St. Joseph's College

National Labor Relations Board - Board Decisions

Mar 18, 1977

228 N.L.R.B. 896 (N.L.R.B. 1977)

896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Joseph's College and Judith Darlene Burnes.
Case 25-CA-7590
March 18, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On September 23, 1976, Administrative Law Judge
Platonia P. Kirkwood issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
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, fmdings, and
conclusions of the Administrative Law Judge as
modified herein.
The Administrative Law Judge dismissed the entire
complaint including the allegations that postelection
remarks made by Respondent to union advocates
Judy and Jim Burnes violated Section 8(a)(1) of the
Act. The Union lost the August 21 election by a
narrow margin. Judy Burnes actively recruited for the
Union throughout the campaign and acted as a union
observer during the election. Jim Burnes, too, was
known to Respondent as an avowed union supporter.
Under these circumstances, we cannot agree that
Respondent's telling the two Burneses on separate
occasions in September that it would give the
employees "a month or two" to change their attitude
failed to convey a veiled threat against renewed union
activity.
We note that Judy Burnes was also told that "she
was a leader of the people-that they would follow
her; and that he [Respondent's vice president) didn't
want another union election in a year." The same
theme, that Respondent didn't want another election
in a year, was repeated to Jim Burnes shortly
thereafter.
In our view these remarks clearly exceed the
permissible bounds of free speech, thus constituting
an 8(a)(1) violation. Respondent, of course, was
entitled to attempt to restore good employee rela-
tions, but not to do so by veiled threats of reprisal
should the employees continue their union advocacy
and seek an election a year hence, as permitted by the
statute.
Member Walther suggests that the Administrative
Law Judge failed to credit the testimony of Judy and
228 NLRB No. 87
Jim Burnes on which we have relied in finding the
violation of Section 8(a)(1), and refers us to footnotes
6 and 11 of the Decision. Footnote I I credits Crowley
with respect to certain specific testimony concerning
the alleged 8(a)(3) violation. Footnote 6, though
referring at the end to remarks which Burnes "attrib-
uted to" Crowley, otherwise comes across as the
Administrative Law Judge's assessment of Burnes'
testimony on the basis of how Burnes "regarded"
Crowley's remarks. She concluded that Burnes was
not telling the truth when he testified to the remarks
being "threatening in part." Burnes' reaction was
elicited on cross-examination by Respondent, thus
tending to minimize the possibility of contrivance
and, because of its subjective nature, the Administra-
tive Law Judge's failure to believe it does not impugn
Burnes' testimony that Crowley made the remarks.
We suggest that a close reading of the entire
discussion of the Judge at section II, C, is helpful. In
our opinion, the text of her Decision establishes that
she did not question that the remarks were made by
Crowley but declines to interpret them as an implied
threat. She found that at best the General Counsel
established that Crowley's remarks to the Burneses
simply conveyed opposition to renewal of representa-
tional campaign activity for another year, and that
the General Counsel had not proved that the remarks
exceeded permissible bounds of speech. We are not
prepared to interpret this decisional treatment as
implying, as Respondent would, that the Administra-
tive Law Judge did not believe the General Counsel's
witnesses to be credible.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices, we shall order that it cease and
desist therefrom and that it take certain affirmative
action necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the record as a whole, we make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(2),(6), and (7)
of the Act.
2. Respondent has violated Section 8(a)(1) of the
Act by threatening employees with reprisal if they
renewed or continued their advocacy of the Union.
3. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ST. JOSEPH'S COLLEGE 897
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
St. Joseph's College, Rensselaer, Indiana, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with reprisal if they
renew or continue their union activity.
(b) In any like or related manner interfering with,
restraining, and coercing its employees in the exercise
of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Inform its employees that they are free to engage
in lawful union and other protected activities while
employed by Respondent.
(b) Post at its place of business in Rensselaer,
Indiana, copies of the attached notice marked "Ap-
pendix." 1 Copies of said notice, on forms provided by
the Regional Director for Region 25, after being duly
signed by Respondent's authorized representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
union activities. With respect to the conversation with
Jim Burnes, Crowley specifically denied issuing an
ultimatum that he would give employees I or 2
months to change their attitudes about the Union.
