The Judson School

National Labor Relations Board - Board Decisions

Mar 13, 1974

209 N.L.R.B. 677 (N.L.R.B. 1974)

JUDSON SCHOOL
The Judson School and American Federation of
Teachers, AFL-CIO. Case 28-CA-2644
March 13, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On January 29, 1973, Administrative Law Judge
Martin S. Bennett issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and counsel for the
General Counsel 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, 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 Respondent, The Judson School,
Scottsdale, Arizona, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
1 In the absence of exceptions thereto Chairman Miller accepts pro forma
the finding of the Administrative Law Judge that the operations of
Respondent affect commerce within the meaning of Sec. 2(2), (6), and (7) of
the Act.
DECISION
STATEMENT OF THE CASE
MARTIN S . BENNETT, Administrative Law Judge: This
matter was heard at Phoenix , Arizona, on October 3, 4, 5,
and 6 , 1972. The amended complaint , issued July 26, later
amended , and based upon charges filed June 7 and 23,
1972, by American Federation of Teachers , AFL-CIO,
herein the Union , alleges that Respondent, The Judson
School , has engaged in unfair labor practices within the
meaning of Section 8(a)(4), (3), and ( 1) of the Act. Briefs
have been submitted by the General Counsel and Respon-
dent . Upon the entire record in the case and from my
observation of the witnesses , I make the following:
1 Gunkel is erroneously spelled in the complaint as Gunkle. Howard's
correct first name may be Jerald.
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
677
The Judson School is an Arizona profit corporation
which operates a private school encompassing elementary
and high school grades at Scottsdale, Arizona. During the
last year, Respondent enjoyed gross revenues in excess of
$1 million and purchased goods valued in excess of $50,000
which were shipped to it directly from points outside the
State of Arizona. I find that the operations of Respondent
affect commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Teachers , AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; The Issue
Respondent is both a boarding and day school and is
coeducational. Constance Ashley is one of the owners, a
director, secretary-treasurer and business manager. The
record demonstrates that she plays a substantial, if not
controlling, role in determining school policies. Henry
Wick III is president of the school and also a member of
the board of directors. Also playing prominent parts herein
are Hugh Slattery, now headmaster, who was hired in
August of 1970, and his sister, Margaret Slattery, formerly
dean of girls and now acting dean of students and assistant
to her brother.
In February or March of 1972, the Union commenced
organizational activities among the approximately 40 or 41
teachers then employed by Respondent in both its grade
and high school levels. The General Counsel attacks
various alleged acts of interference, restraint, and coercion
and the refusal of Respondent to renew the contracts of
nine teachers for the 1972-73 season on and after May 20,
1972. These are Rose Marie Arline, Robert M. Gunkel,
Vern Hackett, Jerrold Howard, Michael McColgin, Elmer
Stormont, John Poe, Meta McKnight, and Henry Ander-
son.' A motion by Respondent to dismiss the case of
Stormont, who was unable to testify herein due to his
absence on an extended trip, is hereby denied.
B. Interference, Restraint, and Coercion
Headmaster Hugh Slattery promptly learned of the
union organizational campaign which had been initiated
basically by teachers Max Potter and Mike Hughes, not
directly involved herein. Early in March, he asked teacher
Robert Gunkel, according to the latter and I so find, if he
concurred in the organizational activities and if he would
go along. Gunkel demurred, but advised Slattery several
days later that he would join the Union because certain
matters needed to be changed at the school. Approximate-
ly 1 week thereafter, Slattery asked Gunkel for the names
209 NLRB No. 110
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the union members; Gunkel refused, stating that this
was not his province?
At the request of the Union, Slattery and President
Henry Wick met with its four officers on March 7; also
present, according to Hugh Slattery, was Margaret Slatter-
y. The union representatives were Hughes, Potter, Gunkel,
and Michael McColgin, the latter two among the nine
complainants herein. According to Gunkel, Hughes read a
statement to the effect that a large number of the faculty
had joined the Union and desired union recognition.
McColgin and Hugh Slattery agree that a reply was
requested by the following morning. Wick became angry
and told Potter that he was a little boy, and Potter and
Hughes departed. Slattery claimed that he asked Hughes
how many teachers he represented and Hughes refused to
depart from his prepared statement.
Immediately thereafter, a faculty meeting was called in
the school dining room.3 According to Slattery, he wished
to ascertain if the Union represented a majority. Hughes
reread his statement. Next, Wick addressed the assemblage
and stated that other private schools which had been
organized had been bankrupted and that a number of
employees would be affected if the school had to close
down. He advised them not to "kill the goose that laid the
golden egg." 4
Slattery then addressed the group, testifying herein that
he stated the board of directors was willing to negotiate
with the teachers on any grievances. In order to ascertain
the extent of Hughes' claim that the Union represented the
teachers, he decided to poll the teachers in three categories.
He asked those in favor of the Union, those not
represented by the Union, and those who were undecided
to stand up. Slattery gave no assurance against reprisals. Of
the nine complainants herein, all but Henry Anderson and
Meta McKnight stood up as supporters of the Union. On
the following day, a petition for an election was filed in
Case 28-RC-2303. The election was held on April 14 and
the Union lost by a vote of 21 to 20.
