Singer Company, The

National Labor Relations Board - Board Decisions

Jun 30, 1981

256 N.L.R.B. 989 (N.L.R.B. 1981)

I'llF SINGER COMPANY 9X9
The Singer Company, Education Division, Career
Systems, San Jose Job Corps Center and Office
and Professional Employees Union, Local 29.
Case 32-CA-1830
June 30, 1981
DECISION AND ORDER
On April 30, 1980, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's estlablished
policy not to overrule an administrative law judge's resolutionls ith re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950). enfd 188 F2d 362 (d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings.
2 The Administrative Law Judge found, and we agree, that the em-
ployees here engaged in a protest solely over the promotion of Smith to
the position of supervisor of residential living, and that other reasons ad-
vanced for the protest were merely make-weight We further find that
the position in question did not have a sufficiently direct impact on em-
ployees' working conditions to bring the employee protest conlcerning
this supervisory promotion within the protections of the Act Comllpare
Puerto Rico Food Products Corp.. Tradewindv Food. Inc. and lsland Can
Corp., 242 NLRB 899 (1979), in which a sufficient nexus did exist
Member Zimmerman finds that, under any view of the applicable lass.
the supervisory position in question did not have a sufficiently direct
impact on working conditions. In view of our finding herein, we need
not consider whether the additional grounds relied on by the Administra-
tive Law Judge would render the protest unprotected
Chairman Fanning finds it unnecessary to consider whether the protest
otherwise would have been protected because he swould find, in agree-
ment with the Administrative Law Judge, that the employees lost the
protection of the Act when they invited Jobs Corps enrollees to lease
classes and join in their protest.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge:
This case was heard before me at San Jose, California,
on November 20, 1979. The charge and amended charge
were filed, respectively, on May 31 and July 16, 1979, by
Office and Professional Employees Union, Local 29,
herein called the Union. The complaint issued on July
256 NLRB No. 157
23, 1979, alleging that The Singer Company, Education
Division, Career Systems, San Jose Job Corps Center,
herein called Respondent, violated Section 8(a)(1) of the
National Labor Relations Act, as amended.
Issue
The primary issue is whether Respondent, a contractor
operating a Federal Job Corps Center, violated Section
8(a)(1) of the Act by suspending for 5 days without pay
six resident advisors and a security officer because they
encouraged Job Corps students to boycott classes and to
participate in a demonstration against Respondent.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
Upon the entire record' of the case and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New Jersey corporation, maintains an
office and place of business in San Jose, California,
where it is engaged in the operation of a residential Job
Corps Center. During the year immediately preceding is-
suance of complaint Respondent performed services
valued in excess of $50,000 for the United States Depart-
ment of Labor. The question of whether or not the
Board should assert jurisdiction over Respondent was
fully litigated in Case 20-RC-14178 (subsequently desig-
nated Case 32-RC-628). On April 30, 1979, the Acting
Regional Director for Region 32 of the Board certified
the Union as the collective-bargaining representative of
Respondent's resident advisors (referred to as RAs) at its
Job Corps Center in San Jose, California.2 That certifica-
tion followed after a telegraphic order from the Board
dated March 7, 1979, which read in part:
Re: The Singer Co., Education Div., Career Sys-
tems, San Jose Job Corps Center, 20-RC-14178.
Having duly considered the entire record including
the Employer's request for review and the brief of
the Secy of Labor as amicus curiae, the Board
hereby affirms the Regnl Dir's Decision and Direc-
tion of Election finding that the Employer does not
share the Department of Labor's exemption from
the Act. The Singer Co., Education Div., Career Sys-
tems, Detroit Job Corps Center, 240 NLRB 965
(1979).
Errors in the transcript hase been noted and corrected
2 The bargailling unit w as
All fill-time and regular part-time advisors I & II employed by the
Emplo\cr atl ts Job C rps Center il San Jse Californial cxcluding
all olther employes. professiolal employees. office clerical eniploy-
ccs. guards and supervisors a defined In the Act
tiE SI NGLR CONI I'ANY 8
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the Board has resolved the question of jurisdiction, I
find that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.3
II. THE I.ABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE AI.LEGED UNFAIR LABOR PRACTICES
A. The Background
Pursuant to the provisions of the Comprehensive Em-
ployment and Training Act of 1973, as amended 4 the
United States Department of Labor (D.O.L.) has estab-
lished a Job Corps program. 5 Job Corps Centers have
been established at a number of locations throughout the
United States. The program is designed to give educa-
tional and vocational training and related support serv-
ices to economically disadvantaged youths aged 16
through 21.
