Programming & Systems, Inc.

National Labor Relations Board - Board Decisions

Jul 22, 1985

275 N.L.R.B. 1147 (N.L.R.B. 1985)

PROGRAMMING' & SYSTEMS
Programming & Systems, , Inc. and Association of
Public - Service Workers and Mary E. S.
McGonagle . Cases 2-CA-18092, 2-CA-18179,
2-CA-18291, and 2-CA-18521
22 July-1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 1 June 1983 Administrative Law Judge
\rthur A. Herman issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions, supporting briefs, and answering briefs.
The Board 'has considered the decision and the
record in light of the exceptions and briefs' and
' 'ts decided to affirm the judge's rulings, findings,2
and conclusions and to adopt the recommended
Order as modified.
Contrary to our dissenting colleague, we agree
with the judge, for the reasons he states, that the
Company engaged in proscribed surveillance when
Faculty Director Beth Smith, in plain view of unit
employee Jacqueline Aiken, watched from a school
window as students protested the discharge of two
teachers for their union activities, 3 wrote down the
' The Respondent has requested oral argument This request is denied
as the record, the exceptions, and the briefs adequately present the issues
and the positions of the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In adopting the Judge's finding that the Respondent promulgated an
unlawfully broad no-distribution rule when Executive Director Kay told
employee Jorrisch that "no literature is allowed to be distributed of any
kind in this school without permission," we do not rely on TR W, Inc,
257 NLRB 442 (1981), which was overruled in Our Way, Inc, 268 NLRB
394 (1983) The rule promulgated here was limited neither to -"working
time" nor to "working hours "
Having adopted the judge's finding that the Respondent's discharge of
Jorrisch violated Sec 8(a)(3) of the Act, we-find it unnecessary to reach
the question of whether her discharge also violated Sec 8(a)(4), the
remedy for which would be the same
We correct the judge's inadvertent but nondispositive error in stating
that the record contains no "scintilla of evidence to establish an affinity
between Escobar and union activity " As the judge found elsewhere in
his decision, Escobar did engage in certain activities associated with the
Union's organizing campaign These activities were not exceptional, how-
ever, and provide insufficient basis for overturning the judge's conclusion
that the Respondent's decision to reduce Escobar's hours was economi-
cally motivated
3 Although our dissenting colleague finds no clear evidence of the pur-
pose of the demonstration or why the teachers were watching it, we note
that a student meeting was held the previous day which also was attend-
ed by teachers and administration officials At that meeting, a teacher
was speaking about the teachers' organizing efforts and proceeded to an-
nounce that two teachers had been discharged that day for union activi-
ties when he was interrupted by an administration official As found by
the judge. student excitement was aroused and a demonstration took
place the next day, In these circumstances, it is clear that the student
demonstration was motivated at least in part by the discharge of the
1147
names of the teachers • standing by observing the
students, and then handed her notes, unfolded, to
Aiken to deliver to the Company's president and
chief executive officer Irwin Mautner. There is no
suggestion that the Company, routinely kept notes
on the teachers' activities and no good cause has
been shown for note-taking in this instance.4 We
find, consistent with the Board's holding in Crown
Cork & Seal Co., 5 that note-keeping of employees'
protected concerted or union activities in these cir-
cumstances, when witnessed by a company em-
ployee, tends to restrain and coerce employees in
the exercise of their rights guaranteed by Section 7
of the Act. Accordingly, we find Smith's note-
taking, for which no explanation was offered, vio-
lates Section 8(a)(1) of the Act. We also agree with
the judge, for'the reasons he states, and contrary to
the dissent, that Smith engaged in unlawful surveil-
lance by encouraging employee Chinappi to report
on teachers' union actlvities,6 and that Supervisor
Slater unlawfully threatened employees when she
told Smith in employee Aiken's presence, "We will
just get rid of all the teachers anyway so they
cannot vote in this crummy union."
We - also find, contrary to the dissent, that the
credited evidence supports the judge's conclusion
that the Company violated Section 8(a)(3) and (1)
when, within months of the Union's organizing
campaign, it discriminatorily denied the only re-
maining union activist, Mary McGonagle, holiday
pay and discharged her because of her union sym-
pathies. Nothing demonstrates that McGonagle, a
lawyer, had done' anything but a fine job in her 10
years with the Company's New York School of
Business where she taught business law and other
courses on a full-time basis. In fact, as recently as
August 1981, McGonagle's schedule was expanded
to include psychology. Despite' her unblemished
record, McGonagle was discharged suddenly 4
January 1982 on returning from Christmas recess.
According to McGonagle's credited testimony,
on that date recently promoted Faculty Director
Jeremy Palmer informed her that he had no sched-
ule for her and that she was fired. Palmer volun-
teered no explanation for his action and, when
McGonagle asked for a. reason, Palmer said he
could not tell her. McGonagle reminded Palmer
teachers and that was the reason the teachers were standing outside
watching, if not participating in, the demonstration
4 Thus, Metal Industries, 251 NLRB 1523 (1980), relied on in the dis-
sent, is distinguishable In Metal Industries, unlike here, the management
official routinely appeared in the-employee parking lot to answer employ-
ee questions and regularly carried a clipboard to make notes
5 254 NLRB 1340 (1981)
B Contrary to our-dissenting colleague's statement that Chmappi's re-
ports were not focused on union activity, we note Aiken's credited testi-
mony that most of Chinappi's reports to Smith pertained to the teachers'
union activities, e g , leaflets and forthcoming' union meetings `
275 NLRB No. 157.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that just before the Christmas recess he had prom-
ised to keep in mind her request 'to teach certain
courses when he prepared the schedule for the.new
semester . McGonagle also pointed out that some of
her -classes continued into the new semester and
her students would- be expecting her back only to
discover they had a new teacher . Palmer did not
offer any explanation for his sudden shift in attitude
toward McGonagle . Nor did he address McGona-
gle's concern for teacher continuity.
At the hearing , the only justification the Compa-
ny's executive director Gary Kay offered for dis-
charging McGonagle was the desire of Palmer,
since deceased , to restructure the department and
to bring, in new personnel for that purpose. Kay
admitted that he first urged Palmer to find a way
to retain McGonagle , but later backed Palmer's de-
cision . The judge specifically discredited'Kay's ex-
planation as a "lame attempt to put the blame on a
dead person for McGonagle 's ultimate discharge."
The judge reasoned - that Kay had vast authority,
and that, if he had been anxious to retain McGona-
gle, he certainly could have arranged it.
The dissent concedes that McGonagle was a
leading union protagonist whose activities were
well known to the Company. By. adopting the
judge's numerous violation findings, including the
discriminatory discharge of two union supporters
and unlawful threats to close the school and fire
union activists ,- the dissent also concedes that the
Company harbored union animus. The dissent sug-
gests, however, that McGonagle's. union support
could not have been of concern to the Company at
the time of her discharge given the passage of time.
We do not agree . By the time Palmer assumed con-
trol as -faculty director sometime in late 1981,
McGonagle was the only union activist still in the
Company' s employ and , despite her seniority and
satisfactory performance , apparently the only
teacher .the Company discharged after the Christ-
mas recess . Palmer at that time said he could not
tell McGonagle why she was being discharged, and
the Company has since offered no credible explana-
tion for singling McGonagle out for discharge.
Given the Company 's vehement opposition to -the-
unionization of -its teachers, McGonagle's singular
status as a union supporter, and the precipitousness
of her discharge without any plausible . explanation;
either then or now , we find that the -Company
seized upon the scheduling of classes for the 'new
semester as the perfect opportunity to purge itself
of union supporters once and for all..Accordingly,
we adopt the judge ' s finding that McGonagle was
discharged for her union activities in violation of
Section 8 (a)(3) and- (1) of the Act. .
We also agree with the judge that before unlaw-
fully -discharging' McGonagle the Company discri-
minatorily denied her holiday - pay because she
missed the 2 days preceding Thanksgiving, while
paying two other teachers who were absent on the
Monday following the Thanksgiving weekend.
Aware of the company rule that -teachers absent
before or after a holiday lose pay for that holiday,
McGonagle 'did not expect to be paid r for 1Thanks- -
giving or the next day . On hearing , however, that
the Company failed to adhere to its rule by paying
the: two other employees after they complained to
Kay, McGonagle went to him and also com-
plained . Instead of similarly waiving the rule, Kay
refused , to pay McGonagle,. saying , "What I do to
them is my business." In light of this disparate
treatment, and having already found that the Com-
pany was willing a month later"to discriminatorily
discharge McGonagle, we agree with the judge
that the Company refused to waive its -holiday pay
rule with respect to McGonagle because. of her
union sympathies , and thereby violated Section
8(a)(3) and (1) of the Act.
AMENDED REMEDY
Having found that the Respondent unlawfully
discharged employees Jorrisch and Green, the
judge recommended their reinstatement . He con-
cluded that despite their lack of the qualifications
prescribed under New York State law for the
teaching positions from which they were removed,
reinstatement and backpay were appropriate reme-
dies for the unlawful discharges in the circum-
stances present here . We agree with this analysis in
general . However, the conventional reinstatement
and backpay order should not be construed as pre-
cluding the Respondent , in the compliance stage of
this proceeding , from showing that,' if_ it had not
discharged these employees for, unlawful reasons
when it did so, it subsequently would have dis-
charged them for lawful reasons. , .
ORDER -
The National Labor Relations Board -adopts the
recommended Order of the administrative law
judge -as modified below and orders- that the Re-
spondent, - Programming & Systems, Inc.,;-New
York, New York, its officers , agents, - successors,
and assigns ,, shall -take the action set. forth in - the
Order as modified . - -
1. Substitute the following for paragraph- 1(b).
"(b) Threatening employees - with reprisals,' in-
cluding closing its school and discharging its em-
ployees , for engaging in union activities." - -
2. Substitute the following for"paragraph 2(a).
PROGRAMMING & SYSTEMS
"(a) Offer Judith Jor-risch, Sara Green, and Mary
McGonagle immediate and full reinstatement. to
-their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed, and make them whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the
manner set forth in the remedy section of the deci-
sion."
3. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs.
"(b) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way."
4. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting in part.
While I agree with my colleagues in their other
findings in this case, I would not find that Faculty
Director Smith engaged in any. unlawful surveil-
lance, that a remark by Supervisor Slater, over-
heard by employee Aiken, constituted an unlawful
threat, or that the Respondent violated' Section
8(a)(3) with respect to employee McGonagle.
