St. Ann's Episcopal School

ST. ANN'S EPISCOPAL SCHOOL St. Ann's Episcopal School andLay Faculty Associa- tion, Local 1261, American Federation of Teach- ers, AFL-CIO. Cases 29-CA-4845 and 29-CA- 4993 June 10, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On February 7, 1977, Administrative Law Judge Julius Cohn issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge: This case was heard at Brooklyn, New York, on July 27 through 30 and September 2, 1976. On May 27, 1976, the Acting Regional Director for Region 29 issued an order consolidating cases and a complaint against St. Ann's Episcopal School, herein called Respondent. The complaint was based upon a charge filed by Lay Faculty Association, Local 1261, American Federation of Teachers, AFL-CIO, herein called the Union, on February 3 and served on February 5, 1976; and a further charge filed by the Union on May 10 and served May 12, 1976. The issues framed by the pleadings herein are whether Respondent unlawfully harassed Rob- ert N. Hoffmann, a teacher, by excessive classroom observations and unfavorable performance evaluations, and discriminatorily failed to renew his contract because of his concerted activities and his activities on behalf of the Union, and because he filed the charges and gave 230 NLRB No. 21 testimony under the Act. Respondent filed an answer denying the commission of unfair labor practices. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs were submitted by the General Counsel and Respondent and have been carefully considered. Upon the entire record in the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a private nonsectarian elementary and secondary school located at 129 Pierrepoint Street, Brook- lyn, New York, where it is engaged in providing and performing educational and teaching services from Ist through the 12th grade. In the course and conduct of its business operations during the past year Respondent has derived gross revenues from tuition, fees, and other sources in excess of $1 million. Respondent, in the course and conduct of its business operations during the past year, purchased and caused to be transported and delivered to its place of business, books, paper, teaching aides, school supplies, and other goods and material, valued in excess of $50,000 of which goods and materials valued at in excess of $50,000 were transported and delivered to it from States of the United States other than the State of New York wherein its place of business is located. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. HI. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent, a nonsectarian day school founded in 1965, currently enrolls approximately 750 children in grades I through 12. The school caters to a student body consisting of very bright, sometimes talented children, who thrive in an atmosphere of challenge and motivation. The word "caters" is used here advisedly as the headmaster, Stanley Bosworth, makes perfectly clear that his policy is to cater to the desires of the children, with a view to their achieving to the maximum extent of their capabilities. Bosworth makes it equally clear that such policy does not apply to the handling and treatment of teachers. The students come first and the teachers last, in his view, as he is not concerned with democracy in his relationship with the teachers. Their job is to be understanding of the children, stimulate and motivate them to develop their own minds and ideas. While students are not graded, as such, in their courses, a wary eye, nevertheless, is focused on achieve- ' With his bnef, counsel for Respondent filed a motion to correct the transcript. As the motion relates to typographical and other minor errors. and there being no opposition thereto, it is hereby granted. 99 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment test results in college entrance board examinations. The school prides itself on the great numbers of its students who graduate to the so-called better colleges and universi- ties, and these test scores are, in part at least, the basis for their admission. Robert N. Hoffmann taught at Respondent for 3 years, having been hired for the year commencing September 1973 as a teacher in the science department until the end of the school year in 1976 when his contract was not renewed by Respondent. B. Concerted and Union Activities At the end of 1974, some of the teachers were apparently disaffected with the administration of the school and, as a result, seven persons including Hoffmann were elected to serve as a faculty committee. In the ensuing few months the committee met with Headmaster Bosworth a number of times and discussed various subjects relating to the teachers' contracts, curriculum, and various working conditions. The faculty committee then discussed the possibility of union representation and Hoffmann was designated to investigate this matter. He went to the office of the Union and arranged for some of the teachers to meet with union representatives in March 1975. On April I the committee circulated a letter to all teachers urging that they opt for union representation and describing the methods to be used for the selection of the Union, noting that the procedure would be conducted under supervision of the National