The Administrative Law Judge never resolved this
conflict in the testimony. All she found was that even
if the testimony of Judith and Jim Burnes represented
a substantially accurate recollection of the content of
their discussions with Crowley, such testimony would
not establish an 8(a)(1) violation. She did not, as my
colleagues in the majority assume, credit the Burneses
testimony over that given by Crowley. Indeed, it was
her impression that Jim Burnes was "not telling the
truth when he testified" because she believed that his
testimony was slanted so that it might provide
support for the complaint's allegation that Respon-
dent had discriminatorily discharged his wife because
of her prounion advocacy.2 In contrast, she specifi-
cally credited Crowley's testimony with respect to the
alleged 8(a)(3) violation in part "because he im-
pressed me as an honest witness. "3
Since I am not willing to find a violation of our Act
in the absence of any supporting evidence, and since
my colleagues' decision is contrary to the Administra-
tive Law Judge's findings to the extent she made
them, I would affirm the Administrative Law Judge's
dismissal of the complaint in its entirety.
1 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
2 ALJD, fn. 6.
3 ALJD, fn. I I
MEMBER WALTHER, dissenting:
I disagree with my colleagues' reversal of the
Administrative Law Judge's dismissal of the 8(a)(1)
allegations. In my judgment, there is insufficient
evidence in the record upon which to predicate an
8(a)(1) violation.
In essence, the majority finds a veiled threat against
renewed union activity on the part of prounion
employees in a comment by Vice President Crowley
that he would give such employees "a month or two"
to change their attitude towards the Union. My
objection to basing a violation on this statement is
that there is no credited testimony that the statement
was ever made.
Judith Burnes, and her husband Jim Burnes, both
testified that Crowley made the alleged statement to
them in separate conversations. Crowley denied that
he ever said anything to any employee which was
intended to or did in fact threaten them with reprisals
because of their union sympathies or otherwise
indicated that Respondent was keeping track of their
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
reprisal to discourage them from resuming or
continuing to engage in union and other protected
activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed by Section 7
of the Act.
All of our employees are free to engage in lawful
union and other protected activities while employed
by us.
ST. JOSEPH'S COLLEGE
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
PLATONIA P. KIRKWOOD, Administrative Law Judge: On
April 15 , 1976 , this proceeding was conducted in Reming-
ton, Indiana , on a complaint by the General Counsel,'
alleging that the above-captioned Respondent committed
verbal acts independently violative of Section 8(aXl) of the
Act and discharged Judith Burnes , the Charging Party, in
violation of Section 8 (aX3) of the Act. Respondent's answer
denies the alleged violations. Briefs filed by Respondent
and General Counsel have been duly considered . Upon the
entire record,2 and from my observation of the demeanor of
the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
St. Joseph 's College is an Indiana nonprofit corporation
located at Rensselaer, Indiana , where it is engaged in the
operation of a college-level educational facility . During the
immediate past 12 months, a representative period, the
Employer received gross revenue from all sources in excess
of $ 1 million ; and during the same period , the Employer
purchased and received goods and services valued in excess
of $50,000 at its Rensselaer, Indiana, facility from sources
located directly outside the State of Indiana . Respondent
admits and I find that it is an employer engaged in
commerce within the meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
Retail Clerks Union Local 1460, chartered by Retail
Clerks International Association, AFL-CIO, herein re-
ferred to as the Union, is and has been at all times material
here a labor organization within the meaning of Section
2(5) of the Act.
A. Introduction
There was no union activity among any of Respondent's
employees until May 1975 , when the Union commenced a
campaign to organize employees in the building and
ground maintenance, janitorial , and cafeteria departments.
The Union filed a representation petition for a unit of
employees in these departments in July (Case 25-RC-
6012), and, on August 21, the Board conducted an election
in that requested unit , one composed of about 60 employ-
ees. The results of the election turned on the disposition of
challenged ballots . The Board decision certifying the results
I All dates hereafter mentioned are 1975 unless otherwise specified. The
charge was filed on December 10, and a complaint thereon issued on January
27, 1976.
2 1 grant General Counsel 's unopposed motion to correct the record dated
May 21, 1976.
