Programming & Systems, Inc.

PROGRAMMING' & SYSTEMS Programming & Systems, , Inc. and Association of Public - Service Workers and Mary E. S. McGonagle. Cases 2-CA-18092, 2-CA-18179, 2-CA-18291, and 2-CA-18521 22 July-1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 1 June 1983 Administrative Law Judge \rthur A. Herman issued the attached decision. The Respondent and the General Counsel filed ex- ceptions, supporting briefs, and answering briefs. The Board 'has considered the decision and the record in light of the exceptions and briefs' and ' 'ts decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified. Contrary to our dissenting colleague, we agree with the judge, for the reasons he states, that the Company engaged in proscribed surveillance when Faculty Director Beth Smith, in plain view of unit employee Jacqueline Aiken, watched from a school window as students protested the discharge of two teachers for their union activities, 3 wrote down the ' The Respondent has requested oral argument This request is denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties 2 The Respondent has excepted to some of the judge's credibility find- ings 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 In adopting the Judge's finding that the Respondent promulgated an unlawfully broad no-distribution rule when Executive Director Kay told employee Jorrisch that "no literature is allowed to be distributed of any kind in this school without permission," we do not rely on TR W, Inc, 257 NLRB 442 (1981), which was overruled in Our Way, Inc, 268 NLRB 394 (1983) The rule promulgated here was limited neither to -"working time" nor to "working hours " Having adopted the judge's finding that the Respondent's discharge of Jorrisch violated Sec 8(a)(3) of the Act, we-find it unnecessary to reach the question of whether her discharge also violated Sec 8(a)(4), the remedy for which would be the same We correct the judge's inadvertent but nondispositive error in stating that the record contains no "scintilla of evidence to establish an affinity between Escobar and union activity " As the judge found elsewhere in his decision, Escobar did engage in certain activities associated with the Union's organizing campaign These activities were not exceptional, how- ever, and provide insufficient basis for overturning the judge's conclusion that the Respondent's decision to reduce Escobar's hours was economi- cally motivated 3 Although our dissenting colleague finds no clear evidence of the pur- pose of the demonstration or why the teachers were watching it, we note that a student meeting was held the previous day which also was attend- ed by teachers and administration officials At that meeting, a teacher was speaking about the teachers' organizing efforts and proceeded to an- nounce that two teachers had been discharged that day for union activi- ties when he was interrupted by an administration official As found by the judge. student excitement was aroused and a demonstration took place the next day, In these circumstances, it is clear that the student demonstration was motivated at least in part by the discharge of the 1147 names of the teachers • standing by observing the students, and then handed her notes, unfolded, to Aiken to deliver to the Company's president and chief executive officer Irwin Mautner. There is no suggestion that the Company, routinely kept notes on the teachers' activities and no good cause has been shown for note-taking in this instance.4 We find, consistent with the Board's holding in Crown Cork & Seal Co., 5 that note-keeping of employees' protected concerted or union activities in these cir- cumstances, when witnessed by a company em- ployee, tends to restrain and coerce employees in the exercise of their rights guaranteed by Section 7 of the Act. Accordingly, we find Smith's note- taking, for which no explanation was offered, vio- lates Section 8(a)(1) of the Act. We also agree with the judge, for'the reasons he states, and contrary to the dissent, that Smith engaged in unlawful surveil- lance by encouraging employee Chinappi to report on teachers' union actlvities,6 and that Supervisor Slater unlawfully threatened employees when she told Smith in employee Aiken's presence, "We will just get rid of all the teachers anyway so they cannot vote in this crummy union." We - also find, contrary to the dissent, that the credited evidence supports the judge's conclusion that the Company violated Section 8(a)(3) and (1) when, within months of the Union's organizing campaign, it discriminatorily denied the only re- maining union activist, Mary McGonagle, holiday pay and discharged her because of her union sym- pathies. Nothing demonstrates that McGonagle, a lawyer, had done' anything but a fine job in her 10 years with the Company's New York School of Business where she taught business law and other courses on a full-time basis. In fact, as recently as August 1981, McGonagle's schedule was expanded to include