The University Of Chicago

UNIVERSITY OF CHICAGO The University of Chicago . and Regina'^Starzl..Case. 13-CA-22447 27 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 8 August 1984 Administrative Law Judge Donald R. Holley issued the attached decision. The General Counsel, the Charging Party, and the Re- spondent filed exceptions and supporting briefs, and the General Counsel filed an answering brief to the Respondent's exceptions. The -Board has considered the decision and the record in light of the exceptions and brief' and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. I The Charging Party has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 The Charging Party contends that the judge's interpretation of the evidence and his credibility findings show bias and prejudice against the Charging Party Upon careful examination of the judge's decision and the entire record , we are satisfied that the contentions of the Charging Party in this regard are without merit The General Counsel and the Charging Party have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The judge's decision contains the following errors In fn 4 he states that Elinor Najita was an accredited guidance counselor The record does not support this finding In sec III,B he states that the Respondent's principal, Feldman, placed a letter in employee Lynn Jaffe's personnel file While the record indicates that Feldman placed a letter in the per- sonnel file of an employee other than the Charging Party, there is no in- dication in the record of the identity of the employee involved In sec III,E, 1, he inadvertently referred to Jewel Thomas as "Jewel Jones " DECISION STATEMENT OF THE CASE' DONALD R. HOLLEY, Administrative Law Judge. On an original charge filed by Regina Starzl (the Charging Party and/or Starzl) on August 5, 1982, the Regional Di- rector for Region 13 of the National Labor Relations Board (the Board) issued a complaint on May 31, 1983, which alleges, inter alia, that the University of Chicago (Respondent) violated Section 8(a)(1) of the National Labor Relations Act (the Act), by transferring Starzl i The joint motion to correct transcript filed by the General Counsel and the Charging Party, which is unopposed, is granted 379 from a guidance counselor position in, the lower school of the University of Chicago Laboratory School to a guidance counselor position in the high school of said Laboratory School because she had engaged in protected concerted activities. By timely answer, Respondent denied it had engaged in the unfair labor practices set forth in the complaint. The case was heard in Chicago, Illinois, on October 27 and 28 and November 14, 1983. All parties appeared arid were afforded an opportunity to participate fully. On the entire record, the briefs filed by the parties, and from my observation of the demeanor of the witnesses during the hearing, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, an Illinois not-for-profit corporation, with an office and place of business in Chicago, Illinois, is en- gaged in the operation of a private nonprofit educational institution. During the calendar year ending December 31, 1982, its gross revenues available ' for operating ex- penses exceeded $1 million and, during the same period, it purchased from suppliers located outside the State of Illinois goods valued in excess of $50,000. It is admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. STATUS OF LABOR ORGANIZATION It is admitted, and I find, that the Faculty Association of the University of Chicago Laboratory Schools, Local 2063, American Federation of Teachers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The institution involved in this proceeding is the Uni- versity of Chicago Laboratory School (Lab School), a unit of the University of Chicago, which is located in a quadrangle of contiguous buildings on the university campus at 1362 East 29th Street, Chicago, Illinois. Ap- proximately 1475 students are enrolled in the Lab School in classes ranging from the nursery school level through grade 12 Applicants seeking admission to the Lab School are carefully screened as the school seeks to give its students a superior education to enable them to suc- ceed when they subsequently attend college. Administra- tively, the school is divided into four parts: a nursery school; a lower school (kindergarten through grade 5); a middle school (grades 6 through 8); and a high school (grades 9 through 12).2 The Lab School is administered by a director and three principals-one for the nursery and lower school, one for the middle school, and a third for the high school. 2 The faculties of the school are divided into four groups, i e , faculty I (nursery), faculty II (lower school), faculty III (middle school), and fac- ulty IV (high school) 274 NLRB No. 61 380 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD Since 1980, the director of the Lab School has been James Van Amburg. When Van Amburg appeared as a witness, he testified that, when he was originally inter- viewed for the position, the individuals and groups with whom he spoke expressed a number of concerns with the operation of the Lab School and a desire for certain changes. Among the issues emphasized was a dissatisfac- tion with the way the Lab School had been dealing with children who exhibited learning and behavioral prob- lems-a dissatisfaction which arose from a perception on the part of parents that the Lab School was not placing sufficient emphasis upon learning problems, and was, in- stead, too readily referring children with problems to ex- pensive outside therapists. On May 4, 1981, near the end of his first year as direc- tor of the Lab School, Van Amburg gave a "State of the Schools Message" to the members of the Lab School's Parents Association. A copy of the speech was placed in the record as Respondent's Exhibit 15. In the speech he announced that Alan Feldman, then head of the lower school at Philadelphia's Friends Select Academics, would be the new principal of the lower school at the Lab School the following year and he announced that Jennifer Gates had been hired as a reading coordinator. During the 1981-1982 school year, Feldman's first year in the lower school, there were approximately 155 persons on the Lab School faculty. Approximately 700 of the students enrolled in the Lab School in the school year under discussion were enrolled in the lower school, i.e., kindergarten through the fifth grade. During that year, Feldman supervised some 25 teachers and 20-25 special area teachers and assistant teachers assigned to the lower school and Starzl, the sole guidance counselor for the lower school The faculty members were repre- sented by the Faculty Association. Article VII, section a, and article VII, section c, of the then subsisting collec- tive-bargaining agreement between the Lab School and the Union afforded members of the faculty certain con- tractual rights regarding the academic freedom and fac- ulty participation in matters which affected their wages, hours, and working conditions 3 3 Those sections of the agreement , which were placed in the record as G C Exh 2(a), provide ARTICLE VII WORKING CONDITIONS A Academic Freedom I It is the intent of the parties to assure that teachers enjoy aca- demic freedom in the Schools Academic freedom shall mean that teachers are free to present instructional materials which are perti- nent to the subject and level taught , within the outlines of appropri- ate course content and within the planned instructional program, as determined by normal instructional and/or administrative procedures and as finally approved by the administration of the Schools Aca- demic freedom shall also mean that teachers shall be entitled to free- dom of discussion within the classroom on all matters which are rel- evant to the subject matter under study and within their areas of professional competence, assuming that all facts concerning contro- versial issues shall be presented in a scholarly and objective manner, and assuming that all discussion shall be maintained within the out- lines of appropriate course content, be pedagogically justifiable, and be subject to standards of good taste 2 It is the intent of the parties that this section shall not apply to routine differences of opinion or disagreements among the faculty or between the faculty and the administration regarding curriculum, methodolgy, selection of materials, or conduct of classroom teach- At the outset of the 1981-1982 school year, Feldman notified the faculty of the lower school that he was insti- tuting several changes in the operation of the lower school The changes included (1) a requirement that fac- ulty members of the lower school, including the faculty 11 members, remain available for mandatory meetings until 5 p.m each Tuesday; (2) an indication that grade level chairpersons, acting with Feldman, would prepare agendas for the Tuesday meetings; (3) a requirement that the teachers remain at the school until 4 p.m each school day to assure that their students reached their school buses safely; (4) the establishment of a new admis- sions procedure; (5) a reduction of the library staff; (6) the formation of a four-member child study group which was to consider possible remedies for children in the lower school who were experiencing learning or emo- tional problems, (7) the alteration of the method of han- dling children with reading problems; and (8) a require- ment that teachers obtain the principal's