First, I disagree with my colleagues' finding that
Faculty Director Smith acted unlawfully when she
looked out of her office window and listed teachers
who were on the street watching a student-demon-
stration. There is no clear evidence of the purpose
of the student demonstration or of the reason the
teachers were watching it. Therefore, there is inad-
equate basis for finding that the teachers were -en-
gaged in protected activity as is necessary if sur-
veillance of their activity is to be found unlawful.
Furthermore, merely watching open employee ac-
tivity at the employer's premises is not unlawful.
Metal Industries, 251 NLRB 1523 (1980); Maywood,.
Inc., '251 NLRB 979, 986 (1980). In some circum-
stances taking notes of employees'- activity has been
found unlawful. Crown Cork &. Seal Co., 254
NLRB 1340 (1981). However, coercion is inferable
only when the employer shows an unusual interest
in the - activity because of its protected nature.
Metal Industries,' supra at 1523, 1526. Here, there is
no indication that' Smith was concerned with what-,
ever-aspect of the teachers' conduct that might ar-
guably.have made it protected. Accordingly, I find
neither surveillance nor creation of the impression
of surveillance and I would dismiss that allegation
of the complaint. ; . -
Similarly; I find-nothing unlawful in Smith's re-
ceipt of information on teachers' activities volun-
teered by teacher Chinappi. Smith's response was,
"Good. Keep - me informed." The administrative
1149
law judge and my colleagues characterize this as
unlawful. encouragement of surveillance. I find it a
polite, innocuous response to a volunteer and, at
most, a mild expression of interest in the general
subject of the teachers' concerns. Smith neither
asked for information about union-related activities
nor gave Chinappi grounds to expect that her-con-
tinued reporting would be rewarded. That Chin-
appi incidentally included union activity did not re-
quire Smith to disclaim any interest. Chinappi's re-
ports were not focused on union activity and did
not include any names, nor did Smith ask for any.
No one was solicited to spy on fellow employees
and there was no attempt to give the teachers the
impression that their activities were being moni-
tored. '
The Slater remark which my colleagues find to
be an unlawful threat followed a dispute between
Supervisor Slater and a group of teachers who re-
fused to turn in their grades until given their teach-
ing schedules for the next session. Slater angrily
told Faculty Director Smith about the confronta-
tion' and then said, "We will just get rid of all the
teachers • anyway so they cannot vote in this
crummy union." The remark was addressed to
Smith alone, but Aiken, Smith's secretary, was
present and overheard it. Slater's remark, however,
was not directed at union activity but at the teach-
ers' refusal to turn in their grades. In the heat of
the moment, Slater suggested that they be dis-
charged, which would result in their losing the op-
portunity to vote the Union in." Moreover, Slater;
although- a supervisor-, has no authority to effect a
mass,discharge, nor would Aiken, who as Smith's
secretary presumably was familiar with the admin-
istration. of the school, have grounds for, fearing
that Slater could effectively recommend such
action. Slater was letting off steam to.her boss, not
threatening employees. - . - .
I also find without- substahtial basis the majority's
finding that the Respondent unlawfully discriminat-
ed against employee Mary -McGonagle by refusing
to pay her for the 1981 Thanksgiving holiday and
by discharging- her in -January .1982. McGonagle
had supported three separate union organizing ef-
forts', between 1979 - and 1981.. Throughout this
period the Respondent took no action' against her.
The first alleged instance of discrimination .
against McGonagle occurred 3 months after the
Union's- election loss ended the organizational ac-
tivity when the Respondent followed its established
policy of denying- holiday pay- to those who were
absent the day immediately before-or after a holi-
day. . McGonagle was absent the Tuesday and
Wednesday preceding the Respondent's 2-day
Thanksgiving holiday and, despite her request for
1150 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an exception, was denied holiday pay, only-to learn
later that two teachers who had been absent the
following Monday received pay for the holiday
after complaining. When McGonagle told Execu-
tive Director Kay that this was disparate treat-
ment, Kay told her, ""What I do to them is my
business."
The majority finds that Kay discriminated be-
cause of McGonagle's union activities, having
found that her discharge, discussed below, was dis-
criminatory. Even if the discharge was discrimina-
tory, it would not follow that the denial of holiday
pay was also. First, the timing does not suggest an
antiunion motivation. McGonagle's union activity
does not stand out as anything to concern the Re-
spondent particularly 3 months later. Furthermore,
Kay applied the holiday pay restriction to McGon-
agle in a routine manner calculated neither to
punish her for the past union activity nor to call at-
tention to her treatment. Kay's irate response to
McGonagle's complaint of disparity suggests noth-
ing more than a disinclination to enter into a dis-
cussion of personnel action affecting other teach-
ers. The record is silent on why the other teachers
were paid.' It follows that the General Counsel has
not proved that her treatment was motivated by
antiunion considerations.
When McGongale returned from the Christmas
recess in January 1982, Jeremy Palmer, the new
faculty director, told her that she would not be re-
tained for • the forthcoming session: Although
Palmer gave McGonagle no reason, Kay testified
that Palmer, since deceased, had told him he
wanted to restructure the faculty. Palmer wanted
teachers who were available after school and in the
evening if necessary and had someone in mind
whose background was more diversified 'than
McGonagle's. McGonagle previously had been of-
fered more hours and had refused.These factors, in
Palmer's view, outweighed McGonagle's seniority,
and Kay, although he first urged Palmer to retain
her, backed Palmer's decision. That explanation is
perfectly reasonable, and the judge's summary re-
jection of it-was arbitrary. If there is little reason to
infer an antiunion motive at Thanksgivin'g,'there is
even less at her later discharge when the organiz-
ing campaign was that much more remote. The
General Counsel has failed to make a prima facie
case that any antiunion discrimination was directed
against McGonagle and, accordingly, I would dis-
miss the pertinent allegations of the complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor -1elatiofis' Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual Laid or.pro-
tection
To choose, not to- engage in any of these
protected concerted activities. -
WE WILL NOT promulgate and enforce an invalid
no-distribution rule.
WE WILL NOT threaten you with reprisals such
as closing our school and discharging'you because
you joined or assisted Association of Public Serv-
ice Workers or any other union.
WE WILL NOT engage. in surveillance of your
union activity. . .
WE WILL NOT discharge you because of your ac-
tivities on behalf of and sympathies for Association
of Public Service Workers or any other union.
WE WILL NOT in any like or related manner
interfere' with, restrain, or coerce you in the exer-
cise of the rights - guaranteed you' by Section 7 of
the Act:
WE WILL offer Judith Jorrisch, Sarah Green, and
Mary McGonagle immediate and full reinstatement
to their former positions or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges previously enjoyed..
WE WILL make whole Judith Jorrisch, Sarah
Green, and Mary McGonagle for any' loss of earn-
ings and other benefits they may have suffered by
reason of the discrimination against them, plus in-
terest.
WE WILL notify these three employees that we
have removed from our files any reference to their
discharges and that the discharges,will not be used
against them in any way.
PROGRAMMING & SYSTEMS, INC.
I There is no evidence on how the holiday pay rule applied when the
next business day followed an intervening weekend
• PROGRAMMING & SYSTEMS 1151
DECISION
STATEMENT OF THE CASE
ARTHUR A. HERMAN, Administrative -Law Judge.
This proceeding- under Section 10(b) of the National
Labor Relations Act was tried before me pursuant to due
notice on October 25-29 and November. 1-3, 1982, at
New-York,-New York. -
The charge' in' Case 2-CA- 18092 was filed by the As-
sociation of Public Service Workers (the Union) on May
27, 1981, and a complaint issued thereon on July 2, 1981.
On July 1,• 1981, the Union filed a second charge in Case
2-CA-18179, and an order consolidating the two cases
and a consolidated complaint issued on August 31, 1981.
On August 24, 1981, a third charge was filed by the
Union in Case 2-CA-18291, and an order further con-
solidating all three cases and a further consolidated com-
plaint issued on December 3, 1981. This consolidated
complaint alleges essentially that Programming & Sys-
tems, Inc (Respondent) committed unfair, labor practices
in violation of Section 8(a)(1), (3), and (4) of the Act by
various acts hereinafter specified On January 13, 1982,
Mary E. S. McGonagle, an individual, filed a charge in
Case 2-CA-18521, on which a complaint issued on Feb-
ruary 26, 1982, alleging her discriminatory discharge and
refusal by Respondent to grant her holiday pay. On July
20, 1982, an order further consolidating all four cases for
hearing issued. . . -
At the trial all parties were given full opportunity to
participate, and subsequently the General Counsel and
Respondent filed thorough briefs.
On the entire record in the case, from my observation
of the witnesses and their demeanor . while testifying
under oath, and after. careful consideration of the briefs
submitted by the parties, I make the following
11,
FINDINGS OF FACT
1. THE BUSINESS OF.RESPONDENT
Respondent, a New York corporation with its office
and place of business in New York, New York, is and
has been at all times material engaged in the operation of
private educational institutions, offering training in tech-
nical and business skills. Respondent annually derives
gross revenues in excess of $1 million, excluding contri-
butions which, because of limitations by the grantor, are
not available for use for operating expenses. And, annual-
ly, Respondent purchases and receives goods and materi-
als valued in excess of $50,000 directly from points, out-
side New,York,State. Respondent, admits, and I find, that
it is, and has been at all times material, an employer en-
gaged in'-commerce within the,meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
-;Associatioii of-Public Service Workers has been at all
times material a labor organization within,the meaning of
Section 2(5) of the Act.'
i Respondent contends that the Union is not a labor organization Inas-
much as that issue was litigated in a prior proceeding (Case 2-RC-19041)
involving the same parties and it was determined that the Union is a
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Findings .
Respondent, a public company, owns and operates two
vocational education -institutions in a six-story building
located on 40th Street in New York City. These are PSI
Institute and New York Business School. Respondent's
president and chief executive officer is Irwin Mautner; its
executive director is Gary Kay; and, at times material,
Beth Smith was the faculty director 'of the New York
Business School until September 25, 1981.2 Her replace-
ment, Daniel Lipsman, was himself replaced by Jeremy
Palmer on November 23. Alvin Lipoff, in his capacity as
vice president and treasurer, is Respondent's chief finan-
cial officer, and `Sol Mayer is Respondent's director of
admissions.3 Respondent's management committee con-
sists of Mautner, Kay, Lipoff, and Mayer, as does its
education committee. The former. meets on a regular
basis, once a month, to discuss Respondent's operational
problems and goals; the latter has no set schedule for
meeting.
