The Lorge School

National Labor Relations Board - Administrative Judge Opinions

Aug 3, 2007

02-CA-037967 (N.L.R.B. Aug. 3, 2007)

JD(NY)–36–07
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
THE LORGE SCHOOL
and Case No. 2-CA-37967
LINDA COOPERMAN, An Individual
Susannah Z. Ringel, Esq., Counsel for
the General Counsel
Daniel Silverman, Esq., Counsel
for the Respondent
Antonio M. Cavallaro, Esq., Counsel
for the Union
DECISION
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case in New York City on
four days in May and June 2007. The charge and the amended charge were filed on November
8 and December 19, 2006.
The Complaint, which was issued on March 30, 2007, alleged that the Respondent
discharged Linda Cooperman on August 1, 2006, because she refused to commit unfair labor
practices. Specifically, the allegation, as fleshed out at the opening of the hearing, was that the
Respondent’s Executive Director, Deborah Kasner instructed Cooperman to make working
conditions so adverse to the Union’s representatives, Chris Piccigallo and James Rouse, that
they would quit their employment. 1
Based on the evidence as a whole, including my observation of the demeanor of the
witnesses and after consideration of the Briefs filed, I hereby make the following findings and
conclusions.
Findings and Conclusions
I. Jurisdiction

1 The charge and the amended charge made it abundantly clear that the allegation was that the
Respondent discharged Cooperman because it wanted her to create a “hostile work environment” against
union officials and it wanted to her to discharge or discipline union representatives. The Respondent
moved to dismiss the Complaint because it was too vague. I denied this Motion because the Respondent
was clearly on notice as to the nature of the allegations made against it.
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The Complaint alleges and the Answer admits that the Respondent is an employer
engaged in commerce within the meaning of Sections 2(2), (6) and (7) of the Act.
II. Alleged Unfair Labor Practices
The Lorge School is a publicly funded private school. It is located in a five story building
in Manhattan and services students from kindergarten to the 12th grade. These are students
who have emotional or cogitative difficulties, or both. There are, on average, between 70 to 90
students in the school and the classrooms tend to have 8 to 10 students with a teacher and a
teacher assistant assigned to each classroom. In addition, the school employees 4 social
workers and has staff employed to provide security functions.
Reporting to a Board of Trustees, Deborah Kasner is the Executive Director. She had
previously been employed in a managerial position at the school and was promoted to the
position of Executive Director after competing for that position with various other individuals.
Kasner took over the position from Michael Pagliuca who retired. She had started at the Lorge
School as a social worker and her training is in social work. Also recently hired as the Contract
Administrator and Clinical Supervisor was David Osman. This individual had no previous
experience at the school and was, during the summer of 2006, a newcomer. In performing his
duties, Osman took over that job from Kasner. He was to be responsible for supervising the
school’s social workers.
Linda Cooperman, the Charging Party, was hired on July 10, 2006 as the Instructional
Supervisor and she replaced Dr. Elaine Dawes who was about to retire. This job was to be in
charge of academic instruction and in this capacity she was to be the direct supervisor of the
teachers. I note that Cooperman was offered this job after she had applied for the top job that
had been given to Kasner. Cooperman had no prior experience at the Lorge School and
although she may have had some experience in public schools dealing with difficult children, her
background was as a teacher and not a social worker. The Chairman of the Board of Trustees is
Martha Bernard.
I should note that once Kasner, Osman and Cooperman were in place, they were the
three highest officials at the school. Additionally, Shawn Bradley and Cassandra Pierre were
respectively the Dean of Students and Assistant Dean of Students. Their jobs were to
supervise a staff of six crisis interventionists.
Compounding this entire situation, where a whole new managerial staff had been
assembled, the State of New York had recently conducted an audit of the school and by July
2006, the managers were aware that there was a good deal of criticism regarding the school’s
programs. As noted by Kasner, the State report was potentially horrendous because if the
school lost its state funding it would be out of business.
In my opinion, all of the people involved in this case were essentially well intentioned
individuals who were trying to do a good job in difficult circumstances.
Since 2000, the Lorge School has recognized the United Federation of Teachers in the
following unit:
All full-time and regular part-time speech therapists/teachers, school
psychologists, social workers, teachers, teaching assistants, crisis
interventionists, secretaries and maintenance workers, excluding all other
employees, guards and supervisors as defined in the Act.
