St. Ann's Episcopal School

National Labor Relations Board - Board Decisions

Jun 10, 1977

230 N.L.R.B. 99 (N.L.R.B. 1977)

ST. ANN'S EPISCOPAL SCHOOL
St. Ann's Episcopal School andLay Faculty Associa-
tion, Local 1261, American Federation of Teach-
ers, AFL-CIO. Cases 29-CA-4845 and 29-CA-
4993
June 10, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On February 7, 1977, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This case was
heard at Brooklyn, New York, on July 27 through 30 and
September 2, 1976. On May 27, 1976, the Acting Regional
Director for Region 29 issued an order consolidating cases
and a complaint against St. Ann's Episcopal School, herein
called Respondent. The complaint was based upon a
charge filed by Lay Faculty Association, Local 1261,
American Federation of Teachers, AFL-CIO, herein called
the Union, on February 3 and served on February 5, 1976;
and a further charge filed by the Union on May 10 and
served May 12, 1976. The issues framed by the pleadings
herein are whether Respondent unlawfully harassed Rob-
ert N. Hoffmann, a teacher, by excessive classroom
observations and unfavorable performance evaluations,
and discriminatorily failed to renew his contract because of
his concerted activities and his activities on behalf of the
Union, and because he filed the charges and gave
230 NLRB No. 21
testimony under the Act. Respondent filed an answer
denying the commission of unfair labor practices.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs were
submitted by the General Counsel and Respondent and
have been carefully considered.
Upon the entire record in the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a private nonsectarian elementary and
secondary school located at 129 Pierrepoint Street, Brook-
lyn, New York, where it is engaged in providing and
performing educational and teaching services from Ist
through the 12th grade. In the course and conduct of its
business operations during the past year Respondent has
derived gross revenues from tuition, fees, and other sources
in excess of $1 million. Respondent, in the course and
conduct of its business operations during the past year,
purchased and caused to be transported and delivered to
its place of business, books, paper, teaching aides, school
supplies, and other goods and material, valued in excess of
$50,000 of which goods and materials valued at in excess of
$50,000 were transported and delivered to it from States of
the United States other than the State of New York
wherein its place of business is located. Respondent
admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
1. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, a nonsectarian day school founded in 1965,
currently enrolls approximately 750 children in grades I
through 12. The school caters to a student body consisting
of very bright, sometimes talented children, who thrive in
an atmosphere of challenge and motivation. The word
"caters" is used here advisedly as the headmaster, Stanley
Bosworth, makes perfectly clear that his policy is to cater
to the desires of the children, with a view to their achieving
to the maximum extent of their capabilities. Bosworth
makes it equally clear that such policy does not apply to
the handling and treatment of teachers. The students come
first and the teachers last, in his view, as he is not
concerned with democracy in his relationship with the
teachers. Their job is to be understanding of the children,
stimulate and motivate them to develop their own minds
and ideas. While students are not graded, as such, in their
courses, a wary eye, nevertheless, is focused on achieve-
' With his bnef, counsel for Respondent filed a motion to correct the
transcript. As the motion relates to typographical and other minor errors.
and there being no opposition thereto, it is hereby granted.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment test results in college entrance board examinations.
The school prides itself on the great numbers of its students
who graduate to the so-called better colleges and universi-
ties, and these test scores are, in part at least, the basis for
their admission.
Robert N. Hoffmann taught at Respondent for 3 years,
having been hired for the year commencing September
1973 as a teacher in the science department until the end of
the school year in 1976 when his contract was not renewed
by Respondent.
B. Concerted and Union Activities
At the end of 1974, some of the teachers were apparently
disaffected with the administration of the school and, as a
result, seven persons including Hoffmann were elected to
serve as a faculty committee. In the ensuing few months the
committee met with Headmaster Bosworth a number of
times and discussed various subjects relating to the
teachers' contracts, curriculum, and various working
conditions. The faculty committee then discussed the
possibility of union representation and Hoffmann was
designated to investigate this matter. He went to the office
of the Union and arranged for some of the teachers to meet
with union representatives in March 1975. On April I the
committee circulated a letter to all teachers urging that
they opt for union representation and describing the
methods to be used for the selection of the Union, noting
that the procedure would be conducted under supervision
of the National Labor Relations Board. This letter was
signed by the seven members of the committee. Charles
Arent, a former teacher and committee member, testified
that he had written the first draft; it was then revised by the
committee who agreed that the first signer should be
Hoffmann, most active member of the committee in
making contact with the Union. Thereafter union cards
were distributed by mail and in person and Hoffmann
stated that he himself distributed cards and spoke personal-
ly to a number of teachers. In addition, further meetings
were conducted with the union representatives.