During the interim period, President Wick saw fit to
summon complainant John Poe to his office later in
March. Wick told him that unionization would be bad for
the school, that the school might be forced to close, and
that some 140 jobs would be lost. About I week later, Wick
repeated this identical statement to Poe.5
There are a number of other undenied statements by
Wick to various teachers. Thus, in March, Wick told
complainant Arline that unionization would be the
ruination of the school and complainant Henry Anderson
that unionization would result in the closing of the school .6
It is uncontroverted that Wick similarly told complainant
Vern Hackett that he hoped that unionization would not
kill the goose that laid the golden egg. Wick also told the
2 Slattery was manifestly an intelligent albeit a verbose witness It is only
fair to point out that he was thrust into a situation obviously novel to him
3 Due to the imminence of the lunch period, some dining room
employees were in the area
4 This finding is based upon the testimony of Gunkel and McColgin,
Wick was not queued in this area. He testified that after talking with some
parents, he had concluded that they would withdraw their children from a
unionized school
b This finding is based upon the testimony of Poe; Wick was not queued
in this area.
6 Respondent has adduced evidence , treated below , as to the allegedly
union officials, including Hackett, in May that the
proposed union contract would result in longer working
hours for teachers.
I find that by questioning teachers as to whether they
would support the Union; asking for the names of union
members; announcing possible reductions of staff, closing
of the school, and longer working hours in the event of
unionization; and by polling employees as to their union
adherence without assurances of no reprisals, Respondent
has engaged in conduct violative of Section 8(a)(1) of the
Act. See, as to the last, Struksnes Construction Co., Inc., 165
NLRB 1062.
C. The Discharges
Respondent has mounted a massive attack upon the
competency of the nine teachers whose contracts were not
renewed for the 1972-73 season.? Initially, Respondent is
saddled with the fact that 9 of its 40 or 41 teachers for the
1971-72 term, with varying tenure, were denied reemploy-
ment, indeed a high percentage. This is underlined by
Respondent's primary defense that it suffered economic
problems and further that it anticipated a reduction in
enrollment , this mandating a close analysis of the compe-
tency of the current teachers.8
But the student body did not decrease for the 1972-73
year. Indeed, Respondent now has more teachers, some 44,
than before the advent of the Union. Stated otherwise,
Respondent's claim as to its economic problems did not
materialize. Enrollment did not drop off, despite the fears
of President Wick, based upon comments he had solicited
from parents.
According to Slattery, who was hired in 1970, almost all
of his time during his first year was devoted to preparation
for an evaluation by an association of schools to which
Respondent belongs. Early in May of 1971, Slattery
received certain oral instructions from Constance Ashley.
It is manifest , and I find, that she exerts a controlling
influence on the operation of the school. Planning on a
small enrollment for the next economic year with an
accompanying lesser need for faculty, Slattery was alleged-
ly instructed to review the existing complement of
personnel and make recommendations for a skeletal
faculty. Slattery duly reviewed the faculty personnel and
prepared three lists: (1) a hire list, (2) a maybe list, and (3)
a no list . He admittedly knew the approximate percentage
of union members or advocates on the faculty. His
testimony is rather complex as to the basis for placing or
not placing persons on the respective lists , with some
shifting testimony. He flatly recommended that five of the
nine complainants not be rehired. The other four were put
poor financial situation of the school It is also to be noted that salaries at
the school are low and this presumably entered into both the prounion
sympathies of the teachers as well as the opposition of management
r The record amply demonstrates that each spring, teachers at Respon-
dent are advised whether they will be retained for the following year The
timing of this advice is crucial because time is very much of the essence in
obtaining employment for the ensuing teaching year
8 Wick testified that there were 41 teachers in the 1971 -72 year, but
Respondent's records , according to Slattery, and these are reflected in
exhibits, reveal that there were but 40
JUDSON SCHOOL
on the maybe list. Of these , two, McKnight and Poe, were
later offered employment and McKnight accepted.
I also note here that complainant McColgin testified that
Miss Slattery, the dean of women, told him that she was
surprised at the magnitude of the discharges and, further,
that she and her brother had unsuccessfully spent an entire
day attempting to persuade Mrs. Ashley not to embark
upon this course of action . Miss Slattery admitted a
conversation with Mrs. Ashley, but claimed that it was
confined to economic procedures concerning rehiring and
the possibility of combining certain jobs . McColgin
impressed me as a straightforward witness who did not
attempt to embellish his testimony and I credit him herein.
I now turn to the various reasons assigned by Respon-
dent for not initially reemploymg the nine complainants.
Needless to say, the failure to initially reemploy 9 out of 40
or 41 teachers, in excess of 20 percent of the entire teaching
staff, many with considerable tenure , constituted a massive
disruption of staff and the assigned reasons for not
reemploying the 9 do not withstand scrutiny. And, as will
appear, the record warrants the conclusion that the
unifying thread behind the discharges was their union
adherence or Respondent's belief to that effect. The
Pearson Bros . Company, 199 NLRB 1179.
Also to be noted is that , concerned that the contract
renewals were not forthcoming late in April or early in
May as in the past , on May 8 all of the nine complainants,
save McKnight and Anderson , signed a petition urging a
declaration of intent to rehire no later than May 12. This
was posted in the teachers' lounge.
1. Robert Gunkel
Gunkel has taught chemistry , physics, and mathematics
at the school for approximately 17 years, and has both a
bachelor's and a master's degree . His field is concededly
one where teachers are in short supply. He and all the other
complainants, unlike several of the new teachers hired by
Respondent for the 1972-73 year, enjoy Arizona certifi-
cates, a license required for teaching in Arizona 's public
schools, but not in private schools in that State.