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At the time of the events herein, there was a collective bargaining agreement that ran
from July 1, 2005 to June 30, 2008. That agreement contained grievance and arbitration
clauses and it appears from this record that the Union had been fairly aggressive in filing
grievances over the years. The UFT Chapter Leader has been Christopher Piccigallo and
James Rouse has been the union delegate. Both teachers had been involved in the organizing
campaign and after that campaign was successful, they have both been directly involved in
contract negotiations and grievance handling.
The General Counsel contends that there has been a long-standing history of animus by
the school’s administrators against the Union. But the evidence of alleged conduct before 2006
to support this contention is pretty meager and involved a largely different cast of managers.
For example, an employee named Edwin Blowe testified that in June 2006, when he received a
warning and was asked by Pagliuca if he wanted union representation, he responded that he
did not “deal with the union.” (Blowe asserted that he had some kind of dispute with the union
representatives). Blowe testified that Pagliuca then asked why he didn’t try to get rid of the
union and suggested that if he could get 30% of the staff to sign some kind of petition he could
accomplish that result. Nevertheless, the evidence on balance, merely indicates that when
Blowe stated his displeasure with the Union, he probably was told about the type of procedures
that could be followed to get the NLRB to run another election. 2
Nevertheless, the evidence shows that when Kasner took over as Executive Director
and after Osman was hired as the Contract Administrator, the climate between management
and the Union changed for the worse.
In July 2006, Rouse made a request to Kasner that she provide contact information for
all newly hired bargaining unit employees so that he could provide them with information
regarding the State’s certification requirements. (Teachers ultimately have to be certified and if
not already certified need to have a plan to become certified. The contract at Article 7, states
that the Employer and the Union are equally responsible for bringing certification information to
the attention of teachers). Notwithstanding this request for presumptively relevant information,
Kasner refused to give Rouse the information. And although the information was ultimately
provided, it only happened after Rouse told Kasner that refusing would be a violation of the
NLRA and after the Union sent a letter repeating the request on July 27, 2006.
Cooperman testified that on or about July 12 or 13, 2006, while she was talking to
Kasner in her office, the latter received a phone call wherein she was told about two grievances
that had been filed on behalf of the two janitors. According to Cooperman, Kasner told her that
the previous administration, (Mr. Pagliuca), had been “soft” on the teachers and had allowed
them to control the school. Cooperman asserts that Kasner stated that the previous
administrator had made decisions with a view toward avoiding grievances and that she,
(Kasner), was going to “show them who’s boss.”
Cooperman testified that later in the day, Kasner received a phone call from Conchetta
Diaz, a teaching assistant and that after the call ended, Kasner said that Diaz was crying
because Rouse had told her she would be fired at the end of the year unless she got her

2 Rouse testified that in 2003, he had recommended that a friend be hired and that the Dean of
Students told him that she was not hiring him because of “you and your union crap.” Apart from being
remote in time, Rouse conceded that when he complained to Pagliuca, then the Executive Director, the
latter agreed to hire his friend.
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certification. According to Cooperman, Kasner told her that Rouse was acting outside of his
authority and that she also complained that Rouse had tried to deliver some letter that he wrote
directing employees to a web site relating to teacher certifications. 3 Cooperman testified that
Kasner told her she shouldn’t trust Rouse; that he wanted their jobs, and that he had created a
lot of trouble for the school. According to Cooperman, during this same conversation, Kasner
told her that she thought that Chris Piccigallo was an average teacher and that he was fulfilling
his ambition to be a school administrator by being a union leader.
According to Cooperman, in or about the third week of July, she was called into Kasner’s
office alone and was told; “I want you to make it difficult for James and Chris to stay here.”
Cooperman testified that she asked Kasner if she wanted her to create a hostile work
environment for these two teachers and that Kasner said “yes.” According to Cooperman, she
told Kasner that she could not do this to which Kasner replied that she should be a team player
and take direction from the team leader. Cooperman testified that Kasner gave her a copy of
the union contract and stated that she “could see it happening all over again.”
