Academy of Art College

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stephens Institute, d/b/a Academy of Art College and California Federation of Art Teachers, Local No. One Stephens Institute, d/b/a Academy of Art College and California Federation of Art Teachers, Local No. One and Academy of Art College Faculty Senate, Party in Interest. Cases 20-CA-12367. 20-CA- 12422, and 20-CA 13369 March 26, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On March 23, 1978, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. The General Counsel filed limited cross-exceptions and resubmitted as his brief to the Board his brief to the Administrative Law Judge. The Charging Party also filed limited cross- exceptions and a supporting brief. The Respondent then filed an answering brief and made a motion re- questing the Board to hear oral argument in the in- stant case.' The General Counsel and the Charging Party opposed this motion, and the General Counsel moved to strike the Respondent's answering brief. The Respondent subsequently filed a reply brief to the General Counsel's motion to strike its answering brief.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,3 and The Respondent's request for oral argument is hereby denied, because the record. including the briefs, adequately presents the issues and positions of the parties. The General Counsel's motion to strike the Respondent's answering brief is hereby denied. Pursuant to Sec. 102.133(a) and (b), the General Counsel's motion to strike Respondent's November 2, 1978, and November 28, 1978, correspon- dence to the Board is hereby denied, and that correspondence and the re- sponses thereto are hereby made a part of the record in the instant proceed- ing. The Administrative Law Judge made several minor factual misstate- ments which do not affect the validity of his conclusions. Contrary to the Administrative Law Judge's decision, the record reveals that one of the in- structors, Mike Dattel, had a contract of employment with the Respondent prior to January 1977. The record also reveals, contrary to what is indicated in the Decision, that both Pratchenko and Rees have worked for the Respon- dent since January 1977, Pratchenko having had two of three classes can- celed and Rees two of four classes canceled, in September 1977. The Admin- istrative Law Judge also inadvertently excluded the name of Anna Rosich from the list of names of employees whom Stephens demanded sign a "stan- dard teacher's contract," and included the names of Doyle and Sher, whom conclusions4 of the Administrative Law Judge, to modify his remedy,5 and to adopt his recommended Order, as modified herein. The Respondent has vigorously contended that the consolidated complaint in the instant case must be dismissed because there is no proof in the record that it falls within the discretionary jurisdictional standard established by the Board for private schools. The only proof of jurisdiction, the Respondent points out, is contained in a stipulation of facts made pursuant to an informal partial settlement between the Respon- dent and the Charging Party. In this stipulation, the Respondent admitted facts which would permit the Board to find that the Respondent fell within the Board's statutory and discretionary jurisdictional amounts. The Respondent argues that the Board is not entitled to rely upon this stipulation in order to find jurisdiction. The efficacy of that stipulation, the Respondent contends, was vitiated when the Re- gional Director withdrew approval of a separate in- the record shows were not requested to sign such contracts. The Administra- tive Law Judge also stated in the decision that Sher and Wojak were the only instructors in the printmaking department at the time of the hearing. How- ever, the record discloses that Sher was not employed by the Respondent after September 1977 and that one Jim Reed was teaching in that depart- ment. The decision also states that Haight testified that no striker listed on the revised schedule was given classes for the fall 1977 term. However, our review of the record shows that Haight did not so testify. We also correct the Administrative Law Judge's mistaken finding that the eight classes which the Respondent conducted during the fall 1977 term with less than minimum enrollments were conducted by nonstriking instructors; the record shows that only four of these classes were taught by nonstriking faculty members. We further note that the Respondent did not offer any evidence demonstrat- ing that Wojak was offered classes but failed to report for them. The Respondent contends that Doyle and Pratchenko were supervisors and that, accordingly, it has no duty to reinstate them. The Administrative Law Judge found that Doyle, a cochairman of the fine arts department, had been demoted to the level of a rank-and-file instructor at the time of his termination, and hence his status prior to that time was immaterial. The Administrative Law Judge also determined that Pratchenko, the other co- chairman of the fine arts department, was not treated as, nor given the responsibility of, more than a rank-and-file instructor after mid-November 1976. Our review of the record persuades us that Doyle and Pratchenko at no time material to this proceeding had any supervisory authority regardless of any title by which the Respondent styled them. Accordingly, we find that neither man was a supervisor during the time pertinent to this proceeding. The Administrative Law Judge inadvertently failed to include Rees on the list of persons denied employment in Conclusion of Law 6(c) of his Decision. The Administrative Law Judge found that the Respondent discharged the unfair labor practice strikers by a letter dated January 28, 1977, which advised the strikers that those who did not return to work on January 31 would be "permanently replaced." We find merit in the cross-exception of the General Counsel, however, which contends that Respondent's letter of January 24, 1977, to the faculty constituted the discharge of the strikers. This letter stated that all instructors would be required to notify the Respondent by January 26 of their intention to teach "or their resignations would be regretfully accepted." Accordingly, we find the date of the unfair labor prac- tice strikers' discharge to be January 24, 1977. The Administrative Law Judge having found that the unfair labor practice strikers made an unconditional offer to return to work on February 16, 1977, ordered backpay, with interest, to commence on February 17, 1977. Consis- tent with our recent decision in Abilities and Goodwill, 241 NLRB 27 (1979), we hereby modify the remedy of the Administrative Law Judge to accord backpay to the unfair labor practice strikers from the date of their dis- charges, which we find to be January 24, 1977. Member Penello, in accord with his dissenting opinion in that case, would not modify the Administra- tive Law Judge's remedy. 241 NLRB No. 71 454 ACADEMY OF ART COLLEGE formal settlement agreement that had been executed between it and the Board. We find the Respondent's arguments on this issue wholly unpersuasive. As noted, the record demon- strates that the Respondent entered into two informal partial settlement agreements, one with the Charging Party, another with the Regional Director. The infor- mal partial settlement agreement between the Re- spondent and the Regional Director settled certain allegations contained in the consolidated complaint in Cases 20-CA-12367 and 20-CA-12422, and the complaint was amended accordingly at the hearing. This settlement was contingent upon the Respon- dent's continued compliance with the terms of that agreement. The Respondent also entered into an informal par- tial settlement agreement with the Charging Party in which the Respondent agreed, inter alia, to reinstate certain named individuals and the Charging Party agreed, inter alia, to request that the General Counsel withdraw certain paragraphs of the consolidated complaint. Pursuant to this agreement, these parties also entered into a stipulation of facts in which the Respondent admitted facts which brought it within the statutory and discretionary jurisdictional amount requirements of the Board. By the express terms of the agreement, this stipulation was to be "received into evidence in the unfair labor practice proceeding in Cases 20-CA-12367 and 20-CA-12422," and the facts admitted therein were to be "deemed true for the purposes of that proceeding." The Charging Party and the Respondent also agreed to enter into a Stipu- lation for Certification Upon Consent Election in which the Respondent also made factual admissions bringing it within the Board's statutory and discre- tionary jurisdictional amount requirements; pursuant to the terms of the agreement, this stipulation was also entered into the record in the instant unfair labor practice proceeding. The Respondent now contends that it was "mani- festly unjust for the Administrative Law Judge to hold Respondent to the stipulation concerning juris- diction which Respondent entered into only in the interest of settlement ... and from which the Board has withdrawn." We perceive no unjust result that would arise in affirming the Administrative Law Judge's finding as to jurisdiction, which was based upon the Respondent's stipulations. These stipula- tions, once entered into evidence, constituted a judi- cial admission on the Respondent's part as to the facts contained therein. Such an admission has the effect of a confessory pleading, and its principal char- acteristic is that it is conclusive upon the party mak- ing it. E.g., The Kroger Co., Houston Division, 211 NLRB 363, 364 (1974); see, generally, 9 Wigmore, A Treatise on Evidence in Trials at Common Law, §§2588, 2590 (3d ed. 1940). The Respondent made these stipulations in contemplation of the hearing and expressly provided for them to be entered into and made a part of the record in the instant proceeding. At no time during the proceeding did the Respondent or any of the other parties to the instant case seek to withdraw therefrom or introduce evidence contrary thereto. To accept the Respondent's contentions on this matter would permit the Respondent to commit unfair labor practices post the hearing and in breach of the settlement agreement between it and the Re- gion be thereby relieved of admissions it had made on the record in the hearing by the Regional Director's issuance of a complaint based on the Respondent's unlawful conduct. Such a result would be wholly anomalous, and it has no basis in law or logic. The only case cited by the Respondent in support of its position, Bogart v. United States, 169 F.2d 210 (10th Cir. 1948), is not inconsistent with our holding in that at no time during the hearing herein did any of the parties seek to withdraw from the stipulations made in the stipulation of facts and the Stipulation for Cer- tification Upon Consent Election. We thus find that the Respondent is bound by its stipulations and that the Administrative Law Judge properly found that the Respondent falls within the Board's jurisdiction. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified herein, and hereby orders that the Respondent, Ste- phens Institute, d/b/a Academy of Art College, San Francisco, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Substitute "January 24" for "January 28" in paragraph I(c)(2) and for "February 17" in para- graph 2(c). 2. Substitute the attached notice for that of the Administrative Law Judge.6 I The attached notice adds the name of Joseph Rees to those employees named in the last paragraph of the Administrative Law Judge's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of rights guaran- teed to them by Section 7 of the National Labor 455 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, in violation of Section 8(a)(l) of said Act, by: interrogating our employees con- cerning their protected activities; threatening our employees with termination if they refuse to sign individual employment contracts; threatening our employees with physical injury if they en- gage in future protected activity; threatening to lock out employees who support the California Federation of Art Teachers, Local No. One (Union); offering to employees more work at a higher salary if they will abandon their protected activity; soliciting employees to engage in sur- veillance of union meetings; or threatening to close our school rather than deal with the Union. WE WILL NOT dominate, assist, contribute to the support of, or interfere with the Academy of Art College Faculty Senate (Faculty Senate), or give effect to the commitment made and distrib- uted by us to our students and employees on June 8, 1977. WE WILL NOT recognize the Faculty Senate, or any successor thereto, as the representative of our employees concerning wages, rates of pay, hours of employment, and other terms and con- ditions of employment. WE WILL NOT vary or abandon any wage, hour, seniority, or other substantive benefit es- tablished for our employees because of the afore- said agreement, or prejudice the assertion by our employees of any right they have derived as a result of said agreement. WE WILL NOT discharge our employees be- cause of their union or other protected activities. WE WILL NOT discharge our employees be- cause of their participation in unfair labor prac- tice strikes against us or fail to reinstate them after they have made unconditional offers to re- turn to work. WE WILL NOT deny employment to our em- ployees because they have engaged in union or other protected activity. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights to self-organization, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL withdraw and withhold recognition from, and completely disestablish, the Faculty Senate, or any successor thereto, as the repre- sentative of our employees for the purpose of collective bargaining, including the settlement of grievances. WE WILL offer Joseph Doyle, Joseph Rees, and Paul Pratchenko immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for their loss of earnings, with interest. WE WILL offer to each and all of the following named strikers immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority and other rights and privileges, dismissing, if necessary, replace- ment employees, and make said strikers whole for any loss of earnings suffered by reason of our discrimination against them, with backpay to commence on January 24, 1977, with interest thereon: Leslie Becker, Karl Cohen, William Cutchins, Dennis Gray, Tom Keller, Anna Ro- sich, Elizabeth Sher, Mort Kohn, Jan Oswald, Ernest Posey, Julie Roman, Dave Sanchez, Lou- ise Stanley, Jack Stone, Marion Swetschinski, Dick Warton, Tom Wojak, Beverly Wolfe, Joseph Doyle, Joseph Rees, Paul Pratchenko, and Kenneth Light. WE WILL offer to each and all of the following named employees, effective from on or about September 1, 1977, teaching positions to which said employees ordinarily would have been as- signed but for our discrimination against them, dismissing, if necessary, replacement employees, and make said named employees whole for any loss of earnings suffered by reason of our dis- crimination against them, with interest thereon: Joseph Doyle, Elizabeth Sher, Dave Sanchez, Mort Kohn, Kenneth Light, Ernest Posey, Julie Roman, Paul Pratchenko, Louise Stanley, Jack Stone, Tom Wojak, Marion Swetschinski, Karl Cohen, William Cutchins, and Joseph Rees. STEPHENS INSTITUTE, D/B/A ACADEMY OF ART COLLEGE DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard in San Francisco, California, on August 4, 5, 8, 9, and 12, 1977,' and January 10 and 11, 1978. The charge in Case 20-CA-12367 was filed on January 17 by California Federation of Art Teachers, Local No. One (herein called Union). The initial charge in Case 20- CA- 12422 was filed by the Union on February 1, and a first amended charge was filed in the case by the Union on March 28. By order dated April 29, the Regional Director I All dates hereinafter are in 1977, unless stated to be otherwise. 