The Judson School

JUDSON SCHOOL The Judson School and American Federation of Teachers, AFL-CIO. Case 28-CA-2644 March 13, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 29, 1973, Administrative Law Judge Martin S. Bennett issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and counsel for the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, The Judson School, Scottsdale, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 In the absence of exceptions thereto Chairman Miller accepts pro forma the finding of the Administrative Law Judge that the operations of Respondent affect commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Administrative Law Judge: This matter was heard at Phoenix , Arizona, on October 3, 4, 5, and 6, 1972. The amended complaint , issued July 26, later amended, and based upon charges filed June 7 and 23, 1972, by American Federation of Teachers, AFL-CIO, herein the Union, alleges that Respondent, The Judson School, has engaged in unfair labor practices within the meaning of Section 8(a)(4), (3), and (1) of the Act. Briefs have been submitted by the General Counsel and Respon- dent. Upon the entire record in the case and from my observation of the witnesses, I make the following: 1 Gunkel is erroneously spelled in the complaint as Gunkle. Howard's correct first name may be Jerald. FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS 677 The Judson School is an Arizona profit corporation which operates a private school encompassing elementary and high school grades at Scottsdale, Arizona. During the last year, Respondent enjoyed gross revenues in excess of $1 million and purchased goods valued in excess of $50,000 which were shipped to it directly from points outside the State of Arizona. I find that the operations of Respondent affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED American Federation of Teachers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; The Issue Respondent is both a boarding and day school and is coeducational. Constance Ashley is one of the owners, a director, secretary-treasurer and business manager. The record demonstrates that she plays a substantial, if not controlling, role in determining school policies. Henry Wick III is president of the school and also a member of the board of directors. Also playing prominent parts herein are Hugh Slattery, now headmaster, who was hired in August of 1970, and his sister, Margaret Slattery, formerly dean of girls and now acting dean of students and assistant to her brother. In February or March of 1972, the Union commenced organizational activities among the approximately 40 or 41 teachers then employed by Respondent in both its grade and high school levels. The General Counsel attacks various alleged acts of interference, restraint, and coercion and the refusal of Respondent to renew the contracts of nine teachers for the 1972-73 season on and after May 20, 1972. These are Rose Marie Arline, Robert M. Gunkel, Vern Hackett, Jerrold Howard, Michael McColgin, Elmer Stormont, John Poe, Meta McKnight, and Henry Ander- son.' A motion by Respondent to dismiss the case of Stormont, who was unable to testify herein due to his absence on an extended trip, is hereby denied. B. Interference, Restraint, and Coercion Headmaster Hugh Slattery promptly learned of the union organizational campaign which had been initiated basically by teachers Max Potter and Mike Hughes, not directly involved herein. Early in March, he asked teacher Robert Gunkel, according to the latter and I so find, if he concurred in the organizational activities and if he would go along. Gunkel demurred, but advised Slattery several days later that he would join the Union because certain matters needed to be changed at the school. Approximate- ly 1 week thereafter, Slattery asked Gunkel for the names 209 NLRB No. 110 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the union members; Gunkel refused, stating that this was not his province? At the request of the Union, Slattery and President Henry Wick met with its four officers on March 7; also present, according to Hugh Slattery, was Margaret Slatter- y. The union representatives were Hughes, Potter, Gunkel, and Michael McColgin, the latter two among the nine complainants herein. According to Gunkel, Hughes read a statement to the effect that a large number of the faculty had joined the Union and desired union recognition. McColgin and Hugh Slattery agree that a reply was requested by the following morning. Wick became angry and told Potter that he was a little boy, and Potter and Hughes departed. Slattery claimed that he asked Hughes how many teachers he represented and Hughes refused to depart from his prepared statement. Immediately thereafter, a faculty meeting was called in the school dining room.3 According to Slattery, he wished to ascertain if the Union represented a majority. Hughes reread his statement. Next, Wick addressed the assemblage and stated that other private schools which had been organized had been bankrupted and that a number of employees would be affected if the school had to close down. He advised them not to "kill the goose that laid the golden egg." 4 Slattery then addressed the group, testifying herein that he stated the board of directors was willing to negotiate with the teachers on any grievances. In order to ascertain the extent of Hughes' claim that the Union represented the teachers, he decided to poll the teachers in three categories. He asked those in favor of the Union, those not represented by the Union, and those who were undecided to stand up. Slattery gave no assurance against reprisals. Of the nine complainants herein, all but Henry Anderson and Meta McKnight stood up as supporters of the Union. On the following day, a petition for an election was filed in Case 28-RC-2303. The election was held on April 14 and the Union lost by a vote of 21 to 20. During the interim period, President Wick saw fit to summon complainant John Poe to his office later in March. Wick told him that unionization would be bad for the school, that the school might be forced to close, and that some 140 jobs would be lost. About I week later, Wick repeated this identical statement to Poe.5 There are a number of other undenied statements by Wick to various teachers. Thus, in March, Wick told complainant Arline that unionization would be the ruination of the school and complainant