permission to use substitutes for absent assistant teachers. The record reveals that the faculty II group (faculty serving kindergarten through the grade 5) vigorously op- posed the above-described changes instituted by Feldman for two reasons, i.e., the changes were made before they were discussed with the faculty as required by the col- lective-bargaining agreement, and they were felt to be an unwise departure from the manner in which such matters had been handled in prior years. Consequently, on Octo- ber 2, 1981, the executive board of the faculty associa- tion filed five grievances protesting: (1) The new routine for dismissing students after school, (2) the creation of a new admissions committee; (3) reorganization of faculty meetings for the lower school; (4) the change in library staffing; and (5) a requirement that teachers obtain the principal's permission to use substitutes for absent assist- ant teachers. The thrust of the grievances was that the changes had been instituted without adequate faculty participation and thus violated article VII, section C, of the collective-bargaining agreement. Several of the changes instituted by Feldman at the commencement of the 1981-1982 school year affected Starzl directly, i.e., the Tuesday meeting requirement, mg, and shall not apply to criticisms and critical analysis resulting from the normal evaluation of classroom teaching performance, but shall be utilized only to process claims that academic freedom, as de- fined in paragraph I above, has been clearly and positively breached by some specific, definite act or order of the administration of the Schools C Faculty Participation In recognition of the heritage, traditions, and uniqueness of the Laboratory Schools, continuing faculty participation will obtain in the following areas I Development and planning of curriculum and program 2 Selection of teaching materials 3 Determination of instructional assignments 4 Student admissions and re-admissions 5 Student placement 6 Appointment of department chairpersons and grade level chair- persons 7 Formulation and re-allocation of a department and grade level budgets 8 Allocation of secretarial services and office facilities 9 Assignment to Little Faculties All recommended actions in these areas shall be considered by the appropriate administrators and faculty groups UNIVERSITY OF CHICAGO the change in the admissions committee, and the creation of a child study group which was to serve the entire lower school. Apparently, prior to the 1981-1982 school year, class instruction in the lower school stopped at noon and the faculty decided among themselves whether they would conduct faculty meetings, engage in prepara- tion, or engage in other activities related to their work. Feldman changed the situation by requiring that faculty members remain available for meetings until 5 p m. on Tuesdays and he indicated the agenda for such meetings was to be prepared in advance by a representative from each grade group and himself, the principal While the record fails to reveal how admissions were handled prior to the 1981-1982 school year, Starzl indicated, during her testimony, that Feldman's creation of an admissions committee (composed of the principal, one representative from each grade, the assistant to the principal who served as the admissions secretary, and the lower school guidance counselor) restricted the participation all teach- ers had previously enjoyed with respect to participation in admissions Finally, the creation of a child study group (composed of the principal, the principal's assist- ant, the reading coordinator (Gates), and the guidance counselor (Starzl)) affected Starzl most of all. Thus, the record reveals that, while a similar child study group was utilized to consider problems experienced by first grade students during the 2 school years immediately preceding the 1981-1982 school year, the guidance counselor(s) for the lower school had virtually complete control over the handling of students in the lower school who were experiencing learning or emotional problems prior to the 1981-1982 school year. Under the plan insti- tuted by Feldman, the four members of the group were to each act as a liaison to the teachers of specific grade groups. He assigned Starzl as the liaison for the kinder- garten, second and fifth grades, Elinor Najita ( his assist- ant) as liaison for the third grade, himself as liaison for fourth grade, and Gates as liaison for the first grade. During his testimony, Feldman explained that the child study group was formulated with the thought that an interdisciplinary approach would be taken and the team would attempt to determine whether students who where experiencing difficulty in class had learning prob- lems or whether their problems were emotional.4 After the nature of the problem was ascertained, the group was to determine how to remedy the problem. B. Starzl's Posture in the Lower School and Her Reaction to Feldman's Changes Regina Starzl was hired by Respondent as a guidance counselor in its lower school in 1970. She possesses a bachelor's degree in elementary education, a master's degree in elementary school guidance and counseling, and has completed some 60 additional semester hours of graduate work in courses relating to early childhood education, counseling, and psychology. Upon her hiring, 4 The record reveals that each member of the child study group was eminently qualified to serve on the group Gates and Feldman had ob- tained considerable experience in application of an interdisciplinary ap- proach to the problems of students in their previous employment and Narita and Starzl were both accredited guidance counselors 381 she automatically became a member of the guidance de- partment of the lower school which provides guidance and counseling services for the entire lower school Prior to the fall of 1982, Starzl's experience at the Lab School was almost exclusively in the lower school, the exception being 2 years during which she worked in both the lower and middle schools with fifth and sixth grade stu- dents.5 As a lower school counselor she consulted with teachers who were experiencing problems with students; observed students; studied records, held conferences with parents, usually at the referral of a teacher; and made ar- rangements for outside services which included psycho- logical evaluations, psychiatric consultations, diagnostic work, student therapy, and family counseling. When she was responsible for older students, she also offered indi- vidual and group counseling. In 1973, she became a senior teacher, a status essentially equivalent to academic tenure. As a result, she cannot be terminated except for incompetence. In late October, Starzl and seven other lower school faculty members met and thereafter sent a memo, which each signed, to the other members of faculty II which in- vited them to attend a meeting on November 6 for the purpose of discussing unresolved issues including changes in the dismissal and admissions procedure and the preplanned agendas for Tuesday meetings. Thereaf- ter, the faculty II group met on November 6 and 10. During such meetings, various members of the faculty voiced their objections to the various changes instituted by Feldman, who also attended the meetings. Starzl re- calls she made some remarks concerning her caseload at the November 6 meeting, but indicated she took no meaningful part in the November 10 meeting. At the conclusion of the November 10 faculty II meet- ing, a further meeting was scheduled for November 16. Starzl had an appointment which she claims prevented her from attending the November 16 meeting. To place her views before the faculty she prepared and placed in the mailboxes of teachers (but not the box of the princi- pal), a memo which stated (G.C. Exh 6):6 TO: My colleagues of Little Faculty II FROM: Regina Because of a previously scheduled (and re-sched- uled) parent conference, I will miss most, if not all, of today's meeting. I would like to share my thoughts with you, as follows- As a counselor who has worked closely with our Faculty-special area as well as classroom teach- ers-for many years, and who has the highest re- spect for their professionalism, I would like to pro- pose that: 1. Our new administrators-Van Amburg, Feld- man (and Gates")-take this year to get to know our faculty and their programs WELL, individually and collectively, and 6 Starzl was on leave of absence during the 1978-1979 and 1979-1980 school years 6 Starzl's memo is set forth in its entirety as it is actually the corner- stone of the General Counsel's case 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IN THE MEANTIME 2. There be proclaimed a moratorium on RE- QUIRED meetings during this year except: Little Faculty Monthly meetings; Grade Level Meetings AS SCHEDULED BY GRADE LEVEL TEACHERS; A Monthly Principal's Meeting, if he so de- sires. All other meetings initiated and offered by anyone should invite voluntary attendance and par- ticipation. This response is prompted by my sense that manda- tory meetings and required putting in of hours for so-called "professional development " on Tuesdays not only implies broad and general criticism and weakness, but treats teachers in a way UNLIKE that accorded even our youngest students. We EN- COURAGE our students to develop themselves IN- DIVIDUALLY; we do not force them or provide exactly the same curriculum or teaching approach for everyone. We respect their individuality , inter- ests, and