The Dickinson-Iron Community Action Agency; Dickinson-Iron Alternative Fuel Energy Corp.; Eagle Fiber Fuels Manufacturing, Inc.

National Labor Relations Board - Board Decisions

May 18, 1987

283 N.L.R.B. 1029 (N.L.R.B. 1987)

DICKINSON-IRON AGENCY 1029
The Dickinson-Iron Community Action Agency;
Dickinson-Iron Alternative Fuel Energy Corpo-
ration; Eagle Fiber Fuels Manufacturing, Inc.
and Thomas Barnhart. Case 30-CA-9222
18 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 12 February 1987 Administrative Law Judge
Michael O. Miller issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed limited exceptions and a
supporting brief and a brief in answer to the Re-
spondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in `' this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings,1 and
conclusions and to adopt the . recommended
'Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Dickinson-
Iron Community Action Agency; Dickinson-Iron
Alternative Fuel Energy Corporation; Eagle Fiber
Fuels Manufacturing Inc., Iron River, Michigan, its
officers, agents, successors , and assigns , shall take
the action set forth in the Order.
CHAIRMAN DOTSON,` dissenting.
In accordance with the policy set forth in Ming
Quong Children's Center, 210 NLRB 899 (1974), I
would decline to assert jurisdiction in this case and
would dismiss the complaint.' The Respondent is a
nonprofit institution engaged in providing social
services such as the weatherization of homes of
low income and elderly - individuals pursuant to
grants from Federal, state, and regional govern-
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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 The General Counsel excepts to the judge's recommended Order to
the extent that it does not include a visitatorial clause authorizing the
Board, for compliance purposes, to obtain discovery from the Respond-
ent under the Federal Rules of Civil Procedure under the supervision of
the United States court of appeals enforcing this Order. Under the cir-
cumstances of this case , we find it unnecessary to include such a clause.
Accordingly, we deny the General Counsel' s request.
' See my dissenting opinions in Alan Short Center, 267 NLRB 886
(1983), and Salvation Army of Massachusetts, 271 NLRB 195 (1984).
ments . Thus, in the absence of evidence that this
Company has a substantial impact on interstate
commerce, I would decline to exercise jurisdiction
over any labor dispute involving this Employer.
Benjamin Madelman , Esq., for the General Counsel.
Vincent R . Petrucelli, Esq. (Petrucelli & Hopkins, PC), of
Iron River and Hopkins, Michigan , for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was heard on 15, 16, and 17 October 19136 in Iron
Mountain, Michigan, based on an unfair labor practice
charge filed by Thomas Barnhart, an individual, on 20
May 1986, and a complaint issued by the Regional Di-
rector for Region 30 of the National Labor Relations
Board (the Board), on 29 July 1986, as amended on 5
August 1986.1 The complaint alleges that The Dickin-
son-Iron Community Action Agency; Dickinson-Iron Al-
ternative Fuel Energy Corporation; and Eagle Fiber
Fuels Manufacturing, Inc. (Respondent), violated Section
8(a)(1) of the National Labor Relations Act (the Act), by
discharging employees who had engaged in a concerted
work stoppage. Respondent's timely filed answer denies
the commission of any unfair labor practices.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue
orally. Briefs, which have been carefully considered,
were filed on behalf of the General Counsel and Re-
spondent.
On the entire record, including my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
The Dickinson-Iron Community Action Agency
(DICAA) is a Michigan not-for-profit corporation with
an office and place of business in Iron River, Michigan,
where it is engaged in providing social services, includA
-ing the weatherization of homes of low income and el-
derly individuals, pursuant to grants from state, Federal„
and regional governments. During 1985, its funding from
these sources approximated $1,250,000 of which about
$250,000 was expended by its weatherization program.
During the same time period, DICAA received funds in
excess of $50,000 directly from sources outside the State
of Michigan and purchased goods and materials valued
in excess of $50,000 directly from sources similarly locat-
ed outside the State of Michigan.
Respondent denied that DICAA (and the business al-
legedly affiliated with it as a single employer) was an
employer engaged in commerce within the meaning of
Section 2(2), (6)„ and (7) of the Act. Respondent con-
tended first that the dollar volume of business engaged in
by DICAA was insufficient ' for the assertion of the
' All dates hereinafter are in 1986 unless otherwise, specified.
283 NLRB No. 160
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board's jurisdiction; it subsequently asserted that juris-
diction should not be taken because of DICAA's non-
profit governmental status. Respondent's contentions
with respect to jurisdiction are without merit. In St. Alo-
ysius Home, 224 NLRB 1344 (1976), the Board (Chair-
man Murphy and Member Penello dissenting) abandoned
its earlier rule in which it had declined to assert jurisdic-
tion over' charitable nonprofit institutions (see Ming
Quong Children's Center, 210 NLRB 899 (1974)) and as-
serted jurisdiction, applying the jurisdictional standards
that would be applied to commercial enterprises of the
same nature. For nonrentail enterprises such as DICAA,
the Board's jurisdictional standard requires only $50,000
in direct and indirect outflow or inflow of goods or ma-
terials. Siemons Mailing Service, ' 122 NLRB 81 (1958).
Respondent clearly meets this dollar volume standard.
With respect to Respondent's second jurisdictional
contention, the Board, in Rustman Bus Co., 282 NLRB
152 (1986), recently reaffirmed its assertion of jurisdic-
tion over entities providing service to exempt govern-
mental entitles. The basic test for determining whether
the assertion of jurisdiction over such an employer is
waranted is whether the employer retains broad discre-
tion and control over its day-to-day labor ralations poli-
cies and practices and is capable of effective bargaining
with a representative of its employees. See National
Transportation Service, 240 NLRB 565 (1979). The Board
also examines the scope and degree of control, if any, ex-
ercised by the exempt entity over the employer's labor
ralations . See Res-Care, Inc., 280 NLRB 670 (1986)
(Member Stephens concurring and dissenting). The
Board has rejected the "intimate connection" standard
under which jurisdiction was withheld if the private em-
ployer performed functions that were intimately related
to traditional government functions of the exempt entity.
See, e.g., Rural Fire Protection Co., 216 NLRB 584
(1975). In the instant case, the board of DICAA and its
executive director hire the employees, determine the
wages and benefits to be paid, and set all labor relations
policies. There is no record evidence concerning any
control over "essential terms and conditions of employ-
ment" by any of the governmental agencies that fund
-DICAA's operations.
I find that DICAA'retains broad, indeed complete, dis-
cretion and control over the day-to-day labor relations
policies and practices applicable to its employees. It is,
therefore, completely capable of effective bargaining
with any representative 'the employees might select. I
further find that DICAA meets the jurisdictional stand-
ards 'that would be applied to a commercial enterprise of
a similar nature. Accordingly, I find that DICAA is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
Dickinson-Iron alternative Fuel Energy Corporation
(AFE) is a Michigan 'for-profit corporation with an
office and place of business in Iron River, Michigan,
where it is engaged in the sale and distribution of fuel
and the installation of wood burning furnaces. The
record reflects that Eagle Fiber Fuels Manufacturing,
Inc. (Eagle) is a Michigan for-profit corporation with its
office and place of business in Iron River, Michigan,
where it is, or had been, engaged in the manufacture and
sale of wool burning furnaces. DICAA wholly owns
AFE and is the majority stockholder in Eagle, AFE and
Eagle were created, in part, to bring money into
DICAA. All three are located at the same address and
DICAA's executive director, Daniel Bonetti, is the in-
corporator of both AFE and Eagle; he is currently presi-
dent of Eagle. AFE, and Eagle operate out of the Angeli-
Jacobetti Center (the A-J Center) which is owned by
DICAA and operated as an industrial incubator center,
providing low-rent facilities and other, services to new
business ventures. IBonetti acknowledged that he endeav-
ored to make AFE a successful business operation on
behalf of its owner, but denied that he oversaw its oper-
ations.2 Bonetti hired AFE's general manager, Thomas
Barnhart3 and, after Barnhart's discharge, hired-his re-
placement. Bonetti also negotiated Barnhart's wage rate
with him. AFE leases space from DICAA in the A-J
Center at a nominal rent and similarly rents some equip-
ment from DICAA. DICAA maintains AFE's books and
all of AFE's checks are signed by Bonetti and the
DICAA treasurer.