Inasmuch as education is a state function, Respond-
ent's schools are subject to regulation from various state
agencies, including the New York State Board of Higher
Education Department. In addition, Respondent must
abide by the New York State Education Law and the re-
quirements set by the State Commissioner of Education.
Also, because of the various state and Federal loan pro-
grams that are available to underprivileged students, Re-
spondent is supervised by Federal agencies, such as
HEW and the Veteran's Administration. At the instant
hearing, the parties stipulated that the New York State
Education Law and the regulations of the, Commissioner
of Education require that all teachers teaching at the
New York Business School have a baccalaureate degree.
'In December 1980, Judith Jorrisch, an employee of the
Union, sought employment as a typing teacher with'Re-
spondent. She filled out an application and presented it
to Smith, together with her resume. Smith questioned
Jorrisch regarding her teaching background but did' not
inquire as to whether Jorrisch had a baccalaureate
degree.4 Because of Jorrisch's lack of teaching experi-
ence she was bypassed in favor of another teacher. How-
ever, in January, Smith called Jorrisch to report for
work, and Jorrisch began teaching secretarial studies and
English from January 19 until May 20 when she was dis-
charged "
. Sarah Green testified that - she - was interviewed by
Smith fora teaching position .in late January in response
to a. New York Times ad. Green,told Smith that she had
studied stenoscript at Kathryn Gibbs Secretarial School
labor organization within the meaning of the Act, I find that said issue
need not be relitigated in this proceeding, and, 'that' the prior determina-
tion is res judicata Graneto•Datsun, 220 NLRB' 399 (1975)
2 All dates herein refer to 1981 unless otherwise indicated
8 There can be no doubt, and it is not disputed, that Mautner, Kay,
Smith, Palmer, Lipoff, and. Mayer are;stipervisors•of Respondent within
the meaning of the Act
4 Neither Jornsch's application nor her resume confirmed or denied
this fact, nor did they list any teaching experience They both stated that
she was employed by the Union as a public relations coordinator In fact.
Jorrisch did not have a baccalaureate degree'.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but that she did not have a baccalaureate degree. Smith
told Green that she would have to discuss this with Kay
because the school was not supposed to hire anybody
with less than a baccalaureate degree. Smith asked Green
how many credits she had toward a degree and Green
responded that she had less than 1 year's credits. Within
a few days, Smith contacted Green, told her she was
hired, and asked Green to send her copies of transcripts
so that Smith could "put something" in Green's file.
Smith confirmed Green's testimony, and added that Kay
told her that if the school needed Green hire her. And
so, Green was hired on,February 9, and taught typing
and stenoscript on, a full-time basis until she was dis-
charged on May 20.,
Jorrisch testified that from February through mid-
April she had many individual conversations with sever-
al teachers in the New York Business School regarding
her work on behalf of the Union and union organizing in
general, that toward - the end of April, presumably -on
April 29, Alan Temes, a counselor at New York Business
School, was told by Kay that he was being transferred to
PSI; and that Temes was upset when informed of the
change. Although the record is not clear as to what tran-
spired between Temes and Kay, Temes told Jorrisch that
he had been fired. Word of Temes' dismissal spread im-
mediately through the school, prompting a letter to be
written to Kay, dated April 30, signed by 21 teachers,
and delivered to Kay by Jack Sholom, a math teacher,
protesting the dismissal.5 In addition, several teachers,
including Jorrisch and' Caroline Donnola, planned to
have a meeting of all teachers the next day.
On Friday, May 1, a faculty meeting was held in the
school presided over by' Kay and Smith. When some of
the teachers challenged his decision in, the Temes affair
by a 'series of questions, Kay responded by making refer-
ences to parts of Temes' letter to him in which Temes
protested the switch and to the teachers' letter of protest
also, and concluded that the teachers were protesting too
much.
Later that day, 16 teachers and Temes met at a tavern
near the school. Jorrisch produced blank union authori-
zation cards and everyone signed. Green was present and
signed a card. That same day, the Union filed a represen-
tation petition with the Board (Case 2-RC-19041) Ac-
cording to Kay, he received the petition about May 7.
He notified Mautner about it and conferred with Re-
spondent's labor counsel. Thereafter, he met individually
with faculty directors and persons who reported directly
to him, and advised them how to conduct themselves
vis-a-vis the employees in light of the existing petition.
Jorrisch stated that she engaged Barbara Friend in a
conversation on May 13 in Friend's office in which she
told Friend that there was to be a conference at the
Board's offices the next day and extolled the virtues of
having a union in the school. Friend disagreed with Jor-
risch, and told Jorrisch, "You have a very good rapport
with the students. You are liked Why would you be
afraid of being fired. You would never been [sic] fired. 116
On May 14, an informal- conference on the petition
was held at the Board office. Jorrisch was present as the
employee representative for the Union, and Kay repre-
sented Respondent. A hearing was held at a later date
before the Board, and on August 5 the Acting Regional
Director for Region 2 issued a Decision and Direction of
Election finding a unit consisting of teachers, student
counselors, receptionists, secretarial and clerical workers,
and others not named herein to be appropriate,.foc•.the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.7
Jorrisch further testified that she had obtained a poem
from one of the students relating to child abuse and that
she had had it reproduced in Smith's office for distribu-
tion to her English class. On May 18, she picked up the
copies and, while proceeding to her class, she was
stopped by Kay, Smith, and Barbara Friend. According
to Jorrisch, Kay advised her "that no 'literature is al-
lowed to -be distributed of any kind in this school with-
out permission,"- adding, "[T]hat includes bulletin
boards." When Jorrisch explained to them the contents
of the pamphlet, Kay continued, "I want to take this op-
portunity to let you know the rules, because we all know
you're involved in a noble cause." Kay admitted having
a conversation with Jorrisch regarding the poem because
that morning Smith brought it to Kay's attention. Kay
stated that he told Jornsch "that any materials that are
to be used in the classrooms must first have prior ap-
proval," whereupon Jornsch stated that she thought it
was approved since she had it duplicated by the office
and the copies given to her. Kay testified that on numer-
ous occasions he had cautioned teachers about 'distribut-
ing -material without prior permission, but, when pressed
by the General Counsel for specific "instances, he was
unable to recall any. -
On May 20, Jorrisch and Green were discharged. Ac-
cording to Jorrisch, her classes ended that day at noon
and she went to the lounge for lunch. While there, she
approached Chris Mulle, a new teacher, and asked her to
sign a union card. Mulle refused and left the lounge.
Within 10 minutes Kay entered the lounge; he called Jor-
risch out of the room and told her, "You don't have the
credentials to teach in this school and you're fired." In
support of Jorrisch, McGonagle testified that she was
present in the lounge when Jorrisch spoke to Mulle, that
she left the lounge at the same time Mulle left, and that
as McGonagle went to the office on business, she noticed
Mulle talking to ' Friend.8 McGonagle then' returned to
the lounge and was present when Kay arrived and called
Jorrisch out of the room to tell -her she was discharged.
Green's uncontroverted testimony established the fact
that on May 20, Smith escorted her to Kay's office and
left. Kay then told her that since she did not have the
proper credentials to teach at the New York Business
School, he had to dismiss her. When Green pointed out
to Kay that she had told' Smith during her job interview
that she did- not have a degree,- Kay responded that he
knew nothing about that. -
5 Mary E S McGonagle, a teacher, composed the letter
6 Friend's supervisory status is in dispute and-will be discussed, infra
Friend was not called to testify at the hearing
7 It was Jorrisch's unrebutted testimony that Michael Escobar testified
at the hearing on behalf of the Union .
8 Mulle did not testify at the hearing
PROGRAMMING & SYSTEMS
Although Kay admitted the discharges, his testimony
provides the basis for Respondent's defense, i.e., Jorrisch
and Green were discharged for not-having baccalaureate
degrees. Kay stated that under normal conditions a
teacher's license- status is usually reported to the proper
authorities within 60 days of the date the teacher is
hired, but that in the case of Jorrisch' and Green this was
not done. Kay testified that Evening Division Supervisor
William Brady was given the task of updating, on a
yearly basis,-the data"-regarding teachers' status; that such
a report had to be submitted to the Association of Inde-
pendent Colleges and Schools at the end of June of each
year; and that although Kay had assigned Brady this job
in January 1981, Brady, because of his other duties, did
not give Kay the current list until the evening of May' 19
when he notified Kay that Jorrisch and Green did not
have baccalaureate degrees.9 And so, according to Kay,
the next morning, May 20, the education committee met,
and it was 'decided that both' teachers had to be dis-
charged immediately, otherwise the school would lose its
license and its accreditation. 10 Kay further testified that
although the committee members voted for instant dis-
missal, he persuaded them to allow the two teachers to
complete their classes for the day.
Wayne Robinson, an English and psychology teacher,
testified that union activity at the school began shortly
after the Temes incident, and that shortly thereafter he
signed a union card. Caroline Donnola, an English and
high school equivalency teacher, described the May 1
meeting of teachers in a tavern near the school, which
she attended, and at which all who were present signed
union cards.
Robertson and Donnola both testified that in the after-
noon of May 20 a student meeting was held for the pur-
pose of organizing a student council. Teachers were in-
vited ' and the meeting was also attended by Kay and
Smith. During the- course of-the meeting, Donnola saw
Smith and Green leave, so Donnola left the meeting to
inquire of Green what was happening. When Green told
Donnola that she had been discharged; Donnola returned
to the student meeting, and' after conferring with other
teachers it was decided that a teacher should speak. Rob-
ertson volunteered and was given permission to speak.
He praised the students' effort to organize, advised them
of the teachers' organizing effort, and proceeded to an-
nounce that Jorrisch had been discharged that morning-
and that he had Just been informed that Green too had
been discharged, both for their union activity. According
to Donnola, Kay interrupted Robertson and asked him to
step outside but - Robertson refused. He continued to
speak, and. Donnola, concerned that Robertson might'
also be discharged, hurriedly wrote up a statement of
support for him, had it signed by a number of teachers
present at the meeting, and handed it to Robertson to be
read to the assemblage. Robertson stated that he began
reading the names but was diverted by Kay, so Donnola
9 Kay admitted that he knew before May 19 that Green did not have a
degree Brady did not testify
10 Mautner , Lipoff, and Mayer confirmed Kay's testimony
1153
took over and read the rest of the list aloud i i Excite-
ment stirred among the students, but the meeting broke
up without incident. The next day, May 21, there was a
student demonstration in front of the school at lunch-
time, and several teachers were standing there observing
the event.