talents. We trust them to respond and to grow in a facilitative learning environment. We make it possible .Should we do less for our teachers? I have found our teachers WITHOUT EXCEP- TION over the years willing to spend (up to) long hours with me, early and late, during their lunch and special-area class times, occasionally at night or on weekends, discussing and planning for the spe- cial guidance needs of individual children. PRO- FESSIONAL INTEREST AND DEDICATION IS THERE. It must be acknowledged, appreciated, respected, and nurtured; it cannot be mandated or coerced in unsuitable and probably unproductive structures . I submit as a small example the response of 22 teachers within the last month to my invita- tion to participate in a series of small-group discus- sions relevant to their professionalism . This at a time when they are unquestionably "over-mee- tinged." I would gladly discuss with administrators or par- ents why our teachers need extra time, not less time, for deliberation and planning and for self- chosen professional development experiences. Uniformity-for-uniformity-sake is foreign to the quality image and tradition of the Laboratory Schools and, I believe, offers no enhancement of ex- isting practices and philosophy. Similarly , a reading program plan which insists that all 500 children be served by 3 reading teachers when perhaps 50 chil- dren will face failure in these Schools unless they receive very special (perhaps massive) remedial help, does not appear to recognize important differ- ences or priorities in needs. It disregards the evi- dence of the past and calls into question classroom teachers' abilities to meet the needs of the quick and gifted, the majority of our students. Additional re- sources made available to teachers, rather than man- dated new structures, would likely be welcomed. Let us consider PRIVATELY AND INDIVID- UALLY, then: 1. What would constitute professional develop- ment for me? 2. In what ways may I seek and find professional development? 3. How may I present evidence of professional development to doubting or evaluating administra- tors, on at least an annual basis (as I believe was past practice with the update sheet that was circu- lated, not pushed , for our personnel files)? Recurring thoughts: Never underestimate the intelligence, integrity, creativity and dedication of our Faculty. Most likely our teachers were gifted children and are gifted teachers . Our teachers need respect, au- tonomy, trust, support, reasonable teaching loads and schedules, and some unscheduled time in order to uphold and maintain the traditional quality of the Laboratory Schools. Most of our teachers have been an integral part of that quality for many years. Our administrators must LISTEN to us, LOOK at us, LEARN about us, before they can LEAD us. Although Starzl did not send Feldman or Van Amburg a copy of her November 16 memo, members of the faculty gave the adminstrators copies of the docu- ment. With regard to the memorandum, Van Amburg testified (Tr. 425): [i]n all of my time in education I had never quite seen something in that tone . . . . this was at a time we had a new principal probably two months and already it was a personal attack on a new principal. I remember thinking it was demeaning to the read- ing coordinator [Gates] at that point and I remem- ber being very frustrated. . . . Feldman testified that in addition to being disturbed be- cause Starzl had suggested, in effect, that he not take any actions during his first year as a principal , that he felt Starzl displayed contempt for Gates in the document. In this respect, he testified: The letter was very upsetting to me. The whole purpose of the child study group was to form an interdisciplinary team, which would be the principal working with the counselor, with Regina Starzl and Jennifer Gates bringing different points of view to bear on problems with children . In this letter I saw Regina Starzl undermining her relationship with me, undermining her relations with Jennifer Gates, and I suppose undermining her relationship with her colleagues as well. But I saw the letter as being very destructive. Feldman further indicated during his testimony that his concern was not with the substance of what Starzl had written but rather was with the fact that she had chosen a form which was divisive and which would inhibit rather than promote discussion of the issues involved. He indicated (Tr. 544): UNIVERSITY 'OF CHICAGO [T]he whole process of the meeting is so that people with different points of view can get together, dis- cuss their differences and come to some common point of view. In my own thinking, the idea of writ- ing a memorandum to the colleagues inhibited the process of people discussing things so that open give and take where some kind of concessions can be reached. It's more like a position paper and tends to interfere with that process. On November 17, Feldman called Starzl to his office to discuss her November 16 memorandum Starzl's testi- mony, which was not challenged by Feldman, reveals his comments were as follows. He told her that he was dis- appointed, that he thought it was disloyal to him, and that it possibly might undermine his relationships and affect her relationships with the teachers He emphasized he felt the memo was "extremely cruel" to Gates in re- ferring to her role in the school as unclear. Starzl re- sponded that the memo was meant to carry forward the prior discussions and be supportive of teachers at a meet- ing she could not attend. Feldman said he thought she should have been able to attend, and that she was exag- gerating the extent of her work He then said he thought she had trouble getting along with reading teachers. When Starzl denied this and cited good relationships with at least four prior reading teachers, he accused her of not having a good relationship with a reading teacher called Terri Wood. Starzl informed him she had never worked with Wood but had met her when she attempted to get her children admitted to the Lab School He then said he felt she had been very active in faculty politics. She asked him what he meant and he said, "signing that memo that went out to the teachers inviting them to a meeting." He again said she was exaggerating her work, making the job gargantuan, and stated that he wondered "if in some convoluted way" she wanted to work in an- other school.7 Feldman then asked if she did not want a lower school principal. When she responded that she did, he said that perhaps she did not want him She answered that she was delighted when he decided to come and thought he was very suited for the school. He then stated he heard that counselors were doing administrative things in the lower school the previous year. She claimed they had not. The meeting ended with Feldman telling her to make arrangements to meet with him and follow up on the discussion. On November 18, Feldman prepared and delivered to Starzl a letter in which he documented his reaction to her November 16 memo and set forth what he expected from Starzl during the school year. The body of the letter, General Counsel's Exhibit 8, states- Your memorandum to Faculty II which you distrib- uted on Monday has brought to head some very critical issues. Our lengthy conversation yesterday helped to focus many of these issues for me. ' During the discussion, Starz] claims that, at some point, Feldman in- dicated he had read a letter she had sent to Van Amburg at the close of the previous school year expressing her "intense interest" in remaining a guidance counselor in the lower school See G C Exh 7 383 Before I review the issues raised, I want to summa- rize my reaction to your memorandum- 1. Your reference to Jennifer Gates in the memo- randum, "Van Amburg, Feldman (and Gates?)" was at best unkind. Your questions about Jennifer's role are best handled in a more direct constructive way. 2. I question the timing of your memorandum. In presenting the memorandum right before a faculty meeting which you did not attend, I wonder if you have contributed (as you might have under other circumstances) to our faculty discussion. 3. I question the tone of your memorandum. Your proposal that I as principal refrain from cer- tain actions during my first year "to get to know our Faculty and their programs WELL" reflects little understanding on your part of the role of a principal, new or old. You appear to be uncomfort- able with what you describe as my "broad and gen- eral criticism"; I hope you are able to acknowledge, as most of our colleagues have, that there are im- portant issues in our Lower School that need to be addressed 4. You have explained to me that your intention in the memorandum was to be supportive of the faculty. If being supportive is your goal, why did you choose to raise the issue of whether others, pre- sumable Van Amburg and/or Feldman, are support- ive? I fear the effect of your memorandum may be more divisive (of faculty vs faculty as well as facul- ty vs. administration) than supportive 5. Your reference to our plans for workshops during the year gives little credit to the faculty who have suggested the topics and planned the time. Your characterization of the reading program is in- accurate. I understand your interest as counselor in both of these vital areas, but question why you have not chosen to ask questions and learn about these programs earlier. Let me share with you some of my perceptions of the role of the counselor in the Lower School. First, while the role of counselor is an unusual one in a Lower School, it is clearly highly valued at the Laboratory Schools by faculty and myself Second, the counselor's work with parents is especially sen- sitive and needs to be done with the full confidence of the principal. Third, like the role of the principal, the role of counselor is a very special one, different in responsibility from other roles within the school. In particular, it is central to your role that you maintain positive working relationships with all your colleagues; your involvement in the politics of the faculty must be in ways that your colleagues perceive as supportive and helpful. As a principal, I know that this is not an easy feat, but it is essential that you understand that it is inconsistent with your role to involve yourself in the divisive aspects of the faculty politics Specifically, my expectations include: 384 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD 1. That you cooperate with me to develop a clear understanding of your work with faculty and par- ents. This will include our reaching an agreement on the priorities for use of your time, developing some guidelines for the faculty's use of the counsel- or, and your discussing with me in advance all re- ferrals. 