothing to do.
I have considered the documents presented by Respondent
allegedly to establish this latter fact. Not only do I believe that
they do not do so, but on the contrary tend to corroborate the
testimony of Clark which I have credited above, that she did
have an appointment with Larson-Anderson to go over the lat-
ter’s files and have Larson-Anderson explain the status of vari-
ous projects. I note particularly in this regard Clark’s daily
summary of her activities on February 14 where she described
how she had spent the afternoon in the office of Larson-
Anderson attempting to review files that she had several ques-
tions that needed answering, and that Larson-Anderson’s office
was in such a mess that it could take a few days for Clark to
find out the information that she needed. These comments by
Clark strongly suggest that Larson-Anderson’s assistance
would have been most helpful if not essential in assisting Clark
in taking over Larson-Anderson’s responsibilities.
FIVECAP, INC. 1185
Accordingly, I credit Clark that she had an appointment with
Larson-Anderson to go over files and projects, and that ap-
pointment could not be kept, because Trucks would not allow
Larson-Anderson to return to work after February 14. I further
credit Clark that when she asked Trucks what had happened to
Larson-Anderson, Trucks informed Clark that Larson-Ander-
son kept jumping up and talking to the union representative and
the union attorney, and therefore Trucks could no longer trust
Larson-Anderson to be allowed to come into the office.
The actions of Respondent with respect to Larson-Anderson
must be analyzed under the standards of Wright Line, 25 NLRB
1083 (1980), and Transportation Management Corp., 462 U.S.
393 (1983). Whether Respondent’s action is considered a ter-
mination or merely an acceleration of Respondent’s acceptance
of her resignation, Wright Line standards must be applied, since
it involves a change in Larson-Anderson’s terms and conditions
of employment.
It is clear that the General Counsel has established a strong
prima facie case that Larson-Anderson’s participation at the
representation hearing in support of the Union was a motivating
factor in Respondent’s decision to terminate her employment
on February 14. Thus, it is undisputed that Trucks informed
Larson-Anderson on that date in the hearing room, that Larson-
Anderson should not return to work and that Trucks did not
want her to be going through files. While the timing of this
action above would be sufficient to establish a prima facie case,
such a finding is substantially strengthened by Clark’s credited
testimony that Trucks told Clark, when she inquired about Lar-
son-Anderson, that Trucks could no longer trust Larson-
Anderson because she had assisted union officials during the
course of the representation hearing.
The burden then shifts under Wright Line to Respondent, to
establish by a preponderance of the evidence, that it would have
taken the same action against Larson-Anderson absent her pro-
tected conduct. Respondent has fallen far short of meeting its
burden in this regard.
Trucks testified with respect to her decision that it had noth-
ing to do with Larson-Anderson’s activities at the hearing but
was solely motivated by the fact that there was nothing left for
Larson-Anderson to do, plus the fact that tension had existed
between Clark and Larson-Anderson which Trucks did not
wish to continue. While Respondent argues that Trucks’ testi-
mony in this case is corroborated by the documents that it sub-
mitted I do not agree. As noted above, I have concluded above
that Clark’s February 14 memo (the day of the termination)
indicates that she (Clark) had much difficulty in attempting to
review Larson-Anderson’s files, and that clearly Larson-
Anderson’s assistance would have been most useful to Clark
enabling her to fully take over Larson-Anderson’s prior respon-
sibilities.
The other documents submitted by Respondent did reveal
that Trucks had previously Larson-Anderson’s productivity,
that Clark and Larson-Anderson had previously met and
worked together on certain HPG projects, and that Clark had
characterized Larson-Anderson as defensive, upset, and angry.
However, all of these documents were dated prior to the date
that Larson-Anderson submitted her resignation. Indeed it
appears that the resignation decision by Larson-Anderson may
have been in part related to her argument with Clark on Febru-
ary 2.
However, despite full knowledge of all the facts that Trucks
allegedly relied upon on February 14 to terminate Larson-
Anderson, on February 2, Respondent accepted the resignation
with a last working day of February 17 without question. Re-
spondent allowed Larson-Anderson to continue to work, al-
though she allegedly had nothing to do, and tension existed
between her and Clark, through February 9. It was only after
Trucks observed Larson-Anderson’s presence and actions at the
hearing in support of the Union, that she suddenly decided that
Respondent would no longer permit Larson-Anderson to appear
at its premises and work on its files.17
Respondent also argues, in mitigation of its actions that it
paid Larson-Anderson for the 3 days that she did not work.
While this action may relieve Respondent of any backpay li-
ability to Larson-Anderson, it does not either mitigate nor cure
Respondent’s conduct. To the contrary, in my view it shows
the extent of the animus towards the union activities of its em-
ployees by Respondent in general and Trucks in particular.
Thus, Trucks was so upset at Larson-Anderson for her actions
at the hearing, which Trucks construed as disloyalty to Respon-
dent, that she felt that she could no longer trust Larson-
Anderson to work on Respondent’s files, and was willing to
pay Larson-Anderson for 3 days for not working, when it was
clear that there was important work for Larson-Anderson to do.
Trucks preferred to have Clark waste her time trying to find
things in Larson-Anderson’s messy office and get up to speed
on Larson-Anderson’s files and projects without Larson-
Anderson’s assistance. I find this conduct of Respondent dem-
onstrates the depth of Trucks’ dislike of the Union in general,
and more particularly her equating union support with disloy-
alty and distrust, especially concerning employees she believed
to be supervisory or managerial employees.
Accordingly, I conclude that since Respondent has not met
its burden of proof, its actions in regard to Larson-Anderson is
violative of Section 8(a)(1), (3),18 and (4) of the Act. Care
Manor of Farmington, 314 NLRB 248, 254–255 (1994).
2. The warning issued to Dave Smith
a. Facts
Dale Smith was employed by Respondent as an inspector in
the weatherization department, on September 20, 1994. Re-
spondent took the position at the representation hearing that
Smith’s position was supervisory or managerial and should be
excluded from the unit. Smith testified at the hearing on behalf
of the Union, contrary to Respondent’s position on these issues.
As noted above, after the hearing, Trucks informed Clark
(who was Smith’s immediate supervisor), she could no longer
treat Smith (and Belongia) because of their testimony at the
hearing, and threatened to discharge and/or not fight for fund-
ing for such people. Clark repeated Trucks’ comments to both
Belongia and Smith.
Dale Smith was also one of the observers for the Union at
the election held on April 28. In that connection, on April 24,
Smith asked Clark for permission to take off on April 28 so he
could serve as the observer. Clark informed Trucks of Smith’s
request on the same day, which request was granted.

17 In that connection Trucks admitted that she did not decide to ter-
minate Larson-Anderson until February 14, during the hearing when
Larson-Anderson allegedly asked her about when to return to work.
18 While Respondent argues that it had no specific knowledge of any
union activities of Larson-Anderson, her conduct at the hearing of
assisting the union representatives is clearly activity in support of the
Union, as well as activity in connection with NLRB proceedings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1186
Later on that same day, April 24, Smith stopped in at Re-
spondent’s intake office located in White Cloud. According to
Smith he did so pursuant to standard company practice to stop
at intake offices, if they are in the area to see if any paper work
needed to be delivered to the Scottville office. Smith further
asserts that while he was at the intake office and after making
some phone calls, he noticed that the election notices were not
posted. Therefore, he asked Lori Murphy, the community sup-
port worker who was in charge of that office, why the notices
were not posted, since they had been posted at Scottville. Mur-
phy replied that she wasn’t aware that anything had to be
posted.
Smith also testified that on that day he at first left the Scott-
ville office and swing past Chase to meet with an agency client
named Ringler and a contractor. Neither Ringler nor the con-
tractor were there, so Smith asserts that he then headed for
White Cloud, which is some 30–45 minutes away, in order to
meet with an HPG inspection job, South of White Cloud.
Smith claims that this appointment had previously been set up,
by whom he could not recall, but that the client was not home.
Thus, he then proceeded to the White Cloud intake office,
which was nearby. Smith could not recall the name of the HPG
job South of White Cloud that he was allegedly scheduled to
inspect, and could not recall the route that he took to go from
the Ringler’s to this job.
After Smith left, Murphy called the Scottville office and in-
formed Respondent that Smith had asked about the election
notices, and inquired19 as to whether they should be posted.
Pomeroy informed Murphy that he would send the notices out
to her for posting.
Later on that day, Clark received a memo from Trucks, indi-
cating that it was reported to her that Smith made an unauthor-
ized stop in White Cloud under the pretense of checking to see
if he had anything to go to Scottville. The memo goes on to
say, “While there, he proceeded to attend to Union business.
Please give Mr. Smith clear directions that he is not to use
agency time for such activities. Instruct him in the proper re-
quest for Time Off Procedures.”
According to Clark, Trucks never asked her to get Smith’s
side of the story, before ordering that he be issued a warning.
Clark further testified that she wrote up several proposed
memos to Smith, submitted them to Trucks, who made some
changes and at one point told Clark that her proposed memo
was “too wimpy.”
Finally, a memo was approved by Trucks, typed up, and
handed to Smith by Clark. The memo reads as follows:

TO: DALE SMITH, POST INSPECTOR

FROM: PAULE M. CLARK, WEATHERIZATION
DIRECTOR

DATE: APRIL 25, 1995

RE: UNAUTHORIZED STOPS
USE OF AGENCY TIME

On Monday, April 24, 1995, you stopped in at the
White Cloud office under the pretense of checking to see
if they had anything to go to Scottville.
Your responsibilities as Post Inspector do not include
unauthorized stops at county offices. You are to go to

19 Murphy initially spoke to the secretary, Terese Lombard, and then
was called back by Pomeroy.
daily assigned work sites only. Use of agency time and
resources, ie; [sic] vehicle, mileage, telephone, etc. for any
non-agency activities can result in your termination.
Should you require time off for personal or union
business, you are to use the proper FiveCAP, Inc. proce-
dure of requesting a particular date in advance on a Re-
quest for Personal Business Time form.
Also, effective immediately, you are to turn in a daily
accounting of your time to the program Director at the end
of each day.

Clark further claims that when she gave the memo to Smith,
he informed her that he had a good reason for being in the
White Cloud area, something about meeting a contractor in the
area, but she could not recall the specific reason given by
Smith. Clark admitted, however, that she could not recall
whether or not Smith had called previously or informed her that
he was going to be in the White Cloud area. Clark also admit-
ted that weatherization employees should not divert from their
route more than a maximum of 10 miles, unless they have per-
mission to do so, but she did corroborate the testimony of
Smith that employees do generally stop in at intake offices, if
they are in the area to see if anything needs to be delivered back
to Scottville.
Mary Trucks testified that someone from her office, whom
she didn’t recall, reported to her that Lon Murphy had called
and said that Smith had been “harassing” her at the White
Cloud office, and that it was also reported to her (Trucks) that
Smith had been inquiring about the election notices. According
to Trucks, she then asked Clark to find out why Smith was at
White Cloud, and that Clark reported back to Trucks that Smith
had claimed that he was there to see if anything needed to be
picked up to be brought back to Scottville.
Trucks asserts that she then ordered that the memo be issued
to Smith, solely because of his having made an unauthorized
stop. Trucks further testified that Respondent’s policy is that
employees must sign in and out and go to their stated destina-
tion unless they have permission from supervisors to go else-
where. Trucks also testified that a review of Respondent’s files
indicates that it did not have any HPG client south of White
Cloud on April 24, or any other date for that matter. Moreover,
according to Trucks, corroborated by a memo written by Clark
on April 24, Clark told Trucks that Smith had in fact (contrary
to Smith’s testimony) inspected the Ringler’s house on that
day, and reported that it had passed inspection.
Lori Murphy testified that when Smith arrived at White
Cloud, the first thing that he said was an inquiry about the elec-
tion notices. Murphy also testified that Smith did not mention
anything about stopping at the officer to pick up anything to go
back to Scottville, and confirmed Trucks’ testimony that ordi-
narily employees do not stop at the office to bring something to
the main office, unless a specific request is made that they do
so. Murphy also denied that she told anyone from Respondent
that Smith was “harassing” her when he asked about the elec-
tion notices.
Evidence was adduced from Respondent as to other warn-
ings that were issued to other employees, for similar conduct.
Thus, on March 29, 1993, Weatherization Director Albert Ka-
jtazi issued a written warning to crew laborer, David Monton
criticizing Monton for stopping at the White Cloud office en
route for a jobsite, which took 20–30 minutes out of his work-
day. The memo goes on to say that Monton should stop at
FIVECAP, INC. 1187
Respondent’s offices only when directed by a supervisor, and if
this problem is not corrected, his continued employment with
Respondent will be in jeopardy.
Further on April 22, 1994, Diane Simolinski, a supervisor of
Respondent, issued a memo to all busdrivers, indicating that
buses are not to be used to conduct personal business, and that
buses are only to be used for business-related reasons. It added
that drivers are not even allowed to use the bus to stop for cof-
fee in between routes. In such case, the driver must first take
their bus home and use their own vehicle to do so.
Finally on April 24, 1995, Clark issued a written warning to
Belongia,20 criticizes Belongia for stopping at Manistee Ford
along with Monton to pick up a van enroute to the Scottville
office.
The memo reads as follows:

On Monday, April 17, 1995 you and David Monton
stopped at Manistee Ford to pick up a van while enroute to
the Scottville office.
As a supervisor, you were fully aware that there was
no prior approval given for this action and it was com-
pletely unacceptable for you to presume that you had the
authority to divert from your job duties without specific
direction, let alone encourage and/or allow a subordinate
to act in this inappropriate manner.
In the future, you are to acquire approval before mak-
ing any changes or adjustments in your daily schedule.
Failure to do so will result in serious disciplinary action
and/or dismissal.
b. Credibility resolutions and analysis
In this instance I have credited the testimony of Trucks and
Murphy, over the testimony of Clark and Smith with respect to
several areas, where their testimony conflicts.
More specifically, I find that consistent with the testimony of
Trucks and Murphy, and contrary to Smith and Clark, that Re-
spondent’s policy does not permit employees to stop by at other
offices of Respondent to see if anything needed to be brought
back to Scottville, but that such conduct is allowed only when
such a request is made and authorized by a supervisor. Gener-
ally, I found Murphy to be one of the few witnesses who testi-
fied during the trial, with no apparent stake in the proceeding,
and she impressed me as someone who although uncomfortable
in being called as a witness, was simply trying to tell the truth
as best that she can recall.
I also rely upon the prior memos issued by Respondent to
employees, prior to any union organization, which demon-
strated that Respondent did not permit stops at other facilities
without direction by supervisors.
I also find, consistent with Murphy’s testimony that Smith
did not ask Murphy if she had anything to bring back to Scott-
ville, and that his only comments to her were his inquiry about
the election notices. Consequently, I also credit Trucks that she
did in fact ask Clark to find out what Smith was doing in White
Cloud, and that once Clark made that inquiry of Smith, he then
told Clark that he was there to see if anything needed to go to
Scottville, which in turn was reported back to Trucks by Clark.
I also find again consistent with the testimony of Trucks, that
Smith did not have a scheduled appointment for an HPG job
near White Cloud, on April 24, as he testified. I note in its
connection that Smith’s credibility with respect to this incident

20 This warning was not alleged in the complaint to be unlawful.
is further diminished by Clark’s memo of April 24, which indi-
cates that Smith had in fact, contrary to his testimony, inspected
the Ringler’s job on April 29.
Having made these credibility findings, I am still persuaded
that the General Counsel made a sufficient showing, under
Wright Line, supra, that Smith’s protected conduct was a moti-
vating factor in Respondent’s decision to issue its written warn-
ing to him on April 24. Thus, Smith was a known advocate of
the Union, had testified at the hearing on behalf of the Union,
and Trucks had specifically mentioned Smith’s name to Clark
as one of the employees whom she could not trust and would
terminate because of their testimony at the hearing. Addition-
ally, the memo from Trucks to Clark, ordering Clark to issue
the warning made specific reference to the fact that Smith had
attended to union business at the facility while on agency time.
Moreover, the warning was issued on the very same day that
Respondent was notified that Smith was going to be the ob-
server for the Union at the election scheduled for April 28.
These factors are more than sufficient to demonstrate the requi-
site connection between Smith’s protected activities, and Re-
spondent’s decision to issue the warning to him.
However, I am also persuaded that Respondent has met its
burden of establishing that it would have taken the same action
against Smith, even absent his protected conduct. Thus, since
the evidence reveals that Respondent’s issuance of a written
warning to Smith was consistent with its treatment of other
employees who had committed similar offenses, I conclude that
Respondent has met its burden of showing that it would have
taken the same action against Smith, whether or not he was
engaging in union activities during his unauthorized stop at
White Cloud. Elmo Greer & Sons, 312 NLRB 703, 704 (1993)
([l]ayoffs in accord with past practice rebuts the General Coun-
sel’s prima facie case); Tricil Environmental Management, 308
NLRB 669, 678 (1992) ([c]ompany uniformly treated employee
absences same way as it treated alleged discriminatee); Merillat
Industries, 307 NLRB 1301, 1302–1303 (1992) (Wright Line
burden met since discharge of employee consistent with treat-
ment of other employees who had committed similar offenses);
and Sunlend Construction Co, 307 NLRB 1036, 1043 (1992)
([e]mployer showed through its termination records that it rou-
tinely discharged employees for infractions similar to its allega-
tions regarding alleged dicriminatee).
Here, Respondent submitted evidence of three prior similar
incidents, where it issued written warnings to employees who
engaged in similar conduct to that of Smith, two of which oc-
curred prior to the commencement of any union organizing
activity. I place particular emphasis on the March 29, 1993
warning issued to Monton for virtually identical conduct to that
of Smith, at the very same location, Respondent’s White Cloud
location. In fact, the conduct of Smith appears to be more egre-
gious than that of Monton in 1993, since Smith I have found he
went 30–40 miles out-of-his-way, for no legitimate reason, in
order to stop at White Cloud to check and see if the election
notices were posted. Monton on the other hand stopped off at
White Cloud while he was admittedly on route to a jobsite, and
therefore, did not have to go out of his way, as did Smith. Yet,
Monton nonetheless received a warning, because the stop took
20–30 minutes from his workday, and because he did not
receive permission from a supervisor to stop at White Cloud.
Thus, I am persuaded that Respondent has consistently disci-
plined employees who make unauthorized stops, thereby using
company time for personal business, whether it be union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1188
be union activities or any other nonagency related activity.
Therefore, I conclude that Respondent has shown that it would
have issued a warning to Smith whether or not his unauthorized
stop included union activities, and whether or not Smith was a
known union activist prior to the incident.
Accordingly, I shall recommend dismissal of this allegation
of the complaint.
3. The removal of the office of Smith and Belongia to the
basement and removal of his desk
a. Facts
Prior to April 25, Smith shared an office with Tom Belongia,
Respondent’s inspector/field supervisor on the main floor of
Respondent’s Scottville office. As noted above, Respondent
took the position at the representation hearing, that both Be-
longia and Smith were supervisory and managerial employees.
Both Belongia and Smith testified at the hearing on behalf of
the Union, in opposition to the positions taken by Respondent
as to these issues.
As also found above, Trucks informed Clark (this supervisor
of both Belongia and Smith) after the hearing, that she could no
longer trust those employees who testified on behalf of the
Union, that these employees could “kiss their jobs” good-bye,
that she would not request funding for jobs for people whom
she could not trust, and specifically mentioned Belongia and
Smith as employees that she did not trust. Also, Belongia was
told personally by Trucks that if the Union was voted in, she
would fire everyone.
On April 25, as noted, the day after Respondent was notified
that Smith was to be the Union observer at the election, Clark
informed Smith, that pursuant to the orders of Trucks that the
office shared by him and Belongia was to be moved downstairs
to the basement. Smith was told that the employees could not
take their desks down to the basement. Clark also informed the
employees that Trucks had told her that the reason for the move
was that their office was “messy”. Neither Smith nor Belongia
had ever been warned or even spoken to previously about their
office being messy by any supervisor. The basement had pre-
viously been used as an office and storage area for the weather-
ization crew (not the inspectors or field supervisors), and was
“dark” and filled with equipment, paint cans and other odds and
ends used by the crew.
After Smith complained to Clark about not having a desk in
the basement, she permitted him to take a small desk (not the
one he was previously using) to the basement. Even that desk
was subsequently removed without Smith’s knowledge. Be-
longia did not have a desk at all in the basement, so he was
forced to rig up a bench so he could do his paperwork.
Clark testified that on April 24, Trucks informed her that
Smith and Belongia’s office was dirty and messy, she would
not tolerate it and instructed Clark to move them to the base-
ment immediately. Trucks wrote a memo to Clark, dated April
24, dealing with a number of subjects, including the following:

RELOCATE WEATHERIZATION SECOND OFFICE:
Set up office for Weatherization on lower level. Filing
cabinet, work table, and chairs will be adequate. These
people are expected to be out in the field working and in
the recent past this worked very well. Based on past ex-
perience, it will be necessary for you to stress and insist
that the office be kept clean and free of pop bottles and
cans.
The office next to you is to be cleared of weatheriza-
tion equipment and tools and left in a usable condition.

According to Clark, as well as Smith the office had not been
dirty, but was a working office, with papers strewn around, and
it may have contained a pop can or some tools as well. Clark
asserts that she had never been instructed by Trucks to issue a
warning to Belongia or Smith concerning the conditions of their
office. In fact according to Clark the only time that Trucks ever
said anything to her about the condition of the office was on
Friday, April 21, the workday prior to Monday, April 24. On
that occasion, as Trucks was going out the back entrance where
the office is located, she told Clark that she wanted the office to
be cleaned up. In fact Clark cleaned the office herself, and said
nothing to the employees about Trucks’ complaint.
Trucks testified that the office that Smith and Belongia were
occupying was never officially assigned to them, but that when
Belongia ceased being weatherization director, it was necessary
during the transition period to interact with his successor, Paula
Clark. No issue was made by Trucks of the fact that Belongia
apparently setup his office permanently, on that level along
with Smith. However, Trucks asserts that on more than one
occasion when passing by the office, she would observe broken
equipment, tools, caulking materials, and pop bottles in the
office, and that she would say to Clark “in passing and almost
jokingly on more than one occasion, have these guys take care
of this.” Trucks did not testify as to how frequently or when
she would make these comments to Clark, but adds that the
office was not cleaned up. Therefore, according to Trucks, in
her view it was important for the image of the Agency that
offices be neat, and that Board members and visitors frequently
pass by the office, and the office speaks about the attitude of
employees about the job. While Trucks testified that she did
not instruct Clark to take desks away from Smith and Belongia,
she admits that she told Clark in person and in the memo, to
give the employees a filing cabinet, a worktable and chairs.
Trucks also testified that in her view they did not need the large
desk that they had in their prior office, in order to perform their
job adequately. Trucks also denied that her decision to order
the move of the office had anything to do with any union activi-
ties of either Smith or Belongia.
Clark testified that the office in question was located near the
back entrance, and that clients, visitors or board members
would not generally pass b y the office, and would very rarely
be in a position to look into this office. Clark also testified,
confirmed by a memo written by trucks dated March 7, 1995,
that employees and visitors are not permitted to use the back
entrance, and they must use the front entrance (which is not
near this office) to enter and leave the Scottville office.
b. Analysis
I once again conclude that General Counsel has made a suf-
ficient prima facie showing that the union activities of Smith
and Belongia, were a motivating factor in Respondent’s deci-
sion to move their office to the basement,21 and take away their
desk. I note that Belongia and Smith were clearly known and
believed by Respondent to be Union adherents, inasmuch as
they both testified at the hearing on behalf of the Union and
contrary to Respondent’s position as to their eligibility for in-

21 While Trucks characterized the move as to the first level, rather
than the basement, I find this distinction insignificant and irrelevant to
the issues.
FIVECAP, INC. 1189
clusion in the bargaining. Moreover, on April 24, the day be-
fore their office was moved, Smith notified Respondent that he
was to be an observer for the Union at the election scheduled
for April 25.
Animus towards their union activities established by Trucks’
comments to Clark, which were in turn repeated to the employ-
ees, to the effect that she no longer trusted Belongia and Smith
because they had testified at the hearing ant that those who
testified would no longer have jobs with Respondent. A similar
threat to discharge those who voted for the Union, was also
made directly by Trucks to Belongia.
Accordingly, the above facts establish a strong case of dis-
criminatory motivation. Once again the burden shifts to Re-
spondent to establish by a preponderance of the evidence that it
would have taken the same action against the employees, ab-
sent their protected conduct. Here, I conclude that Respondent
has fallen far short of meeting its burden in that regard.
Its evidence with respect to this issue consisted solely of the
uncorroborated and contrived testimony of Trucks. The first
portion of her testimony that one of the reasons for her decision
was that the office had never been officially assigned to Be-
longia or Smith, is clearly pretextual since they had apparently
been occupying the office for several months without being told
to move.
The principal reason given by Trucks, that the office was so
messy that she decided to move it downstairs, out of the view
of visitors or clients, is not convincing.
I note that Trucks did not specify in her testimony how often
or when she allegedly noticed the “messy” office, and told
Clark to have the employees clean it up. She also did not tes-
tify as to when she actually decided to order the move, or what
particular mess she observed on that occasion. I find it signifi-
cant that even Trucks admits that she never spoke to the em-
ployees herself about the problem or ordered Clark to warn
them that she was contemplating moving their office unless
they straightened it up. Indeed, Trucks admitted that her com-
ments to Clark about the office were made “in passing and
almost jokingly,” thus, making it less likely that Trucks consid-
ered it such a serious problem that she would order the office to
be moved without so much as one warning to the employees.
Moreover her alleged concern that the office was frequently
seen by visitors and clients is discredited by her own memo,
which forbids anyone from using the back door which leads to
the office, as well as Clark’s credited testimony that it is rare
for anyone from the outside to see that office.
Thus, for the above reasons, I conclude that has not shown it
would have moved the office and taken away the desk of Smith
and Belongia, absent their protected conduct. Therefore, by
such action Respondent has violated Section 8(a)(1), (3), and
(4) of the Act.
4. The layoff of Smith
a. Facts
The weatherization department of Respondent was, as noted
supervised by Paula Clark, the director. Belongia was the field
supervisor-inspector, and Smith was an inspector. Inspectors
work consisted of inspecting jobs both before work is com-
menced (preinspection) and after the work is completed (past
inspection). David Monton and Art Burkel were members of a
two-person crew, who performed the labor on the particular
weatherization jobs.
On April 28, as noted the union election was held, resulting
in an overwhelming victory for the Union, during which Smith
served as one of the observers for the Union.
That same evening, Smith received a call from Pomeroy,
who informed Smith that because Clark had just resigned and
Belongia was on sick leave, both he (Smith) and Monton would
be laid off for a brief period of time. Smith told Pomeroy about
one particular job that he was involved with that needed to be
past inspected, so a contractor who did work on the project
could be paid. Smith added that the contractor was very con-
cerned about getting payment so he could pay his employees.
Pomeroy told Smith that he would speak to Trucks and see if
Smith could come in to inspect that job. Subsequently,
Pomeroy called Smith and informed him that he could come in
and finish that work, which Smith did on May 4.
Smith received a letter from Respondent, dated April 28,
which states that due to the resignation of the director and the
fact that the field supervisor and a laborer are on sick leave,
Respondent has determined that it is not possible to operate the
program with 67 percent of positions sick or vacant. Thus, the
remaining employees are laid off effective April 28. The letter
adds that the layoff is expected to be 2 weeks or less, until tran-
sition is complete and a new director is in place.
Clark testified that when she resigned on April 28, she left
on clipboards in her desk, scheduled work for approximately 3
weeks of work for the inspector and the crew. According to
Smith, there was a lot of work that he could have performed
when he was laid off, including preinspection work performed
by Belongia. Smith also testified that he was familiar with the
status of jobs, and was capable of informing Respondent which
jobs were in progress and which ones were scheduled to have
bids sent out on them.
Trucks testified that she made the decision to layoff Smith
(and Monton), because on April 28 that Clark had resigned,
effective immediately without giving Respondent any notice,
Belongia and Burke22 were on sick leave, and she felt that Re-
spondent should lay off the remaining employees. She asserts
that Respondent needed time to “regroup,” and determine from
looking at the weatherization files what work need to or could
be done. Trucks conceded that if there was work that was pre-
inspected and ready to go, Smith and Monton could have done
the work, but states there was no feasible way for Respondent
to determine on April 28 what work was ready to be performed
by these employees.
Pomeroy testified that late in the day on April 28, Respon-
dent was informed that Clark had left, and told others that she
was not returning. At that point, Pomeroy claims that he and
Trucks discussed the state of the weatherization program, and
decided that since there was no one to supervise Smith and
Monton, that Respondent would temporarily lay them off.
Thus, they wrote the letters on that day and sent a letter to
Monton similar to the one sent to Smith. Pomeroy suggested
that he try and call Smith and Monton to let them know that
they should not come in to work on Monday. May 1.
Pomeroy admits that when the decision was made, Respon-
dent made no effort to contact Clark to see if she was really
quitting, or to inquire what assignments, if any, she had left for