Mautner testified that because Kay "was getting some
flack about the discharge of Jorrisch and Green," Kay
thought that Mautner should tell the teachers the reason
for the discharges. And so, on May 22, between 12:15
and 12:30, while the teachers were attending their regu-
lar Friday faculty meetings, Mautner and Kay walked in
on three such meetings and Mautner told each group
"that Jorrisch and Green were discharged not because of
their incompetency, but because they had no degrees."
Donnola was present at one of these faculty- meetings
and confirmed Mautner's testimony. In fact, on cross-ex-
amination, Donnola admitted that Mautner had told the
teachers that if Green or Jorrisch ever got their degrees,
he would rehire them, and he also told the teachers that
they had a legal right to join a union.-On direct examina-
tion, Donnola testified that Mautner told the teachers
"that, we should do no union organizing activities on
school premises. If we were going to pass out leaflets or
do any kind of union organizing it should be off school
premises not on the school premises " Mautner denied
saying the above and Kay supported him.12 Donnola
stated that Mautner spoke for about 3-4 minutes.
Jorrisch testified that following her discharge she con-
tinued her organizing activities for the Union on the
street in front of the school. She handed out leaflets that
dealt with what was going on in the school, and she did
this practically on a daily basis until the representation
election in September. She stated that other teachers
aided her, including Donnola, Shalom, Sapp, Keen,
Thomas, McGonagle, Robertson, DeLabrever, Green,
Mike Escobar, Gayle Stoddard, and Schneider.
Green testified, and Mautner confirmed that she called
Mautner from her house a few days after she was dis-
charged to clarify her situation. She wanted Mautner to
know that she did not misrepresent herself when she was
hired, and that she had told Smith that she did not have
a degree. Mautner commiserated with her but said that
he had no other choice. At this point, their versions of
the conversation became diverse. Green claimed that the
conversation lasted a long time, perhaps even 2 hours;
Mautner said less than 10 minutes. Green stated that
Mautner asked a lot of questions about Jorrisch and
whether she was affiliated with the Union; Mautner
asked Green if she had signed a card for the Union, and
Green responded affirmatively; Mautner asked her who
else had signed cards, and she told him she did not
know; and Mautner suggested to Green that the teachers
did not have to bring their problems to the Union, that
they could have come to him. According to Green, they
then discussed the Temes incident, and Green pointed
11. According to Donnola and Robertson, the list included the follow-
ing names Jack Shalom, Louis Thomas, Kay Keen, Eleanor Schneider,
Fred Sapp, Barry Appel, Carol Donnola, and Lucy DeLabrever
12 Although Robertson was allegedly present at one of these meetings,
and testified at the hearing, he was not asked about such meeting
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out to Mautner that because of Respondent's action
toward Temes, the teachers felt they needed somebody
to represent them. and turned to a union;. whereupon,
Mautner, according to Green, said that if it were not for
the fact that a union was sought, Green would probably
still have her job Green then asked Mautner, "Are you
saying that I was let go, because of,the union9 And he
say yeah."- According to Mautner, none of the above
took place Mautner testified that the gist of their con-
versation concerned itself with Green wanting Mautner
to know that she did not lie to Smith at the time she was
hired, and that he attempted to assure her that he was
satisfied with her performance as a teacher but that the
lack of a baccalaureate degree prevented him from keep-
ing her on the job.
Jacqueline Aiken, Smith's secretary, testified for the
General Counsel stating that in May Smith engaged her.
in conversation and told Aiken that a union would not,
be good for the school and that Mautner would-close the
school before he would let a union into the school.
Aiken also related that sometime in May she delivered a
paper to Mautner's office containing a list of names of
teachers who were observed by Smith to be standing
outside the school during the student demonstration on
May 21; Aiken remembered seeing Robertson, Flynn,
and Shalom's names on the list.
There was other uncontroverted evidence introduced
by the General Counsel to attempt to support his 8(a)(1)
allegations. Aiken testified that during the period from
April to June Yolanda Chinappi, a secretarial teacher,
kept Smith informed on a regular basis about what was
discussed among the teachers in the lounge, and Smith
encouraged it Most of the reporting pertained to the
teachers' union activities, but Aiken does not recall Chin-
appi mentioning any of the teachers ' names.13 On direct
examination by Respondent's counsel , Smith stated that
she never asked -Chinappi "to spy on teachers -as to
whether they were engaged in union activities on their
own time." Joseph Grossman; a data processing teacher
at PSI , testified that sometime in June at a staff meeting
of teachers at which union organizing was discussed,
Frank Cavataio told the teachers that a'prior attempt at.
organizing had been made about 2 years earlier, and that
red.14' Escobar testified that he wasthe organizers were fi
'
'
a student counselor employed by PSI from May 1980 to
July 3, 1981_, when he resigned.15 On May 22, two stu-
dents came. to Escobar's office concerned over the fact
that, they had participated' in the previous day's student
demonstration, and were worried about , the conse-
quences. Escobar quieted their fears and they left. While
this conversation took place, Kay came into Escobar's
office and asked Escobar to come to his office. After the
students left,-Escobar went to Kay's office and Kay told
him, not to discuss labor -management problems with the
13 Aiken further testified regarding a telephone conversation she had
with Smith 's mother , in which the mother attempted to persuade her that
unions were no good Inasmuch as no attempt was made by the General
Counsel to link Smith with her mother 's remarks , -I find such remarks to
be merely conversational and of no consequence in-this proceeding
14 Cavataio's supervisory status is in dispute and will be discussed,
infra -
15 His supervisory status will be discussed, infra
students. When Escobar said that he had not, Kay.as-
sured him that he then had nothing to worry about.
Later that day, Escobar had a conversation with a
former student who now worked as a computer operator
for- Respondent.- In that conversation , Escobar asked the
operator if he had, heard anything about union activity,
and the operator responded negatively. Escobar then ad-
vised him that if he wanted any- specific information he-
should inquire of the union representatives who were
outside the building or. he could -ask Escobar. l.Shortly, . i
thereafter, Kay came to Escobar's office to tell him that
he had overheard, that conversation and cautioned Esco-
bar against discussing unions on company time.
At the New York Business School , a course leading to
graduation and the receipt of a certificate requires the at-
tendance of a student for 1800-1950 hours over a period
of 18 months .. Every 6 weeks a new course commences
so courses overlap each other, and enrollment is an on-
going procedure. Approximately 10-15 subjects are re-
quired to be studied during the period of the course.
Subjects run for approximately 12 weeks, and each 12-
week period is referred to as a session , term, or semester.
At the end of a 12 -week session , there is a week interses-
sion , and classes commence again the following week.
Teachers who completed a 12-week session' and were
scheduled to return for the next session were paid for the
1 week of intersession. Generally, on the last day of the
session , teachers were required to turn in the students'
grades, and in turn schedules for the next session 'were
handed out to them along with paychecks.
• A session ended on Friday, June 26 That morning Re-
spondent posted a note to the teachers stating that no
schedules would be given out that day, and requested the
teachers to call on Monday, June 29, regarding their
schedules. A group of teachers, including Donnola, Rob-
ertson, Schneider, Shalom, Thomas, Keen, and Sapp,
saw. the note and agreed not to turn in the students'
grades until they received their schedules. Aiken testified
that on the morning of June 26 she overheard Amanda
Slater , the head of- the busienss administration depart-
ment , 16 conversing with . teachers Sapp , Thomas, and
Aaron Numngwun. Slater asked them to turn in the stu-
dents' grades and they refused unless given their sched-
ules With that Slater said, "Okay I wash my hands with
you teachers that is it", she then walked into Smith's
outer office and related the conversation to Smith They
then proceeded into Smith's inner office. Smith' closed
the door and said, "Those f-= teachers," and. Slater
said not to worry, "We will just get rid'of all, the teach-
ers anyway so they cannot vote in this crummy union."'
Slater was not called to testify, and, when J asked Smith
to relate her conversation with Slater on that day, Smith
could not remember that particular conversation.
Donnola testified that she called Kay -on June 29 and
asked what her new ,schedule was. Kay said he. had no
new schedule for her, and asked Donnola to bring in the
students' grades Donnola said that Kay had a check that
belonged to her - They then agreed to exchange the
16 Slater's supervisory status is also in dispute and it will be discussed,
infra ,
PROGRAMMING & SYSTEMS
grades for the check Donnola came to the school that
day and together with Shalom, Robertson, Schneider,
Sapp, Keen, and Thomas went in to speak to Smith. Kay
went in and insisted on making the exchange (grades for
paychecks) on an individual basis. After this was accom-
plished, Donnola and the.other teachers, with the excep-
tion of Robertson, 17 discovered that the paychecks did
not include pay for the week of intersession. And so, on
June 29, Donnola, Shalom, Robertson, Schneider, Sapp,
Keeri;°and. Thomas were not given teaching schedules
for the oncoming summer session and were, in effect,
discharged.
Escobar testified that during May he worked 55 hours
per week, but on the morning of June 29 he was called
into Kay's office and told that he could not work
evening hours anymore because the school was cutting
back on operating costs However, he later found out
that actually he had been replaced by employee Narcisse
Mallory. 111
Respondent contends that the union activity engaged
in by Donnola, Robertson, and -others, commencing May
20, enmeshed the students in the teachers' dispute. It
claims that this was deliberate and that it had a down-
ward economic impact on Respondent 's business . In sup-
port of its argument, Respondent introduced into evi-
dence the weekly student enrollment figures from May 8
through August 28 (R. Exh '24). 19 Based on the declin-
ing enrollment, Respondent notified Donnola, Robertson,
Schneider, Shalom, Thomas, Keen, and Sapp, individual-
ly, on the morning of June 29 that their services were no
longer needed.