The high regard in which Gunkel was held by Respon-
dent is demonstrated by the fact that President Wick had
authorized him to reprimand teachers who were not
performing their tasks to his, Gunkel 's, satisfaction. It is
noteworthy that his salary was raised in the fall of 1971 for
the 1971 -72 season . There is no evidence that he has ever
received a complaint about his work.
As found, he advised Headmaster Slattery early in
March that he would support the Union , was known to be
vice president of the local chapter of the Union , and also
stood up as a union adherent on March 7 when Slattery
polled the faculty. According to Gunkel's uncontroverted
testimony , he was concerned about the following teaching
year . He telephoned Wick on May 20 and inquired about
his prospects for employment . Wick responded that he
would not be reemployed . despite his lengthy tenure,
because he did not get along with other teachers and
because "we do not want you members here."
Despite Gunkel 's impressive credentials, his tenure, and
his preferential status with Respondent , the latter has come
forward with a number of reasons as to why he was not
679
rehired . Initially , Respondent raises the claim that, in
August of 1971, Gunkel complained to a state accredita-
tion authority about job security and low salaries; the
record well demonstrates that the faculty salaries at
Respondent are indeed low. According to Hugh Slattery,
Wick and Ashley felt that Gunkel's contact of the
accrediting agency was ample cause to discharge him.
Slattery spoke with Gunkel and he agreed to withhold a
letter he planned to write to the state authorities . Slattery
then recommended that Gunkel not be dismissed and this
recommendation was accepted.
Respondent also relies upon the fact that Gunkel had
criticized President Wick of Respondent as being amoral.
It is not entirely clear whether this referred to Wick's
personal life and other entanglements , but the simple
answer is that this was not further developed at the trial.
Respondent next raises the incident of Mrs . Smith, who
teaches various business courses . As found , for some years
Gunkel had been given authority by President Wick to
reprimand a teacher not performing his or her duties.
Gunkel , in this quasi-administrative capacity , came upon a
student of Mrs. Smith 's who was out of class . He not only
returned the student to the classroom , but addressed Mrs.
Smith in the presence of her class and pointed out that the
student was loose on the campus rather than in the
classroom . Mrs. Smith had no professional contact with
Gunkel , who operated in an unrelated field. Gunkel
subsequently apologized to Mrs . Smith in front of her class
sometime in April. It would seem that the incident was
then closed prior to the selection of the faculty for the
ensuing year.
Respondent also adverts to the fact that Gunkel
criticized President Wick for his failure to rehire Gunkel's
father, also a teacher , some years earlier . The direct answer
to this is that this occurred prior to the selection of teachers
for the 1971-72 academic year . Also, Gunkel , as a teacher,
enjoyed free enrollment of his daughter at the school. He
admitted that he had told Slattery , and perhaps Wick, that
he could not, in good conscience , continue to send his
daughter to the school. It appears that this took place prior
to the advent of the Union upon the scene and Gunkel was
not reprimanded for this.
To sum up , Gunkel had his differences with the
administration of the school, but I conclude, particularly in
view of his lengthy tenure and preeminence in the school,
that the foregoing incidents would not have led to his
discharge. Stated differently, the so-called offenses by
Gunkel preceded his union activities and were either
disregarded or swept under the table . Indeed, as found, he
telephoned President Wick late in May and inquired about
his situation . Wick responded that the reason for not
renewing his contract was that he did not get along with
other teachers and "we do not want you members here."
This ties in with an admission by Ashley that, in
considering whether or not to renew the contracts of the
respective teachers, "we must have talked about the Union
of course ...." I find no real substance to Respondent's
position herein.
2. John Poe
John Poe , a most impressive witness , was hired in
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
midterm by Respondent in 1971 to fill an unexpected
vacancy. He was assigned to various science and mathe-
matics classes , the former category admittedly in short
supply. Poe signed a union card shortly before the election
and was one of those who stood up as favoring the Union
at the meeting on March 7, 1972. There is no evidence that
his work was ever criticized. As noted, President Wick of
Respondent specifically told him on two different occa-
sions during March that unionization would be bad for the
school and that some 140jobs might be lost.
At the end of the school year, Poe contacted Hugh
Slattery about rehire. According to Poe, Slattery told him
that he would not be rehired "because of the slanderous
activities of Mr. Potter" which would perforce reduce the
school enrollment.9 According to Poe, he had been assured
that his performance as a teacher was most acceptable. As
the General Counsel points out, there is some vague
reference to Poe's favoring field trips. His uncontroverted
testimony is that Slattery similarly favored them, but was
opposed to all day field trips because of objections by
other teachers to disruption of their classes; this is
obviously a trivial matter.
There is also some unclear reference , in the questioning
of Poe, to a lack of discipline or control by him over his
students. According to Poe's uncontroverted testimony,
Mr. Slattery discussed this topic with him in a general
sense involving the entire school.
Finally, Respondent vaguely contends that if the right
person had come along, he or she would have been offered
Poe's post.iO But the simple answer is that Respondent did
unconditionally offer Poe appointment the ensuing year
which he declined. Needless to say, Poe is not saddled with
conduct by fellow unionist Potter which he did not
authorize or ratify. It is also interesting to note that
Respondent complained, in the case of the previous
complainant, Gunkel, that he was too restrictive of
students . Yet here, it vaguely urges that Poe was too
permissive. Paradoxically, Respondent has adduced evi-
dence to the effect that there is more latitude in private
schools than in public schools allowed to teachers. As will
appear below, Respondent attacked precisely this latitude
in the deportment of complainant McColgin.