Labor Relations Board. This letter was signed by the seven members of the committee. Charles Arent, a former teacher and committee member, testified that he had written the first draft; it was then revised by the committee who agreed that the first signer should be Hoffmann, most active member of the committee in making contact with the Union. Thereafter union cards were distributed by mail and in person and Hoffmann stated that he himself distributed cards and spoke personal- ly to a number of teachers. In addition, further meetings were conducted with the union representatives. There is no question concerning the awareness by Respondent of the concerted activities not only of Hoffmann but of all the members of the committee, since it is clear that Bosworth met perhaps 10 times with the committee and discussed as noted above various topics involving the teachers' working conditions.2 Moreover, within a week after the letter urging union representation was mailed by the committee, Bosworth replied to all teachers indicating his awareness of the union activity and his position contrary to unionization. During the period of these activities, a meeting of the teachers in the science department was held at the home of a teacher in February 1975. According to Hoffmann, during the course of this meeting Peter Cohen, the department chairman, stated that Bosworth had characterized Hoffmann as an organizer. 2 The record does not show whether the committee constitutes a labor organization. However, it is clear that activities of the committee members were protected. 3 The substance of these remarks by Cohen at the February 1975 meeting are not alleged herein to be unfair labor practices. They were the subject matter of a charge, together with other allegations not relevant herein, filed by Hoffmann on May 19, 1975. The major portions of his charge were dismissed by the Regional Director, and the remainder consolidated with Cohen, in his testimony could not recollect making this remark, which, however, was corroborated by Arent, whom I credit. Hoffmann further testified that at this meeting Cohen also informed him that he had been instructed by Bosworth to write something about Hoff- mann which could be used in the future. 3 It is the practice of Respondent to make observations of classroom teachers, principally conducted by the various department chairmen, but also by the heads of the particular school involved (lower, middle, or high school), the assistant headmaster or the headmaster himself. In addition commencing in the spring of 1975, a policy of written evaluations prepared by the chairman of the department concerning the performance of the teachers was instituted. Cohen's first evaluation of Hoffmann, made in May 1975, contained praise for Hoffmann's work in the physics class, a high school subject. However, Cohen stated that his middle school work needed improvement and found that problems stemmed from Hoffmann's lack of rapport with his classes and the amount of time he spent attempting to obtain some discipline. As a result of Cohen's evaluation, and based on her own observation, Barry, the head of the high school, had recommended against the renewal of Hoffmann's contract for the 1975-76 year. Despite the shortcomings, Cohen made a recommen- dation that the contract be renewed, with which Kaufman, the assistant headmaster, concurred. Bosworth stated that although he had found a general sense of discontent concerning Hoffmann, on the part of some students with whom he had dealt, he decided that the evidence at the time suggested that Hoffmann be given more of a chance as the school is a difficult one in which to work. Therefore Hoffmann's contract was renewed for the coming year. During the first week of the new school year in September 1975 Hoffmann's classrooms were visited twice, once by Cohen and another time by Barry. It was suggested to Hoffmann by Cohen that he learn the names of his students quicker then he had. As a result of her visit Barry had written Hoffmann a note requesting that he see her about something. He did not go to see Barry until after having received a second note from her some time later. During the entire school year 1975-76 Hoffmann's classes, of which there were five, were visited approximately 20 times by Cohen, 4 times by Barry, and several other times by members of the administration including Kaufman, Dunne, head of the middle school, and Bosworth himself, who would look in for very short periods of time upon occasion. Barry, who had contact with many of the students in high school, stated that she had received complaints from them, including one at the very outset of the school year which prompted her own visit during the first week of school. Most often she passed on the complaint to Cohen without revealing the names of the students involved. According to Cohen this increased the the charges filed by another teacher against the Respondent. These cases were ultimately resolved by a formal settlement agreement dated October 28, 1975, providing for the entry of a Board order and court judgment. The settlement agreement contained a nonadmission clause and subsequently Respondent complied with the terms of the Board Order and was advised by the Regional Director on April 27, 1976, that those cases had been closed on compliance. 