22 In that connection, Respondent submitted a certification from Be-
longia’s doctor dated May 11, indicating that Belongia was incapaci-
tated and under the care of that doctor from April 28 to May 8 and can
return to work on May 11.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1190
employees. Pomeroy claims that it was not possible for Re-
spondent to find out at that late hour about work availability,
since it would require time to go through the weatherization
files. Significantly, Pomeroy conceded that Smith was familiar
with the program and the files, and asserts that if there was
additional work to be done, Smith should have told him so
when Smith did inform Pomeroy of the one job that Respon-
dent eventually permitted him to perform.
Pomeroy also admitted that when Respondent made its deci-
sion, it did attempt to find out whether or not Smith or Monton
had already been given assignments for work to be performed
on Monday, May 1. Indeed, according to Pomeroy, when he
called and notified Monton about the lay off, Monton told
Pomeroy that he was working on several jobs that he could
finish up on his own, and that Respondent permitted Monton to
do this work. Pomeroy was not sure whether he told Monton at
that time to come in and work on Monday, or whether he in-
formed Monton on Monday, so that Monton may have missed 1
day of work and come in on Tuesday.
Respondent also submitted these memos from Clark to
Trucks, dated March 16 and 20, relative to this issue. In the
March 16 memo, Clark informed Trucks that there was nothing
specific for Monton to do on March 16, so she sent him home
at noon. The March 20 memo was a recommendation by Clark
that Monton be laid off from March 21 to April 3, and asserting
that Smith and Belongia will handle the maintenance work in
the interim. Trucks replied in writing that the recommendation
was unreasonable because there were many unfinished jobs,
and that “down time and lay offs are not good decisions.”
Trucks also testified that Respondent was as of April 28 still far
behind in many jobs, which was why she allowed Smith to
come in and finish the job that he informed Pomeroy he could
perform. Trucks testified further, “[W]e were so far behind that
if there was anything to be done, we would get it done.”
b. Analysis
I find that the General Counsel has presented compelling
evidence that protected conduct of Smith was a motivating
factor in Respondent’s decision to lay him off on April 28. As
detailed above, the animus directed towards employees who
testified at the hearing on behalf of the Union in general, and
Smith in particular, is clearly established by Trucks’ comments
to Clark, which were in turn repeated to Smith. Moreover,
Respondent has concluded above, unlawfully moved Smith’s
office and removed his desk in retaliation for his union activi-
ties and testimony at the hearing. Most importantly of all,
Smith acted as an observer for the Union in the election which
the Union was overwhelmingly, on the very same day that Re-
spondent decided to lay him off.
In light of the General Counsel’s strong showing, the Re-
spondent’s burden under Wright Line of establishing that it
would have taken the same action absent Smith’s protected
conduct, is substantial. American Wire Products, 313 NLRB
989, 995 (1994); Vemco, Inc., 304 NLRB 911, 912 (1991).
I conclude that Respondent has not adduced sufficient evi-
dence to meet its burden in this regard. The testimony of
Trucks and Pomeroy to the effect that the sole reason for Re-
spondent’s actions were the sudden resignation of Clark, the
unavailability of Belongia, and the inability of Respondent to
determine what work was available for Smith (and or Monton)
is not persuasive.
While it is true that Clark did quit on April 28, and Belongia
was also on sick leave at that time, I cannot conclude that these
facts were the motivating factors in Respondent’s actions. I
note primarily the hasty precipitous manner in which the layoff
was implemented. See Vemco, Inc., supra at 912. While Re-
spondent’s witnesses claim that there was no feasible way for
them to determine the availability of work for Smith or Mon-
ton, admittedly it made no effort to do so. It made no attempt
to contact Clark to see if she was really quitting or to inquire
about the status of her work assignments. Indeed the evidence
discloses, based on Clark’s credible and unrebutted testimony,
that she had left assignments on her clipboard in her office for 3
weeks of work. Thus, had Respondent simply looked in
Clark’s office, it would have seen that work could have been
performed by Smith or Monton, notwithstanding the absence of
Clark or Belongia. Indeed, when Pomeroy contacted Monton
to notify him of the layoff, Monton informed Pomeroy of work
that he was doing, and Pomeroy (either before or after consulta-
tion with Trucks) rescinded the layoff as to Monton.
Moreover, Pomeroy admitted that Smith was familiar with
Clark’s files and the status of Respondent’s programs, so that it
could easily have waited until Monday morning before imple-
menting a layoff, and asked Smith to go through Clark’s files to
see how much work could be performed absent the presence of
Clark and Belongia.23 Yet, Respondent did not do that, but
instead ordered that two employees be laid off, at a time when
it did not even know whether the employees already had as-
signments for Monday that could be performed without Clark
or Belongia on the job.
I am persuaded that this hasty and ill conceived decision was
clearly a reaction to the distressing news of the union victory in
the election, plus the fact that Smith was and admittedly leading
supporter of the Union.
I have considered the memos submitted by Respondent
which were written by Clark in March. Respondent argues that
this evidence which demonstrates that Trucks overruled Clark’s
recommendation to lay off Monton because of the number of
unfinished jobs, shows that Respondent was reluctant to lay off
anyone, and that it was forced to so only because of the absence
of Clark and Belongia on April 28. I disagree. While I agree
that this evidence does demonstrate that Respondent was reluc-
tant to lay off anyone, and that it had a number of unfinished
jobs, I do not believe that it demonstrates that Respondent “had
no choice” but to do so on April 28 because of the absence of
Belongia and Clark. What it does demonstrate is that there was
plenty of work available for smith to perform, and that Reso-
dent was reluctant to lay off anyone as evidenced by Truck’s
comments in the memo, “down time and layoffs are not good
decisions.” Yet on April 28, it decided to lay off two employees
without even knowing or making any effort to determine what
work had either been assigned to or could be performed by
Smith (or Monton). Accordingly, I am not convinced that Re-
spondent would have taken the same action against Smith, ab-

23 In this connection, Pomeroy testified that had Smith been aware of
other jobs that could be performed he should have said something about
it when Pomeroy informed him about the layoff, as in fact Smith did
with regard to the one job that Respondent allowed him to finish. This
argument misses the point. The issue is why Respondent made its
decision, and whether it would have taken the same action absent
Smith’s protected conduct. Thus, what Smith said to Pomeroy after the
decision was implemented is not determinitive in assessing Respon-
dent’s motivation.
FIVECAP, INC. 1191
sent the results of the union election and Smith’s advocacy for
the Union, including his testimony at the hearing. Therefore, I
find that the layoff of Smith is violative of Section 8(a)(1), (3),
and (4) of the Act.
5. The extension of Smith’s probation
a. Facts
By a memo dated April 30 from Trucks to Smith, Respon-
dent extended Smith’s probation for the next 90 days. The
memo states that his immediate supervisor left without provid-
ing an interim or 6-month evaluation requesting a change in
status. The new weatherization director, according to the letter
will evaluate his job performance and make a recommendation
as to his continued employment.
Smith testified that his probationary status ended in his view
on March 20, 6 months from his starting day of September 20,
1994.
Clark testified that although she had not completed the
evaluation of Smith before she quit, she had been working on it,
and would have rated him an excellent employee. She did not
testify, however, that she had ever communicated her opinion
of Smith’s abilities or what her evaluation of Smith was going
to say, to Trucks or any other official of Respondent.
Trucks testified, unrebutted by any evidence from the Gen-
eral Counsel, that Respondent’s normal policy is to extend the
probationary period of employees, when the required evalua-
tions have not been completed within the initial probation pe-
riod. In that connection, Respondent submitted memos from
Trucks to supervisory employees, Melba White, Paula Clark,
and Mary Jo Klomp, dated April 13 and 27, respectively which
extended the probationary periods of these three individuals for
90 days, because an evaluation had not been prepared evaluat-
ing their performance.
b. Analysis
In view of the timing of this action with regard to Smith,
coupled with the previously found discrimination against
Smith, I conclude that a prima facie case has been established
that a motivating factor in this decision of Respondent was
Smith’s protected activities.
However, I conclude that in this instance Respondent has
satisfied its burden of persuading me that it would have taken
the same action, absent Smith’s protected conduct. Thus,
Trucks’ unrebutted and credible testimony establishes that Re-
spondent’s normal practice is to extend the probationary peri-
ods of employees whose evaluations had not been completed
prior to the expiration of 6 months of employment. Moreover,
Respondent demonstrated that it extended the probationary
periods of three supervisory employees for the same reasons.
Thus, I am persuaded that Respondent has established that it
would have extended the probationary period of Smith, not-
withstanding his protected conduct and Respondent’s animus
towards such activity. Therefore, I shall recommend dismissal
of this allegation of the complaint.
6. The discharge of Smith
b. Facts
On May 4, Smith finished up the one job that Respondent
had permitted him to complete in the morning, and then re-
ported to the Scottville office where he performed the necessary
paperwork. On that same day, Smith had received a call from
an individual named Sandra Fraley who asked Smith about a
job that Respondent was supposed to perform on a mobile
home for an individual named Darlene Pietz. Apparently Dietz
was homeless and was living with Fraley at the time. Smith
replied to Fraley that he was only working temporarily that day,
and was laid off. Therefore, he could not help her. Finally
asked, “[W]hat are we supposed to do”? Smith suggested they
call their “representative” or talk to Mary Trucks.
Subsequently, Trucks received a call from a representative
from Lutheran Social Services who informed Trucks that he
had received a complaint from Sandra Fraley that Smith had
told her that Respondent was not going to be able to help Dar-
lene Dietz. According to Trucks, this information demon-
strated that Smith appeared to have violated a FiveCAP policy
of confidentiality that prohibits client employees from speaking
to a nonclient about a client of Respondent,24 and that Smith
was unduly alarming clients.
At approximately 1:30 p.m., Smith was summoned to
Trucks’ office. Trucks began the meeting, which was also
attended by Pomeroy, by pointing her finger at Smith and ask-
ing, “[W]hy are you spreading inappropriate information?”
Smith replied that Trucks had better “choose her words care-
fully,” talk to him “civilly” and not call him “any names.”
Trucks responded that she had not called him any names, nor
belittled him. Smith conceded that Trucks had not called him
any names yet, but that he wanted a civil conversation because
he had been told by Paula Clark what to expect from Trucks.25
Trucks explained to Smith about the call that she had re-
ceived concerning Smith’s discussion with Fraley, and she
asked him if he had discussed a client’s problem with Fraley (a
nonclient)? Smith admitted that he had spoken to Fraley about
Dietz’ problem, since Fraley had called him and asked about
when Respondent was going to be able to complete a mobile
home for Dietz. He also admitted that he told Fraley that he
was on lay off, was only working temporarily, and there was no
one to help.
Trucks asked Smith why he was discussing Dietz’ problem
with Fraley, and was he aware that he was violating Respon-
dent’s confidentiality rule? Smith explained that Fraley “had
more upstairs” than Dietz. Trucks asked if Dietz was present
with Fraley during the conversation? Smith answered, “[Y]es,”
and Trucks asked why he had not asked Fraley to put Dietz on
the plane? Smith then got agitated, accused Trucks of hassling
him and being childish.
Smith added that he knew why Trucks had brought him up to
her office, and that she intended to fire him. Smith asked if she
was going to fire him. At first Trucks did not give an answer to
this inquiry and continued to criticize Smith for violating
agency policy and making inappropriate comments. Smith
again gave his explanation that Fraley had “more upstairs” than
Dietz. Trucks pointed her finger at Smith, and asked why he
was discussing one client with someone else. Smith at that
point asked again if Trucks was going to fire him, and if so,
asked her to put it in writing so he can leave. Trucks re-
sponded, “[Y]ou are going to be fired, but not right now.”
Trucks then asked if he thinks “I need you?” Smith answered

24 In that connection, Respondent cites p. 16 of Respondent’s “Pol-
icy Manual” which states that “employees are not allowed to discuss
clients or information outside of appropriate agency staff, unless it is
determined to be in the interest of assisting the client.”
25 As noted above, Clark had informed Smith that Trucks intended to
terminate employees, such as Smith, who testified at the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1192
that he knew knows that Trucks doesn’t need him, but FiveCAP
needs him and the clients need him because he was the only
one who knows where jobs are at, and the progress of the vari-
ous jobs.
Smith added that “he was the best damned inspector” that
Respondent ever had, while leaning forward and pointing his
finger at Trucks. Trucks told Smith to leave the building and
the conversation was over. Smith asked again about his status
and wanted to know if he was fired or laid off? Trucks refused
to answer this question and again ordered Smith to leave the
building. Smith responded that it was a public building and he
would not leave until he gets a determination of his status.
After one more similar exchange between Trucks and Smith,
Trucks instructed her secretary to call the police.
At that point Smith walked over to the door to leave, and
while pointing his finger at Trucks, said, “[W]e’ll be in touch.”
Once again Trucks asked if Smith was threatening her? Smith
replied, “[Y]es, with a lawsuit,” and walked out.
That same day Respondent sent Smith a letter stating that he
was terminated because during the meeting he was belligerent
insubordinate, had verbally threatened Trucks, and refused to
leave the office and the building until the police were called.
According to Trucks, her decision to terminate Smith was
based solely on his conduct at their meeting of May 4, and that
it had nothing to do with any union activities of Smith. Trucks
asserts that she had no intention of discharging Smith when she
called him into the meeting, and if he conducted himself prop-
erly, he would not have been terminated. When asked on cross-
examination, at what point during this meeting did she decide
that Smith was to be fired, Trucks was somewhat evasive, but
finally responded that it was when Smith lunged across her
desk and pointed his finger at her. Trucks testified that at that
point she thought that Smith was going to hit her, and although
he did not do so, she was no longer going to talk to him. Up
until that point, Trucks claims it would have been simply con-
sidered her to be a misunderstanding, and a flaring of tempers,
since as Smith himself pointed out, Respondent needed him.26
b. Analysis
Once again, a strong case has been established that a moti-
vating factor in Respondent’s decision to discharge Smith on
May 4 was protected union activities. Thus, as noted above,
Respondent unlawfully threatened to terminate employees who
testified on behalf of the Union at the representation hearing,
and specifically singled out Smith as one of the employees
whom it could no longer trust us a result. Moreover, Respon-
dent unlawfully moved Smith’s office, and then on the same
day of the election in which he acted as an observer for the
Union, unlawfully laid him off.
Thus, in light of the strong case established by the General
Counsel, Respondent has a substantial burden to meet to over-
come such a case, by proving it would have taken the same
action, absent Smith’s protected conduct. American Wise, su-
pra; Vemco, supra.

26 The above description of the events during the meeting of May 4
is based on a compilation of the credited testimony of Smith, Trucks,
and Pomeroy. I would note that in most significant respects, the testi-
mony of all witnesses is essentially the same. To the extent that there
were differences in the accounts of the meeting by the three witnesses,
my findings are based on comparative demeanor, considerations, and
my assessment of the probabilities of the particular event.
I conclude that Respondent has fallen short of meeting its
burden in this regard. Tucks testified that Smith was termi-
nated solely based on his conduct during this meeting. The
discharge letter cited various specific acts of misconduct, in-
cluding that Smith was allegedly belligerent, insubordinate,27
had verbally threatened her, and his refusal to leave the build-
ing until the police were called. I note that Respondent has
failed to show that it ever discharged or even disciplined any
employee for any of the acts of misconduct allegedly commit-
ted by Smith. 10 Ellicott Square Court Corp., 320 NLRB 726
(1996); New Jersey Bell Telephone Co., 308 NLRB 277, 283
(1992); and Phillips Industries, 295 NLRB 717, 718 (1989).
“Under Wright Line, an employer cannot carry its burden of
persuasion by merely showing that it had a legitimate reason
for imposing discipline against an employee, but must show by
a preponderance of the evidence that the action would have
taken place even without the protected conduct.” Hicks Oils &
Hicksgas, 293 NLRB 84, 85 (1989), cited in New Jersey Bell,
supra.
It is true that Smith was somewhat defensive, and somewhat
belligerent during the meeting, and I agree with Respondent’s
observation that Smith went into the meeting believing that he
was going to be fired. However, I conclude that record amply
justified that Smith’s fears were well founded, in view of Re-
spondent’s prior discriminatory treatment of him, and Clark’s
warnings to him about Trucks’ intentions to terminate union
supporters. Moreover, it is clear and I find that Trucks was
aware of the basis of Smith’s fears of discharge, particularly
since Smith told Trucks in the early part of the meeting that
Clark had told him what to expect from Trucks.
Thus, Trucks’ reaction to Smith’s fears of being discharged,
do not support Trucks’ assertions that she had no intention of
terminating Smith but merely intended to discuss with him his
conduct with regard to the Fraley incident, as well as other
problems. If that had been the case, one would expect that
when an employee expresses a reasonably grounded fear of
discharge, that an employer who had no such intention, would
simply assure the employee that it did not intend to discharge
the employee, but simply wished to discuss with him some
problems with the employee’s performance. Not only did
Trucks fail to give such assurances to Smith, but on the con-
trary reinforced Smith’s reasonable fear of discharge, by at first
refusing to answer Smith’s inquiry, and then on being proc-
essed by Smith, told him that she will discharge him, but not
now. This is not the kind of reaction of an employer truly inter-
ested in retaining an employee, and merely attempting to dis-
cuss Smith’s performance, as Trucks professes.
Rather, Trucks’ conduct at the meeting including her point-
ing her finger at Smith fist, as well as her failure to assure
Smith of his status, appears to me to have been calculated to
provoke a response that would allow Respondent to discharge
Smith. Teskid Aluminum Foundry, 311 NLRB 711, 720
(1993); Circuit-Wise Co., 308 NLRB 1091, 1109 (1992).
Moreover, I did not find convincing Trucks’ claim that she
felt physically threatened by Smith’s actions of leaning over her
desk and pointing his finger at her. I note that Smith made no
attempt to hit Trucks, and Pomeroy was present in the room. I
doubt that Smith would hit Trucks in Pomeroy’s presence, and I
27 In that connection, the letter cited Smith’s alleged actions of “dar-
ing me to fire you.”
FIVECAP, INC. 1193
further doubt that Trucks believed that Smith was going to do
so.
Respondent also asserts in its discharge letter, and in Trucks’
testimony that part of the reason for the discharge was Smith’s
statement that he would “be in touch” which Respondent alleg-
edly interpreted as a threat, and Smith’s refusal to leave the
premises until the police were called. However, these assertions
do not withstand scrutiny, inasmuch as Trucks admitted on
cross-examination that she made up her mind to discharge
Smith, when he lunged over her desk and pointed his finger at
her. That conclusion is reinforced by her decision to cut off the
conversation and ordering Smith to leave, which demonstrates
that she no longer indented to retain him as an employee.
Moreover, when Smith refused to leave he did so only because
he wanted to know about his status. Yet, Trucks refused to
assure him that he was not fired, and simply ignored his request
for a simple answer as to his employee status. Therefore,
whether or not Smith’s statement that he would “be in touch”
can or was reasonably construed by Respondent to be a threat
of physical violence,28 neither that conduct or Smith’s admitted
refusal to leave, can be considered as part of Respondent’s
reasons for discharge, since these events occurred after Trucks
had decided to terminate Smith.
Finally, I note that Respondent terminated an employee, who
it admitted that it needed very badly, without even the issuance
of a warning, suspension or some other lesser form of disci-
pline, for engaging in the conduct by Smith which it claims
motivated its actions. I believe that absent its animus towards
the Union in general and towards Smith in particular, for his
prominent role in the Union’s success, at best Respondent
would have issued some lesser form of discipline against
Smith. Accordingly, based on the foregoing, I conclude that
Respondent has not met its burden of establishing that it would
have terminated Smith, absent his protected conduct, and that it
has therefore violated Section 8(a)(1), (3), and (4) of the Act by
such action.
7. The alleged discrimination against Marva Taylor
a. Facts
Marva Taylor began her employment with Respondent on
April 14, 1993. She was employed as the head cook at the
Fountain Head Start Center. Taylor signed a card for the Union
in January 1995, attended union meetings, and passed out union
literature to other employees. Taylor also testified at the repre-
sentation hearing on behalf of the Union and was one of the
Union’s observers at the election on April 28.
Taylor was an outspoken employee who during 1995, made
numerous complaints to her supervisor, Kate Hardigan, as well
as to other employees, that she (Taylor) believed that Respon-
dent had treated her unfairly with respect to denials of her vaca-
tion requests and other matters, because she was a supporter of
the Union. In that connection, a memo from Kate Hardigan to
Melba White dated April 5, which appears to reflect a
conversation between Hardigan and White regarding Taylor,
which came from Taylor’s personnel file, was introduced into
the record. The memo reads as follows:

TO: Melba White, Administrative Assistant
FROM: Kate Hardigan, Head Teacher, FCDC
DATE: April 5, 1995
28 In that connection, I note that Smith clarified that the statement re-
ferred to a threat of a lawsuit.
RE: 3/31/95 Conversation Marva Taylor

On Friday, March 31, 1995, we discussed, among
other things, F.C.D.C’s head cook, Marva Taylor.
I told you that Marva is pro-union, but I don’t think
her opinion is swaying other staff members’ opinions. I
explained that she supports the union because she believes
they will protect her from persecution form Five CAP’s
administration.
She has told me she feels she is being “picked on” be-
cause she is pro-union. This “picking on” is done by hav-
ing vacation denied with no explanation, excessive scru-
tiny of her books in comparison to other cooks, and incon-
sistencies regarding her assistant’s hours.
I also told you she thinks it might be because she is
White-American.
I have suggested to her that she seek other employ-
ment, and that she discuss her complaints with her super-
visor.