psychology. Despite' her unblemished record, McGonagle was discharged suddenly 4 January 1982 on returning from Christmas recess. According to McGonagle's credited testimony, on that date recently promoted Faculty Director Jeremy Palmer informed her that he had no sched- ule for her and that she was fired. Palmer volun- teered no explanation for his action and, when McGonagle asked for a. reason, Palmer said he could not tell her. McGonagle reminded Palmer teachers and that was the reason the teachers were standing outside watching, if not participating in, the demonstration 4 Thus, Metal Industries, 251 NLRB 1523 (1980), relied on in the dis- sent, is distinguishable In Metal Industries, unlike here, the management official routinely appeared in the-employee parking lot to answer employ- ee questions and regularly carried a clipboard to make notes 5 254 NLRB 1340 (1981) B Contrary to our-dissenting colleague's statement that Chmappi's re- ports were not focused on union activity, we note Aiken's credited testi- mony that most of Chinappi's reports to Smith pertained to the teachers' union activities, e g , leaflets and forthcoming' union meetings ` 275 NLRB No. 157. 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that just before the Christmas recess he had prom- ised to keep in mind her request 'to teach certain courses when he prepared the schedule for the.new semester. McGonagle also pointed out that some of her -classes continued into the new semester and her students would- be expecting her back only to discover they had a new teacher. Palmer did not offer any explanation for his sudden shift in attitude toward McGonagle . Nor did he address McGona- gle's concern for teacher continuity. At the hearing, the only justification the Compa- ny's executive director Gary Kay offered for dis- charging McGonagle was the desire of Palmer, since deceased, to restructure the department and to bring, in new personnel for that purpose. Kay admitted that he first urged Palmer to find a way to retain McGonagle , but later backed Palmer's de- cision . The judge specifically discredited'Kay's ex- planation as a "lame attempt to put the blame on a dead person for McGonagle's ultimate discharge." The judge reasoned - that Kay had vast authority, and that, if he had been anxious to retain McGona- gle, he certainly could have arranged it. The dissent concedes that McGonagle was a leading union protagonist whose activities were well known to the Company. By. adopting the judge's numerous violation findings, including the discriminatory discharge of two union supporters and unlawful threats to close the school and fire union activists,- the dissent also concedes that the Company harbored union animus. The dissent sug- gests, however, that McGonagle's. union support could not have been of concern to the Company at the time of her discharge given the passage of time. We do not agree . By the time Palmer assumed con- trol as -faculty director sometime in late 1981, McGonagle was the only union activist still in the Company's employ and , despite her seniority and satisfactory performance, apparently the only teacher .the Company discharged after the Christ- mas recess . Palmer at that time said he could not tell McGonagle why she was being discharged, and the Company has since offered no credible explana- tion for singling McGonagle out for discharge. Given the Company's vehement opposition to -the- unionization of -its teachers, McGonagle's singular status as a union supporter, and the precipitousness of her discharge without any plausible. explanation; either then or now , we find that the -Company seized upon the scheduling of classes for the 'new semester as the perfect opportunity to purge itself of union supporters once and for all..Accordingly, we adopt the judge's finding that McGonagle was discharged for her union activities in violation of Section 8(a)(3) and- (1) of the Act. . We also agree with the judge that before unlaw- fully -discharging' McGonagle the Company discri- minatorily denied her holiday - pay because she missed the 2 days preceding Thanksgiving, while paying two other teachers who were absent on the Monday following the Thanksgiving weekend. Aware of the company rule that -teachers absent before or after a holiday lose pay for that holiday, McGonagle 'did not expect to be paid r for 1Thanks- - giving or the next day . On hearing, however, that the Company failed to adhere to its rule by paying the: two other employees after they complained to Kay, McGonagle went to him and also com- plained . Instead of similarly waiving the rule, Kay refused , to pay McGonagle,. saying, "What I do to them is my business." In light of this disparate treatment, and having already found that the Com- pany was willing a month later"to discriminatorily discharge McGonagle, we agree with the judge that the Company refused to waive its -holiday pay rule with respect to McGonagle because. of her union sympathies, and