3 The original tally of ballots showed that 19 employees voted for, and 24
employees voted against , the Union, and that 20 voters cast challenged
ballots . The Board decision found , in accord with the unopposed decision of
the Regional Director dated October 31 , 1975, that 15 of the 20 challenged
ballots should be sustained and that the remainder need not be opened and
counted . The five voters whose challenged ballots were not resolved were
alleged by Respondent to be supervisors within the meaning of the Act. One
of these five was James Burnes, the husband of the Charging Party.
was issued November 19 and found that most of the
challenges should be sustained and that the Union had not
therefore obtained a majority of the valid ballots cast in the
election.3
As a matter of relevant background, the record shows
that the preelection contest was characterized by the
display of "strong feelings" by both opponents and propo-
nents of the Union and that antiunion speeches were
delivered by management agents . But there is no claim and
no evidence that any of this preelection activity exceeded
permissible bounds of electioneering . It is the General
Counsel's position, however, that after the election-and
while its results were still in an undetermined status-
Respondent took certain unlawful measures in violation of
8(aXl) and (3) to chill any further employee interest in
union activity which may have survived the election.
B. Alleged Acts of Interference, Restraint, and
Coercion
The complaint alleges that Respondent independently
violated Section 8(aXl) of the Act following the representa-
tion election by coercively interrogating employees about
the Union and its adherents , threatening union activists
with discharge, and giving employees the impression of
surveillance of their union activities . In support of these
allegations, General Counsel relied on the below-summa-
rized testimony by Judith Burnes, her husband, Jim Burnes,
and Charles Liebo concerning remarks purportedly made
to them by Crowley in September and October during
discussions he initiated with each about the representation
election under the assumption-subsequently affirmed by
the Board-that the Union had been defeated. All three
were known or suspected union supporters and all three
had voted in the election.4
Judith Burnes' testimony described two discussions she
had with Crowley in his office during the latter part of
September after he had asked that she come to see him.
According to Burnes the first of these two conferences took
place about September 21 and the next about a week after.
Burnes' version of the first conference indicates as
follows:
Crowley opened the conference with a remark that
"employees were unhappy with the Union not getting in."
Mrs. Burnes replied that "the employees were unhappy
with the way Superintendent Hentschel had been treating
them ; that what the employees wanted was job security but
they didn't expect fantastic wages if the Union did get in
but they just wanted enough to cover what the Union dues
would be." To this Crowley responded, that he "would give
the people that were unhappy with the Union not getting in
4 Judith Burnes was an employee in the warehouse or janitorial depart-
ment. She had actively solicited employees tojom the Union from the outset
of the union campaign and had acted as the union observer in the election.
Charles Liebo was an employee in the plumbing shop where he worked
together with employees Jim Linback and Jim Burnes . The latter was
leadman or foreman of that shop and had cast a challenged ballot in the
election because Respondent claimed he was a supervisor. The merits of
Respondent 's claim as to a supervisory status were not resolved in the
representation can because, as noted, his ballot would not have affected the
election results . No evidence was adduced at this hearing by either side about
Jim Burnes' duties or his supervisory authority . However, I assume for
purposes of this decision, that he was not in fact a supervisor within the
meaning of the Act at times here relevant.
ST. JOSEPH'S COLLEGE
a few months to change their attitude"; and Mrs.
Burnes answered she "wasn 't against the college [she] was
actually for it; and that [she] didn't think the Union would
get in because of all of the challenges." Crowley then told
her he thought "she was a leader of the people-they would
follow her; and that he didn't want another union election
in a year."
With respect to the second meeting, Burnes testified that
Crowley called her in to reprimand her for having called
Superintendent Hentschel "a Nazi"; that he suggested that
she apologize to Hentschel, discuss her "differences" with
him so that they could "work together harmoniously" and
that he also said he was seeking to promote a "positive
attitude between management and the employees of the
college so that they could go forward and make it a better
college."
Jim Burnes ' testimony describes a conference called by
Crowley in late September-about I or 2 weeks before
October 3, when Burnes voluntarily resigned his job.
Crowley held the conference in Engineer Moore's office for
the purpose of discussing, with Burnes and Hentschel,
Respondent's budgetary needs in the plumbing shop for the
coming school year. According to Burnes , Crowley ended
the budget discussion by stating that he, Crowley, knew
that Burnes "and guys like [Burnes] were unhappy because
the Union hadn't gotten voted in; that he [Crowley]
wouldn't like to see another election in another year and he
was going to give them a month or two to try to work it
out."
Charles Liebo, also a plumbing shop employee, testified
that sometime late in October, about 2 weeks after Jim
Burnes had quit, Crowley asked him and Jim Linback, a
fellow employee in the same shop, to meet with him and
Hentschel in Engineer Moore's office. Liebo's account of
this conversation was somewhat disjointed and his memory
of it was not too clear. However, his testimony, read as a
whole, indicates that Crowley expressed concern about the
plumbing shop work now that Jim Burnes had quit.