456 ACADEMY OF ART COLLEGE for Region 20 of the National Labor Relations Board con- solidated the aforesaid two cases and issued a consolidated complaint and notice of hearing. The consolidated com- plaint alleges that Stephens Institute, d/b/a Academy of Art College (herein called Respondent), violated Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended (herein called Act). Said consolidated cases were heard by me on various days in August 1977, as outlined above. At the hearing, paragraphs VI and XII of the con- solidated complaint, containing allegations of violations of Section 8(a)(5) of the Act, were deleted, and paragraph IX thereof was amended to delete the names of certain alleged discriminatees on the basis of a settlement agreement signed by the parties and approved by the Regional Direc- tor. Other allegations of the consolidated complaint were litigated. On October 20, the aforesaid Regional Director withdrew approval of the settlement agreement and on October 21 moved to reopen the record to amend the complaint and to consolidate Cases 20-CA-12367, 20-CA-12422, and 20- CA-13369. Said motion was granted by me on November 11. The complaint in Case 20-CA-13369, based on a charge filed by the Union on September 8, alleges that Re- spondent violated Section 8(a)(1), (2), and (3) of the Act. Those allegations were heard in January 1978, as described above. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of Gen- eral Counsel, Respondent, and the Charging Party. Upon the entire record,3 and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT At all times material herein, Respondent, a California corporation with its principal place of business located in San Francisco, California, has been engaged in the business of operating a private college for profit. Between February 1, 1976, and January 31, 1977, Respondent, in the course and conduct of its operations, derived gross revenues val- ued in excess of $1 million and purchased goods, materials, and supplies valued in excess of $5,000 directly from suppli- ers located outside the State of California. I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in a busi- ness affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED 1. The Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 2 As amended at the hearing to correct a minor error. I General Counsel's motions to correct the transcript and to amend the complaint, made in his post-trial brief, have been carefully considered and hereby are granted. 2. One of the issues herein is whether the Academy of Art College Faculty Senate (Faculty Senate) is a labor or- ganization within the meaning of Section 2(5) of the Act. It is found that the Faculty Senate is such a labor organiza- tion, as discussed infra. III. THE ALLEGED UNFAIR LABOR PRACTICES Background Respondent is a corporation, the principal stockholder and president of which is Richard A. Stephens (Stephens). Since 1929, Respondent has owned and operated an art college in San Francisco, presently housed in two buildings. One building is on Sutter Street, with facilities for depart- ments of fine arts (painting and drawing), printmaking. sculpture, and photography. The Powell Street building houses administrative offices and departments of illustra- tion, advertising, and design. The school is accredited through the University of San Francisco and the National Association of Trade and Technical Schools, and is ap- proved by the State of California, Bureau of Readjustment Education. In the fall of 1976, the school had approximately 1,100 students, about 400 or 450 of whom were enrolled full time. Some students are excused from paying tuition through a work-study program requiring that they devote some hours of work to the school. Stephens is the principal administrative officer of the school. He is partially retired but spends most of his time at the school, where he is involved primarily at the policy lev- el. He makes all basic decisions, including the hiring and firing of instructors,4 but he relies upon others of his staff for assistance and advice. Stephens' principal assistant is Donald A. Haight (Haight), whose title is vice president and registrar. Haight is very active in administration of the school and supervises most of the day-to-day work activi- ties. Stephens also is assisted by Jan Schroeder (Schroeder), and by Michael Ryan (Ryan), who is the school's account- ant. Haight, Schroeder, and Ryan do not have authority to hire or fire, but they do have authority to appraise instruc- tors' performances and to discipline instructors.' Schroeder and Ryan are outside the chain of command, which runs from Stephens to Haight to department chairmen or di- rectly to instructors. The school employs approximately 58 instructors6 who teach in the various departments described infra. Most, or possibly all, departments have chairmen, although the de- partmental administrative arrangement never has been clear cut and firmly established.7 Duties and responsibilities of chairmen vary among departments, as size and complex- ' Sometimes Stephens interviews, and hires and fires, instructors without coordinating the actions with departmental chairmen. On other occasions he coordinates with chairmen or relies upon their assistance and recommenda- tions. It is found that Stephens, Haight, Schroeder, and Ryan are supervisors within the meaning of the Act. 6 Sometimes referred to as teachers. 7Respondent has no administrative organization chart. Resp. Exh. 18, prepared in 1972 for purposes not related to administration. is helpful in understanding the school but is not accurate or reliable in resolving any issue herein. Respondent has no position descriptions for any of its employees, instructors, or departmental chairmen, nor has it ever had such descriptions. 457 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD ity of departments vary, but generally, chairmen provide an administrative link between Stephens and instructors. The title of "chairman" or "cochairman" of a department does not necessarily define duties of those individuals as being supervisory within the meaning of the Act. All chairmen are not paid the same amounts. It is not entirely certain from the record that Stephens uses a "chairman" system in all departments, but clearly Stephens and Haight cannot effectively administer the entire school alone, and must rely, to some extent, upon intermediaries between them and rank-and-file instructors. The chairmen involved in this dispute are Joseph Doyle (cochairman, fine arts department); Paul Pratchenko (co- chairman, fine arts department); Richard Warton (photog- raphy department); Thomas Keller (advertising depart- ment); Elizabeth Sher (printmaking department): Joseph Rees (sculpture department): and Barbara Bradley (illus- tration department). The dispute herein has its genesis in a petition' allegedly '° drafted by a group of students. The petition lists six im- provements that are sought, including one that covers con- tracts, better wages, insurance plans and paid independent study, all for faculty members. The petition is not dated, but testimony shows it was circulated, and Respondent learned of its existence, about mid-November 1976. On De- cember 6, 1976, Stephens invited Doyle into his office and asked him about the petition. They discussed it, and Ste- phens asked that Doyle call a meeting to be attended by Stephens, Doyle, and Pratchenko to pursue the subject. Ste- phens agreed to Doyle's request that Warton also attend. The meeting Stephens requested was held on December 8, 1976, initially attended by Stephens, Haight, Doyle, and Pratchenko and, later, by Schroeder. The group discussed the petition, with some argument about whether or not Doyle and Pratchenko were behind the petition." Stephens asked for a meeting to be attended by administration per- sonnel, faculty, and students. Such a meeting was held De- cember 15, 1976. Stephens, Haight, and Ryan attended, as did 10 to 15 faculty members and approximately 100 stu- dents. Stephens, Doyle, Pratchenko, Warton, and others spoke, and Doyle suggested establishment of a faculty sen- ate. David Sokol (Sokol), an attorney representing the stu- dents, appeared and spoke briefly. Matters were discussed that involved both faculty and students, and at the close of the meeting student officials were elected to begin organiz- ing a student government. After the meeting, about 8 or 10 of the instructors met at a restaurant and discussed the ne- cessity for the faculty to organize. During their discussion Haight, Haight's wife, and Ryan sat at a table about 20 or 25 feet away." I All named chairmen hereinafter are referred to by their last names. I G.C. Exh. 9. ' Respondent believes that Doyle, who in the past for a time had been dropped by Respondent as an instructor because of what Respondent thought was agitation of students against the schools's administration, was instrumental in drafting and circulating the petition. Whether or not that is a fact is immaterial to issues involved herein. " Doyle testified that Stephens stated during the meeting that Doyle and Pratchenko "will never teach again." The statement attributed to Stephens was not denied by Stephens or Haight, and is credited for purposes of ana- lyzing animus. 12 Possibly Haight and Ryan overheard part of the instructors' conversa- tion. Based upon testimony, they were within earshot of reasonably loud On December 21, 1976, Haight called Doyle on the tele- phone and asked him to come to Stephens' office on De- cember 22, 1976. Doyle did as asked, and met with Ste- phens, Haight, and Ryan, in Stephens' office. The meeting became an argument about Doyle's class assignments, with Stephens advising Doyle that the remainder of his classes were being reduced, and with Doyle contending the reduc- tion was retaliation for Doyle's support of students and the faculty. On December 24, 1976, Haight advised Doyle by telephone that Doyle was not going to be allowed to teach in the spring term.'3 Doyle later was terminated, by letter dated December 27, 1976. Pursuant to discussion among instructors after the group meeting of December 15, 1976, an organization meeting was held at Rees' private studio on January 4, with ap- proximately 10 instructors attending. A second meeting was held at Rees' studio the following day, January 5 attended by approximately 20-24 instructors. At the two meetings, the group drafted a charter for California Federation of Art Teachers Local No. One (sometimes referred to as CFAT or the Union). 4 The charter was signed on January 5 by 13 instructors. Ernest Posey (Posey), an instructor, was elected business representative, Anna Rosich (Rosich), an instruc- tor in graphic design, was elected secretary, and Doyle was elected treasurer. It was decided that Posey, Sher, and Rees would be the negotiation committee. Pursuant to decisions made at the meetings of January 4 and 5, the Union asked for, and held, a meeting with Ste- phens in his office on January 13. Present were Stephens, Haight. Ryan, Respondent's attorneys McDonald and Kel- ly, Posey, Sher, Rees, and Sokol. McDonald, Kelly, and Sokol were asked to leave during the meeting. The Union did not claim majority representation, since it was not sure it had it, although it believed it represented approximately half the instructors. Following a discussion, it was agreed that the Union would draft a proposed contract for submis- sion at a later meeting, scheduled for January 17. A pro- posal" was drafted as agreed, and the same group (without the attorneys) met on January 17. Stephens received the proposal but said he could not give his answer until his attorney reviewed it. It was agreed that the group would meet on January 21 to discuss the proposal. On January 18, Rees met with Stephens, Haight, and Ryan in Stephens' office, in accordance with past practice, to discuss Rees' schedule for the following spring term. Af- ter the schedule was decided upon, Stephens handed Rees an individual work contract prepared by Respondent," and conversation. In any event, it is found that by this time Respondent was well aware that Doyle, Pratchenko, and Warton, among other teachers, were in active support of the principles set forth in the students' petition. 13 As discussed elsewhere, Doyle was on salary, which was paid whether or not he taught during a particular term of school. Although it is clear that Doyle had no teaching assignment for the spring 1977 term after this tele- phone conversation, it did not necessarily follow therefrom that he was dis- charged. 'G.C. Exh. 13. I G.C. Exh. 15. it The contract form was the same as the one presented to Rosich, dis- cussed infru, which is G.C. Exh. 17. 458 A(CADEMY OF ART COLLEGE Rees refused to sign it. Ilaight then handed Rees a resigna- tion slip.' and Rees refused to sign it. Rosich went to Stephens' office on January 18 to discuss her spring schedule with Stephens and Haight. After the schedule was discussed, a contract form'8 was completed. and Rosich signed it. Carl Cohen (Cohen), an instructor in filmmaking discussed his spring schedule with Stephens and Haight on January 18 and signed a contract 9 completed and handed to him by Stephens. Pratchenko met with Ste- phens and Haight on January 19 and was handed a work contract form similar to the one signed by Rosich and ('o- hen. Pratchenko did not sign the contract but told Stephens he would take it to a union meeting that evening and would talk with him about it the following day. A union meeting was held in Rees' studio during the evening of January 19, principally to discuss the fact that some instructors had been called to Stephens' office individ- ually and had been given contract forms prepared by Re- spondent to sign. Approximately 20 or 25 instructors at- tended the meeting. including Doyle. Pratchenko, Rees, Rosich, Cohen. and Keller. After discussing the actions taken by Stephens and Haight. the group took a strike vote and decided to strike the following day. A strike, and pick- eting. commenced on January 20. On the day of the strike, Pratchenko called Haight and told him he could not sign the contract received from Stephens. A conversation en- sued, which is discussed infa. On January 21, the union negotiating committee met with Stephens. Haight, and Ryan to discuss the Union's proposed contract, handed to Stephens on January 17. The meeting was a lengthy one, during the course of which each provision was discussed. Stephens and Haight made several suggested changes, and Posey made notes of those sug- gested changes. Events that transpired at this meeting are in controversy, as discussed infr. On January 23, the negotiating committee drafted a let- ter20 to Stephens. which was delivered to him by Pose on January 24. The letter covered the Union's reply to various suggestions made by Stephens and Haight during the meet- ing of January 21. An argument ensued between Posey and Stephens, and the latter told Posey to leave, as discussed infla. The Union held a meeting the evening of January 24. during the course of which an instructor named John Mor- gan appeared as an emissary of Stephens. Morgan handed the group a box of letters and documents" for delivery to union members. The documents, with covering letters. are labeled "Commitment" by Respondent to the faculty, but the "Commitment" has several attributes of a labor agree- ment, although it is not a contract prepared for signatures. The letters and documents were distributed to those present at the meeting. The next school term began January 31, and some of' the strikers had been replaced by that time. By February 4, all 1t Rees testified, and neither Stephens nor laighl denied, that Stephens and Hlaight told him he must sign the resignation in order to receive his pay from January 18. Rees has attempted without success, to collect his pay for the 18 days he worked in January 'm G.