thereby violated Section 8(a)(3) and (1) of the Act. AMENDED REMEDY Having found that the Respondent unlawfully discharged employees Jorrisch and Green, the judge recommended their reinstatement . He con- cluded that despite their lack of the qualifications prescribed under New York State law for the teaching positions from which they were removed, reinstatement and backpay were appropriate reme- dies for the unlawful discharges in the circum- stances present here . We agree with this analysis in general . However, the conventional reinstatement and backpay order should not be construed as pre- cluding the Respondent , in the compliance stage of this proceeding , from showing that,' if_ it had not discharged these employees for, unlawful reasons when it did so, it subsequently would have dis- charged them for lawful reasons. , . ORDER - The National Labor Relations Board -adopts the recommended Order of the administrative law judge -as modified below and orders- that the Re- spondent, - Programming & Systems, Inc.,;-New York, New York, its officers, agents, - successors, and assigns,, shall -take the action set. forth in - the Order as modified . - - 1. Substitute the following for paragraph- 1(b). "(b) Threatening employees - with reprisals,' in- cluding closing its school and discharging its em- ployees, for engaging in union activities." - - 2. Substitute the following for"paragraph 2(a). PROGRAMMING & SYSTEMS "(a) Offer Judith Jor-risch, Sara Green, and Mary McGonagle immediate and full reinstatement. to -their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privi- leges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the deci- sion." 3. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs. "(b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way." 4. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, dissenting in part. While I agree with my colleagues in their other findings in this case, I would not find that Faculty Director Smith engaged in any. unlawful surveil- lance, that a remark by Supervisor Slater, over- heard by employee Aiken, constituted an unlawful threat, or that the Respondent violated' Section 8(a)(3) with respect to employee McGonagle. First, I disagree with my colleagues' finding that Faculty Director Smith acted unlawfully when she looked out of her office window and listed teachers who were on the street watching a student-demon- stration. There is no clear evidence of the purpose of the student demonstration or of the reason the teachers were watching it. Therefore, there is inad- equate basis for finding that the teachers were -en- gaged in protected activity as is necessary if sur- veillance of their activity is to be found unlawful. Furthermore, merely watching open employee ac- tivity at the employer's premises is not unlawful. Metal Industries, 251 NLRB 1523 (1980); Maywood,. Inc., '251 NLRB 979, 986 (1980). In some circum- stances taking notes of employees'- activity has been found unlawful. Crown Cork &. Seal Co., 254 NLRB 1340 (1981). However, coercion is inferable only when the employer shows an unusual interest in the - activity because of its protected nature. Metal Industries,' supra at 1523, 1526. Here, there is no indication that' Smith was concerned with what-, ever-aspect of the teachers' conduct that might ar- guably.have made it protected. Accordingly, I find neither surveillance nor creation of the impression of surveillance and I would dismiss that allegation of the complaint. ; . - Similarly; I find-nothing unlawful in Smith's re- ceipt of information on teachers' activities volun- teered by teacher Chinappi. Smith's response was, "Good. Keep - me informed." The administrative 1149 law judge and my colleagues characterize this as unlawful. encouragement of surveillance. I find it a polite, innocuous response to a volunteer and, at most, a mild expression of interest in the general subject of the teachers' concerns. Smith neither asked for information about union-related activities nor gave Chinappi grounds to expect that her-con- tinued reporting would be rewarded. That Chin- appi incidentally included union activity did not re- quire Smith to disclaim any interest. Chinappi's re- ports were not focused on union activity and did not include any names, nor did Smith ask for any. No one was solicited to spy on fellow employees and there was no attempt to give the teachers the impression that their activities were being moni- tored. ' The Slater remark which my colleagues find to be an unlawful threat followed a dispute between Supervisor Slater and a group of teachers who re- fused to turn in their grades until given their teach- ing schedules for the next session. Slater angrily told Faculty Director Smith about the confronta- tion' and then said, "We will just get rid of all the teachers • anyway so they cannot vote in this crummy union." The remark was addressed to Smith alone, but Aiken, Smith's secretary, was present and overheard it. Slater's