Greater Boston YMCA

(GREAII.R BOSION YMCA Greater Boston YMCA and Greater Boston YMCA Services Corporation and Local 509, Service Em- ployees International Union, AFL-CIO and Greg- or) A. Johnson. Cases I ('A 13555, CA 13656. and I ('A 13828 July 13. 1979 DECISION AND ORDER REMANDING PROCEEDING TO ADMINISTRATIVE AW JUDGE BY CHAIRMAN FANNING AND ME MBFRS PN- I.() AND TREUISDAI.IF On March 14, 1979, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, Respondents Greater Boston YMCA' and Greater Boston YMCA Services Corpo- ration2 filed exceptions and supporting briefs. 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 briefs and has decided, based upon an evaluation of the available evidence, that the Administrative Law Judge may have erred when he determined that (a) the YMCA meets the Board's jurisdictional stan- dards, that (b) the Services Corporation meets the Board's jurisdictional standards, and that (c) the YMCA and Services Corporation are joint employ- ers.3 We shall therefore remand this case to the Ad- ministrative Law Judge so that he may receive evi- dence with respect to these matters. The YMCA The Administrative Law Judge found that the YMCA met the Board's jurisdictional standards. The record reveals, however, only that in the past year the YMCA had gross revenues of about $4.6 million. Of that amount, $150,000 and $200,000 were received from the State of Massachusetts and the city of Bos- ton, respectively; $135,000 from private donations; $130,000 from investment income: and the remain- der, approximately $3,985,000 from membership dues. The Administrative Law Judge correctly states. and the record reflects, that no evidence was adduced I Hereinafter referred to as YMCA. 2 Hereinafter referred to as Services Corporation. )The Administrative Law Judge also found certain vlolations of Sec 8(a I) and (3) of the Act. In view of the questions raised with respect to the jurisdiclional issue, we do not now pass upon those recommended fndindings of fact and conclusions of law as they relate to the alleged unfair labor prac- tices. with respect to direct inflow. Neither does the record reveal a scintilla of evidence concerning the specific operations performed by the YM('A and whether the' encompass services rendered or commercial op- erations: and, further, whether these services or op- erations generate any flow of funds across state lines. Moreover, the Administrative l.aw Judge relies, without justification, upon (onwsav Railroad ) '1( A. 237 NLRB 1151 (1978). hi Rhode Is/and (atholic OrphanI .4.lsvhrr, a/k/a St. 4lovsius Ilolme. 224 NI.RB 1344 (1976), and C/hildl and Familh Sertic o Spring- field. Ir.. 220 NIRB 37 (1975). Conwa Railroiad YMC(,4. suplra, involved a YMCA which exists almost entirely to provide bed and board to employees of the Consolidated Rail Corporation (Conrail). Based upon sufficient record evidence, the Board found itt that case that Conway met any of the applicable jurisdic- tional standards. While both Conwsa r Railroad YM(A,4 and St. 41oysius. v stand fior the proposition that the Board will assert statutory jurisdiction over non- profit, charitable organizations, neither case relieves us of the duty to determine whether Respondent YMCA herein meets our discretionary jurisdictional standards.4 Child and Family Service of' Springield, Inc.. supra. which the Administrative Law Judge cites for the proposition that the YMCA herein has suffi- cient impact on commerce, is inapposite. That case relied on the fact that over $200,000 was received from the Federal Government. In the case under con- sideration. the record reflects that the YMCA receives funds only from Massachusetts and Boston at best. intrastate funding. Moreover, unlike Child and Family Service of Springfield. Inc., the record here does not reflect any expenditures by the YMCA in interstate commerce. Accordingly, the Administrative Law Judge shall receive any and all evidence with respect to any inter- state purchases or sales of goods and services by the YMCA. and/or intrastate purchases or sales of goods and services from firms which are themselves in inter- state commerce. The Administrative Law Judge shall also receive any and all evidence concerning the spe- cific operations and services of the YMCA, and the flow of funds generated by each service or operation. The Services Corporation The Administrative Law Judge found that the Ser- vices Corporation purchased goods and services in ex- cess of $10,000 fiom employers who are themselves engaged in interstate commerce. This is not an accu- ' Member Penello continues to adhere to the position expressed in his and Member Murphy's dissent in Si A40ssius He nonetheless joins in this re- mand in order that lull record might he developed. B so joininlg in the remand, he does nt hereby draw any conclusions concerning whether or nut jurlsdictlon should be asserted herein 243 NI.RB No. 70 447 I)E('ISIONS OF' NATIONAIL LABOR RELAIONS BOARD rate reflection of the evidence before us. The record reflects that checks in the fiollowing amounts were sent by the Services Corporation to: New England Telephone & Telegraph Hobbs Oil Service Roper's Service (gasoline) Northeastern University Back Bay Stationers Frankline Field Lumber Brockton Edison Stewart Langdon Associates $7072.02 2253.26 1191.84 1250.00 940.12 2391.18 3791.29 3000.00 and that a stipulation was received that these are some of the services purchased by the Services Corpo- ration. No stipulation was reached, however, that any of the named companies were themselves in interstate commerce. Only one firm, Stewart Langdon Associ- ates, appeared to be located outside the State of Mas- sachusetts, in Fremont, New Hampshire. The Administrative aw Judge then found that, "[a]s the revenues of the YMCA Services Corporation approach $1 million per year, this operation, I con- clude, meets whatever jurisdictional standards may be applicable." Determining the Services Corporation to be analogous to a day care center, the Administra- tive Law Judge set a $250,000 standard for jurisdic- tion, citing Sall & Pepper Nursery School and Kinder- garten No. 222 NLRB 1295 (1976), and Young Women's Christian Association of Metropolitan Chi- cago, 235 NLRB 788 (1978). In both these cases, how- ever, the Federal Government provides at least a por- tion of the available funding. The Services Corporation herein, however, as shown by the current state of the