Total Enrollment
Week of-1981 Before After
Amend- Amend-
ment ment
May 8 392 392
May 15 402 402
May 22 401 401
May 29 394 394
17 During the course of the hearing, the General Counsel moved to
withdraw allegations in the consolidated complaint relating to the with-
holding of accrued- vacation pay due Robertson (G C Exh 11)_ The
motion is granted
18 This action by Respondent was alleged in the consolidated com-
plaint as a violation of Sec 8(a)(1) and (3) of the Act The allegation also
contained the names of Gayle Stoddard and Aaron Numngwun as having
suffered the. same fate as Escobar However, at the conclusion of the
hearing, the General Counsel moved to withdraw the allegation as it re-
lated to Stoddard and Numngwun (see G C Exh 11) The motion is
granted -
11 I received R Exh 24 into evidence subject to the General Coun-
sel's inspection of Respondent 's books and records from which the exhib-
it.was gleaned After the close of the hearing , on a joint motion by Re-
spondent and the General Counsel, R Exh 24 was amended and offered
into evidence , along with a request to correct the transcript in certain re-
spects I grant the joint motion and receive into evidence an amended R
Exh 24 as R Exh '24(A), and deem the transcript corrected as stated in
the joint motion The pertinent portion of the amended exhibit reads as
follows '
I Exhibit R-24 is amended to include class JO 1 for the weeks
and in the numbers set forth in the second recital clause above re-
sulting in the following ' total enrollment numbers at the bottom of
said exhibit in lieu of those which were set forth thereon at the close
of the hearing.
1155
Total Enrollment
Week of-1981 Before
Amend-
ment
After
Amend-
ment
June 5 384 384
June 12 365 365
June 19 353 353
June 26 335 335
July 2 198 198
July 10 216 216
July 27 212 226
July 24 211 226
July 31 213 -225
August 7 213 225
August 14 315 320
August 21 312 315
With regard to Escobar's reduction of hours, Respond-
ent, on cross-examination of Escobar, established that
Mallory, who was working evenings anyway, could per-
form the tasks performed by Escobar at a cost saving,
and therefore instituted the change.
In an attempt to discredit Respondent's actions of June
29, and to bolster its contention that the discharges were
motivated by the union activity of the individual teach-
ers involved, the General Counsel subpoenaed and called
a recalcitrant witness, Claudette Percival, a student at
the school in 1981 . The General Counsel was armed
with Percival's affidavit taken by a Board agent on July
7 in the presence of Donnola at a sandwich shop near
the school. It appears, according to the affidavit, that
Percival visited Kay's office on July 1 to discuss the can-
cellation of a particular program (GED). When Kay told
her that it would not begin for another 12 to 24 weeks,
this bothered Percival and, according to the affidavit,
she complained that it was unfair of the school to keep
changing teachers, and she asked "why a large group of
teachers had dust been fired or laid off." Kay said they
had.not been fired or laid off but rather they left because
they "[do not] want to work." The affidavit continues:
"He claimed they were all involved with a Union and
were creating problems for him." When Percival took
the stand, the General 'Counsel first established that he
had never met Percival before, that when he spoke to
her on the phone she refused to testify, and that only
after she was served with a subpoena did she appear.
Percival then testified that Kay told her that "due to the
lack of students in the summer, he decided to have class-
es starting after the summer is over." Percival asked Kay
"why the teachers are not here," and Kay said "that
some of the teachers - were not very much qualified
enough." At this point in the questioning, the General
Counsel produced Percival's affidavit, and after having it
marked for identification, gave it to Percival to read. I
then inquired of the witness whether she recalled having
given that statement to a Board agent. Percival's re-
sponse indicated that she recalled "speaking to Mrs.
Donnola and•a gentleman ," but that she did not sign "to
anything," denying her initials on each page and her sig-
nature on the last page. The Board agent testified con-
firming the fact that he took the affidavit from Percival
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and witnessed her signature and initials, and a handwrit-
ing expert verified the fact that it indeed was Percival's
signature on this affidavit 20 While I credit the authentic-
ity, of the affidavit, I do not credit Percival. Whatever
prompted her to quote Kay as she did in the affidavit,
and -then to quote him entirely differently on the witness
stand, creates ;a dilemma. From my observation of the
witness, I find-Percival tended to be contradictory, eva-
sive, and confusing, and her testimony lacked trustwor-
thiness Although the General Counsel wishes me to
accept her . affidavit over her testimony, that, too, I
cannot do. I find that Percival was at a disadvantage
when confronted in the sandwich shop by Donnola and
a strange gentleman and that, under the circumstances,
she might tend to say what Donnola would like to hear,
rather than the truth. For this reason , I discredit the
statements that Percival attributed to Kay, both in the af-
fidavit and in her oral testimony. Further, I find it diffi-
cult'to believe that Kay would reveal his innermost
thoughts regarding the Union to a student who happened
to appear on the scene. For all of these reasons. I shall
disregard Percival's testimony and affidavit in my delib-
erations.
The evidence establishes that at the beginning of May,
Respondent employed a complement - of 37 teachers.
With the discharge of Jorrisch and Green, the 7 on June
29, and a few others not named in the complaint, Re-
spondent's teaching staff stabilized at 24, and remained at
that figure until the end of the summer session on Sep-
tember 25.
During that summer session, three things occurred. In
August, several of the June 29 dischargees wrote letters
to Respondent offering their services again as teachers,
enrollment reached bottom-on July 2 (198 enrollees)-and
then increased gradually until it 'hit 312 on August 21,
and on September 3 the representation election conduct-
ed'by the Board was held and the Union lost. Kay testi-
fied that, by letter, he contacted the dischargees, with
the exception of Jorrisch and Green, and offered them
interviews for possible future employment. The evidence
shows that none was hired, while other newly selected
teachers were chosen
B. McGonagle 's Discharge -
Mary McGonagle was employed by the New York
Business School as a teacher for over 10 years until her
discharge on January 4, 1982. Being a lawyer,-McGona-
gle taught business law as well as other courses . For the
last 3 years of her employment, McGonagle had a full-
time schedule
McGonagle was a union activist . She assisted Jorrisch
and Donnola in handing out union authorization cards to
teachers , and she composed the teachers ' letter of protest
to Respondent regarding Temes' discharge. -
McGonagle went on vacation on June 26, the last day
of that session, and returned to the school on August 3,
20 Although there appears to be an inadvertent error in the affidavit
referring to Percival as an employee , rather that a student , of Respond-
ent, and the Board àgent failed to satisfactorily explain the brackets
around the words "do not ," as quoted above, I find that affidavit to be
authentic and acceptable is evidence herein
in the'middle of the summer session.2 i' Smith handed her
a teaching schedule for morning classes -only-a part-
time schedule. When McGonagle complained, Smith re-
ferred her to Kay. McGonagle saw Kay that same day
after working the morning schedule, and repeated her
complaint, whereupon Kay asked her if -she had ever
taught psychology, and, when *she -responded affirmative-
ly, he immediately reached into his drawer, took out a
full-time schedule, and told her to'start that afternoon.
On September 3, McGonagle was -the,-Union's! observer
at the representation election. On September 25, Smith
resigned her position as faculty director and was eventu-
ally replaced by Jeremy Palmer,. who had formerly been
a student counselor advisor for PSI Institute.
Thanksgiving Day and the day after are holidays on
Respondent's calendar, and they are days for which Re-
spondent normally paid the teachers. However, Re-
spondent has a rule which states that if a teacher is
absent immediately before or after a holiday that teacher
will lose the holiday pay. McGonagle was out sick on
the 2 days preceding Thanksgiving and was not paid.for
the holiday. Although McGonagle admitted that she did
not expect to be paid for Thanksgiving and the. next day,
she complained about it when she found out that two
other teachers with less seniority who were out on the
Monday following the Thanksgiving weekend were paid
holiday pay after they complained to Kay for not being
paid. Kay, however, refused to pay McGonagle, saying,
."What I do to them is my business."
.McGonagle testified that when she returned from the
Christmas recess on January 4, 1982, she was told by
Palmer that morning that there was no schedule for her
and that she had been fired When she asked why,
Palmer told her that he could not tell her that. McGona-
gle reminded Palmer of a conversation they had had just
before the' Christmas recess in which she had volun-
teered to teach a certain class when the new session
would begin and Palmer said he would keep it in mind
when he makes out the schedules. Also, McGonagle
pointed out that because of Respondent's system of rotat-
ing classes every 12 weeks and admitting students every
6 weeks, there were some courses which had 'not been
completed at the time of the Christmas recess, and there-
fore some students would be expecting her back only to
discover that they had a new teacher 22 Kay testified
that McGonagle was discharged because Palmer had
told him that he wanted to restructure-the department in
his fashion -and was bringing in new personnel for that
purpose.. _ _
IV. ANALYSIS AND CONCLUSIONS
A Supervisory Status of Friend, Slater, Cavataio, and
Escobar23
The General Counsel, contrary, to Respondent , -argues
that Friend, Slater , and Cavataio are supervisors within
21 It is her uncontroverted testimony that. Respondent, for the past
year or so , had given her permission to take July off for vacation -
22 Palmer has passed away since the January 4, 1982 incident, and
there is no Respondent witness to refute McGonagle's testimony
2s Friend, Slater , and Cavataio were not called to testify , Escobar tes-
tified on behalf of the General Counsel
PROGRAMMING & SYSTEMS
the -meaning of. the Act and that Escobar is-not a super-
visor. I agree with the General Counsel.
Kay testified that Slater was the head of the. account-
ing department, that she chaired department faculty
meetings each Friday; that she evaluated teachers in her
department by their performance in class; and that she
approved teachers' lesson plans. -Kay also. testified that
Friend had similar duties as head of another depart-
ment 24 He also stated that if either Slater or Friend had
1 a-,problem)with.a,teacher, she would report the problem
to - Smith with a recommendation as to what action
should be taken, and Smith acted on - that recommenda-
tion. Kay stated that he would hold meetings with the
heads of departments at which school policy changes
would be communicated to them. No teachers were
present at these meetings
It is my opinion from the aforesaid record that Slater
and Friend are supervisors within the meaning of the
Act. Kay, acknowledged that he held policy meetings
with the • department heads at which no teachers were
present. This tends to show that the department heads
were regarded by Respondent as administrative arms of
the school, with significant authority over the teachers in
their respective departments Also, department heads had
the, authority -to evaluate teachers and to make recom-
mendations regarding their continued employment with
Respondent. In addition, the evidence shows that depart-
ment heads exercise control over the teachers' lesson
plans and conduct in the classrooms. For all these rea-
sons, I find that Slater and Friend,-as department heads,
have and exercise authority, in the interest of Respond-
erit, to responsibly direct and effectively to recommend
the retention of teachers in their respective departments,
and they are, therefore, supervisors within the meaning
of the Act.
