Human Services Projects, Inc.d/b/a Teen Triumph

National Labor Relations Board - Administrative Judge Opinions

Jun 23, 2011

32-CA-025262 (N.L.R.B. Jun. 23, 2011)

JD(SF)–15–11
Stockton, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
HUMAN SERVICES PROJECTS, INC.
d/b/a TEEN TRIUMPH
and Case: 32–CA–25262
JAKE WALLACE, An Individual
D Criss Parker
for the General Counsel.
Scott Malm (Cassel, Malm, Fagundes)
of Stockton, California, for the Respondent.
DECISION
Statement of the Case
JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at Oakland,
California, on March 22–23, 2011. On August 4, 2010, Jake Wallace (Wallace) filed the charge
alleging that Human Services Projects, Inc. d/b/a Teen Triumph (Respondent or the Employer)
committed certain violations of Section 8(a)(1) of the National Labor Relations Act (the Act). The
Acting Regional Director for Region 32 of the National Labor Relations Board issued a
complaint and notice of hearing on January 21, 2011, against Respondent alleging that
Respondent violated Section 8(a) (1) of the Act. Respondent filed a timely answer to the
complaint denying all wrongdoing.
All parties have been afforded full opportunity to appear, to introduce relevant evidence,
to examine and cross-examine witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses,1 and having considered the posthearing briefs of
the parties, I make the following.

1 The credibility resolutions have been derived from a review of the entire testimonial record
and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the
teachings of NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). As to those
witnesses testifying in contradiction to the findings, their testimony has been discredited, either as
having been in conflict with credited documentary or testimonial evidence or because it was in and
of itself incredible and unworthy of belief.
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Findings of Fact and Conclusions of Law
I. JURISDICTION
Respondent, a California nonprofit corporation, has been engaged in the business of
providing group home residential care to behaviorally-challenged youths in various offices and
facilities located throughout the State of California, including an office in Stockton, California.
During the 12 months prior to the issuance of the complaint, Respondent received gross
revenues in excess of $250,000. During the same period of time, Respondent purchased and
received goods valued in excess of $5,000 which originated outside of California. During the
same period of time, Respondent received federal funding in excess of $50,000. Accordingly,
Respondent admits and I find that Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
Respondent is a nonprofit corporation that operates six separate residential homes. The
residential group homes serve adjudicated sex offenders and adjudicated probation youth ages
14 to 18. Jake Wallace, the Charging Party, began working for Respondent as a child care
worker at Respondent’s Heather House facility in October 2009. There is no evidence that
Wallace performed his job in anything but a capable and competent manner prior to May and
June 2010. General Counsel contends that Respondent discharged Wallace because he
engaged in protected concerted activities. Respondent contends that Wallace was not engaged
in concerted activities and that Wallace’s conduct was not protected. Respondent contends that
Wallace’s statements to his supervisors in front of other employees were disloyal, maliciously
false and undermined the reputation of Respondent and the supervisors.
B. Facts
Wallace worked as a child care worker at Respondent’s Heather House facility. Wallace
would be relieved by Desiree Coffee, night-staff employee. Wallace and Coffee routinely
discussed wages, staffing levels and other working conditions. During the period from
January 2010 through March 2010, Marti Fredericks, Respondent’s executive director, and her
husband Craig Fredericks, chief financial officer, informed employees that a lawsuit filed by the
California Alliance of Child and Family Services against the State of California could result in
benefits to employees.
On Friday, May 28, 2010, Respondent convened a regularly-scheduled Friday staff
meeting with its employees at Respondent’s headquarters. Craig Fredericks expressed
concern over the speed with which counties would make good on the payments from the
successful lawsuit. Fredericks announced that employees whose wages were cut in
February 2009 would have their wage rate restored but that Respondent was not yet in a
position to grant any raises or backpay.
After Craig Fredericks spoke, he asked for comments or questions. Wallace spoke up
and stated that employees were concerned that they had been promised retroactive pay and
raises. Wallace encouraged Fredericks to grant raises. Wallace also asserted that Respondent
was cutting corners in staffing. Fredericks disputed Wallace’s claims about staffing and Wallace
insisted that Respondent was not completely honest about staffing. Wallace also asserted that
Respondent’s low wages made it difficult for Respondent to hire and retain qualified employees.