Hardigan also informed Taylor that she had written the
above memo to White, and gave Taylor a copy of same. Har-
digan told Taylor that she (Hardigan) had received a call from
White inquiring about whether Taylor had been doing any
complaining about her not getting vacation time.
On or about April 6 Taylor was given a memo from White,
dated April 4, covering three areas. They were entitled, “Ac-
tion Detrimental to the Interest of the Agency, Poor Job Per-
formance, and Response to Vacation Request.”
The memo states that “it has been brought to my attention
that you are complaining to the Head Start staff because your
vacation request was denied. As you are aware, this type of
behavior is unacceptable, yet you persist. Complaints like
grievances are to be directed to your supervisor only, not other
employees.”
The memo then goes on to criticize Taylor for her perform-
ance in other areas, such as errors in recordkeeping, and the
failure to submit a job evaluation for employee Rhonda Peters.
The memo indicates that “based on the above information, you
are placed on probationary status for up to thirty (30) days,
subject to a performance evaluation.”
On May 1 Taylor received from White, a performance
evaluation dated April 5, along with a memo stating that White
was directed not to give the evaluation to Taylor” until after the
union elections so as not to allow any wrong interpretation of
my intentions.” The memo states that based on the evaluation,
Taylor was “placed on probation with recommendation for
termination in the absence of immediate and complete correc-
tive action on your part.”
The performance evaluation criticized Taylor’s work in sev-
eral areas, such as menu planning, menu preparation, inventory
control, kitchen management, sanitation, supervision, documen-
tation (record keeping), as well as a section designated as other.
Under that section the evaluation states that Taylor refuses to
accept that the agency can approve or deny requests for time off
or vacation, and that she “continues to express negative atti-
tudes.”
White testified that she had spoken to Taylor about the vari-
ous items in the evaluation on prior occasions, including some
discussions in 1994. In that regard, White met with Taylor on
October 4, 1994, to discuss problems relating to Taylor’s per-
formance, which were reflected in memos from White to Tay-
lor dated October 4 and 17 relative to these matters. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1194
memos reflect criticism of Taylor’s attendance, inventory con-
trol, leaving work early, and gave reasons why her requests for
time off were not approved. In December, Taylor met with
White, Andy Brown regarding problems with Taylor’s Novem-
ber kitchen report and missing inventory. A memo dated De-
cember 21, 1994, was prepared by White and given to Taylor
which reflects these discussions, and Respondent’s criticism of
her performance in this area.
White testified that based on the numerous problems with
Taylor’s performance that she eventually enumerated in the
performance evaluation, she recommended to Trucks that Tay-
lor be terminated. Trucks according to White decided that Re-
spondent would instead place Taylor on probation with a rec-
ommendation for termination if there is no improvement.
At some point, undisclosed by the record, Taylor resigned
from Respondent.
White also testified that she did not know if Respondent had
ever placed a long-term employee on probation with a recom-
mendation for termination. This was the first time that White
had ever taken such action in her brief tenure as head start ad-
ministrative assistant.
b. Analysis
Once more a strong case of discriminatory motivation has
been established with respect to Respondent’s treatment of
Taylor.
Thus, as in the case of Smith, who as noted above, I have
found discriminated against in several ways, Taylor was an
observer for the Union at the election, and testified at the repre-
sentation hearing on behalf of the Union. Moreover, Kate Har-
digan and Melba White discussed Taylor’s prounion sympa-
thies on March 31, resulting a memo from Hardigan to White
dated April 4, detailed their conversation with, the words
“Marva is pro-union” circled, and which reflects that Taylor
supports the Union because she believes the Union will protect
her from Respondent’s persecution. The memo further reflects
that Taylor feels that she is being picked on because she is
prounion, by denying her vacation requests, excessive scrutiny
of her books, and inconsistencies regarding her assistant’s
hours. Finally, the memo reflects that Hardigan suggested to
Taylor that she seek other employment and discuss her com-
plaints with her supervisor.
The very same day this memo was prepared, Respondent is-
sued a letter placing Taylor on probation pending evaluation,
which led to the evaluation being given to her on May 1, which
extended her probation with a recommendation for termination
in the absence of immediate and complete corrective action.
Thus, the suspicious timing of Respondent’s action, coupled
with the other above-described evidence of animus towards the
Union, and the contemporaneous discriminatory treatment of
Smith, are more than sufficient to prove that protected conduct
of Taylor was a motivating factor in Respondent’s decision to
place her on probation with a recommendation for termination.
The burden then shifts to Respondent to prove that it would
have taken the same action against Taylor, absent her protected
conduct.
Respondent did present some evidence in support of such a
finding, particularly the facts that Respondent had been critical
of some aspects of Taylor’s work performance prior to the ap-
pearance of the Union. However, I am not persuaded that Re-
spondent has met its burden of proof. I note initially the ab-
sence of any evidence that Respondent has ever taken similar
personnel action against any employee in the past. 10 Elliott,
supra; Hicks Oils, supra.
More importantly, however, I conclude that Respondent’s
own memos demonstrate that one of the reasons for the disci-
plinary action was Taylor’s engaging in clearly protected con-
certed activity. Avery Leasing Co., 315 NLRB 576, 580
(1994).
Thus, it is apparent from an examination of these memos,
that Respondent placed Taylor on probation, in part because
she continued to violate Respondent’s instructions not to com-
plaint to other employees that Respondent was treating her
unfairly in various respects, including denial of vacation time
because she was prounion. The April memo from White to
Taylor mentions White’s dissatisfaction with Taylor complain-
ing to other employees because her vacation request was de-
nied, and states that “complaints like grievances are to be di-
rected to your supervisor only, not other employees.” Hardi-
gan’s memo to White concerning makes clear that White was
aware that Taylor had been attributing Respondent’s actions
towards her to the fact that she was “prounion.”
These complaints by Taylor to other employees constituted
protected concerted activity, whether or not Taylor was correct
in her assertion that Respondent treated her unfairly because of
her union activities. The statement made by Taylor that she
believes that her union activity motivated Respondent’s to-
wards her is, of itself protected, concerted activity. Bryant &
Cooper Steakhouse, 304 NLRB 750, 752 (1991); Cf. Hertz
Corp., 316 NLRB 672, 692 (1995).
Moreover, even apart from Taylor’s mention of her union ac-
tivity, her complaints to other employees about working condi-
tions is protected concerted activity. Indeed Respondent’s as-
sertions in White’s memo to Taylor that complaints like griev-
ances are to be directed to supervisors only and not to other
employees is itself an unlawful promulgation of a rule which is
violative of Section 8(a)(1) of the Act, inasmuch as it inhibits
employees from engaging in their Section 7 rights of discussing
matters regarding their terms and conditions of employment.
Communication Workers, 303 NLRB 264, 272 (1991); and
Kinder-Care Learning Centers, 299 NLRB 1171 (1990).
Therefore, there is doubt that at least one of the reasons for
Respondent’s decision to place Taylor on probation was her
protected concerted conduct of complaining to other employees
that her treatment by Respondent was motivated by her union
activity. Since Respondent has not established, and indeed
made no effort to even argue that it would have taken the same
action against Taylor, absent this protected conduct by Taylor,
it follows that it has not met its Wright Line burden.
Accordingly, I conclude that Respondent has violated Sec-
tion 8(a)(1), (3), and (4) of the Act by placing Taylor on proba-
tion with a recommendation for termination.
8. Respondent’s actions with regard to the petition, including
the discharge of Verna Fugere
a. Facts
As noted above, Paula Clark resigned her employment from
Respondent on April 28. Sometime in mid-May, Clark along
with a group of other individuals, which included other former
employees of Respondent, clients of the agency, contractors,
and current employees, decided to prepare and circulate a peti-
tion calling for the removal of Trucks and Pomeroy. The main
concern of the group which gave rise to the petition, were the
belief that Respondent was spending money to keep the Union
FIVECAP, INC. 1195
out, that should have gone into programs or salaries, that em-
ployees were being terminated and not replaced, and that em-
ployees were being harassed because they testified at the hear-
ing. The group called itself the “Concerned Citizens for a Bet-
ter FiveCAP.” The petition that was prepared was to be signed
by residents of the four counties covered by Respondent, and
asked the board of directors to remove Trucks and Pomeroy
“for improper management and breach of fiduciary duties.”
Clark as well as other members of the group circulated the
petition among employees of Respondent. Additionally, start-
ing in June, and during the summer and early fall, the group
engaged in picketing of Respondent’s Scottville office, as well
as some county offices. The picket signs referred to various
items such as the number of unfair labor practice charges, the
high employee turnover, intimidation and abuse of employees,
and the fact that Trucks had claimed in the press that there had
been budget cuts, but had just received a $10,000 raise. No
current employees were picketing. However, employees who
had been discharged by Respondent including Smith and Tom
Belongia were among those picketing.
The dispute came to the attention of the local press, resulting
in two newspaper articles, written by Patti Bogls of the Luding-
ton Daily News, which appeared in the paper on June 1 and 19.
The June 1 article refers to the petition, and to a quote by
Clark that the group hoped to obtain 10,000 signatures and that
a personal ad placed by Dagmar Miller, another former em-
ployee requested people who had been fired or quit Respondent
to call. The article quoted Miller to the effect that she had re-
ceived a response from 30 exemployees who complained about
the agency’s management.
The article also quoted Smith, who as noted had recently
been fired, who stated that “Trucks continually fires people or
coerces people out of there and clients that are in need of some-
thing have gone without.” Smith adds that he was in favor of
the petitions and “hopes they’ll do some good.”
The article also makes reference to the unfair labor practice
charges that the Union filed, and asserts that Smith and Miller
are among at least three employees who are claiming discrimi-
nation based on union representation.
Harold Madden, a board member, was quoted as stating that
he was aware that some workers were not happy with Respon-
dent, but said, he went to see evidence.
The article then indicated that Trucks said she believes the
allegations are being made because of the Union. In quotes, the
article attributes the following to Trucks. “It’s a Union ploy to
strengthen their position,” Trucks said. “They do not want to
bargain. They have not asked to bargain.”
Trucks was also quoted as mentioning that similar allega-
tions had been made against Respondent in the past, and that
Respondent was “monitored and audited and there were no
findings.”
Further, the article mentioned one of the problems cited by
the group as an “outrageous turn-over rate.” Trucks responded
to this charge by disagreeing that the turnover is too high, and
stating that “our mission is to hire people in, give them the
opportunity to learn skills and move on.” We do no promise
anyone a job beyond a contract period and we do not promise
annual raises. You will have a job as long as you are doing the
job and we have the funding.”
The June 19 article was accompanied by a picture of former
employees of Respondent and their supporters picketing in
front of the Scottville office, with signs which among other
items, refer to unfair labor practice charges. This article refers
to the fact that seven such charges had been filed, and quotes
Union Business Agent Marv Holland as stating that he never
had to file this many charges against anyone.
In response, Trucks was quoted as stating that others, includ-
ing her attorney, have suggested the charges, along with an
employee petition calling for her removal, could be part of a
union ploy for bargaining. A direct quote from Trucks was
included as follows. “We were told before the election, their
strategy was not to negotiate, but to get me fired.”
Holland denied that claim, and asserted that the unfair labor
practices were not a bargaining tool, and denied that the peti-
tion was union orchestrated or organized. Holland did say,
“[B]ut we are not opposed to it.”
The article referred to the petition and indicated that the
group asked for the removal of Trucks Pomeroy, because em-
ployees are not treated fairly and some of the agency’s clients
are not receiving the assistance they should be. Clark was also
quoted as stating that those picketing were “completely sepa-
rate (from the Union).” The article also quoted some of the
picket signs as stating “employee harassment and abuse,” and
“do you know how your tax dollars are being spent.”
Trucks was asked about these articles, and in somewhat eva-
sive and uncertain testimony, denied that she told the reporter
that the petition was a union ploy or that the Union was behind
or involved in the petition. According to Trucks, the reporter
asked her whether she thought the Union was involved, and
informed her that Holland had denied any involvement. She
asserts that she responded that if the Union involved in the
petition, then she believed that it was a ploy to strengthen their
bargaining position, since it had not as yet contacted Respon-
dent to bargain. Trucks did admit, however, that she “thought
it was very plausible that the Union could be involved.” Trucks
also admitted that the reporter told her that the group involved
with the petition was concerned that services are not being
provided because all those people had been fired, that Trucks
was asked what she had to say about that. Trucks also con-
firmed that the reporter said something to her about Dale Smith
who had been fired and claimed that people were not being
served in the weatherization department as a result.
On as noted above, about May 25 or 26, Clark gave a copy
of the petition to Verna Fugere. Fugere was a community sup-
port worker at Respondent’s Mason County office since August
8, 1988. Clark asked Fugere to circulate the petition amongst
other employees. Fugere gave copies of the petition to several
employees, including Norma Johnson, Karla Clegg, and Tom
Belongia. Fugere and the other employees discussed the peti-
tion and stated that they felt that it was the only way that they
were going to be able to protect their jobs, because unless
Trucks was removed as director, there would be no jobs left for
the Union to unionize. According to Fugere, in the past there
were several other attempts to unionize Respondent, and when
those attempts became common knowledge to Trucks, employ-
ees were either fired or coerced to quit.
According to Trucks, she first found out about the petition on
or about May 31, when she received a phone call from em-
ployee Norma Johnson, who told Trucks that she had received a
copy of the petition and was asked to distribute it. Johnson told
Trucks that she had only good experiences with Trucks, and felt
that she had an obligation to tell her about it. Johnson read the
petition to Trucks and told Trucks that she had received it from
Clark. Trucks asked Johnson to put that in writing. Johnson
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196
replied that she was afraid to, since she was from Manistee
which is a union town and she heard stories about things that
happen to people who were considered snitches by the Union.
Eventually, after another call, Trucks persuaded Johnson to
come in to the Scottville office, discuss the matter personally
with Trucks, and put her assertions in writing.
Thereafter, on May 31 and on several days thereafter, Trucks
spoke to all head teachers, community support workers, and
any other employee whose name came up in her discussions
with employees concerning the petition. Trucks taped all of
these conversations, after notifying the employees that she was
doing so.
Trucks spoke to Fugere, because Johnson in her discussion
with Trucks had informed Trucks that Fugere had called her
into the office and told her that she would be hearing from
Clark about the petition, and requested that she assist Clark in
regard to the petition. Another employee, Collette Kleg, had
also told Trucks that Fugere had given her the petition and
asked her to obtain signatures.
On May 30 Mary Jo Klomp delivered a copy of the petition
to Beverly Schaub in the parking lot of Respondent’s Lake
County office in Baldwin, where Schaub was employed as an
assistant community support worker. Schaub put the petition in
her purse and went in to work. While at work, Schaub started to
pull out the petition to show it to Ann Walters, the community
support worker for that facility and told Walters that she had
received the petition from Klomp. Walters instructed Schaub
to put the petition back in her purse, since a client was coming
in, and they should not talk about the petition during working
hours. Schaub complied and they did not thereafter have any
further discussion about the petition.
The next morning, May 31, Walters was summoned by
Trucks’ secretary to report to the Scottville office as quickly as
possible. At 10:08 a.m., Walters was called into Trucks’ office.
Pomeroy was also present. Trucks showed Walters the petition,
and asked if she had seen it? Walters replied that she had seen
it, but had not read it. Walters also told trucks that she had
received it from Schaub, and that she thought that Schaub re-
ceived it from Mary Jo Klomp. Trucks asked Walters, “[W]hat
do you think the purpose of giving you this petition was?”
Walters replied, “I would imagine they were hoping that we
were upset about working conditions or something that has
happened to us and would be willing to circulate the petition.”
Trucks also asked if Walters discussed the petition with
Schaub, whether she (Walters) was expecting the petition, and
whether anyone asked her to circulate the petition. Walters
replied no to all of these questions.
Trucks asked Walters if she was aware of an agency policy
that employees are not allowed to distribute materials or circu-
late any petitions without prior permission? Walters answered,
“[Y]es.” The meeting concluded with Trucks cautioning Wal-
ters of the seriousness of this action, and directed her not to
discuss the conversation with anyone, because it is under inves-
tigation.
At 11 a.m. Trucks brought Fugere into her office with
Pomeroy present, and proceeded to interrogate Fugere as to
whether they had seen the petition, who received it from, when
she received it, whether she read it, whether she reported it,
why she did not report it, whether she considered signing it,
whether she considered consolidating it, who else she spoke to
about the petition, who else she gave the petition to, whether
she thought the petition was good for FiveCAP, and whether
she was aware of any evidence to support the petition. Fugere
responded to the questions, and admitted that she had seen the
petition, had discussed it with and given it to other employees,
had considered signing it and circulating it to others, and had
no intention of reporting the petition to management. Fugere
was cautioned by Trucks of the seriousness of her conduct,
advised her to consult an attorney, and directed her not to dis-
cuss the conversation with anyone.
Schaub was also called into Trucks’ office on that day and
asked similar questions about her involvement with and knowl-
edge of the petition. Schaub was also told that she should have
reported the petition to Respondent when she became aware of
it, and that as a result she might be put on probation or fired for
her failure to do so. Trucks instructed Schaub that Respondent
would notify her of its decision concerning her status.
At 4 p.m. on May 31 Tom Belongia was also called into
Pomeroy’s office and asked similar questions about the peti-
tion. Belongia was at first reluctant to discuss the petition,
since it did not in his view have anything to do with his job.
Belongia finally did admit to having seen it, but would not
answer other questions of Pomeroy. Belongia did say, how-
ever, with respect to the petition, “[M]y personal opinion, this
would probably do the agency some good.” Finally, Belongia
insisted on speaking to Trucks about the subject, which resulted
in a long discussion between the two of them.
During this discussion, Belongia continued to resist discuss-
ing the petition, since he felt that what he did on his own time
was his business. Trucks informed him that if something af-
fects Respondent, she has a right to discuss it with him, whether
or not it takes place on his own time, and if he refuses to talk to
her about it, he will no longer be on the payroll.
Trucks directed herself to Belongia’s comment to Pomeroy
that the petition “would probably do the Agency some good,”
and asked what about the petition would be good for the a-
gency. Belongia did not directly respond, and continued to
insist that his personal opinion is his business. Trucks replied
that his opinion does matter and that he had an obligation to
report his knowledge of the petition to his supervisors. She
adds that if his position is that he need not have reported the
petition because it was his personal business, “you don’t work
here anyway.”
Trucks asked Belongia how he felt about the petition? Be-
longia replied, “[T]oday I’m going to run out and sign the damn
thing.” After another inquiry about whether Belongia would
circulate or sign the petition, Belongia replied that he would not
sign unless there was proof that something is wrong. Trucks
then asked what Belongia would do in the future, should some-
thing like the petition be brought to him? Belongia replied,
“[I]f I see something detrimental to the Agency, I would be
happy to tell you about it. You’re got to remember Mrs.
Trucks, that it’s Union.”
After further discussion about why Trucks felt it was essen-
tial for Belongia to have reported his knowledge of the petition
to supervision, and Belongia refusing to unequivocally agree to
do so in the future, Trucks asked if felt that way, “don’t you
think now is a good time to go?” Belongia replied that in a
month he might have another job.
Belongia also mentioned that Clark had informed him that
Trucks labeled him as a “union Organizer,” and complained
that Respondent had instructed him because of this fact. Be-
longia made specific reference to Respondent having moved his
office to the basement. Trucks informed Belongia that she had
FIVECAP, INC. 1197
called him into the office to fire him, if necessary, and that she
should not have anyone working for the agency who is not
loyal to the agency, and who fails to fulfill his responsibility to
report something detrimental to the agency. Trucks told Be-
longia that she would give him 30 days to find another job, on
the condition that he agree to report anything that is critical of
FiveCAP. Trucks added that if he crosses the line and he finds
out that he has not kept his word, “it will be short and sweet.
You can make a fast track to Union and file unfair labor prac-
tices,29 because I can assure you, your ass is grass. And I’m
warning you I will not tolerate it.”
After being asked of by Trucks if he felt that he did anything
wrong, Belongia replied that he had always been honest, and
stated that he voted for the Union. Trucks answered that she
didn’t care whether he voted for the Union, and that she hopes
the Union does him some good. Trucks added, however, you
know what that means, let the Union look out for you. Can the
Union keep you from being fired today?” Belongia replied,
“[A]bsolutely not.” Trucks stated, “[Y]ou’ve got that right.”
Trucks then went on to say that she knows the law, that she
follows Respondent’s personnel policies, that she has the au-
thority to fire, and that Respondent does not fire people for
nothing. She concluded by telling Belongia, “[Y]ou get fired
for a reason. And if the reason is covered in our Personnel
Policies, no Union can save you, you are gone.”
Trucks denied that she believed that the petition had any-
thing to do with the Union, or that the Union was involved in
any way with the petition. According to Trucks, she was con-
cerned about the petition because she viewed it as criticizing
the agency for mismanagement of funds. Trucks added that her
mind went back to 1988, when a similar petition was circulated,
also calling for her ouster, which resulted in Congressional
inquiries and an attorney general investigation, which although
it exonerated Respondent, was not a pleasant experience.
Trucks also testified that she was concerned that the petition
was going to be distributed to Respondent’s clients, and that its
clients were very sensitive to assertions that she and the fiscal
officer were mishandling taxpayer dollars.
Respondent, in support of Trucks’ testimony, submitted
newspaper articles from 1988, as well as two letters to the edi-
tor sent to newspapers in 1995. An article from the Manistee
News Advocate, dated January 30, 1982, is headlined that
Trucks is the target of an apparent ouster attempt. It described
an effort by a group to have Trucks terminated for various al-
leged improprieties, including not following proper election
procedures for board membership, and other alleged failures to
follow Respondent’s bylaws.
The article also indicates that the group complained that
problems in the agency are evidenced by a turnover rate of 70
percent. Trucks responded to this criticism by defending such a
turnover rate, that enables employees to “gain experience and
then go on to bigger and better things.” Trucks was also quoted
as saying that “we call it up and out. Turnover in a community
action agency is not that much of a problem . . . it’s the mark of
a community action agency, doing its job.”
A letter to the editor printed in Ludington Daily News dated
February 8, 1988, was also submitted. This letter written by a
Cheryl Dore who identified herself as a former member of Re-

29 I note in this connection that by this time the Union had filed
charges on May 5 and 8, asserting that Respondent violated the Act
with respect to its treatment of employees Taylor and Smith.
spondent’s management team, defended Trucks from the
charges raised against her by the group in 1988. The letter
praised Trucks for her efforts to institute accounting procedures
and program controls. However, the letter also conceded that
Trucks was difficult to work with and had high expectations for
her staff to perform the job for which they were hired. Dore
expressed the view that the above concessions do not make
Trucks a “poor manager.”
Another newspaper article dated November 16, 1988, details
that an investigation by the Attorney General of the State of
Michigan found that allegations against Respondent to “mis-
management of funds and programs is unfounded.” The two
letters to the editor printed in 1995 were written by Mary Jo
Klomp, a supporter of the 1995 petition, and by Jan Bailey,
chairman of the board of directors of Respondent in support of
Trucks.
Klomp’s letter refers to the fact that Trucks had stated that
the petition was another “union ploy.” For the record, Klomp
stated that the union had nothing to do with the drive, but it was
a grass roots movement instituted by former FiveCAP employ-
ees. Klomp referred to the fact that she had been terminated by
Respondent, and was “one of a long list of personnel that had
either quit or been terminated.” The letter then goes on to assert
that Trucks, “intimidates, humiliates and degrades employees
until they quit or should they dare to question her absolute au-
thority, are terminated for incompetence and/or insubordina-
tion.” The letter concludes by arguing that Respondent could
provide “better service with now only a full complement of
employees but with employees who engaged and took pride in
their work at Five CAP. It is also my opinion that this will
never be a reality as long as Mary Trucks is executive director.”
The letter from Bailey praised Trucks for her level of com-
mitment that turned the agency around. The letter also referred
to the fact that the agency was currently fighting for the funding
for existing programs, and argued that rumors and allegations
aimed at discrediting Respondent can only hurt the people that
it serves. Bailey criticized the “selfish few” who have tried to
take attention away from the positive impact that Respondent
has made, which does not in her view, focus attention and en-
ergy on what is truly important, the people that Respondent
serves.
On June 1, at 5 p.m., Fugere was shown a copy of a tran-
script of the discussion the previous day with Trucks concern-
ing the petition by Pomeroy, who asked her to sign it. Fugere
read it but said that she would not sign the document before
seeking legal advice.
Five minutes later, Pomeroy instructed Fugere to go to
Trucks’ office. Trucks informed Fugere that she was fired and
told her to get her things and get out. Fugere asked why, and
Trucks responded that “it’s all in there,” referring to the typed
transcript that Fugere had refused to sign.
Several days later, Fugere received a letter from Trucks,
dated June 1, which explained the reasons for her discharge.
The letter referred to the petition, and the fact that Fugere had
admitted having seen and received it, giving it to another em-
ployee, and had failed to report the petition to her supervisor.
Additionally, the letter mentioned that she had been directed
not to discuss the meeting with Trucks with anyone, and that
Fugere discussed the meeting and the petition with three other
employees.
Accordingly, the letter concludes that Fugere was guilty of
“gross insubordination,” and actions detrimental to FiveCAP,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1198
which are violative of Respondent’s personnel policies, which
warranted her discharge effective 5 p.m. on June 1.
In this connection, Respondent cites page 18 of its policy
manual, which defines actions detrimental to the best interests
of Respondent, as grounds for termination, which includes,
“breach of staff confidence, public repudiation of the Five CAP
Program or display of temperament, which impedes the con-
tinuous functioning of the Five CAP Program.”
b. Analysis
In assessing the lawfulness of a number of actions taken by
Respondent with respect to the petition seeking the removal of
Trucks and Pomeroy, the primary issue for resolution is
whether or not the employees were engaged in protected con-
certed activity with respect to their involvement with said the
petition.
It is well settled that a petition or other conduct by employ-
ees which seeks the removal of a supervisor constitutes pro-
tected concerted activity, where the supervisor has a direct
impact on employee working conditions. Korea News, Inc.,
297 NLRB 537, 539–540 (1990); Polynesian Hospitality Tours,
297 NLRB 228 fn. 2 (1989); and Hoytuck Corp., 285 NLRB
904 fn. 3 (1987). This is so even where the employees seek the
removal of a high-level management official, as long as the
identity of the official is directly related to their terms and con-
ditions of employment. Oakes Machine Corp., 288 NLRB 456
(1988), enfd. 897 F.2d 84, 89 (2d Cir. 1990).
Here the evidence establishes that major concerns of the em-
ployees who discussed and/or circulated the petition were the
unfair labor practices committed by Respondent and the arbi-
trary manner in which Respondent in general and Trucks in
particular treated its employees. I also conclude that Respon-
dent was fully aware that these were at least some of the con-
cerns of the employees that gave rise to their actions with re-
spect to the petition.
Indeed, the very first employee that Trucks questioned about
the petition, Ann Walters, told Trucks that the reason why em-
ployees were involved with the petition, was that employees
might be upset with working conditions or something that hap-
pened to them at the job. Moreover, when Respondent ques-
tioned employee Tom Belongia about the petition, he expressed
support for it by stating, “[I]t might do the Agency some good,”
and then went on to complain about how he had been unfairly
treated by Respondent, mentioning specifically among other
complaints, the moving of his office to the basement, which I
have concluded above was an unfair labor practice by Respon-
dent.
Most significantly of all, I note Trucks’ own testimony given
in connection with the newspaper articles describing the peti-
tion and her reaction to it. Trucks conceded that the reporter
had told her that the group involved with the petition was con-
cerned that services are not being provided because all these
people had been fired, and that Trucks gave her response to that
charge. Additionally, one of the problems cited by the group
was an “outrageous turnover.” Trucks responded30 to allega-
tions by disagreeing that the turnover rate is too high, stating
that Respondent’s mission was to have people, give them the
opportunity to learn skills and move on and that no one is

30 I note that while Trucks in her testimony did dispute the accuracy
of some of the quotes attributed to her in the article, she did not do so
with respect to these comments, which I find that she made.
promised a job or annual raises. These comments by Trucks
establish clearly that she was well aware that at least one pur-
pose of the petition was to protest Respondent’s personnel poli-
cies, how it treats its employees, and its inability to retain its
staff. These are matters which directly relate to employees’
terms and conditions of employment, and particularly, where as
here, Trucks herself is directly involved in most if not all of the
personnel actions taken by Respondent with respect to its em-
ployees, the employees call for her removal is protected con-
duct. Oakes Machine, supra; Korea News, supra; and Hoytuck,
supra.
Respondent argues that its primary concern with the petition,
was Trucks’ belief that she and Pomeroy were being accused of
embezzlement or mishandling money, which has no direct bear-
ing on employees working conditions. In support of this con-
tention, Respondent cites Trucks’ testimony that she regarded
this petition as similar to the petition circulated in 1988, which
also called for her removal, and cited such concerns. However,
an examination of the newspaper articles and letters to the edi-
tor by Respondent in connection with both the 1988 and 1995
petitions serves to reinforce my conclusion that at least one of
the concerns of the 1988 as well as the 1995 petition involved
working conditions of employees. Thus, the 1988 newspaper
article indicated clearly the group was complaining about prob-
lems in the agency created by a turnover rate of 70 percent.
Interestingly, Trucks defrauded the agency in 1988 in virtually
the same language as she did in 1995, by stating that Respon-
dent enables employees to gain experience and go on to bigger
and better things. Moreover, a letter to the editor in 1988 from
a former management employee, defended Trucks, but con-
ceded that Trucks was difficult to work with and had expecta-
tions for her staff, which in the view of the writer, did not make
Trucks a poor manager. Finally, the letter of Mary Jo Klomp
sent in 1995, makes clear that the petition sought to remove
Trucks because of how she treats her employees, by causing
them to quit or firing them.
Thus, there can be no doubt, that Trucks was aware that at
least one of the reasons for the circulation of the petition herein,
was the belief of the employees (as well as ex-employees) of
Respondent that Respondent in general and Trucks in particular
mistreated its employees, causing a high turnover of staff.
Thus, since at least one of the concerns of the employees in-
volved their working conditions, the employees were engaged
in protected concerted activity in connection with the petition.
Blue Circle Cement Co., 311 NLRB 622, 634 (1993); enfd. 41
F.3d 203, 210 (5th Cir. 1994).
Moreover, I also conclude, contrary to Trucks’ contrived and
unconvincing attempts to distance herself from quotes attrib-
uted to her in the newspaper, that she did believe as quoted in
the paper that the petition was a “union ploy,” and that the Un-
ion was behind or at least involved with the petition. In addi-
tion to the newspaper articles, which I conclude quoted her
accurately, I also rely on other evidence to support such a con-
clusion. Thus, I note that when Trucks was first informed
about the petition by employee Norma Johnson, Johnson was
reluctant to put anything in writing because she had a “union
town” and was concerned about what happens to people con-
sidered snitches by the Union. These comments suggest that
Johnson believed that the Union was involved in the petition,
and that Trucks at that point was of the same view. Addition-
ally, during Trucks’ questioning of Belongia concerning the
petition, Belongia made a comment to Trucks in regard to the
FIVECAP, INC. 1199
petition, “[Y]ou’ve got to remember Mrs. Trucks, that its Un-
ion,” which also suggests union involvement in the petition.
While it is true as Respondent argues that Holland, Clark,
and Klomp unequivocally denied any union involvement in the
petition, whether or not the Union actually participated in the
formation or circulation of the petition is not relevant. What is
significant is that Trucks believed that the Union was involved,
which by itself is sufficient to characterize the petition as pro-
tected conduct, Byrant & Cooper, supra, since action taken
against an employee, was the mistaken belief by an employer
that the employee engaged in union activity is unlawful. Salis-
bury Hotel, 283 NLRB 685, 686 (1987).
However, where employees in the course of their concerted
activity, engage in conduct which is egregious, offensive, de-
famatory, or opprobrious, such activity can lose the protection
of the Act. HCA/Health Services, 316 NLRB 919 (1995); Con-
sumers Power Co., 282 NLRB 130, 132 (1986). A statement
which is alleged to be defamatory is deemed sufficiently op-
probrious as to lose the protection of the Act if it is made with
knowledge of its falsity or reckless disregard of whether it was
true or false. HCA, supra; KBO, Inc., 315 NLRB 570 (1994).
Here, the petition simply alleges that Trucks and Pomeroy
were guilty of “improper management and breach of fiduciary
duties.” It is apparent that the employees were primarily con-
cerned with Respondent’s alleged mistreatment of employees,
which clearly can be reasonably characterized as improper
management, and can also be related to breach of fiduciary
duties, since the employees claim that the lack of appropriate
staff impacted adversely upon Respondent’s ability to properly
maintain its programs and service its clients.
I note that while Trucks may have believed that she was be-
ing implicitly accused of embezzling funds, there is no record
evidence that anyone involved in the petition ever made such
an accusation. Thus, I conclude that the statements on the peti-
tion and the employees’ actions in regard to it were based on
reasonable good-faith belief that Trucks and Pomeroy were not
managing the agency properly, and cannot be characterized as
statements made with knowledge of their falsity or reckless
disregard for its truth. KBO, supra (statement made that anti-
union campaign was financed from employees’ profit-sharing
accounts, protected, even though statement inaccurate, and
based solely on double hearsay statement which employee
made no attempt to verify). See also Alaska Pulp, 296 NLRB
1260, 1273–1274 (1989) (Accusation that employer maintained
two sets of books protected although no evidence that statement
was accurate); Cf. HCA, supra (employee recklessly spread
rumors about supervisor that were false and damaging, and
which employee knew or should have known were false. Held
such conduct lost the Act’s protection).
Accordingly, I conclude that Respondent’s employees were
engaged in protected concerted activity with respect to their
activities relating to the petition. This finding leads to the con-
clusion that a number of actions taken by Respondent in re-
sponse to this petition are in violation of the Act.
Thus, Respondent’s interrogating its employees in Trucks’
office, concerning their actions with regard to the petition, as
well as their knowledge of who else was involved with the
petition clearly was coercive, and violative of Section 8(a)(1) of
the Act. Kroger Co., 311 NLRB 1187, 1191 (1993); Club
Monte Carlo Corp., 280 NLRB 257 (1986), enfd. 821 F.2d 354
(6th Cir. 1987).
Additionally, it is also clear that statements made by Trucks
to various employees that threatened discharge and other repri-
sals against employees failing to report their awareness of the
petition and other actions in regard to the petition are unlawful
threats in violation of Section 8(a)(1) of the Act. Clean Power,
Inc., 316 NLRB 496, 498 (1995); Krager, supra at 1191.
Similarly, I conclude that Trucks’ statement to Belongia dur-
ing her unlawful interrogation of him concerning the petition,
suggesting that he quit unless he promised to report such peti-
tions in the future, is also an implied threat of discharge viola-
tive of Section 8(a)(1) of the Act. Korea News, Inc., supra at
540; Heritage Nursing Home, 269 NLRB 230, 231 (1984).
The complaint also alleges, and the General Counsel con-
tends that Respondent by Trucks unlawfully promulgated and
enforced an overly broad no-solicitation, no-distribution rule. I
agree. When Trucks informed employees that they were pro-
hibited from circulating petitions or materials without manage-
ment approval, and that they were obligated to report any such
activity, Respondent has enforced an unlawfully broad prohibi-
tion on employees’ exercise of protected concerted activity,
Korea News, supra at 540–541; Communication Workers , 303
NLRB 264, 277 (1991); 299 Lincoln Street, Inc., 292 NLRB
172, 186 (1988), whether or not as Respondent asserts, such
conduct would be violative of Respondent’s longstanding per-
sonnel policies. Kinder-Care Learning Centers, 299 NLRB
1171, 1172 (1990) (“Parent Communication” rule that prohibits
employees from communicating with coworkers or third parties
such as parents or clients, and requires employees to bring any
work-related complaint to management, interferes with em-
ployees’ Section 7 rights to communicate with both coworkers
and outsiders regarding their complaints about working condi-
tions).
Finally, Respondent admits that it discharged Verna Fugere
because of her failure to report her knowledge of the petition,
as well as her actions in circulating the petition. Since the dis-
charge was admittedly motivated by Fugere’s activities, which I
have found to be protected concerted conduct, it follows and I
conclude that Respondent has violated Section 8(a)(1) and (3)31
of the Act. Simplex Wire & Cable Co., 313 NLRB 1311, 1314–
1317 (1984); and Delta Health Center, 310 NLRB 26, 43
(1993).
9. The discharge of Tom Belongia
a. Facts
As noted above, Belongia was a union supporter, testified at
the hearing on behalf of the Union, and was the recipient of an
unlawful threat by Trucks to discharge employees if the Union
was voted in. Belongia was also specifically mentioned by
Trucks as one of the employees whom she could no longer trust
because of their testimony at the hearing. I have also con-
cluded above that Respondent discriminatorily moved the of-
fice of both Belongia and Smith in violation of the Act.