remark, however, was not directed at union activity but at the teach- ers' refusal to turn in their grades. In the heat of the moment, Slater suggested that they be dis- charged, which would result in their losing the op- portunity to vote the Union in." Moreover, Slater; although- a supervisor-, has no authority to effect a mass,discharge, nor would Aiken, who as Smith's secretary presumably was familiar with the admin- istration. of the school, have grounds for, fearing that Slater could effectively recommend such action. Slater was letting off steam to.her boss, not threatening employees. - . - . I also find without- substahtial basis the majority's finding that the Respondent unlawfully discriminat- ed against employee Mary -McGonagle by refusing to pay her for the 1981 Thanksgiving holiday and by discharging- her in -January .1982. McGonagle had supported three separate union organizing ef- forts', between 1979 - and 1981.. Throughout this period the Respondent took no action' against her. The first alleged instance of discrimination . against McGonagle occurred 3 months after the Union's- election loss ended the organizational ac- tivity when the Respondent followed its established policy of denying- holiday pay- to those who were absent the day immediately before-or after a holi- day. . McGonagle was absent the Tuesday and Wednesday preceding the Respondent's 2-day Thanksgiving holiday and, despite her request for 1150 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD an exception, was denied holiday pay, only-to learn later that two teachers who had been absent the following Monday received pay for the holiday after complaining. When McGonagle told Execu- tive Director Kay that this was disparate treat- ment, Kay told her, ""What I do to them is my business." The majority finds that Kay discriminated be- cause of McGonagle's union activities, having found that her discharge, discussed below, was dis- criminatory. Even if the discharge was discrimina- tory, it would not follow that the denial of holiday pay was also. First, the timing does not suggest an antiunion motivation. McGonagle's union activity does not stand out as anything to concern the Re- spondent particularly 3 months later. Furthermore, Kay applied the holiday pay restriction to McGon- agle in a routine manner calculated neither to punish her for the past union activity nor to call at- tention to her treatment. Kay's irate response to McGonagle's complaint of disparity suggests noth- ing more than a disinclination to enter into a dis- cussion of personnel action affecting other teach- ers. The record is silent on why the other teachers were paid.' It follows that the General Counsel has not proved that her treatment was motivated by antiunion considerations. When McGongale returned from the Christmas recess in January 1982, Jeremy Palmer, the new faculty director, told her that she would not be re- tained for • the forthcoming session: Although Palmer gave McGonagle no reason, Kay testified that Palmer, since deceased, had told him he wanted to restructure the faculty. Palmer wanted teachers who were available after school and in the evening if necessary and had someone in mind whose background was more diversified 'than McGonagle's. McGonagle previously had been of- fered more hours and had refused.These factors, in Palmer's view, outweighed McGonagle's seniority, and Kay, although he first urged Palmer to retain her, backed Palmer's decision. That explanation is perfectly reasonable, and the judge's summary re- jection of it-was arbitrary. If there is little reason to infer an antiunion motive at Thanksgivin'g,'there is even less at her later discharge when the organiz- ing campaign was that much more remote. The General Counsel has failed to make a prima facie case that any antiunion discrimination was directed against McGonagle and, accordingly, I would dis- miss the pertinent allegations of the complaint. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor -1elatiofis' Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual Laid or.pro- tection To choose, not to- engage in any of these protected concerted activities. - WE WILL NOT promulgate and enforce an invalid no-distribution rule. WE WILL NOT threaten you with reprisals such as closing our school and discharging'you because you joined or assisted Association of Public Serv- ice Workers or any other union. WE WILL NOT engage. in surveillance of your union activity. . . WE WILL NOT discharge you because of your ac- tivities on behalf of and sympathies for Association of Public Service Workers or any other union. WE WILL NOT in any like or related manner interfere' with, restrain, or coerce you in the exer- cise of the rights - guaranteed you' by Section 7 of the Act: WE WILL offer Judith Jorrisch, Sarah Green, and Mary McGonagle immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed.. WE WILL make whole Judith Jorrisch, Sarah Green, and Mary McGonagle for any' loss of earn- ings and other benefits they may have suffered by reason of the discrimination against them, plus in- terest. WE WILL notify these three employees that we have removed from our files any reference to their discharges and that the discharges,will not be used against them in any way. PROGRAMMING & SYSTEMS, INC. I There is no evidence on how the holiday pay rule applied when the next business day followed an intervening weekend • PROGRAMMING & SYSTEMS 1151 DECISION STATEMENT OF THE CASE ARTHUR A. HERMAN, Administrative -Law Judge. This proceeding- under Section 10(b) of the National Labor Relations Act was tried before me pursuant to due notice on October 25-29 and November. 