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After Wallace spoke, employee Tiana Mack stated that she was happy just to have a job.
Employee Lisa Watson stated that she had been counting on a raise from Respondent. House
Manager Kathy Bonham stated that she was sick and tired of Respondent not fulfilling its
promises. House Manager Oliver Glover stated that the staff works hard and deserves more
money. Employee Ruben Harper stated that Respondent needed to pay. The meeting then
continued, and the employees broke into their individual house meetings.
On June 1, 2010, Wallace wrote a letter to Respondent’s Board of Directors. In the
letter, Wallace restated his position that Respondent had promised employees wage increases.
The letter sought financial information and minutes of Board of Director meetings.
Prior to the staff meeting of Friday, June 4, 2010, Wallace distributed copies of his
June 1 letter to employees. At the staff meeting Margo Castaneda, program director, stated that
she was going to address the “white elephant” in the room, referring to Wallace’s letter to the
Board of Directors. Castaneda said that the Board would be responding to Wallace. Castenda
said that Board of Directors’ meeting minutes could be accessed in Marti Fredericks’ office and
that Respondent’s financial information was available on a website.
During the June 4 meeting, Castenda told employees”if you’re disgruntled, if you don’t
want to work here you can just leave.” Employee Wanda Billsbury and house manager
Waynesha Fultcher expressed agreement with Castenda’s remark.
On Friday, June 4, Wallace received a call from Heather House Manager Grover Crump
stating that Castaneda and Crump wanted to meet with Wallace on Monday, June 7. Wallace
asked what the meeting was about, and Crump said it had something to do with Wallace’s
June 1 letter to the Board of Directors. Wallace stated that he was uncomfortable with such a
meeting and that he didn’t see the need for the meeting because he was expecting a response
from the Board of Directors. Wallace was not told the meeting was mandatory nor was he told
that he would be disciplined if he did not attend. Crump advised Castaneda that Wallace did not
wish to meet with them.
On June 9, Wallace sent a second letter to Respondent’s Board of Directors. Castaneda
testified that Craig and Marti Fredericks told her on June 10 that they had decided to discharge
Wallace. Respondent had prepared Wallace’s paycheck so that it could be provided to him on
June 11. On Friday June 11, Wallace distributed his June 9 letter to the Board of Directors to
his fellow employees. Castaneda announced that the employees would go to their individual
house meetings rather than all meet together as a group.
Craig Fredericks summoned Wallace from the Heather House meeting and brought him
to Marti Frederick’s office. Desiree Coffee accompanied Wallace as a witness. Marti Fredericks
informed Wallace that he was being discharged. Wallace asked why he was being terminated
and Marti Fredericks answered because of insubordination. Wallace asked for the specific acts
of insubordination and Marti did not respond. Wallace argued that Respondent had no basis to
fire him. Marti told Wallace he was no longer an employee and had to leave the premises.
Wallace refused to accept an envelope which contained his termination letter and final
paycheck.
As Wallace was walking back to the Heather House meeting, Craig Fredericks told
Wallace that he would have to leave or Respondent would call the police. Wallace said in a
threatening manner ”I am not leaving, and if you expect me to leave, you are going to have to
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come and make me leave this facility.” Wallace gestured towards Fredericks to come and fight.
Wallace told Fredericks to go ahead and call the police.
Wallace told the Heather House employees that he had been terminated. Craig
Fredericks told the employees that Wallace was no longer employed and could not be around
the employees. Wallace then left the room and went to the larger conference room.
When a police officer arrived, Wallace stated he preferred to stay in the room so there
would be witnesses. Wallace told the officer that he believed the discharge was unfair.
Eventually, the officer pulled out a billy club and handcuffed Wallace. They went outside where
the officer gave Wallace the option of leaving. Wallace said he had already been detained and
that the officer should go ahead and arrest him. The officer again gave Wallace the option of
leaving but Wallace did not accept. Wallace was arrested.
On June 14, Wallace received a June 8 warning letter which stated, inter alia;
(1) On Friday, June 4, 2010, your direct supervisor, Mr. Crump, and his direct
supervisor, Margo Castaneda, Program Director, requested to meet with you on
Monday, June 7, 2010. You refused to meet with us stating this is a matter with the
Board of Directors.