2. That you develop a working relationship with Jennifer Gates, our reading coordinator, that ac- knowledges her competencies. That you and I develop a working relationship that is based on respect, is able to handle disagree- ment constructively, and shows an understanding of my role as principal. The underlying issue that we need to continue to address is our ability to work with each other pro- ductively. I am satisfied that yesterday's conversa- tion was at least a beginning. I look forward to con- tinuing these urgent discussions in the coming days It is undisputed that Van Amburg read the letter before it was given to Starzl and approved its contents. The record reveals that Starzl's reaction upon hearing Feldman's November 17 remarks and upon reading the letter he sent her the following day was as pronounced, if not more so, than the reaction Feldman and Van Amburg experienced when they read her November 16 memo Thus, on November 24, Starzl again met with Feldman in the latter's office where she asked if he had threatened to transfer her on November 17 apd whether he had made certain other specific remarks. Feldman re- fused to answer her questions and informed her his No- vember 18 letter expressed his feelings and position. Sub- sequently, on December 3, Starzl met with Feldman again and asked him whether the November 18 letter had been placed in her personnel file. When Feldman in- dicated it had been put in her file, she requested that he remove it, observing that with the letter hanging over her head, it would be difficult for her to talk to him. He indicated he would discuss the matter with Van Amburg. The following day, Feldman notified Starzl the letter would remain in her file for the time being; that she could discuss it with Van Amburg if she wanted to or she could, pursuant to the bargaining agreement, write a letter stating her views which would also be placed in her personnel file. Starzl indicated she had no desire to take either course of action. While Starzl could have filed a grievance protesting Feldman's actions, she chose instead to show Feldman's November 17 letter to other members of the faculty in attempt to gain their support. She indicated she discussed the letter and the situation with the department chairper- son, Hoganson, the former union president, Mary Biblo, and Phillip Montag, a member of the executive board of the association. In mid-December, Feldman learned that Starzl had asked that she be included in the agenda for a January faculty II meeting . As Starzl had not indicated her topic, Feldman called her to his office and informed her he did not want her to speak at the meeting if her comments were going to be divisive 8 Starzl explained she merely intended to inform the faculty that while she had been busy, she could handle their counseling problems and they should feel free to consult her when they needed her services-she later spoke at the meeting and Feld- man informed her later that her presentation had been constructive On March 1, 1982, Feldman once again expressed his dissatisfaction with Starzl's practice of documentation of her views for presentation at meetings which she could not attend. On that occasion, she prepared a memo which was injected at an admissions committee meeting which Starzl did not attend. Feldman subsequently in- formed her the meeting had been difficult because her in- formation was presented in such fashion. At some time prior to March 9, 1982, Feldman placed a letter in another teacher's personnel file (Lynn Jaffe). During a little faculty II meeting held on the above date, the faculty members attending the meeting openly and vigorously protested his developing policy of placing let- ters in the personnel files of faculty members. According to Feldman, approximately 50 percent of the faculty members attending the meeting made comments express- ing their dissatisfaction with the fact that he had placed letters in the personnel files of teachers. One teacher commented: "This is like Nazi Germany. We can't bark back." During the meeting, Starzl again voiced her dis- pleasure with the fact that Feldman had placed a letter in her file back in November. Approximately a week later, Feldman removed the letters from Starzl's and Jaffe's personnel files and notified the faculty he had re- moved them. On April 9, 1982, Starzl was notified her contract was to be renewed. By letter dated April 15, she accepted the new contract. On April 29, the little faculty II group met to discuss the administration's announcement that kindergarten teacher Lynn Jaffe had been involuntarily transferred to the nursery school When the teachers indicated to Feld- man during the meeting that they opposed involuntary transfers, he defended the decision to transfer Jaffe by observing that Van Amburg had transferred approxi- mately 50 percent of the homeroom teachers in the Lab School the previous year. During the meetings, Starzl in- dicated she opposed the involuntary transfer of senior teachers and stated she felt the faculty should challenge Van Amburg's involuntary movement of teachers. The little faculty II members took no minutes of the April 29 meeting Apparently, Starzl felt a need to document her part in the meeting because she prepared and distributed to members of the faculty at the next meeting held on May 17, a memo setting forth her comments at the April 29 meeting. s Starzl claimed Feldman told her he did not want her to speak at the meeting and thereafter told her he did not want her to speak because her comments might be divisive Feldman testified he told her he did not want her to speak if her remarks would be divisive As the record reveals many faculty members criticized Feldman openly at faculty meetings and it fails to reveal he took any action to defer them, I credit his version UNIVERSITY OF CHICAGO C. The Child Study Group and Starzl's Relationships with Feldman and Gates When Starzl was questioned concerning her experi- ence with the child study group during the 1981-1982 school year, she indicated the group met each Monday and the various members of the group would bring before the body the problems they had encountered in their capacity as liaison persons to the various grade levels. Starzl indicated she never really learned what Gates was supposed to do as a member of the group. She indirectly claimed the group did not require a specialist in learning disabilities by stating that children with learn- ing disabilities were screened out and never admitted to the school in the first place . Starzl testified that the part of the program which caused the liaison persons to report information obtained from teachers experiencing problems with children worked out well , but she indicat- ed the followup to the reporting , such as determination of what would be done about a problem , who would do it, and the manner in which it would be carried out cre- ated differences that were not dealt with well by the group. Through the testimony of Feldman , Gates, and Van Amburg, Respondent sought to show that Starzl refused to accept the child study group concept and refused to extend her wholehearted cooperation to Gates and Feld- man during the 1981 - 1982 school year. During his appearance as a witness , Feldman indicated that the child study group concept did not work out well during the 1981-1982 school year because Starzl refused to accept the concept and refused to work cooperatively with him and Gates . He described several specific situa- tions which caused him to conclude Starzl did not buy the child study group model One was a situation in which the parents of a child with problems had refused to meet with Starzl, but had agreed to meet with Gates. According to Feldman , Gates informed him that the par- ents of the child had informed her they were contemplat- ing sending the child to a certain therapist , and Gates in- dicated that when she contacted Starzl to obtain the names of alternate professionals whose names might be given to the parents, Starzl informed her she matched psychologists or psychiatrists to the person and could not give her the names of any referral sources as she was not involved in the situation . Another situation described by Feldman was one in