Eagle built burning furnaces, identical to those manu-
factured by AFB, at the A-J Center, and when Eagle
sold furnaces, installation was performed either by the
purchaser or by AFE. Eagle, it appears, has not been a
functioning business entity since approximately Decem-
ber 1985.
The complaint alleges that DICAA, AFE, and Eagle
are affiliated businesses to the-extent that they comprise a
single-integrated enterprise and a single employer within
the meaning of the Act. Respondent denied that allega-
tion, but I find that the facts, as set forth above, fully
support it. In Truck & Dock Services, 272 NLRB 592 fn.
2, (1984), the Board concisely summarized Board and
court law with respect to single-employer status, as fol-
lows:
To determine weather two entities are sufficient-
ly integrated so that they may fairly be treated as a
single employer, the Board and the courts examine
four principal factors: (1) common management; (2)
centralized control of labor relations; (3) interrela-
tion of operations; and (4) common ownership.
Radio Union v Broadcast Service of Mobile, 380 U.S.
255, 256 (1965); NLRB v. Browning-Ferris Industries,
691 F.2d 1117, 1122 (3d Cir. 1982); Shellmaker, Inc.,
265 NLRB 749, 754 (1982). While none of these fac-
tors, viewed separately, has been held controlling,
the Board has stressed the first three factors, par-
ticularly centralized control of labor relations. Park-
lane Hosiery Co., 203 NLRB 597, 612 (1973). Single-
employer status depends on all of the circumstances
and has been characterized as an absence of an
"arms length relationship . . . among unintegrated
companies ." Blumenfeld Theatres Circuit, 240
NLRB 206, 215 (1979), enfd. 626 F.2d 865 (9th Cir.
1980).
2 In his affidavit , he had acknowledged "informally" overseeing those
operations in order "to protect DICAA as shareholder."
3 The Charging Party herein
. DICKINSON-IRON AGENCY 1031
All the foregoing factors are satisfied here. DICAA
owns all or nearly all the stock' in both corporations,
Bonetti and the DICAA board exercise substantial, mana-
gerial control over both, the operations of AFE, and
Eagle were -closely interwined regarding functions and
location, and both fit into the operations of -the DICAA
weatherization program. Employees are interchanged
regularly between all three entities. AFE and Eagle are,
to all intents and purposes, mere operating arms of
DICAA, established, at least in part, to bring revenue
into the programs of DICAA. Accordingly, I find that
DICAA, AFE, and (to the extent that it is still a func-
tioning enterprise) Eagle constitute a single-integrated
business, enterprise and a single employer within the
meaning of the Act.
The employees of DICAA and AFE are not repre-
sented by any labor organization and there is no labor
organization involvement in any of the following facts.
II. SUPERVISORY STATUS
A. General Discussion-Bonetti's Role
The complaint alleges that Respondent discharged
eight individuals, Edwin Yackel, Francis Arvidson,
Duane Juneau, Robert Kenny, -Richard Makela, Martin
Sheffer, Danny Thurston, and William Weier because _ of
their concerted protected activities.4 -Respondent con-
tends that Yackel, Juneau, Arvidson, Sheffer, Kenny,
and Thurston were staturoty supervisors, not entitled to
the protections of the Act. At various points, Respond-
ent's executive director, Bonetti, also referred to Makela
and Weier as independent contractors, at least implicitly
asserting that they were not employees covered by the
statute. s
Respondent DICAA is organized, pursuant to the
Economic Opportunities Act of 1964, with a board of
governors appointed by elected officials, representatives'
of the poor, and other interest groups. That board deter-
nines the rates of pay, fringe benefits, personnel policies,
and other terms and conditions of employment of the
Agency's employees. DICAA is managed on a day-to-
day basis by Bonetti and, his assistant, Judy Tefft.
DICAA's personnel' policies give Bonetti final say, in
4 The unfair labor practice charge was filed by Thomas Barnhart and
similarly alleged his discharge. The'investagation revealed that he was a
statutory supervisor and, accordingly, the complaint did not allege his
discharge was violative.
5 The General Counsel contends that Respondent has taken shifting
and inconsistent positions with respect to the status of these individuals.
Thus, in Respondent's, counsel position letter to the Board of 10 June, it,
was asserted that Yackel as Energy, coordinator was a statutory supervi-
sor, while Juneau, Kenney, Sheffer, Arvidson, and Thurston "were classi-
fied as Energy program workers . . . general laborers" Weier and,
Makela, it was contended, were independent contractors, not employees'
On- 3 July, Bonetti gave an affidavit to the Board in which he asserted,
that Juneau, Sheffer, Arvidson, and Kenny had supervisory authority as
crew chiefs. Thereafter, however, in a meeting of Respondent's board on
21 August, Bonetti presented in update on the Board proceedings, reas-
serting, Respondent's contentions that Yackel and ,,,Juneau were supervi-
sors, but not claiming that Sheffer, Arvidson, Kenny, or Thurston were
or that makela and Weier Were independent contractors It'is clear from
the differences in positions stated that 13onetti was not merely reading
that attorney's position letter to the Board Respondent's prior statements
are properly considered here as admissions against interest See Liberty
Cleaners, 227 NLRB 1296 (1977).
hiring? and firing, subject ,to review by the personnel
board. According to those policies, "he appoints all staff
members and makes all promotions. Bonetti, however,
testified that potiential employees, responding to adver-
tisements, would be interviewed by` the immediate job
supervisors, crew chiefs, or foremen, and he would only
review their recommendations in a manner he character-
ized as "perfunctory." He would "normally", accept the
recommendations , but sometimes reject them if there was
sufficient cause or reason. He denied that he interviewed
employees for the weatherization, progi am. Similarly, he
sometimes transferred" employees between the DICAA
weatherization program' and AFE but, he testiified, such
transfers were more often made by Barnhart, Yackel, or
Juneau.6 Bonetti clearly had, and exercised, the authority
to discharge employees. He personally made the decision
to terminate the individuals involved' in this proceeding.
His role, in both hiring and firing, was more than per-
functory, even according to his own testimony.
According to Respondent's table of organization, im-
mediately below the assistant director were the weather-
ization department coordinator and 'automotive shop
foreman. The former position was allegedly filed on a
part-time basis by Ed Yackel. The person designated as
auto shop foreman was Robert Kenny. Below Yackel
was Duane Juneau, Iron County foreman for weatheriza-
tion, and he allegedly had Crew Chiefs Francis Arvidson
and Martin Sheffer reporting to him. Reporting to Auto
Shop Foreman' Kenny, according to the table of organi-
zation, was Dan Thurston, alleged to be an assistant fore-
man. "The specific evidence with respect to _ the supervi-
sory status of each of these employees will be discussed
hereafter. According to Respondent, the only nonsuper-
visory persons on its payroll in the weatherization de-
partment were Makela and Weier, both of whom it re-
ferred to as independent contractors.