Kasner denied the assertions by Cooperman, particularly the assertion that she asked
Cooperman to make it difficult for Rouse and Piccigallo to continue to work at the school. As to
Rouse, Kasner states that she told Cooperman that Rouse needed close supervision, (although
conceding that he had received very good performance evaluations). As to Piccigallo, Kasner
testified that he was one of the better teachers. She denied that she ever got fed up or annoyed
with either man because of the way that they handled contract grievances. However, in
testifying about an obscure incident involving the availability of a student’s IEP, Kasner admits
that she might have told Cooperman not to take Piccigallo at face value.
Although there were some differences in the testimony given by the parties’ witnesses,
there also was a great deal that was agreed upon. However, to the extent that there were
crucial differences between Cooperman and Kasner, I am going to credit Cooperman’s account.
I thought that Cooperman’s testimony was detailed, consistent and straightforward. To the
extent possible, her testimony was corroborated by other witnesses. Also, I was favorably
impressed with her testimony on demeanor grounds.
During the brief period that Cooperman worked at the school, she developed a plan to
departmentalize the school’s classes so that the children from the intermediate and high school
grades would go from classroom to classroom and where the teachers would specialize in
particular subjects. The evidence is that when Cooperman talked about this idea to Dr. Dawes,
the latter was skeptical because of the special needs of the children, which might be disrupted
by too much movement from class to class. 4 There is also no doubt that Kasner, when
presented with this idea, was also skeptical and was reluctant to implement it.
I must say that with respect to the idea of departmentalization, I do not make any
judgment as to which point of view is better. I only note that this was a matter of real dispute
between Cooperman and Kasner.

3 This would have been protected concerted activity as it was consistent with the terms of the
collective bargaining agreement.
4 Dr. Dawes also testified that she found Cooperman to be self-righteous and overbearing. That may
be, but her personal interactions with and opinion of Cooperman had nothing whatsoever to do with
Kasner’s decision to fire Cooperman.
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As noted above, Chris Piccigallo made a written request for relevant information on July
27, 2006.
On Friday, July 28, 2006, there was a management meeting attended by Kasner,
Cooperman, Osman and Pierre. Cooperman’s recollection of this meeting was that she raised
an issue about IEPs and when she mentioned Piccigallo’s name, Osman got red in the face and
said that if Piccigallo was there he would punch him out. Cooperman states that when she
asked what this was all about, Kasner said that there had been a grievance meeting involving
the janitors and that Rouse and Piccigallo had walked out because they refused to have the
meeting recorded. Cooperman also testified that Kasner said that there had been an argument
because Piccigallo had refused to follow Osman’s request to take a visiting student into his
class and that he viewed this as insubordination. According to Cooperman, after explaining that
she, as the teachers’ supervisor, would make the assignment if a new child came to visit the
school, “they” said that the union leadership was a problem at the school. Cooperman testified:
I'm feeling very uncomfortable because, as the only licensed administrator,
you're asking me to go after these guys and I'm not comfortable doing that.
And I said that the teachers have to like me. And then, I thought better of the
word "like," and I said, "no, they have to trust me." And then, Ms. Pierre said,
"No, they have to like you, but you still don't understand. Chris and James
have caused a lot of problems at the school, and they really have to go." 5
At the conclusion of the meeting, Kasner announced that there would be another
meeting on Monday, July 31, and that Sandra Kahn, a consultant to the Board of Trustees
would be present. 6
According to Cooperman, after the meeting ended, she went into Osman’s office and
asked him why he was so angry. She testified that he said that they were being tested as new
administrators and that if Kasner said that they had to go, they had to go. Cooperman testified
that she told Osman about the State report and said that she didn’t know how they were going
to make progress if all they did at the management meetings was talk about Chris Piccigallo.
She also testified that she told Osman that Kasner was not licensed as a school administrator
and that she was limited to spending only 25% of her time doing administrative work. At this
point, according to Cooperman, they weren’t getting anywhere in the conversation and she left.
On Monday morning, (July 31), Kasner called Cooperman and Osman into her office and
asked if Cooperman had told Osman that she, (Kasner), was incompetent. (Obviously, Osman
had related the conversation that he had with Cooperman on Friday afternoon). Cooperman
testified that she denied this assertion and stated that she had merely told Osman that Kasner
was not certified to spend all of her time on administrative duties. At this point, according to
Cooperman, Kasner asked Osman to leave and said that the changes that Cooperman had
been proposing were not going to happen. (The proposed departmentalization plan).
