Saratoga County Economic Opportunity Council, Inc.

SARATOGA COUNTY ECONOMIC COUNCIL. INC. 453 Saratoga County Economic Opportunity Council, Inc. and Max Valdez. Case 3-CA-8986-3 May 13, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On February 6, 1980, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and supporting argument. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt her recommended Order, as modified herein. We agree with the Administrative Law Judge's conclusion that the Respondent violated Section 8(a)(1) of the Act by refusing to consider Max Valdez' application for the position of senior bus driver, by failing to appoint him to such position, and by disqualifying him as a substitute driver. However, we find merit in the Respondent's excep- tions to the breadth of the Administrative Law Judge's recommended Order that would require the Respondent to cease and desist from "in any other manner interfering with, restraining, or coerc- ing its employees in the exercise of their rights guaranteed in Section 7 of the Act." (Emphasis supplied.) In finding that a broad cease-and-desist order was warranted the Administrative Law Judge stated that the specific unfair labor practices al- leged and found ordinarily would not warrant such an order. She further found, however, that evi- dence in the record, including "admissions made by [Executive Director] Kaufmann and repeated in Respondent's post-trial brief, reflect a virtually total disregard of the rights guaranteed to employ- ees by Section 7 of the Act." Specifically, she relied on Kaufmann's testimony that he discharged employees who refused to recant their prior pro- tected concerted activities and Kaufmann's "un- abashed offer of improper support of organizational activities by the employees." She noted that these matters were not alleged or litigated as violations of the Act. She concluded, nevertheless, that these "admissions," coupled with the unfair labor prac- tices found, were "sufficient to warrant a finding that Respondent had demonstrated a propensity to 249 NLRB No. 74 ignore the provisions of the Act and thus commit further violations." The Board has held in Hickmott Foods, Inc., 242 NLRB No. 177 (1979), that a broad order is war- ranted only when a respondent is shown to have a proclivity to violate the Act, or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental statutory rights. In our opinion, the matters relied on by the Administrative Law Judge are inadequate to indicate such a proclivity. Whether or not Kaufmann's offer of support of or- ganizational activity was improper was not suffi- ciently litigated; the Respondent was not on notice that it must defend against such alleged miscon- duct. It is true that Kaufmann testified that he re- quired employees who signed the letter of com- plaint against him to recant or leave their employ- ment; however, this is merely a statement of facts as they occurred in connection with his defense that he believed that such action was justified be- cause he thought the employees had violated speci- fied personnel procedures. There is no indication in Kaufmann's testimony or in the Respondent's brief that it would ignore the statutory rights of its em- ployees in the future. Finally, we agree with the Administrative Law Judge that the specific unfair labor practices alleged and found do not warrant a broad order. Accordingly, we shall modify the Ad- ministrative Law Judge's recommended Order in this respect. 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, as modi- fied below, and hereby orders that the Respondent, Saratoga County Economic Op;ortunity Council, Inc., Saratoga Springs, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph (b): "(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act." 2. Substitute the attached notice for that of the Administraive Law Judge. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the chance to present evidence and argument, it has been found that we, Saratoga County Economic Oppor- tunity Council, Inc., have violated the National Labor Relations Act, and we have been ordered to post this notice. We intend to abide by the follow- ing commitments: WE WILL NOT refuse to employ or reem- ploy, or otherwise discriminate against, any present or former employees because they have engaged in concerted activity for their mutual aid or protection. WE WILL NOT in any like related manner in- terfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act. WE WILL offer to Max Valdez the position of senior bus driver (or, if that job no longer exists, to a substantially equivalent position) or, if Max Valdez prefers, WE WILL offer him available opportunities to serve as a substitute driver, all without prejudice to his seniority or other rights and privileges previously enjoyed. WE WILL make Max Valdez whole for any loss of earnings he may have suffered by reason of our failure to offer him the position of senior bus driver as of March 12, 1979, with interest. SARATOGA COUNTY ECONOMIC OP- PORTUNITY COUNCIL, INC. DECISION JOSEPHINE H. KLEIN, Administrative Law Judge: Pur- suant to a charge filed on March 12, 1979 (amended on April 19), by Max Valdez, an individual, a complaint was issued against Saratoga County Economic Opportunity Counsel (herein called Respondent, the Council, or EOC) on April 18, 1979 (amended April 24 and August 6), alleging that, since March 1, Respondent has failed and refused "to employ and/or consider Valdez for em- ployment for the positions of senior bus driver and sub- stitute bus driver" because he engaged in protected con- certed activities. The principal "concerted activity" al- leged was Valdez' signing a letter critical of some of Re- spondent's operations, which letter was addressed by a group of present and former employees and supervisors to the regional director of Community Services Adminis- tration (CSA, successor to the Office of Economic Op- portunity), a Federal agency which provides a substantial part of Respondent's funding, with copies sent to other funding agencies. Pursuant to due notice, a hearing was held before me on August 21 and 22, 1979, in Albany, New York. The Charging Party appeared pro se and the General Counsel and Respondent were represented by counsel. All parties were provided full opportunity to present written and testimonial evidence and oral argument, and to examine and cross-examine witnesses. At the conclusion of the hearing, Respondent presented short oral argument. Post-trial briefs have been filed on behalf of the General Counsel and Respondent. Upon the basis of the whole record,' as well as careful observation of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent contends that it is not an "employer" under Section 2(2) of the Act2 because it is subjected to such governmental control and regulation that it is unable "to engage in meaningful bargaining with a labor organization over conditions of employment," within the jurisdictional test set forth in National Transportation Service, Inc., 240 NLRB No. 99 (1979), and The Singer Company, Education Division, 240 NLRB No. 130 (1979).3 The record fails to support Respondent's conten- tion. Respondent is a New York not-for-profit corporation which provides services for elderly and low-income per- sons. Its governing body is a board of 30 directors: 4 10 named by the Saratoga County board of supervisors; 10 elected by county residents qualifying as low income;5 and 10 representatives of "business, industry, labor, reli- gion, private welfare, private education, significant mi- nority groups or other major private groups and interest in the community."6 The entire operation of the Council is conducted under the supervision of John D. Kauf- mann, who has been executive director since its initial es- tablishment in August 1973, at which time he was the only employee. With approximately 40 employees at the present time, Respondent operates on an annual budget of about $800,000, funded by approximately $200,000 from CSA, $60,000 from CETA, $215,000 from the U.S. Administra- tion on Aging (part of HEW), $150,000 from the Federal Department of Energy (all Federal Government agen- cies), about $25,000 from the New York State Division of Economic Opportunity, about $35,000 from the county and local towns and villages, and relatively small amounts from various nongovernmental sources. I As corrected by an order issued simultaneously herewith correcting the transcript of proceedings. 2 National Labor Relations Act, as amended, 29 U.S.C. Sec. 150, et seq. 3 In both these cases the Board took jurisdiction. There was a passing testimonial statement that at the time of the events primarily involved in this case there were only 21 directors serv- ing. 5 There is no requirement that directors elected by low-income persons be themselves within that class. It appears that participation was slight in the election, which was supervised by the League of Women Voters. 