In addition to the foregoing individuals, Respondent's
work was accomplished through the use -of general as-
sistance workers or GAs furnished by the Michigan De-
partment of Welfare and, on occasion, individuals re-
ferred to Respondent by the courts under offender pro-
grams, by CETA (Comprehensive Employment, Training
Act) and by Youth Experience Programs. According to
Bonetti, Respondent had a contract with the Michigan
Department of Welfare to provide a 'worksite, supervi-
sion, materials, tools, equipment, and timekeeping for the
GAs. They did not fill out employment applications or
other paperwork for Respondent and,; other than possibly
being covered by Respondent's unemployment compen-
sation insurance, they received no benefits or wages for
the time spent working on Respondent's projects. They
were generally untrained and unskilled labor and were
assigned to work' under the crew chief's, in weatheriza-
tion, the automotive shop or other DICAA projects. On
the average, according to-Bonetti, there; were between 7
and 20 GAs assigned to Respondent's weatherization
program at any one time, approximately 300 GAs have
put in time working for DICAA over the last 3 years,
6 As will be seen, infra, the individuals alleged to be supervisors con-
tradicted Bonetti's testimony concerning their authority
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
According to Bonetti, because Respondent could not
promote or `grant raises to, the GAs, it could "fire" them
or give ' them written warnings with copies sent to the
Department of Welfare. No such warnings were prof-
fered as,evidence in this proceeding. Nor was there any
evidence of instances where GAs were "fired." The
giving of such warnings, he claimed, might affect wheth-
er Respondent would subsequently hire these individuals
as its own employees if and when job opportunities
arose. Respondent could not independently deny these
individuals- their welfare payments, but, according to
Bonetti, the crew chiefs could send them home; if they
refused to work and that might cause them to lose their
welfare. Arvidson testified, that although he did not have
GAs working under him on a daily basis, they were as-
signed to him regularly, and he told them what to do.
He directed their work and, if they failed to do as direct-
ed, he repeated his directions . He said generally they
came and put in their 8, hours. Kenny also had GAs
working under him; he testified that he was never told
what he could do if they failed to do their work. Fre-
quently, he stated, they did not show up for work and
nothing adverse happened to them. Kenny said that if
they. failed to do their work, he could report them to
Foreman Juneau.
Bonetti met and gave directions to all the employees
virtually every morning . On a daily basis, employees and
general assistance workers were assigned to weatTheriza-
tion or AFE by Bonetti and it was generally Bonetti
who told, the crews what projects they would be work-
ing on. If employees and general assistance workers were
not assigned by Bonetti to special` projects, Iron County
Foreman Juneau, would assign them to the crew leaders
for weatherization work. -
B: Evidence Regarding Specific Individuals
1. Edwin Yackel-weatherization coordinator
Yackel was employed by Respondent for approximate-
ly 9 years. For the period that ended in 1983, he was the
Iron County foreman for DICAA's weatherization de-
partment. In 1983, Yackel' was transferred to AFE where
he delivered fuel and installed furnaces. In early 1986,
AFE ran out of funds and Bonetti laid AFE's employees
off. Yackel and some others continued working although
they drew no wages . About 1 February, Bonetti asked
Yackel-' whether he would serve as weatherization coor-
dinator on a 'part-time basis, explaining that this would
provide a means in which Yackel's hourly wage could be
paid. Yackel agreed and from that time forward he re-
ceived half of his weekly earnings from DICAA and the
other half from AFE. His wage, $6.30 per hour, was un-
changed from that which had been paid him both as Iron
County foreman and AFE employee.
The position of weatherization department coordinator
had been unfilled between 6 and 8 months prior to Yack-
el's designation . After his designation , Yackel's duties
changed very little. He continued to spend upwards of
90 percent of his time delivering fuel- and installing fur-
nances for AFE. His duties with respect to the weather-
zation department consisted - of passing on material re-
quests from Juneau to Bonetti and Tefft and signing such
forms as timesheets and leave requests . His signature, it
appeared, carried little weight; overtime payments that
he "approved" were disallowed by Tefft-or Bonetti even
though the employees had worked the overtime hours.
Although he signed leave requests, he never denied an
employee time off and did not believe that he had the
authority to do so. The employees did not report to him
if they were going to be absent. Yackel credibly denied
that he was told what his authority, duties, and responsi-
bilities would be when he was given the title of weather-
ization coordinator. He specifically denied being told
that he had the authority to hire, fire, promote;' grant
wage increases to, discipline, or' transfer employees and,
between his appointment and his discharge, Yackel never
exercised any of these functions. He did not interview
employees for hire or make recommendations concerning
anyone's hiring. Bonetti never asked him for recommen-
dations on personnel actions concerning weatherization
department employees. Employee William Weier was
hired during this period; Weier was interviewed by Bon-
etti.
Although Yackel was allegedly the weatherization co-
ordinator for both counties, he never talked with the
Dickinson County foreman. He denied that he directed
the flow of work or inspected the work done by employ-
ees in the weatherization department. According to
Martin Sheffer, it was not Yackel who would inspect the
homes and determine what work had to be done, but
Juneau. Yackel did' not assign work or make up the
crews. Either Sheffer or Arvidson would pick up the
files themselves or Juneau would tell them which houses
to work on. During his brief tenure as weatherization co-
ordinator, ' Yackel made one report to ' the DICAA
Board, detailing the progress made by that department
during a 2-month period."
2. Duane Juneau-Iron County foreman
DICAA employs a separate weatherization foreman
for each of the counties it covers; the Iron County fore-
man was Duane Juneau. Juneau had started working for
Respondent as a laborer in the spring of 1984 and contin-
ued in the capacity until laid off in February 1985. He
was hired back as a crew leader in October 1985. In De-
cember of that year, Bonetti called crew leaders Sheffer,
Arvidson, and Juneau to a meeting and suggested that-as
there was then no Iron County foreman they should
decide among themselves who would be foreman. Arvid-
7 Bonetti and Tefft deny that Yackel was appointed weatherization co-
ordinator solely for budgetary considerations They contend that his ap-
pointment was real, that he spent 50 percent of his time performing the
duties of weatherization coordinator, which duties included the inspec-
tion of homes before and after the weatherization work -was completed
and the supervision of the employees within that department Specifical-
ly, Bonetti claimed that he told Yackel that he possessed the-full range of
supervisory authorities. As between Bonetti and Tefft on the one hand,
and Yackel, and Juneau and Kenny who corroborate his testimony, on
the other hand, I find Yackel, Juneau, and Kenny to have been the more
convincing witnesses In addition to my observations of their compara-
tive demeanors , I note Respondent 's shifting and inconsistent positions, I
further note that Bonetti was a frequently vague or evasive witness given
to making broad, unresponsive, and self-serving statements His repeated
use of stock phrases concerning the authority of the various individuals
was unconvincing
DICKINSON-IRON AGENCY 1033
son was the most senior of the three, but declined the
position. Juneau agreed to take it. Bonetti approved and
instructed Juneau that he would be a working foreman.
Juneau's wage of $5.50 per hour, less than Arvidson's
$5.55, remained unchanged. His duties included,prein-
specting the homes to be weatherized, determining what
needed to,be done and at what cost, assigning the gener-
al assistance workers to the crew leaders, checking the
progress of the weatherization work as it was being
done, correcting work that had not been done properly,
and inspecting the work on its completion to make sure
that it had been done properly. The work itself was per-
formed' by Juneau, the crew leaders, and the general as-
sistance workers. The only laborer employed by Re-
spondent to do this work, albeit ,for only a week, was
William Weier. Juneau, credibly testified that he was
never told what authority, if any, he had over other em-
ployees. He understood that his responsibility as foreman
was to make sure that the work was done properly and
to work out any problems brought to him by the crew
leaders. Had there been any problems that he could not
handle, he would have' brought them to Bonetti. He was
never told that he could hire or fire employees, and he
never had the occasion to attempt to do so. Similarly, he
did not understand that his authority extended-to demot-
ing employees, promoting them, granting them time off,
or' doing anything else that-could affect their employees
status. He was never told, that he would be doing em-
ployee appraisals or evaluations. As foreman, Juneau
signed and sometimes completed the timesheets for the
crew leaders, He never disapproved the time- records,
but overtime, which he certified as correct, was some-
times disallowed by either Tefft or Bonetti. Bonetti had
told him that Respondent could not afford to pay over-
time and did not want employees claiming it. Similarly,
leave requests went through Juneau to Tefft. Juneau did
not understand that he had any authority to disallow
such leave requests and, on occasion, leave requests that
he signed as approved were disallowed. If any of the
crew leaders or laborers were going to be absent, they
called Juneau. -
Bonetti was present nearly every morning when
Juneau and the crew leaders gathered prior to going out
into the field. Bonetti assigned the employees and gener-
al assistance workers to various projects, and general 'as-
sistance workers who were not assigned to other
DICAA projects were assigned by Juneau to the ' crew
chiefs for weatherization work. Juneau would then check
that the beneficiaries of Respondent's - weatherization
work were at home so that the work could be carried
out. The crew leaders would usually pick up the individ-
ual files to determine which homes they would do.