Cooperman states that Kasner ended by saying; “Does that make you want to leave?”
On Tuesday, August 1, 2006 at around 3:00 p.m., there was a second management
meeting. This was attended by Cooperman, Kasner, Osman, Bradley, Pierre and Dr. Kahn.
Cooperman testified that after an initial discussion about reinstating class reviews, Kasner said
that there was a member of the leadership team who was willing to take her leadership on

5 Ms. Pierre was not called as a witness.
6 The transcript should be corrected to reflect the correct spelling of Dr. Kahn.
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everything except for the two union leaders. Cooperman testified that as she understood that
Kasner was talking about her, she responded by saying that she felt very uncomfortable about
her refusal to create a hostile work environment and not being considered a team player on that
account. According to Cooperman, Dr. Kahn said that this is not just what Kasner wanted; that
Kasner worked for the Board of Directors and that the union leadership had not only caused
trouble for the school but also had caused a great deal of legal expense. Cooperman testified
that Kahn stated that the two union leaders had to go and that her refusal to do this was going
to be creating a problem for Kasner.
Cooperman’s testimony regarding the August 1 meeting was essentially denied by Dr.
Kahn, Osman and Kasner. But I do note that Dr. Kahn testified that at this or at the earlier
management meeting, she recalled that Cooperman, in the context of a discussion about
Rouse, stated that she didn’t want to be put in the position of creating any kind of hostile
environment for him.7
Later that day, Cooperman was called into Kasner’s office, and in the presence of the
bookkeeper, was told that she was fired.
On August 3, 2006, Cooperman sent a letter Howard Johnson, a trustee, setting forth
her position regarding her discharge. This was well before she filed any charge with the NLRB
and before she sought any legal counsel. This stated inter alia;
As you must already know, Deborah fired me yesterday, August 1, because
of personal differences. First, I am writing to express the sadness I feel
about not being given the opportunity to achieve the educational objectives
for the school that I so clearly outlined during my interviews with the Board.
Second, I am asking you to explain why I was invited to work for an
individual whose personal goals are to perpetuate the divide between the
clinicians and educators and whose stated mission is to transform Lorge
into a day treatment center for emotionally disturbed children.
From the outset, Deborah expressed great hostility toward certain members
of the teaching staff and asked me to create a hostile work environment
that would cause these individuals to leave. I tried to explain to Deborah
that I was uncomfortable with executing a vendetta, and as an educational
administrator I could only promote the dismissal of teachers on the basis of
their incompetence, not their political views. Upon hearing this, Deborah
assumed that I was not a team player. She viewed me as insubordinate
and continued to create an issue over the matter to the point where she
brought pressure on me to resign. Though I resisted and tried to be
conciliatory, she was firm in her attitude, which resulted in her firing me
without warning or notice.
The General Counsel presented Edwin Blowe who testified that a few days after
Cooperman had been fired, he overheard a conversation between Kasner and Martha
Bernard that was occurring in an office adjacent to where he was working. Blowe testified that
he overheard Kasner saying that Cooperman didn’t want to go by her rules and that she
wanted to do a lot of things for the school that couldn’t happen. Blowe further testified, (after

7 Since there were at least two leadership meetings, it is entirely possible that people may have
conflated the events that took place on two separate occasions.
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some leading), that he heard Kasner say that she wanted to get rid of her headaches and that
her headaches were Rouse and Piccigallo. 8
I note that Blowe’s testimony also tended to corroborate the Respondent’s argument
that there were other issues that were the subject of a non-union related dispute between
Cooperman and Kasner. Thus, Blowe testified that he heard Kasner say that Cooperman
wanted to bring the library up from the basement and that this would cost too much money.
The General Counsel offered further evidence of animus towards Rouse and Piccigallo
as union representatives. This was in the form of testimony regarding transactions that
occurred after Cooperman’s discharge.