(' Exh. 17. 9(G.('. Exh. 18 2G C Exh. 16. 21 G.C Exh. 14 the strikers had been replaced. A meeting was held in Ste- phens' office on February 4, attended by Stephens, Haight, Ryan. and some of the nonstriking faculty. The purpose of the meeting was to discuss the possibility of the strikers' return to work, but no agreement was reached. In his "Commitment" sent to instructors on January 24 (G.C. Exh. 14). Stephens referred to the Faculty Senate in the following terms: Section 8 Faculty Senate and Representation: The Faculty Senate shall be comprised of all those faculty members wishing to voluntarily participate. The Faculty Senate Representatives shall be com- prised of all Department Directors plus 3 elected rep- resentatives at large who serve on a term by term basis. The Responsibilities of the Faculty Senate: The Faculty Senate through its representatives shall meet and confer with the Administrators to discuss and ne- gotiate various topics, problems and grievances. Exam- ple: see "Termination"--no faculty member shall be terminated without consultation with the Faculty Sen- ate Representatives. The Faculty Senate will meet a minimum of two meetings per semester; further meetings at the discres- sion [sic of the membership. The Faculty Senate Rep- resentatives will meet a minimum of once each 30 days at their discression [sic]. Scheduling and Curriculum The Administration will meet and confer with the Faculty Senate Representa- tives on all matters of scheduling and curriculum. The Faculty Senate described above was not activated for- mally, but from approximately January 24 until February 1i. during the strike. certain of the nonstriking instructors met on a somewhat regular basis with Stephens in the lat- ter's office. On a date not definitely established at trial, it was determined by Stephens and the nonstriking faculty that the Faculty Senate membership would be changed and that, rather than being a group comprising all the faculty. with elected representatives, it would consist of department directors (five in number) and five members to be elected from among the faculty. Following notice by letter dated February 15. a social-type meeting of the faculty was held on February 18, at which were discussed the organization of the Faculty Senate, election of representatives, and a few other matters of mutual concern which involved the Senate. Thereafter, the interim representatives, being the then five department directors and five full-time instructors who were, in effect, self-appointed by reason of volunteer ser- vice, met with Stephens and other administrators in formal meetings. Such meetings were held on a regular basis, with minutes kept at each meeting. The content of the meetings is discussed in/ra. Representatives to serve on the Senate were elected by faculty members, and at a meeting held on April 29. Casey FitzSimons (FitzSimons) was voted chair- man. which position she has held to the present time. On Ma, 23. Stephens addressed an open letter to all students, which discussed several matters of concern to them and which included the fllowing statement: 9. Faculty Senate For the first time the Academy ftcults has elected representatives meeting on a regu- lar basis with the administration to resolve collective 459 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerns and establishing equitable policies for stu- dents and teachers. The five elected representatives on the Faculty Senate are: John Morgan, Casey FitzSim- ons (President), Ron Young, Donald Archer and Bill Sanchez. Because the original concept of the Faculty Senate had changed, FitzSimons drafted a new "Commitment" to re- flect actual policies of Respondent. She used the original Commitment as a starting point and also referred to other documents in preparing the new Commitment, which is dated June 8. 1977. FitzSimons discussed her draft of the new document with Stephens, Haight, and all except one of the Faculty Senate at a meeting in Stephens' office. The group went through the document item by item, with full discussions thereon." The new Commitment was ap- proved,23 and thereafter the Faculty Senate met on a regu- lar basis. The Senate continues to the present time to meet and act pursuant to the Commitment. Pursuant to union vote, the Union's attorney sent a letter to Respondent dated February 16, offering unconditionally for the strikers to return to work. By reply letter dated Feb- ruary 17, Respondent's attorney asked for a list of strikers, contended that the strike was an economic one and that some strikers had been permanently replaced, denied the commission of any unfair labor practices, and denied Na- tional Labor Relations Board jurisdiction. The Union's at- torney replied by letter dated February 23, listing the strik- ers and asking for reinstatement of Doyle, who, it was contended, had been unlawfully discharged. By letter dated March 7, Respondent's attorney declined to reinstate Doyle or to employ any striker. The fall term commenced on September 6, and certain instructors involved in this controversy, discussed infra, ei- ther were offered no classes to teach or were offered a re- duced number of classes. Issues This controversy concerns several issues involved in 8(a)(1) allegations, but the principal issues are: (a) whether or not the Faculty Senate is a labor organization as that term is defined in the Act; (b) if the Faculty Senate is found to be a labor organization, whether or not it was dominated and assisted by Respondent; (c) whether the strike con- ducted by instructors in January and February was an un- fair labor practice or an economic strike; (d) whether or not Doyle, Rees, Pratchenko, Keller, Sher, and Warton were supervisors; (e) whether or not striking employees unlaw- fully were refused reinstatement; and (f) whether or not certain employees were denied employment because of their protected activities. Chronology of Events A. Interrogation by Stephens Paragraph V(lla) of the original consolidated complaint alleges that on or about January 18 Stephens interrogated "2 Prior to the meeting. she had "gone over" the document with Haighi. :" The Faculty Senate has no constitution or bylaws. Its only basic docu- ment is the Commitment. an employee about his and other employees' protected ac- tivities. Cohen testified that when he discussed Respondent's pro- posed contract with Stephens on January 18 they had a conversation which included the following: He then showed me a standard teaching contract and asked me to-he filled it out, and asked me to sign it. During the course of filling it out, at that time he asked me if I was aware that there was a union being formed and there was trouble or whatever, and I said, "Yes." And he asked if I had attended any union meetings and I again said, "Yes." Neither Stephens nor Haight denied the alleged state- ment. Cohen is credited. This allegation is proved.2 4 B. Interrogation by Haight Paragraph VII(b) of the original consolidated complaint alleges that on or about January 19 Haight interrogated an employee about his protected activities. Pratchenko testified that when he was discussing Respon- dent's contract form presented to him with a request for signature on January 19 he was interrogated by Stephens: Mr. Stephens said that, "if we wrote in the contract a clause that said, 'would you cross a picket line,' what would you say? How would you respond?" I said, "Well, you're asking me if I'll cross a picket line or not." He said, "Yes, I'm asking you if you will cross a picket line." I said I really couldn't tell until I take this contract to the union meeting and discuss that. Stephens did not deny the alleged statement. Haight was present at the conversation and did not deny that the state- ment was made. The fact that the statement is attributed by Pratchenko to Stephens, rather than to Haight, as alleged in the complaint, is immaterial. Pratchenko is credited. This allegation is proved. C. Threats by Haight Paragraph Vll(c) of the original consolidated complaint alleges that on several occasions, on or about January 18 and 19. Stephens and Haight threatened employees with termination if they refused to sign individual employment contracts. Rees testified relative to his conversation with Stephens and Haight on January 18, when he was asked to sign the contract prepared by Respondent: "Well, I can't sign this." I said, "We're working on a contract and this, you know, this just doesn't work." At that point, Mr. Stephens got up and grabbed his pipe and walked behind his desk and responded to me, saying, "The contract you're working on would cause 4' Keller credibly testified that just prior to January 20 he talked with Stephens on the telephone and Stephens asked him if he was participating in the group of teachers who were trying to organize. Stephens did not deny that testimony. The interrogation is not alleged as a separate violation of the Act, but the matter was fully litigated and is found to constitute an 8(aXl) violation. 460 ACADEMY OF ART COLLEGE me to go broke, and I would just as soon put a lock on the door than accept the union contract."" And the next thing was that Mr. Haight told me that if I didn't sign the contract, that I would be out. And I explained to him that there's no way I could. Cohen testified relative to his conversation with Stephens and Haight on January 18, when he signed the contract prepared by Respondent: At the meeting, there was-from the solemn tone and the way he said, you know, "If you want to continue teaching here, sign."-l mean it was basically: I had a choice, of either signing or resigning my job. I mean that was implied, it wasn't spoken in so many words that you have to sign this or else. I mean it was quite clear, though. Pratchenko testified relative to his conversation with Ste- phens and Haight on January 19, when he was asked to sign the contract prepared by Respondent: "Mr. Stephens gave me the contract, said that it was subject to alteration, but that either I would sign it or lose my job." Stephens testified that no employee was told that it was necessary to sign a contract in order to work: that Rees did not make it clear that the instructors were negotiating a contract for the group; and that he thought the instructors wanted a contract, not a particular contract. This testimony is contrary to the facts of the case, is not believable, and is not credited. Rees, Cohen, and Pratchenko are credited. This allega- tion is supported by the record. The record shows that no instructors had contracts of employment at any time prior to January 1977. It is clearly established that but for protected activities of some of the instructors, contracts would not have been offered to in- structors by Stephens in January. Stephens' offer of con- tracts was made after he met with the Union's negotiating committee on January 14 and after he received the Union's written proposal on January 17. The contracts Stephens of- fered were different from the Union's proposal, and the Union had not agreed thereto. Stephens offered the con- tracts to individuals, not to the Union's negotiating com- mittee. It is clear, therefore, that Stephens' threats consti- tuted attempts on his part to fracture the Union's solidarity, deal individually with union members, and interfere with the union activities of the instructors, in violation of Section 8(a)(1) of the Act. Rees and Pratchenko are alleged to be supervisors within the meaning of the Act. However, as discussed infra, that argument is without merit. D. Threat by Stephens Paragraph VII(d) of the original consolidated complaint alleges that on or about January 24 Stephens threatened an employee with physical harm if that employee engaged in protected activity in the future. Posey testified that on January 24, when he delivered to Stephens the letter of the negotiating committee replying to 25 This statement constitutes a separate violation of Sec. 8(aX I) of the Act. The violation was not alleged in the complaint, but it was fully litigated at the hearing. Stephens' proposed changes in contractual provisions, Ste- phens became angry and threatening: Mr. Stephens got very angry at me and he threw the letter that I had delivered on the table in front of me and said, "We'll fight you all the way, even if we have to close half of the school and start the semester with those people who are loyal to us." Then he rose from his desk and shook his finger at me and said, "If I ever see you around here again I'll knock your f-- head off." Haight testified that during the meeting of January 24 he, Stephens. and Posey discussed the differences between what Haight alleged was agreed to in the meeting of January 21 and the letter Posey' brought back from the committee. Haight said an argument ensued and: A. Mr. Stephens reacted similarly to the way I reacted and responded in a distressful way to Mr. Posey. Q. Well, what did he say? A. He said he'd knock Mr. Posey's f--- head off if he ever came back. Q. Is that all he said? A. And to get out of the building and not come back. Q. And did that terminate the meeting? A. That certainly terminated the meeting, yes. Q. And Mr. Posey left, is that right? A. Yes, he did, in a rush. Posey is credited. The only reason for Stephens' threat. acknowledged by Haight.,' was Posey's past, present, and future activity related to the Union. This allegation is proved. E. Threat by Stephens Paragraph VII(e) of the original consolidated complaint alleges that on or about January 24 Stephens threatened to lock out employees who supported the Union. Posey testified as quoted in section D, supra. Neither Stephens nor Haight denied Posey's testimony. Posey is credited. A lockout under the circumstances would have been so- ley for the purpose of stopping or interfering with union organization, which would have been a violation of the Act. Hence, a threat of lockout, as here, was a violation of Sec- tion 8(a)(1) of the Act. F. Stephens' Unlawful Offer Paragraph Vll(f) of the original consolidated complaint alleges that, on or about January 27, Stephens offered an employee more work at a higher salary if that employee would abandon his protected activity. Warton testified that he was picketing on the night of February 2 when he was approached by Stephens: . . . "Dick, what are you doing out here, you don't Stephens was not questioned on this subject. 