31 The 8(a)(3) finding is based on the fact that Trucks believed that
the Union was involved with the petition. The General Counsel also
contends that since Fugere was also a union supporter and testified at
the hearing, that her discharge is also violative of Sec.. 8(a)(1), (3), and
(4) based on these activities of Fugere. In view of my finding that the
discharge, based on conduct with regard to the petition was unlawful, I
need not and do not make a finding whether or not Fugere’s discharge
was also violative for these other reasons, inasmuch as the remedy
would not be significantly different with or without such a finding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200
Additionally, Belongia was one of the employees whom Re-
spondent unlawfully interrogated about their activities with
respect to the petition. During that unlawful interrogation,
Belongia expressed sympathy for the petition, by stating that it
might do the Company some good, and “today I’m going to run
out and sign the damn thing.” During that same discussion, I
have found that Respondent unlawfully suggested that Belongia
quit, because he would not agree to report his knowledge of any
such future petitions.
On June 2 Respondent sent a memo to Belongia from
Trucks, allegedly summarizing their meeting on June 1. The
memo asserts that during the meeting, Belongia had stated that
he planned to leave Respondent’s employment in 30 days, and
that the meeting ended with the understanding that he would
continue his employment for 30 days at Respondent on the
condition that he adheres to Respondent’s policies and proce-
dures (referring to Trucks’ unlawful instruction to report any
future petitions to management).
As noted above, this memo is not entirely accurate. Be-
longia did not indicate that he planned to leave in 30 days.
However, he did respond, in answer to Trucks’ unlawful sug-
gestion that he quit, that he had applied for another position
which he would accept if the offer was forthcoming, and that he
would know about his prospects of obtaining this position in 30
days.
On June 7 Belongia was called into the office by Trucks at 5
p.m. Trucks while on the phone, gave Belongia a note request-
ing a report that she had assigned him the day before. Belongia
who testified that he had understood that Trucks did not need
the report until June 8, went to his office and returned with only
a partially completed report. He gave the document to Trucks
and informed her that he had to leave to pick up his 8-year-old
daughter at a softball game by 5:30 p.m. Trucks replied that
Belongia’s report was not complete and he was not leaving.
Belongia responded that he was leaving. Trucks then told Be-
longia, if he left “don’t come back.” Belongia left to pick up
his daughter.
The next day, June 8, Belongia reported to work at his nor-
mal time, and as he attempted to sign in, Trucks grabbed the
sign-in book and told them “I want you to leave.” Belongia
replied that if she wanted him to leave, he wanted something in
writing, and asked if he was fired? Trucks did not reply to this
inquiry, but repeated her demand that Belongia leave. Belongia
responded that he was not leaving, and again demanded some-
thing in writing from Trucks. Trucks told her secretary to call
the police, and indicated to Belongia that he would get some-
thing in the mail. To this comment Belongia stated, “bull shit,”
and added “I ain’t playing your game Mary.”
Belongia again asked if Respondent wants to fire him, to
give him something in writing that tells him he is fired. Trucks
continued to insist that Belongia will leave, and Belongia
continued to refuse to leave unless he gets something in
writing. Belongia then stated that he was going to get some
personal things, and started to walk past Trucks. As he was
side by side with Trucks, she grabbed his arm and told him that
he was not going anywhere. Belongia replied that he had
personal stuff in the building. Trucks grabbed Belongia’s other
arm and told him that he was “going to stay right here.” Be-
longia at that point shouted, “Get your hands off me right now.”
Trucks then called for Pomeroy to come in, while still holding
Belongia’s arms. Belongia repeated that Trucks should get her
him, not to touch him, and added, “[G]et your damn hands off
me.”
hands off him, not to touch him, and added, “[G]et your damn
Finally, a police officer arrived. Trucks informed the officer
that Belongia had been asked to leave five times and refused to
do so. Belongia told the police that he worked there. Trucks
stated, “[N]ot anymore you don’t.” Belongia continued to de-
mand something in writing that states that he doesn’t work
there, and that he needed to retrieve some personal things. The
police officer, at Trucks’ suggestion, told Belongia that he
should make a list of his personal things, and that she (the po-
lice officer) would make sure he gets the stuff. However, she
insisted that Respondent had the legal right to demand that he
leave, and if he does not do so, he will be arrested. Belongia
agreed to leave at that point.
The next day, June 9, Respondent sent a letter to Belongia,
stating that he was terminated effective June 8. The letter reads
as follows:

Dear Tom:

Effective June 8, 1995 your employment with Five-
CAP, Inc. is terminated.
On the above date you committed major breaches of
the following FiveCAP, Inc. personnel policies:

Insubordination—such actions include, but are not
limited to refusal to carry out directives of the Five-
CAP Executive Director, immediate supervisor, or
Program Coordinator.

Actions detrimental to the best interest of FiveCAP,
Inc. Program and people that it serves—such actions in-
clude, but are not limited to, breach of staff confidence,
public repudiation of the FiveCAP Program or display of
temperament, which impedes the continuous functioning
of the FiveCAP Program.
Violence, insults or threats of violence - Such actions
include, but are not limited to, threats or assaults or carry-
out threats to assault employees, members of the staff or
the Board of Directors of FiveCAP, Inc., or to be instru-
mental in any action which constitutes assault on employ-
ees, staff, or members of the Board.
The above occurred on June 8, when you were in-
formed that you would not be working that day and was
asked to leave. You refused until the police accompanied
you out. While waiting for the police, you verbally as-
saulted me, used profanity and ignored request not to do
so. You engaged in a physical altercation when your at-
tempts to go into offices were blocked.

According to Trucks, although she had told Belongia on June
7 not to come back, and that she refused to allow him to sign in
on June 8, she had no intention of firing Belongia at that time.
Trucks claims that she could not tolerate his walking out the
night before, but that she needed Belongia’s skills and training
in the weatherization department. Therefore, Trucks asserts
that she intended only to suspend Belongia, with pay for some
unspecified period of time. Trucks admits that she did not at
any time during their confrontation of June 8 tell Belongia that
she had intended only to suspend him with pay, although he
continually asked her if he was fired. Trucks asserts further that
his termination had nothing to do with any union activities
engaged in by Belongia.
FIVECAP, INC. 1201
b. Analysis
An extremely strong prima facie case has been established
that Belongia’s discharge was motivated by protected conduct.
Thus, as detailed above, Belongia was a well-known union
supporter who testified at the hearing, was subject to several
unlawful threats, and had his office moved in violation of the
Act. Moreover, Belongia was also interrogated and threatened
in connection with the petition, during which Respondent
unlawfully suggested that he quit, which was followed up by a
letter which stated inaccurately that Belongia had in fact agreed
to quit after 30 days. It is also significant that Belongia during
this unlawful interrogation made several positive statements
about the petition, including his intended to sign it.
Belongia was discharged within a week of this unlawful
conduct by Respondent, and a little more than a month after the
unlawful discharge of Smith, and the unlawful removal of the
office of both Smith and Belongia to the basement. Therefore,
the above evidence overwhelmingly demonstrates that a moti-
vating factor in Respondent’s decision to terminate Belongia
was his protected conduct. I conclude that Respondent has
fallen short of meeting its Wright Line burden of establishing
that it would have taken the same action against him, absent
such protected conduct.
In that connection, I find Trucks’ testimony that she did not
intend to discharge Belongia until he engaged in several acts of
alleged misconduct on June 8 to be contrived and unconvinc-
ing. Thus, she told him on June 7 not to come back if he left
the premises, contrary to Trucks’ wishes, and on June 8 when
he attempted to report for work, she would not allow him to
sign in and insisted that he leave. While Trucks refused to tell
Belongia whether or not he was fired, although he asked several
times for his status to be clarified, it is significant that she never
told him that he was merely suspended with pay, as she asserts
was her intention. I find that her admitted failure to so inform
Belongia of this alleged intention of hers severely detracts from
her credibility as to this issue.
Although Trucks did not inform Belongia that he was termi-
nated until after the police arrived, it is well settled that the test
for determining whether an employer’s statements or conduct
constitute a discharge, does not depend on the use of formal
words of firing, discharge, or termination, but whether the em-
ployer’s conduct would reasonably lead employees to believe
that they had been discharged. Romar Refuse Removal, 314
NLRB 658, 670 (1994); Statewide Transportation, 297 NLRB
472, 479 (1989); Ridgeway Transportation Co., 243 NLRB
1048, 1049 (1979); and NLRB v. Hilton Mobile Homes, 387
F.2d 7, 9 (8th Cir. 1967). Moreover, once an employer creates
an ambiguity or confusion as to an employee’s employment
status, it is incumbent on the employer to clarify and remove
any implication that the employee has been terminated. Tubari
Ltd., 287 NLRB 1273, 1285 (1988); and Pennypower Shopping
News, Inc., 253 NLRB 85 (1980).
Applying these principles to the instant facts, I conclude that
Trucks’ comments to Belongia on June 7 that if he left, he
should not come back, coupled with her refusal to allow him to
work on June 8 while telling him to leave, are more than suffi-
cient to lead a prudent person to believe that his tenure had
been terminated. Romar, supra (statement to employee “get out
of here, . . . we don’t need you anymore” plus refusal to assign
work that day); Shenandoah Coal Co., 305 NLRB 1071, 1073
(1993) (statement to employee, “I think it’s time for you to
leave.” Even though employee then asked if he was fired and
supervisor replied no, discharge nonetheless fired since super-
visor repeated statement that employee should leave and re-
fused to allow him to work); Ridgeway, supra (order to em-
ployees to leave the premises unless they were going to work
held sufficient to constitute discharge). Tubari, supra (state-
ment to employee “go home” sufficient to establish discharge).
Moreover, even if Respondent’s conduct can be considered
ambiguous, it was obligated to clarify or correct any impression
that Belongia was discharged. Clearly, Belongia believed that
he had been discharged as evidenced by his consistent requests
for something in writing, and a specific clarification of his
status, as well as his request to retrieve his personal belongings.
Ridgeway, supra. Not only did Trucks on behalf of Respondent
not avail itself of the opportunity given it by Belongia to clarify
his status, but she further demonstrated Respondent’s intent to
terminate him by continuously ordering him to leave, without
answering his question as to whether he was fired. Indeed it
would have been simple for Trucks to inform Belongia that he
was merely suspended with pay, as Trucks testified was her
intention. Such a comment would undoubtedly correct any
impression that he was terminated, and might well have re-
sulted in Belongia’s leaving immediately. Yet, Trucks did so
inform him and did not clarify his status, which further rein-
forced Belongia’s reasonable impression that he was termi-
nated. Tubari, supra; Pennypower, supra.
Accordingly, since I conclude that Belongia was terminated
by the start of his discussion with Trucks on June 8, Respon-
dent cannot rely on any alleged misconduct by Belongia during
their meeting to justify its decision to discharge him. In any
event, I also conclude that any alleged misconduct, particularly
his refusal to leave, his use of profanity, and the “physical con-
frontation”32 with Trucs, was provoked by Respondent, and
cannot provide a defense to Respondent’s unlawful conduct.
Romar, supra at 671; and 299 Lincoln Street, supra at 203. See
also M & B Hardware Co., 349 F.2d 170, 174 (4th Cir. 1965)
(“an employer cannot provoke an employee to the point where
the employee commits . . . an indiscretion . . . and then rely on
this to terminate (the) employment”).
Therefore, based on the foregoing I conclude that Respon-
dent has not established that it would have discharged Be-
longia, absent his protected conduct,33 and that it has thereby
violated Section 8(a)(1), (3), and (4) of the Act.
10. The alleged discrimination against Ann Walters
a. The facts
As noted above, Walters was the first employee whom Re-
spondent questioned about the petition on May 31. During the
questioning, Walters admitted that she had seen the petition and
that she had not reported this fact to any supervisor.
On June 9, Respondent issued a letter to Walters, signed by
Trucks, placing her on probation, effective immediately. The

32 I note that it was Trucks who grabbed Belongia’s arms when he
attempted to retrieve his personal belongings.
33 I would also note that Respondent’s discharge accused Belongia of
actions detrimental to FiveCAP including breach of staff confidence,
and public repudiation of FiveCAP program. Trucks furnished no
testimony explaining what she was referring to with these comments,
but it appears to refer the Belongia’s actions with regard to the petition,
which as I have concluded above was protected conduct. Thus, this is
another reason to conclude that Respondent has not met its Wright Line
burden.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1202
reasons given in the letter for this action by Respondent were
Walters’ conduct with regard to the petition, plus Walters’ fail-
ure to sign out properly, or to request time off on May 30.
With respect to the petition, the letter reflects that Walters
had admitted seeing the petition, and indicated that “there
seems to be reason to question the truth of what you knew and
when about the petition.” The letter goes on to say Walters’
“failure to read and direct your staff appropriately in regard to
the petition constitutes poor performance and an indication of
unwillingness to accept the responsibilities of your position.”
The letter also mentioned that Walters had not requested
time off or report that she left the office or correctly document
her time. The letter placed Walters on probation, pending in-
vestigation, and asked for a response in writing. As requested,
Walters responded by letter of June 14. Walters explained that
she had left the office on May 30 to donate blood, but it had
taken longer than expected. She also stated that she only took
15 minutes for lunch and had reported this to Trucks secretary.
As to the May 31 interrogation, Walters maintained that she
had given the facts to the best of her ability, and regretted that
Respondent had questioned her honesty and ability to accept
responsibility.
On June 27, the Union notified Respondent by letter that
Walters had become a member of the Union’s bargaining
committee. On July 18, Respondent issued a letter, signed by
Lisa Stankowski, Walters’ immediate supervisor, which ex-
tended her probation for an indefinite period. The letter re-
ferred to the previous June 9 letter, and referred to the reasons
for continuing her probation.
The letter mentioned dishonesty as one reason, making spe-
cific reference to her failure to report her time properly. The
other reason was entitled, “poor job performance,” and this
referred to Walters’ “failure to supervise and properly direct the
Assistant in the matter of the negative Petition and by so failing
to perform duty committed action detrimental to Agency.”
Trucks admitted in her testimony that one of the reasons that
Walters was placed on probation was the fact that she had
known about the petition and had not reported it to her supervi-
sor.
Respondent also submitted into evidence a number of docu-
ments from January 21, 1993, through May 1, 1995, detailing
various prior written reprimands against Walters for a number
of problems, including several based on her failure to call in to
request time off and or leaving the office unattended.
b. Analysis
In view of my conclusions detailed above, that the petition
related to protected concerted activity of Respondent’s employ-
ees, Respondent’s actions of placing Walters on probation on
June 9, and extending it on July 18, must be found unlawful.
Thus, the letters of Respondent announcing these discipli-
nary actions makes specific reference to, and Respondent con-
cedes, that Walters’ failure to report the petition to Respondent
and failure to ensure that other employees under her supervi-
sion did the same, was one of the reasons for the probation.
Therefore, the evidence establishes that a motivating factor in
Respondent’s decision to place and continue Walters on proba-
tion was her protected conduct.
Thus, Respondent then has the burden of establishing that it
would have taken the same action against Walters, absent her
protected conduct. Although Respondent did introduce some
evidence that nonprotected conduct was one factor in its deci-
sion, i.e., Walters’ alleged dishonesty, it adduced no evidence
that it would have taken the same action against Walters solely
for such reasons. Indeed, as noted Respondent freely concedes
that one of the reasons for its actions was Walters’ conduct with
regard to the petition, which I have found to be protected con-
duct, and for which Respondent cannot lawfully exact disci-
pline against Walters.
Based on the foregoing, I conclude that Respondent has vio-
lated Section 8(a)(1) and (3)34 of the Act by placing Walters on
probation and extending that status.
11. The alleged discrimination against Beverly Schaub
a. Facts
Beverly Schaub was employed by Respondent as an assistant
community support worker at its Lake County location, since
October 31, 1994. She worked 20 hours a week, assisting Wal-
ters (the community support worker at the facility). The major-
ity of her time was spent working on the food buying club op-
erated by the agency, which involves signing people up for the
program, taking orders, ordering the food, unloading the trucks,
and distributing the food. The trucks would come in to the
facility once a month. When not working on this program,
Schaub would perform janitorial work as well as spending time
on another food distribution program called T-E-F-A-P. Thus,
trucks would come in once every 3 months. Schaub would on
that day help with unloading the food, dividing it up, and dis-
tributing it to clients. She would also perform paperwork and
other tasks related to this program during the month that the
trucks would arrive. Schaub spent 25–30 percent of her time
during the 1 month that this truck arrived working on this pro-
gram.
Schaub was also a single mother of two children, one with
special needs, who lived in Baldwin, which is the same town
where Respondent’s facility is located. According to Schaub,
Respondent was aware that she was a single parent of two chil-
dren, since she had discussions about her family situation with
Trucks.
Schaub was a union supporter during the campaign, but no
evidence was adduced that Respondent ever became aware of
such support. As noted above, Schaub received a copy of the
petition and showed it to Walters. This activity resulted in
Schaub being unlawfully interrogated on May 31, concerning
her activities with regard to the petition, as well as being
unlawfully threatened with discharge for her failure to report
such petition to Respondent.
On June 26, Trucks came to the Lake County office and
along with Stankowski gave Schaub a copy of another petition,
which they characterized to Schaub as the “Truth Petition.”35
Trucks and Stankowski, asked Schaub to sign and obtain signa-
tures on this petition from everyone who entered the facility,
including clients who came to pick up food. Schaub replied
that she would think about it. However, she never singed it, nor
asked anyone else to sign it, because she felt that in her opinion

34 While the General Counsel alleges that Walters’ specific union ac-
tivity, i.e., her being named as a member of the bargaining committee,
also played a role in Respondent’s decision, I need not and do not make
such a finding, particularly since I have found that Respondent’s con-
duct violated Sec. 8(a)(1) of the Act, because Trucks mistakenly be-
lieved that the Union was involved with the petition.
35 The petition states that the signers support the board of directors
and management of Respondent, and “deplore the conduct and actions
of the few who are trying to tear down thirty years of service and trust.”
FIVECAP, INC. 1203
if she could not become involved with one petition, she would
become involved with another one. She did not express these
sentiments though to anyone from management. Also no su-
pervisor of Respondent ever thereafter asked her whether she
had signed it or whether she had obtained any other signatures.
Walters was on vacation at the time that the second petition
was distributed, but Schaub gave a copy of it to her when she
returned to work in July and told her what Trucks and
Stankowski had said about it. On July 6, Trucks telephoned
Walters, mentioned the petition to her, and instructed Walters
to garner signatures on it. Trucks also told Walters that the
amount of signatures that Walters was able to obtain would
give Trucks an indication of whether or not Walters was per-
forming her job adequately. Walters replied that she under-
stood that her job depended on whether or not she obtained any
signatures. The record does not reflect whether or not Walters
signed the petition, or whether she obtained any signatures.
On or about July 28, Schaub received a letter from Respon-
dent, signed by Stankowski indicating that Schaub’s position
was being eliminated in Lake County as of July 31, and offered
her instead the same position at Respondent’s Newago County
facility, which was vacant. The letter explained the reasons for
Respondent’s decision was that “a review of activity in the
Lake County office shows that services are down primarily due
to the termination of “TEFAP.” Thus, the letter continues that
“anticipating the loss of SSA funds and the larger number of
services provided in New[]go” Respondent decided to eliminate
Schaub’s position in Lake County.
When Schaub received the letter, she called Stankowski and
explained that she would not accept the position in Newago
County, since the facility there in White Cloud is 30–35 miles
from her home. Thus, since she was only making $5 an hour,
her salary would be paying for her babysitter and gas, and she
would be working for nothing. Stankowski responded that she
understood and would check to see if there were any other job
openings for Schaub. Sometime in August, Stankowski con-
tacted Schaub and informed her that there were no other job
openings at Respondent that she was qualified to perform.
Mary Trucks testified concerning Respondent’s actions with
respect to Schaub’s position. According to Trucks, the number
of slots allotted to Respondent for the CSFP program, which is
the food service program that paid for all assistant community
workers employed by Respondent, had been reduced from the
funding source from 1920 to 1770 slots. Additionally, there
had been a misunderstanding between Respondent and the
funding source as to how Respondent would be reimbursed.
These problems resulted, according to Trucks, in a decision
by Respondent to revise its initial estimate of the number of
assistant community support workers that it needed. Origi-
nally, Respondent intended to hire one such employee for each
county. However, Respondent only hired three before these
financial problems began to arise, and never hired such an em-
ployee for Mason County. It had hired Schaub in the Lake
County facility in Baldwin, Marietta Smith at the Newago
County facility in White Cloud, and Sterina Crawford at Re-
spondent’s facility in Manistee.
Therefore, Trucks asserts that after discussing the financial
problems caused by the above reduction in slots and the misun-
derstanding concerning reimbursement, with Pomeroy, she
concluded that Respondent could only afford to retain one as-
sistant community worker. At that point after reviewing records
of usage and discussing the matter with Stankowski, Trucks
decided that the one facility that would employ such an em-
ployee would be Newago County. At that facility, there were
many more clients being served, and Respondent had termi-
nated Smith the incumbent in that position as of June 30 for
poor performance. Respondent also eliminated the position of
Crawford at Manistee at the same time that it eliminated
Schaub’s position at Lake County. Further, Respondent de-
cided to offer Sahaub the opportunity to transfer to the vacant
position at White Cloud.
Lori Murphy, Respondent’s community support worker at
the White Cloud facility in Newago County testified that in
June she received a call from Mary Jo Klomp, Stankowski’s
predecessor, as program coordinator. Klomp asked Murphy
whether she would like to leave Schaub as an employee to re-
place Smith, who as noted was fired on June 30. Klomp told
Murphy that Respondent was planning to lay off all of the other
assistants, but were thinking about offering the position at
White Cloud to Schaub. Murphy replied that she had problems
with Schaub coming to work with her and that she needed the
help.
Subsequently, Murphy testified that after Schaub turned the
position down, Respondent advertised to fill the position and
received applications. However, according to Murphy, some-
time in August Stankowski told her that funding for the posi-
tion would not last more than the end of September, and there-
fore Respondent would not be able to fill the position at all.
Respondent also introduced documents from the Department
of Education, and its own records, which supported Trucks’
testimony that Respondent’s slots were reduced from 1920 to
1770, as well as the fact that Newago County served substan-
tially more clients than any of the other counties.
Walters testified that she was informed by Stankowski that
Respondent intended to offer Schaub the option to transfer to
the White Cloud office, because there were more services being
performed in Newago County and there was a greater need for
her at that facility. Walters also testified that TEFAP program
on which Schaub performed some work was eliminated in May.
Furthermore, Walters asserted that the numbers of orders for
food in the food buying program at Lake County, which occu-
pied most of Schaub’s had dropped from 102 in 1990–1991 to
45 by July 1995, with most of the reductions beginning in Oc-
tober 1999, when recipients were required to do some work or
go to school for 20 hours per week.
Walters also admitted, consistent with the testimony of
Trucks that a number of Respondent’s employees drove 25–30
miles to get to work. In that connection in fact, Trucks testi-
fied, without contradiction, that Smith, Schaub’s counterpart at
White Cloud, drove even a longer distance that Schaub would
have to drive, in order for Smith to come to work.
b. Analysis
I conclude that the General Counsel has established a prima
facie case that a motivating factor in Respondent’s decision to
terminate Schaub was based on her protected conduct. Thus,
Schaub on May 31 was unlawfully interrogated by Trucks con-
cerning her activities with respect to the petition, and threat-
ened with discharge for her failure to report the petition to Re-
spondent.
Moreover, in late June, Schaub was given a counter petition
by Trucks and Stankowski supporting the current administra-
tion, which Schaub never signed or circulated, even though she
was instructed by Respondent’s officials to do so. It is reason-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1204
able to conclude, which I do that Schaub’s equivocal response
to the request of Trucks and Stankowski that she “would think
about it,” did not go over well with Trucks. I note in that con-
nection, Trucks’ statement to Walters that Respondent would
consider Walters’ success in obtaining signatures on this peti-
tion as indicative of how Walters was performing her job.
These facts coupled with the previously found discrimination
against other employees because of their activities with regard
to the petition, plus the timing of the termination,36 are suffi-
cient in my view to establish that Schaub’s protected conduct
was a motivating factor in Respondent’s decision to terminate
her.
However, I am also persuaded that Respondent has adduced
sufficiently probative and convincing evidence to establish that
it would have taken the same action against Schaub, absent
such protected conduct. In this instance, I have found the testi-
mony of Trucks to be credible, particularly in view of the cor-
roboration by the testimony of Murphy, documentary evidence
introduced by Respondent, and even to some extent by the ad-
missions of Walters, a witness for the General Counsel. Thus,
this evidence establishes to my satisfaction that Respondent did
in fact experience financial problems with its reimbursement
from the Department of Education for the program that was
used to pay the salary of Schaub as well as other assistant
community workers employed by Respondent.
I conclude that these problems would have resulted in Re-
spondent deciding to eliminate two of these positions (as well
as not have the faculty assistant which it had previously con-
templated), whether or not Schaub engaged in any protected
conduct. Moreover, the decision to select Respondent’s White
Cloud facility, as the one office to retain an assistant is amply
supported by the undisputed evidence of a substantially higher
workload at that facility.
It is significant that the elimination of Schaub’s position ac-
companied by similar action taken with respect to the Manistee
facility, where Schaub’s counterpart at that facility was also
terminated. I note that if Respondent was so intent on dis-
criminating against Schaub, it need not have offered her the
opportunity to transfer to White Cloud.
While the General Counsel argues that Respondent knew or
could reasonably have foreseen that Schaub would not accept
this offer because of her child care situation and the additional
driving distance required, I cannot agree that the evidence sup-
ports such a conclusion. While Respondent may have known
that Schaub was a single mother of two young children, no
evidence was presented that Respondent was aware of what
child care arrangements Schaub had made for these children, or
whether or not the transfer would result in a substantial hard-
ship for Schaub. Indeed the evidence is undisputed that a num-
ber of Respondent’s employees drive similar or longer dis-
tances from their homes to their work locations, including
Smith, the employee whose discharge from White Cloud as an
assistant community support worker, created the vacancy that
Schaub was asked to fill.
Accordingly, based on the foregoing, I conclude that Re-
spondent has met its burden of showing that it would have
taken the same action against Schaub, regardless of her pro-