In September 2006, there were two grievances filed, one of which involved a directive
by Osman to the social workers that they call his cell phone if they were going to be absent. It
seems that before the grievance meeting was held, Osman discussed the matter with the
social workers outside the presence of the union representatives and that these employees
apparently agreed that the new policy was reasonable. When the grievance meeting was
held, Rouse and Piccigallo objected to the fact that Osman had discussed the grievance with
the individuals without the union being notified or given an opportunity to be involved. 9
Osman for his part, defended his action of holding a staff meeting to discuss the cell phone
policy and opined that he was not obligated to deal with Piccigallo or Rouse about the matter.
At one point, Osman got angry and asked if he was being accused of doing anything illegal.
Rouse responded that what he had done was a violation of the contract whereupon Osman
demanded that Rouse show him what in the contract was being violated. At that point,
Osman threw the contract at Rouse and hit him with it. Kasner adjourned the meeting.
On May 6, 2007, Rouse and Piccigallo had a meeting with Kasner about a grievance
that they filed. This involved a claim for health insurance for a substitute teacher hired by
Kasner who the union representatives construed as being in the bargaining unit and therefore
covered by the contract. At the meeting, Kasner stated her opinion that she needed to hire a
teacher on a temporary basis; that the contract did not prohibit this; and that because this
person was not a permanent employee she was not entitled to contract benefits. As the
argument escalated, Kasner got angrier and angrier. She stated:

8 Blowe had been subpoenaed by the General Counsel and had failed to appear. Nevertheless, he
subsequently agreed to testify voluntarily and showed up on June 13, 2007. The General Counsel
suggests that his reluctance to testify was caused by the fact that his girlfriend was still employed at the
school. As noted above, he testified about some conversations that he had with the previous Executive
Director and I concluded that those were essentially innocent. Blowe was also pressed by the General
Counsel to testify about some additional statements made by Kasner and Bernard during the overheard
conversation, by having him repeat what was contained in his pre-trial affidavit. But I will not rely on these
additional alleged statements because I don’t think he had a present memory of these statements and his
affidavit cannot be construed as a past recollection recorded. Nor, despite his reluctance to testify, do I
conclude that he was an adverse witness, whose affidavit could be used to prove another alleged
conversation that he had with some woman whose name he didn’t know but whom he thought was on the
Board of Trustees.
9 Section 9(a) in pertinent part states: “That any individual employee or a group of employees shall
have the right at any time to present grievances to their employer and to have such grievances adjusted,
without the intervention of the bargaining representative, as long as the adjustment is not inconsistent
with the terms of a collective-bargaining contract or agreement then in effect.”
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Kasner: You know what? You know what I’m going to do? You guys want to push
this? I won’t have any temporary teachers, and you guys can figure out how
you’re going to cover the classes.
Piccigallo: Deborah, but that’s not the issue.
Kasner: You know what? I’m not discussing it any further. I will tell this lady
we’re not going to use her anymore and you guys, the two of you, can figure out
how we’re going to cover those classes. All right?
* * *
Kasner: I’m not discussing it. I’m not discussing it any further. Now, in terms of
this one, you’re right… And you know what? My intention was to keep this school
cleaner. I wanted to change hours to keep the school cleaner. You guys are
getting in the way of my doing things to improve the running of the school, and I
resent it and I’m sick of it.
Rouse: That’s very unfair.
Kasner: I’m absolutely sick of it.
Rouse: Very unfair.
Kasner: I don’t want to hear from you. 10
Rouse testified that in April 2007, his supervisor Barry Malloy told him that he
should be careful about handing out union cards to new employees because he was
being watched and that what Rouse was doing might be misunderstood. Rouse told
Malloy that he didn’t understand how giving out union cards to new members could be
misunderstood and that Malloy responded by saying something like; “I don’t think the
new members are going to complain, but it can be questioned.”
Rouse also testified that there was an incident in early May 2007, involving what
he terms as a false accusation by Osman that he had left the building during working
time without permission. 11 Rouse testified that during a conversation he had with Malloy
about this incident, he told Malloy that he was being harassed and that this was not the
first time that Osman had put something false in writing about Piccigallo and himself.