461 DECISIONS OF NATIONAL LABOR RELATIONS BOARD belong out here, you belong inside." And we had quite a discussion out in front of the building. Q. Okay. What was that discussion, Mr. Warton? A. Well, it was mainly that he would like to have had me come back inside, and he said, "I'll give you anything you want. You don't belong out here with the rest of them. You-some of the-most of these guys you're out here with wouldn't have a job if I didn't give them one." He said, "We'll take we'll give Prat- chenko a class and Doyle's no, not Doyle, but Rees, we'll give him the neon job, the neon sculpture class, and Anna Rosich, she's good, but the rest of them-." And I said, "Dick, you're dealing with-I'm dealing collectively in a union, I'm not dealing individ- ually." And he said, "Well, if you think that I'm going to deal with the union, you're crazy."" And I said, "Well, that's what I'm doing out here." And he said, "What do you want, how much do you want?" And I said, "It's not the money, it's the integrity." And then that's what ended the conversation, and he went back inside. Stephens did not deny Warton's testimony. Warton was a very sincere, calm, and impressive witness, and he is cred- ited. The statements by Stephens clearly were designed to coerce and interfere with Warton's protected activity; they were implied and express promises of benefits if Warton abandoned that activity. This allegation is proved.28 G. Stephens' Solicitation of Surveillance Paragraph VII of the complaint in Case 20 CA 13369 alleges that on or about September 7 Stephens unlawfully solicited an employee to engage in surveillance of a union meeting. Beverly Wolfe (Wolfe), a ceramics instructor, testified that she talked with Stephens at the time her first class started, on September 7: A. He mentioned the fact that we, meaning the union, was having a meeting the next night and that, you know, we would have to see what was going to be the result of that meeting. Q. You made reference to the union meeting that night. What did he say on that subject? A. Just that if, if it wasn't at all compromising to myself, if I could let him know what transpired or what the result of the meeting was. Stephens testified: Q. Did you engage in surveillance of the union? A. Not directly and not purposefully and never fol- lowed up on it. The conversation that Ms. Wolfe relates is, in es- sence, true the way she says it, but I didn't search her out and I really had no interest in it. Q. Did she ever report to you on the union activity? A. No. 27 F. I. This statement of refusal to deal with the Union is an 8(a)(1) violation. 21 Further support for this allegation is found in the credited testimony of Rosich, that Stephens approached her after the strike began, and offered her $1,000 per month instead of $50 per class if she would return to work. This allegation is proved. H. Terminations of' Dovle, Rees, and Pratchenko Paragraph VII of the original consolidated complaint al- leges that Respondent terminated Doyle on or about De- cember 27: Rees, on or about January 18, 1978; and Prat- chenko, on or about January 20, 1978, because of their pro- tected activities. Respondent contends that the aforesaid three employees are supervisors and that Respondent has no duty to rein- state them. Respondent further contends that only Doyle was terminated. An initial question is whether the three employees were supervisors on the dates alleged above, regardless of what their employment status may have been prior to those dates. Doyle first went to work for Respondent in the fall of 1973. He was hired by Stephens as an art instructor to teach painting ftr a salary of $40 per class. He taught thereafter on a regular basis, with the exception of one semester when he did not teach because of Stephens' dissatisfaction with Doyle's agitation of students relative to conduct of Respon- dent's business. Pratchenko first was hired by Stephens in the summer of 1974 to teach one figure drawing class at the rate of $40 per week. He taught regularly thereafter. Prior to events discussed relative to this issue, Respon- dent's fine arts department was divided into two divisions. A Mr. Farella was chairman of the upper division, and a Mr. Haberman was chairman of the lower division. Farella and Haberman resigned their positions as chairmen in the fall of 1975,27 and some time thereafter Stephens asked Pratchenko to assume the position of chairman of the fine arts department, which, in the meantime, had been reorga- nized to consolidate the upper and lower divisions into a single division. Pratchenko declined the offer but said that, perhaps, he and Doyle could assume that position as cochairmen. Doyle was approached by Stephens and Prat- chenko, and after he agreed to the proposed arrangement, Doyle and Pratchenko were made cochairmen of the fine arts department. As cochairmen, each was given a salary of $600 per month,Y which was a raise over their prior earn- ings, with an agreement that they would be given four classes each to instruct. However, their salary was to re- main the same if all their classes were not filled and the total dropped below four, and further, they were to be paid during the summer and other recesses, even though they did 29 The exact date is not established in the record, but it appears that Doyle and Pratchenko became cochairmen of the fine arts department in the fall or winter of 1975. )0 All department chairmen are on monthly salaries, except Sher, who is paid for classes taught. However, the fact of salary alone does not determine supervisory status; it is only a factor to be considered with others. Chairmen are not paid the same salaries, nor are their duties all the same. Some chair- men are "old-timers" who have been given high salaries and a degree of responsibility that, possibly, makes them supervisors. An example of this is Barbara Bradley, chairman of the illustration department, who has been with Respondent for 19 years, is paid $2,000 per month, and is given much responsibility in scheduling classes, recommending raises, and hiring teach- ers. However, her authority is irrelevant so far as other chairmen are con- cerned, since there is no uniform position description for chairman and they all have different authority and responsibilities. 462 ACADEMY OF ART COLLEGE not then teach. They were not given written position de- scriptions or a written contract. Their actual duties are dis- cussed inlra. Stephens' office formerly was in the Sutter Street build- ing, but he moved his office in May 1976 to the Powell Street building. While he was at the Sutter Street location, Stephens was able to supervise the physical facilities of the building and at times did some of the maintenance work himself, such as sweeping and cleaning. He relied upon de- partment chairmen, Schroeder, and work-study students to assist him in keeping the building in reasonably clean and proper condition. Warton began teaching photography classes for Respon- dent in June 1974 at an initial wage of $40 per class; he later received a raise to $50 per class. He taught regularly thereafter and on January 1. 1976, was promoted by Ste- phens to chairman of the photography department at a sal- ary of $15,000 per year. His duties are discussed in/rd. In late May 1976, he was asked by Stephens. who then was moving his office to the Powell Street building. to "become head of the Sutter Street building." Warton testified as tol- lows relative to his new responsibility, and that testimony is corroborated by Stephens: A. Well. I was head of the building. I was not as such Director of Fine Arts. I was head of the building, and then yes I did have an office. Mr. Stephens wanted me to take over his office, which he was vacating on the ground floor, and I told him that I preferred to stay on the fouth sic] floor, closer to the photography de- partment, which I was heading. Q. Okay. Did Mr. Stephens tell you what your du- ties would be as head of the building? A. Loosely, he did, yes. Mainly he wanted me to be in charge of the building. to be there to make sure that the thing held together, to assist Jan Schroeder if she needed assistance, to be there if there was somebody that wanted to tour the building, to find out things, to make sure that the building was maintained properly. and that if there were questions from other teachers in the Fine Arts department, that I could somehow con- vey them to the administration. Q. Okay. Now did you receive any raise in pay as a result of your change of status? A. Yes. I did. Q. What was the change? A. I was raised to $18,000 a year. Warton further testified that Stephens told him he had consulted with Doyle, Pratchenko, and Rees about the change and the three concurred. Warton stated, ". . . didn't take over somebody else's responsibilities, exactly. I just filled in a spot that needed filling in at the time." War- ton received neither a written job description nor a written employment contract. He continued his work as chairman of the photography department, and head of the Sutter Street building, until December 24. as discussed infra. Doyle contends that whatever his status may have been as cochairman, he was relieved of that status "in the end of summer school" in 1976 and was replaced in that position by Warton. Doyle testified that from and including the fall term of 1976 he was nothing more than a rank-and-file teacher of painting classes. He said he was given a raise at the end of August 1976, from $600 per month to $700 per month, at the time he was relieved as cochairman of the fine arts department. Pratchenko testified that he became dissatisfied with the position of cochairman in July 1976. partially because he and Doyle were being given separate and different instruc- tions and because they were unable to obtain "specific guidelines" for their jobs as cochairmen. Pratchenko said that he told Stephens that he wanted only to teach and that Stephens agreed, saying "Fine. You can continue to teach four classes at $600 per month, with no administrative du- ties." Pratchenko testified that he and Doyle then met with Stephens. who told them Warton "was to take over the chairmanship of fine arts." Pratchenko taught three classes in the summer and four classes in the fall, and in August he and Doyle were raised to $700 per month, with pay to con- tinue during school breaks, without having to be at school. Stephens testified that the cochairman duties of Doyle and Pratchenko included building maintenance functions at the Sutter Street building. He said Doyle and Pratchenko were relieved of those building functions at the beginning of the 1976 fall term, when Warton took over the building, but were not relieved of any other duties as cochairmen. Ste- phens testified that Doyle and Pratchenko asked to be re- lieved of their building maintenance duties and that he de- cided to accede to their request. Stephens and Haight stated that Doyle and Pratchenko continued to exercise their au- thority as cochairmen until December, by making recom- mendations relative to the fine arts department, by signing documents as cochairmen, by participating in discussions relative to schedules and assignment of work, and by rec- ommending the hire of teachers. Discussion The first indication of organized activity protesting Re- spondent's administration is the student petition circulated at the school, discussed above. The petition is not dated, but it is found, based upon testimony of record, that the petition was circulated just prior to Thanksgiving. All ac- tivities of Respondent complained of herein occurred after circulation of the petition. The foregoing testimony and evidence relative to the date when Doyle and Pratchenko were relieved of their positions as cochairmen of the fine arts department are conflicting and inconclusive. Doyle and Pratchenko contend they were demoted by Stephens to rank-and-file instructors in late summer or early fall of 1976, but Stevens and Haight con- tend the two still exercised their authority as supervisors until December, when the critical events involved herein took place. Warton testified that when he was placed in charge of the Sutter Street building in May he did not take over anyone else's responsibilities, that he just "filled in a spot that needed filling in." There is no support for the testimony of Doyle and Pratchenko that Warton assumed the position of chairman of the fine arts department. Ste- phens denied that allegation, and Warton made it clear that 463 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he did not so understand his position." It is found that Doyle and Pratchenko still were cochairmen of the fine arts department, at least until December 1976. However, that finding does not resolve the basic issue. After the student petition was circulated in November, a number of events and confrontations among Doyle, Prat- chenko, Stephens, and Haight occurred. A confrontation of importance took place on a date which Doyle said was De- cember 22. Stephens said the date was December 21, but the difference is immaterial. The confrontation was at- tended by Doyle, Stephens, Haight, and Ryan. Doyle testi- fied that among other things, Stephens informed him that three of his classes for the next term did not attract enough students to fill the classes and that he would be permitted to teach only one class. Doyle protested and said Stephens was punishing him because of his support of the students who had circulated the petition. An argument ensued. Doyle said he wanted a contract, $700 per month, and four classes, and Stephens said he would think about it. On De- cember 24, Doyle talked with Haight on the telephone. Haight asked if Doyle then was ready to accept the one class Stephens offered at the meeting, and Doyle said yes. Haight then said he had been instructed to inform Doyle that if he wanted the class the offer was withdrawn because of Doyle's hostility toward the administration. On Decem- ber 27. Doyle received a discharge letter.' Stephens testified that sometime just prior to December 18 he talked with Haight about some classes, including Doyle's being too small, and advised Haight they would have to call Doyle in and cancel some of his proposed classes. Doyle came to see Stephens and Haight about the 18th of December, an argument ensued, and Doyle became upset and threatening. After Doyle left, Stephens apolo- gized to Haight for not standing up to Doyle, and said, "So he is going to call, and when he does, whether he were to accept or decline, he will not be here again. I promise you, and I apologize again." Doyle called Haight on December 24 and was fired by Haight, verbally on the 24th and in writing on the 27th. Haight testified that he and Stephens met with Doyle shortly after December 17, and they discussed the fact that some of Doyle's classes did not have enough students. Doyle became very upset, abusive, threatening, and pro- fane. Doyle was offered one class to teach, at a higher rate of pay, and he said he would call later on the telephone to give his decision. After Doyle left Haight told Stephens that if Stephens did not fire Doyle he, Haight, would quit. Ste- " Pratchenko's testimony on this subject cannot be relied upon. It is clear from his statements that, whether or not he ever was a supervisor within the meaning of the Act, he was pleased with the position of cochairman, enjoyed the responsibility involved, and expected to be treated by Stephens and Haight. the faculty, and