Technical Careers Institutes, Inc.

TECHNICAL CAREERS INSTITUTES, INC. 283 Technical Careers Institutes, Inc. and District 65, APPENDIX affiliated with United Automobile, Aerospace and Agricultural Implement Workers of Amer- NOTICE TO EMPLOYEES ica. Case 2-CA-17112 POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD November 16, 1981 An Agency of the United States Government DECISION AND ORDER After a hearing at which all sides had an opportu- BY MEMBERS FANNING, JENKINS, AND nity to present evidence and state their positions, ZIMMERMAN the National Labor Relations Board found that we On May 28, 1981, Administrative Law Judge have violated the National Labor Relations Act, as Robert M. Schwarzbart issued the attached Deci- amended, and has ordered us to post this notice. sion in this proceeding. Thereafter, Respondent WE WILL NOT refuse to bargain with Dis- filed exceptions and a supporting brief. trict 65, affiliated with United Automobile, Pursuant to the provisions of Section 3(b) of the Aerospace and Agricultural Implement Work- National Labor Relations Act, as amended, the Na- ers of America, by unilaterally altering terms tional Labor Relations Board has delegated its au- and conditions of employment of the employ- thority in this proceeding to a three-member panel. ees in the bargaining unit, set forth below, for The Board has considered the record and the at- which this Union is the exclusive bargaining tached Decision in light of the exceptions and brief representative. and has decided to affirm the rulings, findings,' and WE WILL NOT threaten to discharge our em- conclusions 2 of the Administrative Law Judge and ployees if they work for, or support, the to adopt his recommended Order. 3 above-named Union, or any other labor orga- nization. ORDER WE WILL NOT in any like or related manner Pursuant to Section 10(c) of the National Labor interfere with, restrain, or coerce our employ- Relations Act, as amended, the National Labor Re- ees in the exercise of rights guaranteed them lations Board adopts as its Order the recommended by Section 7 of the National Labor Relations Order of the Administrative Law Judge and Act. hereby orders that the Respondent, Technical Ca- WE WILL recognize and, upon request, bar- reers Institutes, Inc., New York, New York, its of- gain in good faith with the above-named labor ficers, agents, successors, and assigns, shall take the organization as the exclusive representative of action set forth in the said recommended Order, our employees in the appropriate bargaining except that the attached notice is substituted for unit described below, with respect to hours of that of the Administrative Law Judge. work, lunchbreaks, and other terms and condi- tions of employment, and embody any under- standing reached in a written, signed agree- ment. The appropriate bargaining unit is: All full-time and regular part-time office clerical employees employed by Technical Respondent has excepted to certain credibility findings made by the Careers Institutes, Inc., at 320 West 31st Administrative Law Judge. It is the Board's established policy not to Street, New York, New York, but excluding overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- all other employees, teachers, maintenance vinces us that the resolutions are incorrect. Standard Dry Wall Products, and custodial employees, technical employ- Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. ees, managerial employees, confidential em- 2 The Administrative Law Judge failed to address that portion of the ployees, head bookkeeper, guards, and su- complaint which alleges that Respondent's unilateral increase in the pervisors as defined in the Act. length of the workday and the workweek and its unilateral change of working conditions by reducing the daily lunchbreak period were addi- WE WILL rescind the unilateral changes tionally violative of Sec. 8(a)(3) and (1) of the Act. We specifically do not pass on this issue since the General Counsel has not excepted to the made in February 1980 regarding the length of Administrative Law Judge's failure to discuss it. the workweek, the workday, and the daily 3 Member Jenkins would provide interest on the backpay awards due to Respondent's unlawful increase in the length of the workday and the lunchbreak, and WE WILL make our employees workweek and its unlawful reduction of the daily lunchbreak period in accordance with his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980). 259 NLRB No. 42 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whole, with interest, for any losses sustained as or about 1920, the school was taken over by the Radio a result of such changes. Corporation of America, when its name was changed to R.C.A. Institute, Inc. The school then offered training in TECHNICAL CAREERS INSTITUTES, various engineering disciplines relating to radio and te- INC. legraphy. In 1972, the school became accredited to offer degree courses in engineering technology. R.C.A contin- DECISION ued to operate the school until May 1974 when it was purchased in equal shares by a group of 30 faculty mem- STATEMENT OF THE CASE bers headed by Samuel Steinman, who thereafter operat- ROBERT M. SCHWARZBART, Administrative Law ed the Respondent under its present name and entity.2 Judge: This case was heard in New York, New York, on th The Union, at the time of the hearing, had represented October 22-24 and November 20-21, 1980,1 upon a com- the Respondent's teachers and technicians for about 3- plaint issued on May 22, based on a charge filed on 1/2 years, and the Respondent's maintenance employees March 3 by District 65, affiliated with United Auto- since January or February 1978. In addition, the Union mobile, Aerospace and Agricultural Implement Workers was certified on January 28, 1980, in Case 2-RC-18576 of America, herein called the Union. The complaint al- as the bargaining representative for the Respondent's leges that Technical Careers Institutes, Inc., herein called office clerical employees in yet a third unit. The office the Respondent, violated Section 8(a)(5) and (1) of the clerical unit is the only one relevant in this proceeding.3 National Labor Relations Act, as amended, herein called Employees in the office clerical unit work in the the Act, by unilaterally increasing the number of hours school's administrative department which consists gener- employees are required to work each day and week, and ally of the bursar's office, the registrar's office, the ad- by unilaterally reducing the length of the lunch period, missions office, the financial aide office, the accounting without bargaining on these matters with the Union as office, and the academic office. In accordance with the the certified bargaining representative of the Respond- parties' stipulation, I find that the following individuals ent's office clerical employees. The Respondent, in an- who at various times headed these offices were or are su- swering the complaint, denied committing any unfair pervisors and agents of the Respondent within the mean- labor practices. ing of Section 2(11) of the Act and that they held or are All parties were given full opportunity to participate, holding the positions set forth after their names: Bruno to produce relevant evidence, to examine and cross-ex- M. Suria, financial aid officer,4 and Calvin T. Watling- amine witnesses, and to file briefs. Briefs, which have ton, his successor in that position; Vincent Bruno, admin- been carefully considered, were filed by the General istrator of student services and registrar; Richard Cara- Counsel and the Respondent. pezzi, consecutively bursar and accountant; Robert Gon- zalez and John LiCausi, successively bursars; Salvatore FINDINGS OF FACT Adelfio and Rodrique de los Reyes, consecutively trea- surer-controllers; Walter Arizzni, vice president for mar- L. JURISDICTION keting; Thomas Smithsi, associate dean of the preparato- The Respondent, a New York corporation located in ry department; George Leelike, manager of personnel re- New York, New York, is engaged in the operation of a lations; Richard Bader, dean of administration; Woodrow private technical school. The Respondent, in the conduct Hsu, dean of the day school; Martin Tucker, administra- of its operations, annually derives gross revenues in tor of admissions; Michael Conlin, academics coordina- excess of $1 million, and annually purchases and receives tor; and Roy Lewis, associate dean of the preparatory at its facility goods and materials valued in excess of department. In addition, Nathaniel Buch was director of $50,000 directly from points outside the State of New the Respondent's school from 1974 until his departure in York. November 1979.5 The complaint alleges, the answer admits, and I find that the Respondent is an employer engaged in com- 2 Steinman, who had joined the R.C.A. faculty in 1957, became presi- merce within the meaning of Section 2(2), (6), and (7) of dent and chief executive officer of the Respondent in May 1974. He has continued in this position, except for a 2-year period from May 1977 to the Act. May 1979, and was in this office when the events considered herein oc- curred. II. THE LABOR ORGANIZATION INVOLVED 3 Since certification the undisputed appropriate