In addition to disputing Slater's duties as having super-
visory impact, Respondent contends in its brief that since
'Slater voted without challenge in the election that is suf-
ficient to defeat the General Counsel's claim that she is a
supervisor within .the meaning of the Act.25 The Board
disagrees In Montgomery Ward & Co, 115 NLRB 645 at
647 (1956), the Board states:
We Bold, therefore, that' the mere fact that DuFour
was permitted to vote in the election by agreement
of the parties is not the equivalent of a determina-
tion of his status by the Board. Further, the fact
that the Union may have agreed to the inclusion of
DuFour in the unit cannot result in nullification of
the statutory exclusion of supervisors from the defi-
nition of "employee" contained in the Act. Nor can
24 Green testified that Friend was the head of the secretarial depart-
ment, and that Friend observed Green in. class and made specific criti-
cisms regarding Green's teaching, abilities
,25 Respondent cites Redcor Corp, 1967;CCH NLRB T. 28.364, 28,366,
in support of its contention and places in quotes what supposedly was
stated by the trial examiner in his decision regarding a person named
Henyk An examination of the cited page in the CCH reveals not the trial
examiner's language but CCH's summary of what it thought the trial ex-
aminer wrote My reading of the official report of the case in 166 NLRB
1013 at 1018 (1967), entitled, "D The Henyk Incident," fails to reveal
such a quote,,nor do 18nd.that the CCH summary does justice to the
trial examiner's wording of the Henyk incident ` - -
1157
it prevent the General Counsel from contending
that DuFour was a supervisor Assuming arguendo
that, as urged by the Respondent, the Union is es-
topped from asserting that DuFour is a supervisor,
that estoppel cannot operate against the, General
Counsel' The present case is a public proceeding by
a public official against the Respondent, and not pri-
vate litigation between the Union and the Respond-
ent.
Cavataio did not testify at this hearing Joseph Gross-
man, a data processing teacher , who taught at PSI Insti-
tute three nights a week , testified that Cavataio was his
immediate supervisor . He stated that Cavataio called and
presided over faculty meetings , at which he would relay
messages from the front office dealing with the teachers'
on-time performance or absenteeism , and for which he
would castigate them ' and imply that they could be dis-
charged for a continuance of such behavior . Cavataio
would also advise on teaching methods, test giving, and
discipline of students.'According ' to Grossman , Cavataio
would change teaching assignments , reprimand teachers,
and evaluate teachers after observing them in class: And,
it was Cavataio who notified Grossman that he had been
discharged. Kay testified that Cavataio worked from ap-
proximately 5:30.to 10 p'm., and that he was Gabriel En-
esencio's assistant . 26 According to Kay, Cavataio made
sure that classes were covered by teachers, and, if neces-
sary for that purpose, Cavataio would teach a class now
and then . Kay stated that Cavataio evaluated teachers at
times but that he did not approve lesson plans . On cross-
examination , Grossman stated that Cavataio was paid at
the same rate as the other teachers at PSI , and that since
he only worked evening hours, he, too, was a part-time
employee of PSI. Since the unrebutted testimony of
Grossman establishes that Cavataio exercised his author-
ity in transferring teachers from one assignment to an-
other when necessary , reprimanded teachers , and evalu-
ated -teachers, I find Cavataio to be a supervisor within
the meaning of Section 2(11) of the Act in that he re-
sponsibly directed employees of Respondent.
Miguel Escobar testified that he was employed as a
student counselor at PSI He shared an office with Alan
Temes27 and two female clerks who worked afternoons
to keep student attendance records. On cross-examina-
tion ,' 'Escobar stated that Kay was dissatisfied with
Temes and wanted Escobar to impart to Temes some of
his style and ability in dealing with the students. Escobar
did this . and gave progress reports to Kay. Escobar also
stated that he would check the attendance records with
the two clerks in the office in order to ascertain who
,among the students were excessively absent , and then
contact those students . From the evidence presented, it
appears clear to me. that at no time did Escobar ever ex-
ercise any supervisory authority over Temes or the two
clerks, but merely worked with them in order to better
serve the needs of the students at the school. Under the
26 Enesencio was employed during the daytime and usually left the
premises about 6 p in , at which time Cavataio took over his duties
27 Temes was the student counselor for New York Business School
until his discharge
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances, I find Escobar not to be a supervisor
within the meaning of Section 2(11) of the Act
B The 8(a)(1) Allegations
The amended complaint 'alleges eight separate viola-
tions of Section 8(a)(1) of the Act, two of which the
General Counsel refers to as Respondent's unlawful rule
regarding solicitation- and distribution of literature on
company premises. The first involved Kay's reaction to
Jorrisch's attempt to read and distribute a poem in class.
The second alleged that Mautner, while speaking 'to-one
of three teachers' groups following the discharges of Jor-
risch and Green, promulgated a rule prohibiting employ-
ees from engaging in union activities at the school. Both
incidents are reviewed, 'supra In the first-incident, Jor-
risch testified that Kay told her "that no literature is al-
lowed to be distributed of any kind in this school with-
out permission `.Kay admitted the confrontation' and,
when questioned by his attorney, he merely rephrased
the quoted remark. I credit Jorrisch's version of the,inci-
dent and thereby accept the fact that Kay followed up
his remark to Jorrisch by adding, "[W]e-all know you're
involved in a noble cause." In T.R. W. Bearings, 257
NLRB 442 (1981), ' the Board held- that employer rules
that prohibit-without further clarification-union solici-
tation or distribution . of literature during "working
hours" or "working time" are, presumptively invalid
under the Act. Inasmuch as it was common knowledge
that Jorrisch was the leading protagonist for the Union; I.
find Kay's latter remark to be a reference to Jorrisch's
union activity, and the promulgation of this rule by Kay
to be overly broad, discriminatory, and violative of the_
Act. As for- the second incident allegedly -involving a
remark made by Mautner at a faculty meeting regarding
the leafletting of.,union propaganda on Respondent's
premises, I must disagree with the-General Counsel and
dismiss the allegation. The sole witness to testify as to its
alleged occurrence was Caroline Donnola, despite the
fact that other teachers who were present'at the meeting
also testified at the , hearing on other matters. Both
Mautner and Kay deny that Mautner promulgated such a
rule. In addition; it is generally agreed that each of these
faculty meetings that day lasted for dust 3 or 4 minutes
and that they were called for the sole purpose of having'
Mautner explain Respondent's reason for discharging
Jorrisch and Green. Under the circumstances, I.-credit
Mautner and Kay with their version of the incident, and
I shall dismiss that allegation in the complaints.
The third alleged 8(a)(1) incident involved the tele-
phone conversation between Green and Mautner follow-
ing Green's discharge. The General Counsel alleges; that
Mautner interrogated Green regarding her union activity
and Jorrisch's as well. Mautner denied it. It'is undisputed
that Green called Mautner to "set the record straight"
regarding Green's. honesty in.telling Smith that she did,
not have a baccalaureate degree at her interview. How-
ever, Green claimed that she made the call on ' Monday,
May 25, in the afternoon, and' that it lasted 2 hours.
Mautner testified and produced a telephone log to show
that he received the call on Tuesday, May 26, at 4:45
p.m. and that they spoke for less than 10 minutes The
1981 calendar reveals that May 25 was Memorial Day
and _in all likelihood the school was-closed. Therefore, I
find that the call was made on Tuesday, and that -the
time listed in the log, 4:45 p.m.,_was the accurate time of
the call. Mautner testified, and I credit him, that when
he got off :the phone his secretary was still in the office;
since she normally leaves at 5 p.m., her presence would
indicate that. the length of the call was closer to that
stated by Mautner (less than 10 minutes), rather than
Green's estimate of. 2 hours. Also,. and most important,
this call was made after • the discharge of:'Jorrisch and '
Green, and I cannot imagine Respondent's president en-
gaging in an interrogation of a- teacher who had dust
been discharged and confiding to ^ her that he fired her
because of her union activity. All in all, I credit
Mautner's version of the telephone conversation, and on
that basis find no interrogation' violative of Section
8(a)(I) of the Act as alleged. '
. The-General Counsel portrayed three incidents involv-
ing alleged threats made by Respondent to unit employ-
ees, contending that said threats were violative of Sec-
tion 8(a)(1) of the Act. The first such incident occurred
in mid-May between Smith and- her secretary Aiken.
Aiken had been a student at New York Business School,
and after graduation Smith hired her as her secretary.
Aiken's employment ceased when-she quit work in Sep-
tember. Smith's -office was in the library-, and Aiken's
desk was right across from Smith's. On this particular
occasion, Smith engaged Aiken in.conversation, and, ac-
cording to Aiken, Smith said that if a union came into
PSI it would be the worst thing in the world; that Smith
would not be able to get rid of all the bad teachers; that
Aiken "would probably be fired because [she] came late
a lot and that to keepy my nose clean if I wanted the job
because Mr. Mautner would' not let a union into the
school"; and that Mautner would close the school. When
Smith testified, she was asked if she had such a conversa-
tion with Aiken, and her response was, "I don't recall "
Under the circumstances, I credit. Aiken's -version of the
conversation Respondent, contends that Smith was not
threatening Aiken but merely being openly skeptical of
the benefits•a union could bring.fo the Employer's prem-
ises, and that her remarks were made during the course
of an amicable conversation. I disagree. Aiken was a
member of the bargaining' unit and vulnerable to any re-
marks made by management. And, the fact that Smith
may have been trying to act in a friendly manner might
make her statements all- the more coercive, since Aiken
could be expected to take Smith's threats very seriously.
I find, therefore, that Respondent violated Section 8(a)(1)
of the Act by threatening employees. with closing. the .
school and discharging its employees .28
The second alleged threat was revealed in Grossman's
unrebutted testimony -regarding remarks made by Cava-
taio.29 It seems that a staff `meeting took place in June
and a discussion started about the Union's organizing
drive. Cavataio was present and, according to Grossman,
told the teachers that a union had, tried to organize 2
years before and that Respondent fired'all the employees,
28 Puritech Industries, 246 NLRB 618, 622-623 (1979)
29 As stated above, I have found Cavatato to be a supervisor within
the meaning of Sec 2(11) of the Act
PROGRAMMING & SYSTEMS.
who tried to form a union . Hearing skepticism from the
teachers, Cavataio continued, "[T]hey're very good at
that sort of thing. You know, they'll figure out a way to
get rid of everyone who tries to . " In light of Re-
spondent's complete failure to rebut ,Grossman's testimo-
ny, I credit Grossman. Respondent argues, however, that
the charge should fall because Grossman further testified
that the employees were skeptical and did not take the
remarks seriously, and that Cavataio always joked
around with the teachers. I do not find that view to be
the test •'As".Adli iinistrative' Law Judge Klein so aptly
put it in Puritech Industries, supra at 623, "But the deci-
sive factor is not whether individual employees were, as
a matter of fact, coerced, but rather whether the employ-
er's conduct was such as to have a natural tendency to
coerce." Respondent's conduct in the present case clear-
ly met that test. I find, therefore, that Respondent threat-
ened its employees with discharge if they joined or sup-
ported the Union, and thereby violated Section 8(a)(1) of
the Act.