which he claims it had been de- cided that Starzl and Gates would jointly meet with the parents of a child experiencing learning and emotional problems. According to Feldman , when Gates sought to set up the meeting, Starzl wrote her a note in which she proposed that Gates meet with the parents to discuss the learning problem, and that Starzl would confer separate- ly with the parents concerning the emotional aspect of the problem . When Feldman learned of Starzl's proposed plan, he instructed her to meet the parents jointly with Gates. With specific regard to Starzl's refusal to cooper- ate with Gates, Feldman indicated that Starzl failed during the entire school year to request that Gates ad- minister any reading tests to students in her liaison areas; that Starzl openly denounced Gates for making a psy- chological referral , when, in fact, that parents of the child rather than Gates had selected the professional for 385 their child; that Starzl had refused to participate in an admissions committee meeting as long as Gates was present, and that Starzl had demonstrated a lack of good judgment by announcing that she intended to tape record a meeting with first grade teachers at which the skills of Gates and Starzl were to be discussed to permit the teachers to utilize their skills more effectively. With re- spect to his own relations with Starzl, Feldman indicated Starzl told him when he decided to transfer a kindergar- ten child from one classroom to another that he had acted improperly by failing to "understand the traditions of the Laboratory School-that's it's not the principal's place to make a decision like this " Finally, Feldman in- dicated Starzl demonstrated her refusal to accept the child study group model by telling the parents of a child, who had been referred to an outside source for evalua- tion that the child should be placed in a different school before the results of the evaluation were received by the child study group. Gates corroborated Feldman's testimony concerning the above-described situations, and indicated, generally, that Starzl refused throughout the school year, to, ac- knowledge that she had any skills which could be uti- lized to remedy problems experienced by children with learning problems. Gates claimed during her testimony that Starzl's participation in the child study group was without enthusiasm; that she talked a lot about how things had always been done in the Lab School. Van Amburg indicated during his testimony that ad- ministrative meetings were held once each week during the school year. They were attended by the principals of the three schools and himself. He testified Feldman in- formed those attending such meetings that Starzl was not accepting the child study group concept, and Feldman brought the situations described in his testimony to their attention as they occurred. D. The Starzl Transfer At the beginning of the 1981-1982 school year, Re- spondent had five guidance counselors in its guidance de- partment. Mary Lee Hoganson, the chairperson of the department, and Jacqueline Grundy were guidance coun- selors in the high school; Betty Schneider was the col- lege placement counselor; Ann Trinz, previously a guid- ance counselor in the lower school, was the middle school guidance counselor; and Regina Starzl was the lower school counselor. During the spring of 1982, Schneider indicated to Van Amburg that her health re- quired that she step down from the college counseling position at the end of the 1981-1982 school year, but she agreed to remain at the Lab School during the 1982- 1983 school year as a high school guidance counselor. While Respondent sought to hire a new college counsel- or during the spring of 1982, none was hired as the most qualified applicant accepted another position before Re- spondent could hire her.9 About the time it became clear e The General Counsel offered considerable evidence intended to show that Van Amburg interviewed numerous applicants for the college coun- selor position when he had no real intention of hiring anyone In particu- lar, he claims Van Amburg falsely testified he sought to hire one Fran Continued 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that no acceptable college counselor could be obtained, Grundy notified Van Amburg she wanted to be placed on leave of absence during the 1982-1983 school year. Van Amburg granted her request. On May 4, Van Amburg sent the guidance department a memo indicating the unresolved college counselor situ- ation and Grundy's leave of absence for the 1982-1983 school year necessitated that members of the department inform him, inter alia, if any intended to request a trans- fer for the following year. After meeting, the members of, the guidance department, through a memo to Van Amburg prepared by the department chairperson, Ho- ganson, indicated all members desired to remain in their then present positions the following year, and that they proposed that outside persons be hired to fill the college counselor position and the high school counselor position that Grundy was vacating for 1 year. Thereafter, by memo dated May 11, Van Amburg informed the mem- bers of the guidance department that he had doubts about the advisability of hiring two persons new to the Lab School for the openings in the high school, and stated, inter alia, "One must at least question whether we should transfer someone with strong counseling and writing skills and a knowledge of the institution to pro- vide experienced support for the new college counselor." He further indicated in the memo that the department's expressed concerns about understaffing had caused him to consider the advisability of hiring the next counselor on a permanent contract.io On May 20, Hoganson met with Van Amburg and Geoffrey Jones, principal of the high school, and Van Amburg told her she would be the college counselor the following year and that he was transferring Starzl to the high school. Hoganson protested the decision to transfer Starzl indicating that her work with the faculty, parents, and children spoke very strongly to her staying in the lower school. Van Amburg responded her competence was not in issue; that he needed her in the high school. On May 21, Van Amburg called Starzl to his office and told her of her reassignment. When she asked why, he responded that she was intelligent, professional, wrote well, and was needed to help Hoganson in the high school. When she pointed out that she did not know the high school and suggested that Ann Trinz, who had some high school experience and was a good writer, would be a better choice, Van Amburg stated he would not talk about Trinz. i i On May 25, Hoganson presented Van Amburg with a written reply to his May 21 memo. She reiterated her opposition to moving Starzl, both because of the loss of continuity in the lower school, and her desire for a high school counselor specializing in and with a first commit- ment to that level. She also stated that she viewed Van Amburg's decision to hire a new lower school counselor on a "permanent" contract as more likely to make it dif- ficult for Starzl to return to the lower school in the future, rather than mean an increase in staff for the future. When she handed Van Amburg the memo, he agreed with this last statement. To support its contention that guidance counselors em- ployed at the Lab School are frequently reassigned, Re- spondent placed in the record as Respondent's Exhibit 18 a compilation revealing the assignments of each of its guidance counselors during the period extending from the 1966-1967 school year through the 1983-1984 school year The exhibit reveals that after being hired most of the guidance counselors remained in the school they were originally hired to work in, i.e., lower school, middle school, or high school. It further reveals that sev- eral counselors, including Starzl, were assigned to coun- sel in two schools during the same school year; that one counselor (Trinz) was permanently transferred from the lower school to the middle school; and that one counsel- or (Robb) was assigned at various times to the nursery school, the lower school, the middle school, and the high school. Immediately after Starzl learned of her transfer, she took a number of actions. On May 24, she sent a letter (dated May 21) to the parents of lower school students informing them that Van Amburg was transferring her against her wishes and asking them to call Van Amburg and Hoganson if they would like the decision to be re- considered. About May 26, she distributed an eight-page statement to the lower school faculty which was entitled, "Statement on Guidance in the Laboratory Schools." In the document, she indicated she felt Van Amburg, Feld- man, and Gates were incompetent and were attempting to destroy the guidance department at the Lab School. After taking the above actions, Starzl filed a grievance protesting her reassignment on June 4 alleging, in sub- stance, that the "Academic Freedom" provision of the contract had been violated (art. VII, sec A) because she had been transferred for criticizing certain policies in the lower school, and that the "Faculty Participation" provi- sions of the contract (art. VII, sec. c) had been violated because Feldman, Van Amburg, and Jones had not dis- cussed the reassignment with her before it was effectuat- Cook While Cook testified she was never offered the college counselor position, I credit Van Amburg's claim that he telephoned Cook to offer her the job and learned