(2) The purpose of the meeting was to address that it was inappropriate for you to
circulate your letter during the all staff Friday meeting which caused disruption and
what appeared to be animosity amongst the staff. Your letter was addressed to the
Board of Directors, Grover Crump and Margo Castaneda and at the time did not
involve other staff members.
The termination letter received that same date states that Wallace was terminated for
“insubordination and actions and conduct which adversely reflects on the company.”
On June 14, 2010, Marti Fredericks filed with the San Joaquin County Superior Court a
“Request for Order to Stop Harassment.” On August 17, 2010, the Superior Court entered an
“Amended Restraining Order after Hearing to Stop Harassment.” Wallace claims that he never
received notice of this case and thus did not appear at the hearings.
C. Respondent’s Defense
Respondent contends that Wallace was not looking toward group action or seeking to
initiate action in concert with other employees. Respondent further contends that Wallace was
discharged for insubordination. Respondent contends that Wallace was discharged for refusing
to meet with Crump and Castaneda and for accusing the Fredericks of lying, cheating and
violating the law.
Respondent contends that Wallace became aggressive, antagonistic and threatened
Craig Fredericks. Respondent contends that Wallace refused Fredericks’ orders to leave the
premises and in a threatening manner stated that he was not leaving and that Fredericks was
going to make him leave.
Further, Respondent offered evidence that on November 16, 2010 Wallace approached
Kay Tiffany, bookkeeper at a post office and engaged in a profanity-laced tirade. Wallace
followed Tiffany to her car and continued his profanity laced tirade. Wallace called Tiffany “a
criminal and a f______ bookkeeper”. Tiffany attempted to close her car door, Wallace grabbed
the door and would not let her go. Finally, Tiffany closed the car door and drove back to work.
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Finally, Respondent obtained evidence that while Wallace operated his children’s home
several complaints were filed against him. Respondent contends that had it obtained such
information prior to Wallace’s hire, Wallace never would have been hired.
D. The Discharge of Wallace
Pursuant to Section 7 of the Act, employees have the right to engage in concerted
activities for their mutual aid and protection. Employees having no bargaining representative
and no established procedure for presenting their grievances may take action to spotlight their
complaint and obtain a remedy. NLRB v. Washington Aluminum Co., 370 U.S. 9, 12–15 (1962).
Accordingly, an employer may not, without violating Section 8(a)(1) of the Act, discipline or
otherwise threaten, restrain, or coerce employees because they engage in protected concerted
activities.
The Act protects employees who engage in individual action which is “engaged in with
the objective of initiating or inducing group action.” Mushroom Transportation Co. v. NLRB, 330
F. 2d 683, 685 (3d Cir. 1964); Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1365
(4th Cir. 1969). Moreover, an employee need not first solicit other employees’ views for his
activity to be concerted. See Whittaker Corp., 289 NLRB at 933–934 (employee was engaged
in concerted activity where, not having had a chance to meet with any employee beforehand, he
made a comment in protest as a spontaneous reaction to the employer’s announcement that no
annual wage increase would be forthcoming). See also Enterprise Products, 264 NLRB at 949–
950; Cibao Meat Products, 338 NLRB at 934. Thus, the Board has held that an employee who
protests, in the presence of other employees, a change in an employment term affecting all
employees just announced by the employer at a group meeting, is engaged in the initiation of
group action. See Enterprise Products, 264 NLRB at 949–950. In addition, employees do not
have to accept the individual’s invitation to group action before the invitation itself is considered
concerted. El Gran Combo, 284 NLRB 1115 (1987).
Accordingly, I find that Wallace was engaged in the initiation of group action when he, in
the presence of other employees, protested Respondent’s decision not to grant a wage
increase. Further, other employees later expressed a similar view about the wage issue.