Crowley wanted to know if Liebo and Linback might have
felt "unhappy" because the Union had not gotten in, and if
they might have planned, accordingly, to quit also, as "it
would be difficult for the college" to be suddenly left
without any employees in the plumbing department.
Respondent called Crowley in rebuttal. He admitted that
he held a number of discussions with employees after the
election, including Liebo and the two Burneses , in which he
may have referred to the preelection campaign and the
election results. His testimony depicts these discussions to
be in the nature of "pep talks" prompted by his belief that
the "strong feelings" expressed by "both sides" during the
preelection campaign had an adverse effect on employee
morale and the development and maintenance of desirable
relationships between management and employees. He
sought, in general, to impress employees with the idea that
what Respondent "needed right now . . . was people
pulling together and seeing if we could go in a positive
direction." He denied that anything he said to any
5 In light of the fact that no objections to the election were filed and that
the Board's ultimate disposition of the challenged ballot issues affirmed
Respondent's expressed belief that the Union had in fact lost the election at
the polls, I am unable to see what support, if any, is provided for General
899
employees was intended to or did in fact express any intent
to interrogate employees about their union sympathies,
threaten them with reprisals because of such activity, or
otherwise indicate that Respondent was keeping track of
their union activities and sympathies.
Responding to questions about his contacts with Judith
Burnes, Crowley testified that as Burnes and he had an
"open and friendly relationship," Burnes frequently
dropped in to talk to him about "employee problems" to
which she was "privy," but that he had only once
summoned her to his office during the "time frame" of the
complaint, and did so only to discipline her for having
called Hentschel "a Nazi." In the course of reprimanding
her about her disrespect of Hentschel, he admitted that he
mentioned the "union vote." His version of what he said is
that he expressed concern about "the direction we would
take in the future" and the hope that a "positive" attitude
would be adopted so that management and employees
would be able to "solve their problems and get together
without the need of an outsider."
With respect to his meeting with Jim Burnes, Crowley
maintained that he did not in "any way" suggest or state
that he would give employees 1 or 2 months to change their
attitude about the Union or any other subject, "or else."
With respect to the meeting with Liebo and Linback,
Crowley testified that he met with the two men after Jim
Burnes quit because he needed to know if the two men-
who were the only ones left in the plumbing shop at the
time-would "absorb the duties that Jim had been perform-
ing." Crowley "did not remember" asking them if they
actually planned on quitting; but he admitted that he "was
interested in knowing whether or not they intended to
remain" for obvious reasons.
C. Discussion and Conclusions
Reviewing the above evidence, I fmd, in agreement with
Respondent's argument, that even if the testimony of
General Counsel' s witnesses , as above summarized, repre-
sented a substantially accurate recollection of the content
of the discussions each of them had with Crowley, that
testimony would not prove, as alleged, that Respondent
either coercively interrogated employees about union
activity, gave them the impression of surveillance of union
activity, or threatened them with reprisals for union
activity.
I fmd unpersuasive General Counsel's suggestion that
Crowley's rhetorical remarks about the "unhappy" feelings
of employees because the Union had been defeated,
amounted to interrogation concerning the employees'
present attitudes about the Union or their depth, or gave
the employees the impression of surveillance.5 The undis-
puted evidence indicates both that Crowley knew or
suspected that the employees to whom the remarks here in
issue were addressed were or had been union advocates,
and that he had ample justification for believing that union
sympathizers would be disappointed about the close defeat
of the Union at the polls. Nor, in the total context of this
Counsel's case by the fact that the Board's decision disposing of the
challenges and affirming the loss of the Union's election was still in a
pending stage at the time that Crowley made the abovedescnbed remarks to
the employees.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, do I believe that Crowley's remarks to the two
Burneses that he would give employees "a month or two" to
change their attitude conveyed a veiled threat that manage-
ment would act to their disadvantage if they renewed
prounion organizational activity.6 In so finding, I have
considered the reality that the waging of a hard-fought
representation campaign tends to polarize employee griev-
ances or discontents over management actions or attitudes
in a manner affecting both morale and work efficiency to
some degree . And I cannot fault Respondent for seeking,
when the election was over, to restore management-em-
ployee relationships to the status quo before the representa-
tion campaign and to urge the employees' abandonment of
negative attitudes about management or fellow employees.