36 Thus, Schaub was terminated in late July, only a month after
Schaub was requested to sign and circulate the promanagement peti-
tion.
tected conduct, and that its actions in regard to her was not
violative of the Act.
12. The alleged discrimination against David Monton and
Arthur Burkel
a. Facts
David Monton began his employment for Respondent as a
crew laborer in the weatherization department in September
1992. Subsequently, he was promoted to the position of crew
leader. Burkel was hired to fill Monton’s position as laborer on
November 18, 1994.
Monton and Burkel worked in the weatherization department
and performed the actual weatherization work on clients’
homes, and spent about 15 percent of their time performing
general maintenance and yard work at Respondent’s various
facilities.
They were under the overall supervision of the Weatheriza-
tion Director Paula Clark as well as Belongia who was the pre-
inspector-field supervisor. Dale Smith was also employed in
the department as both a pre and postinspector of the homes
that Respondent worked on. Respondent in the past had always
subcontracted a large portion of its jobs to subcontractors, but
had consistently maintained and utilized its own crew of em-
ployees to perform work on some of its jobs.
There had been periods of time in the past, when no weather-
ization director was employed by Respondent, but Respondent
continued to utilize its crew to perform work. In fact no evi-
dence was adduced that Respondent had ever laid off any em-
ployees in the weatherization department.
Both Monton and Burkel signed cards for the Union and at-
tended union meetings, and Monton testified at the representa-
tion hearing on behalf of the Union.
As noted above I have concluded that Respondent discrimi-
natorily discharged Smith on May 4 and Belongia on June 8.
Burkel was out of work from March 15 to May 15 due to
work-related injury, but he voted in the election on April 28. A
few days after he returned to work Burkel testified that
Pomeroy asked Burkel if he had voted in the election and how
he had voted? Burkel responded that he did not think that he
had to tell Pomeroy how he voted. Pomerory allegedly added
that he knew how Burkel had voted, because only two people
voted no and he knew who they were.
Pomeroy denied that he either asked Burkel how he voted or
that he told Burkel that he knew how Burkel and everyone else
had voted.
In mid-July, Monton went out on sick leave due to an injury
that he suffered at home. After Monton left, Burkel worked by
himself to finish up a job that he and Monton were working
prior to Monton’s injury. On one of these days, Pomeroy came
to the job with a ladder and assisted Burkel in completing the
work. For 3 or 4 days Burkel rode around with Ron Knoblack,
who was a subcontractor hired by Respondent to perform in-
spection work.37
On August 3, Pomeroy handed Burkel a letter advising that
Burkel would be laid off due to “lack of work.” The letter ex-
plained that the recent loss of Monton due to his injury would
37 Between the time that Belongia was fired and Monton suffered his
injury, he also rode around with Knobrock seven or eight times, as well
as other subcontractors who were hired to pre and postinspect homes.
Primarily, Monton would assist the contractors in inspections and show
them where the homes were located.
FIVECAP, INC. 1205
mean that Burkel would be working alone, which for safety
reasons would not be acceptable. Additionally, the letter indi-
cates that since Respondent did not know when Monton will
return to work the lay offwill extend until further notice.
On August 16, Monton was released by his doctor to return
to work. He informed Pomeroy of this fact and turned in a
doctors note to Respondent. Pomeroy told Monton to report to
work the next day, August 17. Monton asked Pomeroy if
Burkel was going to be recalled. Pomeroy replied that Respon-
dent would recall Burkel as soon as jobs were preinspected.
Pomeroy also informed Monton that a new weatherization di-
rector was going to be coming in and that Monton would show
the new director around, familiarize him with the files and
show him how the place ran.
On August 17, as Monton pulled into the parking lot to work,
Pomeroy informed Monton that he (Pomeroy) had spoken with
Trucks the prior evening, and decided it would be best that
Monton not return to work until the new director was “up on
his feet” and have the position under control. Pomeroy told
Monton that he was a good worker, Respondent wanted to keep
him, and estimated that he would be recalled in about a week.
However, neither Monton nor Burkel were recalled during
this period of time. Monton testified that he had several other
conversations with Pomeroy over the next few days about when
he was going to be recalled. According to Monton, Pomeroy
told Monton that he was in the process of trying to recall Mon-
ton to one of the vacant inspector’s positions.38 Pomeroy de-
nied ever telling Monton that he was going to or attempting to
recall Monton as an inspector.
Around Labor Day, Monton ran into Pomeroy at the Post Of-
fice in Scottville. Monton asked Pomeroy when he was going
to be recalled? According to Monton, Pomeroy, replied, “[I]f
you could find a better job than Five-Cap you should take it.”
Pomeroy also mentioned, according to Monton, something
about the Union, the petition, and all the picketing that was
happening, and stated that it was all going to blow over.
Pomeroy recalled the conversation, but denied that he men-
tioned anything about the picketing, the Union, or the petition.
Pomeroy asserts that in response to Monton’s inquiry about his
recall, he replied that Respondent was still in the process of
getting a new weatherization director and when the director
gets acclimated to and understands the program, most likely
Monton would be recalled. According to Pomeroy, Monton
then replied, “[T]hey better not wait around, because if I find
another job, I’m going to take it.” It was to this comment of
Monton, that Pomeroy claims that he responded that if he found
a better job, he should take it.
Monton and Burkel testified that they were never recalled by
Respondent, and received no letters from Respondent offering
to recall them.
Pomeroy testified on behalf of Respondent concerning its
reasons for laying off Monton and Burkel, and refusing to hire
Monton as an inspector. According to Pomeroy, Respondent
laid off Monton and Burkel in August because Respondent had
no one to supervise them, inasmuch as it had terminated Smith
and Belongia and had not replaced them, and it also not re-
placed Clark, as the weatherization director, who had quit.
Pomeroy admitted, however, that he had initially told Monton
on August 16 to report to work on August 17, because Respon-

38 Monton had previously filed an application for the position of in-
spector.
dent had made a tentative decision to hire James Mason as
weatherization director, and he (Pomeroy) initially felt that
Respondent would have to recall both Burkel and Monton, and
Pomeroy would assist the new director in supervising the crew.
However, according to Pomeroy during a subsequent discus-
sion with Trucks, he had a change of heart, and told Trucks that
he didn’t believe that he had the time to help supervise the crew
and recommended that the men not be recalled until the new
director gets hired and acclimated to the program.
Pomeroy further testified, confirmed by documents, that Re-
spondent hired Mason as director starting on August 24 but that
Mason resigned on September 5. Subsequently, Respondent
continued to advertise for a director and inspector, and hired
Chad Van Atter as director on September 28, and Chris Copen-
haven as an inspector on October 9.
Despite its hiring of Van Atter and Copenhaven, Respondent
still did not recall Burkel or Monton, because according to
Pomeroy, they had to receive state certification before they
could either pre or postinspect files. Pomeroy further asserts
that it was not until after December 20 when Van Atter or Co-
penhaven were certified to inspect jobs, that work became
available for Burkel and Monton to perform.
Pomeroy adds that he and Trucks decided not to call back
Monton and Burkel until Van Atter and Copenhaven were certi-
fied and performed preinspections. In late December, Respon-
dent still did not call the employees back, Pomeroy testified,
because it needed time to get jobs inspected and ready to go,
and because it wanted to make sure it didn’t lose the contractors
that were performing the work.
In that connection, it is undisputed that Respondent had al-
ways used outside contractors to perform a majority of the
weatherization work on the various homes that it serviced.
Subsequent, to the termination of Belongia and Smith, Respon-
dent utilized outside contractors to perform both the inspection
work as well as the work at the homes, normally performed by
the crew. Pomeroy also testified that another reason for not
calling back Burkel and Monton earlier, was that Respondent
wanted to make sure it would not lose the contractors who were
performing the work, fearing that if Respondent took away
some of the work and assigned it to Monton and Burkel, the
contractors might leave.
Pomeroy also testified that sometime in early January 1996,
Van Atter (the director), contracted mononucleosis and was out
of work from that time through the instant hearing, which
closed on February 8, 1996. Pomeroy contends that in late
January, Respondent decided that it would now call back
Burkel and Monton, since Copenhaven was now employed and
certified as an inspector, and Pomeroy would fill in as director
until Van Atter returns from sick leave.
Thus, according to Pomeroy, Respondent sent letters to
Burkel and Monton dated January 26, 1996, stating that “due to
having trained and certified Weatherization Director and In-
spectors on Staff, this letter is to inform you of your call
backs.” They were requested to report to work on February 5,
1996.39
Pomeroy did not furnish any testimony as to what kind of
work Van Atter and Copenhaven were performing for Respon-
dent between their hiring in September or October and their
39 As noted above, as of the dates of their testimony, January 31,
1996, Burkel and Monton testified that they had not received those
letters.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1206
certification to perform inspection work on December 20, other
than to assert that they did not and could not perform inspec-
tions for Respondent prior to their certification.
However, Respondent’s records appear to contradict
Pomeroy’s testimony in this regard. Thus, these records indi-
cate that in October 1995, Van Atter postinspected one job, in
November, he postinspected six jobs, and preinspected four,
and in December he post inspected six. Copenhaven, according
to these records, preinspected four jobs in November, and five
in December, while postinspecting six and three months respec-
tively in these months.
In January 1996, Copenhaven preinspected 18 jobs and
postinspected 10, while Van Atter preinspected two jobs. All
of the work at these jobs was performed by contractors. Addi-
tionally, the pre and postinspection of these jobs not performed
by Van Atter or Copenhaven was also performed by outside
contractor Ron Knoblock. In that connection, Knoblock per-
formed one preinspection in October, five in November, and
four in December. He performed one postinspection in No-
vember 1995, and eight in January 1996.
Pomeroy also conceded that had Smith and Belongia not
been terminated, Burkel and Monton would not have been laid
off.
With respect to Respondent’s failure to offer Monton one of
the admittedly vacant inspector positions, Pomeroy testified
that that sometime in May he asked Belongia whether Monton
would make a good inspector. According to Pomeroy, Be-
longia told Pomeroy that he did not believe Monton would
make a good inspector because of Monton’s poor writing skills,
including particularly his poor handwriting, and his inability to
spell. In that connection, Respondent submitted an evaluation
of Monton, prepared and submitted by Belongia, dated July 12,
1994.
This document which reflects Monton’s promotion from
crew laborer to crew leader reflects that the promotion was
temporary and probationary, and was dependent on Monton’s
ability to improve in a number of areas, including “better writ-
ing skills.”
Pomeroy testified further that he reported his conversation
with Belongia with regard to Monton’s ability to be an inspec-
tor to Trucks, and they decided not to offer the position to Mon-
ton.
Pomeroy admits, however, that he never spoke to Monton
about his handwriting skills, and that Monton was never de-
moted, although Belongia’s memo indicated that Monton
would be demoted back to laborer, unless he improved in vari-
ous areas, including handwriting skills. It is also noted that
Pomeroy never informed Monton that he was not being selected
for the position because of such problems, although Pomeroy
concedes that he discussed the subject of the inspector’s job
with Monton.
More significantly, in his pretrial affidavit given to the
Board, Pomeroy made no mention of Monton’s poor writing
skills as a reason for Respondent’s failure to select Monton as
an inspector. Finally, in what the General Counsel character-
izes as a position paper submitted by Respondent’s attorney,
Respondent suggests40 that at least one of the reasons why

40 Respondent asserts that the document submitted by the General
Counsel is not a position paper, and was merely a response to the Gen-
eral Counsel’s request for documents. I conclude based on my reading
of the letter, that however it is characterized, the statement made
Monton was not given the position of inspector was because he
had not passed the state certification exam. However, Pomeroy
admitted at the hearing that Monton’s lack of certification had
no bearing on the decision not to offer him the inspector’s job.
b. Credibility resolutions and analysis
To the extent that Pomeroy’s testimony differed from that of
Monton and Burkel in several significant respects, I credit the
accounts given by Monton and Burkel. In addition to compara-
tive demeanor considerations, I rely upon the fact that the
statements attributed to Pomeroy by the employees were simi-
lar to statements which I have already found were made by
Trucks to employees, and the fact that Pomeroy’s testimony
was contradicted in fact by his pretrial affidavit, as well as by
Respondent’s own records. (His testimony that Copenhaven
and Van Atter performed no inspection work for Respondent
until after Respondent was notified of their certification, on or
about December 20.)
Having so found, I therefore conclude that when Pomeroy
asked Burkel if and how he voted in the election,41 Respondent
coercively interrogated Burkel in violation of Section 8(a)(1) of
the Act. Taylor Chair Co., 292 NLRB 658 fn. 2 (1989).
Moreover, when Pomeroy told Burkel that he knew Burkel had
voted, I conclude that Respondent unlawfully created the im-
pression of surveillance of employees’ union activities, in fur-
ther violation of Section 8(a)(1) of the Act. Capitol EMI Mu-
sic, Inc., 311 NLRB 997, 1006 (1993).
Furthermore, I have found also that in September, in re-
sponse to an inquiry from Monton as to when he would be re-
called, Pomeroy told him that if he found another job he should
take it, and mentioned the picketing, the petition, and the Un-
ion, and that he (Pomeroy) expected that it would blow over. I
conclude that these remarks of Pomeroy constitute an implied
threat that he had not been recalled previously and would not be
recalled in the future, because of protected conduct (i.e., the
union activity at Respondent at that time, including the picket-
ing and the petition, calling for the removal of Trucks and
Pomeroy) and in violation of Section 8(a)(1) of the Act. Cf.
Stoody Co., 312 NLRB 1175, 1181 (1993).
With respect to Respondent’s decision to lay off Burkel and
Monton in August, once again a strong prima facie showing has
been made that protected conduct were motivating factors in
such action by Respondent as to both employees.
Thus, both Burkel and Monton were subject to direct unlaw-
ful 8(a)(1) statements by Respondent’s officials, were both
known union supporters,42 and Monton also testified at the
representation hearing on behalf of the Union. Further, when
Monton inquired about recall Pomeroy suggested that he find
and take another job, and while mentioning the picketing, the

therein that Respondent was submitting a document establishing that to
the extent that Monton or Burkel expressed an interest in or applied for
the position as an inspector, neither is properly certified, clearly sug-
gests that at least one reason for Respondent’s decision not to offer the
postion to Monton was due to his lack of certiication.
41 I find that Pomeroy made such inqueries of Burkel, I also rely on
my behalf that it would be logical for Pomeroy to have asked such
questions of Burkel, since Burkel was out on sick leave on the day of
the election.
42 I note in this connection that when Burkel was unlawfully interro-
gated by Pomeroy, he refused to answer Pomeroy’s inquiry, suggesting
that he had something to hide (i.e., he was a union supporter) and
Pomeroy told Burkel that he knew he had voted for the Union.
FIVECAP, INC. 1207
petition, and the Union, stated that he expected that it would
blow over. These remarks of Pomeroy are a significant indica-
tion that the petition, picketing, and the Union were a cause of
Respondent’s decision to lay Monton (and Burkel) off and that
when these activities “blow over,” Monton might be recalled by
Respondent.
The foregoing facts, coupled with the previously found vio-
lations of the Act, establish compelling evidence that protected
conduct was a motivating factor in Respondent’s decision to lay
off Burkel and Monton.
I conclude that Respondent has fallen far short of meeting its
Wright Line burden that it would have laid off these employees,
regardless of such protected conduct.
In this regard, Respondent relies on the testimony of
Pomeroy, which I found to be unconvincing, contradictory, and
which does not withstand scrutiny. Thus, the letter given to
Burkel, announcing layoffs asserts that it was due to “lack of
work.” That statement is clearly incorrect, since it is undis-
puted that there was plenty of work to be performed by the
crew during the entire period of the layoff, but that Respondent
chose to assign it to subcontractors.
The letter further explained consistent with Pomeroy’s testi-
mony that there would be no one to supervise Burkel, since
Monton was out on sick leave. The letter also makes clear that
when Monton returns to work, Burkel would be recalled. How-
ever, when Monton recovered from his injury, and sought to
return to work on August 17, Respondent inexplicably refused
to permit him to return, and therefore did not recall Burkel as
well. I find Pomeroy’s testimony with regard to this decision to
be particularly unconvincing. Thus, when Monton gave
Pomeroy a doctor’s note on August 16 attesting to his ability to
return, Pomeroy unhesitatingly informed him to report the next
day, indicated that Burkel would also be recalled shortly, and
told Monton that he would show around the new director that
Respondent would be hiring.
Notwithstanding this unequivocal action by Pomeroy with
regard to recalling Monton, Pomeroy asserts that he, after
thinking it over, had a sudden change of heart and decided that
he no longer had the time to devote to supervising the weatheri-
zation department, and opted to recommend to Trucks that
Respondent not recall the employees until the new director gets
hired and acclimated to the program. I find Pomeroy’s testi-
mony in this respect not to be credible. Rather, I believe that he
was simply overruled by Trucks in his decision to recall the
men, and that Trucks’ decision to overrule Pomeroy was moti-
vated by protected conduct of employees.
I note in this connection the intense animus that Trucks has
demonstrated not only towards employees because of their
union activities in general, but additionally due to their activi-
ties with regard to the petition, which as I have found above,
Trucks attributed to the Union’s desire to get her fired. It is
significant that during this period of time, there was still picket-
ing being conducted, newspaper articles were appearing pub-
lishing the dispute, and the Union had already filed eight
charges against Respondent, resulting in two complaints being
issued by the Region, alleging unlawful conduct by Respon-
dent. Therefore, I conclude that it was Trucks’ annoyance with
these events that motivated her to overrule Pomeroy and to
refuse to recall Burkel and lay off Monton.
Indeed Respondent had always employed a weatherization
crew in the past, had assigned them maintenance in prior years
when work was slow, and never laid any crew member off
before. Furthermore, although Mason, the new director hired by
Respondent, lasted only a few days, Respondent hired a new
director on September 28 and an inspector on October 9. Yet,
notwithstanding Pomeroy’s testimony that Burkel and Monton
were not recalled because there was no one to supervise them,
Respondent still did not recall the employees although it admit-
tedly had hired Van Atter and Copenhaven, until January 26.
Pomeroy’s attempt to explain this action is even more unbe-
lievable that his prior attempts to justify Respondent’s person-
nel decisions. Pomeroy claimed that Respondent did not recall
Burkel and Monton during this period of time, because Van
Atter and Copenhaven could not inspect jobs until they were
certified by the State, and therefore there would be no jobs
inspected for the crew to work on. This contention does not
withstand scrutiny for two reasons. First of all, Respondent
was using outside contractors to inspect jobs during this entire
record, so clearly the crew could have performed work on these
homes. Pomeroy noting the inconsistency of this problem,
added another reason for Respondent’s action, that it was afraid
it would lose its contractors if it assigned work to the crew. I
find this explanation unpersuasive. Respondent had always
assigned work in the past, both to contractors and to the crew,
and Pomeroy did cite a single instance where Respondent had
“lost” a contractor because it assigned work to its crew.
More significantly, as I have noted above, Respondent’s own
records contradict Pomeroy’s testimony that Copenhaven and
Van Atter did not perform any inspections for Respondent until
they became certified in late December. Thus, these records
show eight jobs were preinspected by these two in November,
and five in December, thus, demonstrating that there were jobs
that could have been worked on by Burkel and Monton, con-
trary to Pomeroy’s testimony. Moreover the records also show
that Van Atter and Copenhaven postinspected 13 jobs from
October through December, which further undermines
Pomeroy’s credibility.
Further, it was not until January 26, 1996, that Respondent
finally sent letters recalling Burkel and Monton. Even then
Pomeroy’s testimony is suspect. Thus, in an attempt to justify
not calling the men back earlier, Pomeroy pointed to the fact
that Van Atter contracted mononucleosis in early January 1996.
However, Van Atter was still out of work as of January 26,
when Respondent sent the letters of recall, which demonstrates
that Van Atter’s illness had no affect on Respondent’s decision
as to when to recall the employees. Rather, I conclude that
Respondent decided to send the letters 3 days before the instant
hearing was opened, in an attempt to lend some credence to its
purported defense that lack of supervision was responsible for
the layoff.
Accordingly, based on the foregoing I conclude that Respon-
dent has not met its burden of establishing that it would have
taken the action against Monton and Burkel absent their pro-
tected conduct.
Furthermore, the record reveals but another reason for con-
cluding that Respondent’s conduct with regard to Monton and
Burkel was violative of the Act. Thus, based on Pomeroy’s
own testimony, Respondent would not have laid off Monton
and Burkel, if Smith and Belongia were still employed by Re-
spondent. Therefore, since I have found, above, that Respon-
dent’s actions in discharging Smith and Belongia were dis-
criminatorily motivated, it follows that layoffs of Monton and
Burkel, having admittedly been caused by the unlawful dis-
charges of Smith and Belongia, are also unlawful. Thus, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1208
protected conduct of Smith and Belongia was a motivating
factor in the decision to lay off Monton and Burkel. Bay Cor-
rugated Container, Inc., 310 NLRB 450, 451 (1993); and Daw-
son Carbide Industries, 273 NLRB 382, 389 (1984), enfd. 782
F.2d 64 (6th Cir. 1986).
Based on the above analysis and authorities, I therefore con-
clude that Respondent laid off and thereafter refused to recall
Burkel and Monton in violation of Section 8(a)(1), (3), and (4)
of the Act.
The complaint also alleges, and the General Counsel con-
tends that Respondent further violated the Act by refusing to
hire or consider Monton for one of the vacant inspector posi-
tions. I find once again a strong facie case has been established
that Monton’s protected conduct was a motivating factor in
Respondent’s actions in this regard.
In addition to the above-described evidence which I have
considered in finding Monton’s layoff unlawfully motivated, I
also rely upon the fact that Pomeroy told Monton in late August
that he was in the process of trying to recall Monton to one of
the vacant inspector positions. I credit Monton’s testimony in
this regard, over Pomeroy’s denial. In addition to my overall
assessment of Pomeroy’s credibility as discussed above, I also
note that Respondent was in great need of an inspector at that
time, since it had a lot of work to perform and a depleted staff.
Thus, I find it logical that Pomeroy would have attempted to
hire Monton for the inspector’s position as Monton testified.
However, I find it reasonable to conclude, which I do that
once again Pomeroy was overruled by Trucks, who ordered
Pomeroy not to offer Monton the inspector’s position based on
his protected activity. Once more, as in the case of Trucks’
rescinding Pomeroy’s prior decision to recall Burkel and Mon-
ton, I note the pendency of the petition, picketing, and numer-
ous unfair labor practice charges at the time, plus the fact that
Trucks viewed the Union as attempting not only to organize her
employees, but also to get her fired.
Once more, I conclude that Respondent has fallen short of
establishing that it would have taken the same action against
Monton, absent his protected conduct. Pomeroy testified in that
regard that Respondent’s decision based on Belongia’s alleged
recommendation to him in May that Monton would not make a
good inspector due to his poor writing skills (handwriting and
spelling). I find this testimony unpersuasive, since whether or
not Belongia made such a recommendation to Pomeroy, clearly
Pomeroy was prepared to ignore it when he told Monton in late
August that he was attempting to get him hired as an inspector.
It is also significant that Pomeroy’s pretrial affidavit makes
no mention of Monton’s poor writing skills as a reason for not
offering him the position and that Pomeroy never mentioned
this problem to Monton. Moreover, a letter from Respondent’s
attorney to the Region suggests that Monton was not given the
position because he had passed the State Certification test,
which was clearly repudiated by Pomeroy’s testimony that the
lack of certification had nothing to do with Monton not being
offered the position.
Accordingly, based on the foregoing, I conclude that Re-
spondent’s decision not to hire Monton as an inspector was
violative of Section 8(a)(1), (3), and (4) of the Act.
13. The alleged discrimination against Melissa Kukla,
Amanda Lange, Karen Sandstedt, and Jane Myers
a. Facts
Melissa Kukla, Amanda Lange, and Karen Sandstedt were
employed by Respondent as teachers in its FiveCAP in Manis-
tee. Jane Myers was employed at Respondent’s Lake County
Center, also in the FiveCAP as a teacher.
The FiveCAP is and has been part of Respondent’s Head
Start program, which has been utilized by Respondent in one or
more counties and one or more forms since late 1970.
Both Head and FiveCAP provide preschool education to eli-
gible recipients. The FiveCAP primarily involved teachers
visiting the homes of the students where they teach the pupils,
as well as meet with their parents or other guardians.
Kukla, Lange, and Sandstedt in performing these functions,
met with students and parents several times a week in their
homes. Myers, in addition to visiting parents and students in
their homes for 3 days a week, taught students in a classroom
twice a week at Respondent’s facility in Lake County.
Kukla was hired by Respondent in 1990, and had worked in
various positions such as teacher’s aide, busdriver, head and
classroom teacher, and home visit teacher. Lange was hired as
a teacher’s aide at Respondent’s Summit facility in the Head
Start program, in January 1994, and in September 1994 ac-
cepted as position as home visit teacher at Manistee. Sandstedt
was hired in August 1994 as a home visit teacher in the Five-
CAP at Manistee. Myers was employed by Respondent since
September 1989 at the Lake County Center, for 3 years as
teacher’s aide and for 2 as home start teacher. Al four teachers
had received very good evaluations from Respondent’s offi-
cials, and all of them had obtained their CDA, a specialized
college degree in preschool education while working for Re-
spondent at its expense.
Prior to Kukla being hired by Respondent as a teacher in
1990, she was interviewed by June Newkirk, Respondent’s
director of Mason County Head Start, and was offered a posi-
tion as Tastee Meals driver, which Kukla declined. A month or
two latter, without having filed another application, Kukla was
called by Carol Brown, another supervisor of Respondent, rein-
terviewed and hired as a teacher. Also in August 1993, after
the program that Kukla was working with at the Luddington
Center was canceled, Mary Trucks offered Kukla a choice of
three different positions, at three different facilities, including a
head teacher job, without Kukla having to fill out an additional
application for any of these jobs.
Additionally, while Kukla was serving as a head teacher at
Respondent’s in the 1993–1994 school year, at the Fountain
facility, Newkirk discussed with Kukla the hiring of a teacher’s
aide, who had not previously filled out an application for em-
ployment.
Further, when Sandstedt was first hired by Respondent, she
submitted an application for a teacher’s position several months
prior to August 1994. At that time, she interviewed with
Trucks for a teacher’s position. She was not offered a job at
that time, because Trucks would not allow her to take time off
to go on a trip to Paris, as she requested, before starting the job.
In July, without having submitted another application she
was called by Patty Murphy and asked to come in for an inter-
view. She was interviewed by Newkirk, Murphy, and another
representative of Respondent, and was asked to and did fill out
another application dated July 25, 1994. She was offered and
FIVECAP, INC. 1209
accepted a position as a home start teacher. She was told dur-
ing that interview or the previous one with Trucks, that Re-
spondent’s practice was to keep applications and resumes on
file for a year.
Kukla, Lange, Sandstedt, and Myers were all outspoken ad-
vocates and supporters of the Union who attending union meet-
ings and encouraged other employees to support the Union.
Kukla, Lange, and Sandstedt spoke in favor of the Union at
work in the presence of Sandra Rotzein, an admitted supervisor
of Respondent. Rotzein also attended one union meeting in
January along with Kukla, Lange, and Sandstedt. Kukla and
Lange were both subpoened by the Union to testify at the repre-
sentation hearing. Kukla testified at the hearing, while Land
did not. However, Lange did attend all 3 days of the hearing
and openly assisted the Union’s counsel by passing notes to
him and whispering suggestions to the union business agent.
On June 21 the Union notified Respondent that the Union’s
bargaining committee will consist of seven individuals, includ-
ing Jane Myers. During the course of the union campaign,
Respondent hired a David Parmentier as a consultant, who
instructed Respondent’s supervisors in what they can and can-
not say to employees, and how to dissuade employees from
supporting the Union. During the course of and of these meet-
ings, in the presence of White, Parmentier asked a number of
Respondent’s supervisors how the employees under their su-
pervisors felt about the Union. When it came to the Lake
County facility, head teacher and supervisor of the FiveCAP
Diane Smolinski furnished her opinions as to the union views
of employees at that facility. When it came to Jane Myers,
Smolinski told Parmentier that she didn’t know Myers’ opinion
of the Union, but added that Myers had referred to the fact that
her husband was a member of the Teamster’s Union.43 Par-
mentier replied, “[O]h, her husband’s a teamster,” and made a
notation to Myers’ name on a sheet of paper.
Additionally, as noted above, I have found that Respondent
violated Section 8(a)(1) when Rotzein told Lange that employ-
ees had better watch out who they tell that they are in support
of the Union, because if it gets back to the office, “there might
be trouble.” I have also found above that when Lange informed
Trucks that she had been subpoened to testify by the Union at
the representation hearing, Trucks replied that Lange must have
signed a card and was a supporter of the Union if she was being
subpoenaed by the Union. While the General Counsel does not
allege, and I have not found that this remark of Trucks was
violative of the Act, I do conclude that it is indicative of
Trucks’ animus towards the union activities of Respondent’s
employees, as well as further evidence that Trucks believed that
Lange was a supporter of the Union.
Respondent’s normal practice was to temporarily lay off its
teachers at the end of the school year in May, and recall them in
August when the new school year begins. However, although
Kukla, Lange, Sandstedt, and Myers were laid off in May 1995
as per normal, they did not receive a letter of recall in August
1995. Moreover, although other employees were recalled, Re-
spondent failed to notify any of these employees that their posi-
tions had been eliminated or that they were not going to be
recalled for the new school year.
When the employees learned in mid-August that other teach-
ers had received call-back letters, they each called Respon-