Juneau spent between 50 and 70;,percent of his time in
physical work; the remainder of his time was spent in-
specting homes and preparing monthly reports and other
paperwork.
On 4 April, Juneau had received a disciplinary notice
from Bonetti (not Yackel, his alleged supervisor), pur-
porting to discharge him for unsatisfactory performance
and attitude, showing him to be a "disloyal and negative-
ly productive Community Action Agency Worker." The
letter stated that, Respondent had provided him with em-
ployment, and charged him "with responsibility of leader-
ship." Respondent did not, carry through with Juneau's
discharge at that time.8°
3. Robert Kenny-automotive shop foreman
Robert.Kenny first performed work for Respondent as
a general assistance worker assigned to DICAA. After 3
or 4 months, Respondent hired him as a laborer. In April
1985, Bonetti made him a crew leader with,a raise to
$5.55 per hour. He was told that he would be supervis-
ing general assistance workers in the automotive shop.
However, for 80 to 90 percent of his time he worked
alone . On occasions, Dan Thurston would work in that
shop,and sometimes there were general assistance work-
ers helping them. Kenny gpt' complete instructions daily
from Bonetti, either orally or in writing. To the extent
that Kenny would instruct Thurston or others about
what work they should be doing, it was usually pursuant
to such instructions from Bonetti.9 Kenny was told,
when made a crew chief, that he should, watch over
Thurston, keep an eye on him, make sure that he was
working. He was never told what -he could do regarding
discipline or personnel actions, he was not told that he
could issue written warnings, and he did not sign Thur-
ston's timeslips' or approve time off or leave for Thur-
ston.
According to Bonetti, Kenny made many -recommen-
dations concerning the hiring or firing of individuals.
The record reflects that after Martin Sheffer had ,worked
for a period while on general assistance, Kenny recom-
mended that he be hired as a regular employee. Kenny,
however, did not interview Sheffer or give hint employ-
ment application forms . Sometime after Kenny had made
this recommendation, Sheffer was hired by Bonetti, who
had evaluated Kenny's recommendation. On other occa-
sions, Kenny has recommended that Bonetti hire another
individual, Dale Petz, and recommended that a foreman,
Marcell, be fired because he was wasting time. Bonetti
interviewed Petz, but did not ` adopt either of these' rec-
ommendations.
4. Danny Thurston-assistant auto shop foreman
The record contains little direct evidence concerning
Dan Thurston, whom Respondent has called the assistant
foreman of the auto shop. It appears that Thurston had
been working for Respondent about 1 year, his rate of
pay was $4.75 per, hour. He spent much of his time haul-
ing 'fuel pellets for AB'E, ' pursuant to instructions from
Bonetti- and, when he was not hauling pellets, he was as-
signed to the auto shop because he possessed mechanical
skills. No one other, than the general assistance workers
who might be assigned to'the auto shop on a sporadic
basis worked under Thurston and, when working in the
a To the extent that the testimony of Bonetti and Tefft is inconsistent
with the above, I have credited the testimony of Juneau as corroborated
by Arvidson and Sheffer for the reasons previously stated. I have consid-
ered, but have accorded little weight to, the authority that prior county
foremen may have possessed when Respondent' weatherization program
was a considerably larger' operation.
9 Bonetti did not deny giving Kenny detailed daily instructions. It was,
according to Bonetti, part"of Kenny's training as a foreman
- 1034 DECISIONS OF THE NATIONAL" LABOR RELATIONS BOARD
auto shop, Thurston got his instructions from Bonetti,
either directly or through -Kenny. Respondent did -not
contend, either in its 10 June position letter Bonetti's' 3
July affidavit, or Bonetti's 21 August presentation to his
board of governors that 'Thurston was a supervisor.
5. Francis Arvidson and Martin Sheffer-crew
leaders
Weatherization department crew leaders Francis Ar-
vidson and Martin Sheffer received their assignments,
i.e., the houses on which they would' be working, either
from Bonetti or Juneau or by drawing them out- of a
folder themselves. They performed their work in =the
homes to be weatherized, -working alone or with other
crew leaders and the foreman. Sometimes they worked
with a ' DICAA employee or with general assistance
workers.- When they worked with other crew leaders
and the foreman, each performed his own work with no
need for direction. When Sheffer worked with William
Weier; he instructed Weier concerning the work that had
to be, done and let him do° it:' When Juneau or Bonnetti
assigned general assistance workers to them, the crew
leaders told those workers what had to be done,-instruct-
ed them how to do it,_ and attempt to keep them busy
during an- 8-hour shift. According to Sheffer, Juneau
would ask at the end of each day whether he had, had
any problems. Normally there was nothing to report; if
there were any problems :with any of the, general assist-
ance , workers or DICAA - employees, Sheffer would
relate them to Juneau. Other than seeing that the
DICAA employees put in their 8 hours and that the
work was done, neither Arvidson nor Sheffer were ever
told what authority they had over such employees. Nei-
ther was told, that they had the authority to discipline
employees. Although both believed that if they felt that
discipline of either DICAA general general laborers or
general assistance workers had been warranted, they
could have recommended it to- Foreman Juneau.' ° The
crew, leaders received detailed instructions from Bonetti
each morning and spent 90 percent or more of their time
doing the physical work involved in home weatheriza-
tion. Arvidson's hourly. rate of pay was $5.55; Sheller's,
however, was only $4.75.
C. Conclusions With Respect to Alleged Supervisory
Status
Respondent contends that six of the eight, individuals
named in the complaint, individuals who comprised es-
sentially-the entire work force of the DICAA weather-
ization department and AFE, are, statutory supervisors to
whom the protections of the Act do not apply. I IL
.10 Q do not credit Bonetti's rote assertions that the crew chiefs could
discipline, correct, send home, or remove general assistance workers or
anyone else from the job . His statement , "They know it, you know it, I
know it and the wbrld knows it,'= dit-repeated during this hearing, 'was
unsupported by any concrete examples
11 Prior , to the hearing, Respondent also argued that the remaining two
individuals; Richard Makela and William Weier, were independent con-
tractors. While Bonetti referred to Makela as an independent ' contractor
in the course of his testimony , Respondent did not repeat ' this assertion
on brief. The only evidence concerning their status established that they
were hourly paid employees who, for budgetary reasons, were denied
The= party seeking to establish' that individuals, are su-
pervisors within-'the contemplation of the statute bears
the burden of proving that such individuals actually pos-
sess, and exercise at least 'one of the authorities delineated
in Section 2(11) of the' Act. George C' Foss - Co., 270
NLRB 232 (1984), enfd. 752 F.2d 1407 -(9th Cir. 1985);
-Hydro Conduit Corp.; 254 NLRB 433 (19&1); Commercial
Movers, 240 NLRB 288 (1979). Section 2(11)" provides:
The term "supervisor" means,- any individual
having the authority, in the interest of the employ-
er, to hire, transfer, suspend,, lay off, recall, pro-
mote, discharge, assign - reward, or discipline. other
employees, or responsibility, to direct them, or to
adjust their grievances, of-effectively-to recommend
such action, if in connection with, the foregoing the
exercise of such authority is not of a merely routine
or clerical nature,-but requires -the use of independ-
ent judgment.