I next turn to the question as to whether Wallace’s actions were protected. When an
employee is discharged for conduct that is part of the res gestae of protected activities, the
question is whether the conduct is so egregious as to take it outside the protection of the Act, or
of such character as to render the employee unfit for further service. Dickens, Inc, 352 NLRB
667, 672 (2008); Caval Tool Division, Chromalloy Gas Turbine Corporation, 331 NLRB 858, 863
(2000); Consumer’s Power Company, 282 NLRB at 132; Firch Baking Company, 232 NLRB 772
(1977). Employees are permitted some leeway for impulsive behavior when engaged in
concerted activity, as the language of the shop is not the language of polite society. Dries &
Krump Manufacturing, 221 NLRB 309, 315 (1975) Phoenix Transit System, 337 NLRB 510, 514
(2002) (even the most repulsive speech enjoys immunity provided it falls short of deliberate or
reckless untruth; federal law gives license to use intemperate, abusive or insulting language
without fear of restraint or penalty if the speaker believes such rhetoric to be an effective means
to make a point) Protection is not denied to an employee regardless of the lack of merit or
inaccuracy of the employee’s statements, absent deliberate falsity or maliciousness, even
where the employee’s language is stinging and harsh. CKS Tool & Engineering, Inc. of Bad
Axe, 332 NLRB 1578, 1586 (2000); Delta Health Center, Inc., 310 NLRB 26 (1991).
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Under the circumstances, I find that Wallace’s accusations against the Fredericks did not
lose the protection of the Act. Wallace argued in good faith that Respondent should grant the
wage increase he perceived had been promised to employees and argued his view that
Respondent did not properly staff its facilities. I reject Respondent’s characterization of
Wallace’s conduct as malicious. Accordingly, I find that Respondent violated Section 8(a)(1) of
the Act by discharging Wallace due to his protected concerted activity.
However, subsequent to his discharge Wallace threatened Respondent’s bookkeeper
Tiffany. This coupled with Wallace’s threatening behavior towards Craig Fredericks on the day
of the discharge, in my opinion makes Wallace ineligible for reinstatement.
E. Castaneda’ Independent violation of Section 8(a)(1)
At the June 4 staff meeting, Castaneda told employees that if they were not happy with
working conditions at Respondent’s facilities, they should quit their employment and work
elsewhere. By such conduct I find that Respondent violated Section 8(a)(1) of the Act. See
Paper Mart,319 NLRB 9 (1995); Jupiter Medical Center Pavilion, 346 NLRB 650, 651 (2006),
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by telling employees that if they were
not satisfied with working conditions they should quit their jobs and work elsewhere.
3. By discharging employee Jake Wallace because of his protected concerted activities,
Respondent violated Section 8(a)(1) of the Act.
4. Jake Wallace engaged in post discharge conduct which made him unfit for further
service with Respondent.
5. The above unfair labor practices are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
The Remedy
Having found that Respondent engaged in unfair labor practices, I shall recommend that
it be ordered to cease and desist therefrom and that it take certain affirmative action to
effectuate the policies of the Act.
The Respondent, having discriminatorily discharged Jake Wallace, shall be directed to
make Wallace whole for any and all loss of earnings and other rights, benefits and privileges of
employment he may have suffered by reason of Respondent's discrimination against them, with
interest, from the date of his discharge until November 16, 2010. Backpay shall be computed in
the manner set forth in F.W. Woolworth Co., 90 NLRB 289 (1950), plus daily compound interest
as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.2
ORDER
Respondent, Human Services Projects Inc., d/b/a Teen Triumph, its officers agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because of their protected concerted activities,
(b) Threatening employees with discharge for engaging in protected concerted
activities.
(c) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Jake Wallace whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him in the manner set forth in the remedy section of the
decision.
(b) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Within 14 days after service by the Region, post at its facilities in Stockton,
California, copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 32, after being signed by Respondent’s authorized
representative, shall be posted for 60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to ensure the notices are not altered, defaced or covered by other material. In the
event that, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facilities involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the attached notice to all current employees and former
employees employed by the Respondent at any time since June 4, 2010. In addition to physical
posting of paper notices, notices shall be distributed electronically such as by email, posting on
an intranet or an internet site, or other electronic means, if the Respondent customarily
communicates with its employees by such manner.

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(d) 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 Respondent has taken to comply.
Dated, Washington, D.C., June 23, 2011.
_______________________
Jay R. Pollack
Administrative Law Judge
JD(SF)–15–11
Stockton, CA
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 Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge employees because of their protected concerted activities,
WE WILL NOT threaten employees with discharge because of their protected concerted
activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL make Jake Wallace whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, with interest, from the date of his discharge until the
date he engaged in disqualifying conduct.
Human Services Projects, Inc., d/b/a Teen Triumph
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1301 Clay Street, Federal Building, Room 300N
Oakland, California 94612-5211
Hours: 8:30 a.m. to 5 p.m.
510-637-3300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 510-637-3270.