Respondent has contracted to operate 11 Job Corps
Centers for the D.O.L. at various locations. One of those
Job Corps Centers is located in San Jose, California, and
that is the situs of the dispute in the instant case.
The San Jose Job Corps Center is a residential facility
in which approximately 300 corpsmembers (students) live
in resident dormitories and are given academic and voca-
tional training as well as support services. The typical
corpsmember is about 17-1/2 or 18 years old, comes
from an economically or socially deprived background,
and is usually an unemployable high school dropout. Re-
spondent does not select the people who will become
corpsmembers. Males are selected by the California Eco-
nomic Development Department and females by a com-
munity organization known as Women in Community
Service. Under D.O.L. regulations, corpsmembers are
not considered Federal employees. As described by resi-
dent advisor Laura Magdaleno, the function of the Jobs
Corps program is to prepare the corpsmen for outside
life, to give them the skills they need to survive.
Respondent provides some of the instruction to corps-
members at the Center" and subcontracts to various
public and private schools in the area for most of the vo-
cational training. The Center is unusual in that it is locat-
ed in an urban setting near a residential neighborhood.
There has been opposition to having the Center at that
location and a group of local land owners known as the
Campus Community Association has made an effort to
have the zoning laws changed to prevent the Center
from operating in that area. The Center directors have
attempted to keep a low profile and to avoid bad public-
ity that would give the Campus Community Association
ammunition that could hurt the Center.
3 Respondent argues in its brief that the Board should not assert juris-
diction. However, as I ant hbound by the Board's prior determination, that
argument must be addressed to the Board or higher authority.
4 P. L. 93-203, 87 Stat. 839.
r The D.O.L has published rules and regulations relating to the estab-
lishment, funding, operation, and nmanagement of Job Corps Centers Fed
Reg., vol. 40, number 211 (October 31, 1975)
6 Unless otherwise specified the Center refers to Responldent's Job
Corps Center in San Jose.
Respondent maintains five resident dormitories at the
Center. Respondent employs resident advisors, known as
RAs, to provide for the corpsmembers' needs in the dor-
mitories. The RAs see to it that the corpsmembers per-
form their assigned duties, keep discipline in the dormi-
tories, involve themselves with supply and maintenance
matters, and do such things as control disputes between
corpsmembers. They work in three shifts with six RAs in
the swing shift from 3 p.m. to midnight; five RAs in a
night shift from 11:30 p.m. to 8:30 a.m.; and a number of
RAs on a weekend shift. The RAs report to a senior
residential advisor 7 who in turn reports to a supervisor
of residential living. The supervisor of residential living
dealt both with the senior residential advisor and with
the RAs. The supervisor of residential living informed
the RAs of the status and problems of corpsmembers,
and of things to be looked for and maintained in the dor-
mitories. About every other day the supervisor of resi-
dential living met with the RAs and the senior residential
advisor to discuss such problems as the use of drugs in
the dormitories and the activities that were going on.
She told them to do such things as maintain the yard and
to look out for particular problems. She approved or
denied special arrangements with RA schedules and she
informed the RAs of new procedures and rules. The
RAs spoke to her about maintenance and supply prob-
lems if the senior residential advisor could not solve the
problem.
As is indicated above, on April 30, 1979, the Union
was certified as the collective-bargaining representative
of the RAs.
B. The Events Leading to the Demonstration
The six RAs who are on the swing shift were Vince
Doherty, Gail Harris, Tabblair Hope, Raul Lugo, Laura
Magdaleno, and Steve Padilla. On May 16, 1979, all six
of the RAs met with senior residential advisor Al Noley
in Noley's office. Noley told them that he had applied
for the position of supervisor of residential living but
that the job had been given to Mike Smith. That position
was open because Mary Reber who had held that job
was given a promotion to another position.
That evening after their shift was over all of the swing
shift RAs except for Doherty met at the home of RA
Hope. Robert O'Brien, a security officer employed by
Respondent, also attended that meeting. In the meeting
they discussed their displeasure with Smith being named
the supervisor of residential living instead of Noley.