she had accepted another position Accordingly, I find Van Amburg seriously sought to hire an outsider to fill the college counselor vacancy 1s On May 16, some 22 lower school teachers, in response to a rumor that Starzl might be transferred to the high school, presented Van Amburg with a petition requesting that Starzl be kept in the lower school it When it appeared at the end of the 1980-1981 school year that one of the lower school guidance counselors (Starzl and Tnnz) would be transferred to the middle school for the 1981-1982 school year, Starzl, by memo addressed to Van Amburg, argued she was the most qualified for the counselor position in the lower school Trinz was thereafter trans- ferred (G C Exh 7) ed. E. Posttransfer Events 1. The hiring of two new counselors On July 16, 1982, Van Amburg sent a letter to Theo- dra Barlow offering her a position as the lower school guidance counselor, which she accepted. Barlow was hired as a permanent employee Thereafter, on July 19, he hired Jewel Jones, formerly a guidance counselor in Respondent's high school, as a counselor in the high UNIVERSITY OF CHICAGO 387 school It is undisputed that Jones was rehired to satisfy the expressed concerns of the Black Parents Association, that Grundy's departure left them without a black coun- selor on the faculty Van Amburg admitted that he did not seriously consider moving Starzl back to the lower school after he hired the named new counselors He indi- cated he decided she should remain in the high school because he wanted cooperative faculty members in the child study group and he wanted to give Starzl an op- portunity to develop a positive working relationship with the principal and her high school faculty colleagues Subsequently, in the fall of 1982, Van Amburg rejected an offer to settle Starzl's grievance by permitting her to work half the time in the high school and half the time in the lower school. He claims he rejected that offer for the reasons set forth above. 2. The decision on Starzl's grievance About January 21, 1983, the grievance committee ap- pointed pursuant to the collective-bargaining agreement issued its report in which it found Starzl was transferred because of her outspoken criticism of administrative poli- cies in violation of the freedom of speech provisions of the contract. It further found that the faculty participa- tion portion of the contract had been violated, and rec- ommended that Starzl be restored to her lower school position no later than the commencement of the next academic year On January 28, Van Amburg notified the chairman of the grievance committee that the school's Provost had declined to review the report or abide by the commit- tee's recommendation because Starzl had waived her right to utilize the grievance procedure by filing charges with the Board and by filing an age discrimination charge with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission. 3. As noted, supra, since she was informed of her transfer to the high school, Starzl has written letters to the students' parents, to the chairman of the University's board of trustees, and has distributed several letters and memos to the members of the Lab School faculty.' 2 In such documents, she has openly indicated she feels that the administration has been attempting to abolish the po- sition of guidance counselor in the Lab School since 1980; that it has attempted to replace guidance counsel- ors by transferring their functions to a "reading coordi- nator" and a principal, neither of whom are qualified; and she has labeled Van Amburg and Feldman as incom- petents who should resign or be terminated. IV. ANALYSIS AND CONCLUSIONS Since this is an 8(a)(1) case turning on Respondent's motivation for transferring Regina Starzl from its lower school to its high school, the case must be analyzed uti- lizing the criteria set forth in Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir. 1981), cert. denied 455 U.S 989 (1982). In Wright Line the Board stated (at 1089) First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. A. Starzl's Protected Activities Respondent argues that the General Counsel failed to sustain his initial burden in this case because he failed to establish that Starzl engaged in protected concerted ac- tivity and, assuming, arguendo, he did show she'engaged in some protected conduct, he failed to show a nexus be- tween such conduct and Respondent's decision to trans- fer her. I find such defenses to be without merit. The complaint in this case alleges, and the General Counsel offered evidence, which reveals that Starzl par- ticipated in meetings with other employees on October 30 and November 6 and 10, 1981, and March 9 and April 29, 1982. In addition, she prepared or was a party to memos which were distributed to faculty II members on November 2 and 16, 1981 As noted, supra, article VII, section C, of the collective-bargaining agreement be- tween the Lab School and the faculty association ac- cords the faculty members broad rights with respect to participation in administration proposals concerning, inter alia . "development and planning of curriculum and program . . . determination of instructional assignments . .. student admissions and re-admissions . . . and as- signment to Little Faculties." It is clear that the changes announced and implemented in the lower school by Prin- cipal Feldman at the commencement of the 1981-1982 school year directly affected the hours that faculty II members worked, and other conditions of their employ- ment It is equally clear that Starzl acted in concert with other faculty members to protest those changes when she attended meetings with others on October 30 and No- vember 6 and 10, 1981. While she alone authorized and distributed the memo dated November 16, 1981, it is clear the memo protested the above-mentioned changes and urged the faculty II members to take action to cause the school administration to reconsider its actions With respect to the faculty meetings held on March 9 and April 29, 1982, the matters protested were the placement of letters in the personnel files of faculty members and the involuntary transfer of faculty members, respectively. Starzl's participation in such protests was, without ques- tion, concerted in nature. Close inspection of Respondent's brief reveals, that while it does not admit that Starzl's participation in fac- ulty meetings and her participation in the circulation' of the November 2, 1981 memo constituted protected con- certed activity, it does not specifically deny the General Counsel's claim . Instead, its contention appears to be that Starzl lost the protection provided by Section 7 when she distributed the November 16, 1981 memo because she personally attacked her principal, the director, and 12 See G C Exhs 19 and 20, and R Exhs 7, 8, 9, 10, 12, and 21 388 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD her coworker Gates in the memo.13 For the reasons set forth below, I reject that contention. In a number of cases, including those cited by the General Counsel in his brief, 14 the Board has considered contentions that employees lost the protection afforded by Section 7 and Section 8(a)(1) of the Act by attacking high management officials or administrators. For exam- ple, in Springfield Library Assn, 238 NLRB 1673 (1979), the president of the union stated in a published article that the respondent's chief administrator was (at 1673) a man who never "lost contact" with working professionals because he never had it to begin with He is simply a man who when he lost his job at Forbes & Wallace, was put on a form of welfare- for-the-rich courtesy of his friends on the Board of Trustees. While the administrative law judge found the article was a "gratuitous attack upon Wallace, entirely unrelated to any protected union or concerted interest," the Board re- versed stating (at 1674): In short, Glendon's message to her fellow em- ployees is that they have work-related problems and suggests that one of the reasons for these problems is the manner in which Respondent's administrators are chosen. Respondent's management may very well have been offended by Glendon's "rhetorical hyperbole," but, as the Court said in Linn, supra at 63: .. the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth Since Glendon's article clearly is protected concerted union activity, immune from restraint or interference under state libel laws, a fortiori this same conduct is immune from restraint or interference by an employer's disciplinary actions. After issuing its decision in Springfield Library Assn., supra, the Board was faced with a contention that an em- ployee had engaged in unprotected activity by making statements in a letter which reflected a basic disloyalty to the respondent in Richboro Community Mental Health Council, 242 NLRB 1267 (1979). There the Board stated (at 1267-68): 2. [W]e have recognized that such protected activity may be rendered unprotected when "the attitude of the employees is flagrantly disloyal, wholly incommensurate with any grievance which they may have, and manifest- ed by public disparagement of the employer's product or undermining of its reputation . . . 