In sum, I find that , at best, General Counsel established
that Crowley's remarks conveyed Respondent's opposition
to a renewal of representational campaign activity for
another year following the Union 's defeat in a valid
election . But I do not find that General Counsel proved that
those remarks exceeded permissible bounds of speech. As I
conclude, accordingly, that the independent 8(axl) allega-
tions of the complaint are unsupported , those allegations
should be dismissed . I shall so recommend.
1. The alleged discriminatory reassignment of
Judith Burnes to a new job on October 3, and her
alleged discriminatory termination on October 8
The complaint alleges that Respondent violated Section
8(aX3) and (1) of the Act by: (1) transferring Judith Burnes
on October 3, to a job less desirable than that which she had
been holding and (2) discharging her on October 8, when
she refused the transfer. It is the General Counsel's theory
that Respondent's actions against Burnes were moved, at
least in part, by its knowledge that Burnes had played a
prominent leadership role in the Union's organizational
campaign and by its desire to forestall or impede the
conduct of any further organizational activity following the
Union's defeat in the election . Respondent denies any
unlawful motivation. It maintains that its transfer of Burnes
to another job on October 3 was moved solely by economic
considerations ; that the working conditions of that job were
substantially equivalent to those of the job that she had
been performing ; and that Burnes' severance from Respon-
dent's employ on October 8 was the result of her unjustifia-
ble refusal to accept the new assignment and was tanta-
mount to a voluntary quit.
The basic facts descriptive of Burnes' employment
history and the circumstances under which she ultimately
It is my imppression that Jim Burnes was not telling the truth when he
testified, as he did, that he regarded Crowley's statements to this effect to be
threatening in part. I believe, rather, that Burnes-an intelligent witness-
gave that testimony because he felt it nu ht provide support for the
complaint's allegation that Respondent had discriminatorily discharged his
wife because of her prounion advocacy. In making this judgment I have
taken into account the fact that there is no evidence that Crowley or any
other management representative had taken any unlawful measures to affect
the employees ' union advocacy during the critical preelection period, and
that the remarks which Burnes attributed to Crowley were, at best,
ambiguous in nature and contained no "or else" language.
I According to Burnes the major portion of her daily worktime was spent
doing the tasks associated with the receiving and is patching of freight
parcels and cleaning supplies , and the handling of the office telephone-one
through which all complaints or problems conce rning maintenance services
were channeled.
lost her job are not disputed. They show, in relevant part,
that Burnes was hired by Respondent in March 1974, in the
janitorial department . At all times here relevant she
occupied a job in the janitorial warehouse and shipping
area of the college carrying the title of "assistant to the
executive housekeeper." Her work tasks in that position, as
set out in a job description prepared for her on April 7,
1974, included handling the telephone and doing the
necessary filing and typing in the warehouse office;
receiving and dispatching freight and parcels and issuin
supplies; keeping records of the materials received and
dispatched and of the supplies issued at the warehouse;
separating dirty laundry and taking it to the laundry;
washing and drying all wet mops, dust mops , and cleaning
rags; cleaning the janitorial building, the campus radio
station and the ladies restroom in the campus chapel;
substituting for absentee cleaning ladies in the female
dormitories; and mixing cleaning chemicals used in the
janitorial department. Burnes performed some of these
tasks daily, and the remainder on an "as assigned" basis.?
She received her day-to-day work orders from the executive
housekeeper and from Hentschel . She worked a 40-hour
week, Monday through Friday, and at the dates here
relevant , she was being paid at the rate of $2.50 per hour, 20
cents above the then minimum starting rate . Respondent's
sole complaint with Burnes' performance as an employee
was that, because of her open display of hostility to
Hentschel and her disparagement of him to other employ-
ees, she posed , as Crowley put it, a "very difficult problem"
of "morale."
On October 3, a housekeeper post of the kind Burnes had
been assigned to do from time to time on a substitute basis
became vacant . The job was located at a female college
student dormitory called Justin Hall and its work tasks
involved cleaning the dormitory lounges, halls, and stair-
ways and the bathrooms (about 10 in number) commonly
used by the student occupants , Crowley and Hentschel
decided to transfer Burnes to that housekeeper job on a
permanent basis and to recruit or to transfer to the
warehouse job a male employee capable of performing
certain nonrecurring , but essential , tasks involving the
carrying or handling of parcels or equipment weighing over
100 pounds, and which, as performed during Burnes'
incumbency in the warehouse post, had required the
assistance of personnel "pulled off' from locations outside
the warehouse .8
Hentschel and Ralph Marini (a professor at the college
who also handled employee relations for Respondent) met
with Burnes on October 3 for the purpose of informing her
B Burnes' testimony indicates that she routinely handled , on her own,
parcels or equipment and materials weighing as much as 55 pounds, but that
she "rounded up" additional personnel from other janitorial departments if
heavier items or equipment had to be carried or moved from one location to
another.