There was talk about Noley working there for a long
time, his familiarity with procedures, and his rapport
with RAs and corpsmembers. From there the discussion
became a generalized gripe session. There was mention
of uneven enforcement of rules against corpsmembers; a
discussion of the fact that RA Hope had been asked to
RA Magdaleno credibly telified lo the duties of senior residential
advisor Noley as follows:
To inform us of the things that were happening there around the
Center If here ere any special things hat had to be done, any spe-
cial things e had to look for He ould inform us about corps-
members, their status. If h sas any problems ssith any of them lie
just kind of generally ran he meetings s e had
THE SINGER COMPANY 991
resign and that she believed she was being picked on;
there was talk of RA Magdaleno being hired because she
was Hispanic even though she did not have the qualifica-
tions; there was a discussion of the lack of a future that
RAs had with Respondent; there was a discussion of
such things as the lack of supplies to do the work, the
lack of maintenance, the existence of plugged toilets, and
money being spent on unnecessary things; and there was
talk about an RA's belief that he did not get a promotion
because he was Hispanic. The participants at the meet-
ings decided that the next day they would speak to
Center Director Kenneth Dugan about the supervisory
appointment. 8
At about 3:15 p.m., on May 17, 1979, Center Director
Dugan met with the six RAs in his office. The RAs ex-
pressed concern that Smith was appointed supervisor of
residential living rather than Noley. Dugan said that he
thought Smith was better qualified but that as it was a
personnel matter and as neither Smith nor Noley were
there, he did not feel at liberty to discuss it. RA Harris
asked a question relating to why she had been passed
over for a time for promotion from resident advisor I to
resident advisor II. She also mentioned something about
her being passed over because she was black. Dugan said
that qualification was the only criteria. One of the RAs
said something about there being no black supervisors.
Dugan replied by reading off a list of several black su-
pervisors who were working for Respondent. Magdaleno
asked if she would be considered for an RA II position
and Dugan replied that she would be considered. In the
course of the meeting Dugan told the RAs that Respond-
ent did not hire because of race but that it did look for a
bilingual RA staff because of the large number of His-
panic corpsmembers. 9 The meeting ended with Dugan
thanking the RAs for coming and expressing their con-
cerns. He invited them to come back if they wanted to
chat some more.
Shortly after the meeting with Dugan the six swing
shift RAs met among themselves in the security office.
They discussed their dissatisfaction with the answers that
Dugan had given them and they decided to hold a dem-
onstration the following day. They also decided to invite
the corpsmembers to get up a list of their own griev-
ances and to participate in the RAs' demonstration. The
demonstration was planned to last about an hour and to
8 Magdaleno, the only witness to testify on behalf of he General
Counsel, averred:
We discussed going into Ken Dugan's office and taking him up on
his open-door policy and discussing with him how dissatisfied we
were with the decision of the person that filled the position of super-
visor, and that we would go in there and talk to him about that
These findings are based on the testimony of Dugan The only other
witness to testify concerning this meeting was RA Laura Magdaleno
Magdaleno testified that a number of other topics were discussed at that
meeting including the lack of supplies, broken toilets, inconsistency of
rules applied to corpsmembers, and arious other complaints An affida-
vit that Magdaleno gave to the General Counsel which referred to that
meeting did not mention many of those items In addition, Magdaleno
testified that at the end of the May 16 meeting the employees decided
talk to Dugan about the supervisory appointment During that part of her
testimony she did not refer to an3 decision to talk to him about other
matters Dugan was a credible wilness who appeared to have a verv
good memory. I believe that his recollection of the incident was more
accurate than Magdaletios and I credit Dugan
start at 8 a.m. on May 18. There was a discussion about
telling corpsmembers who had tests to take to take those
tests rather than participating in the demonstration.
Classes for the corpsmembers were held from 8 a.m. to 4
p.m. so that corpsmembers who participated in the dem-
onstration would have to skip some of their classes. They
discussed the demonstration as being a sit-in.
At or about 4 p.m. that day the RAs went to the var-
ious dormitories and told the corpsmembers about the
planned demonstration. RA Magdaleno personally went
to one dormitory and spoke to about eight corps-
members. She told them that the RAs were dissatisfied
with Respondent's decision with regard to filling the po-
sition of supervisor of residential living and that they
were going to have a demonstration the next morning.
She invited them to get their own grievances together
and join in the demonstration. She also told them that it
would be completely organized, that they should keep
close together, that it would last for an hour, and that
anyone who had tests should go and take the tests.