unit for bargaining has been: The Union is a labor organization within the meaning All full-time and regular part-time office clerical employees em- of Section 2(5) of the Act. ployed by the Respondent at 320 West 31st Street, New York, New York, but excluding all other employees, teachers, maintenance and 111. THE UNFAIR LABOR PRACTICES custodial employees, technical employees, managerial employees, confidential employees, head bookkeeper, guards, and supervisors as A. Background defined in the Act. The disputed unit placement of Rosa Suria, assistant financial aid, of- The electronics technology school presently operated ficer. will be discussed below. by the Respondent was founded in 1909 as the Marconi s In stipulating that the above-named individuals are or were supervi- sors while in the indicated positions, the Respondent contended that only Institute, which was engaged in training telegraphers. In Steinman had authority to hire or discharge employees. However, the Respondent did agree that the others could assign work independently, a 'All dates hereinafter are in 1980 unless stated to be otherwise. criterion for supervisory status under Sec. 2(11) of the Act. TECHNICAL CAREERS INSTITUTES, INC. 285 B. The Facts Rosa Suria and almost all other witnesses called by the The General Counsel and the Union contend that, General Counsel, whether supervisory or not, testified about 2-1/2 weeks after the Union was certified as the that they complete their biweekly timesheets for each bargaining representative for the Respondent's office entire pay period just once every 2 weeks on payday.' clerical employees, the Respondent unilaterally, without The timesheets are then submitted to the employees' re- notice to or consultation with the Union, increased the spective supervisors who also sign them.s Employees are number of weekly hours its office clerical employees hourly rated. were required to work from 35 to 39, requiring that em- When Rosa Suria first became assistant financial aid ployees arrive earlier and leave work later. At the same officer, she reported to Bruno M. Suria, financial aid of- time, the Respondent shortened the daily lunch period ficer from October 1977 until mid-October 1979. 9 After from I hour to 37 minutes. The General Counsel argues Bruno Suria resigned, Rosa Suria worked for his succes- that this was done both to punish employees for selecting sor, Calvin T. Watlington. the Union and to improve the Respondent's position at The Surias testified that in October 1977 Rosa had in- the bargaining table. formed Bruno that he was completing his own time- The Respondent, in turn, largely relying on timesheets sheets incorrectly by reporting arrivals at 9 a.m., depar- prepared and signed by employees since 1974, contends tures at 5 p.m., with an hour for lunch. Although he ac- that the 39-hour workweek had always been in effect, tually had been working those hours, Rosa pointed out and that such scheduling had been started by R.C.A. and that everyone she knew had been reporting on their ti- continued by the Respondent to date. Accordingly, as mesheets work hours from 8:45 a.m. to 5:10 p.m. with 37 there had been no change in hours, the Union's certifica- minutes for lunch. Bruno replied that he wanted to tion had not prompted an unlawful reaction by the Re- check this. Together they went to the accounting office spondent. where they asked Antoinette Ceigle, a bookkeeper, why The General Counsel counterargues that, while the they were required to list work hours from 8:45 a.m. to Respondent's business records as presented might appear 5:10 p.m., with 37-minute lunch periods, on their time- to support the Respondent's position that its office cleri- sheets when those were not really their work hours. cal employees had long worked a 39-hour workweek, Ceigle replied that it was necessary to record the longer these records do not accurately describe the work hours hours for bookkeeping purposes; the hours were logged and practices in effect before mid-February when, the that way for the school's recordkeeping convenience." General Counsel contends, the 39-hour workweek was In January, shortly before the election, George Lee- first invoked. In support of this position, the General like, the Respondent's manager of personnel relations," Counsel introduced the testimony of a number of em- ployees, the testimony of several individuals formerly Sachdeva is the only other individual employed in the financial aid office employed by the Respondent in supervisory positions, Sachdeva does not report to Rosa Suria and she does not replace the fi- and certain documentary evidence, including other of the nancial aid officer in his absence. She does only her own work even Respondent's business records. when the financial aid officer is present. Rosa Suria signs only her own timesheets and does not approve the timesheets of other employees, a Rosa Suria, assistant financial aid officer, testified that function performed in that office only by the financial aid officer. In the when she was first hired by the Respondent in Septem- absence of the financial aid officer, Rosa Suria and Sachdeva report to ber 1974 as a receptionist in the admissions office, Greg- the controller. Rosa Suria's ballot was challenged at the representation ory Chaberski, then administrator of admissions, told her election by the Board agent on the ground that her name did not appear on the voting eligibility list and by the Union observer on the ground that her hours would be from 8 a.m. to 4 p.m. with that she was a supervisor. As the challenged ballots were insufficient in lunch from 1 to 2 p.m. However, although those were number to be determinative, her status in the unit was never decided. the hours she worked, Chaberski also directed her to fill Since the record contains no evidence that Rosa Suria has any of the su- out her biweekly timesheet to show that she worked pervisory criteria in Sec. 2(11) of the Act, or that she has been clothed from 7:45 a.m. to 4:10 p.m. with 37 minutes for lunch. with apparent supervisory authority, I find that she is an employee within the meaning of Sec. 2(3) of the Act and is properly included in the office He did not provide an explanation for this recordkeeping clerical bargaining unit. practice. ' The only exception to this was Edna Agapito, a receptionist in the After working these hours for 3 years while a recep- bursar's office, who testified that she maintained her timesheets on a daily tionist, Chaberski notified her of an opening in the finan- basis as instructed by the tbursar Robimesheet completed and signed by cial aid office and referred her to Salvatore Adelfio, then Rosa Suria and other office personnel since 1974 generally would show the Respondent's treasurer and controller. Adelfio de- arrival at 8:45 a.m., departure at 5:10 p.m., with 37 minutes for lunch. scribed the duties of the vacant position and told her that While there was some deviation from this schedule, the general work the hours would be from 9 a.m. to 5 p.m. with an hour pattern as set forth on the timesheets signed by the various employees in unit-type job classifications and countersigned by their supervisors did re- for lunch. Following this interview, Suria, in October flect the 39-hour workweek predicated on the 8:45-5 routine Overtime 1977, advanced to her present position of assistant finan- premium pay was afforded only for work performed after 39 hours, and cial aid officer,6 in which she worked the hours thus as- work performed after 35 hours, but not exceeding 39 hours, in a given week was paid at straight time. signed. ' In May 1980, after Bruno Suria's departure from the Respondent's school, he and Rosa Suria were married. ' Rosa Suria's status as a member of the bargaining unit is in issue. The '° Bruno Suria, stipulated to have been a supervisor, also testified that record reveals that as assistant financial aid officer Rosa Suria assists stu- his various superiors had told him that his normal work hours were from dents by filling out forms concerning financial aid, including loan applica- 9 to 5 with an hour for lunch. He resigned from the Respondent's tion forms, notifies students that such aid is available, and helps the finan- employ before the alleged change in hours. cial aid officer in preparing reports to the Federal Government. Besides " Leelike is also one of the shareholders of the Respondent's stock and Rosa Suria and the financial aid officer, financial counselor Bhisham is a member of its board of directors. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to Rosa Suria's office and told her that she should seen Steinman before 9 a.m. Also, following the Febru- not get involved with the Union and should not encour- ary 14 memorandum, Suria noted that Watlington, for age people to join the Union. Leelike informed Suria that the first time, had begun to log on his calendar the times she was not allowed to vote and that she should leave that employees left for lunch and returned. the premises with the supervisors at the time of the elec- Rosa Suria testified that, although she since has tion. When Suria replied that she would do what she felt worked the longer schedule as required by the memoran- was right, Leelike retorted that someone working at dum and Watlington's directive, her compensation re- McDonald's who had been told to shave off his beard mains what it had been before February 14. had been terminated when he had refused to do so. Lee- Bhisham Sachdeva, a counselor in the financial aid like stated theat this was not a threat2 theJanuary18 office, 14 testified that in August 1977, when he was first As noted, the Union was successful at the January 18 hired by the Respondent as a clerk-typist in that same election and was certified as the bargaining representa- office, he was told by the then financial aid officer, Mrs. tive of the Respondent's office clerical employees on Cudjoe, and the assistant financial aid officer at the time, January 28. January 28. Doris Jackson, that he would be working from 9 a.m. to Rosa Suria testified that thereafter, on or about Febru- D oris Jackson, that he would be working from 9 a.m. to ary 21, she and the other financial aid office employees 5 p.m. with an hour for lunch. However, when Sachdeva who at the and t ime, in addition to Sachdeva, also included first filled out his timesheet by writing in the hours he who at the time, in addition to Sachdeva, also included financial counselor Magdeleine Alvarez, received the fol-d to work, Cudjoe told him that he was not lowing memorandum, dated February 14, from Leelike supposed to complete the timesheets in this fashion, but, addressed to all nonfaculty employees: instead, was to put down 8:45 a.m. to 5:10 p.m. with a 37-minute lunch period. She explained that it was school It has become necessary to issue this memoran- policy to complete the timesheets in this manner. He dum to all non-Faculty employees for the purpose thereafter filled out the timesheets as instructed, but con- of clearly stating TCl's policy of work hours. The tinued to work the shorter hours originally assigned. normal work week is comprised of 39 hours. The Sachdeva related that he continued to work the same normal work day begins at 8:45 a.m. and ends at hours after becoming a financial counselor in 1978. 5:10 p.m. There is a 37 minute lunch, and any Watlington and Sachdeva had an exchange concerning breaks are to be authorized by the department su- the latter's punctuality' 5 and Sachdeva received the fol- pervisor. These hours may be rescheduled only by lowing memorandum, dated February 5, from Watling- written approval in advance. These hours apply to ton on the subject of lateness and absences: all hourly employees and to those who are paid overtime. Any lateness will be docked from your Please be advised that your attendance as well as paycheck and any unauthorized absences will not be your lateness continues to increase in a manner paid. which is not beneficial to the Financial Aid Office functioning properly. When the above February 14 memorandum was dis- I have spoken to you on two-separate occasions tributed, Rosa Suria and the other financial aid personnel about arriving at work after 9:00 a.m. and requested were told by Watlington that their hours were being that you show some improvement. There must be a changed. Instead of arriving at 9 a.m. and departing at 5 definite improvement in your attendance from this p.m., they thereafter were to come in at 8:45 a.m. and point on. [Emphasis supplied.] leave at 5:10 p.m. Watlington declared that they no longer would be allowed to take an hour for lunch, but On February 7, Sachdeva sent a reply memorandum to would be limited to 37 minutes. If they came to work Watlington wherein he protested the charges of lateness after 8:45 a.m., their pay would be docked. and questioned the accuracy of the asserted prior repri- Rosa Suria then asked Watlington when the provisions mands referred to therein. In his response, however, of the memorandum were to become effective, and was told that it would be all right to leave work at 5 p.m. ,' The parties stipulated that Sachdeva is employed in the relevant that day, but on the following day the employees were office clerical bargaining unit. expected to come in at 8:45 and to abide by the stated ', Sachdeva's timesheet for the 2-week period ending February 8 con- hours thereafter. Suria declared that these changes were tains certain corrections in that his arrival times for January 28, 30, and 31 were changed from 9:10, 9:05, and 9:10, respectively, to 9:30, 9:30, and being made because of the Union antd that the Company 9:10. Sachdeva explained that these corrections had been made on Febru- most likely would use these conditions at the bargaining ary 8, the last day of that pay period, when, as usual, the timesheets for table. Watlington agreed that she probably was right.a" the period were prepared. Sachdeva had been late on those occasions and After the February 14 memorandum was circulated, originally had entered his actual starting times for those dates. However, Rosa Suria noticed the Respondent's president, Samuel nd tFebruary 8, Rodrique de las Reyes, then the Respondent's controller and treasurer, instructed Sachdeva to change these entry times to the Steinman, standing in front of her office at 8:45 a.m., corrected hours shown. He told Sachdeva that he would be paid for full checking on employees as they arrived for work. He also days on those dates and should not worry. The timesheet also shows that was present to ensure that employees did not leave work Sachdeva's arrival times for February 4 and 5, originally inserted as 8:45, before 5:10 p.m. Before the memorandum, she had not were changed to 9:15 and 9:45, respectively. A supervisory entry on the timesheet requested that Sachdeva be paid for 7.8 hours on January 28 to February 5, and noted that Sachdeva had been advised that future late- 12 Rosa Suria's uncontradicted account of the foregoing conversation ness would be deducted. The Respondent contends that the foregoing is with Leelike is credited. consistent with its position because both before and after the election its "3 Watlington did not testify. regular workday was 7.8 hours. TECHNICAL CAREERS INSTITUTES, INC. 287 Sachdeva did not take issue with the 9 a.m. starting time rected by Gonzalez to complete her timesheets to show mentioned by Watlington. work hours from 8:45 a.m. to 5:10 p.m. with lunch from Leelike's above-quoted memorandum of February 14 1 to 1:37 p.m. Gonzalez had also told Agapito that this was given to Sachdeva by Watlington following the form of entry was for bookkeeping purposes. Union's certification. Watlington told Sachdeva that he Accordingly, while completing her timesheets as in- would have to be on the job at 8:45 a.m. If he arrived structed, Agapito continued to work the original shorter for work after that time, deductions would be made from hours until she received Leelike's memorandum of Feb- his pay. Sachdeva was told to take 37-minute lunches ruary 14. Since Agapito was given this memorandum, and to leave the job at 5:10 p.m. Sachdeva thereafter she has worked from 8:45 to 5:10 and has observed 37- abided by the new hours. minute lunch periods. There has been no increase in her Following receipt of Leelike's memorandum, Sach- pay to compensate her for the longer hours worked. deva noted that the Respondent's president, Steinman, was at the financial aid office every morning at or before Agapito testified that, although she had been late for 8:45 asking the whereabouts of given employees. As work before February, no deductions had been made Sachdeva was situated in the front part of that office, from her pay. However, after February, her pay was some of these questions had been put to him. According docked for latenesses of 5, 10, and 15 minutes. Her time- to Sachdeva, such inquiries had not been made before sheets show a schedule based on a standard workday of the election. 7.8 hours. Accordingly, Agapito's record reveals that on Although Sachdeva's work hours have increased since January 8 she arrived for work at 9:45, had lunch be- the distribution of the February 14 memorandum and tween 1 and 1:37 p.m., and left work at 5:10, for a pro- Watlington's accompanying explanatory instruction, his rated total of 6.8 hours.X8 Her work hours as recorded weekly earnings have not changed. for June 23, when she arrived at 9 a.m., also were pro- Bursar's office employee Ada Bosco' 6 gave a similar portionately reduced to a credit of 7.55. account. She testified that when she was hired as a clerk- Divinia Pagan19 also testified that, after receiving Lee- cashier in August 1978, she was told by her then supervi- like's February 14 memorandum, her hours and those of sor, Bursar Robert Gonzalez, that her hours would be other admissions office employees changed from 9 a.m. from 9 a.m. to 5 p.m. with an hour for lunch. Bosco con- to 5 p.m., with an hour for lunch, to 8:45 a.m. to 5:10 tinued to work these same hours in successive positions p.m., and 37-minute lunch periods. Pagan related that, in that office as receptionist, from October 1978 until when she joined the Respondent in 1974, Salvatore Adel- November 1979, and as a tuition counselor ever since. fio, the then controller and treasurer, had informed her However, when at the end of her first 2 weeks with the that her hours would continue to be from 