record, receives only state and municipal funding in the amount of approximately $1 million.5 Moreover, it is not certain from the record that the program administered by the Services Corporation are so clearly similar to the day care model so as to come within that jurisdictional standard. Accordingly, the Administrative Law Judge shall receive any and all evidence relating to the nature of the grant programs administered by the Services Cor- poration, the role of the Services Corporation in that administration, as well as the nature of all other pro- grams and/or services performed by the Services Cor- poration. The Administrative Law Judge shall also receive any and all relevant evidence concerning di- rect and indirect inflow and outflow of funds, to and from the Services Corporation, so as to enable him to 'Our calculations reflect total revenues of $1.032.707. The state of the record. however, makes it difficult to assess the accuracy iif this figure. Al- though Member Penello dissented in Young Women s ('hris/inm Ass.ocuation of Metropolitan Chicago, he did so based on the control over that employers labor relations by Model Cities. an agency of the city o, Chicago. Member Penello has never objected to the inclusion of Federal funding in determining whether an employer meets any of the Board's jurisdictional standards. ascertain whether the Services Corporation meets any of the Board's jurisdictional standards., The Joint-Employer Issue The Administrative aw Judge found the YMCA and the Services Corporation to be joint employers. While it is true that the directors of the Services Cor- poration all hold some senior position with the YMCA, as do its officers, all of' whom are also Ser- vices Corporation board members, the record is silent as to the nature of ownership of each corporation. The Administrative Law Judge correctly states that William L. Wimberly, who is responsible fr adminis- tration of' the Services Corporation's Juvenile Justice Programs was also, at the material time, associate general director of the YMCA. The record also re- flects that he was involved in the discharges alleged as violations of Section 8(a)(3) of the Act. The record does not reveal, however, Wimberly's day-to-day re- lationship with either the YMCA or the Services Cor- poration, and to what extent, if any, his position func- tioned as a "bridge" between the two corporations. Moreover, the record is abridged on the general issue of common control of' labor relations. Thus, contrary to the finding of the Administrative Law Judge that the employee manual is the same for both corpora- tions, there was testimony only to the effect that some Services Corporation employees received the YMCA "Personnel-Policy Manual" (G.C. Exh. 8) and that certain Services Corporation supervisors may have handed it out to their employees. There was no spe- cific testimony regarding any personnel policies or benefits common to employees of both corporations, nor was there evidence on the possible effect of con- tractual requirements7 on any of the Services Corpo- I For example, (i.(. Ixh 3 the Services (orporation's annual expense distribution report. lists seeral headings and corresponding amounts as fil- lows: Salaries $570,179.50 Professional Fees 6.784.96 Sub Purchase Costs 14.970.96 Supplies Office 6,787.60 Kitchen 49.615.47 Educational 2,784.29 Housekeeping & Maintenance 4,538.28 Occupancy 88,357.41 Transportation 30.192.72 Program Supplies 26.854.06 Parent Organization Expenses 78,173.91 Interest 9.917.33 Other Expenses 21.686.20 Nowhere in the record is there any indication to whom or to where these funds were disbursed, It would seem that this would he a fertile area for inquiry. The contracts referred to are those between the state or municipal gv- ernment agency and the provider organization providing the service here. the Services Corporation and perhaps the YM(CA 448 (iREAl'IR BOSTON YMC'A ration's employees, and whether YMCA employees might be subject to similar requirements. The record also reflects that YMCA and Services Corporation are located in the same building. hut there is no specific evidence as to their physical rela- tionship within that building, and/or whether they share common services in their day-to-day opera- tions. Finally, it appears from the record that if the Ser- vices Corporation budget exceeds the contracted-for amount to be received from the State or city, the YMCA makes a "contribution" to the Services Cor- poration. There is no evidence, however, as to the nature, frequency, or extent of these contributions. Accordingly, the Administrative Law Judge shall receive any and all evidence relating to the joint-em- ployer issue, based on the above discussion, as well as any other relevant factors.8 Lacking evidence on all the matters discussed above, we cannot now decide whether jurisdiction lies with respect to the complaint's allegations. We shall. therefore, remand this case to the Administrative l.aw Judge for further proceedings consistent with the Board's Order herein. ORDER It is hereby ordered that this proceeding be. and it hereby is, remanded to Administrative Law Judge James L. Rose. who shall take such action as is re- quired in light of our decision that the record is insuf- ficient to decide the jurisdictional issues raised herein. IT IS FURHIRtI ) ORDIERIEI) that the Administrative Law Judge shall prepare and serve on the parties a supplemental decision containing credibility resolu- tions, findings of fact, conclusions of law, and recom- mendations, and that, following service of the supple- mental decision on the parties, the provisions of Section 102.46 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, shall be applicable. J Some areas of inquiry might be: I. Are the YM('A and Services Corporation separatel) inco(rporaled or chartered? 2. Ilow was each corporation formed? 3. Who "owns" each corpoxration? 4. Is there common supervision? 5. Do the operations of each corporation overlap In an) fashion? 6. Is the office staff of each crporation common or separate? 7. How are bookkeeping. auditing, and accounting handled? 8. Is there a common labor relations policy, and. if so. what is it? 9. Who formulates the labor relations policy for each corporation? Who enforces the policy? 10. Is there any flow of funds oi services between corporations? I . What is the nature and frequency of interchange between corpo- rations of employees and supervisors? 12. Are seniority and other bernetits transerable if an employ)ee moves rom one corpo)ration to the other? I)l.(CISION SIAIIMINI ()iF 1 i CstI JAMItS .. RosI, Administrative l.aw Judge: This matter was heard by me on various dates between Jul, I1 and December 14, 1978. upon the General Counsel's complaint which alleged generally that the Respondents are joint em- ployers who discharged three employees in violation of Sec- tion 8(a)(3) lone also in violation of Section 8(a)(4)1 of the National abor Relations Act as amended. 29 U.S.C'. Sec. 151. el xeq.,- discharged one supervisor in violation of Sec- tion 8(a)( I ) of the Act: and committed other acts violative of Section 8(a)( I ). The Respondents, while admitting the discharges of the individuals named in the complaint, denied that either thereby violated the Act or in an , other manner engaged in unlawful activity. Based upon the record as a w hole. including m observa- tion of the witnesses. briefs and arguments of counsel. I hereb 3 make the following: FINIIN( s ()F F I AND (CO')N( It ONS I 1. \AN I. RISI)I( I I()N The Greater Boston YM(CA (herein the YM('A) operates a wide ariety of social service programs. It has 16 branches and total annual revenues In excess of $4 nillion, most of which is froml ees. In addition it receives some mone 3 from the cit of Boston and the Commonwealth of Massachu- set s. It is alleged anld delied that the Y1MC.A annuall3 pur- chases goods and matelrils in excess of $50.(XI) directly fr on points outside the (Ciomninmonealth of' Massachusetts. Ilowever. there is no evidence to support this allegation. The (reater Boston YM('A Services (orporation (herein the Services (Corporation), although operating out of the same facilit. as the main branch of the YMCA, is a sepa- rate corporation and is engaged in a basically different en- terprise. The Services Corporation principally is engaged in providing administration for variyus social service pro- grams funded by the United States Government. the Com- monw;ealth of' Massachusetts, and the city of Boston. Citing Young Men'S (hlrristian A.4socialion o Portlnd, Oregon, 146 NRB 20 (1964). wherein the Board declined to assert jurisdiction over a nonprofit charitable organiza- tion to the extent it was engaged in noncommercial func- tions, the Respondents contend that this matter should be dismissed for lack of jurisdiction. However. it seems clear that jurisdiction will he asserted over nonprofit charitable organizations regardless of whether and to what extent they engage in a basically commercial enterprise. Thus in (onwavt Railroad YMCA, 237 NLRB 1151 (1978). the Board asserted jurisdiction over a YMCA which was providing meal and lodging facilities. While the opera- tions of the employer were essentially commercial in nature, nevertheless the Board stated: "ITlhe Board for jurisdic- tional purposes no longer distinguishes between profit and nonprofit organizations nor declines to assert over the latter because of' charitable or worthy purpose." The Board cited 449 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Rhode Island Catholic Orphan Asylum a/k/l St. A,4o'- sius Home, 224 NLRB 1344 (1976), noting that therein the Board took a position inconsistent with its earlier decision in Young Men 's Christian Association 'f Port/and, Oregon, supra. Thus I conclude that where the enterprise in question meets any of the Board's jurisdictional standards and can be shown to be engaged in interstate commerce, the Board will assert jurisdiction even though the enterprise is charita- ble rather than commercial in nature. Although there is no evidence of any direct or indirect inflow to the YMCA, it is clear that the YMCA is an or- ganization involved in interstate commerce. With revenues in excess of '$4 million per year and operating 16 branches. it necessarily must purchase substantial goods and services from others: e.g.., gas, electricity, telephone, and the like. Further, receiving, as it does, funds from the Common- wealth of Massachusetts ($150,000) and the city of' Boston ($200,000) I conclude that this operation has a sufficient impact on commerce to warrant assertion of jurisdiction. Child and Familt Serviice of Springfield, Inc., 220 N I.RB 37 (1975). It is also clear that its annual revenues exceed any of the Board's jurisdictional standards which might be appli- cable. The Services Corporation purchased goods and services from employers engaged in interstate commerce in excess of $10,000 in addition to receiving the state and Federal funds as indicated. As the revenues of the YMCA Services Corpo- ration approach $1 million per year, this operation, I con- clude, meets whatever jurisdictional standards may be ap- plicable. While the Board has not set jurisdictional standards for an enterprise administering grant programs under Federal and state authority, such would appear at minimum to be analogous to the operation of a day care center for which the Board has set a $250,000 standard. Salt & Pepper Nur- sery School & Kindergarten No. 2, 222 NLRB 1295 (1976). And this standard has been held applicable to the operation of day care centers by a YMCA where the money provided is from Federal. state, and local government grants. Young Women's Christian Association o/' Metropolitan Chicago. 235 NLRB 788 (1978). I therefore conclude that the Board will assert jurisdiction over the Services Corporation. and that each Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Services Corporation was created to administer grant programs as an arm of the YMCA. Its board of direc- tors all hold some senior position with the YMCA (chair- man of the board, president, vice president and so forth), as do its officers, all of whom are also Services Corporation board members. The senior management official respon- sible for administration of the Juvenile Justice Programs (which comprise most of the Services Corporation activity) was, at the time material here. William L. Wimberly. Wim- berly was also the associate general director of the YMCA. The principal office of both the YMCA and the Services Corporation are in the same building. The employee man- ual, with rules governing management/employee relations, is the same for both the YMCA and the Services Corpora- tion. And, as will be demonstrated infla, Wimberly took an active role in creating and administering labor relations policy involving Services Corporation employees. On these facts I conclude that the YMCA and the Services Corpora- tion (herein jointly referred to as the Respondents) are joint employers of the employees involved in this matter. Arch- diocese of' Philadelphia or, in the alternatile,. Archdiocese of' Philadelphia and each o'273 Parishev as Joint or Coecmplo - ers., 227 NLRB 1178 (1977). II. lit I.AB()R (OR(iANIZ.A ION INVOI.V I) The Respondents contend as a ground for dismissal that Local 509, Services Employees International Union. AFLI CIO (herein the Union), "was not eligible to accept Re- spondents' employees as members." At the time of the hear- ing, it appears that the Union had never admitted into membership any individual employed by an employer as defined in Section 2(2) of the Act. However, the Union. as will be more fully detailed below, clearly was in an organi- zational campaign among the Respondents' employees. These individuals are employees within the meaning of Sec- tion 2(3). Thus I conclude that the Union is, and at all material times has been, a labor organization within the meaning of Section 2(5) of' the Act. The Board has often held that "the willingness . . . to represent the employees in issue is controlling under the Act. not the eligibility of em- ployees to membership nor the exact extent of the (Union's) constitutional jurisdiction." Io Delulc ),oodsl In(., 96 NI.RB 1132. fn. 1 1(1950). III. IIl1 A I tt) tI N AIR I AB(oR P'RA( i I S A. BaclAgrounld e`o( st During the summer and tall of 1977. the material time herein. Wimberly's responsibilities included overseeing sonime of the programs administered by the Services ('orpo- ration, including the three Juvenile Justice Programs (JJP) involved in this matter (gencrall\ referred to as Camp Ilali- lax, Roxbu- Tracking Ianl ('hillenge Programs). These programs provided services through funding from the city, state and Federal Governments, to help care for and train juvenile offenders. In general, each program had a director and an assistant director, counselors, case workers. and CETA employees, who were paid from other grants, and, apparently. some volunteers. Sometime during the late summer, the idea of having a union in order to improve such matters as wages and other terms and conditions of employment began to be talked about among employees at the various JJP facilities. The initial contact was made with the Union hby Gregory John- son, an employee of the Roxhury facility, and by James Robbins, a counselor at the Mattapan facility (the Chal- lenge Program). At some point it was determined to have a party fir all JJP employees, sponsored by the Union, for the purpose, presumably, of having union representatives discuss the Union with employees and also for employees of the var- ious programs, who did not generally know each other, to meet. All dates are 1977 unless otherwise indicated. 450 (iR!AIFR B()S()ON YMCA The party was scheduled for September 16 and was ad- vertised by means of a flyer distributed at the various JJP facilities. While there is no indication on the flher that the Union was sponsoring this event, the testimony is quite clear that the Union's sponsorship was well known both to management and employees. In the afternoon of September 16. Wimberly called Ken- neth Smith. then director of the Roxhury program. Among other things, Wimberly told Smith that the board of direc- tors of the YMCA had met that afternoon and had deter- mined "that if the union came in to the juvenile justice facilities that they were going to close down all the pro- grams and go out of the juvenile justice business."' During this conversation Wimberly also told Smith that he "should eliminate Mr. Patten and Greg Johnson immediately" be- cause they were involved in union activity. And Wimberly said that he and some of the project directors. against the advice of the YMCA lawyers, were going to attend the union party that evening to see who was involved with the Union. Wimberly did in fact attend the party on the evening of September 16 and was there observed by employees. Wim- berly was first stationed in the lobby of the hotel where the party was being held. sitting by the elevators, and was sub- sequently invited to the party. Wimberly spent most the evening at the party and did talk to at least two or three of the principals in this matter about the Union and their grievances concerning the way management was running the programs. On August 26. employee James Robbins was discharged. according to Wimberly, because his performance was not up to par during the 90-day probationary period. On Sep- tember 19 Debra Bertocchi was discharged by letter rom Camp Halifax director Troy Garron: The reasons for your termination from employment are as listed below: Failure to follow written procedure concerning runs within the camp. This procedure is that the Police De- partment is to be called, the Regional Office if possible is to be called, the parents and the State Police are to be called and also the Director and Asst. Director is to be called. In the event of runs or emergency, if these 2 individuals cannot be reached then Mr. Bill Wimberly is to be called. On September 18. 1977 neither myself or Larry Searcy were notified that 3 youth had run from this unit. It is also noted that you did neglect your proper duty by not maintaining proper control over the youth you were responsible for at that time. The other reasons for this termination is that in the past you have received several warnings concerning your conduct as a counsel in this camp. One such inci- dent occurred on 7-5-77 when you did remove 3 youths from the Jordan Hospital, transported them to your home and allow one of those youth to illegally drive your sister's car, in as much as that youth had no driver's license or driver's permit. Also you did without permission from myself or Larry Searcy. which is the rule, that no youth is to be removed from the camp property without permission from myself or Larry 2 This is from the credited testimony ofl Smith undenied hb Wimberly Searcy you did take youth off camp on 9 17 77. there- fore not following proper procedure. On September 23. Gregory Johnson was demoted and transferred and on October II discharged. again according to Wimberly, because of his poor attendance and perform- ance. Finally, on September 21 Wimbherly discharged Ken- neth Smith for "poor performance." The General Counsel contends that the discharges of Robbins. Bertocchi. and Johnson were violative of Section 8(a)(3) [and in Johnson's case also 8(a)(4)1 and that the dis- charge of Smith was violative of Section 8(a)( I ) in that he was discharged because he refused to commit an unfitir la- bor practice by firing Johnson and another cmplosee. The presence of Wimberly at the September 16 part is alleged to be unlawful surveillance. And it is alleged that oiln or about August 16. supervisor Alex Brown unlawtulls in- terrogated and threatened an employee. B. A4nali'is ad ('oncluding inding, 1. he 8(a)( I activity The only evidence relating to Alex Bowen. an admitted supervisor. and the allegations concerning his actions comes from the testimony of Robbins. Robbins testified that he worked for the Challenge Program at the Mattapan flcility and that in the summer of 1977 he thought it would be a good idea to have a union. To this end he contacted John- son, who gave him the name and address of the I nion which Robbins then contacted. Then on or about August 16 he had a conversation with Manuel Santos the assistant director of the Challenge Program. and Bowen. During this conversation Santos asked him. "Well, what's the story of this about this union?" Robbins went on to testit that: "He (Santos) and Alex (Bowen) then proceeded to drill me about what union it was, what the depth of my involvement was and how I felt about it." And later, "that people could get themselves into trouble it' they were involved with it and that because of my college education. I expected too much from the Program and that perhaps I'd be happier working someplace else." The General Counsel relies on this conversation to estab- lish that Bowen interrogated Robbins about the Ulnion and threatened him. There is no allegation concerning Santos with regard to this event. Although Robbins' testimony is somewhat vague con- cerning precisely who made the statements to him, it does appear that Bowen made some of them. I found Robbins to be a generally credible witness. Noting that neithe. Bowen nor Santos' was called as a witness by the Respondents to deny the substance of this conversation I find that the con- versation in the substance testified to by Robbins did in ftct occur on or about August 16. I conclude that the Respon- dents did thereby interrogate and threaten an emplosee in violation of Section 8( ) of the Act. As noted above, on September 16 Wimberly undeniably was present at the Park Plaza Hotel at the time of the party for employees given by the Union. Although the Respon- Santo, was called as a witness b3 the (iencral ('oiunsel and s.is examined hb the Respondents. He testified prior to Robbins and was nt recalled. 451 I)( 'ISIONS ()F1: NAlIO()NAI Al)OR Rl.l.A I IO()NS I()ARI) dent contenlds that this was a coincidence and was not sur- veillance. from the credited and undenied testlimion of Smith I conclude that Wimberly in fact went to the Park Plaza otel lfor the purpose of' engaging in surveillance of' employees' union activily and that he did so. Such is a clear violation of Section 8(a)( I) of the Act. I note in making this finding that Wimberly was called as a witness for the Gen- eral Counsel and was cross-examined by the Respondents. but he was not recalled by the Respondents to testify about this matter. There is no evidence to support the Respon- dents' contention that Wimberly's presence at the Park Plaza Htoel was at all innocent. 2. The 8(a3(3) allegations While admitting the discharges of the four individuals named in the complaint. the Respondents contend that each was discharged for cause and therefore not in violation of the Act. It is of course fundamental that an employer may discharge an employee for cause, be it good or bad, or no cause at all: and that a discharge is proscribed by the Act only when motivated by the individual's union or pro- tected activity. Thus the essence of an 8(a)13) allegation is the Respondents' motive. Motive. however, is rarely estab- lished directly. Indeed. here Wimberly. Santos. and Garron each testified that the reason that they discharged, and/or recommended the discharge. of the individuals in question had nothing to do with his or her union activity. But the Respondents' assertions need not be accepted at lace value and proof of motive may be established by circumstantial evidence. Shattck Denn Mining Corporation (Iron King Branch) v. N.L.R. B.. 362 F.2d 466 (9th Cir. 1966). From the total record here I reject the self-serving claims of the Respondent's agents and infer that they were moti- vated by the known or suspected union activity of the four individuals alleged in the complaint. James Robbins was hired on June 22 as a youth coun- selor and was discharged on August 26. On July 25. after Robbins had been employed approximately I month but prior to the advent of the union activity, Wimberly told him. among other things, that the reports on him so far had been "pretty good" and that Wimberly wanted Robbins to stay in the program. Wimberly also told him that he would be receiving a small wage increase after I more month, at which time his performance would be reviewed again, and that he would be in line for another raise. Robbins admits to having been criticized in his second week of work and again after he had been employed about 6 weeks. The later criticism concerned taking a resident off the camp without notifying a supervisor. From Robbins' testimony, I find the event not to have occurred. That is. I believe that Robbins in fact notified his supervisor, Alex Bowen. While Santos himself was not notified, such was not necessary under the Respondents' rule. In any event. Rob- bins was not given any kind of warning about these matters nor does there seem to be anything in either event to justify the Respondents' contention that Robbins' performance changed after July 25 (when he was praised by Wimberly) to render it unacceptable. Undenied by Wimberly or Santos is Smith's testimony about a supervisors' meeting concerning the union cam- paign o Auligust 26. Ater giving spelvslrs the do's iaid don'ts., Winlhcrly said anl illliidul;ll had beei tcrlllnalled Hecause Of' his union activi(y. Sanits said, ' Ilhy i;iad takcen care (i' the person who was trying to (organi/c his unit." Ilhough Robbins was not mentioned by namec, a let- ter to him fronm S;intos dated August 18 warned Rohbbins about involving the program in his union activity. Given the lact that Robbins was known by supervision to be an activist in the budding organizational campaign ofi the union: the Respondents' demonstrated a;nimus: the written warning to him about involvement in union activity I week before his discharge: and the statement ol' Wimberly and Santos on August 26 to their supervisors, I conclude tha;lt Robbins was discharged because of his union activity. I'he alleged poor performance was not at factor. I therefore conclude that Wimberly discharged Robbins in violation of Section 8(;1)(3) of the Act. D)ebra Bertocchi began working at the ('amp lalilax fa- cility in March as a volunteer. She was hired on April I for 3 months as a paid case worker and then in July was made a permanent employee as a counselor. In August she received a warning for allowing two of the residents to jump off a canoe without a life preserver. On September 19 she was discharged principally for not having followed proper procedure on Saturday. September 18, when three of the residents ran off from the facility she had not called the director, assistant director, or Wimberly. She testified credibly, however, that she did not know that such was part of the procedure and that in fact she did contact those she had been advised to contact in the event of an escape. While on its face it appears that "to allow" a resident to run off the facility is a serious offense, clearly such occurs with some degree of' frequency. Otherwise. the Respondent would not have a written procedure to cover the eventual- ity. Furthermore, the camp is open, and on Saturday after- noon, when only two counselors are present, as was the case on September 18. it seems unreasonable to require them physically to restrain some 20 or so juvenile delinquents if those individuals choose to run off. The Respondents cer- tainly could have discharged Bertocchi for her perceived negligence in this matter, but then the Respondents could have discharged her for no reason at all. Finding that coun- selors have little actual ability to restrain the residents and that escapes occur from time to time, I conclude that the three youths' running away was not normally a discharge- able offense. Further. the principal reason given by Garron in the dis- charge letter is patently pretextual. He stated that she had failed to "follow written procedure concerning runs within the camp" by failing to call the director, assistant director. or in case they could not be reached, Wimberly. The Man- ual for Staff and Residents sets forth the procedure to be followed, "In case a youth runs." The procedure lists sev- eral calls to be made, but does not designate the director, assistant director, or Wimberly. In fact Bertocchi followed the procedure outlined. If Garron was referring to some writing other than the staff manual. such was not offered in evidence by the Respondents. Bertocchi was known as a union activist and indeed, on the night of the union party on September 16, she had dis- 452 (iRtA l fER B()SIO()N Y1('A cussed the Union with Wimberly. Given the iming of her discharge 2 days later. and the Respondents' demonstrated animus I conclude that the Respondents would not have discharged her on September 19 had she not been involked in the organizational campaign. I conclude that Bertocchi was discharged in violation of Section 8(a)(3). "The other reasons for this termination" advanced bh the Respondents are likewise pretextual. First. I credit Ber- tocchi that she in fact fillowed proper procedure concern- ing notification belore taking a youth off the premises. The other events. even if true, do not appear to be the type of thing for which the Respondents would normally discharge an otherwise competent counselor. Indeed she w s not dis- charged bor those reasons. These "other reasons." I con- clude, were seized upon after the determination was made to discharge her for her union activity. Gregory Johnson was hired by the Services Corporation in October 1976 and assigned to the Roxbury lfcility. There he functioned in three positions simultaneously court liai- son, assistant director. and job developer/employmnent co- ordinator. His principal duty was that of court liaison, how- ever, and the other titles were given him apparently in an effort to increase his total salary to some extent while saving the Respondents such wages as would be required in having three people on the payroll. According to Johnson's cred- ited testimony. however, he could not fully function in all three jobs all of the time. He only occasionally acted as assistant director, for no more than a few days in 1977. when he took over in the absence of Kenneth Smith. In the first week of July, Wimberly congratulated John- son on the job that he had been doing and asked if he would accept the directorship of the Challenge Program along with a substantial increase in salar. Johnson de- clined the offer on grounds that to accept a directorship would require giving a 2-year commitment, which he felt he could not then do. This conversation with Wimberly took place at a party given to celebrate the Services Corpora- tion's successful renegotiation of some contracts. Johnson's initial union activity was to invite two union agents to that party to have them meet some of the employ- ees. Thereafter, Johnson passed out union cards and spoke to employees about the Union as well as making and receiv- ing phone calls while at work concerning the organizational campaign. Johnson saw Wimberly at the September 16 party. The Monday following, he was called into Wimberly's office. where Wimberly told him that his work was not as good as Wimberly had thought and that his acts as "management were indispicable [sic." The following Friday (September 23), Johnson was advised that he was being demoted from part-time assistant director, and his salary was accordingly reduced. And at that time Wimberly said that thereafter Johnson would be working out of the main (Huntington Street) office, where Wimberly was stationed, rather than the Roxbury facility. Then on October II. the Tuesday following the Colum- bus Day holiday. Johnson was to report back to the Rox- bury facility, at this time under the directorship of Ken Duke (Kenneth Smith having been discharged on Septem- ber 21). Johnson called in that day to Duke's administrative assistant. explaining that he was going to be absent all da) to gise an affidaLsit to the National I.abor Relations Board. O()n ()ctober 12 he called in sick. again reporting to Gene- viese Carter, I)uke's administrative assistant, who in turn according to her undenied testimony gave these messages to l)uke. For unexcused absences, among other reasons stated by the Respondents in the termination letter, Johnson was then discharged. The alleged poor perflrnlance of' Johnson immediately prior to his discharge I find was pretextual. I conclude that Johnson was discharged ifor his known union activitD. First it is noted that as recently as July, and just prior to the adivent of the organizational campaign. Johnson's perform- ance was considered b WVimberly to be superior suffi- ciently so as to justify Wimberly's offering Johnson the di- rectorship of a program. There is no indication in the record that Johnson's performaince changed in any specific respect after July. Indeed, the alleged areas of poor per- formance were the type of thing tha had been occurring even prior to July. Beyond that. Johnson as outspoken and known to be an activist on behall of ilthe Union: and this, superimposed on the board of directors' policy of animus against the Ulnion. implentented b Wimberly, shows that the Respon- dents' actions toward Johnson ere motivated by his union activit. Further, it is undenied that the Respondents knew that Johnson was absent on October II because he was giving an affidavit to the National l.abor Relations Board. yet the Respondents contend that this day of absence was one reason he was discharged. Also, contrary to Wimberl' s letter. but not to his testi- monial assertion. Johnson called in every day he was ab- sent. This is from the credited and undenied testimony of Carter. Ior these reasons. I conclude that in discharging Johnson when they did the Respondents violated Section 8(a)(3) and (41 of the Act. Further. I conclude that Johnson's demotion from assist- ant director on September 23 was motivated by his union activity. While it is true that a supervisor is not an em- ployee protected by the Act, the title of assistant director along with the additional salary did not make Johnson a lull-time supervisor. He functioned only occasionally as a supervisor. But the additional salary was a perquisite given to Johnson which was taken by Wimberly after the Union activity began in earnest. Such was clearly a result of John- son's union activity. Again undenied is Smith's testimony that Wimberly told Smith to effect this action, although it appears that Wimberly himself did so. In short. I conclude that to take from Johnson the title of assistant director and. more importantly, the salary. affected his wages and condi- tions of employment arid, as it was motivated by Johnson's union activity. such was violative of Section 8(a)N3).4 Kenneth Smith. the director of the Roxbury program and a clear supervisor within the meaning of Section 2(11) of the Act. was discharged on September 21. again according to Wimberly because of his "poor performance." The Gen- eral Counsel contends that the true reason for Smith's dis- charge was that he had been instructed by Wimberly to discharge Johnson and another employee in violation of the 'I conclude thal arlance o the date. September 23. rom hat alleged. September 30. Is insignificant 453 I)I:('ISIONS Of- NATIONA. LABOR REI.ATIONS BOARI) Act and that Smith's discharge was punishment for his hav- ing failed to do so. From Smith's testimony it does appear that Wimberly instructed him to discharge Johnson and the other em- ployee, and he did not do so. But I do not believe that this failure was the reason that Wimberly discharged him. After Wimberly told Smith to "eliminate' these employees (one of whom was apparently not involved in any union ac- tivity), he then told Smith to strip them of their supervisory authority. The second order is of course inconsistent with the first and suggests that either Wimberly did not tell Smith to discharge these employees or, having done so, he forgot. In either event, Smith's failure to discharge Johnson and the other employee does not, on the state of this record. appear to have been involved at all in Wimberly's determi- nation to discharge Smith. On the contrary. I conclude from the totality of the rec- ord that Wimberly discharged Smith because Wimberly felt that Smith was involved in the union activity and was help- ing it along. Smith admitted having discussed the union with a em- ployee, a discussion about which he was confronted by Wimberly on September 21. Wimberly told Smith he wanted Smith to resign for having lied to him about dis- cussing the union with an employee. While Smith contends he did not in fact lie to Wimberly, material is what Wim- berly thought. This, I believe, was the precipitating cause of Smith's discharge. Supervisors are specifically excluded from the protection of the Act, and the discharge of a supervisor because he has engaged in or is suspected of having engaged in union ac- tivity is not unlawful. E.g., Hooks Drugs, Inc., 191 NLRB 189 (1971). On the other hand, there are situations in which the discharge of a supervisor may be violative of the Act where the discharge interferes with employees' Section 7 rights. The exception alleged in the complaint and argued by the General Counsel is that Smith as a supervisor was discharged for his failure to engage in the unfair labor prac- tice of discharging employees because of' their union ac- tivity. Therefore the discharge is violative of Section 8(a)( 1 ). citing Vada of Oklahoma, Inc., 216 NLRB 750 (1975), and Donelson Packing Co., Inc. and Riegel Provisionl Compav,. 220 NLRB 1043 (1975). As indicated, a review of the record here does not reveal that the reason that Wimberly discharged Smith was Smith's failure to engage in unfair labor practices. Rather I believe that the reason Wimberly discharged Smith was that Wimberly believed that Smith was involved in the or- ganizational activity. In short. I conclude that this is a case where the supervisor was discharged because of his particu- lar union activity and the discharge was therefore not a violation of the Act. That Wimberly's asserted reason for discharging Smith, which I do not credit, was pretextual does not of itself mean that the true reason was unlawful. I believe that Wimberly testified as he did with regard to the other employees in an effort to disguise the antiunion motivation involved in the discharges. But in the case of Smith the Respondents could with impunity be so motivated. Accordingly, I conclude that by discharging Smith on September 21. the Respondents did not violate Section I(a)( 1) of the Act. IV. I11 II'F1( IS 't IIllI 'NIAIR I.ABtlR PRA('IIt IS ')N ( ()MM R( I The activities of the YM('A and the Services ('orpora- tion, set forth above, occurring in connection with their op- erations. have a close, intimate, and substantial relationship to trade. traffic, an commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. '. Ilt RMll)Y' Having concluded that the Respondents have engaged in certain unfair labor practices, I will recommend that they cease and desist therefrom and take certain affirmative ac- tion including offering James Robbins, Debra Bertocchi and Gregory Johnson reinstatement to their former jobs (including Johnson to his predemotion positions) or, ift' those jobs no longer exist, to substantially equivalent posi- tions of employment, without prejudice to their seniority or other rights and privileges. and make them whole for any losses that they may have suffered as the result of the dis- crimination against them in accordance with the formula set fiorth in F. W. Woolworth (onipanv.- 90 NRB 289 (1950). and Florida Steel Corporationr 231 NLRB 651 (1977).' Upon the foregoing findings of fact and conclusions of law and the entire record in this matter, and pursuant to the provisions of' Section O0(c) of' the Act, I hereby issue the following recommended: ORI)ER6 The Respondents, Greater Boston YMCA and Greater Boston YMCA Services Corporation. Boston, Massachu- setts, shall: 1. Cease and desist from: (a) Interrogating employees concerning their interest in or activity on behalf of' Local 509, Service Employees Inter- national Union, AFL-CIO, or any other labor organiza- tion. (b) Threatening employees because of' their activity on behalf of the Union or any other labor organization. (c) Engaging in surveillance of employees' activity on be- hal' of' the Union or any other labor organization. (d) Discharging, demoting, or otherwise discriminating 'See. general.), Isis Plumbing & Hteating ('o., 138 NLRB 716 (1962). he General Counsel has asked for interest to he set at 9 percent per annum As this matter is now pending before the Board. I decline to make an? recom- mendalion concerning it. I In the event no exceptions are filed as proided by Sec. 102.46 o the Rules and Regulations of the National .abor Relations Board. the findings, conclusions. and recommended Order herein shall. as provided In Sec. 102.48 o, the Rules and Regulations. be adopted h the Board an hecome ts find- ings. conclusiins, and Order. and all objections thereto shall he deemed waived for all purposes. 454 GREATER BOSTON YMCA against employees because of their interest in or aclivity on behalf of the Union or any other labor organization. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action: (a) Offer James Robbins. Debra Bertocchi, and Gregor Johnson immediate and full reinstatement to their former jobs or, it' those jobs no longer exist, to other substantiall equivalent positions of employment. and make them whole fior any losses they mas have suffered pursuant to the provi- sions set frth in "he Remedy" section above. (b) Preserve and. upon request. make available to the Board or its agents for examination and copying all pay roll records. social security payment records. timecards, person- nel records and reports, and all records necessarN to anallze the amount of backpay due under the terms of this Order. (c) Post at their Boston Massachusetts. ftcilities copies of the attached notice marked "Appendix."' Copies oft' said notice, on forms provided by the Regional [)irector for Re- gion I. after being duly signed by the Respondents' autho- rized representative, shall be posted b them imme1diatekl upon receipt thereof and be maintained b them lotr 60) consecutive days thereafter, in conspicuous places, includ- ing all places where notices to eploees are cusloma;ril 3 posted. Reasonable steps shall be taken b therm to insure that said notices are not altered, defaced. or co cred b ;in\ other material. (c) Notif' the Regional Director for Region I. in rit- ing, within 20 days of the date of' this Order. Mwhat steps the) have taken to comply herewith. 'The allegations in the comiplaint not speciticall loiund herein are dismissed. I In the event that this Order is enlorced e .d a Judg ellnt ii i t llted S.i1le5 Court of Appeals. the wlords n the notice readilng "Posted h (rder i I he National I.iaNhr Relalltns Board'" hall read "PPosted Pursuant to a Judgment ot the tlnited States (luirl oIf \ppeals Inlorcing ; n Order ol the Na;lonal Labor Relations Board APPENDIX Niul I I TO Fi'Ml O ii iS POSI I) BY ORI)IR ()I Itl NAxll()NAI l.A ()R Ri- ii()S I R()ARI) An Agency of the Irnited States (iovernrnent After a hearing in which all parties participated and were gixen the opportunity to call witnesses, examinc a n cross- examine witnesses, and present evidence. it h;as heen found hv the National abor Relations Board that we have vio- lated the National Labor Relations Act. We have been or- dered to stop such activit and to post this notice and abide b, its terms. W\i' \111ii Not interrogate emploees concerning their interest in or activity on behaltf of ocal 50(). Ser- vice Emnploeces International I nion. AF'l ('10,() or ani! other labor organiilation. WI x\ i1 I l I threaten nltlploees betcause of their interest in or activit\ on behalf of the ahoec-nailed or a;1l other labor organllaltioln. \'1 ii Not enage in siurSill1ance ( o r eniplo\- ees' actB it\ on behalf of he ahobos c-nanlid or an\ other labor organ/ialion. WI \ill N()I demote. discharge. o otherwlise dLis- criminlate against ernplo ees because of their interest in or actilit on behalt of the ahove-named or tInx other labor orgallizationl. W1 x11 I o i a other ianllner ierlere .w ith. restrain. or coerce oulr ellplo Ces in the cXrclisc oi tihe rights giarantccd ileiln h Section 7 ot theI Act. WJI \i i otler Jaliles Robbins. l)ebra lci tocchi. aiid (irer J1hnsont)1 lull reinslit;Llllenlt to their Iorier (obhs or. it those jobs no longer eist. to suhstintilall, equi'alent Prositills of( c'mplo,\ lelnt ;illid \ 11 make thcenl hole !r a;n lorss of ,ages or henetits that thilela 111 hx1 li Sttlred is a result of the discrimination again~ themi. with interest. (jRI \SOR II()so YM(A \xS\t (R liR Bo)St(N YM(\ SIR\% I ()RPIOR\11(tN 455