C. The Demonstration and the Discipline
About 7:30 a.m., on May 18, about 240 corpsmembers
gathered in front of their dorms. At or about 8:15 a.m.
the swing shift RAs led the corpsmembers to dormitory
No. 201. The six swing shift RAs and security officer
O'Brien mingled with the corpsmembers and kept them
in an organized group. RA Doherty led the entire group
in chanting something to the effect that people united-
people will survive. All of the swing shift RAs partici-
pated in the chanting. The demonstration lasted for
about an hour and a half. The 240 corpsmembers who
participated did not attend their scheduled classes until
later that day.
During the demonstration Peter Gregerson, Respond-
ent's deputy director for education and training, spoke to
Security Supervisor Troy Haynie who told him that at
that point things were under control. Gregerson saw
Ron Lloyd, who was a member of the student govern-
ment, participating in the demonstration and he asked
Lloyd about the demonstration. Lloyd told him that they
were concerned about the fact that Noley did not get a
promotion, about the RAs' pay, and about other griev-
ances. Gregerson asked Lloyd whether that was a stu-
dent government function and Lloyd said that it was not.
After talking to some other student government repre-
sentatives Lloyd addressed the demonstrators and told
them that a meeting was scheduled with Dugan and that
they should return to their classes. The demonstrators
booed Lloyd. RAs Hope and Doherty quieted the stu-
dents. Doherty told them that their action was having
results and Hope told them that she was proud of the
students.
During the course of the demonstration a camera crew
from Channel I in San Jose came on the scene and
spoke to Dugan.
"' RA Magdaleno, who was the only witlless to tesify about this dls-
cussion. acrred: We discussed our demonstration a being a it-in., Just
sitting there in front of 2011 " She averred that they planned for the RAs
and the corpslmembers who did not have tests to demonstrate together
THE SINGER COMPANY Q9 I
992 DECISIONS OF NATIONAL LABOR RELATIONS B()ARD
At or about 9:30 a.m., Dugan and Gregerson met with
Lloyd and about seven other student representatives in
the conference room of building 201. During the discus-
sion RA Doherty stuck his head in the door and asked
one of the students if they had the RAs' grievances.
Most of the discussion related to the decision to give
Smith rather than Noley the supervisory job. There was
also talk about the physical facilities such as the gym and
the pool as well as matters relating to maintenance, sup-
plies, and discipline.
Sometime later that morning Gregerson met with a
large number of corpsmembers in an assembly in the
cafeteria. RAs Hope, Lugo, Doherty, and Magdaleno
were also present. The corpsmembers conducted that
meeting. Corpsmember Lloyd told the others what had
happened with the discussion with Dugan shortly before.
Doherty addressed the group and said that he was proud
of the way the students had conducted themselves and
that this was not the first nor the last time that the
people would speak out.
At or about 1 p.m. student representatives met again
with Dugan and they discussed the subjects that had
been raised at the morning meeting.
At or about 2:45 p.m., Gregerson met with all of the
swing shift RAs except for Harris in the health-ed class-
room. Security Officer O'Brien, who participated in the
demonstration, was also present. There was a discussion
about the promotion of RAs and RA Lugo complained
that he had not received word about a promotion to the
San Diego Job Corps Center. Gregerson replied that he
did not know anything about it. RA Doherty said that
they had discussed with the corpsmembers concerns
about the condition of dorms and getting supplies and
the uniting of those grievances in the form of a demon-
stration. There was talk about the boycotting of the
classes. Gregerson asked whether they wanted to meet
with Dugan and the RAs said that they did not.
About 4 p.m. that day Dugan called the RAs' union
representative, Nancy Gaschott, and asked her whether
she knew anythihg about the demonstration and the
RAs' participation in it. Gaschott said that she was not
really aware of it but that she had heard some rumors
about a problem with the appointment of a supervisor.
The demonstration was held on Friday, May 18, 1979.