43 In fact Myers’ husband has been a member of Local 406, I.B.T.
for 20 years.
dent’s Scottville office and spoke to White to find out if they
were going to be recalled. Melissa Kukla spoke to White on or
about August 11. White informed her that her position had
been eliminated and that she was not to report to work. Kukla
asked White if there were any other positions in the agency that
were available or open. White replied that the only open posi-
tion was a teaching position at Summit in the at risk program
that required a ZA endorsement, which position Kukla was not
qualified for, and she did not have this endorsement.
At around the same time, Sandstedt also spoke to White.
Sandstedt asked about reporting to work. White informed
Sandstedt that Respondent had moved the FiveCAP to another
center, and that she was not going to be called back. Sandstedt
asked if there were any other positions available for teachers or
teacher’s aide. White replied that Sandstedt could apply for a
head teacher’s position at either Summit or Lake, or a teacher
position in Summit, which required a ZA endorsement, which
Sandstedt did not have. White also mentioned that there was a
busdriver’s position open, but made no mention of any
teacher’s aide positions.
On or about August 12 or 13 Lange called White on several
occasions, but was unable to reach her. Finally, Lange went to
the Scottville and spoke to White personally. Lange asked if
she was going to be called back? White replied that her posi-
tion had been terminated. Lange asked about any other posi-
tions that she was qualified for? White responded that there
were no open positions at her center. Lange inquired about
positions in other centers. White answered that Respondent
hired employees, “center by center.”
Myers spoke to White on or about August 11, as well.
Myers told White that she had heard that Respondent was phas-
ing out the FiveCAP at Lake County, and asked if she was be-
ing called back? White responded that yes Respondent was
trying something new at Lake, and Myers was not one of the
employees being called back. Myers then asked to be consid-
ered for any position that became available that she was quali-
fied for, especially in Lake County, but not exclusively in Lake
County. White responded that Respondent had a head teacher
and busdriver position open. Myers, who was not interested in
either of these positions, made no reply. During these various
conversations with these employees in which she discussed
with them the subject of other positions being available for
them, White at no time informed any of them that they would
be required to fill out a new job application if they were inter-
ested in any such position that might become available.
In fact, Respondent subsequently advertised for and filled a
number of positions at various facilities without either inter-
viewing or considering any of these four employees for these
jobs. In addition to their conversations with White about being
considered for other openings, the employees made several
other attempts to apply for various positions with Respondent.
Indeed, Lange sent a note to Trucks dated June 5, after the sum-
mer layoff, but before she even knew that she would not be
called back, indicating to Trucks that she enjoyed her job as a
classroom teacher, and was interested in any openings that
Respondent might have. Lange saw an ad in the paper in mid-
August, advertising for a teacher and a head teacher. The ap-
plication deadline for the ad was August 21.
On August 23 Lange spoke by phone with April Foley.
Foley explained to Lange that she (Foley) had just been pro-
moted to head teacher at Summit, and that made Foley’s previ-
ous position as a teacher available. Foley told Lange that she
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1210
would like to have Lange working with her in the center, and
that she could not understand why Lange had not been offered
the position. Foley added that Summit was right in Lange’s
area and she would love to have her.44 Accordingly, the very
next day, Lange submitted another application to the Scottville
office, applying specifically for the teaching position at Sum-
mit. Subsequently during the next several weeks, Lange had
several conversations with Foley about the position, and Foley
informed her that it had still not been filled. That teaching
position at Summit was eventually filled on September 11 by
an individual named Robin Wright who had never worked for
Respondent, had no previous experience as a teacher, and who
did not even have a CDA certificate that Lange, as well as all
the other three employees had already obtained, at Respon-
dent’s expense. Lange also saw a number of other subsequent
ads for jobs at Respondent throughout the fall of 1995 and in
January 1996. However, Lange did not file any applications for
these positions, or make any inquiry of Respondent concerning
these jobs.
Sometime in mid-August, Sandstedt heard that there was a
position available at Respondent’s Fountain Center. She went
to the Fountain and spoke with Rotzein about it. Rotzein, who
had previously been Sandstedt’s supervisor and head teacher at
Manistee, had been transferred to Fountain in the same posi-
tion. Sandstedt asked Rotzein about the availability of the
teacher’s aide position. Rotzein replied there was a position
available and “as a matter of fact, I’ve called Melba twice and
requested you for that aide’s position.” Rotzein added that
White had told Rotzein she needed to talk to Trucks about it
and then would get back to Rotzein. Sandstedt immediately
went to Respondent’s Scottville office, and filled out an appli-
cation dated August 22 applying for a job as teacher or
teacher’s aide. Neither Sandstedt nor any of the other three
teachers were either interviewed for or were offered this posi-
tion. It was filled by a Charlotte Helgemo on September 1,
who had not previously worked for Respondent, and who had
no previous experience as a teacher’s aide or in any classroom
setting.
Kukla also noticed advertisements in the newspaper for posi-
tions at Respondent. Accordingly, on August 18, she submitted
a written application to Teresa Lumbard, White’s secretary
applying for the teacher and teacher’s aid positions mentioned
in the newspaper. She also was not interviewed for nor re-
ceived an offer for any subsequent position.
Myers also noticed ads in the paper for positions at Respon-
dent and specifically heard about an opening at Fountain for an
aide position. In late August, she called and found out that the
position was still vacant. Therefore, she immediately wrote a
letter applying for this position. Myers hand delivered the letter
personally to Melba White and told White that she was inter-
ested in the aide position at Fountain. White accepted the letter
and said all right. Myers said thank you and left. White did not
tell her whether the position had been filled, or that if she had
applied for the position after the application date had expired.
Myers was also neither interviewed for nor offered the aide
position at Fountain, which as noted above, was given to a new
employee, Charlotte Helgemo.
In October, Myers heard about an opening as a teacher’s aide
at the Lake County facility, as well as seeing an advertisement

44 Foley had previously worked with Lange, when Foley was a
teacher and Lange a teacher’s aide.
for this position in the paper. Therefore, she sent a letter to
Respondent, dated October 16, requesting to be considered for
this position. By letter dated October 19 from White, Myers
was informed that the position for which she applied had been
filled, and thanked her for her interest. The letter also stated
that according to Respondent’s personnel policies and proce-
dures, Myers’ application will remain on file for 1 year. In late
December, Myers heard that Tracy Battle who was a teacher at
the Respondent’s Lake County facility had resigned. Accord-
ingly, she sent a letter to Respondent requesting consideration
for that position which was received by Respondent on January
2, 1996. Myers was neither interviewed for nor offered this
position by Respondent.
The record also revealed that Respondent hired several other
new employees subsequent to its failing to call back Lange,
Sandstedt, Myers, and Kukla. They included Ginger Johnson
who was hired as a teacher, teacher’s aide at Manistee, Amy
Allen hired as a busdriver and Bitely, and then transferred to a
position as driver/aide. Marla Nicholson, hired as an aide at
Summit and L. Koviak, starting December 28, hired as an aide
at Fountain. Once again neither Kukla, Sandstedt, Myers, nor
Lange were ever interviewed for any of these positions.
Mary Trucks testified extensively on behalf of Respondent,
supported in part by several other witnesses, concerning the
issue of Respondent’s reasons for eliminating the positions of
Kuala, Lane, Sandstedt, and Myers. The grant process for the
Head Start program (which includes Home Start) begins with
meetings in early April of each year attended by board mem-
bers, policy council members, staff, and parents. Based on
these meetings, Respondent’s staff prepares a document, high-
lighting what changes, if any are being recommended and
Trucks presents the entire package to the policy council and the
board of directors sometime in July. After this document is
approved it is sent to Chicago for final approval by funding
source.
According to Trucks, this process was followed as per usual
in 1995, resulting in a recommendation approved by the policy
council and board in July, which called for a change in program
design. This change encompassed the elimination of the Five-
CAP in Manistee and Lake Counties, as well as the Mason
County mobile unit, and to utilize a “center based” program at
all facilities of Respondent, with one exception. The exception
was the Bitely Center, where Respondent has a FiveCAP.
Trucks asserts that the reasons for Respondent’s decision
were that Michigan had changed its Welfare law in 1994 to
require recipients to work outside the home in order to receive
welfare, and that she was aware that Michigan’s governor was
proposing an even stricter welfare bill, which would make it
even difficult for parents to be at home. Since an essential
requirement of the FiveCAP is to have parents in the home and
be part of the program, these welfare changes in Respondent’s
view had already adversely affected enrollment in the program,
and would be even more likely to do so in the future. Thus,
Trucks claims that she concluded, “[H]ome based was dead”
and “center based” was the only way that Respondent could
serve and meet the needs of parents.
Trucks also explained why Respondent chose to institute a
FiveCAP in Bitely, where that facility had previously operated
a center-based program. According to Trucks, Bitely had been
turning away students because the facility was too small, and
Respondent sought to provide more services to this facility.
Trucks further testified that Respondent did not have a large
FIVECAP, INC. 1211
enough facility to expand the center-based program at Bitely,
so it decided to try the FiveCAP there for 1 year, with the intent
ending the program in a year when a new facility will be avail-
able which is large enough to accommodate more students.
Respondent also introduced documents which purported to
demonstrate the drop in enrollment at its facilities, which
Trucks attributed to the new welfare rules. These documents
reflected enrollment figures for Respondent’s facilities the
months of March, April, and May 1995. During each of these
months these records show that the Manistee Home program
had an enrollment of 25 in a program which called for 35 slots.
The Lake FiveCAP had 17 enrollees for 19 slots in March and
April, and 14 in May. Respondent introduced no similar re-
cords from prior years.
Trucks’ testimony received some support from the testimony
of Jan Bailey, chair of the board of directors, who confirmed
that the governor’s new welfare program which impacted ad-
versely on parent participation in home start was discussed at
board meetings as the reason for Respondent’s decision to
eliminate the program at Manistee and Lake County. Bailey
was vague and uncertain in her testimony as to whether there
was such discussions prior to the July meeting when the deci-
sion was approved. Bailey was certain, however, that the prob-
lems involving new welfare rules impacting upon past and fu-
ture enrollment was discussed at several such meetings.
Trucks’s testimony also received corroboration and support
from Sandra Rotzein, who had been head teacher at the Manis-
tee Center for 5 years, until she was transferred to the Fountain
Center in the same position for the 1995–1996 school year.
According to Rotzein, at her facility she notices a significant
drop in enrollment for the FiveCAP in 1994–1995, which she
attributed to the work requirements of the Work First program.
Conversely, Rotzein asserts that Respondent had never had any
difficulty in maintaining full enrollment in the center-based
programs. She added in this connection that she had conversa-
tions with some parents, who told her that the work requirement
was impacting on their ability to keep their children in Home
Start.
Rotzein also conceded on cross-examination that a number
of parents were very happy with the FiveCAP and had ex-
pressed to her that they liked the individual attention that their
children received, and that they were happy with the home visit
teachers themselves.
Rotzein also denied that Respondent maintained a waiting,
but admitted that it did maintain a list of potential students for
the next year called preenrollment. According to Rotzein, that
figure was way down for the 1995–1996 year, and that some
parents told her that they had to drop out of the FiveCAP, be-
cause they had to work. She could recall, however, the name of
only one parent who so informed her. The parent was named
Woodcock, and Rotzein believed that the conversation took
place in October 1994, when Woodcock pulled her child out of
the FiveCAP, and told Rotzein that the parent was going to
leave the area in order to get work. Rotzein also testified that
she did not recall ever telling Trucks about these conversations
with parents detailing problems with working vis-a-vis the
home visit program, but did recall the subject coming up during
head teachers’ meetings with Trucks that she attended.
Rotzein also testified at the end of the 1994–1995 school
year preenrollment was way down at the facility. According to
Rotzein, however, the pre-enrollment applications do not reflect
which program the applicant would be placed in, since that
decision is not made until the fall. Thus, according to Rotzein,
Respondent considered full enrollment to be 35 for the Five-
CAP, and 20 for the center based for a total of 55. Rotzein
recalled that at the end of the 1994–1995 school year, the pre-
enrollment applications totalled around 14, which was low as
compared to prior years. However, Rotzein conceded that this
was a combination for both programs, and was not broken
down into home or center-based applicants. Finally, Rotzein
also conceded that when a parent was unavailable, the Home
Start teachers frequently would make efforts to reschedule the
appointments.
Diane Smolinski, a former head teacher of Respondent at the
Lake County facility, testified that at her center, the new wel-
fare rules did not cause any enrollment problems, other than to
affect the number of volunteers that Respondent was able to
obtain. According to Smolinski, while the new welfare rules
did cause some parents to be unavailable during the day, the
teachers would arrange to make their home visits at different
times so as to accommodate the parents availability. This tes-
timony was corroborated by Myers, Lange, and Kukla who
each testified that the new welfare rules caused little or no
problems with enrollment since the teachers would simply rear-
range their schedules to accommodate the parent.
The employees corroborated by Smolinski testified that there
were no significant enrollment problems at their facilities, that
normally enrollment drops at the end of the year, but picks up
again when the new year starts. Further, they assert that en-
rollment prospects were particularly good for the 1995 school
year, because of a number of siblings of current students had
expressed an interest in signing up for the program. Moreover,
Smolinski testified as did the employees, that both facilities
maintained a waiting list, and that they expected close to or full
enrollment at the Manistee and Lake County facilities in the
FiveCAP.
Furthermore, Smolinski was never given any indication by
any official of management that there was any problem with
enrollment at her facility or that Respondent intended to elimi-
nate the FiveCAP.
Additionally, all of the four teachers assert, corroborated by
Smolinski, that the parents served by the program were very
pleased to participate in it and had only expressed praise to
them about the program. In this connection, in their pretrial
affidavits both White and Trucks stated that parents had com-
plained about the FiveCAP in questionnaires that had been
distributed to them by Respondent, and that Respondent relied
on these complaints in making its decision to eliminate the
program. Indeed according to White’s affidavit, Respondent’s
decision was based on these surveys of what parents would like
to see in the program for next year. She further asserted that
the surveys demonstrated that teachers were often unable to
meet with parents in the homes because parents had to work
under Social Service requirements.
However, an examination of these surveys, which were in-
troduced by the General Counsel tend to corroborate the testi-
mony of the employees and Smolinski, vis-a-vis Trucks’ testi-
mony and the affidavits of both Trucks and White. Thus, the
surveys contained overwhelming positive assessments of the
Home Start program by the parents, including praise for the
teachers as well as the one-on-one aspect of the program. More
importantly, none of the surveys contained any references to
any problems that any parents had with being unable to meet
with teachers for any reason, much less because of any prob-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1212
lems with Welfare or Social Service rules. Indeed, some sur-
veys specifically referred to the “flexibility” of the program as
one of the positive comments about the home visits by the
teachers.
As noted above, Trucks testified the decision to eliminate the
Mobile Teaching Unit at Mason County, made at the same time
as its decision to eliminate the Home Start program, was made
for the same reasons, i.e., the enrollment problems caused by
the new welfare rules. However, Trucks’ testimony in this
regard is contradicted by the testimony of White, as well as
Respondent’s policy personnel committee minutes, dated Au-
gust 1. These minutes indicate as did White’s testimony that
the reason that the mobile unit was eliminated for the 1995–
1996 program year was “due continuous breakdowns and the
finances needed for extended repairs and up keep.” Once the
new program design was approved, which as noted provided
for elimination of the FiveCAP as well as the Mobile Unit, that
eliminated a total of seven positions. The positions of Lang,
Sandstedt, Myers, and Kukla, as well as that of Sondra McKay
who was also Home Start teacher with Myers at Lake County,
and two employees who worked on the Mobil Unit program,
Lorraine Avery and Lisa Vega were eliminated.
Once that decision was made, Respondent had to decide how
to staff its facilities for the school year. Melba White furnished
testimony as to this issue, along with charts of each facility, and
how and why Respondent allegedly filled any vacancies that it
had in each center.
At the Manistee facility, Rotzein who had been head teacher
at that facility, transferred to Fountain at the same position.
That left an opening in the head teacher’s position at Manistee,
which was filled by Patty Peabody, who had been a center-
based teacher at that center the previous year. According to
White, Peabody was selected over Lange, Sandstedt, and Myers
because these three employees had never been a head teacher
before. While Kukla had previously served as a head teacher,
White asserts that Kukla had not indicated to White that she
was interested in a head teacher’s position. Respondent also
notes that Peabody had more seniority than Lange. Peabody
began her employment with Respondent on March 7, 1994, as a
head teacher in the Head Start Program, while Lange began her
employment on September 1, 1994.45
That action left an opening in the teacher’s position, vacated
by Peabody. That job was given to Carol Brown, who last year
was the head teacher at Summit. Brown had informed Respon-
dent that she no longer wished to be a head teacher, and re-
quested a teacher’s job. Since Brown had been with the agency
since 1983, she was given the teacher’s position at Manistee,
according to White.
Subsequently, Brown was transferred to a head teacher’s po-
sition at Lake County, when Smolinski resigned. The opening
created by Brown’s departure was filled by Lorraine Avery on
September 21. Avery had previously been employed as the
head teacher in the Mobile Unit. White testified that Avery
was selected rather than Kukla, Lang, Myers, or Sandstedt for
this position because she had more seniority than any of them,
and because Respondent had received a timely job application
from Avery, which was in response to an ad placed in the paper
by Respondent with a deadline of August 21.

45 It is noted, however, that Kukla and Myers both had substantially
more seniority than Peabody.
This testimony was supported by documents which establish
that Avery began her employment with Respondent in 1987,
and her job application filed on August 4.
On cross-examination, White was confronted with the min-
utes of the policy council personnel meeting, dated August 1,
which approved all Respondent’s personnel decisions that had
been recommended by Trucks and White. In that document,
the motion passed for Avery after reflecting that the Mobile
Unit was not going to be in operation, reflects that Avery is
“not recommended to be called back, but with option to reapply
for other positions.
Significantly, the motion passed with respect to Sandstedt,
Kukla, and Lange was simply that their positions as home visi-
tor were eliminated, due to program design. There was no
statement, as with Avery (as well as Lisa Vega, the other
teacher in the Mobile Unit ), that they had an option to reapply
for other positions. When asked about that omission, White
testified that it was just an “oversight.” Interestingly, for Jane
Myers, the motion passed was for her to be called back “subject
to opening,” which was the same motion that was passed for
Sonia Mackay, the other home start teacher at Lake. White
conceded that based on the above, her recommendation with
respect to Avery was less than her recommendation with re-
spect to Myers. When asked why she selected Avery over
Myers, White repeated that Avery had submitted an application
when the agency became available, and that Myers had not
done so. White admitted, however, that Myers had in fact,
indicated to Respondent her interest in another position, but
claims that Myers did not do so at the time the opening was
filled.
At the end of prior year, Respondent employed Carol An-
cisco andE. Skredonis as aides, and Ruth Pratt as a bus-
driver/side. At the start of the 1995–1996 year, Respondent
had planned on calling back these same employees in their
same positions so as not to disrupt the program. However,
Ansico had a medical problem at the beginning of the year and
could not work. Therefore, Respondent transferred Pratt from
her busdriver/aide position to teacher’s aide. Pratt shortly
thereafter decided that she no longer wanted that position and
went back to her driver/aide job.
Therefore to fill the teacher/aide position, Respondent placed
an ad and hired Ginger Johnson who had never worked for
Respondent before. According to White, she did not hire
Kukla, Lange, or Sandstedt for the aide position because John-
son had submitted an application or a resume before the dead-
line, while she did hear from the other three about this posi-
tion.46
Shortly thereafter, Johnson quit, and Ancisco returned from
sick leave and filled the teacher/aide position at Manistee. Pratt
then became a full-time busdriver.
At the Lake County facility, Smolinski, the previous head
teacher, resigned on August 4. At the start of the school year,
Respondent’s Education Coordinator Leann Hunt filled in for 2
to 3 weeks, until Respondent persuaded Carol Brown to tempo-
rarily fill the head teacher’s position.
Tracy Battle and Barbara Lewis, who were employed in the
prior year as head start center-based teachers were called back
in their same jobs.
46 Johnson’s resumne was received by Respondent on August 17.
Her job application was submitted on September 8 on the day of her
interview.
FIVECAP, INC. 1213
Myers and McKay who were the home start teachers there
were not called back since their positions were eliminated.
Tracy Battle resigned on January 5, 1996, as a teacher. Re-
spondent filled that position on a temporary basis, according to
White with Lisa Vega. Vega had been employed by Respon-
dent in various capacities since 1991. Her last position was a
teacher with the Mobile Unit starting in August 1994, which
position was eliminated at the end of the school year in May
1995. Her personnel file indicates that on September 9, 1994,
Vega received a letter from Avery, her head teacher and imme-
diate supervisor, criticizing Vega for excessive absenteeism
(missing 24 percent of work time since she began as a teacher
in the Mobile Unit, as well as 13 percent of the time from the
prior year), as well as an inability to and unwillingness to per-
form recruitment work, and continuously talking about personal
problems at work. Thus, Avery states that since Vega is unable
to give the required attention to the job, she is recommending
that Vega be placed on leave for the remainder of the program
year, effective September 12, 1994, so that she can resolve her
personal problems. The record does not reflect what happened
to Avery’s recommendation, or whether Vega was, in fact,
placed on leave for any period of time as Avery had suggested.
In any event, the record does reflect that she was separated
by Respondent on May 24 for the summer. On August 4 Vega
filed an application with Respondent for teacher, teacher assis-
tant, or home visitor positions. According to White, after the
start of the school year, she had been informed that Bruce Kent
was having difficulty volunteering to act as a busdriver aide on
his route. Additionally, a number of busdrivers had also been
calling in sick. Therefore, White asserts that Respondent hired
Vega as busdriver aide and a substitute busdriver in October,
where she served until January 1996 when Battle resigned.
At that time, Respondent promoted Vega to Battle’s position
as a teacher, but only on a temporary basis until a final decision
is made. White testified that Vega wrote her a memo request-
ing the position. White also claims that Vega is also filling in
as a busdriver, while performing the job as a teacher. As of the
date of the hearing, White asserts that this job had not been
filled on a permanent basis, and that, in fact, no interviews had
been conducted to fill this job.
Respondent employed four teacher aides the prior year. One
of them, P. Forrest, was not called back for the new year. Re-
spondent did not fill her position, and decided to operate with
only three teacher aides and called back King, Candry, and
Jennette, each of whom had worked in this position for the
prior year.
At the Bitely Center, Lou Ann McCracken had been the head
teacher at that facility, and was allowed to remain as head
teacher for the new year. Respondent since it decided to
change its program design to a home visitor program, according
to White, concluded that it would be best to have two cohead
teachers, and no regular teacher. White asserts that the pro-
gram consists of a Monday–Tuesday class in the center, taught
by McCracken and a Wednesday–Thursday class, taught by the
other cohead teacher, Sonya McKay. Both of them also make
home visits to the students.
According to McCracken, the reason why two cohead teach-
ers are required, rather than a teacher and a head teacher, is that
it is necessary to have a teacher with a CDA certificate on the
premises at all times. Therefore, since McCracken as part of
the home start program must be out visiting homes, every other
week, she claims that two cohead teachers are required. How-
ever, the record reveals that most of Respondent’s teachers,
including all four discriminatees had a C/D/A, and according to
White no other special qualification is required for a head
teacher position. White when asked why it was decided to have
two cohead teachers, replied only that Respondent concluded
that “we could better serve the parents.”
As far as selecting McKay for the other cohead teacher posi-
tion, McKay was as noted of the two teachers at Lake in the
Home Start program, whose position was eliminated. White
testified that McKay was given the position because she had
more seniority than any of the other four,47 that she was famil-
iar with both home visit and center based, and that the other
four employees had not expressed an interest in a head
teacher’s position.
However, McKay did not fill out a new application for the
head teacher position, and significantly White did not testify
that McKay had expressed any interest in the job before it was
offered to her. Moreover, McCracken testified that when White
told her about the change in program at Bitely, and that there
would be two cohead teachers, White did not inform her who
the other cohead teacher would be, because White had not spo-
ken to McKay as yet to see if McKay would accept the posi-
tion.
Sherri Fox was the only teacher’s aide employed at Bitely, at
the end of last year, and she was recalled to her previous posi-
tion at the start of the year. In late September or early October,
Fox was replaced by Amy Allen. Allen had been hired on Sep-
tember 1 as a busdriver, and according to White McCracken
(the cohead teacher), requested that White, rather than hire a
new teacher’s aide, allow Allen to function as a busdriver/aide
performing both jobs. White added that none of the four dis-
criminatees had ever expressed any interest in filling a position
that involved busdriving.
At Respondent’s Summit facility, Carol Brown who had
been the head teacher at that center, as noted was transferred to
the same position at Manistee. The opening for her position
was filled by April Foley, who was one of the two head start
teachers employed at Summit the previous year. According to
White, Foley was selected for this position, because she had
been employed at that center and had expressed an interest in
becoming head teacher.
In addition to Foley, Respondent had also employed Diane
Rohrer as a head start teacher in the prior school year, and
Brown in addition to her head teacher responsibilities in head
start was also a head teacher in the MSRP program, with D.
Sloan as a teacher in the MSRP program. In the 1995–1996
school year, Respondent decided that it would operate with
separate head teacher and a teacher in the MSRP program, and
reduce its head start teacher complement from two to one.
Thus, in that connection it hired Linda Dresing and Cath-
erine Hebbing-Smith as head teacher and teacher, respectively
in the MSRP program. The testimony of White which is not
disputed establishes that the MSRP positions required a Michi-
gan Teaching Certificate. The evidence also establishes that
both Dresing and Hebbing-Smith had such a certificate, while
Myers, Sandstedt, Kukla, and Lange did not.
For the one opening as a teacher at Summit, Respondent
hired Robin Wright, who was a new employee without any
previous teaching experience, and who did not have a CDA as
did all four of the discriminatees. White explained that Wright

47 She began her employment for Respondent in 1988.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1214
was selected because she, unlike the four former employees,
submitted a timely application and resume prior to the August
21 newspaper advertisement deadline. White’s testimony in
this regard as supported in part by the resume of Wright which
was date stamped as received by Respondent on August 17.
However, Wright’s job application was dated August 30, and
reflects that she was interviewed by three of Respondent’s rep-
resentatives on that date. The comments therein were friendly,
cooperative, willing to learn, positive attitude, and would rec-
ommend as CDA candidate.
As noted, Wright was interviewed on August 30, the same
day that she filled out the job application for Respondent. The
interview schedule for Respondent for August 30 contained six
names, including that of Wright. One of the names was Kristin
Maye, scheduled for interview for the job as teacher in Summit,
and Respondent’s records indicate that Maye canceled her
scheduled interview. White admitted that she did not call in
anyone else to fill that slot in the interview schedule. White
also admits that Respondent had received an application from
Lang for that position on August 22, prior to the interviews
being conducted, and prior to the job being filled. White con-
tends that she did not interview Lange for the job, because she
did not see the job application that Lange submitted at the time,
since it had come in after the deadline.
At the Summit facility, aides Lebrun and Jolly were retained
form 1994–1995 to 1995–1996 because they were returning to
their prior year positions, according to White. White also as-
serts then when Labrun left, the position was filled by Marla
Nickelson. Nickelson had been recommended by April Foley
the head teacher at the facility. Nickelson filed a job applica-
tion on November 15, was interviewed on November 27 along
with two other candidates for this position, Barbara Hector48
and Robin Vanas.
White further testified that Nickelson was also one of the
head start parents, which is why she believed that Nickelson
had applied for the position. Finally White also testified that
she did not consider Lange, Kukla, Myers, or Sandstedt for this
position, because she had not heard that any of them were in-
terested in this position at the time of the vacancy. In fact
White also testified that from what she recalls, “[A]t the time
the position came open I hadn’t heard from anyone but her.”
(Meaning Nickelson.)
At Respondent’s Fountain facility, as noted Charlotte Hel-
gemo was hired as an aide at the start of the school year. Ac-
cording to White, she was selected over Lange, Sandstedt,
Myers, and Kukla, because Helgemo’s resume had been sub-
mitted prior to the August 21 deadline, for the position in the
newspaper advertisement. In fact, her resume had been submit-
ted on August 15.
Later on in the school year, Respondent hired another aide at
Fountain, Lou Koviak. According to White, Koviak was hired
on the recommendation of Sandra Rotzein the head teacher,
who had allegedly spoken to Koviak, and sent her to White.
Rotzein testified on behalf of Respondent. She corroborated
White that she had, in fact, recommended Koviak for the aide
position, but that Koviak had to fill out a job application, just
like everyone else.
Rotzein also corroborated, in part, the testimony of Sandstedt
that they had spoken about the opening for the aide position,