The third alleged threat was related by Aiken and
refers to a threat made by Slater on June 26 which oc-
curred in the following context. A group of teachers had
just refused to turn in students' grades to Slater because
they had not been given schedules for the next semester.
Slater, in'a huff, said, "Okay I wash my hands with you.
teachers that is it," walked into Smith's office, and relat-
ed the conversation to Smith. Smith issued an expletive
and Slater threatened to get rid of all the, teachers "so
they cannot vote in this crummy union ." In-the absence
of any rebuttal testimony, I find such remarks to be
threatening and coercive. Respondent argues that it was
said to Smith and not meant to be heard by Aiken. How-
ever, the 1hu.ird has said that even if a threat is uninten-
tionally communicated to an employee because she hap-
pens to be in the presence of two supervisors, it nonethe-
less constitutes a violation of Section 8(a)(1).30 On that
basis, I find Slater 's threat to be a violation of Section
8(a)(1) of the Act.
The remaining two 8(a)(1) allegations deal with al-
leged acts of surveillance testified to by Aiken. As stated
above, Aiken stated that a teacher, Yolanda Chinappi,
visited Smith's office many times between April and
June and reported to Smith on what the teachers were
doing in the teachers" lounge According to Aiken, Chin-
appi would tell Smith what union leaflets were being
passed out, and they would discuss the contents of the
leaflets. Also, Chinappi would inform Smith about forth-
coming union'meetings .'And Smith 's response would be,
"Good -keep me' informed." Although Aiken stated that
she did not' remember if Chinappi mentioned specific
names of teachers, and Chinappi was not called to testi-'
fy, Smith did respond negatively to the one : and only
question on the subject, "Did you ever ask her- [Chin-
appi] to spy on teachers as to- whether they were en-
gaged in union activities on their own time?" Inasmuch
as the question has so many facets to it , I am inclined to
disregard it and the :answer, ,and credit Aiken for the de-
tailed ' account, of what she overheard Chmappi and
Smith say. Respondent contends that regardless of
10 Viele & Sons, 227 NLRB 1940, 1944 (1977)
1159
whether Chinappi reported to Smith, it was voluntary on
Chinappi's part and therefore not a coercive act by Re-
spondent. I disagree. Where an employer encourages an
employee to inform on the union activities of other em-
ployees, it is violative of Section 8(a)(l) of the Act, and I
so find in the instant case.31
The last 8(a)(1) allegation refers to Aiken's testimony
regarding Smith's observance of the student picket line
on May 21. According to Aiken, Smith was looking out
the window and writing down the names of. teachers
who were standing by-watching the students. Smith then
handed the list to Aiken and asked her to deliver it 'to
Mautner Aiken remembered seeing the names of Robin-
son, Shalom, and Flynn on the list. Smith admits seeing
some teachers outside while the picketing was going on,
but was never asked the question as to whether she com-
piled a list of names. Rather, the transcript reads as fol-
lows:
Q. Did you place any of your teachers under sur-
veillance to determine whether they were engaged
in union activities?
A Well, we didn't have to place anyone under
surveillance to know who was interested in the
union or who wasn't. Peter. probably had asked us
to keep notes . . . .
MR. TANNER: Objection. Peter Curley is counsel.
MR. TANNER: Judge, _let me restate the question.
Q Were you aware of picketing on about May
21, outside the building of New York Business
School? -
A. There was picketing. -
Q. Did you observe teachers picketing? -
A. I think that teachers did picket. I don' t-I'll
tell you, I don't remember if it was just the students
and the teachers were watching or if the teachers
were picketing. I just-it's not clear in my mind.
JUDGE HERMAN: But you did see some teachers
outside while picketing was going on?
THE WITNESS: Yes.
Q. What I'm- interested in is whether you placed
teachers under surveillance, when they' were on
their own time and they weren't teaching a course.
On their own time, the lunchroom or somewhere
else in the premises to determine what they were
doing with respect to the union?
A I observed teachers while they were sup-
posedly doing their job.
From my reading of the transcript as excerpted, and
from my reading of Aiken's testimony regarding this al-
leged act of surveillance, I credit Aiken's testimony and
find that not only did Smith spend time observing the
teachers on the street, but she also completed a list of
names as recalled by Aiken. Under the circumstances, I
find that Respondent was engaging in proscribed surveil-
lance, that such conduct tended to impinge on employee
Section 7 rights, and, that it is a violation of Section
8(a)(l) of the Act.3z ,
31 B L K Steel, 245 NLRB 1347, 1352 (1979)
32 Crown Cork & Seal Co, 254 NLRB 1340 (1981)
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Discharges of Jorrisch• and Green
As stated by Respondent 's counsel , the relevant and
material facts on this issue are not in dispute Respondent
hired Jorrisch , in January and Green in February. Nei-
ther Jorrisch nor Green had a baccalaureate degree. Al-
though Respondent did not know this fact about Jorrisch
and Jorrisch did not make it a point to tell Respondent at
her interview , it is admitted that Respondent- was well
aware of Green 's 'shortcomings . It is. also clear that Re-
spondent knew of Jorrisch 's leading role as a union ac-
tivist from the beginning of May when Temes ' employ-
ment . terminated , and by Jorrisch 's presence at the -
Board 's offices on•. May 14 , representing the Union at the
informal conference on the Union 's representation peti-
tion . Green 's 'union activity was limited to her presence
at the May 1 union meeting and the fact that she signed
a card.
And so, the reason for discharge boils down to moti-
vation . Respondent would have me believe that it was
motivated by the - sudden disclosure by Brady on May 19,
which prompted the May 20 discharges . It offers as its
sole reason the lack of the baccalaureate degrees' I find
no merit to this contention . Jorrisch' had worked for ap-
proximately 4 months when she was precipitously dis-
charged . By Respondent 's own admission a report on
Jorrisch 's license status was due by the end of March (60
days after her hire) And yet she continued to work until
May 20 . Even assuming the fact that Kay was apprised
for . the first time on May 19 of Jorrisch's lack of a
degree, the report by Respondent , according to Kay,
was to be turned in at the end of June of each year. With
the semester terminating on June . 26, certainly the dis-
charge of unlicensed teachers could have been forestalled
until then . There had to be another reason for the dis-
charge on May 20 . I find that the sudden turmoil that
embroiled the school during May -was the catalyst- that
caused Jorrisch 's discharge Beginning with Temes' dis-
charge, followed by the tavern union meeting -at which
Jorrisch distributed and received back signed union au-
thorization cards, the filing of the representation petition
in early May, Jorrisch 's conversation with Friend, one of
Respondent 's supervisors , on May 13, Jorrisch 's appear-
ance as the union 's representative at the Board 's informal
conference on May 14 , the confrontation with Kay on
May 18 regarding the poem Jorrisch proposed to read
and distribute in class, and Jorrisch ' s attempt to get
Mulle to sign a card on May 20 , just before she was dis-
charged , all tend to be overwhelming evidence of the
Respondent's desire to rid itself of Jorrisch as soon as
possible. Thus, I seriously doubt that Respondent's dis-
charge of 'Jorrisch on May 20 was caused by her lack of
a baccalaureate degree. Rather , I find that Respondent's
reason for the discharge was pretextual - and actually dis-
criminatorily''motivated . It is concluded , therefore, that
Respondent 's discharge of Jorrisch , a known union activ-
ist, was to discourage membership in- a labor organization
and to interfere with the rights of `employees • to self-orga-
nization, all in violation of Section 8(a)(3) and ( 1) of the
Act. In addition , I find that Respondent violated Section
8(a)(4) of the Act in that it discriminated against Jorrisch
for her participation in a Board proceeding on May 14.
As for Green, the record reveals that she was hired in
February and discharged on May 20 for assertedly the
same reason as Jorrisch. Her union activity was limited
to attendance at a union meeting and that she signed a
card. • Respondent admits, however, that it knew when it
hired Green that she did not have a degree. Why then
the sudden action on May 20? There can be only one
reason In order to justify the discharge of a union activ-
ist (Jorrisch) for not having a baccalaureate degree, Re-
spondent had to discharge all other teachers who' did not
have a degree. Thus, Brady's review of the teachers'
records revealed the fact that along with Jorrisch,
Green, too, did not have a degree. However,._the Board
has held that an employer's termination of an employee
as part of an effort to camouflage the discriminatory dis-
charge of a known union activist is violative of the
Act. 33' I find, therefore, that the discharge of Green was
undertaken in an attempt to vindicate the discharge of
Jorrisch, and that by-doing so, Respondent violated Sec-
tion 8 (a)(3) and (1) of the Act.
However, in light of the New York State Education
Law and the regulations of the Commissioner of Educa-
tion requiring Respondent's teachers to have baccalaure-
ate degrees, there remains the question of an appropriate
remedy in this case since Jorrisch and Green are entitled
to reinstatement . The Board's response to this quandary
is found in Amay's Bakery & Noodle Co., 227 NLRB 214
(1976), in which the Board stated that a conventional re-
instatement order would merely "return Respondent to a
position in which it had placed itself earlier, and, but for
the illegal discharges, in which it would still be If there
is any risk in that position , it is a risk that the Respond-
ent by its earlier wrongdoing voluntarily assumed."
Under the circumstances, .1 shall issue a conventional re,
instatement order.34
D. The June 29 Discharges and Respondent's Refusal
to Give Intersession Pay to the Dischargees
As stated above, the relevant semester ended on June
26. On that day, students' grades were required to be
turned in by the teachers. It was customary, also, for Re-
spondent to give the teachers their class schedules for
the next semester following 1 week of intersession And,
it was Kay's uncontroverted testimony that, as a courte-
sy, teachers who were returning after intersession were
paid for the intersession week.
On June 26, Respondent posted a notice advising the
teachers that the new schedules were not available and
that they should call in on Monday, June 29. Seven
teachers'35 therefore, refused to turn in their grades on
June 26. On June 29, a compromise was reached and
each of the teachers exchanged the grades for paychecks,
but they were not paid for the week of intersession.