Henry Anderson that unionization would result in the closing of the school .6 It is uncontroverted that Wick similarly told complainant Vern Hackett that he hoped that unionization would not kill the goose that laid the golden egg. Wick also told the 2 Slattery was manifestly an intelligent albeit a verbose witness It is only fair to point out that he was thrust into a situation obviously novel to him 3 Due to the imminence of the lunch period, some dining room employees were in the area 4 This finding is based upon the testimony of Gunkel and McColgin, Wick was not queued in this area. He testified that after talking with some parents, he had concluded that they would withdraw their children from a unionized school b This finding is based upon the testimony of Poe; Wick was not queued in this area. 6 Respondent has adduced evidence , treated below, as to the allegedly union officials, including Hackett, in May that the proposed union contract would result in longer working hours for teachers. I find that by questioning teachers as to whether they would support the Union; asking for the names of union members; announcing possible reductions of staff, closing of the school, and longer working hours in the event of unionization; and by polling employees as to their union adherence without assurances of no reprisals, Respondent has engaged in conduct violative of Section 8(a)(1) of the Act. See, as to the last, Struksnes Construction Co., Inc., 165 NLRB 1062. C. The Discharges Respondent has mounted a massive attack upon the competency of the nine teachers whose contracts were not renewed for the 1972-73 season.? Initially, Respondent is saddled with the fact that 9 of its 40 or 41 teachers for the 1971-72 term, with varying tenure, were denied reemploy- ment, indeed a high percentage. This is underlined by Respondent's primary defense that it suffered economic problems and further that it anticipated a reduction in enrollment, this mandating a close analysis of the compe- tency of the current teachers.8 But the student body did not decrease for the 1972-73 year. Indeed, Respondent now has more teachers, some 44, than before the advent of the Union. Stated otherwise, Respondent's claim as to its economic problems did not materialize. Enrollment did not drop off, despite the fears of President Wick, based upon comments he had solicited from parents. According to Slattery, who was hired in 1970, almost all of his time during his first year was devoted to preparation for an evaluation by an association of schools to which Respondent belongs. Early in May of 1971, Slattery received certain oral instructions from Constance Ashley. It is manifest, and I find, that she exerts a controlling influence on the operation of the school. Planning on a small enrollment for the next economic year with an accompanying lesser need for faculty, Slattery was alleged- ly instructed to review the existing complement of personnel and make recommendations for a skeletal faculty. Slattery duly reviewed the faculty personnel and prepared three lists: (1) a hire list, (2) a maybe list, and (3) a no list. He admittedly knew the approximate percentage of union members or advocates on the faculty. His testimony is rather complex as to the basis for placing or not placing persons on the respective lists, with some shifting testimony. He flatly recommended that five of the nine complainants not be rehired. The other four were put poor financial situation of the school It is also to be noted that salaries at the school are low and this presumably entered into both the prounion sympathies of the teachers as well as the opposition of management r The record amply demonstrates that each spring, teachers at Respon- dent are advised whether they will be retained for the following year The timing of this advice is crucial because time is very much of the essence in obtaining employment for the ensuing teaching year 8 Wick testified that there were 41 teachers in the 1971 -72 year, but Respondent's records, according to Slattery, and these are reflected in exhibits, reveal that there were but 40 JUDSON SCHOOL on the maybe list. Of these , two, McKnight and Poe, were later offered employment and McKnight accepted. I also note here that complainant McColgin testified that Miss Slattery, the dean of women, told him that she was surprised at the magnitude of the discharges and, further, that she and her brother had unsuccessfully spent an entire day attempting to persuade Mrs. Ashley not to embark upon this course of action . Miss Slattery admitted a conversation with Mrs. Ashley, but claimed that it was confined to economic procedures concerning rehiring and the possibility of combining certain jobs . McColgin impressed me as a straightforward witness who did not attempt to embellish his testimony and I credit him herein. I now turn to the various reasons assigned by Respon- dent for not initially reemploymg the nine complainants. Needless to say, the failure to initially reemploy 9 out of 40 or 41 teachers, in excess of 20 percent of the entire teaching staff, many with considerable tenure, constituted a massive disruption of staff and the assigned reasons for not reemploying the 9 do not withstand scrutiny. And, as will appear, the record warrants the conclusion that the unifying thread behind the discharges was their union adherence or Respondent's belief to that effect. The Pearson Bros. Company, 199 NLRB 1179. Also to be noted is that, concerned that the contract renewals were not forthcoming late in April or early in May as in the past , on May 8 all of the nine complainants, save McKnight and Anderson, signed a petition urging a declaration of intent to rehire no later than May 12. This was posted in the teachers' lounge. 1. Robert Gunkel Gunkel has taught chemistry, physics, and mathematics at the school for approximately 17 years, and has both a bachelor's and a master's degree. His field is concededly one where teachers are in short supply. He and all the other complainants, unlike several of the new teachers hired by Respondent for the 1972-73 year, enjoy Arizona certifi- cates, a license required for teaching in Arizona 's public schools, but not in private schools in that State. The high regard in which Gunkel was held by Respon- dent is demonstrated by the fact that President Wick had authorized him to reprimand teachers who were not performing their tasks to his, Gunkel's, satisfaction. It is noteworthy that his salary was raised in the fall of 1971 for the 1971-72 season. There is no evidence that he has ever received a complaint about his work. As found, he advised Headmaster Slattery early in March that he would support the Union , was known to be vice president of the local chapter of the Union , and also stood up as a union adherent on March 7 when Slattery polled the faculty. According to Gunkel's uncontroverted testimony, he was concerned about the following teaching year. He telephoned Wick on May 20 and inquired about his prospects for employment . Wick responded that he would not be reemployed . despite his lengthy tenure, because he did not get along with other teachers and because "we do not want you members here." Despite Gunkel's impressive credentials, his tenure, and his preferential status with Respondent , the latter has come forward with a number of reasons as to why he was not 679 rehired. Initially, Respondent raises the claim that, in August of 1971, Gunkel complained to a state accredita- tion authority about job security and low salaries; the record well demonstrates that the faculty salaries at Respondent are indeed low. According to Hugh Slattery, Wick and Ashley felt that Gunkel's contact of the accrediting agency was ample cause to discharge him. Slattery spoke with Gunkel and he agreed to withhold a letter he planned to write to the state authorities . Slattery then recommended that Gunkel not be dismissed and this recommendation was accepted. Respondent also relies upon the fact that Gunkel had criticized President Wick of Respondent as being amoral. It is not entirely clear whether this referred to Wick's personal life and other entanglements, but the simple answer is that this was not further developed at the trial. Respondent next raises the incident of Mrs. Smith, who teaches various business courses. As found, for some years Gunkel had been given authority by President Wick to reprimand a teacher not performing his or her duties. Gunkel, in this quasi-administrative capacity, came upon a student of Mrs. Smith's who was out of class. He not only returned the student to the classroom, but addressed Mrs. Smith in the presence of her class and pointed out that the student was loose on the campus rather than in the classroom. Mrs. Smith had no professional contact with Gunkel, who operated in an unrelated field. Gunkel subsequently apologized to Mrs . Smith in front of her class sometime in April. It would seem that the incident was then closed prior to the selection of the faculty for the ensuing year. Respondent also adverts to the fact that Gunkel criticized President Wick for his failure to rehire Gunkel's father, also a teacher, some years earlier. The direct answer to this is that this occurred prior to the selection of teachers for the 1971-72 academic year. Also, Gunkel, as a teacher, enjoyed free enrollment of his daughter at the school. He admitted that he had told Slattery , and perhaps Wick, that he could not, in good conscience, continue to send his daughter to the school. It appears that this took place prior to the advent of the Union upon the scene and Gunkel was not reprimanded for this. To sum up, Gunkel had his differences with the administration of the school, but I conclude, particularly in view of his lengthy tenure and preeminence in the school, that the foregoing incidents would not have led to his discharge. Stated differently, the so-called offenses by Gunkel preceded his union activities and were either disregarded or swept under the table . Indeed, as found, he telephoned President Wick late in May and inquired about his situation. Wick responded that the reason for not renewing his contract was that he did not get along with other teachers and "we do not want you members here." This ties in with an admission by Ashley that, in considering whether or not to renew the contracts of the respective teachers, "we must have talked about the Union of course ...." I find no real substance to Respondent's position herein. 2. John Poe John Poe, a most impressive witness, was hired in 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD midterm by Respondent in 1971 to fill an unexpected vacancy. He was assigned to various science and mathe- matics classes, the former category admittedly in short supply. Poe signed a union card shortly before the election and was one of those who stood up as favoring the Union at the meeting on March 7, 1972. There is no evidence that his work was ever criticized. As noted, President Wick of Respondent specifically told him on two different occa- sions during March that unionization would be bad for the school and that some 140jobs might be lost. At the end of the school year, Poe contacted Hugh Slattery about rehire. According to Poe, Slattery told him that he would not be rehired "because of the slanderous activities of Mr. Potter" which would perforce reduce the school enrollment.9 According to Poe, he had been assured that his performance as a teacher was most acceptable. As the General Counsel points out, there is some vague reference to Poe's favoring field trips. His uncontroverted testimony is that Slattery similarly favored them, but was opposed to all day field trips because of objections by other teachers to disruption of their classes; this is obviously a trivial matter. There is also some unclear reference, in the questioning of Poe, to a lack of discipline or control by him over his students. According to Poe's uncontroverted testimony, Mr. Slattery discussed this topic with him in a general sense involving the entire school. Finally, Respondent vaguely contends that if the right person had come along, he or she would have been offered Poe's post.iO But the simple answer is that Respondent did unconditionally offer Poe appointment the ensuing year which he declined. Needless to say, Poe is not saddled with conduct by fellow unionist Potter which he did not authorize or ratify. It is also interesting to note that Respondent complained, in the case of the previous complainant, Gunkel, that he was too restrictive of students. Yet here, it vaguely urges that Poe was too permissive. Paradoxically, Respondent has adduced evi- dence to the effect that there is more latitude in private schools than in public schools allowed to teachers. As will appear below, Respondent attacked precisely this latitude in the deportment of complainant McColgin. 3. Meta McKnight McKnight was in her second year as a fourth grade teacher in the school. She was told on May 22 or 23 by President Wick that she was not to be rehired. He added that her work was excellent, but that the school had decided to hire a younger person. McKnight had volun- teered to Wick several days earlier that she was not a union supporter, this without response by him. And, she was not one of those who stood up in favor of the Union at the March 7 meeting. McKnight is over 65 years of age and volunteered to Wick at the time of her hire that she was in that category with 31 years of experience, a bachelor's degree, a master's degree, and graduate work beyond that. Wick told her at 9 Teacher Potter had made derogatory comments about the school to the press and had distributed some literature to the same effect There is the time, as she uncontrovertedly testified, that Respon- dent had no concern about her age. Significant herein is the fact that during this period, McKnight, as she uncontrovertedly testified, telephoned Mrs. Ashley and asked about her status for the following term. McKnight volunteered to Ashley on this occasion that she was not a supporter of the Union. Ashley, inter aba, replied to McKnight that if McKnight were not "guilty," she would not be telephoning Ashley. McKnight also testified that, after the March 7 meeting at which she did not stand up for any of the three choices, she told Wick that employees had a right to belong or not to belong to a union if they so chose. Slattery, who made out the three lists, admitted that he had considered McKnight to be a union supporter, although he did place her upon the maybe list. McKnight was ultimately offered employment by Slattery late in August and he told her that the Board had reconsidered; nothing was said about her age and she accepted the offer. According to Slattery, the offer of employment to McKnight, as well as that to Poe, came on express authorization from Ashley and Wick. Slattery also testified that he did prefer a younger teacher, but that none of the young applicants impressed him. The speciousness of this reason is demonstrated by the fact that Respondent now has in its employ, in addition to McKnight, two teachers who are respectively 65 and 66 years of age. Indeed, this is highlighted by the fact that complainant Henry Anderson, discussed below, retired from the Phoenix Public School system, was hired by Respondent in 1966 at the age of 67 and was told at the time by Wick that his age was not a relevant factor. It may be noted that Anderson, whose case is discussed below, as well as McKnight, were both alert, articulate, and manifestly intelligent witnesses. I find no substance to Respondent's case. 4. Jerrold Howard Howard has taught music and French at the school since 1967, has both a bachelor's and a master's degree, and was a most poised witness. As with the rest of the complain- ants, his contract was not renewed for the 1972-73 season. He was elected treasurer of the Union and was one of those who stood up in favor of the Union at the March 7 poll conducted by Hugh Slattery. His work, according to Howard, was never observed by any member of supervision and Hugh Slattery so admitted; in addition, Slattery complimented him about a festival he put on at the school in the 1971-72 term. It is also noteworthy that at a meeting of union officials with Ashley and Wick early in May of 1972, which Howard attended, Ashley and Wick announced that they did not wish to see the Union enter the scene. In addition, Howard was one of several union officials who met in May with the board of directors, including Ashley; at that time Ashley decreed that she had received reports as to who was loyal and who was not loyal, and that those who were not loyal should quit the school. On May 22, Howard telephoned Wick absolutely nothing to identify Poe with the conduct of Potter 10 It also so contended in the case of McKnight, treated below JUDSON SCHOOL about the prospects of employment for the ensuing academic year, and Wick replied that Respondent did not intend to rehire him. Respondent has adduced some evidence that Howard played in a band on some evenings at a local resort, this in his spare time. This is summarily disposed of, because there is no showing that this interfered with his discharge of his duties in behalf of Respondent or that it was taken up with him. Howard was placed on the "maybe" list by Slattery, this demonstrating the absence of absolute dissatisfaction with him on the part of Respondent. Respondent has contended that it contemplated that Mrs. Ruth Kuhl would inherit his music courses. While it stresses that a female employee was desired to take over the combined music classes in both schools, its reasons do not stand up.ii And, while Slattery contended that Howard was replaced because enrollment in French classes was low, individual enrollment for the 1972-73 season in these classes was in excess of that for the previous year. Respondent's case here lacks substance. 5. Michael McColgin McColgin, with tenure of 4 years, had two degrees and was appointed head of the English department by Hugh Slattery. Prior thereto, the choice had been made by staff election and, on this occasion, Slattery in effect told McColgin that he was the best qualified person for the job. His work, as he testified, was never criticized, he initiated an honors program at the school, and was once told by Miss Slattery that he was a "natural born teacher." McColgin was initially secretary of the Union and later its vice president. He stood up in favor of the Union when the poll was taken in the dining room. About a week or 10 days after the defeat of the Union in the election. Howard, Gunkel and McColgin asked to meet with President Wick about reemployment for the following year. Present also were Ashley and another member of the board, Margaret Ward. Ashley, as McColgin uncontrover- tibly testified, pointed out on this occasion that she liked "loyal employees" and that people who disliked working at a place should quit. Gunkel pointedly asked whether further employment would be offered to the union people at the school and Ashley replied that she was under instructions from her attorney to say nothing on this topic. On June 5, Howard and McColgin called upon President Wick. McColgin, as he uncontrovertedly testified, said that he had been advised he was not to be rehired and asked the reasons. Wick accused hum of turning in a story to a local paper about the election to the effect that the election loss would be protested. Wick went on to say that McColgin had been associated with Potter who had caused the school to receive bad publicity; that the school preferred teachers who got along with other teachers; and that the schools did not like "teachers who caused trouble." McColgin was asked by Potter and Hughes to appear in their behalf at a hearing on June 8 conducted by the Employment Security Commission of the State of Arizona and did testify therein. 681 Respondent has mounted a strong attack on McColgin. In filling out a report on a student, this requested by the school, he referred to him as "lover boy." But, he uncontrovertedly testified that Miss Slattery, to whom he submitted the report, agreed with him. During a period of employment at another school, McColgin was asked to resign for reasons not disclosed herein; according to McColgin, the person seeking his resignation was later discharged. But this bit of information did not come to the attention of Hugh Slattery until after McColgin had been denied employment and Slattery admitted putting McCol- gin on the "no list" prior to learning about this aspect of his prior employment. Respondent has adverted to the fact that McColgin smoked in the classroom contrary to school policy. But he had done this for many months prior to the advent of the Union and nothing was said about this. Indeed, Miss Slattery treated the matter very lightly, pointing to heavy smoking by other officials of the school. There is also the claim that McColgin would bring his two dogs to class, but, when he received notice to cease this practice, he promptly complied. It is noteworthy that President Wick had his dogs accompany him about the campus and McColgin's dogs, it appears, remained outside the classroom. That these reasons were insignificant is demonstrated by the fact that, in his pretrial statement, Hugh Slattery did not advance them. Miss Slattery testified that McColgin made derogatory remarks, beginning in November of 1971, about the school and President Wick. But the core of all this was merely that he considered Wick to be too permissive with the students. Respondent attempts to explain McColgin's chairmanship of the English department by claiming that it had made a mistake in appointing him to this post. However, his appointment was made after purported complaints about him from other teachers. Moreover, there is no evidence that this so-called mistake was ever rectified. Slattery opined that McColgin's appearance and testimo- ny at the State Employment Security hearing was an act of disloyalty. He was then asked to point to anything in that transcript which supported his claim. He attempted herein to do so, but an inspection of McColgin's testimony does not remotely support the charge. Indeed, McColgin, by so doing, was engaged in a Section 7 protected concerted activity for the benefit of fellow employees. See Advance Carbon Products, Inc., 198 NLRB No. 106. Respondent has also placed McColgin in the position of using the word "amorality" about President Wick in conversations with Miss Slattery. But the record makes clear that this was not a reference to his personal life but rather to his permissiveness in certain areas of the school. Respondent is actually in a contradictory role herein. It is a fact that McColgin, in testifying at the other hearing, flatly disassociated himself from the organizational tech- niques of teachers Potter and Hughes. Slattery contended that he thought this was hypocritical on the part of McColgin. On the other hand, as noted, it strove to twist this into an act of disloyalty on the part of McColgm. Further, there is testimony by Slattery that he and 11 1 deem it unnecessary herein to determine whether, as the General Counsel contends, this was sexual discrimination in favor of the female sex 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McColgin differed on the operation of the honors program. Yet, it was after this that Slattery appointed McColgin chairman of the English department. And, as for President Wick's attempt to place the onus upon McColgin for a news release by Potter and Hughes, McColgin's testimony is uncontroverted that he at no time ratified any news distribution of this nature. The evidence preponderates in favor of the General Counsel. 6. Vern Hackett Vern Hackett has two degrees; taught social studies, history, English, and journalism for Respondent from 1963 to 1969; and returned in 1971. His departure in 1969 apparently was voluntary on his part. Hackett's work was never criticized and he was complimented several times by Miss Slattery. Hackett was secretary of the Union, stood for the Union at the poll, and wore a union button on his coat. Following the election, Miss Slattery discussed with him the basis for his support of the Union. Around May 1, the union officials asked Wick about future employment and they were told that they would not be so advised before May 20, a date somewhat beyond the time this was normally done. On May 20, according to Hackett,12 he contacted Wick in behalf of himself and McColgin. Wick replied that the two would not be rehired because Respondent was uncertain as to its enrollment for the following year, but refused to put this in writing. Hackett uncontrovertedly testified, and I find, that at about this time he asked Miss Slattery for a reference and she replied that she would be happy to do so. In June, Hackett and McColgin met with Wick. As found above, Wick stated that their union activities had harmed the school. In July, Hackett, as he uncontrovertedly testified, again visited Wick and was told by the latter that Hackett was a good teacher and that the failure to rehire him stemmed from "this union thing." Here, as well, Respondent's reasons are full of innuendos and are not impressive. Moreover, Slattery admitted that Hackett's attendance and testimony at the unemployment compensation hearing, bearing upon the position of the two complainants therein, Potter and Huges, "became a decided factor in my judgment." When pressed, Slattery was unable to find or specify what testimony in that transcript by Hackett influenced him. I find that it was Hackett's presence and availability to testify on an issue that Respondent found distasteful that influenced Slattery. See Advance Carbon Products, supra. 13 There is some razzle-dazzle at this point. Hackett was originally placed upon the so-called maybe list; this was because he was not deemed to be "loyal" due to the views expressed by him concerning the moral tone of the school much earlier in the school year. He was switched to the no list after May 20 because of some expressed bitterness on the part of Hackett's wife, a former teacher at Respondent, toward the school. 12 Hackett, with much tenure, is manifestly well-educated, articulate, and intelligent , his testimony has been credited in full. 13 This issue was, in essence, whether a state certificated teacher could work at Respondent under uncertified administrators This is not before me and is not passed upon 14 He made a similar concession as to complainants Arline and Stormont Slattery also adverted to a comment by Hackett that he would not send his own child to Respondent. There is more, but in the final analysis, Slattery again admitted in his pretrial affidavit that Hackett had testified at the state hearing and, "This was the reason I recommended that he not be rehired." In view of the extent of these admissions and deficiencies, I deem it unnecessary to treat with several other minor matters raised by Slattery. 7. Henry Anderson Anderson retired as math teacher from the Phoenix Union High School system after many years of service at the high school level and was hired by Wick in 1966 at the age of 67. Wick was then aware of his retirement and age and it is undenied that Wick told him at the time that his age was no drawback. During Slattery's first year, 1970-71, he asked Anderson to serve as acting principal, stating that Anderson was the only one with the proper qualifications. This was in anticipation of the visitation by the accredita- tion authorities in Tucson. Anderson had on a number of occasions expressed himself to teachers in the faculty lounge that they needed a grievance committee. And, as noted, about 1 week after the poll by Wick, the latter told Anderson that unionization would result in the closing of the school due to parental hostility. A few days after the close election, Anderson went in to see Wick. He told Wick that there were many differences between the two sides and urged that adjust- ments be made both to satisfy the teachers as well as to serve the best interests of the school; this drew no response from Wick. Slattery admitted suspecting Anderson of being a union supporter.14 At no time was Anderson's classroom ever visited for the purpose of evaluating his teaching and he never received any criticism.15 According to Hugh Slattery, he placed Anderson on the no list because he concluded that his effectiveness as a teacher had declined. This was allegedly predicated upon a number of student complaints that they could not hear or understand him, that his voice was rambling, or that they wished to drop the course. The two Slatterys concluded that while it is not unusual for students to complain about teachers, this number was excessive. In my observation of Anderson, he was quite alert and spoke precisely with a resonant voice. On May 23, Anderson called Wick about the following year's employment. Wick responded that Anderson was not be rehired because he had retired from another school system; that Wick considered him to be a good teacher; and that he regretted the decision by the board. Wick added that "the next thing the Union will be after will be hiring those overaged and retired teachers." i6 The core of Respondent's defense here that Anderson was expendable as a retired and overaged teacher is torn down by the fact that it rehired McKnight for the next year and she fell into both these categories. Slattery's explana- whose cases are discussed below. 1s Hugh Slattery's testimony is only that he had occasion to talk to Anderson in the classroom three or four times. 16 Wick was a most vague and rambling witness in many areas. He had a poor recollection and did not recall telling Anderson that the school had decided not to employ formerly retired teachers; I credit Anderson herein. C. JUDSON SCHOOL tion that Respondent wished a young teacher, could not find one, and therefore did rehire McKnight does not impress one. Slattery presented some testimony that Anderson had so much difficulty with his classes that it hired Poe to take on one of his math classes. But the fact is, as the record well demonstrates, that another teacher, Lamb, had left. Poe preferred to come on as a fulltime teacher and this was done by shifting some classes from Anderson as well as from Howell to Poe. Actually, Respondent has overstated its case, witnesses claiming that there were weekly complaints about Anderson all year long as well as in the previous school year, during which, as noted, he had been asked to serve as acting principal. I see no substance to Respondent's case. 8. Rose Marie Arline Arline is a biology teacher with two degrees and over 6 years of experience. She was hired in January of 1971 in midyear to replace a discharged teacher. She testified that she received no criticism of her work and this is supported by the fact that she was granted a $50 per month raise for the 1971-72 year. In her school yearbook which was handed out during the last week of school in May of 1972, President Wick inscribed "Lots of luck in the future to a good biology teacher." 17 Arline joined the Union, stood for it at the March 7 poll and, as noted, Slattery admitted he considered her a union supporter. Within a few days after May 20, she telephoned Wick and asked if she would be teaching her two subjects of earth science and biology in the coming year. He replied, according to Arline, that she was a fine teacher but that the board had decided not to rehire her. Wick testified herein that she was on the list not to return because she had a class disciplinary problem and was an ineffective teacher. He never previously discussed this with Arline, adding that this area was one for the headmaster. Slattery admitted that other teachers had disciplinary problems. He recalled the most serious one involving Arline as taking place in the fall of 1972 when five students came in together and complained about her, claiming that this continued through the year. While Slattery contended that he had discussed this disciplinary problem with her in class on three separate occasions, the last time, on his version, was in January of 1972. And, Arline's testimony discloses that this stemmed from her suggestion that the curriculum be changed and that new textbooks be ordered. It is also noteworthy that Arline attended the state hearing in the presence of Respondent's officials, although she was not called upon to testify. Also, while Respondent contended that a number of students dropped her course or courses, there also were additions to these courses, surely a normal procedure. Indeed, Respondent's accountant, Benjamin Pomeroy, who was testifying primarily in other areas, conceded that there had not been an excessive withdrawal rate of students in the 1971-72 year. 11 While this is not the strongest item of evidence, Wick, had he believed otherwise, could have stopped after the word "future " 18 Corporal punishment is permitted as one of several alternatives given to the student when discipline is warranted. 683 9. Hugh Stormont The final case herein, that of Hugh Stormont, presents the problem that he did not testify due to his absence on a trip or temporary residence abroad. Stormont had been an eighth grade teacher for some 8 to 10 years at Respondent and was head of the lower school. He stood up for the Union at the March 7 poll and attended meetings of union officers with Respondent's board of directors. Indeed, Stormont, to Slattery's knowledge, was the observer in behalf of the Union at the April election. He admittedly was placed on the no list and not rehired for the following school year. Slattery gave his reasons herein for placing Stormont on the no list and did display a propensity for overstatement. Thus, he claimed that Stormont demonstrated "extremely erratic, emotional behavior" because several times during the school year he had "literally dragged" students into Slattery's or Wick's office for discipline. When questioned further on this topic, Slattery changed this to taking the student by the arm "and pull them along which is sometimes necessary." He also admitted that this could involve taking a boy by the arm "and [he] walked him into" the office. Slattery noted that the boys were frequently unwilling to go to his office on such occasions. On another occasion, Stormont allegedly slapped a student with his hand.18 The boy's mother learned of this and immediately wished to withdraw him from the school and send him to another. The matter was resolved amicably and the boy indeed was returned to Stormont's class where Stormont teaches all eighth grade subjects. There was no discipline of Stormont who found it necessary thereafter to bring the same boy to Slattery for discipline on several occasions. According to Wick, the boy had been unruly at the dining table on the key occasion. There is some evidence that Stormont learned that a teacher of Spanish at the school from Central America, a Mr. Ruiz, received a higher salary than Stormont. According to Slattery, and Ruiz did not testify herein although there is no claim of his unavailability, Stormont expressed the view to Ruiz on one occasion that a noncitizen should not be paid more than Stormont who had fought for his country.19 Also, in the fall of 1971, according to Slattery, Stormont had complained to him about a change in a lower school gym class which was scheduled without consulting him as head of the lower school; this does not appear to be a matter of any great moment. While the case of Stormont would perhaps have been strengthened by his testimony, I am convinced on a strong preponderance of the evidence herein that it falls into a pattern with the other eight for the reasons stated above and below. The Pearson Bros. Company, supra. C. Analysis and Conclusions A consideration of the foregoing, in my judgment, warrants the conclusion that little need be added. Respon- ie Slattery termed this as a "verbal assault" Stormont also allegedly made some unspecified remarks of a "personal nature" to Ruiz, as reported by the latter to Slattery. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent was unexpectedly confronted with a union organiza- tional campaign, a matter of first impression, and it reacted strongly. Its hostility to the Union is well demonstrated by the statements of Wick and Ashley. Perhaps as good an indication as any of Respondent's true purpose is Wick's statement to Gunkel on or about May 20 that Respondent did not want union members at the school for the next school year. Ashley, manifestly the real power behind the school, and a most hesitant witness, was concerned over the advent of the Union, and admitted that the instructions from the board of directors to review the qualifications of the teaching staff were unusual. She conceded that this unusual circumstance resulted from the election, and also that in prior years there had been no need to go over the qualifications of the teachers. And, as heretofore noted, she admitted that in consider- ing whether or not to retain teachers for the 1972-73 year, "We [Ashley and Slattery] must have talked about the Union, of course, but I can't remember what we said." Permeating Ashley's attitude was her view that anyone not happy with working conditions should quit, as she told McColgin, a ploy which manifestly would have spared the school the task of terminating what it deemed disloyal teachers. Respondent has stressed its allegedly bleak economic picture, but, as its accountant conceded, Respondent last had an excessive withdrawal rate of students in 1969-70 and this was not true in the 1971-72 term. And, the fact that the corps of teachers is now larger in number in great measure undercuts this claim, although there apparently is at the moment a small savings in teaching salaries, presumably due to lower entrance salaries of the new teachers. As pointed out, the alleged acts of misconduct or unsatisfactory performance are either ancient or do not stand up. The General Counsel further notes that some of them, on their face, would not be contrary to Respondent's announced policy of maximum freedom and independence for teachers, unlike the public schools. There is evidence that teachers have been terminated in midterm for cause, and, with an admitted surplus in the industry according to Slattery, a wrongdoer could easily have been replaced in the normal course of events. Furthermore, the basis for retention of teachers for the 1972-73 term conspicuously ignores tenure or academic standing, manifestly two most vital criteria. On a strong preponderance of the evidence, I find that the mass termination of so large a percentage of union supporters or those believed to be such, following the most narrow defeat of the Union in the election, stems from a calculated effort to prevent the Union from winning an election again and to remove the nucleus of its support from the school. 1 find that by the foregoing Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.20 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Judson School is an employer within the meaning of Section 2(2) of the Act. 2. American Federation of Teachers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Rose Marie Arline, Robert M. Gunkel; Vern Hackett, Jerrold Howard, Michael McCol- gin, Elmer Stormont, John Poe, Meta McKnight, and Henry Anderson for engaging in union and concerted activities, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing; by questioning employees concern- ing their union activities; by asking an employee for the names of union members; by announcing possible reduc- tions in staff, closing of the school and longer working hours in the event of unionization; and by polling employees as to their union adherence without assurances against reprisals, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging the nine complainants named herein. I shall, therefore, recommend that Respondent offer all of them, except Meta McKnight who has been reinstated and John Poe who was unconditionally offered and who in effect declined reemployment, immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without preju- dice to seniority or other rights and privileges. See The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827. I shall further recommend that Respondent make them whole for any loss of earnings they may have suffered as a result of discharge by payment of a sum of money equal to that each normally would have earned from said date to the date of Respondent's offer of reinstatement, less net earnings, with backpay and interest thereon to be comput- ed in the manner prescribed by the Board in F. W. Woolworth Co., 90 NLRB289, and Isis Plumbing & Heating Co., 138 NLRB 716. While McKnight and Poe are included here, it would seem that no backpay is due them; in that event, none is payable in their cases. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 20 The General Counsel amended the complaint at the hearing to allege a dation until such time as it ascertained how he would testify in this case In violation of Section 8(a)(4) with respect to McColgin. The general effect of view of the foregoing 'findings, I deem it unnecessary to pass upon this the amendment was that Respondent in September withheld a recommen- allegation as the remedy would be identical. JUDSON SCHOOL 685 ORDER 21 Respondent, The Judson School, Phoenix, Arizona, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, or activity on behalf of American Federation of Teachers, AFL-CIO, or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment, or any term or condition thereof. (b) Questioning teachers concerning their union activi- ties; asking employees for the names of union members; announcing possible reductions in staff, closing of the school and longer working hours in the event of unioniza- tion; or polling employees as to their union adherence without assurances against reprisals. (c) In any like or related manner interfering with, restraining or coercing employees in the exercise of the right to self-organization, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective-bar- gaining or other mutual aid or protection. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer all nine complainants except Meta McKnight and John Poe immediate and full reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without prejudice to seniority or other rights and privileges, and make all nine whole for any loss of pay suffered by reason of the discrimination against them in the manner provided above in the section entitled "The Remedy." (b) Preserve and make available to the National Labor Relations Board and its agents, upon request, for examina- tion and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due under the terms of this Order. (c) Post at its school at Phoenix, Arizona, copies of the notice attached hereto and marked "Appendix." 22 Copies of said notice, on forms provided by the Regional Director for Region 28 shall, after being duly signed by Respondent, be posted by it immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 21 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings. conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 22 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Rose Marie Arline, Robert M. Gunkel, Vern Hackett, Jerrold Howard, Michael McColgin, Elmer Stormont, and Henry Anderson immediate and full reinstatement to their former positions, or, if these positions no longer exist, to substantially equivalent positions without prejudice to seniority and other rights and privileges, and we will make all of them plus Meta McKnight and John Poe whole for any loss of wages suffered as a result of our discrimination against them. WE WILL NOT discourage membership in or activity in behalf of American Federation of Teachers, AFL-CIO, or any other labor organization of our employees, by discharging employees, or by discrimi- nating in any manner in regard to hire or tenure of employment or any term or condition thereof. WE WILL NOT question teachers concerning their union activities; ask employees for the names of union members; announce possible reductions in staff, closing of our school, or longer working hours in the event of unionization; or poll employees as to their union adherence without assurances against reprisals. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise'of the right to self-organization, to join or assist the above- named or any other labor organization, to bargain collectively through representatives of their own choos- ing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. THE JUDSON SCHOOL (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 7011 Federal Building and U. S. Courthouse-P.O. Box 2146 500 Gold Avenue S.W., Albuquerque, New Mexico 87101, Telephone 505-843-2555.