48 Hector had answered an advertisement of Respondent on October
11.
filled by Helgemo. Rotzein confirmed that Sandstedt had ex-
pressed her interest in the position and that she (Rotzein) had
transmitted that request to White. According to Rotzein, White
informed her that she would “look into it,” referring to
Sandstedt’s request to be considered for the open aid position.
White did not tell Rotzein that Sandstedt needed to fill an ap-
plication for the position.
White did not testify as to why she did not consider the four
discriminatees for the second open aide position filled by
Koviak, or explain why she did not at least consider Sandstedt
who had admittedly filed an application for the first opening for
an aide position on August 22.
In response to questions from me, White asserted that for
most job openings, she conducted interviews, but some jobs
were filled without an interview. Additionally, White testified
that she would discuss each and every recommendation that she
made for hire with Trucks, after completion of the interview
process. According to White, with respect to Lange, Sandstedt,
Myers, and Kukla, when Respondent filled any of the openings
described above, she was not aware that any of the four had
expressed any interest or that they were still interested in any of
the positions available at the time of the selection. White con-
cedes that Respondent may have been in possession of applica-
tions or other written expressions of interest from these indi-
viduals, but she asserts that she either did not know about or
had forgotten about these documents. White further testified
that when she discussed these various jobs with Trucks, before
the decision was made, the names of none of the four individu-
als came up and they were not discussed or considered for these
positions. When asked specifically about the selection of new
employee Marla Nicelson as an aide in Fountain, White
claimed that if she did not believe that everyone else was inter-
viewed for the position, and that she did not even “think about”
out the four individuals at the time this job was filled.
In this connection, I note that charges were filed by the Un-
ion alleging that Respondent discriminated against Lange,
Sandstedt, Myers, and Kukla on August 18 and October 10 and
11, the Region issued a complaint alleging in part that Respon-
dent discriminated against these four individuals by refusing to
recall them and by refusing to hire or consider them for other
vacancies.
b. Analysis
Kukla, Lange, Sandstedt, and Myers were all outspoken sup-
porters of the Union, which was well known to Respondent at
the time of their separation from Respondent’s employment.
Thus, Kukla, Sandstedt, and Lange spoke in favor of the Union,
and attended union meetings in presence of their supervisor,
Sandra Rotzein. Moreover, Kukla and Lange were subpoened
by the Union to testify at the representation hearing. Kukla
testified, and while Lange did not, she did attend the hearings
and openly assisted the Union and its counsel during the course
of the hearings.
Myers was chosen to be a member of the Union’s bargaining
committee, and Respondent was so notified on June 21. More-
over, Respondent’s agent, David Parmentier, in the presence of
White, while asking Respondent’s supervisors about their
knowledge of union sentiments of employees, was told by
Diane Smolinski, that Myers’ husband was a member of the
Teamsters Union, which Parmentier duly noted on paper.
Lange was subject to what I have found to be an unlawful
threat by Rotzein, as well as a statement by Trucks that if
FIVECAP, INC. 1215
Lange was subpoened by the Union, she must have signed a
card and be a union supporter. I have found that the latter
statement is indicative of antiunion animus by Trucks.49
Moreover, I also note the numerous other findings that I have
made above of unlawful conduct by Respondent, particularly
the threats and statements made by Trucks (and Clark to em-
ployees, quoting Trucks) that Respondent would terminate
employees and/or not fight for funding for employees who
supported the Union and/or who testified at the hearing on be-
half of the Union, as well as the discriminatory terminations of
Smith, Belongia, Monton, Burkel, Fugere, and Larson-An-
derson.
These actions of Respondent coupled with the above-
described knowledge by Respondent of the union sympathies of
these four employees, are more than sufficient to establish that
protected conduct of these employees was motivating factor in
Respondent’s decision not to recall them back to work in Au-
gust.
Therefore, under Wright Line, the burden shifts to Respon-
dent to establish that it would have taken the same action
against these employees, absent such protected conduct. I con-
clude that once again Respondent has fallen short of meeting its
burden in this regard.
The testimony of Trucks, with some support from testimony
of other witnesses, asserts the decision was made to eliminate
home start positions in Lake County and Manistee, as well as
the Mason mobile unit, because of the recently passed and pro-
posed stringent welfare work requirements, which would make
it difficult for parents to be home while the teachers were visit-
ing their homes.
However, I find the testimony of Kukla, Lange, Sandstedt,
and Myers, supported by former supervisor of Respondent,
Diane Smolinski, credibly establishes that the welfare work
requirements were not and would not likely have been a major
problem in causing parents to drop out of the home visit pro-
gram. This testimony, which was not seriously disputed by
Respondent’s witnesses, shows that the teachers were able to
accommodate their schedules to meet the schedules of the par-
ents, even to the extent of meeting with them in the evenings.
Moreover, these witnesses’ testimony demonstrates that en-
rollment would not necessarily have been diminished, inas-
much as there were siblings of prior students who had ex-
pressed interest in signing up for the program.
In that connection, although Respondent presented some fig-
ures which demonstrated that enrollment had diminished at the
end of the school year at Manistee and Lake County, the record
also reveals that enrollment normally is reduced at the end of
year, and that it is increased at the start of the new school year
by recruiting and other factors. Significantly, Respondent pro-
duced no records from prior years so one could compare the
year-end figures with the current year insofar as reduced en-
rollment was concerned at these facilities in this program.
I also rely on the fact that in their pretrial affidavits both
Trucks and White had emphasized that Respondent had placed

49 This remark could also be construed as an additional example of
an unlawful interrogation, since although not in the form of a question,
was calculated to elicit a response from Lange about her union senti-
ments. NLRB v. McCullough Environmental Services, 5 F.3d 923, 929
(5th Cir. 1993). However, since this remark was not alleged to be
unlawful, and such a finding would be cumulative, I need not and did
not find that the statement violated the Act.
significant reliance upon parent surveys that they had received,
in making its decision to eliminate the program. However, the
parent surveys that were produced by Respondent were intro-
duced into the record by the General Counsel, and they produce
no support for the testimony of Respondent’s witnesses. On the
contrary, these surveys contradict totally the assertion of Trucks
and White that these parents complained about the home start
program in general or the affect of the new welfare rules on
their ability to meet with the teachers in their homes.
The surveys contained overwhelmingly positive assessments
of the home start programs in general and the teachers in par-
ticular. The surveys praised the one-on-one aspect of the pro-
gram, as well as the flexibility that the program provided.
More importantly, none of the surveys contained any com-
plaints or references to parents’ inability to meet with teachers
for any reason, much less due to increased work requirements
imposed by the new welfare rules. I find that this contradiction
to the testimony of Trucks and White seriously undermines
Respondent’s ability to meet its Wright Line burden.
Moreover, Trucks’ testimony that Respondent’s decision to
eliminate the mobile unit in Mason County at the same time as
it phased out home start in Manistee and Lake County, was
made for the same reasons also does not withstand scrutiny.
Indeed, both the testimony of White and the minuets of Re-
spondent’s policy personnel committee completely contradict
Trucks’ testimony, and indicate that the decision to eliminate
the mobile unit was made for completely different reasons: i.e.,
the mobile classroom was constantly in need of costly repairs.
Finally, I also rely upon the facts, as more fully described be-
low that Respondent discriminatorily refused to consider or
offer to these employees other available positions for which
they were clearly qualified. In addition to being independent
violations of the Act, such unlawful refusals to offer them other
positions provide support for finding that the initial decision not
to recall them was similarly unlawful, and that Respondent has
not established that it would have taken the same action against
them, absent protected conduct. Kinder-Care Learning Cen-
ters, 299 NLRB 1171, 1176 (1990).
Accordingly, based on the foregoing, I conclude that Re-
spondent has failed to meet its Wright Line burden of proof,
and that Respondent’s decision not to recall Lange, Sandstedt,
Kukla, and Myers in August, was violative of Section 8(a)(1)
and (3) of the Act, and with respect to Kukla and Lange, in
violation of Section 8(a)(1) and (4) of the Act, as well.
As noted, it is also alleged by the General Counsel, as inde-
pendent violations, the unlawful refusal to hire or consider
these four employees for other available positions. In that con-
nection, it is significant that not only did Respondent fail to
advise these employees that their jobs had been eliminated until
the employees called themselves to inquire, but that White
provided the employees with misleading and incorrect informa-
tion to them as to the availability of other jobs, advising them
only of jobs that White believed that they were not qualified for
or not interested in applying for.
Thus, when Kukla on or about August 11 asked about any
other positions in the agency that were open, White mentioned
only the teaching position at Summit that required a ZA en-
dorsement that White knew that Kukla did not have and there-
fore was not qualified to fill. Significantly, White did not tell
Kukla about two other openings at the same Summit facility,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1216
the positions of head teacher and teacher,50 both of which
Kukla was qualified to fill, or about the opening for a head
teacher position at Manistee, the facility where Kukla had pre-
viously worked, or at Lake County which was also open. Simi-
larly, at around the same time Sandstedt asked White if there
were positions available for teachers or teacher’s aide. White
once again informed Sandstedt only of the same teaching posi-
tion available at Summit that required the ZA endorsement that
Sandstedt did not have, while again failing to mention the other
available teaching position at the same facility that Sandstedt
was qualified to fill. White also mentioned the availability of
the head teacher positions at either Summit or Lake County. It
is quite revealing that White mentioned the availability of two
head teacher positions to Sandstedt, where Sandstedt had asked
only about teacher or aid positions, while conveniently failing
to disclose to Kukla, who had asked about any available posi-
tions, and who had previous experience as a head teacher, these
same available head teacher positions.
On or about August 12 Lange spoke to White personally and
asked about any other positions that she was qualified for.
White replied not at her center. Lange then asked about posi-
tions at other centers. White replied that Respondent had em-
ployees, “center by center.” This response by White is clearly
false, since the evidence is replete with instances in the past, as
well as in the current year, where Respondent filled vacancies
by moving employees from one center to another. Finally,
Myers also spoke to White on or about August 11, and asked to
be considered for any position that became available that she
was qualified for, especially in Lake County, but not exclu-
sively in Lake County. White replied that Respondent had a
head teacher and busdriver position open. However, White
failed to notify Myers about the availability of the aforemen-
tioned teacher’s position at Summit, which she also did not
inform the other three about and which was ultimately given to
a new employee. White also failed to mention to Myers, or to
any of the other three employees either, the availability of
teacher’s aide position at Fountain, which was also filled with a
new employee, Charlotte Helgemo.
White’s misleading and/or false statements to the employees
concerning the availability of other positions for which they
were admittedly qualified, coupled with the above-described
numerous other violations of the Act committed by Respon-
dent, are more than sufficient to establish that a motivating
factor in Respondent’s decision not to consider or hire these
four concedely well qualified and exemplary employees for
other positions was their protected conduct.
Respondent’s attempt to meet its burden of establishing that
it would have taken the same action against these employees,
absent their protected conduct has fallen far short. Indeed an
examination of White’s inconsistent and unconvincing testi-
mony, which was essentially Respondent’s evidence in this
regard, only serves to reinforce the above conclusion that Re-
spondent’s conduct was unlawful.
Thus, while in many cases, Respondent simply called back
the incumbent employees in their same positions at the same
centers, the evidence revealed that a number of vacancies arose
in positions at various centers at the start of the school year, as
well as during the course of the year. White attempted to ex-
plain Respondent’s decisions with respect to these vacancies,

50 Most importantly, this position was ultimately filled with a new
employee with no previous teaching experience.
and more particularly why Lange, Myers, Sandstedt, or Kukla
were not selected. I found for the most part White’s explana-
tions to be unpersuasive and improbable, and frequently incon-
sistent with her explanations with respect to other positions or
with respect to other potential applicants.
For example, at the Manistee center, where Kukla,
Sandstedt, and Lange previously worked, an opening was avail-
able for a head teacher’s position, which was filled by Patty
Peabody, who had been a teacher at that center. White asserted
that Peabody was selected because Lange, Sandstedt, and
Myers had never been a head teacher before, and Peabody had
more seniority than Lange. However, when it came to Kukla,
who had substantially more seniority than Peabody, and had
previous experience as a head teacher, White offered the rather
lame excuse that Kukla had not indicated to White that she was
interested in a head teacher’s position. This explanation lacks
credence, since Kukla had, in fact, asked White about any other
positions in the agency that might be available, and White
significantly failed to disclose the existence of this open
position (as well as others) to Kukla. Moreover, White fur-
nished no testimony that Peabody had in fact or when she ex-
pressed interest in the head teacher’s position, or as to the pre-
cise circumstances of her selection.
During the course of the school year, a teacher’s position be-
came available at Manistee, when Carol Braun was transferred
to the head teacher’s position at Lake. This position was filled
by Lorraine Avery on September 21. Avery had previously
been employed by Respondent as head teacher in the mobile
unit, which was also eliminated for this school year. According
to White, Respondent chose Avery because she had more sen-
iority than any of the four home visit employees, and because
Avery had submitted a timely job application, prior to the Au-
gust 21 deadline for the position in the newspaper advertise-
ment. When confronted with the fact that Myers had received a
more favorable recommendation than Avery in the policy
council meeting, White asserted that Avery had submitted a
timely application for the position, and that Myers had not done
so. However, it is clear that Myers, as well as the other three
employees had orally expressed interest to White for any avail-
able positions only a month or so before this position was
filled. Yet, none of these four were even interviewed for the
position. Moreover, they all had submitted written applications
prior to the date that this job was filled.
A vacancy at the Manistee center for a teacher’s aide was
filled by Ginger Johnson on September 8. Johnson was a new
employee who had never worked for Respondent. White ex-
plained that she did not select the four discriminatees for this
position because Johnson had submitted a timely resume, prior
to the application deadline, while she did not hear from the
others about this position. I find White’s testimony here to be
disingenuous, if not totally false. I note that all four of the em-
ployees, three of whom had worked at the same facility had
expressed interest in other available positions directly to White.
White admittedly could leave simply added these employees to
the interview schedule, even though they had not submitted
timely applications for this particular job. White’s testimony
that she simply forgot about these employees strains credulity,
particularly since charges had already been filed with the Na-
tional Labor Relations Board alleging that Respondent dis-
criminated against these four employees.
At the Lake County Center, Smolinski’s resignation created
an opening for a head teacher. At the start of the year, Educa-
FIVECAP, INC. 1217
tion Coordinator Lee Ann Hunt filled in for several weeks, until
Respondent, according to White persuaded Carol Brown, who
had previously been permitted by Respondent to step down
from a head teacher’s position to revert to a teacher’s position,
to take the job temporarily. Yet, Respondent ignored Kukla,
who had previous experience as a head teacher, and expressed
interest in any available position. White furnished no explana-
tion as to why Respondent found it necessary to persuade
Brown, who clearly did not want a head teacher’s position to go
back to that job, while not even asking Kukla if she was inter-
ested in the position. Indeed not only did Respondent not ask
Kukla about it, but White failed to disclose to Kukla this open-
ing, at the same time that she mentioned it to Sandstedt, whom
White knew was not interested in the position.
In January 1996 an opening for a teacher at Lake County was
filled by Lisa Vega, allegedly on a temporary basis. Vega had
previously been employed by Respondent in the mobile unit as
a teacher. She was not called back initially because her posi-
tion was eliminated, but was subsequently hired as a combina-
tion busdriver aide at Lake. Myers found out about this open-
ing, and submitted an application for it in early January 1996.
White provided no explanation as to why she did not con-
sider or hire Myers for this position. I note that Myers had
previously worked at this facility as a teacher, and had many
more years of experience than Vega. Additionally, Vega’s
personnel file revealed a highly critical memo from her super-
visor in the mobile unit, which had recommended that Vega, in
effect be suspended for the remainder of the year.
Thus, Respondent chose to fill this position with such an
employee, rather than choose the more experienced, highly
rated teacher who had taught at the facility before. While
White asserts that this is only a temporary promotion for Vega,
Respondent has still given no indication by testimony of White
or otherwise that Myers was being considered for this position.
At Respondent’s Summit facility, an opening for the head
teacher’s position was filled by April Foley, who had previ-
ously been a teacher at that facility in the previous year. I once
again find it significant that White failed to disclose the exis-
tence of this position to Kukla, who unlike Foley had previous
experience as a head teacher, and had more seniority than Foley
as well. This promotion created an opening for a teacher at
Summit, which was as noted filled by Robin Wright, a new
employee, with no previous teaching experience, and without a
C/D/A certificate which all four discriminatees had already
obtained.
White’s explanation for selecting Wright was once again that
Respondent had received a timely application from her for the
position, and it had not received any from the four home visit
teachers by August 21, the deadline in the advertisement. In
fact, Wright did not submit a job application until August 30,
the date of her interview, although she had submitted a resume
on August 17. However, the evidence disclosed that there was
at least one cancellation of the applicants scheduled to inter-
view for this position, but Respondent did not fill it with Lange
who had admittedly submitted an application for this position
on August 23, prior to the position being filled. It is also sig-
nificant that Respondent’s head teacher at that facility, April
Foley, had informed Lange about the vacancy, which had been
caused by Foley’s promotion, and told Lange that she could not
understand why Lange had not been offered the position and
she would love to have Lange working with her. I note that
Foley did not testify. It is appropriate to draw an adverse infer-
ence against Respondent for failing to call Foley as a witness,
and conclude that her testimony would be adverse to Respon-
dent on this issue. International Automated Machines, 285
NLRB 1122, 1123 (1987). I infer that based on this credited
testimony of Lange, that Foley, in fact, recommended to White
that Lange be hired for this position. This finding further un-
dermines Respondent’s defense with respect to this position,
which is already highly suspect in any event, since White’s
testimony that she simply forgot about Lange or the other em-
ployees when making this as well as other selections is as noted
above not believable.
A teacher’s aide position subsequently became vacant at
Summit, which Respondent filled in late November, with Marla
Nickelson, another new employee. White asserted that Nickel-
son was chosen because she was a head start parent and was
recommended by April Foley. White added that she did not
consider any of the four discriminatees for this position, be-
cause she had not heard from anyone that any of them were
interested in that particular job.
Once more I find White’s explanation not to be convincing.
I again note Respondent’s failure to call Foley as a witness to
corroborate White, which leads to an adverse inference. Foley
if called would not have confirmed that she had recommended
Nickelson. Moreover, even if Foley recommended Nickelson,
Respondent did not adequately explain why it chose to follow
Foley’s recommendation and hire Nickelson, while ignoring a
similar recommendation by Foley to hire Lange for the teacher
vacancy filled by Wright.
Additionally, White’s unconvincing testimony that she did
not consider the four discriminatees for this position, because
she did not believe that they were interested, is further under-
mined by the fact that by this time the Region had issued a
compliant alleging that Respondent refused to recall these em-
ployees to their prior positions, as well as to other vacancies.
Finally, White testified that Nickelson was the only person
that she interviewed for this job, and that no one else had
shown any interest in the position. However, Respondent’s
records indicate that on November 27, the day of Nickelson’s
interview, it also interviewed two other applicants for this posi-
tion, Barbara Hector and Robin Vanas. Thus, Respondent has
adduced no credible evidence as to why any or all of the four
discriminatees, who by this time had all submitted written ap-
plications for jobs and had orally expressed interest to White
for any open positions, were not even interviewed for this posi-
tion.
At Respondent’s Fountain facility, Respondent hired two
teacher’s aides, Charlotte Helgemo at the start of the school
year in early September, and Lori Koviak in December, when
another opening developed. Once again White’s explanations
for why she neither considered nor hired Lange, Sandstedt,
Myers, or Kukla for either of these positions does not withstand
scrutiny.
It is noted initially that both Helgemo and Koviak were new
employees with no previous experience working for Respon-
dent. Rather than hire any of the four experienced employees
who were all well qualified for these positions, Respondent
decided to hire two new experienced employees. White’s as-
sertion that she made this decision because she did not know
that any of them were interested in these positions, and/or had
not filed applications for these jobs is contradicted not only by
evidence that all of the employees had as noted expressed inter-
est to her for any open positions, but by Respondent’s own
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1218
supervisor, Rotzein, who corroborated Sandstedt that she
(Rotzein) informed White of Sandstedt’s interest in the position
filled by Helgemo prior to the job being filled.
Since it is admitted that Sandstedt filed an application with
Respondent specifically for this position on August 22,
Rotzein’s testimony refutes White’s assertion that although
Respondent may have received the application, that she did not
see it since it came in after the deadline and that she was, there-
fore, unaware of Sandstedt’s interest in the job prior to inter-
viewing or selecting the new employee for hire.
Finally, at Respondent’s Bitely center, where as noted Re-
spondent instituted a home visit program for the first time.
Sonya McKay who had been along with Myers, a teacher at
Lake where their positions were eliminated, was selected to be
a cohead teacher at Bitely. While White testified that McKay
was chosen over the four discriminatees because of her superior
longevity, and because the others had not expressed an interest
in the head teacher’s position, her testimony in this regard is
not convincing.
While McKay did have more seniority than the other em-
ployees, it is significant that Kukla had previous experience as
a head teacher while McKay did not. White’s testimony that
the failure of the other employees to show interest in the posi-
tion was a factor in her decision, is clearly pretextual. Thus,
McKay did not fill out a new application for this position,
which not only undermines White’s testimony on this issue, but
also her testimony that she gave with respect to the alleged
significance of the four discriminatees to file applications for
other open positions.
Also, White furnished no testimony that McKay had ex-
pressed any interest in the position, and the testimony of
McCracken, Respondent’s own supervisor indicates that White
needed to convince McKay to accept the position at Bitely. It
thus appears likely that Respondent contacted McKay and
asked her whether she would accept the position. Yet it made
no effort contact Kukla who had previous head teacher experi-
ence and had expressed interest to White in any available posi-
tions, or years who had similar qualifications to McKay, and
had also made a similar request to be considered for other posi-
tions.
In this connection, Respondent argues that Myers, on the
stand, indicated that she had no interest in a head teacher’s
position because that would remove her from the bargaining
unit. However, this admission by Myers is not controlling,
since there is no evidence that Respondent was aware of
Myers’ position in this regard, and that it never offered Myers
or Kukla the opportunity to decline the position.
This point, however, does raise an issue concerning the ques-
tion of why Respondent opted to create two head teacher’s
positions at Bitely. This is apparently an unusual unpredicted
action, which results in the head teacher having no teacher un-
der them to supervise. The explanation given for this decision
by White and by McCracken are totally different and uncon-
vincing. Indeed McCracken asserted that the reason was the
necessity to have someone with a C/D/A certificate on premises
at all times. This testimony is clearly incorrect, since all of the
discriminatees had a C/D/A and there is no special require-
ments for a head teacher position.
Therefore the conflicting explanations given by Respon-
dent’s witnesses as to the reasons for this decision, leads to the
conclusion that the action was motivated by a desire to remove
a position from the bargaining unit, as well as to further provide
a subterfuge for Respondent’s termination of the employment
of the dicriminatees and its failure to offer them other available
positions.
Based on the foregoing analysis, I find the explanation given
by White for Respondent’s decisions on hiring to be for most
part clearly pretextual. Her generalized testimony that she did
not consider. Lange, Sandstedt, Myers, or Kukla for any avail-
able positions because she was unaware of their interest is pre-
posterous, as I have detailed above. Equally unbelievable is her
testimony that when she discussed the various vacancies with
Trucks, the names of these four individuals never came up.
Since charges were already on file, alleging discriminatory
treatment of the four employees by Respondent, I find it diffi-
cult to believe that the subject of whether or not to offer them
other positions was not discussed. I find it most probable that
Trucks simply instructed White that these four are not to be
hired or considered for any available positions, and that White
simply carried out Trucks’ orders in that regard. No other rea-
sonable explanation is warranted in view of the numerous posi-
tions as discussed above that become available that these em-
ployees were qualified to fill, where not only were they not
hired, but not even given the courtesy of an interview.
Accordingly, I conclude that Respondent has failed to meet
its burden of establishing that it would have failed to consider
or hire these employees for available positions, absent their
protected conduct, and that it has thereby violated Section
8(a)(1) and (3) of the Act, and Section 8(a)(1) and (4) as well
with respect to Kukla and Lange.51
14. The alleged unlawful conduct with regard to busdrivers
a. Facts
Bruce Kent was employed by Respondent as busdriver since
August 1992. Kent first contacted the Union in 1994, spoke to
other employees about the Union, attended union meetings, and
was a member of the Union’s bargaining committee.
As a busdriver, Kent as well as other busdrivers employed by
Respondent would pick up students at their homes in the morn-
ing and drop them off at the Lake County Center in Idlewild.
They would then drive the bus home and return to pick up the
children after the school day ended and drive them home.
Drivers had always been permitted by Respondent to take their
buses home at night.
Respondent’s policy with respect to payment had generally
been to start drivers pay 15 minutes before they picked up the
first rider and end when they drop off the students at the school.
For the afternoon, drivers were paid from the time that they
picked up the students at school until they dropped off the last
rider. However, at the Lake County Center, Kent drove what is
known as the Irons run. This run required drivers to drive 45
minutes before they picked up the first student. On that run for
the entire time of Kent’s employment, he was permitted to
charge for his time from 15 minutes before he left his home and
in the afternoon he would charge from the time he left home
until he dropped off all students and had driven home. This
policy was explained to him by his supervisor, Diane