100 ST. ANN'S EPISCOPAL SCHOOL number of his observations because he received requests not only from Barry but also from Dunne, and in addition had some complaints directly made to him by students. From time to time Cohen discussed some of his observa- tions with Hoffmann and talked about particular problems. With regard to the number of visits made by Cohen, it is noted that, during a discussion of the first evaluation written in the spring of 1975, Hoffmann stated that Cohen had not observed him frequently enough. In that year he had made approximately 12 observations. Cohen also said that, as part of his overall responsibility, he visited the classrooms of all the teachers in the department in varying numbers depending upon necessity of the situation. In December 1975 Cohen prepared another written evaluation which is generally praiseworthy with respect to Hoffmann's physics class. However, he noted that his biology class was "somewhat marred by apathy and distraction." He found that the students who were critical were the same who provoked the distractions and they had to be dealt with by Hoffmann; he noted that a variation in style and presentation might be more amenable. Generally, Cohen concluded that Hoffmann's effectiveness was lost as a result of a lack of rapport with the students who "communicated an antipathy" toward him. He said that students in all classes had expressed a lack of respect for Hoffmann as a teacher. In his last evaluation, dated April 14, 1976, Cohen noted that Hoffmann's physics section had decreased in size, that numerous students were absent or late, and the atmosphere was strained and uncooperative. In the biology class he found that discipline continued to be a problem and the students mocked Hoffmann and did not respect him. Again in general science classes taught by Hoffmann, Cohen stated that his observations revealed one section to be highly disorganized with a lack of order and discipline. He noted students sat facing in all directions and engaging in activities such as reading comic books and eating oranges. He also criticized Hoffmann's attitude towards these students. As he delivered a copy of this evaluation to Hoffmann, Cohen told him that it had been decided not to renew his contract for the coming year. According to Respondent's administrators, other factors besides their personal observation of Hoffmann's classes were considered in the decision not to renew Hoffmann's contract. Notice was taken of the fact that the number of students enrolling in Hoffmann's physics class, an elective subject taken by junior or senior students in the high school, had declined and the administrators had been advised by some of the students that they were seeking to avoid Hoffmann as a teacher. More important, in view of the school's objective in having its graduates admitted to the elite colleges, were the lower grades which students in Hoffmann's class were attaining in the college board achievement tests. This belief was confirmed by a series of studies and charts, admittedly prepared during the course of the hearing in this matter, which portrayed the results and relative grades of students in Hoffmann's biology classes as compared with those in sections taught by other teachers. The students are required to take three successive courses in biology. Using the grades of students who were taught by Hoffmann in the second of the three courses, it appeared that their percentiles declined from what they had achieved in the prior course, and rose when they took the third course after leaving Hoffmann's class. Respon- dent contends that for the sum of all these reasons a determination was eventually made not to renew the contract of Hoffmann. Finally, it should be noted that all teachers were subject to classroom observation in varying numbers according to the necessity. Also it appears that other teachers active on behalf of the faculty committee and the Union, and most particularly the other six signers of the letter urging designation of the Union, were all renewed or offered renewal, and there is no evidence of any threats or reprisals taken against them. C. Analysis From the welter of verbiage adduced in this case, there emerges a very simple image. A teacher has engaged in concerted activities by virtue of his participation in the organization of and membership on a faculty committee, and was further involved in activity seeking to organize the faculty of Respondent on behalf of the Union. Respon- dent's administrators admit being aware of Hoffmann's efforts on behalf of both the committee and the Union. In addition, Hoffmann had filed an unfair labor practice charge against Respondent with the Board. All of these activities occurred during the end of 1974 and the early part of 1975. As a result of what may be gleaned from the background preceding the filing of the charges and the formal settlement in the prior case, referred to above, as well as the testimony of Bosworth and Barry at the hearing herein, it may be inferred that Respondent harbored an animus with regard to the Union. It is the contention of the General Counsel that the contract of Hoffmann was not renewed because of his activities