students as occupying a position superior to that of a rank-and-file instructor. He was upset when he was not permitted to par- ticipate in preparation of the fall 1976 schedule, and he was annoyed when faculty members sought the advice of Warton rather than him, after Warton became head of the Sutter Street building. He said he resigned the position of cochairman after Warton was promoted, but he also testified that Ste- phens told him Warton had been appointed chairman of the fine arts depart- ment. Warton is qualified only in photography, Pratchenko is qualified pri- marily in painting and secondarily in other fine arts. It is doubtful that Stephens would have made the statement attributed to him by Pratchenko in view of the clear record that Warton never was chairman of the fine arts department. "2 GC. Exh. 10. phens replied that if Doyle called back to accept the one class Haight was to advise him that he had been termi- nated. Some conflicts in the testimony relative to this issue are apparent, but they were resolved by Stephens, who made it clear on cross-examination that, regardless of events that led to Doyle's discharge, Doyle first was demoted, then fired. Stephens testified: Q. Now at the time that Doyle was terminated, he was not a department chairman, was he? A. He was a department chairman up until Decem- ber-whenever we talked to him, which would be De- cember 24th. I happen to remember it because I think that's Christmas Eve. I always considered him to be co-department chairman. Q. He was a co-department chairman when you told him you wanted him to teach only one class? A. That was one of the reasons he began to be dis- turbed. Q. Well, let me see if I understand this correctly. In late December-we're talking about the 18th or so- A. I think maybe-let's say the 21st. Q. 21st. You offered Mr. Doyle one class and told him that he was to be removed from his other three classes? A. That's right, and relieved of any other responsi- bilities. Q. And any other responsibilities. And for that one class he was to receive $60 an hour per week? A. $60 a class. Q. A class. A. Yes. Q. Well, there was only one class. So it was $60 a week? A. Yes, that's right. Q. So he was no longer on salary? A. That's correct. Q. And then three days later he was fired? A. I didn't have that conversation, but yes. Q. So at the time of his termination, he was not a department chairman? A. You mean the three days later? Q. Yes. A. Well, he had been department chairman until the day we demoted him. Q. Yes. all right, fine, thank you. JUDGE STEVENS: And the date of that demotion was? WIT.: The 21st of December. JUDGE STEVENS: And he was demoted from what to what? Co-chairman of the department to? WIT.: TO INSTRUCTOR. JUDGE STEVENS: All right, thank you. Q. And then he was fired on the 24th? A. Whatever Mr. Haight said there, yes. It is apparent from the foregoing testimony of Stephens that the question of Doyle's status prior to 3 days before he was fired is immaterial. When Doyle was fired, he was an instructor, relieved of all other duties and clearly of rank- and-file status. So far as Pratchenko is concerned, he testified that he, Doyle, and Warton met with Haight and Stephens in the 464 ACADEMY OF ART COLLEGE latter's office on December 8. Schroeder was present during part of the meeting. Stephens called the meeting primarily to discuss the student petition, but some other matters were discussed. Stephens accused Doyle and Pratchenko of not "covering" for the administration, and accused them of being instrumental in preparing the petition. There was an argument, during the course of which Stephens told Prat- chenko he never would teach again. Doyle did not testify relative to Pratchenko's testimony concerning Stephens' statement about not teaching again, nor did Stephens or Haight. However, Haight testified that during the meeting of December 8 a principal subject was the administration's discontent with the fact that Doyle and Pratchenko were not giving adequate counsel to students, which is a responsibility of department chairmen. Haight testified that the administration believed inadequate coun- seling was a principal cause for the student petition. Haight testified that he first learned of the student peti- tion in mid-November. Animosity of Stephens and Haight toward Doyle and Pratchenko, from approximately the day they learned of the petition, is amply shown by the record. (a) Approximately mid-November, according to Haight's testimony, the school prepared its schedule for the spring 1977 term. Department chairmen, including Doyle and Pratchenko, usually participated in preparation of sched- ules. However, Doyle and Pratchenko were not asked to participate in any way concerning the spring 1977 schedule. Stephens explained this by saying that they were required to submit the schedule on shorter notice than usual, hence there was no time to coordinate with Doyle and Prat- chenko; but that explanation was not convincing and is not credited. (b) At the December 8 meeting, described above, Stephens and Haight discussed the student petition in de- tail. Haight testified that he stated that Doyle and Prat- chenko were responsible for the student problems because of their inadequate counseling. (c) On December 15, there was a faculty-student meeting, attended by Stephens, Haight, and Ryan, among others, at which the student peti- tion was presented to the administration. Pratchenko and Doyle spoke at the meeting, generally supporting the stu- dents' views. (d) On repeated occasions Stephens and Haight accused Pratchenko and Doyle of supporting the students against the administration, of doing their jobs im- properly or inadequately, and of not cooperating with the administration. (e) Doyle was demoted, and 3 days later terminated, in late December. At no time thereafter was Pratchenko advised relative to Doyle's replacement. (f) Pratchenko participated in the strike and picketing in Janu- ary, but that action was not questioned by Stephens or Haight on the basis of supervisory status. (g) Pratchenko did not attend any school meeting after mid-November in any capacity other than as a rank-and-file teacher. What- ever may have been Pratchenko's status prior to mid-No- vember, he was not treated as, nor given the responsibility of, more than a rank-and-file instructor after that date. He did not participate in any administrative function; he had no counseling duties; his maintenance duties already had been taken over by Warton: and he made no recommenda- tions concerning teacher assignments, new hires, discharges, or schedules. Based upon the foregoing. it is clear, nd I find, that Prat- chenko was not a supervisor within the meaning of the Act at any time after mid-November 1976, regardless of his sta- tus prior to that date. Rees was hired by Stephens in the summer of 1973 as an instructor in sculpture, at $40 per class. He taught continu- ously until January 1977. At a time fixed differently by Rees. Stephens, and Haight, but at least by 1975, Rees was appointed chairman of the sculpture department and raised to a salary of $700 per month, and later to $750 per month. From about the time he was promoted, Rees was the senior teacher in sculpture among the four usually employed. Rees was an evasive, unconvincing witness who avoided direct answers and who gave the distinct impression of trying to becloud the issue of his status. Although it appears doubtful that much of his testimony is reliable, he testified to some undisputed facts relative to his status: In addition to teach- ing, Rees supervised the maintenance of equipment, tools, and machinery used in the department. As time went on after his promotion, he was given more to do. He counseled students, purchased supplies, had sole responsibility for de- signing and setting up the sculpture department, approved various forms for the sculpture department, and had an office with a desk. He talked with Stephens about Wolfe when the latter was hired: he recommended that Laughler and Falconi be hired, and they were hired. He was paid salary during recesses, when he did not teach. Sometimes he advised instructors, and at times instructors would come to him for advice. He was the conduit for communication, when one was needed, between sculpture instructors and Stephens. There was a maintenance crew of two or three persons on his floor of the building, which he directed "at times." Although Rees was less than candid, Stephens and Haight were even less convincing. Stephens testified that in January 1977 he talked with Rees about hiring teachers for the spring term of 1977. Rees recommended for hire (prior to the spring of 1977) teachers Falconi. Laughler, Lean," and Edwards. He discussed with Rees the discharge of Ed- wards and Lean. Haight testified that Rees' recommenda- tions for hire of the four teachers named above were fol- lowed "totally." The discharges of Edwards and Lean were discussed by Haight with Rees, who agreed thereto and who asked Haight to do the discharging, since Edwards was a close friend of Rees. The hire of Wolfe was discussed with Rees. On rebuttal, Rees denied that he recommended the dis- charge of Edwards; he said he was informed about, rather than asked about, Edwards' difficulties; and he said he nev- er recommended, or was asked about, the discharge of Lean. It appears from the record that Rees, as a department chairman, was treated somewhat differently from Rees as an instructor. As chairman, he enjoyed some measure of prestige. He was senior instructor in sculpture. Occasionally he was consulted by management relative to departmental affairs. He kept the physical assets of the department in proper condition. although purchase orders had to be ap- proved by Stephens. However. the record does not show 1' Various spellings b) the reporter: Lein, Lean, Leen. 465 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Rees supervised anyone. 4 There is no showing that he directed the work activities of any instructor on a regular basis or that he disciplined any instructor. Possibly, but not certainly, he recommended some actions for the depart- ment to be taken by Stephens. The nature of his recommen- dations relative to Laughler and Falconi is far from clear, and it appears that those recommendations were incidental, rather than of a supervisory nature. It is clear that recom- mendations for the hire of instructors is on a free and easy basis at the school; it seems that almost everyone, including students, gets into the act. However, most important, it is quite clear that Stephens and Haight did not think of Rees as a supervisor until this case arose. It was not shown that Rees ever exercised independent judgment in any supervi- sorial function. When the union problem arose, Rees was not approached on the basis of a supervisory position: he was treated the same as all other instructors. It is found that Rees was not a supervisor at any time relevant herein. The question of the reason for his discharge is discussed infra. Respondent alleges that Pratchenko and Rees were not terminated. Pratchenko testified that he called Haight by telephone on January 20, after their discussion on the preceding day wherein Pratchenko was asked to sign the contract pre- pared by Respondent. Pratchenko said he told Haight he didn't want to lose his job, but he could not sign the con- tract. Pratchenko then testified: Mr. Haight said, "Well, if you don't sign it, you know what it means." I said, "Well, what does it mean?" He said, "It means that you are terminated." And I said something to the effect, "That seems awfully final. Does that mean I'm fired?" He said, "Yes, you are fired." I said, "Well, okay. Can I collect my pay since I was on salary from the Ist to the 20th?" He said, "Yes, you can collect that from Mr. Ryan and we'll send you a letter notifying you of your termination. Goodbye." That was it. Pratchenko testified that he attempted after January 20 to get a firm statement from Stephens as to whether or not he was fired but was not successful. He has never received a discharge in writing, but he has been unable, even following court judgment, to collect pay due to him for work in Janu- ary. Pratchenko has not received an unconditional offer for return to work, as discussed elsewhere, nor has he worked for Respondent since January 20. Stephens testified that during a conversation with Pratchenko after January 18 Pratchenko said, "He wasn't going to sign any contracts, and he wasn't going to work. Never." Stephens also testified that during a group meeting in late January Pratchenko asked, "Is Joe Rees fired?" and Stephens replied, "No." Finally, Stephens testified that he never gave Pratchenko an offer of work at any time for the spring 1977 term. It may well be that Pratchenko sometimes was referred to, or treated without distinction, as one of the group of instructors involved herein. He was a picketer, but that does not resolve the issue, nor is there validity to the argument 4 Edwards and Wolfe credibly testified that they never were told Rees had any authority over them. This testimony supports General Counsel's conten- tion that Stephens and Haight were the effective supervisors of the sculpture department, rather than Rees. that since Pratchenko never received a written discharge he was not fired. Pratchenko's version of the telephone conver- sation with Haight on January 20 is credited. Haight did not deny Pratchenko's testimony relative to this point. In view of the foregoing, and the facts that Pratchenko has not gone back to work and that he has been unable to collect his pay for work performed in January, it is clear beyond reasonable question, and I find, that Pratchenko was fired on January 20. So far as Rees is concerned, he testified that following his refusal to sign Respondent's contract on January 18 dis- cussed supra, he was asked to resign: So, then, Mr. Haight became kind of upset and he grabbed a piece of paper and he started writing out what he called my resignation. And of course I was like caught in this bind, and I told them, I said, "Well I'm not going to sign my resignation." And I got into the whole thing about how I had been at the Academy longer than Mr. Haight, and that I felt very responsible and I was interested in working the problems out, not walking away from them. Q. What further discussion took place? A. Well, not much except for I was told that I would receive a letter. And I got up and I left the room. Rees said he never received the letter referred to by Haight, and he testified that he has not been paid for the 18 days he worked in January. Haight testified relative to part of the conversation with Rees on January 18: Q. I see. And in the meeting with Mr. Rees, did you ask him to sign a resignation? A. When he was asked, "Was he going to work?" And he said, "No." Then I said, "Apparently you're not going to assist us in finding replacements?"He said, "No." And then I said, "Then you're apparently re- signing, is that correct?" And he said, "No." I didn't know what he was doing. So I drafted a resignation for him on the spot, and asked him to sign it. Because I told him if he wasn't going to help us, I'd find some- body who would. Q. And he didn't sign the resignation? A. No. Q. He did not resign? A. In my estimation, he resigned. Haight further testified that Rees never returned to work. The arguments relative to Rees are similar to those rela- tive to