3. Meta McKnight
McKnight was in her second year as a fourth grade
teacher in the school. She was told on May 22 or 23 by
President Wick that she was not to be rehired. He added
that her work was excellent, but that the school had
decided to hire a younger person. McKnight had volun-
teered to Wick several days earlier that she was not a union
supporter, this without response by him. And, she was not
one of those who stood up in favor of the Union at the
March 7 meeting.
McKnight is over 65 years of age and volunteered to
Wick at the time of her hire that she was in that category
with 31 years of experience, a bachelor's degree, a master's
degree, and graduate work beyond that. Wick told her at
9 Teacher Potter had made derogatory comments about the school to the
press and had distributed some literature to the same effect There is
the time, as she uncontrovertedly testified, that Respon-
dent had no concern about her age.
Significant herein is the fact that during this period,
McKnight, as she uncontrovertedly testified, telephoned
Mrs. Ashley and asked about her status for the following
term. McKnight volunteered to Ashley on this occasion
that she was not a supporter of the Union. Ashley, inter
aba, replied to McKnight that if McKnight were not
"guilty," she would not be telephoning Ashley. McKnight
also testified that, after the March 7 meeting at which she
did not stand up for any of the three choices, she told Wick
that employees had a right to belong or not to belong to a
union if they so chose.
Slattery, who made out the three lists, admitted that he
had considered McKnight to be a union supporter,
although he did place her upon the maybe list. McKnight
was ultimately offered employment by Slattery late in
August and he told her that the Board had reconsidered;
nothing was said about her age and she accepted the offer.
According to Slattery, the offer of employment to
McKnight, as well as that to Poe, came on express
authorization from Ashley and Wick. Slattery also testified
that he did prefer a younger teacher, but that none of the
young applicants impressed him.
The speciousness of this reason is demonstrated by the
fact that Respondent now has in its employ, in addition to
McKnight, two teachers who are respectively 65 and 66
years of age. Indeed, this is highlighted by the fact that
complainant Henry Anderson, discussed below, retired
from the Phoenix Public School system, was hired by
Respondent in 1966 at the age of 67 and was told at the
time by Wick that his age was not a relevant factor. It may
be noted that Anderson, whose case is discussed below, as
well as McKnight, were both alert, articulate, and
manifestly intelligent witnesses. I find no substance to
Respondent's case.
4. Jerrold Howard
Howard has taught music and French at the school since
1967, has both a bachelor's and a master's degree, and was
a most poised witness. As with the rest of the complain-
ants, his contract was not renewed for the 1972-73 season.
He was elected treasurer of the Union and was one of
those who stood up in favor of the Union at the March 7
poll conducted by Hugh Slattery.
His work, according to Howard, was never observed by
any member of supervision and Hugh Slattery so admitted;
in addition, Slattery complimented him about a festival he
put on at the school in the 1971-72 term. It is also
noteworthy that at a meeting of union officials with Ashley
and Wick early in May of 1972, which Howard attended,
Ashley and Wick announced that they did not wish to see
the Union enter the scene. In addition, Howard was one of
several union officials who met in May with the board of
directors, including Ashley; at that time Ashley decreed
that she had received reports as to who was loyal and who
was not loyal, and that those who were not loyal should
quit the school. On May 22, Howard telephoned Wick
absolutely nothing to identify Poe with the conduct of Potter
10 It also so contended in the case of McKnight , treated below
JUDSON SCHOOL
about the prospects of employment for the ensuing
academic year, and Wick replied that Respondent did not
intend to rehire him.
Respondent has adduced some evidence that Howard
played in a band on some evenings at a local resort, this in
his spare time. This is summarily disposed of, because
there is no showing that this interfered with his discharge
of his duties in behalf of Respondent or that it was taken
up with him.
Howard was placed on the "maybe" list by Slattery, this
demonstrating the absence of absolute dissatisfaction with
him on the part of Respondent. Respondent has contended
that it contemplated that Mrs. Ruth Kuhl would inherit his
music courses. While it stresses that a female employee was
desired to take over the combined music classes in both
schools, its reasons do not stand up.ii And, while Slattery
contended that Howard was replaced because enrollment
in French classes was low, individual enrollment for the
1972-73 season in these classes was in excess of that for the
previous year. Respondent's case here lacks substance.
5. Michael McColgin
McColgin, with tenure of 4 years, had two degrees and
was appointed head of the English department by Hugh
Slattery. Prior thereto, the choice had been made by staff
election and, on this occasion, Slattery in effect told
McColgin that he was the best qualified person for the job.
His work, as he testified, was never criticized, he initiated
an honors program at the school, and was once told by
Miss Slattery that he was a "natural born teacher."
McColgin was initially secretary of the Union and later its
vice president. He stood up in favor of the Union when the
poll was taken in the dining room.
About a week or 10 days after the defeat of the Union in
the election. Howard, Gunkel and McColgin asked to meet
with President Wick about reemployment for the following
year. Present also were Ashley and another member of the
board, Margaret Ward. Ashley, as McColgin uncontrover-
tibly testified, pointed out on this occasion that she liked
"loyal employees" and that people who disliked working at
a place should quit. Gunkel pointedly asked whether
further employment would be offered to the union people
at the school and Ashley replied that she was under
instructions from her attorney to say nothing on this topic.