Dugan was out of town on a business trip the following
Monday through Wednesday. When he returned to the
Center on Thursday, May 24, 1979, he discussed the situ-
ation with Gregerson. Gregerson had personally ob-
served RAs Doherty, Harris, Hope, Lugo, Magdaleno,
and Padilla as well as Security Officer O'Brien at the
demonstration. He told Dugan that the RAs had manipu-
lated the students to stay out of class and that discipline
was warranted. From all of the information he received,
Dugan concluded that the six RAs and O'Brien had en-
couraged the students to participate in the demonstration
and boycott. He decided to suspend the swing shift RAs
and O'Brien for encouraging the corpsmembers to boy-
cott and demonstrate. The six swing shift RAs and
O'Brien were given a layoff without pay for 5 working
days from Saturday, May 26 until Sunday, June 3, 1979,
and were sent copies of the following letter:
This is to inform you that effective immediately,
you are suspended from work for the period of five
(5) working days starting immediately, Saturday,
May 26 until Sunday, June 3, 1979.
Your actions last Friday were nothing short of
gross misconduct. You did in fact, manipulate
young Corpsmembers into misconduct and rule vio-
lation to further your own personal attitudes and
objectives. Not only are these actions a violation of
acceptable conduct, they may be a violation of Fed-
eral Law. The Department of Labor/Job Corps has
already been informed of your actions.
Upon your hire at this Center. you entered into
an employment contract to which you certified that
"Any employee who engages in any disruptive or
other conduct which reflects unfavorably on the
Center. .... is subject to the provisions of the disci-
plinary procedure including summary dismissal."
I wish to make it perfectly clear that any further
disruptive behavior on your part, or violation of
rules, policies, standards of conduct, etc., will be
dealt with severely leading to termination. This
Center views this kind of behavior as totally un-
justified.
During your suspension you are not to involve
yourself with the Center or be part of any action of
a disruptive nature to the Corpsmembers, staff or
Center operations. You will be expected to report
for work Monday, June 4, 1979, at your normal
time.
Dugan testified as follows:
The basis for the suspension was the resident ad-
visors encouraging the students to boycott and dem-
onstrate and what I felt was an unprofessional be-
havior and a danger, a grave danger, not only to
the Corpsmembers but to the Center in total, and
there was a possible riot situation at hand.
D. Analysis and Conclusions
The six RAs and the security officer were given 5-day
suspensions without pay because they involved the
corpsmembers in the demonstration and boycott of
classes. II Consideration must be given to the question of
whether the RAs' own participation in the demonstration
was protected and if so whether their inducement of the
corpsmembers to participate went beyond the scope of
that protection.
The General Counsel contends that the demonstration
was planned and carried out for two purposes. The first
was to protest the appointment of Smith rather than
Noley as supervisor of residential living. The second was
to protest a number of grievances which included such
diverse matters as the inability to obtain supplies and the
existence of stopped-up toilets. The evidence, when
i' This finding is based on the testimony of Dugan. The General
Counsel does not contend that there was any other reason for the disci-
pline and in her brief she states that the only issue presented related to
the invitation the residential advisors gave to the corpsmembers to join
them in a demonstration and boycott and their engaging in that activity
together
THE SINGER COMI'ANY 993
viewed as a whole, does not support the General Coun-
sel's contention that the second reason was a motivating
cause of the demonstration. On May 16 Noley told the
RAs that he had been passed over for the supervisory
position and that it was being given to Smith. The same
day all of the RAs except for Doherty met with Security
Officer O'Brien. They discussed a number of matters but
there was only one topic that they decided to discuss
with Dugan the following day. That involved the super-
visory question. The credited testimony relating to the
meeting on May 17 with the RAs and Dugan establishes
that the RAs' primary concern was with the supervisory
issue. Later on May 17, when Magdaleno invited the
corpsmembers to participate in the demonstration she
told them that the RAs were dissatisfied with the deci-
sion relating to filling the position of supervisor of resi-
dential living and that they were going to demonstrate.
The RAs may have had a number of half-thought-out
grievances against Respondent but I do not believe that
any of them other than the supervisory issue was causal-
ly connected to the demonstration. They were told of
the supervisory problem and they reacted to it. I believe
that all of the other alleged grievances were merely
make-weights and were not causally related to the dem-
onstration. The question is squarely raised whether the
RAs had a protected right to protest the selection of a
supervisor.
In Puerto Rico Food Products Corp., 242 NLRB 716
(1979),l2 the Board held:
Whether concerted actions by employees to pro-
test an employer's selection or termination of a su-
pervisor fall within the purview of Section 7 of the
Act depends on the facts of each case. In this
regard the Board has consistently held that where
facts establish that the identity and capability of the
supervisor involved has a direct impact on the em-
ployees' own job interests they are legitimately con-
cerned with his identity and thereby have a protect-
ed right to protest his termination. 4
4 Dobbs House. Inc., 135 NLRB 885. 888 (1962). enforcement
denied 325 F.2d 531 (5th Cir. 1963) see also Kelso Marine. Inc.