According to Rouse, Malloy said that he sees that Osman is doing this to him; that he

10 Rouse made a number of surreptitious audio recordings including the conversations that occurred
during the grievance meetings on September 26, 2006 and May 6, 2007. At the time that the General
Counsel offered these recordings into evidence, the Respondent objected based on the fact that the
recordings were surreptitiously made. I overruled that objection, assuming that if the recordings were not
doctored, they would constitute the most reliable means of ascertaining what took place at those
meetings. I later discovered that the Board, as a matter of policy, precludes the introduction of secret
recordings made at negotiation sessions. Triple A Fire Protection, 315 NLRB 409, 411 (1994).
Nevertheless, having taken them in as exhibits and having read the transcripts, it is impossible to close
that door after it was opened. I can’t order myself to disremember the evidence that was received.
11 As Rouse teaches music and has the students visit his classroom, he doesn’t have to be in his
classroom when students are not scheduled to be there. He testified that he has, for a long time and
without prior complaint, smoked cigarettes outside the buildings when he had no classes.
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sees it as harassment; and that he has tried to deal with Osman about this and has
gotten nowhere. Rouse testified that he told Malloy that he really needed him to protect
him from Osman’s constant harassment and that he needed Malloy’s guidance. He
states that Malloy responded by saying; “Look avoid the guy as much as possible, but
the harassment is not going to stop.” According to Rouse, Malloy said that it was
deliberate; that it was being directed by Kasner; and that it might stop if Kasner thought
that he was going to resign. According to Rouse, Malloy told him that Kasner seemed to
be angrier lately and that she was angry about “this NLRB thing.”
Malloy, who was called as a witness by the Respondent, was not asked about
and did not deny either of the conversations reported by Rouse. His entire testimony
was that when he was hired, (after Cooperman was fired), he was never asked to harass
or create a hostile work environment for Rouse and Piccigallo.
Kasner testified that the reason that she decided to discharge Cooperman was
because Cooperman was not, in her opinion, willing to follow Kasner’s direction. The
main issue was the question of departmentalization and according to Kasner, she did not
agree with Cooperman’s proposal that the school should commence this program at the
start of the new school year. She testified that the students, particularly those in the
middle grades, would not adapt well to going from classroom to classroom during the
course of the day. But, according to Kasner, it was not just the disagreement about
policy, it was the manner in which Cooperman went behind her back and pushed for her
proposal. In this regard, the Respondent points to Cooperman’s private conversation
with Osman on Friday, July 28, which when reported to Kasner, seems to have been
interpreted by her as an accusation by Cooperman that Kasner was not competent to be
the Executive Director. Kasner also testified that at one point, Cooperman stated that
unless she was allowed to implement her ideas about departmentalization, she was
going to go to the State authorities and report the matter to them.
III. Analysis
What I want to make clear is that there was a progression from an agreement
to work together, to a conflict, to a breakdown, to the point where Mrs.
Cooperman made it clear that, for right or wrong, she was not going to take
direction from me.
I have no doubt that this testimony by Kasner is true. But it can be interpreted as being
favorable to either the General Counsel or the Respondent. Kasner believed that Cooperman
had made it clear that she was not going to take direction from her. But the question here is
what was the direction that Kasner wanted Cooperman to follow?
There may have been a variety of factors that caused Kasner to discharge
Cooperman, all relating to her belief that Cooperman would not take direction from her. The
evidence shows that Kasner and Cooperman disagreed about a significant policy matter;
namely the question of departmentalization. The evidence shows that Kasner might even
have come to the opinion, (probably unjustified), that Cooperman was going behind her back
and seeking to undermine her authority. Moreover, the initial starting point of these two
individuals was precarious because Cooperman had originally applied for the same job that
Kasner had just obtained. And human nature being what it is, I can understand why Kasner
would be suspicious of Cooperman and view her as a potential rival. Finally, there was it
seems to me, a difference in attitude and approach given that Cooperman had an academic
background and Kasner had a social work background.
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But notwithstanding all of the above, I cannot escape the conclusion that the proximate
and predominant reason for Kasner’s decision to discharge Cooperman was the latter’s
unwillingness to make life difficult for and force the resignations of the two union delegates,
Rouse and Piccigallo.