Testimony of an uncontradicted character adduced from other witnesses
establishes that on occasions when college students or college personnel
made arrangements for a dance , banquet , or concert it became necessary to
move around portable stages and other furniture equipment the college
utilized for such purposes, and stored at various places when not needed;
that, on other occasions , rolls of carpeting stored or delivered to the college
needed to be carried to the particular building to be carpeted ; and that such
items weighed more than 100 pounds.
ST. JOSEPH'S COLLEGE
about Respondent 's decision . From a composite of uncon-
tradicted testimony given by both Burnes and Hentschel
about what was said at that time, it appears that, in telling
Burnes of her reassignment , Hentschel advised her that
Respondent had been planning to get an assistant executive
housekeeper who could take over more work responsibili-
ties and duties ; that "it happened" that an opening in a
housekeeper post at Justin Hall had just occurred because
Marilyn Tiede, the employee who had regularly occupied
that housekeeper job, was being transferred to the health
center and Respondent needed to fill the Justin Hall
vacancy immediately in order to service its student occu-
pants .9 Burnes inquired if her job was no longer needed.
Hentschel and/or Marini replied "no," but that "they"
didn't feel they needed two people in the office of the
executive housekeeper , and that the only other job opening
they had to offer her was that of a painter . She advised them
she did not want to be a painter ; and would let them know
whether she would take the Justin Hall housekeeper job on
the following Monday, October 6.
As Burnes had substituted for the housekeeper perma-
nently assigned to that dormitory, as well as for housekeep-
ers at other dormitories , during the absence of such
housekeepers-and had most recently done so shortly
before the events here in issue occurred-she knew what
the job required ; cleaning the stairways , halls, lounges, and
the bathrooms (about 10 in number at Justin Hall)
commonly used by the student occupants , that the sched-
uled hours of the housekeeper were the same as those of
Burnes' warehouse job, and that she would receive the same
pay. She testified that these tasks were "lighter" and
somewhat "easier" in terms of their physical demands than
those she had been regularly performing in her present job;
but that she regarded the job as less desirable for the
reason, among others, that she had an arthritic condition in
her right hand and the use of a broom "constantly," as
required in the housekeeper job, aggravated that condition.
She therefore arrived at a decision not to accept the
housekeeper assignment. But, as she admitted , she never
explained to Respondent her reasons for her decision; and
she had never, at any time here relevant, disclosed the
existence of her arthritic condition to Respondent.
On October 6, Burnes advised Hentschel that she had
decided she did not want the Justin Hall job . Hentschel
replied that he wanted her to put her decision in writing.
But Burnes did not comply with that request.
On Tuesday, October 7 , Hentschel had the following
letter delivered to Burnes:
Dear Mrs. Burnes:
To confirm our conversation on Friday, October 3,
1975 you will be assigned as the housekeeper of Justin
Hall. This assignment is necessary to facilitate more
effective use of personnel in handling the duties of the
9 The infirmary post to which Marilyn Tiede was in fact transferred to
on or about October 3, was a combined housekeeping and nurses ' aide type
job which had been vacated due to the retirement of the employee who had
occupied it. There is no claim and no evidence that Respondent 's selection of
Tiede, rather than Burnes, for the infirmary post had any discriminatory
taint
901
service station , receiving, shipping, routing and Justin
Hall housekeeping.
We hope that you accept this assignment . However,
you have indicated verbally that you are not interested.
Presently there are no other job openings.
We are providing you the opportunity to reconsider
this assignment . It is necessary that we know your
decision by Wednesday, October 8, 1975 , to make
proper adjustments for Justin Hall.
Please inform the Superintendent 's office , of your
choice.
On the morning of October 8, Burnes met with Hentschel
and told him that she had made three decisions. In her
testimony, she reported that she said , "Number one, I did
not want to take Justin ; number two, I was not quitting;
and number three , I was not putting it in writing."
Hentschel replied that she should put her correspondence
in writing as theirs had been in writing to her . To this
Burnes replied that she hadn 't asked for their correspon-
dence to be in writing. She then went back to her warehouse
post.