13 While Respondent contends Starzl engaged in unprotected activity, its brief clearly indicates the activity it deems to be unprotected was that Starzl actively related to the child study group and the employee's al- leged refusal to cooperate with Feldman and Gates 14 Mount Desert Island Hospital, 259 NLRB 589 (1981), Richboro Com- munity Mental Health Council, 242 NLRB 1267 (1979), and Pmkus Bros, 237 NLRB 1063 (1978) Thereafter, the Board found the employee's conduct to be protected stating (at 1268)• [W]e conclude that Paluszek's criticism of Respond- ent's operations involved protected conduct as it was part of and related to Paluszek's concededly protected protest of Respondent's discharge of a fellow employee and was not so extreme as to re- flect a disloyalty to Respondent. In the present situation, I conclude there was nothing in Starzl's November 16 memo which renders her prepa- ration and distribution of the memo unprotected. It is clear that in her memo she was protesting the changes instituted at the commencement of the school year and was urging her fellow faculty members to attempt to cause the school's administrators to rescind the changes. The tone of the memo was not malicious, it did not ridi- cule the Respondent, and there is no indication it was distributed with the object of injuring Respondent by im- pugning its operations. In sum, I find that when engaged in the literature dis- tribution activities and participating in the faculty meet- ings described above, Starzl was engaging in protected concerted activities. B. Respondent 's Reaction to Starzl's Protected Activities Respondent does not dispute the fact that it was fully aware of Starzl's protest actions during the 1981-1982 school year. Indeed, most of the activity occurred during the course of faculty meetings which were attended by Feldman. Respondent's reaction to Starzl's participation in the distribution of the November 2 memo, which Feldman viewed as participation in faculty politics, and the reac- tion of both Feldman and Van Amburg to the employ- ee's preparation and distribution of her November 16 memo is described in detail, supra. It is abundantly clear that both administrators felt her actions were improper; that Feldman inferentially threatened to transfer her if she engaged in similar conduct in the future; and that Van Amburg was "tired of Regina's martyr act." Apart from the admission by Respondent's representatives that they had a negative reaction to Starzl's memo activity, however, the record contains little evidence which would indicate that Respondent viewed Starzl's subse- quent protest activity any differently than it viewed the protests lodged by numerous other faculty members during the course of the 1981-1982 school year. While the General Counsel contends that Respondent repeated- ly displayed its negative attitude towards Starzl's contin- ued protest of various matters, he made reference to only two instances which he claims reveals that Respondent harbored animus against the employee because she was a protestor. The first involved Feldman's December indi- cation that he did not want Starzl to speak at the Janu- ary faculty II meeting if her comments were to be divi- sive, and the second was Feldman's subsequent expres- sion of displeasure with the fact that she expressed her feelings concerning the possible admission of a new stu- UNIVERSITY OF CHICAGO 389 dent in writing, rather than by attending an admissions committee meeting and presenting her views orally. C. The General Counsel's Prima Facie Showing of Violation Respondent argues that the General Counsel failed to prove a prima facie case because there is no nexus be- tween Starzl's protected activity and its decision to trans- fer her. In my view, Feldman's clear indication in No- vember 1981 that he did not want the employee to con- tinue to engage in school politics, and his utterance of what must be considered to be a veiled threat to transfer her for distributing a memo which he felt to be offensive, provide the nexus Respondent claims is absent. Here, the record reveals that, prior to the end of the 1981-1982 school year, Starzl's education and experience was all in- timately associated with guidance counseling at the ele- mentary level with exception of 2 years during which she performed limited counseling of middle school stu- dents Respondent admits she was a competent guidance counselor, and, indeed, the record reveals she was con- sidered to be an excellent counselor by all her principals who supervised her prior to Feldman's appearance on the scene During the fall of 1981, she offended her prin- cipal and the director of the Lab School by distributing a memo which they considered to be an attack on them personally She was told to cease such activity and to re- frain from engaging in school politics and a letter, which is tantamount to a written warning, was placed in her file At the same time, her principal informed her it ap- peared to him she did not want to work in his school and he asked if she was, in some convoluted way, indi- cating she wanted to be transferred. While it is clear Starzl was disciplined by Feldman in November to cause her to moderate her behavior, she continued to criticize both Feldman and Van Amburg throughout the school year. In May 1982, Starzl was transferred from the lower school to the high school involuntarily. She was told she was being transferred because she possessed the academ- ic skills needed in the high school guidance counseling position. In fact, Respondent admits she was transferred because of friction which existed between her and her principal, and because she was allegedly obstructing the implementation of the child study group concept and failing to cooperate with her principal and reading coor- dinator Gates. In my view, it is clear that Starzl's partici- pation in protected activities caused some of the friction referred to by Van Amburg. In view of this, I find that by adducing the facts summarized above, the General Counsel has made a prima facie showing that Starzl's protected conduct was a "motivating factor" in Re- spondent's decision to transfer her from the lower school to the high school D Respondent's Defense Citing Lutheran Social Services, 250 NLRB 35 (1980), St. Ann's Episcopal School, 230 NLRB 99 (1977), and Rhode Island School of Design, Case 1-CA-13286, 1978 CCH LL 20,174 (an advice memorandum issued by the General Counsel), Respondent contends that by engaging in conduct which revealed her disagreement with the "direction and philosophy" of the institution's policies for dealing with the students' needs, Starz] engaged in unprotected activity. It further claims that her participa- tion in such conduct would have caused Van Amburg to transfer her from the lower school counseling position to the high school counseling position even in the absence of her participation in the protected activities discussed above In Lutheran Social Services, the employer, a treatment and custodial home for emotionally troubled and socially maladjusted children, appointed a new assistant director who instituted certain policy changes regarding the manner in which children would receive treatment. Over the course of approximately 4 months, two counselors, on a continuous and daily basis, voiced their criticisms and objections to the assistant director's management. At times they did so in profane terms in the presence of children By the time the employer discharged the two counselors, the situation had disintegrated to the point that the dissention they caused had "wrecked havoc throughout the Home " The administrative law judge, with apparent approval of the Board, found that the crit- icism by the two counselors related to matters outside the objectives of the "mutual aid or protection" clause of Section 7, stating, inter alia (at 42): . . . Johnson and Schaefbauer were not at all trou- bled by any additional personal demands imposed upon them directly by the policy changes; what did disturb them were program decisions by manage- ment and the concomitant perceived lack of compe- tency of management which, in their view, threat- ened the "quality of care," "the quality of the pro- gram," and the "welfare of the children." This sort of concern is wholly professional and commendable It is, nonetheless, the kind of concern in the first in- stance confided by the statute, and our society, in management. Protest against the quality of the product (a callous use of the term in this setting) and of those vested with the ultimate authority to establish basic managerial guidelines and philosophy is not activity which could improve the employees' "lot as employees" (Eastex, Incorporated, supra); that sort of interest is not encompassed by the "mutual aid" or protection clause, as the Board has made clear in the cases, previously cited, dealing with employee efforts to affect "top management." Accordingly, I believe that, insofar as the criti- cism by Johnson and Schaefbauer related to dis- putes about direction and philosophy of treatment, their concerted activity fell outside the objectives of "mutual aid or protection" guaranteed by the stat- ute. Similarly, in Rhode Island School of Design, supra, the General Counsel concluded in an advice memorandum that where an employee and other individuals were pro- testing as academicians on academic grounds rather than 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD qua employees on the basis of employment-related con- cerns, their protest activity was unprotected.15 While I have found, supra, that Starzl and other facul- ty members engaged in protected activity when they protested a number of changes instituted by Feldman in the lower school at the beginning of the 1981-1982 school year, I, in agreement with Respondent, conclude