approximately I year ago and that Respondent's motivation was demonstrated by alleged conduct which would have occurred also a year ago. There are no allegations of violations of the Act or evidence of conduct or statements exhibiting further union animus which may have occurred in the intervening period. It is the burden of the General Counsel to establish that the failure to renew was motivated by Hoffmann's union or protected concerted activities, a burden, which I find, has not been fulfilled in the circumstances of this case. The previous cases involving Respondent were settled formally with nonadmission clauses and have been closed by the Regional Director upon compliance and cannot of them- selves be utilized to establish violations of the Act. Poray, Inc., 143 NLRB 617 (1963). However, to some extent Respondent's presettlement conduct can be and has been introduced in an attempt to establish the motive of Respondent's postsettlement activities. Northern California District Council of Hodcarriers and Common Laborers of America, AFL-CIO; Construction and General Laborers Union Local No. 185, AFL-CIO (Joseph Mohamed Sr., an Individual, d/b/a Joseph's Landscaping Service), 154 NLRB 1384 (1965). I have therefore taken cognizance that the evidence herein has established union animus on the part of Respondent and perhaps even extended to Hoffmann by reason of his having filed an unfair labor practice charge. However, the existence of such elements above are not 101 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sufficient to establish that Respondent was unlawfully motivated when it refused to renew Hoffmann's contract a year later. No intervening event has occurred nor is there any evidence of contemporaneous statements manifesting such motive on the part of Respondent. Furthermore, I find the evidence insufficient to warrant a conclusion that Respondent, in terminating Hoffmann, acted in such an arbitrary or capricious manner as would tend to indicate that its asserted reasons for that action were pretextual. It is no doubt true that an evaluation of a classroom teacher's performance based upon personal observation may fre- quently be determined by subjective factors. There are probably wide differences of opinion among educators on the question as to who is a good teacher, but that is not in issue in this case. Respondent is surely entitled to determine for itself the standards it seeks in teachers. However, the evidence does reveal a number of objective facts, most of which are undenied in this record. Thus Cohen's observation of students reading comic books in class, eating oranges, seated in disarray around the classroom, their lack of attentiveness to the teacher, the manner and tone of questions, remarks by the students, and responses by Hoffmann are objective factors which provide a basis for his recommendation. Tests scores and comparison of the achievements of Hoffmann's students with those taught by other teachers provide further basis for a determination unfavorable to Hoffmann. Another factor often indicating a discriminatory motiva- tion is that of disparate treatment, evidence of which is lacking in this case. It is contended that Hoffmann was harassed by being observed more often than other teachers. While it is apparently correct that Cohen visited Hoff- mann's classroom 20 times whereas other teachers may have only been visited 12 times, the number does not appear exorbitant in view of the fact that Barry and other administrators had referred complaints to Cohen about Hoffmann from students, and Cohen himself had remarked earlier in his first appraisal in April 1975 that Hoffmann had certain problems which required correction. In addition, Hoffmann, upon receipt of that particular 4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. evaluation, had indicated to Cohen that he felt he had not been sufficiently observed. As to the visits from other administrators, it does not appear that Barry, for example, came to Hoffmann's classroom more than four times in the course of the 1975-1976 year, not an exorbitant number it would seem. Also, as has been previously noted, no other teacher who was active on behalf of the committee or was one of its members, or of the Union, had been refused renewal. In fact a number of them received raises although their activity was well known to Respondent. Essentially, the issue here does not involve the correct- ness or fairness of Respondent's decision, the validity of students' complaints and actions, or the policies of Respondent in dealing with students or evaluating teach- ers. In short, Respondent may terminate a teacher for any cause and is not required to prove that its reason was a good one or even a fair one. The burden falls upon the General Counsel to prove that the discharge was discrimi- natorily motivated under the Act. I find that the General Counsel has not established by a preponderance of the evidence that Respondent unlawfully refused to renew the contract of Hoffmann for a cause proscribed by the Act. Accordingly, I shall recommend dismissal of the complaint in this case. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 The complaint is dismissed in its entirety. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 102