St. Joseph's College

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