Later that afternoon , Hentschel had another letter
delivered to Burnes. This one stated as follows:
According to our letter dated October 7, 1975,
concerning your transfer to Justin Hall as housekeeper,
you were to give us your decision on October 8, 1975.
To put your decision in writing was only verbal.
Your file does not show that you were hired for a
specific job, only that your work was to be full-time
employment. According to the Employee's Handbook,
page 5, 1-12, Promotion and Transfer, the third para-
graph states: "On occasion, it may be necessary for
departments to make transfers for the good of the
College."
We have followed every step according to the
Employee's Handbook to transfer you to Justin Hall as
housekeeper. This was not a demotion as the pay rate
was the same. Therefore you would have remained at
the same level of pay, had you decided to accept the
transfer.
We are sorry that you have chosen not to accept the
housekeeping position. Your decision leaves us no other
choice, but to inform you that Wednesday, October 8,
1975, will be your last day of employment with Saint
Joseph's College.
Thank you for your fine efforts and services in the
past.
Burnes left Respondent's employ at the end of her
workday on October 8. Thereafter, Respondent successive-
ly asked each of the male employees holding maintenance
jobs in other departments to take over the warehouse post
Burnes had held, but each refused. Ultimately, Respondent
recruited a new male employee to fill that post. t0
10 From the testimony of Harold McKay, an employee who had been
placed in the executive assistant housekeeper post about 3 weeks before the
hearing, it appears that Respondent has in fact utilized him to do some
"heavy lifting" tasks of a kind which, according to the record evidence,
(Continued)
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following her departure from Respondent's employ,
Burnes continued to visit the college campus from time to
time and have lunch in the college cafeteria with the
employees with whom she had previously associated.
Hentschel told Crowley he did not approve of Burnes ' visits
assertedly because the employees she saw were extending
their lunch breaks beyond the normal period . In light of
Hentschel's complaint and his knowledge of Burnes'
disparagement of and hostility to Hentschel during her
employment, Crowley felt, so he testified, that Burnes' visits
might adversely affect employees ' morale . He therefore
decided to send her , on December 2, the following letter: r r
Dear Mrs. Burnes:
I am sorry to inform you that you will not be allowed
on Campus at any subsequent times . This is not meant
to be personal, however, we do not feel that it is
conducive for our work situation having you make
frequent visits.
Regrettably, I have informed security and office
employees that you not be allowed on campus at any
future dates.
On December 12, Burnes filed the charge initiating
this proceeding.
Discussion and Conclusions
General Counsel would have me find, on the above facts
that, in selecting Burnes for transfer from the warehouse
post-which served as a central point of contact with other
maintenance departments-to the Justin Hall housekeeper
post, where only one or, at most , two other employees were
also assigned, it was Respondent's purpose , at least in part,
to inhibit her renewal of organizational efforts. Such a
finding, General Counsel argues, is supported , inter alia, by
Respondent's identification of Burnes as having played a
prominent leadership role in the union campaign when she
acted as the union observer in the election, by the
statements made by Crowley to her and other employees in
postelection discussions which demonstrated Respondent's
desire to chill any employee interest in unionism which
might survive the Union 's loss of the election ; and by the
action taken by Respondent in December to bar Burnes
from coming on its premises , even though members of the
public were not, as a matter of practice , barred from
Respondent's premises . His contention , in this respect,
obviously seeks a conclusion that Burnes was the victim of
a "constructive discharge" action. But General Counsel
also maintains he has also made out a classic case of
discriminatory discharge because the evidence shows that
Respondent failed and refused to honor Burnes' preference
for the warehouse post although, after Burnes' discharge, it
allowed other employees to whom it offered Burnes' post to
reject it without penalty.
Burnes had not performed . McKay testified, inter ilia, that he had handled
student trunks weighing over 100 pounds ; that he had used heavy floor
polishing and stripping equipment to do the floors in college buildings; and
that he helped carry heavy rolls of carpeting which had been delivered to the
carpentry shop for placement at another campus building.