9 to 5 with the Respondent she filled out her timesheet to reflect her I-hour lunchbreak, and that had been her routine until actual hours, Gonzalez told her to change these entries February 1980, when she had received Leelike's memo- to show a work schedule from 8:45 to 5:10, with lunch randum. At that time, her supervisor, Director of Admis- f romdum. At that time, hr spevor bvig, Director of Admis- from 2 to 2:37 p.m., for bookkeeping purposes. Bosco sions Martin Tucker, had told her that the hours pro- thereafter maintained her timesheets as instructed. vided in Leelike's memorandum would become effective Bosco testified that, following the representation elec- immediately. Pagan, too, related that, although the hours tion, she found Leelike's February 14 memorandum on became longer, there was no increase in pay, and that her desk. When she asked John LiCausi, who had suc- ceeded Gonzalez as bursard about the memorandumo Li- Steinman, starting the day after Leelike's memorandum was distributed, began to stand at the door to check em- Causi replied that there was a change of hours. From arrived for work. On the first da ployees as they arrived for work. On the first day that then on, the employees were to come to work at 8:45 a.m., take 37 minutes for lunch, and get off at 5:10 p.m. he did this, Steinman had asked the whereabouts of two If employees were not at work by 8:45, their pay would employees. be docked. Although Bosco's work hours were increased Pagan identified a series of weekly work schedules in February, her compensation remained the same.' 7 concerning admissions office coverage during 3 weeks in Edna Agapito related that she was hired as a cashier in mid-1977, several months in 1979, and the first 2-1/2 the bursar's office in October 1978, and that she has held months of 1980. These schedules list the daily starting her present position as receptionist- typist in that office times for each employee assigned to the admissions office since November 1979. When hired, she, like Bosco, had during the weeks represented. 0 The authenticity of these been told by Bursar Gonzalez that her work hours would be from 9 a.m. to 5 p.m. with I hour for lunch, ' Although Agapito recalls having been late on January 8, she does but, as also was the case with Bosco, she had been di- not remember when she came to work. This, however, is compromised by her earlier testimony that it was her practice, when late, to put down her actual time of arrival. '' Bosco, also referred to in the record by her married name, Reyes, is 19 Pagan, the mother and mother-in-law of Rosa and Bruno Suria, re- in the bargaining unit. spectively, began her employment with the school while it was still oper- "? The Respondent argues that Bosco's testimony is contradicted by ated by R.C.A., and remained there in the Respondent's employ after her time record for June 18, which shows that she arrived for work that May 1974. Since 1974, she has been an advisor in the admissions office. day at II a.m., took lunch between 2 to 2:37 p.m. and did not leave work ' See G.C. Exhs. 7(a)-(h). Although the admissions office manning until 7:25, after staying late so as to work the full 7.8 hours. Also, while schedules for 1980 run through the week of March 10-14, by which time Bosco initially testified that on January 31 and February 7 her entered the change in hours alleged herein had become effective, the document arrival times of 9:15 a.m. represented latenesses of 30 minutes, she for that week relates back as it shows coverage for the 4 preceding changed this to avow that under the schedule then in effect she had been weeks and was dated February 12, which was before the issuance of Lee- only 15 minutes late on those days. like's, above-quoted February 14 memorandum 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD schedules, which were prepared by successive adminis- 6) Absence due to illness must be reported to trators of admissions under the authority of the dean of your immediate supervisor at the start of the day admissions, is not disputed. The schedule, dated June 16, of this absence. 1977, begins with a preamble, which announces itself as the schedule of starting times for coverage of the admis- Pagan testified that when the above memorandum was sions office for the next several weeks. The time frames given to her in 1974, on or about the time it was dated, or work shifts there indicated were 9 to 5, 10:30 to 6:30, her supervisor, then Admissions Administrator Gregory and 12 to 8. The schedule then set forth next to the Chaberski, had asked her to read same, telling her that it names of each admissions office employee daily starting was for the purpose of scheduling lunches only; no one times of 9, 10:30, or 12. With very few exceptions, all should take lunch before I p.m. Chaberski spoke individ- starting times shown were for 9. A like reference to the ually with each admissions office employee about their above time frames was made in the coverage schedule lunchtimes to ensure that the office would be fully dated April 20, 1979, for the 6 weeks between April 30 staffed until 1 p.m. At the time, according to Pagan, all and June 8 of that year. The assignment patterns there admissions employees generally were working from 9 to conformed to the earlier schedule, with the very great 5 with 1 hour for lunch, unless assigned to work an majority of the assigned starting times set at 9. While the equivalent number of hours on another shift, or unless on remaining coverage schedules did not also refer to times required overtime. This did not change after Buch's when the shifts were to end, the starting times assigned memorandum and the duration of the lunch period was for admissions office coverage through 1979 and into 1980 remained the same with a heavy emphasis on 9 not affected, except that the lunchbreak subsequently 1980 remained the same with a heavy emphasis on 9. Pagan testified that the work hours shown in the ad- was observed after p.m. missions office coverage sheets represented the actual In addition to Bruno Suria, the General Counsel pre- hours worked by employees in that office. Where the sented the testimony of two other witnesses formerly in number "9" was placed next to the name of an employ- supervisory positions with the Respondent, Vincent ee, that employee was expected to work from 9 a.m. Bruno 22 and Richard Carapezzi.2 3 until 5 p.m., unless the letter "L" was inserted next to Bruno testified that in February 1980 he attended a the starting time, in which case, the employee was ex- meeting of supervisors called by the Respondent's presi- pected to work late, until 8 p.m.2" Employees assigned to dent, Steinman. Also in attendance were Woodrow Hsu, start work at 10:30 were expected to work until 6:30. the dean of academics; Ray Lewis, associate dean of the One employee, identified as J. Davis, was assigned to preparatory department; Martin Tucker, administrator of work this schedule on certain days so that he might be admissions; Richard Bader, dean of administration; Mi- available to service veterans who attended evening chael Conlin, academics coordinator; and Rodrique de classes. los Reyes, controller and treasurer. Pagan, however, also recalled having received the fol- Steinman opened the meeting by announcing that there lowing memorandum, dated July 18, 1974, from Nathan- would be a discussion concerning District 65, the union iel Buch, then school director, addressed to the Respond- that had now come into being, and inviting the others to ent's supervisors on the subject of office procedures: ask questions. Responding to an inquiry concerning the As you may know, we at T.C.I. are presently un- hours that the staff would thereafter work, Steinman de- dertaking an intensive advertising campaign in dared that, when R.C.A. ran the school, the official order to greatly improve our enrollment picture for school hours for all employees were 8:45 a.m. to 5:10 the Fall Term. p.m. with 37 minutes for lunch. Even though those hours In keeping with this undertaking, the following had not been enforced, Steinman stated that he would procedures will be reinstated for all office personnel start enforcing them now because of the advent of the immediately: Union. He asserted that this was a perfectly legal situa- 1) Each member of the staff will be on the tion and that the school would be using this as a tool to premises for 7.8 hours per day. This means that bargain with the Union at a later date. Steinman directed your hours will reflect 8.4 hours each day with that all supervisors tell their staffs of this change and that 37 minutes for lunch. all should abide by these hours, including the supervi- 2) Lunch hours will be staggered so as to keep sors. In response to another query, Steinman declared all areas covered at all times. that these hours would become effective immediately. 