199 NLRB 7 (1972); Plastilite Corporation. 153 NLRB 180 (1965).
modified on other grounds 375, F.2d 343 (8th Cir. 1967), Clever-
Brooks Manufacturing Corporation, 120 NLRB 1135 (1958), en-
forcement denied 264 F.2d 637 (7th Cir. 1959); Ace Handle Corpo-
ration. I00 NLRB 1279 (1952).
The Board held that the key question was whether the
employees were legitimately concerned about the impact
of the selection of the supervisor on their own working
conditions. In that case a violation was found because
the employees had a genuine interest in the continued
employment of a supervisor who had exhibited concern
about their welfare and had counseled them on matters
directly bearing on their employment relationship.
In the instant case the employees wanted Noley to be
the supervisor. They believed that Noley was more fa-
miliar than Smith with their procedures and that Noley
had rapport with the RAs and the corpsmembers. As the
i2 See also A4bilities and Goodwll. Inc., 241 NLRB 27, enforcement
denied 612 F2d 6 (st Cir 1979)
supervisor of residential living, Noley would have made
arrangements concerning the RAs schedules and times
off. He would have discussed problems concerning
corpsmembers with them and he would have established
new rules and procedures and helped resolve problems
such as supply. All of those matters could have a direct
impact on the RAs' own working conditions. '3
There is, however, a critical factual distinction be-
tween the situations in the Puerto Rico Food Products line
of cases and the instant case. In the Puerto Rico Food
Products line of cases, employees who did not have any
collective-bargaining representative took direct action re-
lating to the retention or dismissal of a company supervi-
sor. There were no collective-bargaining concepts to be
considered. In the instant case the RAs had selected a
collective-bargaining representative and the Board had
certified that representative. Respondent and the Union
had the mutual obligation to bargain with each other. In
such circumstances both the employer and the union
have the right to select their own representatives free
from interference by the other side. If either a company
or a union could control the selection of representatives
by the other side there could be no meaningful collective
bargaining. Instead of a dialogue the party who con-
trolled the selection of the representative for the other
side would merely be talking to itself. Section 8(b)(1)(B)
of the Act provides that it is an unfair labor practice for
a labor organization or its agents to restrain or coerce an
employer in the selection of his representatives for the
purposes of collective bargaining or the adjustment of
grievances. See Laborers' International Union of North
America, AFL-CIO (International Builders of Florida.
Inc.), 204 NLRB 357, enfd. 505 F.2d 192 (D.C. Cir,
1974); American Broadcasting Companies Inc. Writers
Guild of America, West, Inc., et al. v 437 U.S. 411 (1978).
A serious argument could be made that if the Union had
called the demonstration and work stoppage in an at-
tempt to control the selection of the supervisor of resi-
dential living, the Union would have violated Section
8(b)(1)(B) of the Act.' 4 That section applies only to
labor organizations and their agents and does not apply
to employees who are acting other than as agents for the
union. The employees side-stepped their Union in this
case and acted on their own. It appears that they did not
even inform the Union what they were going to do.'5
" Indeed, it is difficult to see how any supervisor who had direct con-
tact with employees could do other than have a direct impact on employ-
ees' working conditions.
14 The full duties of the supervisor of residential living were not
spelled out in the record. However, it does appear that the person hold-
ing that position directed the work of the RAs and made decisions con-
cerning their schedules Both Respondent and the RAs appeared to look
on that position as a supervisory one As the supervisor of residential
living made decisions with regard to the work and scheduling of the
RAs, it seems likely that that person had authority to adjust grievances
with regard to such matters
's Though the employees acted ithout going through their union,
that in itself did not deprive the employees of whatever protected status
they otherwise would have had. Their action did not so undermine the
collective-hargaining status of the Union or bypass established grievance
procedures as to lose such protection Cf Emporium-Capv'll Co. v
Waco. 420 S 5) (1975) The Union is the Charging Party in this case
THE SINGER COMI5AN'
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, in such circumstances I do not believe that
employees have a protected right to circumvent their
own collective-bargaining representative and take action
that would have been against public policy had the col-
lective-bargaining representative engaged in it.'6
In sum, I find that while the RAs actions were not un-
lawful, neither were they affirmatively protected by the
Act. In these circumstances I find that the RAs' actions
with regard to influencing the choice by Respondent of
its supervisor were not protected by the Act. However,
even if those actions were protected, or if the demonstra-
tion had been keyed to such matters as protesting
stopped toilets, I do not believe that the finding of a vio-
lation would be warranted in the particular situation pre-
sented in this case.