On June 5, Howard and McColgin called upon President
Wick. McColgin, as he uncontrovertedly testified, said that
he had been advised he was not to be rehired and asked the
reasons. Wick accused hum of turning in a story to a local
paper about the election to the effect that the election loss
would be protested. Wick went on to say that McColgin
had been associated with Potter who had caused the school
to receive bad publicity; that the school preferred teachers
who got along with other teachers; and that the schools did
not like "teachers who caused trouble."
McColgin was asked by Potter and Hughes to appear in
their behalf at a hearing on June 8 conducted by the
Employment Security Commission of the State of Arizona
and did testify therein.
681
Respondent has mounted a strong attack on McColgin.
In filling out a report on a student, this requested by the
school, he referred to him as "lover boy." But, he
uncontrovertedly testified that Miss Slattery, to whom he
submitted the report, agreed with him. During a period of
employment at another school, McColgin was asked to
resign for reasons not disclosed herein; according to
McColgin, the person seeking his resignation was later
discharged. But this bit of information did not come to the
attention of Hugh Slattery until after McColgin had been
denied employment and Slattery admitted putting McCol-
gin on the "no list" prior to learning about this aspect of
his prior employment.
Respondent has adverted to the fact that McColgin
smoked in the classroom contrary to school policy. But he
had done this for many months prior to the advent of the
Union and nothing was said about this. Indeed, Miss
Slattery treated the matter very lightly, pointing to heavy
smoking by other officials of the school.
There is also the claim that McColgin would bring his
two dogs to class, but, when he received notice to cease this
practice, he promptly complied. It is noteworthy that
President Wick had his dogs accompany him about the
campus and McColgin's dogs, it appears, remained outside
the classroom. That these reasons were insignificant is
demonstrated by the fact that, in his pretrial statement,
Hugh Slattery did not advance them.
Miss Slattery testified that McColgin made derogatory
remarks, beginning in November of 1971, about the school
and President Wick. But the core of all this was merely that
he considered Wick to be too permissive with the students.
Respondent attempts to explain McColgin's chairmanship
of the English department by claiming that it had made a
mistake in appointing him to this post. However, his
appointment was made after purported complaints about
him from other teachers. Moreover, there is no evidence
that this so-called mistake was ever rectified.
Slattery opined that McColgin's appearance and testimo-
ny at the State Employment Security hearing was an act of
disloyalty. He was then asked to point to anything in that
transcript which supported his claim. He attempted herein
to do so, but an inspection of McColgin's testimony does
not remotely support the charge. Indeed, McColgin, by so
doing, was engaged in a Section 7 protected concerted
activity for the benefit of fellow employees. See Advance
Carbon Products, Inc., 198 NLRB No. 106.
Respondent has also placed McColgin in the position of
using the word "amorality" about President Wick in
conversations with Miss Slattery. But the record makes
clear that this was not a reference to his personal life but
rather to his permissiveness in certain areas of the school.
Respondent is actually in a contradictory role herein. It
is a fact that McColgin, in testifying at the other hearing,
flatly disassociated himself from the organizational tech-
niques of teachers Potter and Hughes . Slattery contended
that he thought this was hypocritical on the part of
McColgin. On the other hand, as noted, it strove to twist
this into an act of disloyalty on the part of McColgm.
Further, there is testimony by Slattery that he and
11 1 deem it unnecessary herein to determine whether, as the General
Counsel contends, this was sexual discrimination in favor of the female sex
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McColgin differed on the operation of the honors program.
Yet, it was after this that Slattery appointed McColgin
chairman of the English department. And, as for President
Wick's attempt to place the onus upon McColgin for a
news release by Potter and Hughes, McColgin's testimony
is uncontroverted that he at no time ratified any news
distribution of this nature. The evidence preponderates in
favor of the General Counsel.
6. Vern Hackett
Vern Hackett has two degrees; taught social studies,
history, English, and journalism for Respondent from 1963
to 1969; and returned in 1971. His departure in 1969
apparently was voluntary on his part. Hackett's work was
never criticized and he was complimented several times by
Miss Slattery. Hackett was secretary of the Union, stood
for the Union at the poll, and wore a union button on his
coat. Following the election, Miss Slattery discussed with
him the basis for his support of the Union.
Around May 1, the union officials asked Wick about
future employment and they were told that they would not
be so advised before May 20, a date somewhat beyond the
time this was normally done. On May 20, according to
Hackett,12 he contacted Wick in behalf of himself and
McColgin. Wick replied that the two would not be rehired
because Respondent was uncertain as to its enrollment for
the following year, but refused to put this in writing.
Hackett uncontrovertedly testified, and I find, that at
about this time he asked Miss Slattery for a reference and
she replied that she would be happy to do so. In June,
Hackett and McColgin met with Wick. As found above,
Wick stated that their union activities had harmed the
school. In July, Hackett, as he uncontrovertedly testified,
again visited Wick and was told by the latter that Hackett
was a good teacher and that the failure to rehire him
stemmed from "this union thing."
Here, as well, Respondent's reasons are full of innuendos
and are not impressive. Moreover, Slattery admitted that
Hackett's attendance and testimony at the unemployment
compensation hearing, bearing upon the position of the
two complainants therein, Potter and Huges, "became a
decided factor in my judgment." When pressed, Slattery
was unable to find or specify what testimony in that
transcript by Hackett influenced him. I find that it was
Hackett's presence and availability to testify on an issue
that Respondent found distasteful that influenced Slattery.