3) Counsellors will not schedule lunch between 12:00 Noon and 1:00 P.M. 22 Bruno worked for the Respondent from October 1974 until his dis- charge in June 1980. Originally hired as a clerk while a full-time student 4) Supervisors will continuously be aware of at the Respondent's school, in April 1976, he became a full-time assistant work being done by each person in their respec- to the associate dean of the preparatory department, Thomas Smithsi. In tive departments. November 1976, Bruno became administrator of student services and reg- 5) Personal Business Absence will be requested istrar, which positions he held until leaving the Respondent. and approved by the immediate supervisor of i3 Carapezzi was hired by the Respondent in October 1977 as bursar. In June 1978, Carapezzi became the Respondent's accountant with re- each department prior to the day of the absence, sponsibility for overseeing the work of accounting office personnel, in- cluding the bookkeeper, assistant bookkeeper, and accounts receivable 21 Admissions employees were required to work longer work schedules clerk. He maintained all books and handled Federal, state, and corporate during busy times such as registration periods and at the start of each matters. Carapezzi continued in this position until he resigned from the school semester. Respondent in mid-March 1980. TECHNICAL CAREERS INSTITUTES, INC. 'R9 Bruno testified that when the above-described Febru- have failed to be notified. Accordingly, any people ary meeting was conducted, office employees were I have hired during this time span have been hired working from 9 to 5 with an hour for lunch and that he under the same conditions. I would greatly appreci- had instructed his own staff as to those hours as neces- ate your immediate response of this matter. Thank sary. However, immediately following the above meeting you.26 with Steinman and the other managerial personnel, Bruno called a meeting of those assigned to work with Shortly after sending Leelike the above message, Cara- him and informed them of the new hours. To enforce pezzi met Leelike in the hallway of the Respondent's him. and. inom. Tpremises and asked for clarification of the change in them, Bruno made certain that he personally was on the job by 8:45. Leelike's memorandum of February 14 was policy. Carapezzi told Leelike that, at the time he had received about I week after the meeting with Steinman been hired, he had been expected to work from 9 to 5 with 1 hour for lunch, and that he wanted to know why Although the actual work hours were changed in Febru- he and the persons employed in his office were now ary, the method of filling out the timesheets continued as he and the persons employed in his office were now before. 4 being required to work a 39-hour week. Although Lee- Bruno related that, when, in April 1976, he became a like replied that he would meet with the employees in full-time employee of the school as assistant to Associate Carapezzi's department and discuss the matter, such a Dean Thomas Smithsi, he asked the latter why the time- meeting never occurred. sheets were being filled out so as not to show the hours Ellen Harper2" testified that, after receiving complaints actually worked. Smithsi had replied that this was just from various members of the office clerical and faculty for accounting purposes. When Bruno later became reg- bargaining units about the change in hours affecting the istrar, he asked the same question of School Director office clerical unit, and following her own investigation, Buch and was given the same answer. she sent the following letter, dated February 28, to Lee- The Respondent's former accountant, Carapezzi, testi- like at the Respondent's school: fled that, while serving as the Respondent's bursar from In our opinion, the recent increase in working October 1977 until June 1978, he instructed the employ- hours for clerical employees represented by District ees assigned to work under his direction that their work 65, U.A.W. constitutes an unfair labor practice. We hours were from 9 a.m. to 5 p.m. with I hour for lunch. have filed charges in this regard with the National Later, but before February, he and his accounting office Labor Relations Board. A copy of our charge is en- employees also had worked these same hours. closed. 29 Carapezzi related that, after receiving Leelike's Febru- We urge you to promptly reinstate the previous ary 14 memorandum, which he found on his desk on or hours of work and pay bargaining unit employees about that date, he responded with his own written for those additional hours already worked. Should reply, dated February 20, to Leelike, with copies to Con- this occur, we will of course withdraw our charge. troller de los Reyes and to Administrator of Personnel We are prepared to meet with you to discuss this Susan Sieczkowski. 2 5 Carapezzi's note is as follows: matter further if you wish. In regard to your memo dated February 14, 1980, I feel it necessary to state the following. At the time Harper averred, without contradiction, that the Union of my hire, October 10, 1977, one of the conditions had received no communication from the Respondent of my hiring was that my hours consisted of a work concerning the office clerical unit either before or after it day beginning at 9:00 a.m. and ending at 5:00 p.m., sent the above February 28 letter to the school, and that with a one hour lunch break. I was told at this time no reply to this letter ever was received. Contract nego- that this procedure is company policy. The thirty- tiations for the office clerical unit began in September. nine hour work week was only a formality. If a While there since have been discussions concerning change in this policy has occurred since then, I working hours, there has been no agreement or resolu- tion of this issue. "4 Steinman questioned Bruno's general reliability by testifying that Samuel Steinman, the Respondent's president, testified Bruno had been terminated because he had inappropriately permitted that, in order for the present corporation to continue to changes in student transcripts that did not correlate with actual grades, and that this resulted in diplomas having been incorrectly issued. In addi- operate the school after purchasing i from R.C.A in tion, the school had lost much money because the flow of information from student services that enabled the school to certify students who 26 Although Carapezzi testified that he personally had delivered the were receiving financial aid was very slow. Contrary to Bruno, who tes- above response to the personnel office and had given a copy to Siecz- tified that he had not been informed of the reasons for his termination, kowski with a request that she forward it to Leelike. Leelike denied re- Steinman testified that Bruno had been confronted with the evidence ceiving it. against him by his supervisor, Dean of Administration Bader, in July, 27 Another of the Respondent's business records, a payroll change and, soon thereafter, he had been let go. Bruno admittedly did not re- notice for unit employee Alba Alcazar, also apparently contradicts the ceive a copy of the internal personnel form subsequently given to Stein- Respondent's timesheets. This document indicates that in June 1979 Alca- man, which set forth the reasons for Bruno's discharge. Bader was not zar was assigned to work from 12:30 to 8:30 p.m., hours corresponding to called as a witness. The issue of Vincent Bruno's credibility will be con- the General Counsel's position sidered below. 26 Harper, an organizer for the Union for about 6 years, services the 25 Sieczkowski's duties as administrator of personnel differs from those separate units of the Respondent's employees represented by the Union. of Manager of Personnel Relations Leelike, who works in labor relations, Harper was the only union official who was involved in the organization- in that Sieczkowski is principally involved with verifying billing and han- al campaign for the Respondent's office clerical unit and, since certifica- dling of insurance claims for the Respondent's students. She also is re- tion, has served as the Union's chief negotiator for that unit. sponsible for maintaining personnel records. 9 Subsequently, the charge in this proceeding was filed on March 3. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 1974, it was necessary to retain all previous accredi- sembled that they should make certain that they contin- tations and degree-granting authority from the State De- ued to do whatever had been done before. There was no partment of Higher Education and from the National As- discussion of negotiating strategy in future contract dis- sociation of Trade and Technical Schools, and to gain cussions with the Union.3 2 approval from the Veteran's Administration and other Steinman also denied that he had checked employee agencies. To obtain these approvals, required for contin- arrivals earlier than before following the issuance of Lee- ued operation, the new management had to demonstrate like's February 14 memorandum. Steinman explained that the school would be maintained with no change in that, since November 1979 when School Director Buch administrative policy, curriculum facilities, or working departed, Steinman has assumed Buch's duties. As a conditions. The Respondent therefore successfully at- result, Steinman has arrived at the school much earlier tempted to retain as many of R.C.A.'s former administra- than before to look into matters previously supervised by tors and school employees as would be willing to remain. Buch, coming to work as early as 7:30 and 8 a.m. and Steinman declared that office clerical employees remaining late. He has continued this practice since worked the 39-hour week when the Respondent took Buch's departure. over operation of the school in 1974 and that in the in- Steinman and Leelike trace the inception of Leelike's terest of required continuity, there have been no changes February 14 memorandum, which Steinman had author- in hours of work for clerical employees since that time. ized, to a tardiness problem then being experienced with Steinman conceded, however, that, while it was neces- financial aid employee Bhisham Sachdeva. Sachdeva had sary to maintain curriculum and faculty standards, office become upset when his supervisor, Financial Aid Officer services, and the caliber of such facilities as libraries and Watlington, had refused to approve his timesheet as sub- laboratories, the clerical personnel involved in this pro- mitted because Sachdeva had not entered his lateness for ceeding do not conduct classes and are not directly asso- the pay period in question. Sachdeva had explained to ciated with the school's academic standing.30 Leelike, called in on the matter, that his lateness had In explaining why the admissions office coverage been caused by transportation problems. Sachdeva, in schedules generally reflected starting times of 9 when, turn, was instructed to fill out his timesheet accurately according to the Respondent, the work shift really began with the proper arrival times. If Sachdeva wanted to at 8:45, Steinman related that the net time during which record the reason for his lateness, it was up to him. the admissions office performed services was from 9 to 5. Leelike then reported the incident to Steinman, who Accordingly, if admissions office employees are at work asked him to look into the general matter of lateness in promptly at 9 a.m., except for peak periods, there would the office and to report back. When Leelike returned to be no net diminution in the time during which services Steinman with his findings on tardiness, the latter accept- would be rendered in that office as compared with what ed Leelike's recommendation that, rather than deal indi- had been available under R.C.A., as R.C.A. had followed vidually with each employee, it would be wiser to the same policy. While testifying that the switchboard, remind the employees of the work hours by a general too, does not open until 9 a.m., Steinman insisted that the memorandum. Accordingly, Leelike's February 14 hours on the posted admissions office coverage schedules memorandum was distributed. are not the hours that those employees actually were ex- Leelike, too, affirmed that the working hours policy pected to work, as they always had been required to be set forth in Buch's above-quoted memorandum of July present by 8:45 and to leave at 5:10. 18, 1974, had not changed from that time to date. As did Steinman denied the account of the February manage- the Respondent's other officials, Leelike contended that rial meeting given by Vincent Bruno. According to the timesheets completed to show that 39-hour weeks Steinman, he had called a meeting of ranking school per- generally had been worked by the Respondent's office sonnel approximately I week after the Union's January employees since 1974 correctly represented the existing 28 certification. In addition to those identified by Bruno situation. as having been present, there were Richard Carapezzi;3' Although Leelike, as noted, denied receipt of Carapez- George Leelike, manager of personnel relations; Walter zi's February 20 memorandum wherein Carapezzi had Arizzni, vice president for marketing; Susan Sieczkowski, protested the asserted change in work hours, Leelike did personnel administrator; and Richard Bader, then dean of recall going to Carapezzi's office in that period after admissions. Carapezzi had asked to speak with him. Carapezzi, According to Steinman, he informed the group that, during Leelike's visit, announced that he wanted to talk because the Union had won recognition as bargaining about his working conditions. He had received Leelike's agent for the office clerical unit, the school would have memorandum and, in his mind, this February 14 commu- to scrupulously avoid changing any of the terms and nication constituted a change. Leelike replied that he conditions of employment as such changes would have knew of no change that had been intended. Carapezzi to be discussed in advance with the union representative. stated that he wanted Leelike to know that he was very Responding to questions concerning tardiness and exist- upset about this. When Leelike asked what was making ing conditions of employment, Steinman told those as- Carapezzi upset, Carapezzi reiterated that this represent- ed a change. The conversation ended when Carapezzi 3' Accreditation was actually accomplished in 1974 when the Respond- walked out of his own office telling Leelike that he did ent's attorney went to Albany, New York. where he provided the appro- priate agencies with information as to how the school would be run. J' While Carapezzi recalled having attended such a meeting, he did not 32 Steinman's account of the February meeting was substantially cor- remember what had been said. roborated by Arizzni and Leelike. TECHNICAL CAREERS INSTITUTES, INC. 291 not think he wanted to talk to him. Carapezzi resigned in office clerical employees, the Respondent contends that mid-March. the workweek always had been 39 hours and that no The Respondent's position as to the continuity of the such change had occurred. 39-hour workweek was further supported by the testimo- This matter is unusual in that the Respondent's time- ny of Walter Arizzni, vice president for marketing,3 3 and sheets since 1974, which support the Respondent's posi- two longterm employees, Kathryn Archacki and Lee tion, are under attack. The timesheets are also supported Goldberg.34 by Buch's 1974 memorandum. Conventionally, such busi- Archacki, secretary to the dean, testified that she has ness records, consistently maintained in the manner de- worked 39-hour weeks throughout her approximately 19 scribed for so extended a period, might be dispositive. In years at the school under R.C.A. and the present man- the present matter, however, the weight of the evidence, agement.3 5 When hired by the Respondent in 1974, she in the context of the credibility resolutions to be dis- was told by the then controller, Adelfio, that her hours cussed below, supports the General Counsel's argument would be the same as those she had had with R.C.A. Ar- that the timesheets are inconsistent with other business chacki's hours, from 9 a.m. to 5:25 p.m. with lunch from records and do not reflect the hours actually worked by 2 to 2:37 p.m., have been followed all the time she has the Respondent's office clerical employees before mid- been with the school. If Archacki works through her February. lunch recess, she will leave at 5 instead of 5:25 p.m. As described above, the General Counsel presented When Archacki received Leelike's February 14 memo- When Archacki received Leelike's February 14 memo- the testimony of five employee witnesses who are in the randum, which provided that the hours set forth therein the testimony of five employee witnesses who are in the could be "rescheduled only by written approval in ad- bargaining unit and three of the Respondent's former su- vance," she asked her supervisor, Dean Hsu, if this pervisors. I credit the testimony of the employee wit- memorandum applied to her as well. Hsu promised to nesses. That they all were on the Respondent's payroll check. He later reported that Archacki should continue when, at economic risk to themselves, they testified to work the same schedule as before. against their Employer's interest is a factor to be counted Goldberg, who is Arizzni's secretary, was employed in assessing credibility. 