Pratchenko, discussed supra. Rees' testimony relative to the conversation at the meeting of January 18 is credited. In view of that fact, and the facts that Rees has not gone back to work and that he has been unable to collect his pay for work performed in January, it is well established, and it is found, that Rees was fired on January 18. The remaining question on this issue is whether the three employees were fired because of their union or other pro- tected activities. So far as all three employees are concerned, there is no reasonable question concerning the reason for their dis- charges. Counsel stipulated at the hearing the Union's sta- tus under the Act. All three employees had lengthy and 466 ACADEMY OF ART COLLEGE satisfactory work histories with Respondent;" their first problems with Respondent arose upon their becoming in- volved with the student petition and, soon thereafter, be- coming involved with the Union. Stephens and Haight learned of the student petition in mid-November. They dis- cussed the petition with Doyle on December 6 and with Doyle and Pratchenko on December 8, 1976. At the fac- ulty-student meeting on December 15, 1976, Doyle and Pratchenko. among others, supported the students rather than the administration. On December 22, 1976, Doyle's class load was reduced and, shortly thereafter, Doyle was demoted and, 3 days later, fired. There is no reasonable question that Doyle, whose relationship with Respondent prior to mid-November was good, was fired because of his support of the students and their petition, which included several matters directly related to working conditions of the teachers. Haight's testimony concerning Doyle's discharge appeared strained and unrealistic, and is not credited. Pratchenko and Rees also had a good relationship with Respondent prior to mid-November. However. they be- came involved with the union movement in late December and early January, and by the time they were fired, that involvement was well known to Stephens and Haight. It is clear that the personal contracts offered to Pratchenko and Rees were attempts by Respondent to frustrate the Union's hope of obtaining a group contract. It is equally clear that the two employees were fired because they declined to sign those contracts. Under such circumstances, and against the background of Respondent's animus against the Union, the discharges of Pratchenko and Rees violated Section 8(a)(3) of the Act. I. The Strike and the Nature Thereof Paragraph IX of the complaint alleges, inter alia, that employees were engaged in an unfair labor practice strike from January 20 until February 16, 1977. The alleged dates of the strike are confirmed by the record. Respondent contends that the strike was for recognition or was economic in nature, but that contention has no sup- port in the record. It may well be, as Respondent argues, that an employer may require that an employee sign an employment agreement as a condition of work. However, that requirement can be imposed only in circumstances free from union activity. In this case Stephens demanded that employees Doyle, Pratchenko, Rees, Cohen, and Sher sign Respondent's personal contracts at a time when Stephens and Haight were in the midst of negotiating a contract with the Union, as discussed supra. The clear purpose of that effort by Stephens was to interfere with the Union's organi- zational efforts, in violation of the Act. Further, by the time the strike commenced, Doyle and Rees had been termi- nated by Stephens because of their protected activity. The employees met the evening of January 19, in an "emergency" session, to consider Respondent's actions, which, they believed, were unfair labor practices. After dis- cussing incidents related to them by participants, which es- tablished to their satisfaction the illegality of Stephens' ef- "' Any earlier dissatisfaction with Doyle was forgiven upon his rehire. forts to discourage the Union in its organizational efforts, the employees voted to go on strike. Nothing was said in that meeting, and nothing in the record even hints, about a strike for recognition, or for economic reasons. The employ- ees struck, and picketed, solely because some of them were being threatened, harassed, and dischargd because of their union activities?6 The employees' offer to return to work The negotiating committee met with Stephens and Haight on January 28 in Stephens' office. Some of the strik- ers had been replaced, and Stephens offered reinstatement, with at least one class to teach, for all strikers, provided classes were available. That proposal was declined by the strikers. Just after that meeting, and prior to commence- ment of school on January 31, Stephens advised all strikers in writing" that those who did not return to work on Janu- ary 31 would be "permanently replaced." This letter consti- tuted, in effect, a discharge of the strikers. The negotiating committee again met with Stephens and Haight on February 3, but no agreement was reached. On February 4, a group meeting was held, attended by, among others, Stephens, Haight, striking faculty members, and nonstriking faculty members. Stephens offered rein- statement of the strikers, on a selective basis. 8 That condi- tional offer was declined by the strikers. On February 14 or 15, the strikers met and decided to offer unconditionally to return to work. By letter dated February 16, received by Respondent on February 17, the Union's attorney addressed Stephens as follows: I have been authorized by the California Federation of Art Teachers, Local No. One, its members and all persons participating in the strike against the Academy to offer unconditionally to return to work immediately. Accordingly, all strikers hereby offer unconditionally to return to their jobs immediately. In order to arrange a convenient and orderly return to work, please contact Ernest Posey to arrange rein- statement for the strikers. Please send a copy of all correspondence regarding reinstatement to me. These requests are not conditions upon our offer. The offer was not accepted by Stephens. No striker was hired during the spring term. Those employees on strike from January 20 through Feb- ruary 16, 1977, and who were not given jobs pursuant to " Mastro Plastics Corp., and French-American Reeds Mfg. Co., Inc. v. N.L.R.B., 350 U.S. 270 (1956). Respondent contends, through the testimony of Stephens and Haight, that the parties arrived at an agreement in Stephens' office on January 21. It is argued that the penciled notes made by Posey on Resp. Exh. 4, together with the typed portion of the exhibit. represent the agreement of the parties and that the Union violated that agreement by not adhenng to it. That contention is without merit. Posey, who took the notes for the group, Rees, and Sher testified that at the meeting Stephens and Haight gave their counterproposals to the negotiating committee, item by item, and Posey wrote the proposals down on Resp. Exh. 4. The employees further testified that they told Stephens and Haight they would take the counterproposals back to the Union for review. They said G.C. Exh. 16 is the Union's response to Stephens. The employees' version is consistent with the chronology of events and exhibits of record, and is credited. 7 Resp. Exh 8. i" Some nonstrikers said they would not work with some of the strikers. 467 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their unconditional offer to return to work were stipulated by counsel to be as follows: Leslie Becker, Karl Cohen. William Cutchins, Dennis Gray. Tom Keller, Anna Rosich, Elizabeth Sher. Mort Kohn, Jan Oswald, Ernest Posey, Ju- lie Roman, Dave Sanchez, Louise Stanley, Jack Stone, Marion Swetschinski, Dick Warton, Tom Wojak, and Bev- erly Wolfe. In addition to the foregoing, the following persons, whose status is discussed infra, were strikers during the aforesaid period of time: Joseph Doyle, Joseph Rees, Elizabeth Sher, Paul Pratchenko, and Kenneth Light. It is found, above, that the strike was an unfair labor practice strike, and it is also found that on January 28 Re- spondent discharged the strikers named herein because of their participation in the strike."9 The strike continued until February 16, and none of the strikers were reinstated. The strike ended on February 16. The strikers' offer to return to work and to abandon the strike having been re- ceived by Respondent on February 17, backpay of strikers will be recommended to commence on February 17, 1977.40 J. Supervisory Status of Warton, Keller, and Sher One of Respondent's defenses is that Warton, Keller, and Sher are supervisors, hence there is no duty to reinstate them. The employment status of the three is discussed be- low. 1. Warton When Warton agreed to become head of the photogra- phy department effective January 1. 1976, he was given a salary of $15,000 per year and was given the responsibility of "making a good photography department." He was told by Stephens that Warton would assist in scheduling classes, hire or at least recommend teachers for hiring in the pho- tography department, be in charge of work-scholarship stu- dents, and be in charge of equipment. Thereafter, in May 1976, Warton was placed in charge of the Sutter Street building and raised to $18,000 per year, as discussed above.' Warton administered the photography department and the Sutter Street building continuously after his two appointments. However, a change was made in his status on December 20, 1976. Warton attended the administration-faculty-student meeting of December 15, 1976, and spoke on one occasion while there. He addressed some critical remarks to Ste- phens, who took exception to what Warton said. On De- cember 17, 1976, Haight called Warton by telephone and said Stephens would like to talk with him. Warton came to Stephens' office on December 20, 1976, and they had a con- versation. Warton testified that Stephens started the con- 9 Respondent's letter of January 24, written to all instructors, was a con- ditional offer of reinstatement which, if not accepted, would constitute a discharge. However. it is found that the actual discharge occurred on Janu- ary 28. 4o As General Counsel discusses in his brief, Respondent sent offers of reinstatement to 22 striking teachers in July. Eighteen teachers accepted the offers. Offsets, if any, against backpay ordered herein can be applied in compliance proceedings. 1 A finding relative to supervisory status is not necessary, in view of later events. However, it is clear that as of May 1976 Warton was a supervisor within the meaning of the Act. versation by asking, "How would you like to be relieved of your responsibilities and just teach?" Warton asked, "Re- lieved of all my responsibilities?" and Stephens said, "Yes." Warton asked why, and Stephens said Warton was not doing the job the way they wanted it done; there had been complaints by instructors; and two of the teachers Warton hired should be fired. Warton asked if the reason was his remarks at the meeting of December 15, 1976, and Stephens said no. Stephens then talked about changes he was going to make. Warton replied: I said, "Well, that means I'm fired as far as department chairman?" And he said, "That's right." And he said, "You have three classes, we'll give you a raise now to $60 a class, which would be $180 a week." And I said, "Well, I didn't know whether I could accept that, but I would let them know." Warton said he called Haight within a week, agreed to "just teach." and offered to break in "whatever replacement" was given the job Warton had. Warton thereafter attended union meetings, signed the union charter, and engaged in the strike and picketing. Stephens corroborated Warton's testimony, and con- firmed that he asked Warton in December "would he please become a teacher as he had been." Haight, who attended the conversation between Warton and Stephens, corroborated the two accounts of the latter. It is quite clear, based upon the foregoing, and I find, that Warton was not a supervisor within the meaning of the Act at any time after approximately December 20, 1976. 2. Keller Keller was hired by Stephens in January 1976 as chair- man of the advertising department. His duties were to teach, do advertising for the school, and counsel students. He monitored teacher attendance and teacher production. He was paid $1,500 per month during all months, whether or not he was teaching. He prepared school advertisements and window displays and supervised production of the school newspaper. He testified that he had implied author- ity to recommend hiring and firing and that he made many such recommendations?2 Keller testified that he attended the administration-fac- ulty-student meeting of December 15, 1976, and spoke briefly about the importance of student counseling. He met with Stephens, Haight, and Ryan on December 20, or pos- sibly December 28, 1976, at which time Stephens told him "that was the end of my chairmanship and that now, if I wanted to, I could teach some classes as an instructor." Tentatively, he was assigned three classes for the spring 1977 term, at $60 per class. Stephens said Mr. Dattel, who had been hired in November, would become chairman of the department instead of Keller. Stephens testified that he was not satisfied with Keller's work as chairman of the advertising department and that he discussed Keller's deficiencies with him. Stephens stated, "So it developed that we chose Mr. Dattel, and Mr. Keller 1' A finding of supervisorial status of Keller is not necessary, as discussed infra, but it is clear that he was a supervisor within the mearung of the Act until relieved of that responsibility. 468 ACADEMY OF ART COLLEGE was agreeable to teaching.... " Stephens said he advised Keller of his decision to replace him with Dattel about De- cember 17 or 18, 1976.43 Haight testified that he had complained to Keller about the latter's work deficiencies and that Dattel was hired as Keller's replacement in the position of chairman of the ad- vertising department. Haight said Keller accepted the offer of a teaching job given to him by Stephens for the spring term of 1977. Based upon the foregoing, it is clear, and I find, that Keller was not a supervisor within the meaning of the Act after approximately December 20. 1976, when he became a rank-and-file teacher." 3. Sher Sher first was hired by Respondent in February 1974 as a printmaking instructor and taught thereafter through the fall term of 1976. She was paid $40 per class until the fall of 1976, when she received $50 for one class and $40 each for two other classes per week. Sher described her duties as follows: A. I was responsible for ordering supplies for my own classes, and arranging the curriculum for my own classes, and making sure the equipment for my classes was working, and leaving a supply list for supplies the students would buy for the classes, and I had indepen- dent study students, and I graded students, and I coun- selled students on an informal basis. Q. What was the procedure on obtaining supplies? A. Well, the supplies that the students were to buy, I would submit a list to the school store to have those supplies available, and for other supplies. I obtained a purchase order from Mike Ryan, and for any individ- ual supply over $25 had to obtain permission from Mr. Stephens. Sher testified that there was an attempt by the school in 1975 to establish "some kind of a structure" in the fine arts department, but there was no apparent success. She said she received a xerox "flyer" in her mailbox listing several department chairmen and showing her and Barbara Foster (Foster), the only teachers in the department, as chairmen. She said she does not think there is a chairman at the pre- sent time. Other teachers have taught in the department in the past, but presently there are only two, Sher and Tom Wojak (Wojak). Sher said the only recommendation for hir- ing she has made was that of Carol Lane, whom she recom- mended as her replacement for one semester when Sher was on a leave of absence. She said she counsels students in the same manner as do all instructors and that she approves. but does not sign, independent study contracts. She stated that she makes recommendations to Stephens relative to equipment for the department, which may or may not be followed; that Stephens makes all decisions on equipment purchases. Sher testified that no one has ever told her what 41 Stephens later testified that it was his intention to have Dattel take over the department from Keller at a salary of 518.000 per year. (See G.C. Exh. 20.) " General Counsel did not allege that the demotions of Warton and Keller violated the Act, and no finding is made on that point her authority is, nor did she agree to, or discuss, the flier she received in the mailbox in 1975. Barbara Foster testified that she worked for Respondent from February 1975 until January 13, 1977, in the print- making department. with three other teachers: Sher. Wo- jak, and Merrill Freedman. Foster said no one ever told her that Sher had any authority over her. She said she was told to report to Haight and that, on one occasion. Haight repri- manded her. Stephens testified that Sher was made chairman of the printmaking department in 1974 but that he does not re- member telling her she was chairman." Counsel stipulated that printmaking is one of the fine arts ma)ors. Stephens said the only time he discussed personnel with Sher was after Foster left. and possibly on one other occasion when he already had someone in mind for a teaching position. Stephens said Sher only teaches three times each week, and the average class consists of four or five students. Sher's testimony that she never was told that she had supervisory authority; that she never hired, fired, effectively recommended, directed, or otherwise supervised other em- ployees;46 and that she did not consider herself as a supervi- sor is given full credence. Foster corroborated much of Sher's testimony. Neither Stephens nor Haight testified to facts that appreciably differed from the testimony of Sher and Foster. It is abundantly clear, and I find, that Sher was not a supervisor within the meaning of the Act at an, time relevant herein. K. The 8(aI(2) A4llegations Paragraph VIII of Case 20 CA 13369 alleges that since on or about March 9, Respondent unlawfully has domi- nated and assisted the Facultv Senate by acts and conduct discussed infra. The Faculty Senate's status as a labor organization Although, possibly, there have been a ew instances in the history of Respondent when rudimentary faculty or- ganizations were attempted. it is clear, as acknowledged by Stephens and FitzSimons, that there never has been a fac- ulty senate, as that term is used in this case, prior to Janu- ary' 1977. It is equally clear that whatever the Faculty Senate was when it first was established by Stephens in the Commit- ment of January 24, that organization was changed, and the issue herein can be resolved on the basis of the Faculty Senate as it exists under the Revised Commitment of June 8, and under practice and procedures of Respondent acting pursuant thereto. " Stephens testified that he did not feel Foster was a chairman. but Resp Exh. 5 shows both Sher and Foster as chairmen Stephens could not explain this discrepancy, which dilutes the reliability of the exhibit. " Erin Theilacker testified that she was a work-study student in 1974 and 1975 and that she assisted both Sher and Foster in the printmaking depart- ment, at the direction of Stephens. Aside from the fact that work-study students are not paid for their work, other than by tuition, and are not employees in the true sense of the word. it is clear that Theilacker merely assisted Sher and Foster in an incidental manner. No element of the normal supervisor-emploee relationship was present. and Theilacker's status did not result in making Sher and Foster her superisors. 4069 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A basic inquiry is the reason for creation of the Faculty Senate. The controversy involved in this case arose in the fall of 1976, when a petition to Respondent appeared, alleg- edly prepared by students. It appears likely, as suspected by Respondent. tht Doyle and, possibly, Pratchenko either thought of the petition or strongly encouraged it, since the petition is concerned with teacher problems as well as stu- dent problems. Among improvements sought by the peti- tion are four directed to personal improvements for faculty members. However, regardless of the manner in which the improvements were suggested, at least 23 of Respondent's approximately 58 instructors working at that time pressed for those improvements to the point of striking when they were frustrated in their organizational attempts to obtain the improvements. When Stephens became aware of the teachers' organizational efforts, he mounted, with the sup- port and assistance of Haight and others in the administra- tion, a campaign to defeat that organization. A rival organi- zation, the Faculty Senate, suggested itself as a part of the campaign. The first attempt to create such an organization, in January. was feeble and incomplete, but the thought was there. The student petition sought improvements for teach- ers by way of work contracts, better wages, insurance plans, and paid independent study. Those improvements are found in the Revised Commitment at sections 3. 4, and 7. In addition, the Revised Commitment provides other improve- ments and benefits, several of which were suggested by teachers during the early stages of the controversy. In view of the facts that (a) no Faculty Senate existed prior to this controversy (b) Respondent was strongly opposed to the Union: (c) Respondent availed itself of every opportunity to frustrate the Union and its representatives, and to en- courage the Faculty Senate; and (d) the membership of the Senate eflectively is controlled by Respondent, it is clear beyond any reasonable doubt that the purpose of the Sen- ate's formation was to provide Respondent with a way to regulate working conditions through an in-house arrange- ment, rather than through negotiation with an independent union.47 The fact that the Revised Commitment provides a way to regulate working conditions through a controlled vehicle is apparent. (a) The entire Faculty Senate structure can be eliminated b Stephens, just as he caused its creation. The Commitment is no more than a statement of intention by Respondent; it is not an enforceable contract between legal entities. (b) Under the Commitment, department directors are appointed by the "administration," albeit "with the ad- vice of the Faculty Senate." The Senate is comprised of the five directors, five elected faculty members, and an eleventh faculty member chosen by the Senate to act as an "ombuds- man." Since all the faculty is under the directors, Stephens and Haight. it is most unlikely that the administration would encounter difficulty in getting the Senate to act in a manner desired by the administrators. The fact that the Commitment is an arrangement to regu- late working conditions, as well as matters of an adminis- trative nature, is shown by the Commitment itself. The Commitment provides for status of faculty members, types 4' Counsel stipulated that there are no authorization cards or membership applications signed b employees, designating the Faculty Senate to be em- ploees' bargaining representative. of leave, hiring and termination, wages and benefits, sever- ance pay, class size, and grievances, among other things. As a practical matter, the Faculty Senate meets regularly with Stephens and other members of the administration, and together they have discussed and decided issues related to election of Faculty Senate representatives, class size, cur- riculums, progress of the NLRB case, status of faculty members. student counseling, professional responsibilities of teachers, leaves of absence, status of the Union, termina- tions of employees. grievances, ' and many other matters. FitzSimons was an unusually impressive witness. She was knowledgeable, sincere, calm, and convincing. Her testi- mony was candid and free of antagonism, and she is cred- ited.4" She testified: Q. September 22nd wasn't the first time that you had considered having a Faculty Senate election, was it? A. No. As a matter of fact, we were trying to debate about what was going to happen. The situation was that the previous semester when we set up the term of office as running roughly from October to October for the Faculty Senate, we knew that the election would be held in late September or early October, something like that. and then we find out that this Board election comes in. It was going to inundate the faculty and probably confuse them as to what they were voting for, up to a point, if they weren't really up-to-date on it, and I think what we were doing was, we were going to wait and see the outcome of the Board election be- cause if the Union had prevailed on the Board election, my understanding was that the Faculty Senate, the whole effect of that would be vitiated. There would be no need for it any longer. CROSS-EXAMINATION Q. (By Mr. Harrington) What did you understand the obligation of the Faculty Senate would be if the Union won the NLRB election? A. I think the Academy would then be required to bargain collectively with the Union on terms and con- ditions of employment. Based upon the foregoing, it is clear that the Faculty Senate is in the nature of an employer's committee, estab- lished to deal with the Employer on behalf of all faculty members relative to wages, hours, and working conditions, among other things. Such a committee is a labor organiza- tion within the meaning of the Act. 0 The fact that the Sen- ate is not formally organized, with a constitution and by- laws, is immaterial.5 Respondent's domination of, and assistance to, the Fac- ulty Senate are shown by the following: I. The testimony of FitzSimons, Stephens, and Haight ,, Prior to the Commitment, Respondent had no formal grievance proce- dure. 4, The summary herein of Faculty Senate discussions is drawn from Fitz- Simons' credited and unchallenged testimony. so ,v L. R. B v. Cabot Carbon Cotnpany and Cabot Shops. Inc., 360 U.S. 203 (1959); Ala Bates Hospital, 226 NLRB 485 (1976). 5 North American Rockwell Corporation, 191 NLRB 833 (1971). 470 ACADEMY OF ART COLI.EGE establishes that Respondent negotiated working and other conditions with the Faculty Senate during preparation of the Revised Commitment and thereafter. 2. Through appointment of department directors, Ste- phens effectively designated 5 of the 10 members of the Faculty Senate. 3. Counsel stipulated that the Faculty Senate has no funds of its own and that all of the Senate's expenses are paid for by Respondent. 4. Counsel stipulated that Respondent has provided all facilities, equipment, clerical services, and mailing expenses required by the Faculty Senate. 5. Counsel stipulated that Stephens. Haight, and Schroeder have attended meetings of the Faculty Senate since March 9. 1977. In view of the Faculty Senate's status as a labor organiza- tion, and the Senate's domination by and assistance re- ceived from Respondent. this allegation is proved. L. Denial f Fmnplovment Paragraph IX of the complaint in Case 20 CA 13369 alleges that from on or about September 1 through about September 15 Respondent denied employment to the fol- lowing teachers because of their protected activity: Joseph Doyle, Elizabeth Sher, Dave Sanchez, Mort Kohn. Ken- neth Light, Ernest Posey, Julie Roman, Paul Pratchenko. Louise Stanley. Jack Stone, Tom Wojak, Marion Swet- schinski, Karl Cohen, and William Cutchins, Counsel stipulated that, on September , 1977, Respon- dent cancelled classes as follows: Joseph Doyle I class. Elizabeth Sher-- 3 classes, David Sanchez--I class. Mort Kohn I class, Ken Light5 -- I class, Ernest Posey 9 out of 10 scheduled classes, Julie Roman I class. Paul Prat- chenko 2 out of 3 scheduled classes, Louise Stanley I class, Jack Stone I class, Marion Swetschinski I class, Karl Cohen 3 classes, and Joe Rees 2 out of 4 scheduled classes. Tom Wojak and William Cutchins were named in the complaint as having been denied employment, but those two were not included within the stipulation of counsel. However, the two were stipulated to have been strikers, and Haight testified that no striker listed on the initial schedule or the revised schedule" was given classes for the fall term of 1977. Based upon the record and stipulations of counsel, it is clear that: (a) Respondent strongly opposed the Union and deeply resented the strike and those who participated in it. (b) The Faculty Senate was created in order to negate or destroy the Union. (c) In creating the Faculty Senate. Ste- phens relied upon nonstriking faculty members, and prior to creation of the Senate, there was a sharp cleavage be- tween strikers and nonstrikers. Some of the latter said they would not work with the strikers. (d) By the time of the fall term, which started in September 1977. the Faculty Senate was a going concern, and the administration was deeply 2 Counsel stipulated that, if called to testify. Light would testify that he was hired hy Mr. Dick Warton to teach at the Academy of Art College for the spring term 1977, beginning January 31. and accepted that employment and was scheduled to teach for that term, and that prior to the start of the term on January 31. Mr. Light participated in the strike called by CFAT. " G.C. Fxhs 50 and 51. involved with it relative to the facult's wages, hours. and working conditions, as well as other matters. (et No striker was on the Faculty Senate, nor did an' striker vote for faculty representatives. (f) No striker , as iven a normal teaching schedule for the fall term, and some were g en no classes to teach. (g) Respondent hired several new instruc- tors in the fall of 1977, some of whom taught classes which some of the strikers were qualified to teach. (h) Some classes were split, with junior, nonstriking instructors givten a split class when otherwise they would have had no class. (i) Eight less-than-minimum classes were conducted, hut they were taught by nonstriking instructors. ) Respondent failed to provide students an adequate opportunity to regis- ter for classes of returning strikers. General Counsel thus created the inference that those teachers named above were denied teaching opportunities because of their striking and their support of the Union. Respondent offered, by way of rebuttal, the following tes- timony and evidence to show that those who were not given normal teaching opportunities were so denied because of business reasons: (a) Because of the strike, the number of registrants for the fall term dropped drastically from pre- strike totals: thus fewer teachers were required in the fall." (b) All strikers were offered reinstatement in Jul3 , and, in addition, offers of reinstatement were given in J.ulv to Doyle, Pratchenko, Rees, Sher. Keller. and Warton. all of whom accepted except Warton. (c) Some classes were can- celed because of less-than-minimum enrollment, including classes for two nonstriking teachers. (d) Some of the strikers taught advanced courses, and niany registrants for the fall term were new students who wanted elementary courses. (e) Wojak was offered classes, but did not report for them. (f) Haight and Stephens testified that they issued instructions to department directors to show no prejudice toward any teacher. Di.icussion Respondent's antipathy toward the t!nion and its sup- porters, displayed by the intensive and pervasive unfair la- bor practices discussed herein, makes it clear that ever' effort would be made to reward the administration's sup- porters and to retaliate against union supporters. There is no indication that any of the teachers named in this allega- tion had experienced any difficulty obtaining teaching as- signments in the past, even though some of them have taught for Respondent each year during the past several years. The fall term of 1977 was the first term fllowing inception of this controversy that afforded Respondent an opportunity to freeze out those teachers whom it resented, and that is the action that was taken. Haight, who was Respondent's principal witness on this issue, explained the otherwise unusual failure to find classes for so many experienced teachers by stating that he merely followed the school's rules relative to minimum classes. However, that explanation is not convincing. First. such extensive failures to meet minimum classes were not sho n to have arisen in the past. Second, it violates commonsense to say that all above-minimum classes just happened to he A Hlaight credibly testified that prestrike student population was 1135 In 119 classes and post-strike totals were 845 students in 158 classes. 471 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taught by antiunion instructors and all union supporters just happened to have no classes, or only a severely cur- tailcd number of classes to teach, especially in view of Re- spondent's strong union animus. Third. Haight is in virtu- ally complete control of' registration of students, scheduling of classes, and assignment of teachers. Any explanation he gives is based upon his subjective reasoning. His explana- tions were general in nature, andl the facts he said he relied upon either were not presented or were subject to more than one interpretation. For instance, he explained the size of some classes by saying that sometimes the same number who registered did not actually appear for the classes, but no specific figures or classes were given. Again, alleged fluc- tuation in registration figures, enrollment figures, and ac- tual attendance were used to explain why classes were or were not split, but no specific examples were shown. Fourth, even though registration figures for the fall term were substantially below those of the year before, several new teachers were hired. Hlaight explained that the new teachers were for subjects the union supporters were not qualified to teach, but that explanation did not withstand cross-examination. It is clear from the foregoing that the teachers named above were not given classes on a basis free from antiunion animus. It may be that in some instances classes would not have been available, or accepted, even in the absence of discriminators treatment, but that is a subject that can be explored at the compliance stage. Suffice it for these pro- ceedings to find that class assignments for the fall term in- tentionally were made by Respondent to favor antiunion teachers, or neutrals, and to retaliate against union support- ers named above. Assignments should have been made on the basis of experience. past practice, and regularly ac- cepted criteria, free from any consideration related to union or protected activities. 'Ihis allegation wVas proved. IV. ltlit :I:iT( I Ili t'N:FAIR I At()R PRACTICES UPON (()MMFER('E Respondent's activities set forth in section IIl. above, oc- curring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the scveral States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. \. IHF RNMED)Y Having found that Respondent has engaged in unfair la- bor practices in violation of Section 8(a)(1), (2), and (3) of the Act. I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. It has been found that Respondent unlawfully discharged its employees Doyle, Rees. and Pratchenko. I will, there- fore, recommend that Respondent offer Doyle, Rees, and Pratchenko their former jobs or. if those jobs no longer exist, substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings suffered by reason of the discrimination against them, by payment to them of sums of money equal to what they normally would have earned, absent the discrimination, less net earnings during such period, with interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 55 It has been found that on January 28 Respondent unlaw- fully discharged all employees named hereinbelow, who en- gaged in an unfair labor practice strike from January 20 until February 16. 1 will recommend that Respondent offer to each and all of the strikers immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, replacement teachers, and make said strikers whole for any loss of earnings suffered by reason of the discrimination against them, with backpay to commence on February 17, with interest thereon to be computed as de- scribed above. It has been found that from on or about September 1 Respondent denied employment to its employees named hereinbelow. I will recommend that those employees be of- fered teaching positions to which they ordinarily would have been assigned but for the discrimination against them, commencing with the start of the fall term of Respondent in 1977, dismissing, if necessary, replacement employees, and make said named employees whole for any loss of earnings suffered by reason of the discrimination against them, with interest thereon to be computed as set forth above.'6 Upon the basis of the foregoing findings of fact, and upon the entire record, I hereby make the following: CONCLUSIONS OF LAV 1. Stephens Institute, d/b/a Academy of Art College, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. California Federation of Art Teachers, Local No. One, and the Academy of Art College Faculty Senate are, and at all times material herein have been, labor organiza- tions within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(l) of the Act by in- terrogating its employees concerning their protected activi- ties; threatening its employees with termination if they re- fused to sign individual employment contracts: threatening its employees with physical injury if those employees en- gaged in future protected activity; threatening to lock out employees who supported the Union; offering employees more work at a higher salary if the employees would aban- don their protected activity; soliciting employees to engage in suveillance of a union meeting; and threatening to close the school rather than deal with the Union. 4. The strike of Respondent's employees from January 20 until February 16 was an unfair labor practice strike. See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). '6 Respondent has paid to some discriminatees, pursuant o the settlement agreement described above, certain sums of money as backpay. All such sums can be ascertained in compliance proceedings and deducted from any sums found due and owing pursuant to this Decision. 472 ACADEMY OF ART COLLEGE 5. Respondent violated Section 8(a)(2) and (1) of the Act by (a) Dominating. assisting. and contributing to the sup- port of. and interfering with, the Academy of Art College Faculty Senate, and giving effect to the Commitment made and distributed by Respondent to students and employees of Respondent on June 8 and (h) Recognizing the Academy of Art College Faculty Senate as the representative of its employees concerning wages, rates of pay. hours of employment. and other terms and conditions of employment. 6. Respondent violated Section 8(a)(3) and (I) of the Act (a) By discharging employees Joseph Doyle, on Decem- ber 27, 1976, Joseph Rees, on January 18. and Paul Prat- chenko, on January 20, because of their protected activities. (b) By discharging the following named employees on January 28 because of their participating in an unfair labor practice strike and failing to reinstate said employees after the employees made an unconditional offer on February 16 to return to work: Leslie Becker, Karl Cohen, William Cutchins. Dennis Gray. Tom Keller, Anna Rosich. Eliza- beth Sher. Mort Kohn, Jan Oswald. Ernest Posey. Julie Roman, Dave Sanchez, Louise Stanley, Jack Stone. Marion Swetschinski. Dick Warton. Tom Wojak. Beverly Wolfe, Joseph Doyle, Joseph Rees, Paul Pratchenko. and Kenneth Light. (c) By denying employment to the following named em- ployees from and after September I because said employees engaged in protected activity: Joseph Doyle. Elizabeth Sher, Dave Sanchez, Mort Kohn. Kenneth Light. Ernest Posey. Julie Roman. Paul Pratchenko, Louise Stanley. Jack Stone, Tom Wojak, Marion Swetschinski. Karl Cohen. and William Cutchins. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" The Respondent, Stephens Institute. d/b/a Academy of Art College. San Francisco, California, its officers, agents, successors, and assigns. shall: I. Cease and desist from: (a) Interfering with, restraining, or coercing its employ- ees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act, in violation of Section 8(a)(1) of said Act, by: interrogating its employees concern- ing their protected activities: threatening its employees with termination if they refuse to sign individual employment contracts; threatening its employees with physical injury if those employees engage in future protected activity: threat- ening to lock out employees who support the Union: offer- ing to employees more work at a higher salary if the em- " In the event no exceptions are filed as provided b 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 bi the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. ployees abandon their protected activity: soliciting employees to engage in surveillance of union meetings; and threatening to close the school rather than deal with the Union. (b) Violating Section 8(a)(2) and (1) of the Act by domi- nating, assisting, and contributing to the support of, and interfering with, the Academy of Art College Faculty Sen- ate; giving effect to the Commitment made and distributed by Respondent to students and employees of Respondent on June 8, 1977; and recognizing the Academy of Art Col- lege Faculty Senate, or any successor thereto, as the repre- sentative of its employees concerning wages, rates of pay. hours of employment, and other terms and conditions of employment: provided, however, that nothing in this Order shall require or authorize Respondent to vary or abandon any wage, hour, seniority, or other substantive benefit it has established for its employees because of the aforesaid agree- ment or to prejudice the assertion by its employees of any rights they derived as a result of said agreement: and fur- ther provided that nothing herein shall be construed as pro- hibiting its employees from forming. joining, or assisting any labor organization. (c) Violating Section 8(a)(3) and () of the Act by: (1) Discharging employees Joseph Doyle, on December 27. 1976, Joseph Rees, on January 18. 1977. and Paul Prat- chenko, on January 20, 1977, because of their protected activities: (2) Discharging the employees named above in Conclu- sion of Law 6(b), on January 28, 1977, because of their participation in an unfair labor practice strike and failing to reinstate said employees after the employees made an un- conditional offer on February 16 to return to work: and (3) Denying employment to the employees named above in Conclusion of Law 6(c), from and after September 1, 1977, because said employees engaged in protected activity. (d) In any other manner interfering with, restraining. or coercing employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations. to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withdraw and withhold recognition from. and com- pletely disestablish, the Academy of Art College Faculty Senate, or any successor thereto, as the representative of its employees for the purpose of collective bargaining. includ- ing the settlement of grievances. (b) Offer Joseph Doyle, Joseph Rees, and Paul Prat- chenko immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiv- alent positions. without prejudice to their seniority or other rights and privileges, and make them whole for their loss of earnings in the manner set forth in The Remedy section of this Decision. (c) Offer to each and all of the strikers. named above in Conclusion of Law 6(b). immediate and full reinstatement to their former jobs or. if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing. if necessary. replacement employees. and make said strikers 473 1)1 ( ISIO()NS ()F NSAI IONAII ABO()R RI Al t)IONS B(IOARI) w4hole lot oi Ioss to' earnllings suffered h\ reiasoll ol thce liscrinlillnation aainsl tilhell with hackpay to ollltilnce otll ebrlituarv 17. ilth interest thereon, to be computed as die- scrihed ill I tle ReniLedl sectilon herci. (dI ()lr I o elach lanid all ei the eplloly ees i named aihovc in ('oncltsion of 1aw 6(c) teaching positioTIns eclixe rom on or aboul Septembher I 19'77. to which said ecmplol xees ordinari would have been assigned hut fl)r Respondent's discrimination against hem, disniissing. i necessars, re- placement emllpihNemes, and lake said nallled cnllipecs whole Itlo ail\ loss oft eanings suff'ered h reason of Re- spOMnlit's dtislriminlilltin against them, I. ithi intere-st thereon, to be comnlputed in the iniiinnler set forth in I lie Rernmedy section it'of thi [)ecision. () )reser>ce anIld, upon request, make aa ;lable to the iBoard ort ils agents, tfor eamina;tion anli ct(pyinig. all pa.t roll records. social scurty paylment records, licllalrids, personnel os records and reports. and all oller records tieces- sill tt ;ilellC thle anlOlltt o' backpay due tindeil tle lermls of iihis Order. (') IP'st at its San t raicisco, (alitornil, place of busi- ness copies of tile itched nolic rmarked "Appendix"'C ('Copies ol said notice, onil (fils provided by the Regional I)irector tor Region 21(), after being duly signed by a repre- sentative of Respondent, shall be posted by Respondent im- mediately upon receipt thereot: and be maintained bh it f'or (,6) collsecttii\ t das thcrcalter i cotlspicUOtls laces in- cluding all places wxhere notices to emplo sees are customar- ily posted. Reasonable steps shall be taken hN Respondent to insure that said notices are not altered, defaced, or cox- rcild by an> otilher iniatrial. (g) Notif tile Regional l)irector fto Region 2() in wkrit- ing. within 2 days fioml the date of this O()rder what steps Respoiident has taken to comipls hercl\sith. i n lthL c t ih. t i(t t l ris cl r ir lil' rci l hs .i ju ignicit iti ;i t Illed States ( w11I l Appeal t rds i the ttt I jin tlte niltc readlin " Isled h Order ol the Nlonal.l .lhlbor Relaution Blard sh.all rad "Po'ited Pursuan t ai Judgment o1 liet I Tlit.l S.tacs ( ouIt ,Il tippcalls I- ltortrgy .l ()ildCe .4 the Nail~nal I lhor tR.elatns Iio-td " 474