There is no question concerning the awareness by
Respondent of the concerted activities not only of
Hoffmann but of all the members of the committee, since it
is clear that Bosworth met perhaps 10 times with the
committee and discussed as noted above various topics
involving the teachers' working conditions.2 Moreover,
within a week after the letter urging union representation
was mailed by the committee, Bosworth replied to all
teachers indicating his awareness of the union activity and
his position contrary to unionization. During the period of
these activities, a meeting of the teachers in the science
department was held at the home of a teacher in February
1975. According to Hoffmann, during the course of this
meeting Peter Cohen, the department chairman, stated that
Bosworth had characterized Hoffmann as an organizer.
2 The record does not show whether the committee constitutes a labor
organization. However, it is clear that activities of the committee members
were protected.
3 The substance of these remarks by Cohen at the February 1975 meeting
are not alleged herein to be unfair labor practices. They were the subject
matter of a charge, together with other allegations not relevant herein, filed
by Hoffmann on May 19, 1975. The major portions of his charge were
dismissed by the Regional Director, and the remainder consolidated with
Cohen, in his testimony could not recollect making this
remark, which, however, was corroborated by Arent,
whom I credit. Hoffmann further testified that at this
meeting Cohen also informed him that he had been
instructed by Bosworth to write something about Hoff-
mann which could be used in the future. 3
It is the practice of Respondent to make observations of
classroom teachers, principally conducted by the various
department chairmen, but also by the heads of the
particular school involved (lower, middle, or high school),
the assistant headmaster or the headmaster himself. In
addition commencing in the spring of 1975, a policy of
written evaluations prepared by the chairman of the
department concerning the performance of the teachers
was instituted. Cohen's first evaluation of Hoffmann, made
in May 1975, contained praise for Hoffmann's work in the
physics class, a high school subject. However, Cohen stated
that his middle school work needed improvement and
found that problems stemmed from Hoffmann's lack of
rapport with his classes and the amount of time he spent
attempting to obtain some discipline. As a result of
Cohen's evaluation, and based on her own observation,
Barry, the head of the high school, had recommended
against the renewal of Hoffmann's contract for the 1975-76
year. Despite the shortcomings, Cohen made a recommen-
dation that the contract be renewed, with which Kaufman,
the assistant headmaster, concurred. Bosworth stated that
although he had found a general sense of discontent
concerning Hoffmann, on the part of some students with
whom he had dealt, he decided that the evidence at the
time suggested that Hoffmann be given more of a chance
as the school is a difficult one in which to work. Therefore
Hoffmann's contract was renewed for the coming year.
During the first week of the new school year in
September 1975 Hoffmann's classrooms were visited twice,
once by Cohen and another time by Barry. It was
suggested to Hoffmann by Cohen that he learn the names
of his students quicker then he had. As a result of her visit
Barry had written Hoffmann a note requesting that he see
her about something. He did not go to see Barry until after
having received a second note from her some time later.
During the entire school year 1975-76 Hoffmann's classes,
of which there were five, were visited approximately 20
times by Cohen, 4 times by Barry, and several other times
by members of the administration including Kaufman,
Dunne, head of the middle school, and Bosworth himself,
who would look in for very short periods of time upon
occasion. Barry, who had contact with many of the
students in high school, stated that she had received
complaints from them, including one at the very outset of
the school year which prompted her own visit during the
first week of school. Most often she passed on the
complaint to Cohen without revealing the names of the
students involved. According to Cohen this increased the
the charges filed by another teacher against the Respondent. These cases
were ultimately resolved by a formal settlement agreement dated October
28, 1975, providing for the entry of a Board order and court judgment. The
settlement agreement contained a nonadmission clause and subsequently
Respondent complied with the terms of the Board Order and was advised by
the Regional Director on April 27, 1976, that those cases had been closed on
compliance.