The credited evidence in this case shows that when Kasner took over the job of the
Executive Director, she sought to be a strong manager. The evidence convinces me that
Kasner believed that the Union stood in the way of allowing her to operate the school in an
efficient manner and that the activity of the union’s representatives in processing grievances,
would be a costly impediment to running the school that way she liked. In this regard, I credit
Cooperman’s testimony that on July 12 or 13, 2006, as two grievances were being reported to
Kasner, the latter said that the previous administration had been “soft” on the teachers; had
allowed them to control the school; had made decisions with a view to avoiding grievances;
and that she (Kasner) was going to “show them who’s boss.”
This attitude was further evidenced by the fact that Kasner refused two union requests
for the names and addresses of new hires and only furnished them after Rouse told her that
the refusal was a violation of the NLRA and after Piccigallo made a written request for this
information on July 27, 2008.
I credit the testimony of Cooperman regarding the management meeting held on July
28, 2006 where she was explicitly told that, “Chris and James have caused a lot of problems
at the school, and they really have to go."
In addition to the above, the credited testimony of Blowe, (the eavesdropper),
substantiates the conclusion that the predominant reason for Cooperman’s discharge was
because she would not help in ridding Kasner of those meddlesome men. Thus, Blowe
testified that he heard Kasner say, among other things, that she wanted to get rid of her
headaches and that her headaches were Rouse and Piccigallo.
In Parker Robb Chevrolet Inc. 262 NLRB 402 (1982), the Board held that the
discharge of a supervisor would only be unlawful if it directly interferes with the rights of non-
supervisory employees. The Board stated:
Notwithstanding the general exclusion of supervisors from coverage under the
Act, the discharge of a supervisor may violate Section 8(a)(1) in certain
circumstances, none of which are present here. Thus, an employer may not
discharge a supervisor for giving testimony adverse to an employer's interest
either at an NLRB proceeding or during the processing of an employee's
grievance under the collective-bargaining agreement. Similarly, an employer
may not discharge a supervisor for refusing to commit unfair labor practices, or
because the supervisor fails to prevent unionization. In all these situations,
however, the protection afforded supervisors stems not from any statutory
protection inuring to them, but rather from the need to vindicate employees'
exercise of their Section 7 rights.
* * *
In the final analysis, the instant case, and indeed all supervisory discharge
cases, may be resolved by this analysis: The discharge of supervisors is
unlawful when it interferes with the right of employees to exercise their rights
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under Section 7 of the Act, as when they give testimony adverse to their
employers' interest of when they refuse to commit unfair labor practices. The
discharge of supervisors as a result of their participation in union or concerted
activity - either by themselves or when allied with rank-and-file employees -is not
unlawful for the simple reason that employees, but not supervisors, have rights
protected by the Act.
In Howard Johnson v NLRB 702 F.2d 1, 4 (1st Cir. 1983), the Court upheld the Board's
finding that the employer violated the Act by discharging a supervisor who refused to engage
in spying on union activities. Similarly, in Gerry's Cash Market Inc. v NLRB 602 F.2d 1021
(1st Cir. 1979), the Court agreed with the Board's conclusion that the employer violated the
Act by demoting a supervisor because he refused to enforce an overly broad no-solicitation
rule. See also Professional Medical Transport, 346 NLRB No. 108 (2006); Pioneer Hotel, Inc.,
324 NLRB 918 (1997); USF Red Star, Inc., 330 NLRB 53 (1999).
In the present case, I conclude that the General Counsel has made out a strong case
that the Respondent discharged Cooperman because she would not assist Kasner in forcing
the resignations of the two union delegates because of their union positions and because of
their role in enforcing the terms of the collective bargaining agreement. In that regard,
Cooperman was clearly being asked to commit an unfair labor practice under Section 8(a)(1)
& (3) of the Act. Further, having considered all of the evidence, I conclude that the
Respondent has not shown that it would have discharged Cooperman for reasons other than
her refusal to commit an unfair labor practice. I therefore find that the Respondent’s
discharge of Cooperman violated Section 8(a)(1) of the Act.
Conclusions of Law
1. By discharging Linda Cooperman because of her refusal to assist in causing the
resignation or constructive discharges of Chris Piccigallo and James Rouse because of their
activities as union representatives, the Respondent violated Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
Remedy
Having found that the Employer has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
However, because of the peculiar circumstances of this case, I am not going to order
the Respondent to reinstate Cooperman.