51 I would note that this finding is unaffected by and independent of
my previous conclusion that Respondent’s decision not to recall these
employees initially (and its decision to terminate the home visit pro-
gram at Manistee and Lake) was unlawfully motivated. Even had I
found that action to be lawful, the evidence is overwhelming that the
subsequent refusal to offer them other positions was nonetheless unlaw-
ful.
FIVECAP, INC. 1219
Smolinski, and was also applied to other employees at the cen-
ter who drive that run.
Every 2 weeks, Kent and other drivers would turn in to
Smolinski their timesheets and driver’s log which show the
time that they left their house and when they returned. After
being reviewed and approved by Smolinski she sends them to
the Scottville office, where they are again reviewed and pay-
ment is made.
Smolinski confirmed that this was the policy at the center for
all employees, including Kent who drove the irons run since at
least 1987 when she began working at the facility. According
to Smolinski, when she became head teacher, the previous head
teacher, named Cindy, explained to her that because it was such
a long run, this was the policy that Respondent followed with
respect to payment of busdrivers. Smolinski had approved such
payments, sent along to the office the accompanying documen-
tation, and had never had any payments questioned by man-
agement or told that this policy was improper for that run.
Starting September 1995, Kent became the only driver on the
irons run, and he drove it 4 days a week. Kent computed his
time as per the normal procedure, and it was approved by the
new acting head teacher as well as by the office of Respondent
for several weeks.
On September 22, Kent received a call from White. White
asked Kent why he had put down 7 a.m. on his timesheet, and
Kent replied that is when he started inspecting his bus. White
responded that he was not supposed to start his time until he
had someone on his bus. Kent answered that he had always
done it this way in the past and suggested that White check
with his former supervisor, Diane Smolinski.
White then telephoned Smolinski at home (she had previ-
ously resigned), and asked her about the policy with regard to
paying busdrivers at Lake. Smolinski explained that for the
Irons run, which required 45 minutes driving time, the policy
had been to pay drivers from the time that they left their homes.
She added that this policy had been explained to her by the
previous head teacher, and that she continued to follow it.
White inquired if anyone from the office had ever questioned
this policy? Smolinski answered no and asked if there was a
problem. White replied no, that she (White) was new and was
trying to learn the ropes.
Nonetheless, on September 22 and again on September 27,
Respondent by White issued written reprimands to Kent. These
letter stated that he had knowingly violated Respondent’s pol-
icy with regard to payment, and that Respondent’s policy has
always been and still is to start a driver’s time when the first
child is picked up. The September 22 letter refers to Kent’s
assertion that a former head teacher had authorized him to
charge his time from the time he left home, and commented
that, “there is no record in the file to support your claim.” Fur-
ther Kent was instructed that his time will be carefully moni-
tored, and he must start charging time from his first pick up. If
he does not do so, the letter adds that he will be “terminated
immediately.”
Respondent adduced testimony from several current head
teachers, including Carolyn Burba, Sandra Rotzein, and Luann
McCracken who testified that as far as they knew Respondent’s
policy had always been to charge time from when the pick up
was made, and this policy has been explained to all head teach-
ers at head teachers’ meetings, as well as to busdrivers in yearly
orientation meetings.
However, none of these witnesses testified whether the spe-
cific subject of whether Respondent may have allowed a differ-
ent policy at Lake County for the Irons run had been discussed
at any of these meetings.
At the next bargaining session after these reprimands, the
subject of whether to pay busdrivers for time between their
homes and first pick-ups was thoroughly discussed. As part of
Respondent’s proposals on working hours, a section dealt with
busdrivers’ time. The proposal essentially reflects what Re-
spondent’s policy had previously been for all but the irons run
in Lake County. It called for pay to start 15 minutes before the
first pick up, and end 15 minutes after the last drop off, plus an
additional 15 minutes to perform daily posttrip vehicle inspec-
tions.
Maro Holland the Union’s chief negotiator rejected this pro-
posal and stated that he felt that drivers should be paid from the
time they leave home. Holland added that he intended to file
charges with the Wage and Hour Division if Respondent im-
plemented such a proposal. The parties then caucused. After
the caucus, Terry Mroz, Respondent’s attorney stated that Re-
spondent did not wish to get into a court battle over this issue
and proposed that Respondent would agree to pay drivers from
the time they started driving (plus 15 minutes), but that in ex-
change employees could no longer take their buses home at the
end of the day, and would drop the buses off and pick them up
the next morning at designated central sites. The Union agreed
to this proposal, which Respondent indicated it would imple-
ment in the near future. No mention was made of which spe-
cific sites would be selected, but only that Respondent would
let the employees know where to park their buses. Holland
made no request that Respondent consult with or notify the
Union concerning which central sites would be chosen for
which employees.
On October 4, Respondent, without furnishing a copy to the
Union, issued a letter to all drivers, dated October 3. The letter
states that in response to the Union’s bargaining committee’s
request, effective October 9, drivers worktime will start when
they pick up their vehicles. The letter goes on to designate the
site where each driver would be required to park his bus. Re-
spondent had determined without consulting the Union, that
there would be three central locations for employees to park
their buses, with each employee being assigned one of three
locations by Respondent.
At the next bargaining session, October 4, the subject arose
as to whether drivers were to be allowed to drive their buses
home after dropping the children off in the morning. Respon-
dent took the position that if the Union was going to insist that
drivers be paid for the time that they drive back and forth be-
tween the center and their home during this interim period, then
the employees could not take their buses home, as they had
been allowed to do in the past. Similarly, Respondent also
stated that if the Union took the position that employees should
be paid if they remain at the center during this period, then they
would not be permitted to remain on the premises.
The Union by Holland did take the position that employees
be paid for time spent driving back and forth, as well as time
spent at the center. However, Holland also suggested that em-
ployees be allowed to drive their buses from the center to the
designated site where they parked their cars, so that employees
would have transportation to go somewhere else during this 5-
hour period. Respondent rejected this proposal, and insisted
that the employees must park their buses at the center, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1220
leave the facility until they were to take the children home.
Holland asked what the employees were supposed to do during
the 5-hour period, particularly since many of the centers were
located in rural areas with no public transportation or public
places where drivers could walk to during these off hours.
Trucks replied to this inquiry and stated that this was not her
concern and suggested that the drivers could take a taxi, dial-a-
ride, or whatever they wanted to do.
Mroz proposed that Respondent would permit the drivers to
take their buses home if the Union obtained clearance from
Wage and Hour that employees would not receive pay for this
period, or if the Union agreed to indemnify Respondent for any
such claims. The Union declined either of these options, and
the meeting ended with these issues unresolved.
However, immediately after this meeting, Respondent’s su-
pervisors instructed its employees that employees must park
their buses at the center after they drop off children in the
morning, and must leave the center until they were needed to
drive the children home. This included a prohibition on em-
ployees volunteering at the centers, which employees had al-
ways been allowed to do in the past.
On October 5 and 6, a number of the drivers made com-
plaints to their head teachers and in writing about Respondent’s
new policy, claiming that the new policy would cause a hard-
ship to them because of their particular routes. White subse-
quently held a staff meeting on October 6. After listening to
these complaints from some drivers, White informed them that
the new policy was the idea of the Union, and suggested that if
they had complaints about it, they should either communicate
with the Union in writing, or speak to their union representa-
tive. Several employees did write to the Union and the bargain-
ing committee, and requested permission to return to the old
system of taking the bus home and not receiving pay until
someone is on the bus, plus 15 minutes for inspection.
On October 9, Respondent issued another memorandum to
employees, without notifying or consulting with the Union.
This memo was issued, according to White because of the
complaints from drivers about the new policy, including one
driver who threatened to quit. The memo is entitle “[O]ptions
on [P]arking of [B]uses.” It reflects two options for employees
to choose. Option 1 requires that employees state that the new
policy would create a hardship for the employee, and that in
consideration of allowing the employee to take the bus home at
night and between runs, the employee agrees not to be paid
from (1) home to first pick up, except for 15 minutes for pretrip
inspection, (2) to drive home and back to the center between
runs, and (3) to drive home after the last child is dropped off.
Option 2 reflects that the employee agrees to park the bus at
a designated area, and that time starts when the bus is picked up
at the designated area, and will end when the children are
unloaded at the center. The bus will then be left at the center
between runs, and time will start again when the bus is picked
up at the center and end when the bus is dropped off at the des-
ignated parking area.
The memo further indicates that if the employees do not re-
quest option 1, the policy that went into effect on October 9, as
stated in option 2 is in effect and must be followed.
White met with drivers on October 11 at the Bitely Center.
White informed the employees that Respondent had formulated
these options to make it easier on the drivers, because some of
them found the present policy difficult. Employee Elizabeth
Zebruyne responded she had been told by the bargaining com-
mittee that employees did not have to sign the memo, as re-
quested by Respondent. Zebruyne also told White that she felt
that employees should be paid from the time she gets on the
bus, since if there was an accident they would be on Respon-
dent’s time. White answered that Respondent’s insurance
would cover the employees, whether or not they were paid at
the time of the accident. White also told the employees that if
they did not sign the form and choose one of the options, they
would be terminated.
Most employees signed the forms as ordered, and chose one
of the two options. A few employees refused to sign and did
not do so, including Kent and Zebruyne, but were not termi-
nated. However, Kent and employee Floyd Davis received a
counseling form from Respondent, citing their refusal to sign
and to choose one of the options. These forms indicated that
the employee, therefore, is deemed to have chosen option 2.
After the new policy with regard to parking at designated
sites went into effect, Kent was initially informed by Head
Teacher Carol Brown to park his bus at the Respondent’s ware-
house, located 3/4 of a mile away from Respondent’s Scottville
center. On October 12 Brown changed her previous instruc-
tions and told Kent to park his bus at the Scottville office.
However, Kent did not comply with this order and parked the
bus at the warehouse, since his truck was already at the ware-
house and the woman who he usually came to work with was
absent. On his next workday, once again Kent parked his bus
at the warehouse, because the other employee was still out sick,
and this employee would not be available to help shuttle Kent
back and forth.
On or about October 17, Kent received a memo from White
dated October 16. The memo recites that Kent had twice
parked his bus at the warehouse, contrary to specific instruc-
tions from his supervisor. It also reflects that when Kent was
reached at his home, he stated that he had left his vehicle at the
warehouse and, therefore, needed to return the bus there. The
memo further reflects that White instructed Kent to park the
bus at the office on October 17, and someone will give Kent a
ride to his vehicle. The memo concludes by stating that “con-
tinued failure to “comply will result in disciplinary actions.”
Additionally, on October 16, the busdrivers at the Bitely
Center were told by their supervisor that they would be no
longer be paid for posttrip inspections as they had in the past.
Zebruyne and another driver, Amy Allen, complained to Su-
pervisor McCracken that they thought that it was state re-
quirement that buses be postinspected. McCracken replied
that she had received a call from the Scottville office and was
told to inform employees about the policy change. The Union
was not consulted or informed about this action nor given the
opportunity to bargain about it.52
b. Analysis
The record reflects that on September 22 and 27 Respondent
issued disciplinary memoranda to Bruce Kent accusing him of
knowingly violating Respondent’s policy with respect to the
calculation of his time. At the same time Respondent changed its
prior practice with respect to how it paid drivers, such as Kent at
Lake County who drove the “Irons” run.

52 The record does not reflect whether or not Respondent instituted this
change at any other center.
FIVECAP, INC. 1221
I agree with the General Counsel that these actions of
Respondent are violative both Section 8(a)(1), (3), and (5) of
the Act. Respondent contends that there was no change in
policy since the evidence demonstrates that Respondent
consistently paid its employees only from the time that children
were on the bus, and that this policy was explained and
reinforced at annual orientation meetings.
However, notwithstanding this evidence, I conclude that an
exception to this rule had been in effect at Lake County for the
“Irons” run, and that this exception had been condoned by Re-
spondent. Thus, the unrebutted and credible testimony of
Smolinski establishes that she was told by her predecessor as
head teacher that Respondent permitted a different method of
payment for the “Irons” run because of the long distance in-
volved. Moreover, the evidence establishes that the employees’
timesheets and logs are sent into the Scottville office for final
review prior to payment being authorized, thus further demon-
strating that Respondent permitted this exception for this par-
ticular run.
Accordingly, since Respondent admittedly failed to notify or
consult with the Union before making this unilateral change in
terms and conditions of employment, it has thereby violated
Section 8(a)(1) and (5) of the Act. Moreover, by disciplining
Kent for not abiding by the change, Respondent has further
violated Section 8(1)(1) and (5) of the Act. Boland Marine &
Mfg. Co., 225 NLRB 824 (1976), enfd. 562 F.2d 1259 (5th Cir.
1977).
I also conclude that Respondent’s decision to change this
prior practice which affected only Kent, a leading union adher-
ent and member of the bargaining committee, as well as its
issuing disciplinary memos to him, were motivated by Kent’s
union activities. In that connection, I note the prior above-
described unfair labor practices against other union supporters.
I also find that Respondent has not shown that it would have
taken the same action against Kent, absent his union activities.
Indeed, Respondent adduced no testimony from any witnesses
as to why it suddenly decided to change its prior practice with
respect to payment on the “Irons” run, nor why it accused Kent
of “knowingly” violating company policy, when it knew from
speaking with Kent’s former supervisor, that she had permitted
such reimbursement in the past based on instructions from the
prior head teacher and without any questions from the main
office.
Accordingly, Respondent has violated Section 8(a)(1), (3),
and (5) of the Act by issuing disciplinary memorandum to Kent
in September, and by changing its prior practice with respect to
payment for his route.
As far as the October 16 disciplinary letter is concerned, the
General Counsel argues that Kent was given this warning in
order to paper his file with discipline over minor matters in
order to lay the ground work for firing him, in violation of Sec-
tion 8(a)(1) and (3) of the Act. I do not agree.
Even assuming that the above-described evidence of dis-
criminatory actions of Respondent towards other union sup-
porters as well as Kent, establishes that a motivating factor in
this letter was Kent’s protected conduct, I conclude that the
evidence establishes that Respondent would have taken the
same action absent any protected activities of Kent.
Thus, the evidence is undisputed that Kent blatantly dis-
obeyed lawful instructions of his supervisor to park his bus at
Respondent’s office, rather than at the warehouse. Whether or
not Kent may have believed that he had a legitimate reason for
disobeying these instructions is not determinative. I believe
that Respondent legitimately issued him a warning letter for
twice disobeying a direct instruction of a supervisor, and that it
would have done so, absent his protected conduct.
I shall, therefore, recommend dismissal of this allegation of
the complaint.
The complaint also alleges and the General Counsel con-
tends that Respondent violated Section 8(a)(1) and (5) of the
Act when it issued its memo of October 4, announcing the
change in payment policies for busdrivers which were agreed to
during negotiations, and added the specific sites that where
employees would park, without consulting or notifying the
Union. I disagree.
While the General Counsel is correct that the specific sites
where employees would not park was not discussed or agreed
to during the meeting, I conclude that the Union implicitly
agreed that Respondent would make the selection. Thus, it is
undisputed that the Union agreed that Respondent would im-
mediately implement the new policy agreed upon with respect
to when to start time for busdrivers, and that Respondent stated
that it would notify the employees which specific site they
would be required to park their buses. The Union made no
attempt to negotiate about which sites would be selected by
Respondent, nor did it request that Respondent consult with it
before making such a decision. Therefore, I conclude that by
such conduct the Union implicitly agreed that Respondent
would have the unilateral right to make such a selection, or that
it waived its rights to bargain over such matters. Therefore, I
conclude that Respondent has not violated the Act by failing to
notify or consult with the Union before issuing its memo desig-
nating the specific sites for parking the buses.
After the October 4 bargaining session, Respondent imple-
mented changes in prior practice, by not allowing drivers to
take their buses home during the 5-hour period between runs,
and by prohibiting employees from remaining at its facilities
during this hiatus period. Respondent did not notify or consult
with the Union about these changes. While these subjects had
been discussed at the October 4 bargaining session, there was
no resolution of the issue nor was there an impasse on these
subjects. Therefore, Respondent was not free to make these
changes, absent impasse or the consent of the Union.
Respondent seeks to defend its actions by attempting to
blame the Union, and arguing that it only acted as it did be-
cause the Union was insisting at the bargaining table that em-
ployees be paid for any time on the bus or at the center. How-
ever, these arguments provide no defense to Respondent’s con-
duct. These issues were still the subject of negotiations and had
not been resolved. Whatever postion the Union may have taken
at the bargaining table, or whatever threat the Union may have
made to file wage and hour charges, Respondent is obligated to
maintain the status quo until impasse or consent. Since the
status quo with respect to these issues was Respondent’s prior
practice of allowing employees to drive their buses home and to
remain on the premises (whether they volunteer or not), without
being paid for this time, Respondent was not free to change
such practices.
Accordingly, I conclude that Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act by such conduct.
The evidence also establishes that after this October 4 meet-
ing, Respondent issued a memo to employees dated October 9
offering them two options with respect to issue of calculating
busdrivers’ pay. In connection therewith, Respondent met with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1222
employees, discussed these issues with them, and required them
to sign this document, selecting one of the two options. The
Union was not provided with a copy of this memo before its
implementation, nor was it consulted about Respondent’s deci-
sion to offer these options to employees.
Since these matters were clearly the subject of negotiations
between the parties, Respondent was obligated to bargain with
the Union about such matters, and not to discuss them directly
with employees. Such tactics are clearly antithetical to the
bargaining process and had the affect of undermining the Un-
ion. Such a finding is forcefully demonstrated by Respondent’s
conduct of blaming the Union for the dissatisfaction among
some employees with the new system which had been agreed
upon during negotiations.
Accordingly, I conclude that Respondent has further violated
Section 8(a)(1) and (5) of the Act by bargaining directly with
employees, requiring them to sign individual agreements con-
senting to one of two options concerning the issues that were
under negotiation with the Union, and by implementing the
change in terms and conditions of employment of employees as
set forth in the agreements that the employees signed. Harris-
Teeter Supermarkets, 310 NLRB 216, 217 (1993).
Finally, the evidence also establishes that Respondent
changed its prior practice, at least at the Bitely facility, of pay-
ing for time spent by employees on postinspections of their
buses. Since such changes were not discussed with the Union,
Respondent once again has violated Section 8(a)(1) and (5) of
the Act by such conduct. I so find.
CONCLUSIONS OF LAW
1. Respondent, FiveCAP, Inc., is and has been at all times
material, an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. General Teamsters Union, Local 406, International Broth-
erhood of Teamsters, AFL–CIO, is and has been at all times
material, a labor organization within the meaning of Section
2(5) of the Act.
3. At all times material, the Union by virtue of Section 9(a)
of the Act, has been, and is the exclusive representative of em-
ployees in the below described appropriate unit, for the pur-
poses of collective-bargaining with respect to rates of pay,
wages, and other terms and conditions of employment.
The unit is:

All full-time and regular part-time teacher aides, weatheriza-
tion laborers, bus drivers, clerks, kitchen aides, drivers of the
Tasty Meals program, assistant cooks, program information
specialists, county community support service workers, field
supervisors/pre-inspectors, post-inspectors, crew leaders, head
cooks, Head Start teachers and assistant community workers
employed by the Respondent at its facilities in Lake, Manis-
tee, Mason and Newago counties, Michigan; but excluding
executive directors, Mason County Director for Head Start,
Head Start head teachers, fiscal officers, community support
directors, weatherization directors, Head Start administrative
assistants, fiscal clerks, Head Start parent education coordina-
tors, Head Start disability service coordinators, guards and su-
pervisors as defined in the Act.

4. By threatening employees with discharge, loss of em-
ployment, or other reprisals because of their membership in,
support for, or activities on behalf of the Union, or because of
their testimony at, or assistance to the Union at an National
Labor Relations Board proceeding, or because of the employees
engaged in protected concerted activities, by coercively inter-
rogating employees concerning how they voted in a National
Labor Relations Board election, or concerning their member-
ship in, support for, or activities on behalf of the Union, or
concerning their participation in, and the participation of other
employees, in protected concerted activities, by advising em-
ployees that it knew how they voted in an National Labor Rela-
tions Board election, and by promulgating and maintaining an
overly broad no-solicitation, no-distribution rule, Respondent
has violated Section 8(a)(1) of the Act.
5. By accelerating the date of acceptance of the resignation
of Melissa Larson-Anderson, laying off, moving the office of,
and by discharging Dale Smith, by issuing a work evaluation to
Marva Taylor which placed her on probation with a recommen-
dation for termination, by discharging Verna Fugere and Tom
Belongia, by laying off, refusing to recall and refusing to con-
sider David Monton for the position of weatherization inspec-
tor, and by refusing to recall Amanda Lange and Melissa Kukla
to their positions as home visit teachers, and by refusing to hire
or consider Lange or Kukla for other available positions, be-
cause of the employees support for or membership in the Un-
ion, and because such employees testified or appeared and as-
sisted the Union at a representation hearing, and because the
employees engaged in other protected, concerted activities,
Respondent has violated Section 8(a)(1), (3), and (4) of the Act.
6. By laying off and refusing to recall Arthur Burkel, by re-
fusing to recall Karen Sandstedt and Jane Myers to their posi-
tions as home visit teachers and refusing to consider Sandstedt
and Myers for other available positions, by placing and
continuing Ann Walters on probationary status, by changing the
hours for which Bruce Kent was paid and issuing him discipli-
nary letters on September 23 and 27, 1995, because of the em-
ployees support for, or membership in the Union, and because
they engaged in other protected, concerted activities, Respon-
dent has violated Section 8(a)(1) and (3) of the Act.
7. By unilaterally changing the hours for which drivers were
paid at its Lake County center, by implementing changes in
terms and conditions of employment with respect to payment
for posttrip inspections, whether drivers can take their buses
home, and whether drivers can remain on Respondent’s prop-
erty between their morning and afternoon routes, without giv-
ing the Union notice and opportunity to bargain, about these
changes and/or without bargaining to impasse with respect to
those changes, and by engaging in direct dealings with employ-
ees and bypassing the Union concerning the above subjects,
Respondent has violated Section 8(a)(1) and (5) of the Act.
8. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. The Respondent has not violated the Act, in any other
manner as alleged in the complaint.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it cease and desist there-
from, and take certain affirmative action designed to effectuate
the policies of the Act.
The normal reinstatement remedy orders that employees be
reinstated to their former positions of employment, or if those
jobs no longer exist, to substantially equivalent positions. This
FIVECAP, INC. 1223
remedy is appropriate for discriminatees Tom Belongia, Dale
Smith, Verna Fugere, David Monton, and Arthur Burkel.53
However, with respect to discriminatees Melissa Kukla,
Amanda Lange, Karen Sandstedt, and Jane Myers, a different
reinstatement order is appropriate. Since the violation that I
have found above of refusing to recall these employees to their
home visit jobs, resulted from Respondent’s action of eliminat-
ing their home start positions at Manistee and Lake County, in
order to properly return the situation to the status quo, it is nec-
essary to require Respondent to restore its operations to where
it existed prior to the discrimination. We Can, Inc., 315 NLRB
170, 174 (1994). Therefore, it is appropriate to order Respon-
dent to restore its prior practice of operating a home visit pro-
gram at Manistee and Lake counties, and to reinstate these four
discriminatees to their former jobs at these facilities. Respon-
dent has not shown that such a remedy would be unduly bur-
densome. However, Respondent will be permitted to demon-
strate at the compliance stage of this proceeding, on the basis of
evidence not available at the time of the hearing that such a
remedy would be unduly burdensome or otherwise inappropri-
ate or impossible to be carried out. We Can, supra. If Respon-
dent is able to make such a showing at the compliance stage,
then its reinstatement obligation can be satisfied by reinstating
these employees to substantially equivalent positions.
Respondent shall also be ordered to make whole all of the
above-named discriminatees for any loss of earnings and bene-
fits suffered as a result of the discrimination against them.
Backpay shall be computed in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1956), plus interest in the man-
ner prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
In view of my finding and remedy for Respondent’s unlaw-
ful refusal to recall Kukla, Sandstedt, Lange, and Myers to their
former positions as home start teachers, it is not necessary to
order any affirmative remedy for my additional findings of
Respondent’s subsequent refusal to consider or hire them for
other available positions.
However, in the event that my findings with respect to the
initial refusal to recall are reversed as noted, I would still con-
clude that Respondent’s refusal to consider or hire these four
individuals for other positions was unlawful. In that event an
affirmative remedy would be required.
Inasmuch as the record is unclear as to precisely which of the
available positions would have been offered to which particular
discriminatee,54 I would leave to the compliance state of this
case, the resolution of these issues, Laro Maintenance Corp.,
312 NLRB 155 (1993), which would also affect the backpay
due to them.
It is not clear from the record whether any employees suf-
fered any monetary loss as a result of Respondent’s unlawful
unilateral changes, or its discriminatory change in its method of
calculating pay at Lake County, particularly since the Union
and Respondent reached agreement on a new system of calcu-
lating pay for all busdrivers, shortly after this discriminatory

53 While the evidence reflects that Respondent sent a letter of rein-
statement to Monton and Burkel, at the time of the hearing herein,
neither discriminatee had received such letter. Therefore, the question
of the effect of such letter on the rights of Burkel and Monton to rein-
statement and the amount of backpay due them, will be resolved at the
compliance stage of this proceeding.
54 I note for example that in some instances more than one discrimi-
natee had expressed interest in the same available position.
action. Similarly, while the record reveals that employees at
Bitely were told that they would no longer receive pay for
postinspection time, the record does not establish whether this
policy was applied at other facilities, or in fact whether any
employees at Bitely or elsewhere were actually denied pay for
this time.
Accordingly, in view of the above, if it is appropriate to or-
der that Respondent make whole its employees for any loss of
pay or other benefits caused by its unlawful unilateral changes,
plus interest, and leave to the compliance stage the determina-
tion of how much, if any, backpay dues is due to employees
based on these violations.
It is also appropriate to order Respondent to rescind its
unlawful unilateral changes of prohibiting drivers from taking
their buses home or remaining on Respondent’s property, be-
tween their morning and afternoon runs, its refusal to pay driv-
ers for postinspection time, and its individual agreements that it
negotiated with its employees regarding the parking of its
buses. I shall not recommend that Respondent rescind its uni-
lateral change in payment calculation with respect to the Lake
County facility, since that issue was resolved during negotia-
tions with the Union, and was encompassed by the agreement
between the parties which coerced drivers at all of its facilities.
Finally, it is appropriate to require Respondent to rescind the
disciplinary notices issued to Bruce Kent on September 23 and
27, 1995, as well as the probationary status conferred upon Ann
Walters on June 9 and July 18, and on Marva Taylor on May 1,
1995.
Based upon the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following recom-
mended55
ORDER
The Respondent, FiveCAP Incorporated, Scottvile, Michi-
gan, and at all its other facilities in Michigan, its officers,
agents, successor, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge, loss of em-
ployment, or other reprisals, because of their membership in,
support for, or activities on behalf of General Teamsters Union,
Local 406, International Brotherhood of Teamsters, AFL–CIO
(the Union) or because of their testimony at, or assistance to the
Union at a National Labor Relations Board hearing, or because
the employees engage in protected concerted activities.
(b) Coercively interrogating its employees concerning how
they voted in a Board election, or concerning their membership
in, support for, or activities on behalf of the Union, or concern-
ing their participation in, or the participation of other employ-
ees, in protected concerted activities.
(c) Advising its employees that it knows how they voted in a
Board election.
(d) Promulgating, or maintaining an overly broad no-
solicitation, no-distribution rule.
(e) Discharging, laying off, refusing to recall, refusing to
hire, or consider for hire, or moving the office of employees,
placing employees on probation, changing the hours for which
55 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1224
employees are paid, and issuing disciplinary letters to employ-
ees, or accelerating the date of acceptance of the resignation of
employees, or in any like or related manner discriminating
against employees, because they engage in activities on behalf,
or in support of the Union, or other protected concerted activi-
ties, or because they testify at, or assist the Union at a Board
proceeding.
(f) Bypassing the Union or bargaining directly with the em-
ployees in the above described unit, with respect to wages,
hours, and other terms and conditions of employment.
(g)Implementing changes in hours for which drivers are paid,
payment for post trip inspections, whether drivers can take their
vehicles home or remain on Respondent’s property between
their morning and afternoon routes, or in other terms and condi-
tions of employment of employees in the unit, without provid-
ing the Union notice and an opportunity to bargain and without
first bargaining to impasse.
(h) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Offer employees Tom Belongia, Dale Smith, Verna
Fugere, David Monton, and Arthur Burkel immediate and full
reinstatement to their former jobs, or if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority, or rights and privileges previously enjoyed.
(b) Restore its home start program at its Manistee and Lake
County facilities, and offer employees Melissa Kukla, Karen
Sandstedt, Amanda Lange, and Jane Myers immediate and full
reinstatement to their former jobs at these facilities, without
prejudice to their seniority or other rights and privileges previ-
ously enjoyed, as described above in the remedy section of this
decision.
(c) Make whole Belongia, Smith, Fugere, Monton, Burkel,
Kukla, Sandstedt, Lange, Myers, and Bruce Kent for any loss
of earnings and benefits suffered by reason of the discrimina-
tion against them, as well as all employees for any losses suf-
fered by reason of Respondent’s unlawful unilateral changes,
plus interest as described in the remedy section of this decision.
(d) Rescind the work rules implemented by Respondent pro-
hibiting busdrivers from taking their buses home or from re-
maining on Respondent’s property between their morning and
afternoon routes, and rescind the individual agreements negoti-
ated with employees with respect to the parking of buses.
(e) Restore its practice of paying drivers for time spent post
inspecting their buses.
(f) Rescind its disciplinary warnings issued to Bruce Kent on
September 23 and 27, 1995, its actions in placing Ann Walters
on probationary status, and remove from his files any reference
to these actions, as well as to the discharges or refusals to recall
Tom Belongia, Dale Smith, David Monton, Arthur Burkel,
Verna Fugere, Amanda Lane, Melissa Kukla, and Karen
Sandstedt, and notify each of these employees in writing that
this has been done and that the discharges, warnings, or proba-
tionary letters, shall not be used against them in any way.
(g) Rescind its overlybroad no-solicitation, no-distribution
rule.
(h) Restore the office of Dale Smith and Tom Belongia to its
previous location on the main floor.
(I) Preserve and, on request, make available to the Board or
its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(j) Post at its main office in Scottville, Michigan and at all its
other facilities in Michigan, copies of the attached notice
marked “Appendix.”56 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees, are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendence of these proceedings,
the Respondent has gone out of business or closed the facility
involved in this proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by Respondent at
any time since May 4, 1995.
(k) 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.
(l) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has taken
to comply.
IT IS FURTHER ORDERED that all violations alleged in
the complaint but not found are dismissed insofar as it alleges
violations of the act not specifically found.
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 violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT threaten our employees with discharge, loss
of employment, or other reprisals, because of their membership
in, support for, or activities on behalf of General Teamsters
Union, Local 406, International Brotherhood of Teamsters,
AFL–CIO (the Union) or because of their testimony at or assis-
tance to the Union at a Board hearing, or because the employ-
ees engaged in protected, concerted activities.
WE WILL NOT coercively interrogate our employees con-
cerning how they voted in a Board election, or concerning their
membership in, support for, or activities on behalf of the Union,
or concerning their participation in, or the participation of other
employees, in protected concerted activities.
WE WILL NOT advise our employees that we know how
they voted in a Board election.
WE WILL NOT promulgate or maintain an overly broad no-
solicitation, no-distribution rule.
WE WILL NOT discharge, lay off, refuse to recall, refuse to
hire, or consider for hire, or move the office of our employees,

56 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.”
FIVECAP, INC. 1225
place employees on probation, change the hours for which em-
ployees are paid, issue disciplinary letters to employees, or
accelerate the date of acceptance of the resignation of employ-
ees, or in any like or related manner discriminate against our
employees, because they engage in activities on behalf, or in
support of the Union, or other protected concerted activities, or
because they testify at or assist the Union at a Board proceed-
ing.
WE WILL NOT bypass the Union, or bargain directly with
our employees with respect to wages, hours, and other terms
and conditions of employment.
WE WILL NOT implement changes in hours for which driv-
ers are paid, payment for posttrip inspections, whether drivers
can take their vehicles home or remain on our property between
their morning and afternoon routes, or in other terms and condi-
tions of employment of our employees, without, providing the
Union notice and an opportunity to bargain and without first
bargaining to impasse.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer employees Tom Belongia, Dale Smith,
Verna Fugere, David Monton, and Arthur Burkel immediate
and full reinstatement to their former jobs, or if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority, or rights and privileges previously
enjoyed.
WE WILL restore our home start program at our Manistee
and Lake County facilities, and offer employees Melissa Kukla,
Karen Sandstedt, Amanda Lange, and Jane Myers immediate
and full reinstatement to their former jobs at these facilities,
without prejudice to their seniority or other rights and privi-
leges, previously enjoyed.
WE WILL make whole Belongia, Smith, Fugere, Monton,
Burkel, Kukla, Sandstedt, Lange, Myers, and Bruce Kent for
any loss of earnings and benefits suffered by reason of the dis-
crimination against them, as well as all employees for any
losses suffered them, by reason of our unlawful unilateral
changes, plus interest.
WE WILL rescind the work rules that we have implemented
prohibiting busdrivers from taking their buses home or from
remaining on our property between their morning and afternoon
routes, and rescind the individual agreements that we have
negotiated with our employees with respect to the parking of
buses.
WE WILL restore our practice of paying drivers for time
spent postinspecting their buses.
WE WILL rescind our disciplinary warnings issued to Bruce
Kent on September 23 and 27, 1995, our actions in placing Ann
Walters and Marva Taylor on probationary status, and remove
from our files any reference to these actions, as well as to the
discharges or refusals to recall Tom Belongia, Dave Smith,
David Monton, Arthur Burkel, Verna Fugere, Amanda Lange,
Melissa Kukla, Karen Sandstedt, and Jane Myers, and notify
each of these employees in writing that this has been done and
that the discharges, warnings, or probationary letters, shall not
be used against them in any way.
WE WILL rescind an overly broad no-solicitation, no-
distribution rule.
WE WILL restore the office of Dale Smith and Tom Be-
longia to its previous location on the main floor.

FIVECAP, INCORPORATED