Hydro Conduit Corp., supra, and cases cited therein at
437, stated:
[S]upervisory status exists only if the power is exer-
cised with -independent judgment on behalf of,man-
agement, and not in a routine -or clerical manner
"the statute expressly insists that a supervisor
(1) have authority (2) to use independent judgment
(3) in performing such supervisory functions (4)-in
the interest of - management. These, latter require-
ments are conjunctive." ,
Conclusionary statements attributing supervisory author-
ity to any given individual are insufficient to carry Re-
spondent's burden of proof. Moreover, in resolving ques-
tions of supervisory status, one must keep in mind that
"the Board has a duty to employees to be alert not to
construe supervisory,status too broadly because the em-
ployee who is deemed a 'supervisor is denied employee
rights which the act is intended to protect." Westinghouse
Electric Corp. v. NLRB, 424 F.2d 1151, 1158 (7th Cir.
1970); Hydro Conduit Corp., supra at 437.
Applying the foregoing principles to the record before
me„ I must conclude that Respondent has failed to sus-
tain its burden of proving that any of the six named indi-
viduals,are statutory supervisors outside the ambit of the
Act's protection,
First, I must reject Respondent's contention that super-
vision of general -assistance, ,workers (or any others simi-
larly situated, such as court referrals) renders the over-
seeing individual a statutory supervisor. The general as-
sistance workers, like the court-referred workers, are as-
-signed by a public agency to assist Respondent in carry-
ing out its charitable mission. They are not interviewed,
hired, or selected by Respondent and they -derive no ben-
efits from Respondent. They remain with Respondent
only so long as they , are on welfare or the referring
any other benefits of the employment relationship. The limitation of their
employment benefits to hourly wages does not establish ,that they were
independent contractors To the extent that-the status of Makela and
Weier is in issue , I find'them to be employees entitled to the Act's pro-
tection
DICKINSON-IRON AGENCY
agency deems that they shall remain . They earn no
wages or other benefits and therefore cannot be granted
raises, promoted, or rewarded in any sustantive way by
their overseer.. The only action that might be taken
against them is that they might be sent home or rejected
from further service by Respondent. Any detriment that
might come to them from such an action would be deter-
mined by the referring agency, not Respondent. More-
over, there is no evidence in this record that any of the
named individuals ever took such an action with respect
to any of the general asisstance workers. Inasmuch as
these workers are not statutory employees, the persons
under whose oversight they happen to work at any
given time are not supervisors. The relationship,' if any, is
more akin to that of teacher to pupil or guard to prison-
er. See Key Opportunities, 265 NLRB 1371 (1982; Oak-
land Press Co., 229 NLRB 476, 477 (1977); and Amalga-
mated Clothing Workers of America, 210 NLRB 928
(1974) (Chairman Miller and Member Kennedy dissent-
ing).
Even if the general assistance workers were to be
deemed "employees," the extent of authority exercised
over them by the crew leaders, foremen, and weatheriza-
tion coordinator would not be sufficient to render those
later individuals statutory supervisors. The general assist-
ance workers work for limited periods of time on what
appears to be an irregular basis . At most, they would be
deemed to be casual employees excluded from any ap-
propriate collective-bargaining unit. The persons Re-
spondent alleges to be supervisors spend the great bulk
of their time performing the physical labor entailed in
weatherizing homes, delivering fuel, and installing fur-
naces. The amount of time any one of them spends in di-
recting the general assistance workers in their labors is
minimal (and such direction as is given is routine). The
Board has addressed the issue of supervisory status de-
rived from the exercise of supervision over nonunit per-
sonnel and concluded that -when , as here, individuals
spend less than 50 percent of their time "supervising"
nonunit personnel, they should not be denied the protec-
tions of the Act as employees. Amalgamated Clothing
Workers, supra at 930, Adeiphi University, 195 NLRB 639
(1972); Westinghouse Electric Corp., 163 NLRB 723
(1967). Indeed, the Board has held that even the occa-
sional hiring of such nonunit personnel is insufficient to
establish supervisory authority. John Cuneo, Inc., 238
NLRB 1438 (1978); Amalgamated Clothing Workers,
supra.
The situation that is present here is one of a small,
eight-man unit of employees performing functions that
are routine and well known to them and that therefore,
require little or no direct supervision at diverse locations,
under the general supervision of a single individual in
whom, essentially alone, resided statutory authority,
Bonetti.12 It is improbable that an operation the size of
12 Although the General Counsel conceded that Barnhart, as general
manager of AFE, was a statutory supervisor, the record contains no evi-
dence concerning his role with respect to the supervision of the eight dis-
chargees.
1035
Respondent's weatherization department, even including
AFE, would have as many supervisors, and as few em-
ployees, Respondent would have us believe. Health Care
Logistics, 273 NLRB 822 (1984). (Employer's contention
that there were three supervisors in a, unit of not more
than eight employees held improbable.) Moreover, the
titles attributed by Bonetti to' the specific individuals
warrant no contrary conclusions about any of them. Lo-
vilia Coal Co., 275 NLRB 1358 (1985); Health Care Logis-
tics, supra at 824; Thayer Dairy Co., 233 NLRB 1383
(1977).
I have credited Edwin Yackel's testimony to the effect
that he was given the title of weatherization coordinator
essentially as a means of ensuring that he would be paid
for the hours he spent working for AFE. The weather-
ization department was able to function for more than
half a year prior to his appointment without a function-
ing coordinator and continued to do so after his nominal
appointment. His duties changed little. Re continued to
spend at least 90 percent of his time performing AFE's
labors. What little time he spent in the job of coordina-
tor, including the signing of timesheets, involved routine
clerical functions that were not necessarily indicative of
supervisory status. Indeed, his signature on a timesheet
or leave'request carried little if any weight. Hydro Con-
duit Corp., supra (the isolated signing of a few warning
notices deemed insufficient to establish supervisory au-
thority); Cuneo, supra (recording hours and signing time-
sheets not sufficient to establish supervisory authority).
Neither, can Yackel be found to have been a supervisor
in May 1986 on the basis that he may have occupied a
supervisory position for Respondent at some time in the
past. Such prior experience is irrelevant. Health Care Lo-
gistics, supra. Respondent has not established his supervi-
sory authority.
Unlike Yackel, Juneau actually functioned in the posi-
tion to' which he was nominally assigned. As Iron
County foreman, he inspected the homes to be weather-
ized, determined what work needed to be done, checked
to see that it was being done in a proper fashion, and
checked again to determine that it had been done proper-
ly. The crew leaders nominally worked under him in
carrying out the weatherization functions. Nonetheless, I
conclude that he did not possess real supervisory author-
ity. He was, at most, a "leadman" or "strawboss" rather
than a part of management and a statutory supervisor.
George C. Foss, supra. Like Yackel, he was named to fill
a position that was vacant for a considerable period of
time, indicating that supervision at that level was not es-
sential . He spent the majority of his time performing the
same physical work as the other crew leaders. Work as-
signments were made by Bonetti, or by Juneau as a, con-
duit from Bonetti. Those work assignments , moreover,
were routine in nature, to do this house rather than that
house first, and had no effect on the employees' compen-
sation. The work itself was routine and each employee
knew what to do. Even if it could be said that Juneau
was "running the jobs," he exercised authority only in
routine, matters that did not require the exercise of inde-
pendent judgment. Similarly, his recordkeeping duties
with respect to hours worked was routine or clerical in
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nature and his signature approving payment for overtime
worked carried no weight against Respondent's determi-
nation that it could not afford to pay for overtime. Re-
spondent has failed to establish his supervisory authority.
Robert Kenny, as the nominal foreman of the automo-
tive shop, had even less real authority than Juneau. He
received daily instructions from Bonetti, designating the
work to be done and, to the extent that he directed
Thurston, he did so,primarily as a conduit from Bonetti.
As with Juneau and each of the others alleged to be su-
pervisors, there is nothing other than conclusionary
statements concerning purported authority to establish
possession of any of the statutory indicia. Kenny worked
as a mechanic, usually alone, and on those occasions
when he had Thurston and/or general assistance workers
in the shop, the relationship was one of experienced em-
ployee to helper, not supervisor to employee.
If Kenny is not a supervisor, then Dan Thurston,
whom Respondent claimed to have been the assistant
automotive shop foreman, is, a fortiori, without supervi-
sory authority. The 'record contains no evidence of any
employee who would have been supervised by Thurston
and there was nothing beyond Respondent's claim that
he held the title of assistant supervisor to confer such au-
thority on him. His hourly wage of $4.75 is surely not
indicative' of supervisory status. Respondent has not es-
tablished that either Kenny or Thurston were statutory
supervisors.
Like Juneau, crew leaders Francis Arvidson and
Martin Sheffer are, at most , leadmen or strawbosses.
They do the physical work of the weatherization depart-
ment and -give routine direction concerning the work to
be done to very few employees, if any, and others who
may not be employees at all. Beyond Bonetti's conclu-
sionary statements, -there is no indication that they actu-
ally possessed any of the statutory indicia. At most, they
may be empowered to tell other employees on the work-
site to keep'busy. The authority to issue such minor oral
reprimands does not establish one as - a supervisor, par-
ticularly where, as here, there is no showing that such
reprimands have any effect on an employee's job status.
John Cuneo, supra. See also Vanport Sand & Gravel, 267
NLRB 150 (1983). Finally, the wages paid to crewlead-
ers, particularly Sheffer's $4.25 per hour, are hardly in-
dicative of supervisory status.
Considering all the foregoing, I must conclude that
Respondent has failed to sustain its burden of proving
that Edwin Yackel, Duane Juneau, Robert Kenny, Dan
'Thurston, Francis Arvidson, or Martin Sheffer are statu-
tory supervisors within the meaning of Section 2(11) of
the Act. I find them to be employees as defined in Sec-
tion 2(3).
III. WORK STOPPAGE AND DISCHARGE
A. Events Leading Up to the Work Stoppage
The work stoppage for which these employees were
ultimately discharged was precipitated, in large measure,
by ill-will between Respondent's employees and William
Fagan, the owner, and Jack Vinnedge, the employee, of
Action Welding, a small business that leased space in, A-J
Center, adjacent to Respondent's automotive shop. That
ill-will, in turn, stemmed from a number,-of problems,
particularly- the mutual- borrowing of _ tools and equip-
ment and Vinnedge's efforts, by threats of physical harm,
to prevent such borrowing by Respondent's employees.
On one occasion, around March or early April, a meet-
ing was held between Respondent's employees and Vin-
nedge to discuss the problem of missing tools. In the
course of that meeting, Vinnedge stated that, if his tools
were not returned he would break someone's arms or
legs. He had made similar threats directly to employees
Kenny and Thurston, earlier that same day. Additionally,
Vinnedge had threatened to get certain employees 'fired
by Bonetti, had threatened to get himself placed in
charge of the employees, and had complained to Bonetti
about what he perceived to be deficiencies in their `work.
In addition to Vinnedge's threats, Respondent's employ-
ees were concerned with dangerous working conditions
caused by Vinnedge welding on gas tanks, Action's
usurping of space from the automotive shop, `and 'noise,
smoke, and clutter caused by Action Welding. - '
The problems between Respondent's employees and
Action Welding came to a head during the week of 21
April. On Wednesday evening, 23 April, Fagan and
Barnhart exchanged strong words in a phone conversa-
tion over the lack of heat in the A-J Center. Fagan told
Barnhart that he was an ex-Marine and would "not put
up with it," that Barnhart had gotten in the first- lick, but
would "get it in the end." Fagan then told Vinnedge of
his conversation with Barnhart, making Vinnedge aware
that he was angry. On the 'morning of 24 April, Vin-
nedge came into the automotive shop 'where Kenny and
Thurston were working. He angrily stated, "I don't see
why you are siding up with Tom Barnhart for . ,. . it is
going to come and haunt you in the end. . . You have
Fagan so F'n pissed off, he is going to come with a shot-
gun and blow you all away."13 Kenny, who knew Fagan
to have a drinking problem, post combat stress syndrone,
and a history that included some violent conduct, took
this ;threat seriously. He reported it to Yackel, who had
earlier heard of Fagan's threat to Barnhart, and to Barn-
hart. Barnhart directed Kenny and Thurston to assemble
the rest of the crew at the warehouse. When they were
gathered, they discussed the threats and Barnhart sug-
gested that they all go to the Hanna Building, Respond-
ent's main office. ,
B. The Work Stoppage
About 10 a.m., the employees went to the Hanna
Building. Bonetti was out of town and they met with
Gilbert LaFave, Respondent's associate director. They
told LaFave of the threats and of their other complaints.
LaFave left them briefly to call Bonetti and, in his ab-
sence, the employees examined Respondent's personnel
manual . Most of them had never seen it before. They
learned of a grievance procedure and discussed such
matters as it provisions for annual, personal, and sick
leave, and holidays. When LaFave returned, he told the
is Vinnedge did not testify and Fagan's denial that he had told Vin-
nedge he would take any such action is irrevelant Irrelevant also is the
absence of evidence that Fagan was observed carrying any weapons
DICKINSON-IRON AGENCY
employees that Bonetti would return that evening.
LaFave requested that they clean up the Eagle Furnace
facilities for Bonetti, who had a potential buyer for that
property, and the employees did so. Several employees
also finished up the installation of a furnance.
The -employees' then prepared a list of complaints,
problems, and demands to be presented to Bonetti on
Friday. The list, somewhat paraphrased, included:
(a) Vinnedge's lying to Bonetti about the employees.
(b) Vinnedge's attempts to take over the jobs and run
the show.
(c) Vinnedge's threats of bodily harm.
(d) V innedge's threats to their job security.
(e) Action Welding's imposition on their working
space.
(f) Action Welding's use of tools and equipment.
(g) Fagan's drinking on the job.
(h) Poor work being done by Action Welding on Re-
spondent's equipment, necessitating that the work be
redone.
(i) Respondent's requiring that employees pay for
broken or damaged property even when the damage was
not intentional.
(j) Compensation for accumulated leave time between
layoff and rehire.
(k) Two week's advance warning if leave was disap-
proved.
(1) Blaming the employees for messes left by Vinnedge.
'(m) Pay for annual leave over 15 days rather than for-
feiture.
(n) Reinstatement of the half-hour lunch.
(o) Management to keep its promises of extra days, bo-
nuses, and compensatory time.
(p) Safe equipment such as ladders and power tools
needed for weatherization to be provided.
(q) A single day per month for cleanup.
On Friday morning, the employees went directly to
the Hanna Building, purposely avoiding the A-J Center
so as not to come into contact with Fagan or Vinnedge.
They met with Bonetti, Tefft, and Glenwood Johnson, a
consultant retained by DICAA, and presented the fore-
going list of demands. Each item was discussed, with
little or nothing being resolved. There was, specific dis-
cussion 'of Vinnedge's threats, including his remarks
about Fagan and a shotgun. Bonetti asked each man if he
had been personally threatened. According to Bonetti,
only Barnhart said that he had. Bonetti concluded that
the threat had been exaggerated and that Barnhart was
inciting the men. Bonetti's recollection is not corroborat-
ed by Johnson, who testified that the ''men stated that
they felt threatened and wanted'Action Welding moved
away from the automotive shop. Johnson further. re-
called the employees as stating that they would not
return to work'unless the problems were cleared up.
At the conclusion of the, morning session, Johnson sug-
gested that each side compromise. He told the employees
that they should 'reduce their demands to the most im-
portant ones. Following his'advice, the employees pre-
pared a'shortened list of five demands:
1037
1. Move said party over to some [other part] of
compex [sic] with no affiliation whatsoever with
said party;
2. No loss in pay for all people present at meet-
ings;
3. All work of Community Action to be done by
Community employees;
4. All department heads be in full charge of per-
sons under his or her charge-, and
5. [Makela and Weier] on full benefits May 1,
1986 and no loss of pay.
At the bottom of this list was written, in a different
hand, "return to work Monday, 7:30 A.M." None of the
employees knew who placed thaton the list, or when it
was placed there.
The shortened list of demands was discussed in the af-
ternon session. Bonetti agreed to meet demands 2 and 4.
With respect to item 5, he agreed to put Makela on full
benefits, but only to consider such benefits for Weier. In
response to item 3, he told the employees that some of
the functions of DICAA required the use of profession-
als, like bookkeepers and other technicals from outside
the Agency.14 No agreement was reached on the central
issue , moving Action Welding away from DICAA em-
ployees, even though those employees volunteered to
move Action Welding into another space. According to
Kenny, Bonetti stated that this would be too much trou-
ble.
In this afternoon session, Bonetti believed that Barn-
hart was losing control of the men. He also claimed to
believe that Barnhart was being less than turthful and
"felt that it was [his] obligation to jump [Barnhart] on
that." About the third time he accused Barnhart of lying,
Barnhart took umbrage, rose to his feet, and stated, "We
are not making any progress here."15 Barnhart left and
was followed within a few minutes by the rest of the
men.
Before they walked out of the meeting, at least some
of the employees believed that they would be returning
to work on Monday, 28 April. Several had even agreed
to 'unload a truck of windows that had arrived during
the meeting. Once outside, however, the amen agreed that
they 'would have 'to do something' different to get the
issues resolved. Sheffer suggested that they all go home;
he, at least, expected the discussions to continue on
Monday morning. The employees did not unload the
truck; Bonetti did.16
14 This response, like many of his answers to question propounded at
trial, was unresponsive to the issue raised. The employees were obviously
concerned with Action welding doing their work, not whether DICAA
employed its own bookkeeping or legal staff.
is Bonetti's claim on direct examination to the effect that Barnhart had
said, "This isn't getting me anywhere" is contradicted by both his testi-
mony,as a Sec 611(c) witness and his transcribed testimony before the
DICAA board of governors in the personnel, hearing held on 7 May. I
am constrained to conclude that he was shading this testimony to support
his contention that Barnhart was "inciting" the men for his own pur-
poses
16 At this hearing, Bonetti testified that, in his "heart and mind," he
believed that he had solved each of the employees' concerns and that the
employees had agreed to return to work on Monday At the personnel
Continued
1038 , DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
According to Kenny, some of the employees met on
Saturday. There was some discussion of securing help
from a labor organization, and Kenny, at least, decided
that he was not going to work on Monday because Bon-
etti had not resolved the problem involving Vinnedge
and the location of Action Welding. On Sunday night,
Barnhart called Sheffer and told him that they would
have a meeting on Monday morning at the home of a
former DICAA administrator, Glen Polich.17
Barnhart and the employees met with Polich on
Monday morning. They told him of what had transpired
in the prior week and of their concern for their own
safety because of Vinnedge's threats. Knowing that
Polich had a rapport with one of the DICAA board
members, Garland Mainville, they asked for his help in
pursuing DICAA's grievance procedure. On their behalf,
Polich called Mainville and Mainville promised to call
Dorothy Peroceschi, chairperson of the board, to start
the grievance procedure. About the same time, the em-
ployees, with Polich's assistance, wrote out a request to
the local law enforcement authorities, seeking to restrain
Bonetti, Vennedge, Fagan, and others from harassing
them and took it to the sheriff.
C. The Discharge
When the employees did not return to work as he ex-
pected, Bonetti prepared a notice, directing each of them
to come to a meeting in his office at 2 p.m. that day. It
was personally served on some but not on all of them.
None, however, attended Bonetti's meeting. When they
failed to attend, Bonetti sent each of them a letter by
certified mail, stating that they had been discharged for
"misconduct in walking off the job in an un-authorized
work stoppage and not attending a scheduled meeting
with the Executive Director for which you received
written notice." At the hearing, Bonetti testified that
they were discharged for failing to come to work and to
the meeting on 28 April, not for their refusal to work on
24 and 25 April.
On Tuesday morning, before they learned of their dis-
charges, the employees met again at Polich's home.
From there, they drove to Iron Mountain and met with
Mainville. Mainville called Peroceschi. She told him that
a grievance hearing would not be necessary as Bonetti
had, already discharged all the employees; Mainville re-
layed that message to them. They requested a meeting
with her and drove to her home where she reiterated
what she had told Mainville. After further discussions
concerning their situation, she agreed that a grievance
hearing of 7 May, earlier referred to, however, he testified to his assump-
tion at that point in time that they would return if management agreed to
all five points He admitted there that no such agreement had been
reached Instead, 'he told the directors that the employees had been di-
rected to return to work, that he had not given them permission to con-
tinue their work stoppage.
17 I credit Pouch's testimony that his first involvement in this dispute
was on 27 April when Barnhart informed him of the threats and solicited
his help However, even if I were to find that he had been involved with
these employees at some earlier point, I would not find his involvement
to detract from what I hereinafter find to be the protected character of
the employees' job action. So long as the employees were engaged in
protected concerted activity, Pouch's reasons for becoming involved are
irrelevant.
hearing would be appropriate. The employees then pre-
pared a grievance, protesting the threats of bodily harm
by Vinnedge, threats of job loss if they refused to work
overtime, and their discharges while pursuing the griev-
ance procedure.
On 6 May, the employees were informed that a hear-
ing on their grievances would be held the following day.
They attended, and appointed Barnhart to be their
spokesman to request a postponement so that they could
adequately prepare. The request was denied and they re-
fused to cooperate further. The DICAA board of gover-
nors sustained the discharges.
D. Analysis and Conclusions
The General Counsel contends, and I agree, that the
activity for which the employees were discharged was
concerted activity protected by Sections 7 and 8( a)(1).18
The work stoppage began with the employees seeking
their employer's aid in protecting them from serious
harm threatened by an employee of a business to whom
their employer had leased adjacent space. Employee
complaints related to their safety are protected, even
when the threat comes from someone other that the em-
ployer. See, for example, Consumers Power Co., 282
NLRB 130 (1986), in which employee complaints about
threats of violence by customers were found protected.
See also Tamara Foods, 258 NLRB 1307 (1981), enfd.
692 F.2d 1171 (8th Cir. 1982), in which the Board stated
"that the Act protects the rights of employees to strike
over what they honestly believe to be unsafe and un-
healthy working conditions." That is precisely what
these employees did.'9
Moreover, the employes ' complaint concerning Vin-
nedge's threats was not the sole basis for the work stop-
page. When they met with Bonetti, they brought up
other areas of concern, virtually all within the ambit of
statutorily protected conduct. These included other
safety complaints (unsafe ladders and tools), threats to
their job security, and their work opportunities (see Key
City Contractors, 227 NLRB 1884, 1888 (1977)), compen-
sation, leave policies, and breaktimes. All the concerns
that they raised were clearly susceptible of resolution by
Respondent. While they put some of these issues aside
when urged to compromise in the interests of securing
an agreement, there is no evidence that they were satis-
fied with Bonetti's response to these demands. Further,
even on their shortened list, there were other protected
matters . They sought pay equity for fellow employees
19 The employees' protest and work stoppage were clearly concerted
and Respondent does not contend that it was unaware of its concerted
nature. Meyers Industries, 268 NLRB 493 (1984), remanded,sub nom Prdl
Y. NLRB, 755 F 2d 941 (D.C. Cir. 1985)
19 There is not a scintilla of credible evidence to support Respondent's
claim that the employees relied on Vmnedge's threats as a pretext to jus-
tify their work stoppage or to promote any unprotected objective
Having observed these witnesses and reviewed their testimony, I am to-
tally convinced that they perceived the threats as real. Considering the
pervasive and mindless violence constantly reported in the news media, it
was certainly not unreasonable for them to have done so, Even if I were
to find that their fear was unreasonable and their work stoppage unwise
and unnecessary, I would still be compelled to find their conduct protect-
ed NLRB Y. Washington Aluminum , 370 U S. 9 (1962); Serendippity-Un-
Ltd., 263 NLRB 768 (1982)
DICKINSON-IRON AGENCY
Makela and Weier. That demand was among those that
even Bonetti realized had to be satisfied if the work,stop-
page were to end. It was not resolved to the employees'
satisfaction.
Respondent contends that the employees' failure to
report for work on Monday, 28 April, was in breach of
contract, indefensible disloyalty , and in support of an il-
legal, secondary boycott. These defenses are patently
without merit There was no collective-bargaining agree-
ment; therefore, there was no contractual no-strike clause
to breach. An employer may not impose a work rule
prohibiting walkouts and thereby deprive employees- of
their statutory rights. Tamara Foods, supra. Similarly,
there was no secondary activity involved in the instant
case.
Neither was the employees' walkout an act of "inde-
fensible disloyalty." It was a common, everyday strike,
totally distinguishable from the actions of the employees
in NLRB v. Electrical Workers 7BEW Local 1229, 346
U.S. 464 (1953). There, the employees attacked the'qual-
ity of-their employer's product in vitriolic leaflets, which
made no reference to the union, the labor controversy in
which they were engaged, or the bargaining that had
broken down. '
Further, Respondent cannot contend that these em-
ployees were somehow insubordinate when they failed to
report for work on Monday without advising Bonetti of
their intention to continue, their protest or when they re-
fused to attend the meeting that he had scheduled. After
they refused to unload the truckload of windows on
Friday, Bonetti had no basis to expect them to report for'
work on Monday, even if he believed that he 'liad satis-
fied their demands. More importantly, however their fail-
ure to notify Bonetti and their rejection of his proposed
meeting as a method of resolving the problems are total-
ly irrelevant to the question of whether their' concerted
activities 'were protected. Serendippity-Un=Ltd., supra,
Indeed, at the very time that Bonetti was ordering them
to attend his meeting and then discharging them for their
failure to comply, these employees were pursuing other
avenues ' within Respondent's organization to resolve
their complaints. They were' not required .to do other-
wise. Having experienced frustration in their attempts to
deal with Bonetti, they were free to, engage in the con-
certed activity that they deemed appropriate and to
pursue their goals through members of Respondent's
board of governors and Respondent's own grievance
procedure. In Millcraft, Furniture Co., 282 NLRB 543,
595 (1987), the employees refused to obey an, order that
they discussed their complaint with a particular supervi^
sor, the subject of their complaint, and insisted that they
would only meet with a particular higher-level official.
The Board found that- their conduct was protected, not
insubordinate , and stated:
Rather . _ . the employees . . . had the right under
Section 7 of the Act to seek to voice 'their griev-
ances to the Respondent official of their choice
.... Thus, the Board -has long held , With' court ap-
proval, that the Act allows employees 'to engage in
any concerted activity that they decide is appropri-
ate for their mutual aid and protection , unless that
1039
activity is specifically banned by another part of the
statute, or falls within other well-established pro-
-scriptions, such as violent conduct or indefensible
disloyalty.
As we have seen , the employees ' conduct was not vio-
lent, did not fall within any other statutory proscriptions,
and was not disloyal as the Board and the courts have
used that term.
The individuals named -in the complaint, I have found
and concluded , were employees , entitled to the protec-
tions of the Act. They were engaged in protected con-
certed activities and were discharged because they were
so -engaged. Their discharges violated Section 8(a)(l) of
the Act and I so find.
THE REMEDY
It having been found that Respondent, Dickinson-Iron
Community' Action Agency; -Dickinson-Iron Alternative
Fuel Energy Corporation; Eagle Fiber Fuels Manufac-
turing, Inc., has engaged in unfair labor practices in vio-
lation of Section 8(a)(1) of the Act , I shall recommend
that Respondent be ordered to cease and desist there-
from and to take certain affirmative action designed to
effectuate the policies of the Act.
It having been found that Respondent discharged
Edwin Yackel, Duane Juneau, Robert ]Kenny, Francis
Arvidson, Martin Sheffer, Daniel Thurston, Richard
Makela, and William Weier because they engaged in'pro-
tected concerted activity,, I shall order that Respondent
offer each of them immediate and full reinstatement to
their former positions, or to substantially equivalent posi-
tions if their former positions no longer exist, without
prejudice to their seniority and other rights and privi-
leges. I shall further order that Respondent make each of
them whole for any loss of earningss they 'may have suf-
fered by reason of the discrimination practiced against
them, such earnings to be computed in accordance with
the formula set forth in F. W Woolworth Co., 90 NLRB
289 (1950), with interest thereon to be computed in the
manner prescribed in Florida Steel Corp., 231 NLRB 651
(1977). See generally isir'Plumbing Co., 138 NLRB 716
(1962): Further, 'I shall order that all references to their
discharges be removed from Respondent 's files and that
Respondent notify them , in writing, that this has been
done 'and that evidence of the unlawful discharges will
not be used as a basis for future personnel actions against
them.
The General Counsel seeks , for compliance purposes, a
visitatorial clause in the recommended Order. Such a
clause would permit the Board, for compliance purposes,
to obtain 'discovery from,Respondent under the Federal
Rules of Civil Procedure under the supervision of the
United States , court- of appeals- enforcing the Board's
Order. Under the` circumstances of this case, including
the absence of any indication of prior violations and the
straightforwardness of the compliance issues , I deem it
unnecessary to include such a clause and shall deny the
General Counsel's request. See, for example, Two-M, 281
NLRB 502 (1986).
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent, Dickinson-Iron Community
Action Agency; Dickinson-Iron Alternative Fuel Energy
Corporation ; Eagle Fiber Fuels Manufacturing, Inc.,
which together comprise a single employer, is an em-
ployer - engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Edwin Yackel, Duane Juneau, Robert Kenny, Fran-
cis Arvidson, Martin Sheffer , Daniel Thurston, Richard
Makela, and William Weier are employees within the
meaning of Section 2(3) of the Act.
3. By discharging the above-named employees because
they engaged in protected concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, Respondent has violated Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7), of the
Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed20
ORDER
The Respondent, Dickinson-Iron Community Action
Agency; Dickinson-Iron Alternative Fuel Energy Corpo-
ration ; Eagle Fiber Fuels Manufacturing , Inc., Iron
River, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging employees because they engage in pro-
tected, concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
(b) In any other manner 'interfering with , restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Edwin Yackel, Duane Juneau, Robert
Kenny, Daniel Thurston,, Francis Arvidson, Martin
Sheffer, Richard Makela, and William Weier 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 any other rights
or privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them , in the manner
set forth in the remedy section of the,decision.
(b) Remove from Respondent's files all references to
the terminations of the above-named employees and
notify them in writing that this has been done and that
evidence of their unlawful terminations will not be used
as a basis for future personnel actions against them.
20 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all, pur-
poses.
(c) Post at its Iron River, Michigan facilities, copies of
the attached notice marked "Appendix."2' Copies of the
notice, on forms provided by the Regional Director for
Region 30, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
21 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together, for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted 'activities.
WE WILL NOT ' discharge employees because they
engage in protected concerted activities for the purpose
of collective bargaining or other mutual aid or protec-
tion. -
WE WILL NOT in any other manner interfere with, re-
strain , or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Edwin Yackel, Duane Juneau, Robert
Kenny, Daniel Thurston, Francis Arvidson, Martin
Sheffer, Richard Makela, and William Weier 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 any other rights
or privileges previously enjoyed and WE WILL make
them whole for any loss of earnings and other benefits
resulting from their, discharge, less any net interim earn-
ings, plus interest.
DICKINSON-IRON AGENCY
WE WILL notify each of them that we have removed
from our files any reference to their discharges and that
the discharges will not be used against them in, any way.
THE DICKINSON-IRON COMMUNITY
ACTION AGENCY; DICKINSON-IRON AL-
TERNATIVE FUEL ENERGY CORPORATION;
EAGLE FIBER FUELS MANUFACTURING,
INC.
1041