that Respondent had the right to decide how it would handle students with learning and emotional problems and that employee criticism of such a policy decision would fall outside the "mutual aid or protection" clause of Section 7 It is clear that Respondent decided at the beginning of the 1981-1982 school year to cause a com- mittee of four-the so-called child study group-to diag- nose problems experienced by students in the lower school, and to thereafter decide what should be done to remedy their problems. It is equally clear that while im- plementation of the new policy limited Starzl's functions as a guidance counselor in the lower school, and pro- duced a situation where she was to share her prior duties with three other persons, Respondent, under the ration- ale expressed in Lutheran Social Services and similar Board cases,16 had the prerogative to institute such a change As indicated in Lutheran Social Services and Good Samaritan Hospital, employees protesting that policy decision would not be engaged in activity protect- ed by Section 7 because their energies would not be di- rected at improving their lot as employees,17 but would instead constitute on their part an effort to affect the ulti- mate direction, philosophy, and managerial policies of Respondent. While my observation of Regina Starzl during the course of the instant proceeding fully convinced me that she is a very sincere and capable guidance counselor and that she is absolutely devoted to her job, I became con- vinced that she felt the child study group concept was not the best way to handle students in the lower school who were experiencing problems and this caused her to fail to function effectively with the remaining members of the group. i s Although the General Counsel contends I s The third case cited, St Ann's Episcopal School, supra, was a case in which the General Counsel failed to satisfy his initial burden pursuant to the criteria set forth in Wright Line, The administrative law judge found Respondent had discharged a teacher for cause 16 See Good Samaritan Hospital, 265 NLRB 618 (1982), Chinatown Senior Citizens Coalition Center, 239 NLRB 614 (1978) 17 Eastex v. NLRB, 437 U S 556, 567 (1978) i8 See R Exh 21, an excerpt from Union Report, dated October 12, 1983, where Starzl stated , inter alia The so-called Child Study Group This anomaly (with which the writer had one year's close encounter of a certain kind) was imposed on the Lower School without faculty participation in September 1981 It was intended to supplant guidance services there The prin- cipal and three others (for the second year without a single degree in psychology or guidance among them) have changed the focus of support services in the Lower School from children in the class- rooms to administrative purposes and control The committee has proclaimed itself to be providing coordination, counseling, and con- sulting services for teachers, children, and parents, all of these spe- cialized functions are normally done by professional elementary school counselors A private survey taken last spring showed that teachers were extremely dissatisfied with the so-called Child Study Group and after two years saw it as no substitute for guidance coun- selors that the child study group functioned smoothly during the 1981-1982 school year, I accept as factual the testi- mony given by Feldman, Gates, and Van Amburg, which reveals that Starzl deeply resented the fact that her duties and degree of authority were diluted when the concept was implemented That testimony, which is set forth, supra, reveals that she sought to discredit Gates in the eyes of the faculty at the outset of the school year, and that she continued to attempt to belittle Gates throughout the school year Illustrative, is that record evidence which reveals that at a meeting of first grade teachers which was held April 20, 1982, Starzl an- nounced she was going to tape the meeting, and she thereafter mounted a personal attack on Gates because she had allegedly referred a student to a professional therapist and Starzl felt she was not qualified to engage in such activity which was normally accompanied by a professional guidance counselor. t 9 In addition, in effect, to opposing the child study group concept by refusing to attempt to develop a working relationship with Gates, Starzl took issue with Feldman several times during the school year by questioning the wisdom of his actions when he transferred a student from one class to another, and by attempting, on an occasion in which he had told her to meet jointly with Gates with certain parents, to conduct her separate "counselling" meeting. Finally, on one occasion, Starzl incurred Feldman's displeasure by telling the parents of a child who had been sent to an outside source for evaluation that they had better place the child in another school before the results of the eval- uation were received and considered by the child study group. In sum, I conclude and find that Respondent produced adequate evidence to show that Starzl demonstrated during the 1981-1982 school year that she did not accept the child study group model. I further find that Van Amburg was justified in concluding that Starzl's per- formance, or lack of performance, which was related to the child study group and her relationships with the par- ticipants in that group left something to be desired. The General Counsel claims I should infer Van Amburg had an unlawful motive for deciding to transfer Starzl because he told the grievance committee the crisis created by Grundy's leave of absence required him to place a counselor with Starzl's skills in the high school, but he testified in this proceeding that her refusal to work with Feldman and Gates and her failure to accept the child study group model were the real reasons for his decision. I find the argument to be without merit. During the hearing, Van Amburg explained that he did not em- phasize Starzl's refusal to accept the child study model or her failure to work effectively with Feldman and Gates before the grievance committee because he was not moving to terminate Starzl, he was moving to place 19 The situation in question was one in which the parents of a child had indicated they would not meet with Starzl, but would meet with Gates to discuss the child's problems After learning that the parents in- tended to take the child to a psychologist, Gates contacted Starzl to obtain the names of other psychologists she might give to the parents, Starzl refused to give Gates any names, indicating she matched the pro- fessional to the situation and, as she was not involved in the situation, it would be improper for her to provide the information UNIVERSITY OF CHICAGO her in another position where he hoped she was going to be successful and did not want to damage her reputation or credibility with her colleagues or the parents. I find his explanation to be logical and credible, and refrain from drawing the inference the General Counsel seeks. Remaining is the resolution of Respondent's claim that it would have transferred Starzl even in the absence of her protected activities. I resolve the issue in Respond- ent's favor for the reasons set forth below While I have found, supra, that the General Counsel established prima facie that Starzl's participation in pro- tected activities was a "motivating factor" in Respond- ent's decision to transfer her, it must be remembered that her protected activity which evoked a marked reaction by Feldman occured at the beginning of the 1981-1982 school year. Other members of the faculty were protest- ing the same changes and the record reveals that the grievance concerning the changes were all resolved by the spring of 1982. Apart from Feldman's December 1981 admonition to Starzl that he preferred that she not speak at the January faculty II meeting if her comments were to be divisive, the record fails to reveal that Re- spondent rebuked Starzl in any manner for her continued criticism of Feldman or Van Amburg during the 5- month period preceding her transfer. On the other hand, the record reveals that the vast majority of Starzl's facts which reveal she did not accept the child study group concept and was not willing to cooperate with the mem- bers of that group, particularly Gates, all activity which I have concluded was unprotected, occurred after her participation in protected activities which Respondent found to be offensive. In sum, I find that Respondent has shown that Starzl seriously impeded its effort to implement the child study 391 group concept and, by the time it decided to transfer her, it was clear that the group would not function effec- tively as long as she was a member of it. Accordingly, I find that Respondent has shown that it would have trans- ferred Starzl from the lower school to another school even in the absence of her participation in protected ac- tivities. For the reasons stated, I find that Respondent did not violate Section 8(a)(1) of the Act by transferring Regina Starzl from its lower school to its high school. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2.The faculty association is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8(a)(1) of the Act by transferring Regina Starzl from a guidance coun- seling position in its lower school to a like position in its high school. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed20 ORDER The complaint is dismissed in its entirety. 20 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses