Lorge School

National Labor Relations Board - Board Decisions

Feb 19, 2008

352 N.L.R.B. 119 (N.L.R.B. 2008)

LORGE SCHOOL
352 NLRB No. 17
119
The Lorge School and Linda Cooperman. Case 2–
CA–37967
February 19, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On August 3, 2007, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief. The General Counsel filed
cross-exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,1
findings,2 and conclusions and to adopt the recom-
mended Order as modified3 and set forth in full below.4
AMENDED REMEDY
The judge found that the Respondent violated Section
8(a)(1) of the Act by discharging Supervisor Linda Co-
operman because she refused to assist in causing the res-
ignation or constructive discharges of teachers and Union
Representatives Chris Piccigallo and James Rouse, ac-

1 The judge admitted into evidence transcripts of secretly made re-
cordings introduced by the General Counsel. The Respondent objected
at the hearing, and the judge subsequently concluded that the evidence
should not have been admitted. The General Counsel has excepted to
the judge’s finding that the recordings were improperly admitted. We
find it unnecessary to reach this issue because, in agreeing with the
judge that Linda Cooperman was unlawfully discharged, we do not rely
on the recordings.
2 The General Counsel and the Respondent have each excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
The judge concluded that the Respondent violated Sec. 8(a)(1) of the
Act by discharging Supervisor Linda Cooperman. We adopt that con-
clusion, but unlike the judge, we do not rely on the following facts and
evidence to show the Respondent’s animus: (1) Executive Director
Sandra Kasner’s comment to Cooperman about her management style;
(2) Kasner’s failure to turn over the names and addresses of new em-
ployees to the Union until she received a written request; and (3) the
testimony of Edwin Blowe.
3 We have modified the judge’s recommended Order to require that
Linda Cooperman be reinstated to her former position. We have substi-
tuted a new notice in conformity with the Order as modified.
4 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
tions that would have constituted unfair labor practices.
To remedy this violation, the judge recommended that
the Respondent be ordered to cease and desist from this
unlawful conduct and to make whole Cooperman for
wages and benefits she lost as a result of her discharge.
The judge, however, did not recommend that the Re-
spondent be ordered to reinstate Cooperman, observing
that it could result in a “dysfunctional management team
at the school.” Contrary to the judge, we find that Coop-
erman’s reinstatement is the appropriate remedy here.
The purpose of the Board’s remedial relief is to re-
store, as far as possible, the situation that would have
obtained but for the wrongful act. Phelps Dodge Corp.
v. NLRB, 313 U.S. 177, 194 (1941). Additionally, it is
well-settled Board policy to reinstate a supervisor who
has been terminated in violation of the Act in order to
ameliorate any intimidating effect that the termination
had on employees’ Section 7 rights. See Parker-Robb
Chevrolet, 262 NLRB 402, 404 (1982), review denied
sub nom. Automobile Salesmen’s Local 1095 v. NLRB,
711 F.2d 383 (D.C. Cir. 1983) (noting that the justifica-
tion for reinstatement of a supervisor terminated in viola-
tion of the Act “is grounded upon the view that the dis-
charge itself severely impinged on the employees’ Sec-
tion 7 rights”); see also Professional Medical Transport,
346 NLRB 1290 (2006); Howard Johnson Motor Lodge,
261 NLRB 866 (1982), enfd. 702 F.2d 1 (1st Cir. 1983).
Here, Cooperman would not have been discharged but
for the Respondent’s unlawful acts. Therefore, her rein-
statement to her prior position is appropriate to restore
the status quo. The judge’s speculation that “dysfunc-
tional management” might result from reinstating Coop-
erman is not a legally sufficient basis for departing from
the Board’s established remedy of reinstating unlawfully
discharged supervisors.5 See, e.g., NLRB v. Advertisers
Mfg. Co., 823 F.2d 1086, 1089 (7th Cir. 1987) (“the
company’s action in firing [a supervisor] may have cre-
ated bitterness and undermined her loyalty, but if so the
company has only itself to blame”).
Cooperman did not engage in any conduct that would
preclude her reinstatement. Accordingly, having dis-
criminatorily discharged Cooperman, the Respondent
must offer her reinstatement to her former or substan-
tially equivalent position and make her whole for any
loss of earnings and other benefits, computed on a quar-

5 Member Schaumber agrees with his colleague that extant Board
law requires Cooperman’s reinstatement to remedy the Respondent’s
unfair labor practice. However, like the judge, he is of the view that
this could result in a dysfunctional workplace, and questions the policy
that compels Board interference with management decisions regarding
high-level supervisors. He applies precedent for institutional reasons
for the purpose of deciding this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD120
terly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, The Lorge School, New York, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any supervisor for refusing to discharge or discipline
employees because of their union activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Linda Cooperman full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to any rights or privileges
previously enjoyed.
(b) Make whole, with interest, Linda Cooperman for
any loss of earnings and other benefits suffered as a re-
sult of her unlawful discharge, in the manner set forth in
the amended remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to Linda Cooperman’s unlaw-
ful discharge, and we will, within 3 days thereafter notify
her in writing that this has been done and that the dis-
charge will not be used against her in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in New York, New York, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since August 1,
2006.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any supervisor for refusing to discharge or disci-
pline employees because of their union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act, set out above.
WE WILL offer Linda Cooperman full reinstatement to
her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to any
rights or privileges previously enjoyed.
WE WILL make whole Linda Cooperman for any loss of
earnings and other benefits suffered as a result of her
unlawful discharge, less any net interim earnings, plus
interest.
LORGE SCHOOL 121
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Linda Cooperman, and WE WILL, within 3 days
thereafter, notify her in writing that this has been done
and that the discharge will not be used against her in any
way.
THE LORGE SCHOOL
Susannah Z. Ringel, Esq., for the General Counsel.
Daniel Silverman, Esq., for the Respondent.
Antonio M. Cavallaro, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in New York, New York, on 4 days in May and June 2007.
The charge and the amended charge were filed on November 8
and December 19, 2006.
The complaint, which was issued on March 30, 2007, alleged
that the Respondent discharged Linda Cooperman on August 1,
2006, because she refused to commit unfair labor practices.
Specifically, the allegation, as fleshed out at the opening of the
hearing, was that the Respondent’s executive director, Deborah
Kasner, instructed Cooperman to make working conditions so
adverse to the Union’s representatives, Chris Piccigallo and
James Rouse, that they would quit their employment.1
Based on the evidence as a whole, including my observation
of the demeanor of the witnesses and after consideration of the
briefs filed, I make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The complaint alleges and the answer admits that the Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Lorge School is a publicly funded private school. It is
located in a 5-story building in Manhattan and services students
from kindergarten to the 12th grade. These are students who
have emotional or cogitative difficulties, or both. There are,
on average, between 70 to 90 students in the school and the
classrooms tend to have 8 to 10 students with a teacher and a
teacher assistant assigned to each classroom. In addition, the
school employs four social workers and has staff employed to
provide security functions.
Reporting to a board of trustees, Deborah Kasner is the ex-
ecutive director. She had previously been employed in a mana-
gerial position at the school and was promoted to the position
of executive director after competing for that position with

1 The charge and the amended charge made it abundantly clear that
the allegation was that the Respondent discharged Cooperman because
it wanted her to create a “hostile work environment” against union
officials and it wanted her to discharge or discipline union representa-
tives. The Respondent moved to dismiss the complaint because it was
too vague. I denied this motion because the Respondent was clearly on
notice as to the nature of the allegations made against it.
various other individuals. Kasner took over the position from
Michael Pagliuca who retired. She had started at the Lorge
School as a social worker and her training is in social work.
Also recently hired as the contract administrator and clinical
supervisor was David Osman. This individual had no previous
experience at the school and was, during the summer of 2006, a
newcomer. In performing his duties, Osman took over that job
from Kasner. He was to be responsible for supervising the
school’s social workers.
Linda Cooperman, the Charging Party, was hired on July 10,
2006, as the instructional supervisor and she replaced Dr.
Elaine Dawes who was about to retire. This job was to be in
charge of academic instruction and in this capacity she was to
be the direct supervisor of the teachers. I note that Cooperman
was offered this job after she had applied for the top job that
had been given to Kasner. Cooperman had no prior experience
at the Lorge School and although she may have had some ex-
perience in public schools dealing with difficult children, her
background was as a teacher and not a social worker. The
chairman of the board of trustees is Martha Bernard.
I should note that once Kasner, Osman, and Cooperman were
in place, they were the three highest officials at the school.
Additionally, Shawn Bradley and Cassandra Pierre were re-
spectively the dean of students and assistant dean of students.
Their jobs were to supervise a staff of six crisis interventionists.
Compounding this entire situation, where a whole new
managerial staff had been assembled, the State of New York
had recently conducted an audit of the school and by July 2006,
the managers were aware that there was a good deal of criticism
regarding the school’s programs. As noted by Kasner, the State
report was potentially horrendous because if the school lost its
state funding it would be out of business.
In my opinion, all of the people involved in this case were
essentially well intentioned individuals who were trying to do a
good job in difficult circumstances.
Since 2000, the Lorge School has recognized the United
Federation of Teachers in the following unit:
All full-time and regular part-time speech therapists/teachers,
school psychologists, social workers, teachers, teaching assis-
tants, crisis interventionists, secretaries and maintenance
workers, excluding all other employees, guards and supervi-
sors as defined in the Act.
At the time of the events herein, there was a collective-
bargaining agreement that ran from July 1, 2005, to June 30,
2008. That agreement contained grievance and arbitration
clauses and it appears from this record that the Union had been
fairly aggressive in filing grievances over the years. The UFT
chapter leader has been Christopher Piccigallo and James
Rouse has been the union delegate. Both teachers had been
involved in the organizing campaign and after that campaign
was successful, they have both been directly involved in con-
tract negotiations and grievance handling.
The General Counsel contends that there has been a long-
standing history of animus by the school’s administrators
against the Union. But the evidence of alleged conduct before
2006 to support this contention is pretty meager and involved a
largely different cast of managers. For example, an employee
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD122
named Edwin Blowe testified that in June 2006, when he re-
ceived a warning and was asked by Pagliuca if he wanted union
representation, he responded that he did not “deal with the un-
ion.” (Blowe asserted that he had some kind of dispute with the
union representatives.) Blowe testified that Pagliuca then asked
why he didn’t try to get rid of the union and suggested that if he
could get 30 percent of the staff to sign some kind of petition he
could accomplish that result. Nevertheless, the evidence on
balance, merely indicates that when Blowe stated his displeas-
ure with the Union, he probably was told about the type of pro-
cedures that could be followed to get the NLRB to run another
election.2
Nevertheless, the evidence shows that when Kasner took
over as executive director and after Osman was hired as the
contract administrator, the climate between management and
the Union changed for the worse.
In July 2006, Rouse made a request to Kasner that she pro-
vide contact information for all newly hired bargaining unit
employees so that he could provide them with information re-
garding the State’s certification requirements. (Teachers ulti-
mately have to be certified and if not already certified need to
have a plan to become certified. The contract at article 7, states
that the Employer and the Union are equally responsible for
bringing certification information to the attention of teachers.)
Notwithstanding this request for presumptively relevant infor-
mation, Kasner refused to give Rouse the information. And
although the information was ultimately provided, it only hap-
pened after Rouse told Kasner that refusing would be a viola-
tion of the NLRA and after the Union sent a letter repeating the
request on July 27, 2006.
Cooperman testified that on or about July 12 or 13, 2006,
while she was talking to Kasner in her office, the latter received
a phone call wherein she was told about two grievances that
had been filed on behalf of the two janitors. According to Co-
operman, Kasner told her that the previous administration
(Pagliuca), had been “soft” on the teachers and had allowed
them to control the school. Cooperman asserts that Kasner
stated that the previous administrator had made decisions with a
view toward avoiding grievances and that she (Kasner), was
going to “show them who’s boss.”
Cooperman testified that later in the day, Kasner received a
phone call from Conchetta Diaz, a teaching assistant and that
after the call ended, Kasner said that Diaz was crying because
Rouse had told her she would be fired at the end of the year
unless she got her certification. According to Cooperman,
Kasner told her that Rouse was acting outside of his authority
and that she also complained that Rouse had tried to deliver
some letter that he wrote directing employees to a website relat-
ing to teacher certifications.3 Cooperman testified that Kasner
told her she shouldn’t trust Rouse; that he wanted their jobs,
and that he had created a lot of trouble for the school. Accord-

2 Rouse testified that in 2003, he had recommended that a friend be
hired and that the dean of students told him that she was not hiring him
because of “you and your union crap.” Apart from being remote in
time, Rouse conceded that when he complained to Pagliuca, then the
executive director, the latter agreed to hire his friend.
3 This would have been protected concerted activity as it was consis-
tent with the terms of the collective-bargaining agreement.
ing to Cooperman, during this same conversation, Kasner told
her that she thought that Chris Piccigallo was an average
teacher and that he was fulfilling his ambition to be a school
administrator by being a union leader.
According to Cooperman, in or about the third week of July,
she was called into Kasner’s office alone and was told; “I want
you to make it difficult for James and Chris to stay here.” Co-
operman testified that she asked Kasner if she wanted her to
create a hostile work environment for these two teachers and
that Kasner said, “yes.” According to Cooperman, she told
Kasner that she could not do this to which Kasner replied that
she should be a team player and take direction from the team
leader. Cooperman testified that Kasner gave her a copy of the
union contract and stated that she “could see it happening all
over again.”
Kasner denied the assertions by Cooperman, particularly the
assertion that she asked Cooperman to make it difficult for
Rouse and Piccigallo to continue to work at the school. As to
Rouse, Kasner states that she told Cooperman that Rouse
needed close supervision (although conceding that he had re-
ceived very good performance evaluations). As to Piccigallo,
Kasner testified that he was one of the better teachers. She
denied that she ever got fed up or annoyed with either man
because of the way that they handled contract grievances.
However, in testifying about an obscure incident involving the
availability of a student’s IEP, Kasner admits that she might
have told Cooperman not to take Piccigallo at face value.
Although there were some differences in the testimony given
by the parties’ witnesses, there also was a great deal that was
agreed upon. However, to the extent that there were crucial
differences between Cooperman and Kasner, I am going to
credit Cooperman’s account. I thought that Cooperman’s tes-
timony was detailed, consistent, and straightforward. To the
extent possible, her testimony was corroborated by other wit-
nesses. Also, I was favorably impressed with her testimony on
demeanor grounds.
During the brief period that Cooperman worked at the
school, she developed a plan to departmentalize the school’s
classes so that the children from the intermediate and high
school grades would go from classroom to classroom and
where the teachers would specialize in particular subjects. The
evidence is that when Cooperman talked about this idea to Dr.
Dawes, the latter was skeptical because of the special needs of
the children, which might be disrupted by too much movement
from class to class.4 There is also no doubt that Kasner, when
presented with this idea, was also skeptical and was reluctant to
implement it.
I must say that with respect to the idea of departmentaliza-
tion, I do not make any judgment as to which point of view is
better. I only note that this was a matter of real dispute be-
tween Cooperman and Kasner.
As noted above, Chris Piccigallo made a written request for
relevant information on July 27, 2006.

4 Dr. Dawes also testified that she found Cooperman to be self-
righteous and overbearing. That may be, but her personal interactions
with and opinion of Cooperman had nothing whatsoever to do with
Kasner’s decision to fire Cooperman.
LORGE SCHOOL 123
On Friday, July 28, 2006, there was a management meeting
attended by Kasner, Cooperman, Osman, and Pierre. Cooper-
man’s recollection of this meeting was that she raised an issue
about IEPs and when she mentioned Piccigallo’s name, Osman
got red in the face and said that if Piccigallo was there he would
punch him out. Cooperman states that when she asked what
this was all about, Kasner said that there had been a grievance
meeting involving the janitors and that Rouse and Piccigallo
had walked out because they refused to have the meeting re-
corded. Cooperman also testified that Kasner said that there
had been an argument because Piccigallo had refused to follow
Osman’s request to take a visiting student into his class and that
he viewed this as insubordination. According to Cooperman,
after explaining that she, as the teachers’ supervisor, would
make the assignment if a new child came to visit the school,
“they” said that the union leadership was a problem at the
school. Cooperman testified:
I’m feeling very uncomfortable because, as the only licensed
administrator, you’re asking me to go after these guys and I’m
not comfortable doing that. And I said that the teachers have
to like me. And then, I thought better of the word “like,” and I
said, “no, they have to trust me.” And then, Ms. Pierre said,
“No, they have to like you, but you still don’t understand.
Chris and James have caused a lot of problems at the school,
and they really have to go.”5
At the conclusion of the meeting, Kasner announced that
there would be another meeting on Monday, July 31, and that
Sandra Kahn, a consultant to the board of trustees would be
present.6
According to Cooperman, after the meeting ended, she went
into Osman’s office and asked him why he was so angry. She
testified that he said that they were being tested as new admin-
istrators and that if Kasner said that they had to go, they had to
go. Cooperman testified that she told Osman about the State
report and said that she didn’t know how they were going to
make progress if all they did at the management meetings was
talk about Chris Piccigallo. She also testified that she told Os-
man that Kasner was not licensed as a school administrator and
that she was limited to spending only 25 percent of her time
doing administrative work. At this point, according to Coop-
erman, they weren’t getting anywhere in the conversation and
she left.
On Monday morning (July 31), Kasner called Cooperman
and Osman into her office and asked if Cooperman had told
Osman that she (Kasner), was incompetent. (Obviously, Os-
man had related the conversation that he had with Cooperman
on Friday afternoon.) Cooperman testified that she denied this
assertion and stated that she had merely told Osman that Kasner
was not certified to spend all of her time on administrative du-
ties. At this point, according to Cooperman, Kasner asked Os-
man to leave and said that the changes that Cooperman had
been proposing were not going to happen. (The proposed de-

5 Pierre was not called as a witness.
6 The transcript should be corrected to reflect the correct spelling of
Dr. Kahn.
partmentalization plan.) Cooperman states that Kasner ended
by saying; “Does that make you want to leave?”
On Tuesday, August 1, 2006, at around 3 p.m., there was a
second management meeting. This was attended by Cooper-
man, Kasner, Osman, Bradley, Pierre, and Dr. Kahn. Cooper-
man testified that after an initial discussion about reinstating
class reviews, Kasner said that there was a member of the lead-
ership team who was willing to take her leadership on every-
thing except for the two union leaders. Cooperman testified
that as she understood that Kasner was talking about her, she
responded by saying that she felt very uncomfortable about her
refusal to create a hostile work environment and not being con-
sidered a team player on that account. According to Cooper-
man, Dr. Kahn said that this is not just what Kasner wanted;
that Kasner worked for the board of directors and that the union
leadership had not only caused trouble for the school but also
had caused a great deal of legal expense. Cooperman testified
that Kahn stated that the two union leaders had to go and that
her refusal to do this was going to be creating a problem for
Kasner.
Cooperman’s testimony regarding the August 1 meeting was
essentially denied by Dr. Kahn, Osman, and Kasner. But I do
note that Dr. Kahn testified that at this or at the earlier man-
agement meeting, she recalled that Cooperman, in the context
of a discussion about Rouse, stated that she didn’t want to be
put in the position of creating any kind of hostile environment
for him.7
Later that day, Cooperman was called into Kasner’s office,
and in the presence of the bookkeeper, was told that she was
fired.
On August 3, 2006, Cooperman sent a letter to Howard
Johnson, a trustee, setting forth her position regarding her dis-
charge. This was well before she filed any charge with the
NLRB and before she sought any legal counsel. This stated
inter alia;
As you must already know, Deborah fired me yester-
day, August 1, because of personal differences. First, I am
writing to express the sadness I feel about not being given
the opportunity to achieve the educational objectives for
the school that I so clearly outlined during my interviews
with the Board. Second, I am asking you to explain why I
was invited to work for an individual whose personal goals
are to perpetuate the divide between the clinicians and
educators and whose stated mission is to transform Lorge
into a day treatment center for emotionally disturbed chil-
dren.
From the outset, Deborah expressed great hostility to-
ward certain members of the teaching staff and asked me
to create a hostile work environment that would cause
these individuals to leave. I tried to explain to Deborah
that I was uncomfortable with executing a vendetta, and as
an educational administrator I could only promote the dis-
missal of teachers on the basis of their incompetence, not
their political views. Upon hearing this, Deborah assumed

7 Since there were at least two leadership meetings, it is entirely pos-
sible that people may have conflated the events that took place on two
separate occasions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD124
that I was not a team player. She viewed me as insubordi-
nate and continued to create an issue over the matter to the
point where she brought pressure on me to resign. Though
I resisted and tried to be conciliatory, she was firm in her
attitude, which resulted in her firing me without warning
or notice.
The General Counsel presented Edwin Blowe who testified
that a few days after Cooperman had been fired, he overheard a
conversation between Kasner and Martha Bernard that was
occurring in an office adjacent to where he was working.
Blowe testified that he overheard Kasner saying that Cooper-
man didn’t want to go by her rules and that she wanted to do a
lot of things for the school that couldn’t happen. Blowe further
testified (after some leading), that he heard Kasner say that she
wanted to get rid of her headaches and that her headaches were
Rouse and Piccigallo.8
I note that Blowe’s testimony also tended to corroborate the
Respondent’s argument that there were other issues that were
the subject of a nonunion-related dispute between Cooperman
and Kasner. Thus, Blowe testified that he heard Kasner say
that Cooperman wanted to bring the library up from the base-
ment and that this would cost too much money.
The General Counsel offered further evidence of animus to-
wards Rouse and Piccigallo as union representatives. This was
in the form of testimony regarding transactions that occurred
after Cooperman’s discharge.
In September 2006, there were two grievances filed, one of
which involved a directive by Osman to the social workers that
they call his cell phone if they were going to be absent. It
seems that before the grievance meeting was held, Osman dis-
cussed the matter with the social workers outside the presence
of the union representatives and that these employees appar-
ently agreed that the new policy was reasonable. When the
grievance meeting was held, Rouse and Piccigallo objected to
the fact that Osman had discussed the grievance with the indi-
viduals without the union being notified or given an opportu-
nity to be involved.9 Osman for his part, defended his action of

8 Blowe had been subpoenaed by the General Counsel and had failed
to appear. Nevertheless, he subsequently agreed to testify voluntarily
and showed up on June 13, 2007. The General Counsel suggests that
his reluctance to testify was caused by the fact that his girlfriend was
still employed at the school. As noted above, he testified about some
conversations that he had with the previous executive director and I
concluded that those were essentially innocent. Blowe was also
pressed by the General Counsel to testify about some additional state-
ments made by Kasner and Bernard during the overheard conversation,
by having him repeat what was contained in his pretrial affidavit. But I
will not rely on these additional alleged statements because I don’t
think he had a present memory of these statements and his affidavit
cannot be construed as a past recollection recorded. Nor, despite his
reluctance to testify, do I conclude that he was an adverse witness,
whose affidavit could be used to prove another alleged conversation
that he had with some woman whose name he didn’t know but whom
he thought was on the board of trustees.
9 Sec. 9(a) in pertinent part states: “That any individual employee or
a group of employees shall have the right at any time to present griev-
ances to their employer and to have such grievances adjusted, without
the intervention of the bargaining representative, as long as the adjust-
holding a staff meeting to discuss the cell phone policy and
opined that he was not obligated to deal with Piccigallo or
Rouse about the matter. At one point, Osman got angry and
asked if he was being accused of doing anything illegal. Rouse
responded that what he had done was a violation of the contract
whereupon Osman demanded that Rouse show him what in the
contract was being violated. At that point, Osman threw the
contract at Rouse and hit him with it. Kasner adjourned the
meeting.
On May 6, 2007, Rouse and Piccigallo had a meeting with
Kasner about a grievance that they filed. This involved a claim
for health insurance for a substitute teacher hired by Kasner
who the union representatives construed as being in the bar-
gaining unit and therefore covered by the contract. At the
meeting, Kasner stated her opinion that she needed to hire a
teacher on a temporary basis; that the contract did not prohibit
this; and that because this person was not a permanent em-
ployee she was not entitled to contract benefits. As the argu-
ment escalated, Kasner got angrier and angrier. She stated:
KASNER: You know what? You know what I’m going
to do? You guys want to push this? I won’t have any
temporary teachers, and you guys can figure out how
you’re going to cover the classes.
PICCIGALLO: Deborah, but that’s not the issue.
KASNER: You know what? I’m not discussing it any
further. I will tell this lady we’re not going to use her any-
more and you guys, the two of you, can figure out how
we’re going to cover those classes. All right?
. . . .
KASNER: I’m not discussing it. I’m not discussing it
any further. Now, in terms of this one, you’re right. . . .
And you know what? My intention was to keep this
school cleaner. I wanted to change hours to keep the
school cleaner. You guys are getting in the way of my do-
ing things to improve the running of the school, and I re-
sent it and I’m sick of it.
ROUSE: That’s very unfair.
KASNER: I’m absolutely sick of it.
ROUSE: Very unfair.
KASNER: I don’t want to hear from you.10
Rouse testified that in April 2007, his supervisor, Barry
Malloy, told him that he should be careful about handing out
union cards to new employees because he was being watched

ment is not inconsistent with the terms of a collective-bargaining con-
tract or agreement then in effect.”
10 Rouse made a number of surreptitious audio recordings including
the conversations that occurred during the grievance meetings on Sep-
tember 26, 2006, and May 6, 2007. At the time that the General Coun-
sel offered these recordings into evidence, the Respondent objected
based on the fact that the recordings were surreptitiously made. I over-
ruled that objection, assuming that if the recordings were not doctored,
they would constitute the most reliable means of ascertaining what took
place at those meetings. I later discovered that the Board, as a matter of
policy, precludes the introduction of secret recordings made at negotia-
tion sessions. Triple A Fire Protection, 315 NLRB 409, 411 (1994).
Nevertheless, having taken them in as exhibits and having read the
transcripts, it is impossible to close that door after it was opened. I
can’t order myself to disremember the evidence that was received.
LORGE SCHOOL 125
and that what Rouse was doing might be misunderstood. Rouse
told Malloy that he didn’t understand how giving out union
cards to new members could be misunderstood and that Malloy
responded by saying something like; “I don’t think the new
members are going to complain, but it can be questioned.”
Rouse also testified that there was an incident in early May
2007, involving what he terms as a false accusation by Osman
that he had left the building during working time without per-
mission.11 Rouse testified that during a conversation he had
with Malloy about this incident, he told Malloy that he was
being harassed and that this was not the first time that Osman
had put something false in writing about Piccigallo and himself.
According to Rouse, Malloy said that he sees that Osman is
doing this to him; that he sees it as harassment; and that he has
tried to deal with Osman about this and has gotten nowhere.
Rouse testified that he told Malloy that he really needed him to
protect him from Osman’s constant harassment and that he
needed Malloy’s guidance. He states that Malloy responded by
saying; “Look avoid the guy as much as possible, but the har-
assment is not going to stop.” According to Rouse, Malloy said
that it was deliberate; that it was being directed by Kasner; and
that it might stop if Kasner thought that he was going to resign.
According to Rouse, Malloy told him that Kasner seemed to be
angrier lately and that she was angry about “this NLRB thing.”
Malloy, who was called as a witness by the Respondent, was
not asked about and did not deny either of the conversations
reported by Rouse. His entire testimony was that when he was
hired (after Cooperman was fired), he was never asked to har-
ass or create a hostile work environment for Rouse and Picci-
gallo.
Kasner testified that the reason that she decided to discharge
Cooperman was because Cooperman was not, in her opinion,
willing to follow Kasner’s direction. The main issue was the
question of departmentalization and according to Kasner, she
did not agree with Cooperman’s proposal that the school should
commence this program at the start of the new school year. She
testified that the students, particularly those in the middle
grades, would not adapt well to going from classroom to class-
room during the course of the day. But, according to Kasner, it
was not just the disagreement about policy, it was the manner
in which Cooperman went behind her back and pushed for her
proposal. In this regard, the Respondent points to Cooperman’s
private conversation with Osman on Friday, July 28, which
when reported to Kasner, seems to have been interpreted by her
as an accusation by Cooperman that Kasner was not competent
to be the executive director. Kasner also testified that at one
point, Cooperman stated that unless she was allowed to imple-
ment her ideas about departmentalization, she was going to go
to the State authorities and report the matter to them.
III. ANALYSIS
What I want to make clear is that there was a progression
from an agreement to work together, to a conflict, to a break-

11 As Rouse teaches music and has the students visit his classroom,
he doesn’t have to be in his classroom when students are not scheduled
to be there. He testified that he has, for a long time and without prior
complaint, smoked cigarettes outside the buildings when he had no
classes.
down, to the point where Mrs. Cooperman made it clear that,
for right or wrong, she was not going to take direction from
me.
I have no doubt that this testimony by Kasner is true. But it
can be interpreted as being favorable to either the General
Counsel or the Respondent. Kasner believed that Cooperman
had made it clear that she was not going to take direction from
her. But the question here is what was the direction that Kasner
wanted Cooperman to follow?
There may have been a variety of factors that caused Kasner
to discharge Cooperman, all relating to her belief that Cooper-
man would not take direction from her. The evidence shows
that Kasner and Cooperman disagreed about a significant pol-
icy matter; namely the question of departmentalization. The
evidence shows that Kasner might even have come to the opin-
ion (probably unjustified), that Cooperman was going behind
her back and seeking to undermine her authority. Moreover,
the initial starting point of these two individuals was precarious
because Cooperman had originally applied for the same job that
Kasner had just obtained. And human nature being what it is, I
can understand why Kasner would be suspicious of Cooperman
and view her as a potential rival. Finally, there was it seems to
me, a difference in attitude and approach given that Cooperman
had an academic background and Kasner had a social work
background.
But notwithstanding all of the above, I cannot escape the
conclusion that the proximate and predominant reason for Kas-
ner’s decision to discharge Cooperman was the latter’s unwill-
ingness to make life difficult for and force the resignations of
the two union delegates, Rouse and Piccigallo.
The credited evidence in this case shows that when Kasner
took over the job of the executive director, she sought to be a
strong manager. The evidence convinces me that Kasner be-
lieved that the Union stood in the way of allowing her to oper-
ate the school in an efficient manner and that the activity of the
union’s representatives in processing grievances, would be a
costly impediment to running the school that way she liked. In
this regard, I credit Cooperman’s testimony that on July 12 or
13, 2006, as two grievances were being reported to Kasner, the
latter said that the previous administration had been “soft” on
the teachers; had allowed them to control the school; had made
decisions with a view to avoiding grievances; and that she
(Kasner) was going to “show them who’s boss.”
This attitude was further evidenced by the fact that Kasner
refused two union requests for the names and addresses of new
hires and only furnished them after Rouse told her that the re-
fusal was a violation of the NLRA and after Piccigallo made a
written request for this information on July 27, 2008.
I credit the testimony of Cooperman regarding the manage-
ment meeting held on July 28, 2006, where she was explicitly
told that, “Chris and James have caused a lot of problems at the
school, and they really have to go.”
In addition to the above, the credited testimony of Blowe
(the eavesdropper), substantiates the conclusion that the pre-
dominant reason for Cooperman’s discharge was because she
would not help in ridding Kasner of those meddlesome men.
Thus, Blowe testified that he heard Kasner say, among other
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD126
things, that she wanted to get rid of her headaches and that her
headaches were Rouse and Piccigallo.
In Parker Robb Chevrolet, 262 NLRB 402 (1982), the Board
held that the discharge of a supervisor would only be unlawful
if it directly interferes with the rights of nonsupervisory em-
ployees. The Board stated:
Notwithstanding the general exclusion of supervisors
from coverage under the Act, the discharge of a supervisor
may violate Section 8(a)(1) in certain circumstances, none
of which are present here. Thus, an employer may not
discharge a supervisor for giving testimony adverse to an
employer’s interest either at an NLRB proceeding or dur-
ing the processing of an employee’s grievance under the
collective-bargaining agreement. Similarly, an employer
may not discharge a supervisor for refusing to commit un-
fair labor practices, or because the supervisor fails to pre-
vent unionization. In all these situations, however, the
protection afforded supervisors stems not from any statu-
tory protection inuring to them, but rather from the need to
vindicate employees’ exercise of their Section 7 rights.
. . . .
In the final analysis, the instant case, and indeed all
supervisory discharge cases, may be resolved by this
analysis: The discharge of supervisors is unlawful when it
interferes with the right of employees to exercise their
rights under Section 7 of the Act, as when they give testi-
mony adverse to their employers’ interest of when they re-
fuse to commit unfair labor practices. The discharge of
supervisors as a result of their participation in union or
concerted activity—either by themselves or when allied
with rank-and-file employees—is not unlawful for the
simple reason that employees, but not supervisors, have
rights protected by the Act.
In Howard Johnson v NLRB, 702 F.2d 1, 4 (1st Cir. 1983),
the court upheld the Board’s finding that the employer violated
the Act by discharging a supervisor who refused to engage in
spying on union activities. Similarly, in Gerry’s Cash Market
Inc. v. NLRB, 602 F.2d 1021 (1st Cir. 1979), the court agreed
with the Board’s conclusion that the employer violated the Act
by demoting a supervisor because he refused to enforce an
overly broad no-solicitation rule. See also Professional Medi-
cal Transport, 346 NLRB 1290 (2006); Pioneer Hotel, Inc.,
324 NLRB 918 (1997); USF Red Star, Inc., 330 NLRB 53
(1999).
In the present case, I conclude that the General Counsel has
made out a strong case that the Respondent discharged Coop-
erman because she would not assist Kasner in forcing the resig-
nations of the two union delegates because of their union posi-
tions and because of their role in enforcing the terms of the
collective-bargaining agreement. In that regard, Cooperman
was clearly being asked to commit an unfair labor practice
under Section 8(a)(1) and (3) of the Act. Further, having con-
sidered all of the evidence, I conclude that the Respondent has
not shown that it would have discharged Cooperman for rea-
sons other than her refusal to commit an unfair labor practice. I
therefore find that the Respondent’s discharge of Cooperman
violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. By discharging Linda Cooperman because of her refusal
to assist in causing the resignation or constructive discharges of
Chris Piccigallo and James Rouse because of their activities as
union representatives, the Respondent violated Section 8(a)(1)
of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Employer has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
However, because of the peculiar circumstances of this case,
I am not going to order the Respondent to reinstate Cooperman.
The Board and the Courts have ordered reinstatement for
discharged supervisors. For an extensive discussion of this
issue see, for example, Kenrich Petrochemicals v. NLRB, 907
F.2d 400 (3d Cir. 1990). The full panel of the court, with Judge
Greenberg dissenting, stated in pertinent part:
[W]e believe, as did the Board in Advertiser’s Mfg. [Co.], 280
NLRB 1185 [(1986)], that the rationale for ordering make
whole relief is as strong in circumstances where a supervisor
is discharged because of the protective activity of a family
member as when a supervisor is discharged for failing to
commit an unfair labor practice or for testifying before the
Board. In situations where a supervisor has been discharged
for failing to commit an unfair labor practice, reinstatement
has been justified on the ground that it “dissipate[s] the effects
of an unfair labor practice and restore[s] the status quo. . . .”
By its very nature, a supervisor’s refusal to commit an unfair
labor practice cannot adversely affect the rights of the rank-
and-file employees under her control, and reinstatement of the
supervisor is not necessary to remedy an unfair labor practice
that did not occur. Yet the Board has thought it necessary to
reinstate a supervisor fired for this reason in order to ensure
that the firing will not intimidate the employees’ future exer-
cise of [S]ection 7 rights. . . .
This however, is not a case of a low-level supervisor who
was illegally discharged for refusing to commit an unfair labor
practice at the bequest of his or her employer. The Lorge
School is a small enterprise where Cooperman was the number
two person in relation to Kasner, who was the executive direc-
tor. And indeed, because Cooperman originally applied for the
executive director’s job, Kasner viewed her as a potential rival.
Further, the evidence shows that there were differences of opin-
ion regarding real and significant policy issues between these
two individuals.
Balancing the rights of the employees, who I note have pro-
tection via the grievance/arbitration provisions of a contract, as
against the obligation of the school to provide services to chil-
dren with cognitive and emotional problems, I foresee the
probability that by reinstating Cooperman to her former posi-
tion, this would result in a dysfunctional management team at
the school.
LORGE SCHOOL 127
I will, however, recommend that the Respondent make Co-
operman whole for any and all loss of earnings and other bene-
fits from the date of her discharge (August 1, 2006), until such
time as she obtains or is offered substantially equivalent em-
ployment elsewhere. Backpay should be computed on a quar-
terly basis from the date of such refusal less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). The Respondent can cut off
backpay by offering Cooperman reinstatement to her old posi-
tion or to a teacher’s position at the same salary and benefits
that she had at the time of her discharge.
[Recommended Order omitted from publication.]