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ST. ANN'S EPISCOPAL SCHOOL
number of his observations because he received requests
not only from Barry but also from Dunne, and in addition
had some complaints directly made to him by students.
From time to time Cohen discussed some of his observa-
tions with Hoffmann and talked about particular problems.
With regard to the number of visits made by Cohen, it is
noted that, during a discussion of the first evaluation
written in the spring of 1975, Hoffmann stated that Cohen
had not observed him frequently enough. In that year he
had made approximately 12 observations. Cohen also said
that, as part of his overall responsibility, he visited the
classrooms of all the teachers in the department in varying
numbers depending upon necessity of the situation.
In December 1975 Cohen prepared another written
evaluation which is generally praiseworthy with respect to
Hoffmann's physics class. However, he noted that his
biology class was "somewhat marred by apathy and
distraction." He found that the students who were critical
were the same who provoked the distractions and they had
to be dealt with by Hoffmann; he noted that a variation in
style and presentation might be more amenable. Generally,
Cohen concluded that Hoffmann's effectiveness was lost as
a result of a lack of rapport with the students who
"communicated an antipathy" toward him. He said that
students in all classes had expressed a lack of respect for
Hoffmann as a teacher. In his last evaluation, dated April
14, 1976, Cohen noted that Hoffmann's physics section had
decreased in size, that numerous students were absent or
late, and the atmosphere was strained and uncooperative.
In the biology class he found that discipline continued to
be a problem and the students mocked Hoffmann and did
not respect him. Again in general science classes taught by
Hoffmann, Cohen stated that his observations revealed one
section to be highly disorganized with a lack of order and
discipline. He noted students sat facing in all directions
and engaging in activities such as reading comic books and
eating oranges. He also criticized Hoffmann's attitude
towards these students. As he delivered a copy of this
evaluation to Hoffmann, Cohen told him that it had been
decided not to renew his contract for the coming year.
According to Respondent's administrators, other factors
besides their personal observation of Hoffmann's classes
were considered in the decision not to renew Hoffmann's
contract. Notice was taken of the fact that the number of
students enrolling in Hoffmann's physics class, an elective
subject taken by junior or senior students in the high
school, had declined and the administrators had been
advised by some of the students that they were seeking to
avoid Hoffmann as a teacher. More important, in view of
the school's objective in having its graduates admitted to
the elite colleges, were the lower grades which students in
Hoffmann's class were attaining in the college board
achievement tests. This belief was confirmed by a series of
studies and charts, admittedly prepared during the course
of the hearing in this matter, which portrayed the results
and relative grades of students in Hoffmann's biology
classes as compared with those in sections taught by other
teachers. The students are required to take three successive
courses in biology. Using the grades of students who were
taught by Hoffmann in the second of the three courses, it
appeared that their percentiles declined from what they
had achieved in the prior course, and rose when they took
the third course after leaving Hoffmann's class. Respon-
dent contends that for the sum of all these reasons a
determination was eventually made not to renew the
contract of Hoffmann.
Finally, it should be noted that all teachers were subject
to classroom observation in varying numbers according to
the necessity. Also it appears that other teachers active on
behalf of the faculty committee and the Union, and most
particularly the other six signers of the letter urging
designation of the Union, were all renewed or offered
renewal, and there is no evidence of any threats or reprisals
taken against them.
C. Analysis
From the welter of verbiage adduced in this case, there
emerges a very simple image. A teacher has engaged in
concerted activities by virtue of his participation in the
organization of and membership on a faculty committee,
and was further involved in activity seeking to organize the
faculty of Respondent on behalf of the Union. Respon-
dent's administrators admit being aware of Hoffmann's
efforts on behalf of both the committee and the Union. In
addition, Hoffmann had filed an unfair labor practice
charge against Respondent with the Board. All of these
activities occurred during the end of 1974 and the early
part of 1975. As a result of what may be gleaned from the
background preceding the filing of the charges and the
formal settlement in the prior case, referred to above, as
well as the testimony of Bosworth and Barry at the hearing
herein, it may be inferred that Respondent harbored an
animus with regard to the Union. It is the contention of the
General Counsel that the contract of Hoffmann was not
renewed because of his activities approximately I year ago
and that Respondent's motivation was demonstrated by
alleged conduct which would have occurred also a year
ago. There are no allegations of violations of the Act or
evidence of conduct or statements exhibiting further union
animus which may have occurred in the intervening period.
It is the burden of the General Counsel to establish that the
failure to renew was motivated by Hoffmann's union or
protected concerted activities, a burden, which I find, has
not been fulfilled in the circumstances of this case. The
previous cases involving Respondent were settled formally
with nonadmission clauses and have been closed by the
Regional Director upon compliance and cannot of them-
selves be utilized to establish violations of the Act. Poray,
Inc., 143 NLRB 617 (1963). However, to some extent
Respondent's presettlement conduct can be and has been
introduced in an attempt to establish the motive of
Respondent's postsettlement activities. Northern California
District Council of Hodcarriers and Common Laborers of
America, AFL-CIO; Construction and General Laborers
Union Local No. 185, AFL-CIO (Joseph Mohamed Sr., an
Individual, d/b/a Joseph's Landscaping Service), 154 NLRB
1384 (1965).
I have therefore taken cognizance that the evidence
herein has established union animus on the part of
Respondent and perhaps even extended to Hoffmann by
reason of his having filed an unfair labor practice charge.
However, the existence of such elements above are not
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sufficient to establish that Respondent was unlawfully
motivated when it refused to renew Hoffmann's contract a
year later. No intervening event has occurred nor is there
any evidence of contemporaneous statements manifesting
such motive on the part of Respondent. Furthermore, I
find the evidence insufficient to warrant a conclusion that
Respondent, in terminating Hoffmann, acted in such an
arbitrary or capricious manner as would tend to indicate
that its asserted reasons for that action were pretextual. It
is no doubt true that an evaluation of a classroom teacher's
performance based upon personal observation may fre-
quently be determined by subjective factors. There are
probably wide differences of opinion among educators on
the question as to who is a good teacher, but that is not in
issue in this case. Respondent is surely entitled to
determine for itself the standards it seeks in teachers.
However, the evidence does reveal a number of objective
facts, most of which are undenied in this record. Thus
Cohen's observation of students reading comic books in
class, eating oranges, seated in disarray around the
classroom, their lack of attentiveness to the teacher, the
manner and tone of questions, remarks by the students,
and responses by Hoffmann are objective factors which
provide a basis for his recommendation. Tests scores and
comparison of the achievements of Hoffmann's students
with those taught by other teachers provide further basis
for a determination unfavorable to Hoffmann.
Another factor often indicating a discriminatory motiva-
tion is that of disparate treatment, evidence of which is
lacking in this case. It is contended that Hoffmann was
harassed by being observed more often than other teachers.
While it is apparently correct that Cohen visited Hoff-
mann's classroom 20 times whereas other teachers may
have only been visited 12 times, the number does not
appear exorbitant in view of the fact that Barry and other
administrators had referred complaints to Cohen about
Hoffmann from students, and Cohen himself had remarked
earlier in his first appraisal in April 1975 that Hoffmann
had certain problems which required correction. In
addition, Hoffmann, upon receipt of that particular
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
evaluation, had indicated to Cohen that he felt he had not
been sufficiently observed. As to the visits from other
administrators, it does not appear that Barry, for example,
came to Hoffmann's classroom more than four times in the
course of the 1975-1976 year, not an exorbitant number it
would seem. Also, as has been previously noted, no other
teacher who was active on behalf of the committee or was
one of its members, or of the Union, had been refused
renewal. In fact a number of them received raises although
their activity was well known to Respondent.
Essentially, the issue here does not involve the correct-
ness or fairness of Respondent's decision, the validity of
students' complaints and actions, or the policies of
Respondent in dealing with students or evaluating teach-
ers. In short, Respondent may terminate a teacher for any
cause and is not required to prove that its reason was a
good one or even a fair one. The burden falls upon the
General Counsel to prove that the discharge was discrimi-
natorily motivated under the Act. I find that the General
Counsel has not established by a preponderance of the
evidence that Respondent unlawfully refused to renew the
contract of Hoffmann for a cause proscribed by the Act.
Accordingly, I shall recommend dismissal of the complaint
in this case.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 4
The complaint is dismissed in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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