A delicate policy matter is presented in this case.
Overzealous enforcement of the rights set forth in the
National Labor Relations Act could in the circumstances
of this case result in an undermining of congressional ob-
jectives set forth in the Comprehensive Employment and
Training Act (CETA). Where the purposes set forth in
two acts of Congress can be in conflict it is incumbent
on those interpreting the laws to draw rational lines that
will minimize the chance that the two acts are working
at cross-purposes. As the United States Supreme Court
said in Southern Steamship Company v. N.L.R.B., 316
U.S. 31 (1942):
[T]he Board has not been commissioned to effectu-
ate the policies of the Labor Relations Act so
single-mindedly that it may wholly ignore other and
equally important Congressional objectives. Fre-
quently the entire scope of Congressional purpose
calls for careful accommodation of one statutory
scheme to another, and it is not too much to
demand of an administrative body that it undertake
this accommodation without excessive emphasis
upon its immediate task.
The D.O.L., pursuant to statutory authority, has un-
dertaken to establish a program under which youths
from economically and culturally deprived backgrounds
can be trained in the hope that they can break through
the barriers of poverty to a fuller life. When they enter
the program these youths are generally unemployable
high school dropouts. D.O.L. has chosen to pursue its
mission through the use of a private contractor, Re-
spondent. The employees of that contractor have impor-
tant rights relating to their employment relationship with
the contractor and those rights are protected under the
National Labor Relations Act. The scope of those rights
must be evaluated in such a way as to harmonize to the
extent possible the public policy that is being effectuated
by both the Board and D.O.L. All of the background
factors must be considered in attempting to make that ac-
commodation.
1' In Abilities and Goodwill, Inc., supra, there was no collective-bar-
gaining agent and the 8(b)(1)(B) issue was not raised in the Board case.
However, the First Circuit in denying enforcement stated that "the spe-
In the instant case six RAs and one security officer at-
tempted to make their point with regard to the appoint-
ment of a supervisor by inducing approximately 240
corpsmembers to participate in a demonstration against
Respondent and to boycott their classes. The boycott of
the classes only lasted for a limited time but during that
time it completely frustrated the D.O.L.'s program. If
the precedent was established that the RAs had the pro-
tected right to induce the corpsmembers to leave their
classes that right would be existent whether the boycott
lasted for part of I day or indefinitely. The corps-
members were not Federal employees nor were they em-
ployees of Respondent. They were much more than con-
sumers of Respondent's products. They cannot be equat-
ed to the ordinary student in a private academic setting.
They were youths for whom D.O.L. undertook a special
responsibility.
In the instant case there is no showing that the RAs
had any special need to involve the corpsmembers in
their dispute with Respondent. The RAs had a collec-
tive-bargaining representative but they chose to ignore
the normal usages of collective bargaining. One group of
RAs, the swing shift RAs, undertook their direct action
against Respondent without regard to the wishes of the
remaining RAs and without even consulting their Union.
The RAs might well have had the right under the Na-
tional Labor Relations Act to engage in a strike and to
picket, even though there would have been an incidental
negative impact on the D.O.L.'s program. However,
they went well beyond that. They actively induced some
240 corpsmembers to strike directly against the very pur-
pose of that program by absenting themselves from their
classes. By using the corpsmembers in such a manner, I
believe that the swing shift RAs and the security officer
overstepped the bounds of protected activity. I therefore
find that the General Counsel has not established by a
preponderance of the credible evidence that Respondent
violated the Act as alleged in the complaint and I recom-
mend that the complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The General Counsel has not established by a pre-
ponderance of the credible evidence that Respondent
violated the Act as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
cific language of the Act recognizes the employer's interest in remaining
free of employee interference in managerial decisions regarding the selec-
tion of personnel for handling employee grievances
THE SINGER COMPANY 995
ORDER 17
The complaint is dismissed in its entirety.
" In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.