1 1 credit Crowley's explanation for the decision to bar Burnes ' visits to
Respondent , on the other hand, claims that General
Counsel did not meet his evidentiary burden of proving the
essential elements of the alleged 8(a)(3) allegations. In
support, it refers not only to the testimony if proffered with
respect to its legitimate reasons for transferring Burnes to
the Justin Hall post but also to its confirmation by the
objective facts. It points out, inter alia that even though it
may have expressed antiunion sentiments , it did so in
permissible terms, and that it committed no overt act of any
kind to inhibit its employees' exercise of protected organi-
zational rights . And, in further response to General
Counsel's implication that it compelled Burnes to quit by
requiring her to transfer to the Justin Hall job as a
condition of continued employment , it points out that,
although Burnes preferred the warehouse job, it had no
reason to believe her preference had any legitimate base. It
notes, in this respect, that the physical burdens of the
housekeeper job were lighter than those of the warehouse
post Burnes was occupying ; that both jobs were in the same
department ; that neither Burnes' hours nor her pay would
have been affected by her transfer ; and that, so far as the
record reveals, no one here concerned had any knowledge,
before she testified at this hearing , of the arthritic problem
Burnes claimed she had.
Reviewing all the above evidence and the arguments
made on both sides, I conclude , on balance , that General
Counsel did not establish his case by a preponderance of
the evidence.
I am convinced , from all the record facts, that Respon-
dent had, as it claimed, a legitimate basis for deciding to
assign Burnes to the Justin Hall post . I so find. I am also
convinced and find that, from what was known to Respon-
dent at the time , Burnes' refusal to accept the transfer could
fairly have been regarded as a defiance of its managerial
authority and/or an attempt to dictate her own terms of
employment.
In so holding with Respondent , I have considered
General Counsel 's reliance on the facts that Burnes had
identified herself to Respondent as a prominent union
adherent during the election; that Respondent had implied-
ly suggested to her, after the election , that she refrain from
promoting a new representational campaign . But Respon-
dent's statements were not, as I have found, accompanied
by any threat of reprisal or other unlawful verbal statement,
and Respondent committed no other overt action from
which I could infer a predilection on its part to punish
union adherents or otherwise to thwart employee rights to
pursue their organizational desires.
I have also considered the fact that , because the Justin
Hall post did not afford its occupant as much exposure to a
wide number of maintenance workers as did the warehouse
job, it was perhaps a less desirable post from which to
promote an organizational campaign . But, so far as the
record shows , Burnes' rejection of the Justin Hall post was
not grounded on any such considerations . Furthermore,
there is no evidence and no claim that Burnes had, or any
the campus, not only because he impressed me as an honest witness, but also
because the credible and plausible nature of his explanation is affirmed, in
my view, by Burnes' own testimony concerning her dislike to Hentschel, her
disparagement of Hentschel to fellow employees , and her somewhat arrogant
method of expressing to him , on October 8, her refusal to accept the Justin
Halljob.
ST. JOSEPH'S
other employee had, actively engaged in any organizational
activity after the election.
Taking everything into account , I am unable to conclude,
in sum , that, in deciding to assign Burnes to the house-
keeper post , Respondent did so in order to forestall or
inhibit her effective pursuit of organizational efforts, or to
force her to quit.12 I find at best, that General Counsel may
have established some warrant for suspecting Burnes had
12 Relevant on this point is the Board 's statement in Crystal Princeton
Refining Company, 222 NLRB 1068, 1069 (1977), of the elements which
General Counsel must prove in such a situation . The Board said, in relevant
part:
There are two elements which must be proven to establish a "construc-
tive discharge." First, the burdens unposed upon the employee must
cause, and be intended to cause, a change in his working conditions so
difficult or unpleasant as to force him to resign . Second, it must be
shown that those burdens were imposed because of the employee's
union activities.
COLLEGE 903
incurred Respondent 's displeasure by reason of her union
leadership and activities. But, I also fmd that he was
required to but did not prove that Respondent acted on that
displeasure by transferring her to the Justin Hall post
and/or insisting that she accept that post as a condition of
continued employment.13
[Recommended Order for dismissal omitted from publi-
cation.]
Neither of these two elements were , in my view, proven on this record.
i3 In so finding, I have taken into account the evidence adduced by
General Counsel that Burnes was granted unemployment benefits on
findings by the State of Indiana agency involved that Respondent had
discharged Burnes not for just cause . I do not know precisely what evidence
the State agency had before it. In any event , it is my obligation to arrive at
the decision of the issues here presented on the basis of my independent
consideration and evaluation of the evidence before me . See and compare,
N.LR.B. v. Tennessee Packers, Inc., 339 F.2d 203, 204 (C.A. 6, 1964);
N.LR.B. v. Pacific Intermountain Express Company, 228 F.2d 170 (C.A 8,
1955); and Supreme Dyeing & Finishing Corp., 147 NLRB 1094, 1095, fn. 1
(1964).