See Advance Carbon Products, supra. 13
There is some razzle-dazzle at this point. Hackett was
originally placed upon the so-called maybe list; this was
because he was not deemed to be "loyal" due to the views
expressed by him concerning the moral tone of the school
much earlier in the school year. He was switched to the no
list after May 20 because of some expressed bitterness on
the part of Hackett's wife, a former teacher at Respondent,
toward the school.
12 Hackett , with much tenure, is manifestly well-educated , articulate,
and intelligent , his testimony has been credited in full.
13 This issue was, in essence , whether a state certificated teacher could
work at Respondent under uncertified administrators This is not before me
and is not passed upon
14 He made a similar concession as to complainants Arline and Stormont
Slattery also adverted to a comment by Hackett that he
would not send his own child to Respondent. There is
more, but in the final analysis, Slattery again admitted in
his pretrial affidavit that Hackett had testified at the state
hearing and, "This was the reason I recommended that he
not be rehired." In view of the extent of these admissions
and deficiencies, I deem it unnecessary to treat with several
other minor matters raised by Slattery.
7. Henry Anderson
Anderson retired as math teacher from the Phoenix
Union High School system after many years of service at
the high school level and was hired by Wick in 1966 at the
age of 67. Wick was then aware of his retirement and age
and it is undenied that Wick told him at the time that his
age was no drawback. During Slattery's first year, 1970-71,
he asked Anderson to serve as acting principal, stating that
Anderson was the only one with the proper qualifications.
This was in anticipation of the visitation by the accredita-
tion authorities in Tucson.
Anderson had on a number of occasions expressed
himself to teachers in the faculty lounge that they needed a
grievance committee. And, as noted, about 1 week after the
poll by Wick, the latter told Anderson that unionization
would result in the closing of the school due to parental
hostility. A few days after the close election, Anderson
went in to see Wick. He told Wick that there were many
differences between the two sides and urged that adjust-
ments be made both to satisfy the teachers as well as to
serve the best interests of the school; this drew no response
from Wick. Slattery admitted suspecting Anderson of
being a union supporter.14
At no time was Anderson's classroom ever visited for the
purpose of evaluating his teaching and he never received
any criticism.15 According to Hugh Slattery, he placed
Anderson on the no list because he concluded that his
effectiveness as a teacher had declined. This was allegedly
predicated upon a number of student complaints that they
could not hear or understand him, that his voice was
rambling, or that they wished to drop the course. The two
Slatterys concluded that while it is not unusual for students
to complain about teachers, this number was excessive. In
my observation of Anderson, he was quite alert and spoke
precisely with a resonant voice.
On May 23, Anderson called Wick about the following
year's employment. Wick responded that Anderson was
not be rehired because he had retired from another school
system; that Wick considered him to be a good teacher;
and that he regretted the decision by the board. Wick
added that "the next thing the Union will be after will be
hiring those overaged and retired teachers." i6
The core of Respondent's defense here that Anderson
was expendable as a retired and overaged teacher is torn
down by the fact that it rehired McKnight for the next year
and she fell into both these categories. Slattery's explana-
whose cases are discussed below.
1s Hugh Slattery's testimony is only that he had occasion to talk to
Anderson in the classroom three or four times.
16 Wick was a most vague and rambling witness in many areas. He had a
poor recollection and did not recall telling Anderson that the school had
decided not to employ formerly retired teachers; I credit Anderson herein.
C.
JUDSON SCHOOL
tion that Respondent wished a young teacher, could not
find one, and therefore did rehire McKnight does not
impress one.
Slattery presented some testimony that Anderson had so
much difficulty with his classes that it hired Poe to take on
one of his math classes. But the fact is, as the record well
demonstrates, that another teacher, Lamb, had left. Poe
preferred to come on as a fulltime teacher and this was
done by shifting some classes from Anderson as well as
from Howell to Poe. Actually, Respondent has overstated
its case , witnesses claiming that there were weekly
complaints about Anderson all year long as well as in the
previous school year, during which, as noted, he had been
asked to serve as acting principal. I see no substance to
Respondent's case.
8. Rose Marie Arline
Arline is a biology teacher with two degrees and over 6
years of experience. She was hired in January of 1971 in
midyear to replace a discharged teacher. She testified that
she received no criticism of her work and this is supported
by the fact that she was granted a $50 per month raise for
the 1971-72 year. In her school yearbook which was
handed out during the last week of school in May of 1972,
President Wick inscribed "Lots of luck in the future to a
good biology teacher." 17
Arline joined the Union, stood for it at the March 7 poll
and, as noted, Slattery admitted he considered her a union
supporter. Within a few days after May 20, she telephoned
Wick and asked if she would be teaching her two subjects
of earth science and biology in the coming year. He
replied, according to Arline, that she was a fine teacher but
that the board had decided not to rehire her. Wick testified
herein that she was on the list not to return because she
had a class disciplinary problem and was an ineffective
teacher. He never previously discussed this with Arline,
adding that this area was one for the headmaster.
Slattery admitted that other teachers had disciplinary
problems. He recalled the most serious one involving
Arline as taking place in the fall of 1972 when five students
came in together and complained about her, claiming that
this continued through the year. While Slattery contended
that he had discussed this disciplinary problem with her in
class on three separate occasions, the last time, on his
version, was in January of 1972. And, Arline's testimony
discloses that this stemmed from her suggestion that the
curriculum be changed and that new textbooks be ordered.
It is also noteworthy that Arline attended the state hearing
in the presence of Respondent's officials, although she was
not called upon to testify.
Also, while Respondent contended that a number of
students dropped her course or courses, there also were
additions to these courses, surely a normal procedure.
Indeed, Respondent's accountant, Benjamin Pomeroy,
who was testifying primarily in other areas, conceded that
there had not been an excessive withdrawal rate of students
in the 1971-72 year.
11 While this is not the strongest item of evidence, Wick, had he believed
otherwise, could have stopped after the word "future "
18 Corporal punishment is permitted as one of several alternatives given
to the student when discipline is warranted.
683
9. Hugh Stormont
The final case herein, that of Hugh Stormont, presents
the problem that he did not testify due to his absence on a
trip or temporary residence abroad. Stormont had been an
eighth grade teacher for some 8 to 10 years at Respondent
and was head of the lower school. He stood up for the
Union at the March 7 poll and attended meetings of union
officers with Respondent's board of directors. Indeed,
Stormont, to Slattery's knowledge, was the observer in
behalf of the Union at the April election. He admittedly
was placed on the no list and not rehired for the following
school year.
Slattery gave his reasons herein for placing Stormont on
the no list and did display a propensity for overstatement.
Thus, he claimed that Stormont demonstrated "extremely
erratic, emotional behavior" because several times during
the school year he had "literally dragged" students into
Slattery's or Wick's office for discipline. When questioned
further on this topic, Slattery changed this to taking the
student by the arm "and pull them along which is
sometimes necessary." He also admitted that this could
involve taking a boy by the arm "and [he] walked him
into" the office. Slattery noted that the boys were
frequently unwilling to go to his office on such occasions.
On another occasion, Stormont allegedly slapped a
student with his hand.18 The boy's mother learned of this
and immediately wished to withdraw him from the school
and send him to another. The matter was resolved
amicably and the boy indeed was returned to Stormont's
class where Stormont teaches all eighth grade subjects.
There was no discipline of Stormont who found it
necessary thereafter to bring the same boy to Slattery for
discipline on several occasions. According to Wick, the boy
had been unruly at the dining table on the key occasion.
There is some evidence that Stormont learned that a
teacher of Spanish at the school from Central America, a
Mr. Ruiz, received a higher salary than Stormont.
According to Slattery, and Ruiz did not testify herein
although there is no claim of his unavailability, Stormont
expressed the view to Ruiz on one occasion that a
noncitizen should not be paid more than Stormont who
had fought for his country.19
Also, in the fall of 1971, according to Slattery, Stormont
had complained to him about a change in a lower school
gym class which was scheduled without consulting him as
head of the lower school; this does not appear to be a
matter of any great moment. While the case of Stormont
would perhaps have been strengthened by his testimony, I
am convinced on a strong preponderance of the evidence
herein that it falls into a pattern with the other eight for the
reasons stated above and below. The Pearson Bros.
Company, supra.
C. Analysis and Conclusions
A consideration of the foregoing, in my judgment,
warrants the conclusion that little need be added. Respon-
ie Slattery termed this as a "verbal assault" Stormont also allegedly
made some unspecified remarks of a "personal nature" to Ruiz, as reported
by the latter to Slattery.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent was unexpectedly confronted with a union organiza-
tional campaign, a matter of first impression, and it reacted
strongly. Its hostility to the Union is well demonstrated by
the statements of Wick and Ashley. Perhaps as good an
indication as any of Respondent's true purpose is Wick's
statement to Gunkel on or about May 20 that Respondent
did not want union members at the school for the next
school year.
Ashley, manifestly the real power behind the school, and
a most hesitant witness, was concerned over the advent of
the Union, and admitted that the instructions from the
board of directors to review the qualifications of the
teaching staff were unusual. She conceded that this
unusual circumstance resulted from the election, and also
that in prior years there had been no need to go over the
qualifications of the teachers.
And, as heretofore noted, she admitted that in consider-
ing whether or not to retain teachers for the 1972-73 year,
"We [Ashley and Slattery] must have talked about the
Union, of course, but I can't remember what we said."
Permeating Ashley's attitude was her view that anyone not
happy with working conditions should quit, as she told
McColgin, a ploy which manifestly would have spared the
school the task of terminating what it deemed disloyal
teachers.
Respondent has stressed its allegedly bleak economic
picture, but, as its accountant conceded, Respondent last
had an excessive withdrawal rate of students in 1969-70
and this was not true in the 1971-72 term. And, the fact
that the corps of teachers is now larger in number in great
measure undercuts this claim, although there apparently is
at the moment a small savings in teaching salaries,
presumably due to lower entrance salaries of the new
teachers.
As pointed out, the alleged acts of misconduct or
unsatisfactory performance are either ancient or do not
stand up. The General Counsel further notes that some of
them, on their face, would not be contrary to Respondent's
announced policy of maximum freedom and independence
for teachers, unlike the public schools.
There is evidence that teachers have been terminated in
midterm for cause, and, with an admitted surplus in the
industry according to Slattery, a wrongdoer could easily
have been replaced in the normal course of events.
Furthermore, the basis for retention of teachers for the
1972-73 term conspicuously ignores tenure or academic
standing, manifestly two most vital criteria.