The Board and the Courts have ordered reinstatement for discharged supervisors. For
an extensive discussion of this issue see for example, Kenrich Petrochemicals v. NLRB, 907
F.2d 400 (3rd Cir. 1990). The full panel of the Court, with Judge Greenberg dissenting, stated
in pertinent part:
[W]e believe, as did the Board in Advertiser's Mfg., 280 NLRB at 1185, that the
rationale for ordering make whole relief is as strong in circumstances where a
supervisor is discharged because of the protective activity of a family member as
when a supervisor is discharged for failing to commit an unfair labor practice or
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for testifying before the Board. In situations where a supervisor has been
discharged for failing to commit an unfair labor practice, reinstatement has been
justified on the ground that it "dissipate[s] the effects of an unfair labor practice
and restore[s] the status quo...." By its very nature, a supervisor's refusal to
commit an unfair labor practice cannot adversely affect the rights of the
rank-and-file employees under her control, and reinstatement of the supervisor is
not necessary to remedy an unfair labor practice that did not occur. Yet the
Board has thought it necessary to reinstate a supervisor fired for this reason in
order to ensure that the firing will not intimidate the employees' future exercise of
section 7 rights....
This however, is not a case of a low level supervisor who was illegally discharged for
refusing to commit an unfair labor practice at the bequest of his or her employer. The Lorge
School is a small enterprise where Cooperman was the number two person in relation to
Kasner, who was the Executive Director. And indeed, because Cooperman originally applied
for the Executive Director’s job, Kasner viewed her as a potential rival. Further, the evidence
shows that there were differences of opinion regarding real and significant policy issues
between these two individuals.
Balancing the rights of the employees, who I note have protection via the
grievance/arbitration provisions of a contract, as against the obligation of the school to provide
services to children with cognitive and emotional problems, I foresee the probability that by
reinstating Cooperman to her former position, this would result in a dysfunctional management
team at the school.
I will, however, recommend that the Respondent make Cooperman whole for any and
all loss of earnings and other benefits from the date of her discharge, (August 1, 2006), until
such time as she obtains or is offered substantially equivalent employment elsewhere.
Backpay should be computed on a quarterly basis from the date of such refusal less any net
interim earnings, as prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent can
cut off backpay by offering Cooperman reinstatement to her old position or to a teacher’s
position at the same salary and benefits that she had at the time of her discharge.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 12
ORDER
The Respondent, The Lorge School, its officers, agents, and representatives, shall
1. Cease and desist
(a) From discharging any supervisor who refuses to commit actions which would
constitute unfair labor practices under the National Labor Relations Act.

12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
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(b) In any like or related manner interfering with, restraining or coercing employees in
the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make whole, with interest, Linda Cooperman for the loss of earnings and benefits
from the date of her discharge (August 1, 2006) until such time as she obtains or is offered
equivalent employment elsewhere.
(b) Within 14 days from the date of this Order, remove from its files any reference to
the unlawful discharge of Linda Cooperman and within three days thereafter, notify her in
writing, that this has been done and that her discharge will not be used against her in any
way.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if
stored in electronic form, necessary to analyze the amount of backpay due under the terms of
this Order.
(d) Within 14 days after service by the Region, post at its facilities in New York, New
York, copies of the attached notice marked “Appendix.” 13 Copies of the notice, on forms
provided by the Regional Director for Region 2, after being signed by the Respondent
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. In the
event that during the pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, or sold the business or the
facilities involved herein, the Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees employed by the Respondents at
any time since August 1, 2006.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps
that the Respondent has taken to comply.
Dated, Washington, D.C., August 3, 2007.
_____________________
Raymond P. Green
Administrative Law Judge

13 If this Order is enforced by a Judgment of the 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.”
JD(NY)–36–07
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the National Labor Relations Act and
has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT discharge supervisors who refuse to commit actions that would constitute unfair
labor practices under the National Labor Relations Act.
WE WILL NOT in any like or related manner interfering with, restraining or coercing employees
in the rights guaranteed to them by Section 7 of the Act.
WE WILL make whole Linda Cooperman for the loss of earnings she suffered as a result of the
discrimination against her.
WE WILL remove from our files any reference to the unlawful discharge of Linda Cooperman
and notify her in writing that this has been done and that this action will not be used against her in any
way.
THE LORGE SCHOOL
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
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 ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0346.