38 The credibility of these wit- by R.C.A. for about 8-1/2 years before the school was nesses has also been evaluated in the context of the other purchased by the Respondent. She averred that from the factors to be considered herein. time she was with R.C.A. to the present she has worked The testimony of former Superviser Richard Carapezzi 39-hour weeks, from 9:30 a.m. to 5:55 p.m.,36 taking be- is credited as he was a neutral and disinterested witness tween 37 to 40 minutes for lunch. While she sometimes when he testified. Unlike Vincent Bruno, who also gave works later than 6 p.m., she never leaves before that evidence as a former supervisor, Carapezzi had not been time. When she was hired by the Respondent in 1974, terminated by the Respondent, but had voluntarily re- Adelfio agreed to Goldberg's request that the same ar- signed. Although Personnel Manager Leelike did not rangement she had had under R.C.A. be continued and admit receipt of Carapezzi's memorandum of February that she be allowed to come in later in the morning and 20 protesting Leelike's February 14 communique con- stay later in the day to complete her 7.8 hours. cerning work hours, Carapezzi's credibility is enhanced Goldberg received a copy of Leelike's February 14 by Leelike's testimony that Carapezzi, at the time, did memorandum that work hours were from 8:45 to 5:10, complain about these changes when Leelike came to see and, although that communique required that those hours him in his office. Leelike noted that Carapezzi, when be observed unless there has been advance written au- seeking to discuss the changes, had been quite upset. thorization, Goldberg has continued to work the same Having credited Carapezzi, I find that on or about Feb- hours as before without discussing the matter with ruary 20 he prepared and distributed his memorandum in Arizzni and without obtaining written authorization. reply to Leelike.39 Carapezzi, on the other hand, detracted from Vincent Bruno's believability as to events at the managerial meet- The Respondent does not contest the established prin- ing called by Steinman in early February. There, accord- ciple that an employer violates his duty to bargain if, ing to Bruno, Steinman had declared that the work hours when negotiations are sought or are in progress, he uni- would be increased because of the advent of the Union laterally institutes changes in the existing hours of work and to provide the Respondent with a bargaining tool. or other terms and conditions of employment.3 7 Rather, Bruno's account is denied by Steinman and other compa- in response to the General Counsel's assertion that the ny witnesses. Although Carapezzi, by his own testimony workweek was unilaterally lengthened from 35 to 39 and other testimony, was among those present at the hours approximately 2 weeks after the Union was certi- meeting, he did not recall what had been said. Consider- fled as bargaining representative for the Respondent's _8 World Generator Company. Inc., 242 NLRB 1295, 1299, fn. 11 (1979); " Arizzni, like Steinman and Leelike, is one of the 30 coequal share- Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961), enfd. as modified holders in the Respondent corporation. 308 F.2d 89 (5th Cir. 1962). While Agapito appeared to be the most in- " Both Archacki and Goldberg are members of the office clerical bar- consistent of the Respondent's employee witnesses, her testimony con- gaining unit. cerning her work schedule before and after mid-February is accepted as 3" Archacki has been secretary to the dean during her entire employ- otherwise corroborated. ment. s" See Continental Distilling Sales Company. a Division of Publicker In- 'These hours are recorded by Goldberg on her timesheets. dustries, Inc., 145 NLRB 820, 827 (1964), enfd. in part 348 F.2d 246 (7th 37 N.LR.B. v. Benne Katz, etc.. d/b/a Williamsburg Steel Products Co., Cir. 1965), where much weight was given to the testimony of a neutral 369 U.S. 736 (1962). former supervisor. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing Carapezzi's sensitivity to the subject change in hours, who were assigned to other shifts in that office worked to the point where he protested the matter in writing the same number of hours. and/or orally, if Steinman had made the statements at- Steinman's testimony that, regardless of what the cov- tributed to him by Bruno, it is most unlikely that such erage schedules appeared to require, daytime employees remarks would have been disregarded by Carapezzi. nonetheless had been expected to be on the job between In evaluating Vincent Bruno's testimony, I make no 8:45 a.m. and 5:10 p.m. is diluted by his further testimony finding as to whether he was terminated because of the that the office rendered services only between 9 a.m. to conduct attributed to him by Steinman. In not accepting 5 p.m., that the school's switchboard did not open to re- Bruno's accounts of the mid-February meeting, it is ceive calls until 9 a.m., and that, if these employees ar- noted that his version is not supported by Carapezzi; rived for work promptly at 9 and left at 5, the office that, having been terminated, Bruno did have grounds could operate with no diminution of services as com- for other than a neutral view of the Respondent; and pared to R.C.A. This testimony eliminates any substan- that, as I found, his protestation that he had received no tive reason for the longer hours, at least as far as the ad- reason for his discharge is unconvincing. Bruno had been missions office is concerned. advanced from a routine part-time position while a stu- Similarly, as no one can call the school before 9 a.m., dent in the Respondent's school until he became registrar it would appear that the Respondent did not represent and administrator of student services. In short, he had itself as open to the public before that hour and that cer- not been badly treated. The record contains no evidence tai other clerical services did not commence before that Bruno had acted in any way to bring in the Unions office and there is no developed reason why the Respondent In affording greater credence to the admissions office after furthering Bruno's career should have dealt so sum- coverage sheets as business records than to the time- marily as not to have notified him of the reasons for his eets, spontaneity of preparation is a compelling factor. termination Accordingly, so much of Bruno's testimo- While there is considerable testimony that the timesheets termination.n° Accordingly, so much of Bruno's testimo- ny as relates to what Steinman stated at the early Febru- were kept in a certain way "for bookkeeping purposes," ary meeting is not credited. However, as Bruno's testi- is undisputed that the coverage sheets were regularly mony concerning the actual change in the length of the prepared by the Respondent for its own needs over an extended period and that the time frames for the various workday and the shortening of the lunch hour is cor- shifts as indicated in those schedules had been freely pro- mulgated. Logically, if the Respondent had then intend- Bruno Suria, like Carapezzi, had voluntarily resigned ed that the admissions office actually be manned from from his supervisory position, doing so even before the 8:45 to 5:10 and that employees on other shifts work cor- asserted change in hours became an issue. However, responding hours, it would have been just as easy to unlike Carapezzi, Bruno Suria, because of close family have so specified.42 ties to his wife, Rosa Suria, and mother-in-law, Divinia Steinman's explanation of a need to continue services Pagan, both of whom are still employed and have a ma- as under R.C.A. in order to acquire or retain accredita- terial interest in the outcome of this proceeding, cannot tion may have provided a rationale as to why the Re- be considered neutral. Nonetheless, Bruno Suria's testi- spondent may have deemed it necessary to have time- mony is consistent with the weight of the evidence as de- sheets completed to reflect a 39-hour workweek. How- veloped herein, is independently corroborated, and is ac- ever, as a practical matter, this, too, did not translate into cepted. substance. Accreditation was obtained after the school's The testimony of the General Counsel's witnesses is attorney went to Albany and informed the relevant agen- corroborated by certain contemporaneously prepared cies how the school would be operated. However, the documents of undisputed authenticity that provide in- clericals are not directly connected to the Respondent's sight as to the hours actually worked before mid-Febru- academic standing. While Steinman testified that the ary. Accordingly, Financial Aid Officer Watlington's longer hours were needed so that there would be no re- February 5 note to Sachdeva, reprimanding him for late- duction in clerical support services, as noted such serv- ness, referred to two separate occasions when Watling- ices, in fact, would not be diminished if the employees ton had spoken to him "about arriving at work after 9 were on the job between 9 a.m. and 5 p.m. With this a.m." 4' Also, the payroll change notice for employee background, I further credit the testimony of Divinia Alba Alcazar shows that in June 1979 she worked a Pagan that her actual work hours while with R.C.A. schedule consistent with what the General Counsel conformed to the 35-hour week, and that she had been argues was followed before mid-February 1980. More told by her supervisor that the July 18, 1974, memoran- significantly, taken at face value, the coverage sheets for dum from School Director Buch was intended only to the admissions office indicate that before mid-February ensure that employees did not leave the office for their most employees in that office were to be in the office I-hour lunchbreak before I p.m.43 from 9 a.m. to 5 p.m. The lesser number of employees *2 While adjustments to certain timesheets based on the 7 8-hour day, 40 While Bruno did not receive the internal personnel form given to as in the cases of Bosco. Sachdeva. and Agapito, tend to enhance authen- Steinman setting forth the reasons for the action taken against him, in ticity, the weight of the evidence supports the conclusions reached denying that he had even been given reasons for his termination, Bruno, herein. in my view, overstated his situation. 