Also, none of the seven teachers was given a schedule
for the next semester.
Respondent contends that the drastic decline in enroll-
ment36 from May 15 when it stood at 402 to July 2
33 Phillips Mfg Co, 148 NLRB 1420, 1431 (1964)
34 See also Viele & Sons, 227 NLRB 1940, 1950 (1977)
35 Donnola, Robertson, Sapp, Shalom, Schneider, Thomas, and Keen
36 See R Exh 24(a), supra at fn 19
PROGRAMMING & SYSTEMS'
when it dropped-to 198 was the sole cause for the dis-
charge of the 7 teachers. Kay credibly testified that
Smith had been working on new schedules for several
weeks in June and when the' schedules were finalized
during the week of June 22 there were not enough stu-
dents to provide classes for all the teachers in the next
semester Respondent does not offer an explanation as to
why it was those seven teachers who were discharged'
and the General Counsel never asked Kay that question.
The General Counsel contends that the record estab-
lishes the union activities of the seven discharged teach-
ers and that Respondent had knowledge'of those activi-
ties. To support his contentions, the General Counsel
cites (1) the April 30 letter composed by McGonagle and
signed by about 20 teachers, including 6,of the discharg-
ees,37 addressed to Kay protesting Temes' discharge, (2)
the fact that many teachers signed union authorization
cards at the tavern on May 1, (3) the two meetings on
May 1 and 20 at which several teachers questioned Kay;
(4) the student demonstration on May 21 witnessed by
teachers observed by Smith; and Chinappi's reports to
Smith. In addition, the General ' Counsel contends that
the decreased enrollment did not justify the dischargees.
In assessing both contentions, and from the 'evidence
presented, I am convinced that despite the fact that Re=
spondent has failed to offer an explanation as to why the
particular seven teachers were chosen for discharge;' the
decreased enrollment was the cause for the discharges.
Moreover, the General Counsel has failed to successfully
carry the burden of proof to establish that the seven dis-
chargees were fired because of their union activities.
These seven teachers were not in any way engaged' in
such union activities as to differentiate them from other
teachers similarly situated. The fact that six of them
signed the April 30 letter is insignificant, so did about 15
others, there is no proof that Respondent had knowledge
of the fact that these seven may have signed union au-'
thorization cards, none of these seven teachers were'sin-
gled out at the two meetings, except Robertson; by
Aiken's testimony, Smith' s list of teachers who witnessed
the student's demonstration on May 21 contained more
names than those three mentioned by Aiken, and, as
Aiken testified regarding Chinappi's report•to Smith, she
could not remember if' Chinappi 'mentioned specific
narnes of teachers. Under the circumstances,- I find that
the General Counsel has not met his burden of proof re-
garding the discharge on June 29 of these seven teachers
and I shall therefore dismiss that allegation of the com-
plaint 38 In addition, 'arid for the same reasons, I shall
dismiss the 8(a)(4) allegation regarding Robertson.
With' regard to Respondent's failure to pay the dis-
chargees I week's intersession pay, I adopt Kay's uncon-
troverted evidence that such pay is reserved only for
those teachers who shall return for the forthcoming se-
mester. On that basis, I reject the General Counsel's con-
31 Robertson did not sign the letter
38 During the hearing, Respondent moved to dismiss the above allega-
tion specifically relating to Schneider, Thomas, and Keen on the grounds
that none of these teachers testified at the hearing and therefore failed to
state a prima facie case In light of my ruling above, the motion is grant-
ed but not for the reason suggested by Respondent '
tention and I shall ' not order Respondent to make such
payment. '
E. The Reduction of Escobar's Hours of Employment
Miguel Escobar was a full-time student counselor who
worked -a 45-hour week. In, addition, Escobar worked an
additional 10 hours per week on Monday, Wednesday,
and Thursday evenings. On June 29, Kay told Escobar
that he would-not-be working evening hours anymore-
because Respondent was cutting back on operating costs.
Escobar's evening, duties were then ' taken over by Nar-
cisse Mallary, an employee who started work at noon or
thereafter, and, who worked during the 'evening hours.
The only evidence elicited by the General Counsel re-
garding Escobar's union activity was--that he was ap--
proached by Donnola in the latter part of March or
early April during his lunch hour.' He was not asked if
he signed a card or if he' attended any of the meetings
referred to above. His name is not on the April 30 letter
to Kay, nor is there any other mention of his name relat-
ing to any union activity. 'The General Counsel relies'
solely on two conversations that Escobar is alleged to
have had with Kay on May 22, which are fully described
above, and which are not even alleged to be violative of
Section 8(a)(1) of the Act. In any event, I find that the
reduction of Escobar's working hours was simply a cost-
saving device which "enabled Respondent to pay one
person, who 'was on 'duty anyway, rather thanan two.
Moreover, I find that the General Counsel did not offer
one scintilla of evidence to establish an affinity between
Escobar and union activity. I shall dismiss this allegation
in the complaint.
F. McGonagle's Discharge and Respondent's Failure
to Pay Her Holiday Pay
The credible evidence of record, as recited above, es-
tablishes that Respondent discharged McGonagle on Jan-
uary 4, 1982, because McGonagle was a union adherent
and for no other reason. McGonagle impressed me as a
frank and honest witness with a great ability to recall
events long ' past and' I credit her testimony completely.
By the same token, I. discredit Kay's lame attempt to put
the blame on a dead person for McGonagle's ultimate
discharge. Kay was the executive director with vast au-
thority, and, if he were so anxious to retain McGonagle,
he 'certainly could have arranged it. On the other hand,
although McGonagle could have embellished her exit
interview with Palmer: since he could not rebut her testi-
mony, she merely stated that he could not tell her why
she was being discharged. Her forthrightness was exem-
plary. ,
Respondent admits quite readily that it was aware of
McGonagle's desire to have a union represent Respond-
ent's employees, but cites the fact' that this never inter-
fered with their relationship, that she was permitted= to
have the entire month' of July for vacation and that she
had full-time schedules for 3 years. It suggests that the
reason for her discharge must lie elsewhere,- and then
comes up with the excuse that Palmer was restructuring
the department. I am not persuaded.- -
1162, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find that McGonagle was discharged
because of her union sympathies and for-no' other.reason,
and that Respondent thereby violated Section 8(a)(3) and
(1) of the Act.
As for Respondent's failure to pay McGonagle holiday
pay for Thanksgiving Day and the, day after, I find that
here, too, Respondent discriminated against McGonagle
because of her support for the Union. While it-is true
that Respondent generally enforced its rule regarding
holiday pay, it did make. an exception with two other
teachers regarding the same Thanksgiving Day holiday,
and I find no distinction between a teacher being absent
on the day prior to a holiday and one being absent on
the next workday. following- a holiday. As McGonagle
stated, she would not even have asked for holiday pay
except for the fact that others similarly situated were
given holiday pay.
Under the circumstances, and having already found
that Respondent has. treated -McGonagle in a discrimina-
tory manner- because of her union,activity, I make the
same finding here and conclude that by refusing.to grant,
McGonagle holiday pay, -Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW -
1. The Respondent, Programming,& Systems, Inc., is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7)' of the Act.
2. The Union, Association of Public Service Workers,
is a labor organization within the meaning of Section
2(5) of the Act.,
3. Respondent, acting through its agents, violated Sec-
tion 8(a)(1) of the Act by promulgating and enforcing an
invalid no-distribution rule, by threatening employees
with reprisals and discharge, and by engaging in illegal
surveillance of employees, - all because the employees
joined and assisted the Union for the purpose of collec-
tive bargaining. -
-4. Respondent violated Section 8(a)(3) and (1) of the
Act by discharging- its, employees Judith Jorrisch and
Sarah Green on May 20,-1981, and Mary McGonagle on
January 4, 1982.
5. Respondent violated Section 8(a)(3) and (1) of the
Act by refusing to grant Mary McGonagle 2 days' holi-
day. pay. - .
6. Respondent did-not engage in any other unfair labor
practices as alleged.
7. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within. the
meaning of Section 2(6) and (7) of the Act. .
THE REMEDY
As Respondent has been found to have engaged in cer-
tain unfair labor practices , I shall recommend that it
cease and desist therefrom and that it take certain affirm-
ative action necessary to effectuate the policies of ,the
Act.
Having found that Respondent discriminatorily dis-
charged Judith Jorrisch , Sarah Green , and Mary. Gona-
gle, and refused to grant Mary McGonagle 2 days'. holi-
day pay , I shall recommend that Respondent be required
to make the employees - -whole for any loss of earnings
they may have suffered as a result'of the discrimination
against them. The loss of earnings shall be computed as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as set forth in Florida Steel Corp., 231
NLRB 651 (1977) -
On 'these findings of fact and' conclusions of law and
on the entire record, I issue the following recommend-
ed39
ORDER
.The Respondent, Programming & Systems, Inc., New
York, New York, its officers, agents, successors , and as-
signs, shall
1. Cease and desist from -
(a) Promulgating and enforcing an invalid no-distribu-
tion rule.
(b) Threatening employees with reprisals and dis-
charge for engaging in union activities.
(c) Engaging in illegal surveillance of employees'
union activity. -
(d) Discharging, employees because of their activities
on behalf of and sympathies for the Union or any other
labor organization.
(e) Refusing to grant holiday pay to employees who
support the Union.
,(f) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
.2. Take the following affirmative action necessary, to
effectuate the policies of the Act.
(a) Offer to Judith Jorrisch, Sarah Green, and Mary
McGonagle immediate and full reinstatement to their
former positions,-without prejudice to their seniority or
other rights. previously enjoyed, and make them whole
for any loss, of pay or other benefits suffered by reason
of the discrimination against them in the manner de-
scribed above in the section entitled "The Remedy."
(b) Pay Mary McGonagle for 2 days' holiday pay plus
interest as set forth above in the section entitled "The
Remedy."
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its New. York, New York place of business
copies of the attached notice marked "Appendix."4°
Copies of the notice, on forms provided by the Regional
Director for Region 2, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
39 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules ' and Regulations , the findings, conclusions, and recommended
Older shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
40 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 Judgment
of the Untied States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board " -
PROGRAMMING & SYSTEMS 1163
for 60 consecutive days in conspicuous places including (e) Notify the Regional Director in writing within 20
all places where notices to employees are customarily days from the date of this Order what steps the Re-
posted.. Reasonable steps shall be taken by the Respond- spondent has taken to comply.
ent to ensure that the -notices are not altered, defaced, or
covered by any other material.