6 Apparently the 10 "community representatives" are appointed by the directors in the first two classes. SARATOGA COUNTY ECONOMIC COUNCIL, INC. 455 The Council's board of directors drafted its bylaws, which were submitted to OEO (predecessor of CSA) in 1973, although there appears to be no legal requirement of any governmental approval of the bylaws. Respond- ent's bylaws call for removal of directors who have more than three unexcused absences from meetings. While Kaufmann testified that there may be some doubt as to whether the board can remove directors named by the county, he did indicate that some such directors had been replaced pursuant to the board's request. The presence of 10 directors appointed by the county, but having no special status or any more authority than the other 20 directors, does not serve to make the Coun- cil a governmental agency beyond the Board's jurisdic- tion. Southwest Texas Public Broadcasting Council, 227 NLRB 1560, 1562 (1977); Truman Medical Center Inc., 239 NLRB 1067 164 (1978). Respondent's board of directors establishes staff sala- ries, subject to a maximum limit of $18,000 per year 7 and a 20-percent maximum for increases for any CSA-funded job. CETA will pay a maximum of $10,000 per year for any CETA employee, of which Respondent has five, but the employer is free to supplement the CETA limit and must pay CETA employees the same amount as other employees having similar jobs. Respondent's actual sala- ries average about $11,000 per year for supervisors and $9,000 for nonsupervisory employees. Kaufmann testified that the New York State Office of Aging must review and approve Respondent's job titles in the nutrition programs but that agency had never re- jected any job descriptions submitted by Respondent. Kaufmann also testified that no funding agency has any veto power over Respondent's hiring or firing activities. Respondent's board of directors drafted its personnel manual, which was submitted to CSA, which did not re- quest any changes. Respondent's board of directors de- termines all fringe benefits, with no review by any gov- ernmental agency.9 Kaufmann handles all personnel ac- tions, with appeal only to Respondent's board of direc- tors. Kaufmann described the Council as a "delegate of the Schenectady Community Action Program (SCAP]," a private agency. Board and court decisions clearly establish that Re- spondent is not excluded from the statutory definition of an "employer" because of its minimal relationship to governmental agencies. Respondent has virtually uncon- trolled antonomy as to all personnel matters, with only a maximum limitation on some salaries. Its personnel poli- cies and practices are determined by its own board of di- rectors.'° So far as appears, the directors named by the county do not consult with or report to county officials. Since Respondent has such unlimited control over its personnel operations, it manifestly is within the Board's statutory jurisdiction. See, e.g., N.L.R.B. v. Austin Devel- ' Kaufmann is the only person employed by Respondent who receives $18.000 per annum. He testified that there is some provision for the waiver of that limitation. ' Providing hot lunches for elderly persons. 9 Kaufmann suggested that CSA might effectively object if Respond- ent acted unreasonably, as, for example, if it were to grant an employee a 6-month paid vacation IC Actually, it appears that Kaufmann makes all such determinations. with little, if any, participation by the directors opmental Center, Inc., 606 F.2d 785 (7th Cir. 1979), enfg. 236 NLRB 724 (1978); Tampa Shipbuilding Company Inc., 62 NLRB 954, 957 (1945);" N.L.R.B. v. Kent County Association for Retarded Citizens, 590 F.2d 19 (Ist Cir. 1978); The Singer Company Education Division, 240 NLRB No. 130 (1979); Loma Prieta Regional Center Inc., 241 NLRB No. 165 (1979); Champlain Security Services, Inc., 243 NLRB No. 120 (1979).t2 That Respondent is "in commerce" within the Act is clearly established by its receipt of substantial Federal funds. See, e.g., Community Services Planning Council/ Area & Agency on Aging, 243 NLRB No. 122 (1979), and authorities there cited. 3 Since Respondent's budgeted funds exceed any appli- cable monetary standards for the Board's discretionary exercise of jurisdiction, it is found that it will effectuate the purposes of the Act to assume jurisdiction in this case. Catholic Social Services, 225 NLRB 288 (1976); Mon Valley United Health Services, 227 NLRB 728 (1977). Accordingly, it is found that Respondent is an employ- er within the act and that it will effectuate the policies of the Act for the Board to assert jurisdiction in this case. It. THE ALLEGED UNFAIR LABOR PRACTICES A. Background As set forth above, Kaufmann, as executive director, supervises all phases of Respondent's operations. Among Respondent's activities are a nutrition program, provid- ing hot meals at some eight sites within Saratoga County; an energy conservation program, which pro- vides house insulation and related services; and a trans- portation service, giving elderly persons transportation for such necessities as shopping, medical visits, attending the Council's dining sites, etc. Such transportation is gen- erally provided in a minibus, operated by a full-time "senior bus driver." Other transportation for the nutri- tion program is handled principally by part-time drivers, operating a pickup truck or vans. While the primary service performed by these part-time drivers is transport- ing food and equipment to and from the individual dining sites, clients of the program are frequently also transported in the vans delivering food and equipment. Mary Freeman started to serve as director of the nutri- tion program in May 1975. Dorothea O'Donnell was co- " "Clearly, just as the control over the labor relations of a given group of employees may be shared by two private principals, so it may be shared by a governmental agency and a private individual or company .... The fact that Section 2(2) of the Act excludes a political subdivi- sion of a State from the definition of 'employer' cannot . . . remove from the scope of the Act the private company which shares with the political subdivision control over the labor relations of the worker involved .... " 62 NLRB at 957. 12 Respondent does not contend, and the record would not warrant, a contention that the present Council is a "joint employer" with any gov- ernmental body within the principle adopted in Lutheran Welfare Services of Illinois v. N.L.R.B., 102 LRRM 2672, 87 LC¶ 11,610 (7th Cir 1979), denying enforcement of 236 NLRB 1018 (1978). ' "W]here the greatest portion of an employer's revenues ultimately come from the Federal government. 'the Employer's participation in and receipt of moneys through federally supported health care programs ade- quately demonstrates that the Employer's operations have a substantial effect on commerce, and establishes the required statutory jurisdiction of this Board," the same principle applies to other types of industries than health care facilities. 243 NLRB No. 122. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ordinator of this program, serving directly under Free- man. Apparently there was an amicable working rela- tionship between Freeman and O'Donnell until the oc- currence of the unfortunate events with which this case is concerned. Max Valdez was hired by Kaufmann as a typist and bookkeeper, as a CETA employee, on January 6, 1978. Valdez had graduated magna cum laude from the State University of New York in 1973, his fields of concentra- tion having been in art. There is no dispute that, as Kauf- mann testified, Valdez is very bright and talented. Kauf- mann testified that in their preemployment interview he warned that Valdez might find himself "underemployed" because the job did not require his superior educational background and ability. While Valdez did not recall such warning, there is no reason to doubt Kaufmann's testimo- ny in this regard. Both men testified that Kaufmann ex- pressed the hope that Valdez would stay on the job for a year and it appears that Valdez signified his concurrence, although there apparently was no binding agreement on the term. The first difficulty between Kaufmann and Valdez shown in the record occurred around the middle of June when Valdez, after clearing with his immediate supervi- sors, visited the CETA office for "counseling." Valdez credibily testified that after he returned to the Council's office Kaufmann told him that he should not have gone to CETA but rather should have spoke to Kaufmann, who said he knew more about CETA than did the CETA staff. 14 Sometime before June 21 Kaufmann, having learned of a proposed increase of $50,000 in funds from CSA, made plans for their allocation. When his proposal was dis- cussed at a staff meeting on June 21, some staff members objected to the allocation of salary increases. On June 22 the Council's personnel committee met to discuss the new proposed budget. Valdez attended that meeting and apparently registered some objections or raised some questions. He credibly testified that thereaf- ter Kaufmann said Valdez should not attend any further similar meetings because he did not know enough about budgets. On June 23, as acting staff representative, Valdez posted a copy of the budget then being considered and scheduled a meeting for that evening at the home of em- ployee Judy Nordhoff. Some employees attending the meeting voiced objections to the proposed allocation of wage increases. In addition, there was considerable dis- cussion of the generally low staff morale. Kaufmann ap- peared late in the meeting, at the request of the employ- ees attending. Apparently he did little to satisfy the com- plaints. On June 26 Valdez sent a memorandum to the personnel committee, seeking clarification of Respond- ent's policies. Under date of June 27 he distributed among the staff a memorandum on the informal meeting held on June 23. He sent a copy of the memorandum to the personnel committee. V4 This cesnt is reflectled in the mrinules ofl a Council staff nmeling held on June 21, 1978, the firstl ilet of which nilutes reads "John [Kauf- mannil swould like all staff to let hint kno ll wllhen tlhey are dcalilng w ilh any other gelncies such as C ETA" On June 26 Valdez submitted his resignation effective 15 days thereafter, in accordance with a notice require- ment in the Council's personnel manual. He requested, however, that, so far as possible, his accrued vacation be used during the notice period. The next day Kaufmann accepted Valdez' resignation, effective immediately. Copies of Valdez' memorandum of June 23 to the staff and June 26 to the personnel committee were placed in his personnel file. Freeman, director of the nutrition program, testified that, after the June 23 staff meeting concerning the budget, Kaufmann told her that he was angry with em- ployees Nordhoff and Howard McAvoy, whom he con- sidered "instigators" of trouble within the staff and "a challenge to [Kaufmann's] authority." Nordhoff and McAvoy were among the five employees at the meeting. The staff held another meeting, not attended by Kauf- mann, on November 9. The discussion concerned the budget and the manner in which the 10 directors repre- senting low-income citizens were elected. According to Freeman, "what [the employees] were concerned about was that John [Kaufmann] had become unreachable." The Employees felt that they should form a "union" or an "association" in order to communicate with Kaufmann. Freeman credibly testified that Kaufmann then asked her about the employee meeting and she informed him that there was very little disagreement among the line staff employees that they should form a union or associ- ation of some sort. Freeman testified that she personally was surprised by the employees' attitude because she had not known how low staff morale was. She further testi- fied that Kaufmann's immediate reaction was one of anger and extreme opposition. Freeman advised Kauf- mann not to oppose the employees' proposed action since the employees would feel less threatened and their morale would improve if they had some "liaison" with Kaufmann. However, at the time, Kaufmann remained opposed. Kaufmann conceded that he initially felt that a union or employee association would consititute a serious threat or challenge to his authority, and he thus was very opposed. However, shortly thereafter he issued a memorandum in support of such an association. The memorandum said that the employees could use the office facilities, equipment and supplies, and some funds, and would be permitted to hold association meetings on working time. He denied that his action was pursuant to Freeman's advice. Freeman testified that, despite his public action, in personal conversations Kaufmann re- mained adamantly opposed to the employees' organiza- tional activity. According to Freeman, Kaufmann said he "was going to get rid of' employees Nordhoff and McAvoy, who Kaufmann thought were principally re- sponsible. An employee association was established in March 1979. Although it was in existence at the time of the present hearing, there is no evidence as to its precise status, functions, or activities. Linda J. Whittle, president of the association, testified that collective bargaining was not the purpose of the association but it would do so "if SARATOGA COUNTY ECONOMIC COUNCIL, INC. 457 a situation were to arise where [it] felt that that would be a necessity. s While employed in the office in January through June 1978, Valdez had volunteered to be available as a driver in emergencies, when neither a regular driver nor a sub- stitute was available. He had been called upon to do so on several occasions. In November or December 1978 Valdez informed O'Donnell that he would be available to drive as a sub- stitute whenever needed. In December 1978 and January 1979 he was called and drove as a substitute eight times. It is undisputed that his work was satisfactory and no complaints were registered. Howard McAvoy, who for 3 years had served as the full-time driver for the nutrition program, was fired around January 30, 1979. The evidence leaves no doubt that McAvoy was generally considered an exceptionally good employee in the senior busdriver position. Accord- ing to Kaufmann, McAvoy was discharged for refusing several assignments. Although McAvoy's discharge was not litigated in the present hearing, there were clear sug- gestions that at least some employees thought it was based on his opposition to Kaufmann's actions or poli- cies. A grievance was filed concerning McAvoy's dis- charge pursuant to a procedure set forth in Respondent's personnel manual; it was denied by the board of direc- tors on February 26. Around January 30, 1979, O'Donnell asked Valdez to substitute as senior busdriver until McAvoy's situation was finally resolved. Valdez agreed and drove full time as the senior busdriver from around January 30 through March 1, 1979. At the beginning of February, he refused O'Donnell's two offers of jobs as a regular part-time driver. He credibly testified that at the time he told O'Donnell that he needed full-time work. Around February 7, 1979, the job as full-time senior busdriver was posted on Respondent's premises and ad- vertised in a newspaper. Some 61 applications for the job were received. However, because of the pendency of McAvoy's grievance, no interviews were held and no other action was taken until late in the month. On Febru- ary 22 Valdez filed an application for the job. He attrib- uted his delay in filing to reluctance to apply while it ap- peared possible that McAvoy would be reinstated as a result of his grievance. Meanwhile, Valdez continued to drive as McAvoy's substitute. B. Valdez' Termination On February 13 a group met at employee Alysan Slighter's home to discuss problems and complaints con- cerning their jobs. Among their complaints were the recent discharges of McAvoy and Andrew Jewett, an- other employee who apparently had also been vocal in complaints. At the meeting it was decided that a letter would be drafted to be sent to William A. White, region- al director of CSA. A long letter setting forth in detail numerous complaints about Kaufmann's personnel prac- " Valdez' original charge alleged that he had been discriminated against because of membership in and activities on behalf of "E.() C. em- ployees Association, a labor organization" However, this allegation was absent from the amended charge and is not contained in the comlaint, which does not mention the Association. tices was thereafter prepared. The letter, which is dis- cussed below, maintained, inter alia, that Kaufmann's failure to communicate with operating staff members was adversely affecting the conduct of the Council's substan- tive programs. It further stated that there was no means of direct access by the staff to the board of directors. The letter sought "direct intervention" by White, to whom it was addressed. Some employees and former em- ployees, including Nutrition Director Freeman and Valdez, signed the letter on Feebruary 18. On February 23, the original was sent to CSA, with copies to repre- sentatives of additional funding agencies. Kaufmann learned of the letter on or about February 25. On February 26, many employees and former employ- ees attended a board of directors' meeting, at which Freeman presented a statement concerning the subject matter of the letter. Because the meeting had been called to decide McAvoy's and Jewett's grievances, discussion of the letter was deferred to a later date and the direc- tors went into executive session. According to Kaufmann's uncontradicted testimony, the letter gave rise to considerable unfavorable publicity concerning the Council. Additionally, the State of New York deferred action on Respondent's application for designation as a community action agency, which status would provide additional funding. Kaufmann then demanded that each current nonsu- pervisory employee who had signed the letter execute a document acknowledging that signing the letter was a se- rious violation of controlling personnel procedures, as set forth in the personnel manual, and promising not to commit further violations in the future. Two employees executed the statements requested and were retained. Employee Alexandra Purinton refused to execute such a statement and was thereupon asked to resign. On her re- fusal to resign, she was discharged. 's Valdez, who was then still substituting as senior bus- driver, was not asked to sign a statement. However, Kaufmann testified that, if Valdez had been a "regular full-time employee," he would have received the same treatment as did the other employees who signed the letter Within a few days after Kaufmann learned of the letter, Freeman's responsibilities were drastically re- duced. In her words, she became a "figurehead" and O'Donnell took over even before she officially got the job on Freeman's termination. Freeman was asked to resign on March 2, but refused. She was eventually ter- minated on March 13. 7 On or about February 28, Kaufmann, Freeman, and O'Donnell met to discuss hiring a permanent replace- ment for McAvoy, whose grievance had just been denied by the board of directors. The question was raised whether Valdez should be interviewed. Freeman expressed her agreement with Kaufmann and O'Donnell that such interview would not be necessary. Although it i' One employee was not asked to execute a statement because the funding of his job was expiring and thus he was scheduled to he terminat- ed very soon According to Kaufmann, that employee later retracted his endorsement of the letter. 17 Nordhoff, also a supervisor, had signed the letter. Like Freeman, she was discharged after she refused Kaufmann's request that she resign 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD does not affirmatively appear that any of the three (Kaufmann, O'Donnell, or Freeman) stated any reason for this conclusion, I credit Freeman's testimony that she felt it would be superfluous to interview an employee who had been performing the job satisfactorily for some 5 or 6 weeks and believed Kaufmann's and O'Donnell's views were based on the same consideration. Freeman's reasoning seems eminently sound. Freeman and O'Donnell had reviewed the 61 applica- tions and limited to 3 the number of persons to be inter- viewed. One was Kristine Kimmer, then employed by Respondent as a regular part-time driver; the other two were not and never had been employed by Respondent. Kimmer was offered the job on March 2. Freeman testi- fied that she heartily concurred in that decision; although Valdez had been serving as a substitute senior driver very satisfactorily, Freeman felt that Kimmer was more entitled to the job because she had been employed by Respondent longer than Valdez had and Kimmer's per- formance, including part-time driving, had been good. However, after considering the matter fully, Kimmer re- jected the offer. Thereupon, on March 5, Randolph Lon- cosky was hired. He had not previously worked for Re- spondent and had had no experience in driving a bus or van or in dealing with elderly persons. So far as appears, Freeman was not consulted when Loncosky was hired after Kimmer refused the job. Freeman testified that, on March 2, Kaufmann advised her and O'Donnell that he did not want Valdez to drive for Respondent any longer and instructed them to "get rid of him." When O'Donnell replied that she had no substitute available, either Kaufmann or O'Donnell sug- gested Bob Warren, a former employee. Warren there- upon took over and drove the senior bus for a week, until Loncosky assumed the job on a permanent basis. Freeman testified that on March 2, pursuant to Kauf- mann's express, direct instruction, she informed Valdez that he could no longer drive for Respondent and should not report on Monday. Kaufmann branded as "[a]bsolutely untrue" Freeman's testimony that he had instructed her to inform Valdez that he could no longer drive for Respondent. O'Donnell testified that Freeman had made the decision to replace Valdez by Warren for the week of March 5 through 9. During the early months of 1979 Freeman was absent a great deal. O'Don- nell testified that she had telephoned Freeman at her home and reported that complaints had been received concerning Valdez. According to O'Donnell, Freeman nonetheless decided to continue to use Valdez. However, after a second call from O'Donnell, Freeman decided to use Warren, who had been suggested by O'Donnell. In connection with these matters, I credit Freeman. Basical- ly, Freeman's demeanor and general method of testifying were most impressive. Further, the evidence as a whole confirms Freeman's testimony that, after her signing of the letter to White, she was stripped of most of her au- thority, with Kaufmann dealing directly with O'Don- nell. 18 18 Such conduct by Kaufmann could reasonably have been expected. Even a person less jealous of his own authority would find it difficult and inadvisable to work closely with and rely on an immediate subordinate Linda Rumpf, in charge of Respondent's payroll, testi- fied on behalf of Respondent that late in the afternoon of March 2 Freeman instructed her "to remove Mr. Valdez' name from the payroll." According to Rumpf, Freeman said that, although nobody had been hired for the job, "she [Freeman] had to let Max go because of all the complaints from the senior citizens." Freeman denied having given any such instructions to Rumpf. Freeman's testimony is obviously the more credible. Since she was asked to resign on March 2, it is unlikely that late on that day she would take it upon herself to discharge Valdez. O'Donnell had in effect taken over responsibility for the nutrition program and, even according to O'Don- nell's testimony, it was she who had reported Valdez' al- leged deficiencies to Freeman and had suggested calling Warren. Apparently Warren had agreed to serve as a substitute before Valdez' termination was recorded on the payroll. Thus, even if Rumpf had been correct in her testimony that she was advised by Freeman of Valdez' termination, and Freeman's recollection was inaccurate (despite the fact that it was quite accurate as to other de- tails), the fact would remain that Freeman was at most a ministerial intermediary for effectuating a decision made by Kaufmann and O'Donnell. 19 Since March 2, when Rumpf removed Valdez' name from the payroll, he has never been called to serve as a substitute driver. Valdez filed his original charge on March 12, 1979. He conceded that he had spoken with McAvoy at the March 7 meeting of Respondent's directors and that McAvoy had probably encouraged the filing of the charge. The amended charge was filed on April 19. At a meeting of the Council's board of directors on March 7, 1979, employee Slaughter read the letter. The directors thereupon appointed a special committee to in- vestigate the accusations and report back. Sometime in April the committee issued its report, which exonerated Kaufmann of all charges against him. The board of di- rectors adopted the report without change. C. Respondent's Factual Defense There is little disagreement concerning the facts set forth above. Respondent, however, denies that Valdez' signing of the letter to CSA, with copies to other fund- ing agencies, played any part in Respondent's decision not to hire him for the job of full-time senior driver or to use him further as a substitute driver. 20 Respondent con- tends that Valdez was not properly qualified for the job. First, brief attention must be given to Respondent's ap- parent denial of the allegation that it refused to "consid- er" Valdez for the job. According to Respondent, who had joined in the unmitigated condemnation of him contained in the letter. 19 In its brief, Respondent states that on March 2 "Valdez had come into the office, talked to Ms. Freeman and left after placing the bus keys on Mrs. O'Donnell's desk." Valdez testified that Freeman told him it would not be necessary for him to report on the next Monday. When he asked her why, "she just sort of shook her head, which isn't much of a reason, I know." 20 In its brief, Respondent says: "John Kaufmann as General Counsel's own witness, denied that Mr. Valdez' signing the letter, in any way affect- ed his consultative decision to hire Mr. Loncosky." (Emphasis supplied.) Needless to say, the General Counsel was granted permission to examine Kaufmann under Rule 61 1(c) of the Federal Rules of Evidence. SARATOGA COUNTY ECONOMIC COUNCIL, INC. 459 Valdez was "considered" but rejected. Respondent main- tains that nobody could be hired without a final inter- view and even Freeman, now a supporter of Valdez, agreed that he should not be included in the group given final interviews. But, as previously found, Freeman's rea- sonable view was that it was unnecessary to interview a present employee who knew the job and at the time had been performing it for 5 or 6 weeks. It is difficult to un- derstand what Respondent might have hoped to learn from interviewing Valdez at that time. Freeman's failure to insist that he be interviewed thus has no tendency to establish that she, as director of the program, considered Valdez unqualified or unfit for the position. This is par- ticularly true since she believed that Kimmer had prior "moral" right to the job because of her longer service with the Council. To have her interviewed was not in- consistent with failure to interview Valdez, since Kimmer had never driven the senior bus. That job en- tailed constant transportation of elderly persons, which, according to all the relevant testimony, including Kauf- mann's, required a rather special type of person---one who was "sensitive," patient, equable, and possessed of a basic sense of humor. Freeman's testimony and Valdez' demeanor as a witness establish his temperamental suit- ability for the job. O'Donnell presumably agreed with this appraisal because it was she who chose him to do the job when McAvoy was fired. At the hearing, Kaufmann maintained that Valdez was not chosen because of his past history of instability in employment. According to Kaufmann, Valdez had had some eight jobs since his graduation from college in May 1973. The most significant fact is that Kaufmann knew of this employment history when he originally hired Valdez as a typist-bookkeeper. While so employed Valdez had received laudatory evaluations. As set forth above, he had resigned only after Kaufman had disapproved of his participation in consideration of the budget. Kaufmann knew from the beginning in consideration of the budget. Kaufmann knew from the begining that Valdez was basi- cally interested in art, but sustained employment in that field is difficult to obtain. Valdez worked for Respondent as a CETA employee. Kaufmann attempted to contrast Valdez' "instability" with Loncosky's "stability." In view of Loncosky's em- ployment history, 2 1 it is difficult to understand how Kaufmann could sanguinely anticipate that Loncosky would thereafter remain for any protracted period as a bus driver at $8,000, particularly in view of Kaufmann's previously expressed view that Valdez would not be sat- isfied with a job which did not utilize his talents and in- telligence. Respondent now contends that Valdez was not consid- ered for the senior busdriver job because of the numer- ous complaints Respondent received concerning his per- formance on the job in December, January, and Febru- 21 According to his application, Loncosky had been a machine opera- tor and diemaker from September 1964 through June 1974, with his salary rising from 6,000 to $10.000 per year; a junior auditor from July 1974 to July 1975, at $10,500 per year; and a machinist from December 1975 to June 1978 at $30,000 per annum. Presumably he was unemployed when he applied for the driver's job with Respondent. In his resume, he acknowledged that his "background doesn't necessarily coordinate with the driving position " ary. At the outset it should be noted that, in his lengthy pretrial statement to a Board agent, Kaufmann had made no mention of any complaints Respondent received con- cerning his performance on the job in December, Janu- ary, and February. At the outset it should be noted that, in his lengthy pretrial statement to a Board agent, Kauf- mann had made no mention of any complaints against Valdez. Valdez received no written warnings, although O'Donnell testified that written warnings are used by Respondent. 22 It is undisputed that no complaints were received con- cerning Valdez' driving of the senior bus on eight or nine occasions in December 1978 and January 1979. O'Donnell testified that around the middle of February, some weeks after Valdez had started driving full time, she began to receive oral reports from Respondent's re- ceptionists of around two complaints a day by passengers concerning his driving, principally that he was driving too fast. Mae E. Smith, the receptionist, outdid O'Don- nell. At first she said she received "at least three or four [complaints] a day" concerning Valdez' driving. Then she said she received three or four calls a day only "sometimes," and came down to "ten a week." When then asked if it was about 50 in all, she replied: "I would say three or four a day, I really can't answer that." Smith further testified that she immediately informed Freeman and O'Donnell of the complaints. But, after conceding that she really could not recall how many complaints she received, she testified that she made no notes "because [she] could remember." She proceeded to testify that "there was different complaints each day. Sometimes they would say Max was driving too fast. I really can't explain." She eventually indicated that the bulk of the alleged complaints came from only a few pas- sengers. It is interesting that, despite all these alleged complaints, Smith asked Valdez why he did not apply for the senior busdriver job (which he did). Linda J. Whittle, president of the Employee Associ- ation and on leave at the time of the hearing, testified that she had taken two telephonic complaints concerning Valdez' driving. She could not recall the identity of either of the callers and remembered the nature of only one complaint; namely, his forgetting to pick up one client. She testified that she informed Freeman and O'Donnell of these complaints. O'Donnell's testimony concerning the numerous com- plaints allegedly made concerning Valdez' driving was, as best, hearsay and very vague. She followed up on only two complaints and told the complainants that she "would talk to Max about his driving." O'Donnell could recall the source of only one complaint, a Mr. and Mrs. Gittlestein. Valdez denied that O'Donnell had spoken to him about these complaints. Freeman testified that it was understood that, while O'Donnell was charged with handling client complaints, Freeman was to be kept informed of all complaints re- ceived. Around the middle of February, Freeman became upset when informed that Valdez had been ac- cused of refusing to pick up a client. She telephoned the 22 Her testimony was: "If there was a need to give a person a warning notice of any kind it was done verbally, in writing, and then a follow- up " Any written actions are put in the employee's personnel file 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD client, who said "Valdez had explained that, because of the condition of the road to the client's home, he was afraid he could not get through to her." According to Freeman, McAvoy had had trouble with the same road in January and Freeman had then called the Department of Public Works, with no visible effect. After talking with Valdez concerning the February complaint, Free- man again called the Department of Public Works and the condition of the road was corrected. Freeman testi- fied that, in her visits to the dining sites, many clients spoke of Valdez in a most complimentary manner, saying that he "was very sensitive to them, that he would go out of his way to make sure he helped them in with their groceries and was just very, very good to them. And they respected that." Freeman's testimony is entirely credible. Throughout, there was a total absence of any exaggeration or equivo- cation. As to Valdez, she obviously was not being self- defensive because she had not recommended that he be given the senior busdriver job. So far as appears, she was not consulted concerning Loncosky's appointment after Kimmer refused the job.25 Alexandra Purinton, manager of the Schuylerville site, said that many clients had praised Valdez when he drove there for a party in De- cember. There were no complaints. Perhaps most significant is the fact that, according to Respondent's witnesses, complaints against Valdez did not begin until around the middle of February. The meeting concerning drafting the letter was held on Feb- ruary 13. Respondent also contends that Valdez was not given the job because, despite his application, he did not want it. O'Donnell testified she told Valdez about the senior busdriver job when it was posted, "and he made infer- ences many times that he didn't know how Howard McAvoy could do it every day, and at that point he wasn't interested. . . . He often said to many of us after coming in from a run at the end of the day that he didn't know how Howard McAvoy could do this every day." O'Donnell did not undertake to explain why she called the job to Valdez' attention if he had "often" manifested a disqualifying attitude and disinterest in any regular driving job.2 4 Kimmer also testified that Valdez "just said he couldn't . . . handle this job or working with the old people all of the time." And Whittle testified that she had a "definite impression . . . that [Valdez] didn't enjoy" the job and said "he didn't want" it; he com- plained about the clients, the difficulty of the job and the "patience" it required. Valdez testified that he did not recall having said he did not know how McAvoy could stand the job, but if he had said that it was not "in a serious vein." Freeman also testified that she could not specifically recall any 2a In its brief, Respondent intimates that there was some collaboration between Freeman and Valdez because Freeman approved timesheets in which Valdez had misstated some dates. The errors, however, were manifestly inadvertent and self-evident, and had no substantial effect. 24 Valdez had refused part-time drixer's positions, which generally in- volved movement of goods and materials, with very little transportation of people I credit his testimony that, while he was willing to substitute on occasion, he needed a full-time job and thus would not tie himself down with a regular daily part-time job. comment by Valdez questioning McAvoy's endurance. She testified: "[W]e used a joke about it because some of our older people were very irascible and it took great patience and sensitivity... . So Max would come in and we would joke about it." According to Freeman, humor was essential to relieve the tension of the work. Kauf- mann corroborated the tension-creating nature of the work. Indeed, Kaufmann acknowledged that some humor was essential.25 Finally, it should be noted that Kaufmann conceded that current employment with Respondent is generally given some affirmative weight in filling positions. When Valdez applied for the senior busdriver job he was al- ready performing the job, whereas Loncosky had never worked for Respondent. On the foregoing analysis of the evidence, I find that Respondent has failed to establish any reasonable or credible basis for its decision not to consider Valdez for employment as the senior busdriver when McAvoy's dis- charge was upheld by Respondent's board of directors. On the other hand, the credited evidence as a whole es- tablishes indisputably that Respondent's decision was based solely on Valdez' concerted activities. Kaufmann had been more than a little irked by Valdez' acting as the staff representative in initiating among the staff some discussion of the proposed budget, including employee complaints concerning Kaufmann's proposed allocation of the new funds. Kaufmann manifested his disapproval by instructing to Valdez to have no further contact with budgetary matters. Further, Kaufmann objected to Valdez' having consulted CETA representatives and in- structed other employees to refrain from contacts with other agencies without consulting him. Kaufmann next was initially enraged by the staff's desire to form a "union" or "association." His subsequent purported change of heart did not reflect any real change in attitude. I credit Freeman's testimony that, even after issuing his supportive memorandum, Kauf- mann privately objected and threatened to get rid of the employees he thought were responsible for the move- ment. Apart from Freeman's testimony, Kaufmann's memorandum itself reflects a disposition to avoid any truly independent concerted activity by the employees. In the crassest manner he stepped in to assure that only a "company" union or association would be created-of- fering the employees the use of Respondent's facilities, funds, and paid time for meetings. As Kaufmann himself testified, McAvoy "complained bitterly about [Kauf- mann's] dictating to the staff when they could meet to discuss union activities and pointed out to [Kaufmann] that that was illegal." 2 6 Thus, the record is replete with evidence, including testimony by Kaufmann himself, that he, Respondent's executive director, in full charge of the Council's oper- 2b He testified that they were "having complaints from senior citizens and [he] needled] someone who is not going to get flustered and who's going to basically take life one day at a time." 26 Whittle, now president of the Association, testifying on Respond- ent's behalf, testified that collective bargaining is not the purpose of the Association, but it would bargain if a situation arose requiring it to. While Whittle testified that the Association was formed in March or April, some "Association" is referred to Valdez' original charge, filed on March 12, 1979. SARATOGA COUNTY ECONOMIC COUNCIL, INC. 461 ations, was strongly opposed to concerted activities by the employees. In his own words, he told the staff and the directors' executive committee that "the initial issue of a question of a union would suggest a basic contradic- tion between management and employees [and] there were those that experienced that [he] felt threatened . . . by it." Further, it was his view that "under the personnel policies grievances are to be handled through regular channels . . . [u]ntil the Board [of Directors] has made a determination they're not to be discussed outside those channels." 27 The General Counsel correctly argues that Respond- ent may not unilaterally restrict the employees to a pre- scribed method of registering protests and complaints. American Hospital Association, 230 NLRB 54, 55 (1977). This is not a case like Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975), on which Respondent relies, in which, to borrow Respond- ent's words, a small group of employees sought to "cir- cumvent their elected representatives in bargaining." In the present case there was no collective-bargaining rep- resentative and no contractually prescribed grievance procedure, 28 Similarly, no extended discussion or citation of author- ity is required to dispose of Respondent's apparent con- tention that the February letter was not concerted activi- ty within the meaning of the Act because it was not signed by a majority of the employees and was not di- rected toward bargaining with the Council. The letter constituted concerted activity by some employees direct- ed toward "mutual aid and protection." The record leaves no room for doubt that the immedi- ate reason for Kaufmann's refusal to give consideration to Valdez' application for the senior busdriver job was the letter sent to CSA. Indeed, Kaufmann admitted that if Valdez had been a regular employee, rather than merely serving as a substitute on occasion, he would have been fired if he refused to acknowledge that signing the letter constituted serious misconduct and had then also refused to resign. Only those signers who had so re- canted and promised not to repeat such misconduct were retained .2 And there can be no doubt that Respondent's failure to call Valdez as a substitute driver after March 2, 1979, 27 In their letter, sent to CSA and other agencies. the employees stated that the "Board of Directors supports Mr Kaufmann" and [i]t has proven impossible to create change from within under these circum- stances" There is no evidence in the record that the bhoard of directors has ever suhstantivel res iewed any action by Kaufmann 2" See 4m.- rian lHovpirul .4srialiin, 230 N.RH at 55: the "formal grievance procedure." which the Respondent con- tends the employees should have used, is lnot mutually binding Rather it consists or a procedure set up and controlled bh the Re spoindent There is no shoinig that employees gave up their right to press gricsances in other ways as a quid pro quo for this procedure. or that they could even invoke it as a means of presenting their con- tentilonls here z' Respoldent's brief says: Mr Kaufmann testified that the action he took against the employees was based upon his belief that the) hadl sub- verted the normal grievalce procedure ad i diig so, had cl earl breached agenct regulation s Einploee lPuriniton credibly testified. without contradiction, that Kaufmann "offered to) reinstate all emplo, ces with the pr(oisin that theat hes uld nott congregate and that the's sould accept the FO()C Board's decision as final and the would take n further ction " was dictated by the same considerations. There is no merit to Respondent's apparent contention that that fail- ure was due to the fact that Valdez never called asking for substitute driving. All his previous substitute driving assignments had been made without his specific request, pursuant to his general statement that, while he would not assume a regular part-time driving job, he was avail- able for substitute driving. He had never withdrawn that statement. However, as set forth above, even according to Rumpf, Respondent's witness, Valdez' name had been removed from the payroll, presumably indicating that he was not to work for the Council in the future. That Re- spondent's failure to call Valdez as a substitute was ad- vertent is further shown by Kaufmann's emphatic testi- mony that it was always difficult to find substitute driv- ers upon need. D. Conclusory Discussion Thus, it is found that Valdez was not given the senior busdriver's job and was not called for work as a substi- tute driver after March 1, 1979, because of his concerted activity in joining other present and past employees in writing to CSA and other funding agencies. The remain- ing question is whether such concerted activity was "protected" by Section 7 of the Act. There can be no question that the February 13, 1979,30 letter largely concerned the staffs wages and working conditions. Among the matters protested ere Kaufmann's failure to abide by the "provisions and spirit" ot the Council's personnel manual, including his practices concerning hiring, promotions, salary increases, and firing; his inadequate and improper conduct of the Council's funding and substantive programs; and his inef- fective intra-agency administration, which "has severely damaged staff morale and has thereby reduced overall ef- fectiveness of the various programs"; his improper influ- ence on the composition of the Council's board of direc- tors; and his refusal to consider the views and sugges- tions of staff members, who "carry heavy responsibilities and workloads." The letter also asserts that: "The list of people who have been forced to quit or who have been fired due to friction over [Kaufmann's conduct of per- sonnel matters] is quite extensive and certain to become longer." Group complaints concerning these matters clearly are within the protection of the Act. The protection is not lost because the complaints were made to Respondent's funding agencies and charged that the misconduct of personnel matters subverted the Coun- cil's effectiveness and mission to the public. Richboro Community Mental Health Council, Inc., 242 NLRB No 174 (1979): [The letter] cannot be construed as a deliberate at- tempt to injure Respondent by impugning its oper- ation.... There is nothing in the letter to suggest that [the writers'] intent was to sabotage or under- mine Respondent's reputation. Its tone was neither malicious nor did it ridicule Respondent Nor is . distribution of the letter to Respondent's funding : he l etter is dated Fehruars 13 hiul kas, not actualkls mailed anid d trlbiled Ltinil Februnar 23 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD source evidence of unprotected disloyalty to Re- spondent since, absent a malicious motive [the staffs] right to appeal to the public is not dependent on the sensitivity of Respondent to [the employees'] choice of forum. It thus is no defense to the present complaint that the let- terwriters' objections to Respondent's personnel practices were also intended ultimately to improve the overall functioning of Respondent in accordance with its pur- poses. The means adopted, namely, letter writing, is rea- sonable and thus protected even under the view of some courts, contrary to the Board, that concerted activity may be unprotected if the action taken exceeds "reason- able" means to achieve the desired end. See Abilities and Goodwill, Inc., 612 F.2d 6, 8 (Ist Cir. 1979), denying en- forcement of 241 NLRB No. 5.3 1 Relying on such decisions as N.L.R.B v. Local Union No. 1229, International Brotherhood of Electrical Workers Local 1229 [Jefferson Standard Broadcasting Co.], 346 U.S. 464 (1953); N.L.R.B. v. Knuth Brothers, Inc., 537 F.2d 950 (7th Cir. 1976); and N.L.R.B. v. Red Top, Inc., 455 F.2d 721 (8th Cir. 1972),32 Respondent contends that the letterwriters could properly be discharged or other- wise mistreated because their conduct constituted "dis- loyalty." There can be no denying that the letter as a whole conveyed the message that, as administered by Kaufmann, the Council was not operating up to its best potential and needed considerable improvement. But nobody could reasonably read the letter as intended to harm the Council; on the contrary, it manifested great concern for the future of the Council and was seeking the intervention of its funding agencies in effect to save and improve the Council as well as employee morale.3 3 Respondent says: "In the case at bar there existed the distinct possibility that the delicate existence of Respond- ent would be forever destroyed by the defamatory con- tents of the letter." The letterwriters, however, expressed the view that the Council was threatened only if it con- tinued under Kaufmann's management. The one thing ab- solutely clear about the letter was that the concern of the signers was to improve the operations of the Council along with the staff's working conditions. Any "disloyal- ty" was directed to Kaufmann; but the employees' loyal- ty was due only to the Council. And even the criticism of Kaufmann was "not a personal attack unrelated to a protest of Respondent's labor practices." Richboro Com- muni!y Mental Health Council, Inc., supra. See also, e.g., St. Joseph's High School, 236 NLRB 1623 (1978) [vacated ' The First Circuit concluded [C]ourts have generally held over Board protest that employee strikes over changes in even low level supervisory personnel are not protected . On the other hand, courts have found protected the v riting of letters expressing opposition or the simple voicing of complaints. [612 F.2d at 9] 12 Respondent also cites Johns-Monville Products Corporation, 557 F.2d 1126 (5th Cir 1977). That case is inapposite since it concerns a lockout in response to an "in-plant strike" that included "behavior which cause[d] actual and substantial damage to property or potential, serious injury to human lives." 557 F.2d at 1133 :: Cf NL.R.B. s Red Top, Inc., supra. upon which Respondent relies: "[T]he question of whether the employees pressed their alleged grievances in good faith becomes vitally important." 455 F.2d at 726. by Board Order, 248 NLRB No. 123, April , 1980]; Golden Day Schools, Inc., 236 NLRB 1292 (1978). The final question arises from the fact that the Febru- ary 1979 letter was directed ultimately toward having Kaufmann removed from the position of executive direc- tor of the Council. The concluding paragraph read, in part: We feel that the agency's effectiveness and credibil- ity in the community has been severely damaged by Mr. Kaufmann's incompetence, and that as long as he is in office the situation will continue to deteriorate. We are concerned because it is those whom the agency is designed to serve who will ultimately suffer from the repercussions of an ineffective Human Services agency. It is for this reason we are requesting that you [William A. White, regional di- rector of CSA] conduct an investigation of these charges. [Emphasis supplied.] It would be most unrealistic to read the letter as request- ing only an "investigation"; its actual purport is a request for "direct intervention" by CSA (and other funding agencies) to have Kaufmann removed, a result which could be expected only if the charges against him were found to be supported. First, it should be observed that the letterwriters were not unreasonable in bypassing the board of directors. One of the charges made was that the board was im- properly constituted in that the election of the low- income representatives was "bogus"; that "[t]he majority of the candidates for these positions are middle class pro- fessionals" and "[s]everal are social and personal friends of Mr. Kaufmann." The letter further states that, when staff members asked that the election be postponed "[t]he Board members and Mr. Kaufmann responded that to postpone the 'election' now would make the agency 'look bad,' so they would have to proceed as planned." The election was stated to constitute "evidence of Mr. Kaufmann's disregard and indifference to the low-income community." In view of this charge, it is clear that resort to the board would undoubtedly be a futile act; whether or not the charge was warranted, the directors could hardly be expected to conduct a totally unbiased investi- gation. Even if such impartiality were possible, the ap- pearance of a conflict of interests would be undesirable; in effect, the directors would be both "judges" and "de- fendants." 3 4 There is no evidence that the board of di- rectors had ever actively reviewed Kaufmann's manage- ment of the agency or rejected any recommendation by him. It may be conceded that, as a general rule, the desig- nation of supervisory personnel is a management prerog- ative not subject to collective bargaining. But there is no question that, at least since 1962, when the Board decid- ed Dobbs Houses, Inc., 135 NLRB 885 (1962), enforce- ment denied on other grounds 325 F.2d 531 (5th Cir. 1963), "the Board has considered concerted activity over 34 As previously noted, the board of directors appointed an investiga- tive committee and then adopted the committee's report, which rejected all the staPWs charges It is neither proper nor possible here to pass on either the staff's accusations or the investigative committee's report. SARATOGA COUNTY ECONOMIC COUNCIL, INC. 463 changes in supervisory personnel protected, provided the identity and capability of the supervisor have a direct impact on the employees' job interest." Henning & Chea- die, Inc. v. N.L.R.B., 522 F.2d 1050, 1054 (7th Cir. 1975). Courts of appeals have approved this rule 35 although, as previously noted, some courts have disagreed with the Board's further view that the reasonableness of the em- ployees' means of protest is generally immaterial. 3' In the latter category is the First Circuit's decision in Abilities and Goodwill. Inc. v. N.L.R.B., supra. In that case, employees refused to return to work from a "sick- out" unless a discharged department head was reinstated and the respondent's full board of directors met with the employees concerning their "grievances," as stated in a "report contain[ing] charges of financial mismanagement, nepotism, dishonesty, and incompetency that relate to management functions" as well as "basic grievances of employees affecting their working conditions," including some which "concerned the day-to-day working condi- tions of the employees." Although in some prior cases the Board had suggested that employees' complaints con- cerning the discharge of supervisory personnel might be limited to those concerning low-level supervisors,3 7 the Board had never so held. Indeed, the Administrative Law Judge's Decision in Abilities and Goodwill, adopted by the Board without comment on this issue, cited as au- thority prior Board Decisions referring to "low level" supervision. 241 NLRB No. 5. While rejecting the Board's ultimate conclusion, the First Circuit expressly agreed with the results reached in N.L.R.B. v. Okla-lnn. d/b/a Holiday Inn of Henryetta, 488 F.2d 498 (10th Cir. 1973); N.L.R.B. v. Guernsey-Muskingum Electric Co-oper- ative, Inc., 285 F.2d 8, 12 (6th Cir. 1960); and N.L.R.B. v. Phoenix Mutual Life Ins. Co., supra, 167 F.2d at 983, all of which held "that employee protests over changes in supervisory personnel may be protected." (612 F.2d at 8.) That court drew a distinction between "low level su- pervision" and a "high level official." According to the court, low-level supervisors may have a direct relation to the employees' working conditions and thus, "to the as E.g., NL.R.B. v Guernsey-Electric Co-operative, Inc., 285 F.2d 8 (6th Cir. 1960); N.L.R.B. v. Phoenix Mutual LiJe Insurance Co., 167 F.2d 983 (7th Cir. 1948), cert denied 335 U.S. 845. However. in Leslie Metal Arts Company, Inc., 208 NLRB 323, fn. 1 (1974), enfd. 509 F.2d 811 (6th Cir. 1975), the Board, in affirming an administrative law judge's decision, said: "As the employees in the instant case did not seek to protest man- agement's selection of its supervisors, we neither adopt nor pass upon the Administrative Law Judge's obiter dictum that the banding together of employees to protest 'even management's choice of supervisors is protect- ed concerted activity."' But the Board did not disavow the Administra- tive Law Judge's statement (208 NLRB at 326) that "I[the quality of su- pervision and the manner in which it is exercised are directly related to working conditions, and the banding together of employees to protest the way in which supervision is exercised . is protected concerted activi- ty " 36 E.g. Dobbs Houses. Inc. v. N.L.R.B., supra; American Art Clay Com- pany. Inc.. v. N.L.R.B. 328 F.2d 88 (7th Cir. 1964): Henning Cheadle. Inc. v NL.RB., supra 37 F C F Papers, Inc.. A Division of the Mead Corporation, 211 NLRB 657, 658 (1974); Kelso Marine, Inc., 199 NLRB 7, 13 (1972); Plastilite Cor- poration, 153 NLRB 180 (1965), enfd. in pertinent part 375 F.2d 243 (8th Cir. 1967) Cf. . L.R.B. v. Puerto Rico Rayon Mills. Inc., 293 F.2d 941, 947 (Ist Cir. 1961), where the First Circuit held that a union-sponsored strike to compel reinstatement of supervisors is protected if the supervi- sors "are not representatives for the adjustment of grievances or collec- tive bargaining." extent that an employee protest over a change in super- visory personnel is in fact a protest over the actual con- ditions of their employment" it may be protected. The court acknowledged that, in the case presented, "from the employees' perspective, [the discharged official's] po- sition and nexus to their working conditions was argu- ably similar to that of a low level supervisor. Yet from the perspective of [Respondent's] management, his posi- tion was that of a high level official." The court then proceeded to hold that the disputed supervisor's level in the hierarchy was a relevant factor in balancing the rights of employees and employers and determining the reasonableness of the employees' method of protesting. Observing that the employees' expressed complaints about their own working conditions were an after- thought, solicited by the supervisor to shore up their ob- jection to his discharge, the court concluded, essentially as a matter of fact, that the discharge of the high-level supervisor involved did not have sufficient direct impact on the employees' working conditions to warrant a strike. In the instant case, it cannot be denied that Kaufmann is the very top echelon of management. Yet the letter- writers' complaintsrelated to the direct effect of his con- duct on employees' working conditions.38 It is signifi- cant that Freeman and Nordhoff, intermediate supervi- sors, joined current and past employees in signing the letter, a circumstance which at least suggests that there was no effective "buffer" between Kaufmann and the employees. Accordingly, the First Circuit's decision in Abilities and Goodwill is not decisive of the issues raised in the present case. In any event, the Board's Decision in that case (241 NLRB No. 5), by which I am bound, supports the General Counsel's position in this case.39 Accordingly, on the foregoing analysis, I find that Valdez was discriminated against because he engaged in protected concerted activities. The discrimination con- sisted first of Respondent's failure to consider his appli- cation for the job of senior busdriver. Respondent argues that Valdez "would not have been chosen because of his lack of qualifications" and that the job was given to "the most qualified" applicant. While appraisal of the qualifi- cations of job applicants is a matter of business judgment to be exercised by management without second-guessing by the Board, the evidence in the present record so over- whelmingly refutes Respondent's contention as to render it virtually irrational. Briefly summarized, the evidence heretofore discussed establishes that Respondent general- ly gives some preference to its own employees for vacant jobs; the senior busdriver's job requires special tact and empathy in dealing with the elderly; Valdez had demonstrated his qualification by satisfactorily perform- ing the job for some 5 or 6 weeks as well as on prior occasions; and Loncosky admittedly had had no prior ex- 3 Major complaints in the February 1979 letter are that "in Mr. Kauf- mann's view, the E.O.C. is 'his' agency"; "all employees are left at his mercy regarding their future employment"; and "[slupervisors are demor- alized because their judgment carries no weight in crisis situations, which due to this policy, occur regularly.' 39 While Abilities and Goodwill involved employee objection to the dis- charge of a supervisor, the same principles would appear applicable to protests of the retention of a supervisor 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD perience either in driving a bus or in dealing with the el- derly or in any other activity remotely relevant to the position as Respondent's senior busdriver. Under all the circumstances, I have no doubt that, had it not been for his protected concerted activities, Valdez would have been given the job, at least after Kimmer refused it. 4 0 It is also clear that Respondent's failure to call Valdez as a substitute driver after March 2, 1979, was occa- sioned by his protected concerted activities, and thus constituted violation of Section 8(a)(l) of the Act by Re- spondent. Contrary to Respondent's contention, it is no defense that after March 2 Valdez never took the initia- tive to obtain substitute driving assignments. He had long ago expressed his willingness to drive as a substitute and had never withdrawn that statement. His prior assign- ments for substitute driving had been initiated by Re- spondent without specific requests by Valdez. He was not called because of specific instructions given by Kauf- mann. CONCI.USIONS OF LAW 1. Saratoga County Economic Opportunity Council, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. It will effectuate the purposes of the Act for the Board to assert jurisdiction over Saratoga Economic Op- portunity Council, Inc. 3. By failing and refusing to consider Max Valdez' ap- plication for the position of senior busdriver and to ap- point him to such position, because he engaged in pro- tected concerted activity for the mutual aid and protec- tion of the Council's employees, Respondent has inter- fered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(l) of the Act. 4. By disqualifying Max Valdez as a substitute driver after March 2, 1979, because he engaged in protected concerted activity, Respondent has interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, in viola- tion of Section 8(a)( ) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Till: RiimIiD)Y Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent be required to cease and desist therefrom. In my opinion, the specific unfair labor practices alleged and found in this case would not warrant a broad cease-and- desist order within the guideline provided by the Board in lickott Foods, Inc., 242 NLRB No. 177 (1979). However, evidence in the record, particularly admissions made by Kaufmann and repeated in Respondent's post- trial brief, reflect a virtually total disregard of the rights guaranteed to employees by Section 7 of the Act. Most noteworthy are Kaufmann's testimony that he discharged " Although I IlTadiC ill sILuch fildlig. i is possible tiall V'aldez swould hae hBeen given priority c'scn over Kiirnier Fhis ohstratilitll is hased on ('l)onnell's lestinlil)y that Kilnimer als i not ualuly ol e fftrd Ih oh hilut sIrnli .as iskel if sl S' ll l] b il ltelstcd ill it employees who refused to recant, as serious misconduct, their prior protected concerted activities and agree not to repeat such conduct, and Kaufmann's unabashed offer of improper support of organizational activities by the employees. Although these matters were not alleged or litigated as such in the present case, Kaufmann's incrimi- nating testimony was unambiguous. Such admissions, coupled with the unfair labor practices found, appear to me to be sufficient to warrant a finding that Respondent had demonstrated a propensity to ignore the provisions of the Act and thus commit further violations. Accord- ingly, I shall recommend issuance of a broad cease-and- desist order. As an affirmative remedy for the unfair labor practices here found, I shall adopt the General Counsel's request that Respondent be ordered to offer Max Valdez the job of senior busdriver, or, at Valdez' election, available as- signments as a substitute driver, either form of "reinstate- ment" being without prejudice to his seniority and other rights and privileges. Additionally, as is customary, it will be recommended that Respondent be required to make Valdez whole for any loss of earnings he may have suffered by Respondent's failure and refusal to appoint him the senior busdriver as of March 12, 1979, when Loncosky assumed the position. 4i Such backpay shall be computed on a quarterly basis, with interest thereon, to be computed in the manner prescribed in F. W. Wool- worth Company. 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).42 The customary notice-posting, recordkeeping, and reporting require- ments will also be recommended. 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: ORDER4 3 The Respondent, Saratoga County Economic Oppor- tunity Council, Inc., Saratoga County, New York, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to employ or reemploy, or otherwise dis- criminating against, any employees or former employees because they have engaged in concerted activity for their mutal aid or protection. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act; (a) Offer to Max Valdez the position of senior bus- driver or, at Valdez' election, offer him available oppor- tunities to serve as a substitute driver. 41 ackpa; i not recommended for tihe prior week since, as Respond- cti observes, Valdez' discharge on March 2 has rot been alleged as viola- litt ofI the Ac. lthere is nlo evidenice that hele w i.as substitute driving aslailable durinig Ihe week of March 5 through 42 See generally, /t Plumbing & Heauling (., 138 NI.RH 716 (1962) 4: IIl the cvnct ino eXceptiorls are filed as provided by See 1)2 46 of the Rules and RegulatiolTl of the Natiotnal L.abor Relations Hoard, the filllinlgs, collnclusiols and recolmmended Order herei shall, as provided im Sec 1112 48 of the Rules and Regulations, be adopted h) the Board arid bhcorle it, fidinrgs. ctliclusions, anid ()rder and all objections heret shall be deemd sais cd fr ll lpurposcs SARATOGA COUNTY ECONOMIC COUNCIL, INC. 465 (b) Make Max Valdez whole for his loss of earnings in the manner set forth in the section of this Decision enti- tled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due to Max Valdez under the terms of this Order. (d) Post at its premises in Saratoga Springs and at all other premises maintained by it in the County of Sarato- ga, New York, copies of the attached notice marked "Appendix."4 4 Copies of said notice, on forms provided 44 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading Posted by by the Regional Director for Region 3, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of this Order, what steps Respondent taken to comply herewith. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National L.abor Relations Board "