3 In reaching the conclusions herein, I have discounted the testimony " It is rather unlikely that a formal supervisory reprimand on the sub- of Archacki, secretary to the dean, and Goldberg, secretary to the vice ject of lateness would refer to an incorrect starting time. Continued TECHNICAL CAREERS INSTITUTES, INC. 293 From Union Organizer Harper's undisputed testimony, al employees, confidential employees, head book- it is clear that the Respondent refused to notify or con- keeper, guards, and supervisors as defined in the suit with the Union about the change in hours. This Act. omission plainly violated Section 8(a)(5) and (1) of the Act even in the absence of a showing that the Respond- 4. At all times material herein, the Union has been the ent had acted in bad faith. 44 The Respondent was duty- exclusive bargaining representative of the employees in bound to recognize and deal with the newly certified the aforesaid appropriate unit within the meaning of Sec- Union as the bargaining agent of the office clerical em- tion 9(a) of the Act. ployees. By taking the unilateral action found herein, the 5. By unilaterally increasing the length of the workday Respondent unlawfully failed to fulfill its duty to bar- and the workweek and by unilaterally changing working gain. 45 conditions by reducing the daily lunchbreak period, having implemented these changes on or about February IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES 14, 1980, the Respondent has engaged in, and is engaging UPON COMMERCE in, unfair labor practices within the meaning of Section The activities of the Respondent set forth in section 8(a)(5) of the Act. III, above, occurring in connection with the operations 6. By the foregoing conduct and by threatening an em- of the Respondent described in section I, above, have a ployee to discourage activity and support for the Union, close, intimate, and substantial relationship to trade, traf- the Respondent has interfered with, restrained, and co- fic, and commerce among the several States and tend to erced its employees in the exercise of the rights guaran- lead to labor disputes burdening and obstructing com- teed them in Section 7 of the Act, and thereby has en- merce and the free flow thereof. gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 7. The aforesaid unfair labor practices affect commerce . The Respondent is an employer within the meaning within the meaning of Section 2(6) and (7) of the Act. i. The Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. THE REMEDY 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. Having found that the Respondent has engaged in cer- 3. The following employees of the Respondent consti- tain unfair labor practices, I shall recommend that it be tute a unit appropriate for the purposes of collective bar- ordered to cease and desist therefrom and to take certain gaining within the meaning of Section 9(b) of the Act: affirmative action designed to effectuate the policies of the Act. All full-time and regular part-time office clerical I shall recommend that the Respondent be required to employees employed by the Respondent at 320 rescind the unilateral changes found herein and to make West 31st Street, New York, New York, but exclud- affected employees whole for any losses sustained as a ing all other employees, teachers, maintenance and result of the changes. 6 Reimbursement shall include in- custodial employees, technical employees, manageri- terest as provided in Florida Steel Corporation.4 7 The Re- spondent also should be ordered to meet and bargain in president for marketing. While both are technically within the bargaining good faith with the Union concerning work schedule unit, they are longterm employees who throughout their lengthy tenures changes and to post the customary remedial notices. have been assigned to work directly for management officials. Their posi- tions have brought them privileges not otherwise accounted for as both Upon the foregoing findings of fact, conclusions of work schedules other than the 8:45 to 5:10 routine currently mandated by law, and the entire record, and pursuant to Section 10(b) the Respondent. Archacki assertedly is scheduled to work from 9 to 5:25, of the Act, I hereby issue the following recommended: and is free to depart at 5 p.m. if she works through her lunch period. Goldberg works from 9:30 to 6, hours she claimed to have followed ORDER48 through her earlier years with R.C.A. and, with the Respondent's permis- sion, to have continued ever since. Contrary to the terms of Leelike's The Respondent, Technical Careers Institutes, Inc., February 14 memorandum, both continued to work their separate sched- New York, New York, its officers, agents, successors, ules without obtaining written authorization. While Archacki did consult with the dean for whom she worked on this matter and obtained verbal and assigns, shall: clearance, Goldberg continued to work as before with no discussion with 1. Cease and desist from: her superior. Arizzni. The longstanding respective work relationships be- (a) Refusing to bargain with District 65, affiliated with tween Archacki and Goldberg and the high managerial officials with whom they are associated have, to some degree, set them apart from other unit employees and have affected their independence and focus as ment Workers of America, by unilaterally altering terms witnesses. and conditions of employment of the employees in the " The Baughman Company, 248 NLRB 1346, 1347 (1980); Florida Steel bargaining unit set forth below for which the Union is Corporation, 235 NLRB 941, 942-943 (1978). " It also is concluded that Leelike's undenied January directive to em- ployee Rosa Suria that she should not become involved with the Union, T6 The Baughman Company, supra. Atlas Tack Corporation, 226 NLRB encourage others to support the Union, or vote in the forthcoming repre- 222 (1976). sentation election, in the context of his reference to someone who had " 231 NLRB 651 (1977). been discharged at McDonald's for not following instructions, was a '8 In the event no exceptions are filed as provided by Sec. 102.46 of threat intended to discourage Rosa Suria from working for and support- the Rules and Regulations of the National Labor Relations Board. the ing the Union. This statement was therefore violative of Sec. 8(a)(l) of findings, conclusions, and recommended Order herein shall, as provided the Act. Although not separately alleged in the complaint, this incident in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and was litigated at the hearing and is closely related to matters actually al- become its findings, conclusions, and Order, and all objections thereto leged. shall be deemed waived for all purposes. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the exclusive bargaining representative. The appropriate 1980, 49 and make the employees whole for any loss of bargaining unit is: earnings, privileges, or benefits suffered as a result of such unilateral action in accordance with the section of All full-time and regular part-time office clerical this Decision entitled "The Remedy." employees employed by the Respondent at 320 (c) Preserve and, upon request, make available to the West 31st Street, New York, New York, but ex- Board or its agents, for examination and copying, all cluding all other employees, teachers, maintenance payroll records, social security payment records, time- and custodial employees, technical employees, man- cards, personnel records and reports, and all other re- agerial employees, confidential employees, head cords necessary to analyze the amount of backpay due bookkeeper, guards, and supervisors as defined in under the terms of this Order. the Act. (d) Post at its New York, New York, school copies of the attached notice marked "Appendix." 5° Copies of said (b) Threatening to discharge employees if they work notice, on forms provided by the Regional Director for for or support the Union. Region 2, after being duly signed by the Respondent's (c) In any like or related manner interfering with, re- representative, shall be posted by the Respondent imme- straining, or coercing employees in the exercise of the diately upon receipt thereof, and be maintained by it for rights guaranteed them in Section 7 of the Act. 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the (a) Upon request, meet and bargain in good faith with Respondent to insure that said notices are not altered, the Union, as the exclusive collective-bargaining repre- defaced, or covered by any other material. sentative of the employees in the appropriate unit de- (e) Notify the Regional Director for Region 2, in writ- scribed above, concerning the length of the workday, the ing, within 20 days from the date of this Order, what workweek, lunch breaks, and other terms and conditions steps the Respondent has taken to comply herewith. of employment, and embody any understanding reached in a signed, written agreement. 49 No remedy is deemed appropriate here concerning overtime premi- (b)in a signed, writthen changreemesinthe lengthofthum pay as the practice of affording same after 39 hours of work per (b) Rescind the changes in the length of the normal week was unchanged. workday, the length of the normal workweek, and the 50 In the event that this Order is enforced by a Judgment of a United duration of the daily lunch break made in February States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."