On a strong preponderance of the evidence, I find that
the mass termination of so large a percentage of union
supporters or those believed to be such, following the most
narrow defeat of the Union in the election, stems from a
calculated effort to prevent the Union from winning an
election again and to remove the nucleus of its support
from the school. 1 find that by the foregoing Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.20
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Judson School is an employer within the
meaning of Section 2(2) of the Act.
2. American Federation of Teachers, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discharging Rose Marie Arline, Robert M.
Gunkel; Vern Hackett, Jerrold Howard, Michael McCol-
gin, Elmer Stormont, John Poe, Meta McKnight, and
Henry Anderson for engaging in union and concerted
activities, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) of the Act.
4. By the foregoing; by questioning employees concern-
ing their union activities; by asking an employee for the
names of union members; by announcing possible reduc-
tions in staff, closing of the school and longer working
hours in the event of unionization; and by polling
employees as to their union adherence without assurances
against reprisals, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that Respondent has violated Section
8(a)(3) and (1) of the Act by discriminatorily discharging
the nine complainants named herein. I shall, therefore,
recommend that Respondent offer all of them, except
Meta McKnight who has been reinstated and John Poe
who was unconditionally offered and who in effect
declined reemployment, immediate and full reinstatement
to their former positions or, if those positions no longer
exist, to substantially equivalent positions, without preju-
dice to seniority or other rights and privileges. See The
Chase National Bank of the City of New York, San Juan,
Puerto Rico Branch, 65 NLRB 827.
I shall further recommend that Respondent make them
whole for any loss of earnings they may have suffered as a
result of discharge by payment of a sum of money equal to
that each normally would have earned from said date to
the date of Respondent's offer of reinstatement, less net
earnings, with backpay and interest thereon to be comput-
ed in the manner prescribed by the Board in F. W.
Woolworth Co., 90 NLRB289, and Isis Plumbing & Heating
Co., 138 NLRB 716. While McKnight and Poe are
included here, it would seem that no backpay is due them;
in that event, none is payable in their cases.
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:
20 The General Counsel amended the complaint at the hearing to allege a dation until such time as it ascertained how he would testify in this case In
violation of Section 8(a)(4) with respect to McColgin. The general effect of view of the foregoing 'findings, I deem it unnecessary to pass upon this
the amendment was that Respondent in September withheld a recommen- allegation as the remedy would be identical.
JUDSON SCHOOL 685
ORDER 21
Respondent, The Judson School, Phoenix, Arizona, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activity on behalf of
American Federation of Teachers, AFL-CIO, or any other
labor organization of its employees, by discriminating in
regard to hire or tenure of employment, or any term or
condition thereof.
(b) Questioning teachers concerning their union activi-
ties; asking employees for the names of union members;
announcing possible reductions in staff, closing of the
school and longer working hours in the event of unioniza-
tion; or polling employees as to their union adherence
without assurances against reprisals.
(c) In any like or related manner interfering with,
restraining or coercing employees in the exercise of the
right to self-organization, to join or assist the above-named
or any other labor organization, to bargain collectively
through representatives of their own choosing, or to engage
in concerted activities for the purpose of collective-bar-
gaining or other mutual aid or protection.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer all nine complainants except Meta McKnight
and John Poe immediate and full reinstatement to their
former jobs or, if these jobs no longer exist, to substantially
equivalent positions, without prejudice to seniority or other
rights and privileges, and make all nine whole for any loss
of pay suffered by reason of the discrimination against
them in the manner provided above in the section entitled
"The Remedy."
(b) Preserve and make available to the National Labor
Relations Board and its agents, upon request, for examina-
tion and copying, all payroll records, social security
payment records, timecards, personnel records and reports,
and all other records necessary to determine the amount of
backpay due under the terms of this Order.
(c) Post at its school at Phoenix, Arizona, copies of the
notice attached hereto and marked "Appendix." 22 Copies
of said notice, on forms provided by the Regional Director
for Region 28 shall, after being duly signed by Respondent,
be posted by it immediately upon receipt thereof and
maintained for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced or covered by any other material.
(d) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
21 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
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.
22 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Rose Marie Arline, Robert M.
Gunkel, Vern Hackett, Jerrold Howard, Michael
McColgin, Elmer Stormont, and Henry Anderson
immediate and full reinstatement to their former
positions, or, if these positions no longer exist, to
substantially equivalent positions without prejudice to
seniority and other rights and privileges, and we will
make all of them plus Meta McKnight and John Poe
whole for any loss of wages suffered as a result of our
discrimination against them.
WE WILL NOT discourage membership in or activity
in behalf of American Federation of Teachers,
AFL-CIO, or any other labor organization of our
employees, by discharging employees, or by discrimi-
nating in any manner in regard to hire or tenure of
employment or any term or condition thereof.
WE WILL NOT question teachers concerning their
union activities; ask employees for the names of union
members; announce possible reductions in staff,
closing of our school, or longer working hours in the
event of unionization; or poll employees as to their
union adherence without assurances against reprisals.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise'of the
right to self-organization, to join or assist the above-
named or any other labor organization, to bargain
collectively through representatives of their own choos-
ing, or to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or
protection.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named or any other labor organization.
THE JUDSON SCHOOL
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 7011
Federal Building and U. S. Courthouse-P.O. Box 2146
500 Gold Avenue S.W., Albuquerque, New Mexico 87101,
Telephone 505-843-2555.