1-3, 1982, at New-York,-New York. - The charge' in' Case 2-CA- 18092 was filed by the As- sociation of Public Service Workers (the Union) on May 27, 1981, and a complaint issued thereon on July 2, 1981. On July 1,• 1981, the Union filed a second charge in Case 2-CA-18179, and an order consolidating the two cases and a consolidated complaint issued on August 31, 1981. On August 24, 1981, a third charge was filed by the Union in Case 2-CA-18291, and an order further con- solidating all three cases and a further consolidated com- plaint issued on December 3, 1981. This consolidated complaint alleges essentially that Programming & Sys- tems, Inc (Respondent) committed unfair, labor practices in violation of Section 8(a)(1), (3), and (4) of the Act by various acts hereinafter specified On January 13, 1982, Mary E. S. McGonagle, an individual, filed a charge in Case 2-CA-18521, on which a complaint issued on Feb- ruary 26, 1982, alleging her discriminatory discharge and refusal by Respondent to grant her holiday pay. On July 20, 1982, an order further consolidating all four cases for hearing issued. . . - At the trial all parties were given full opportunity to participate, and subsequently the General Counsel and Respondent filed thorough briefs. On the entire record in the case, from my observation of the witnesses and their demeanor . while testifying under oath, and after. careful consideration of the briefs submitted by the parties, I make the following 11, FINDINGS OF FACT 1. THE BUSINESS OF.RESPONDENT Respondent, a New York corporation with its office and place of business in New York, New York, is and has been at all times material engaged in the operation of private educational institutions, offering training in tech- nical and business skills. Respondent annually derives gross revenues in excess of $1 million, excluding contri- butions which, because of limitations by the grantor, are not available for use for operating expenses. And, annual- ly, Respondent purchases and receives goods and materi- als valued in excess of $50,000 directly from points, out- side New,York,State. Respondent, admits, and I find, that it is, and has been at all times material, an employer en- gaged in'-commerce within the,meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED -;Associatioii of-Public Service Workers has been at all times material a labor organization within,the meaning of Section 2(5) of the Act.' i Respondent contends that the Union is not a labor organization Inas- much as that issue was litigated in a prior proceeding (Case 2-RC-19041) involving the same parties and it was determined that the Union is a III THE ALLEGED UNFAIR LABOR PRACTICES A. Factual Findings . Respondent, a public company, owns and operates two vocational education -institutions in a six-story building located on 40th Street in New York City. These are PSI Institute and New York Business School. Respondent's president and chief executive officer is Irwin Mautner; its executive director is Gary Kay; and, at times material, Beth Smith was the faculty director 'of the New York Business School until September 25, 1981.2 Her replace- ment, Daniel Lipsman, was himself replaced by Jeremy Palmer on November 23. Alvin Lipoff, in his capacity as vice president and treasurer, is Respondent's chief finan- cial officer, and `Sol Mayer is Respondent's director of admissions.3 Respondent's management committee con- sists of Mautner, Kay, Lipoff, and Mayer, as does its education committee. The former. meets on a regular basis, once a month, to discuss Respondent's operational problems and goals; the latter has no set schedule for meeting. Inasmuch as education is a state function, Respond- ent's schools are subject to regulation from various state agencies, including the New York State Board of Higher Education Department. In addition, Respondent must abide by the New York State Education Law and the re- quirements set by the State Commissioner of Education. Also, because of the various state and Federal loan pro- grams that are available to underprivileged students, Re- spondent is supervised by Federal agencies, such as HEW and the Veteran's Administration. At the instant hearing, the parties stipulated that the New York State Education Law and the regulations of the, Commissioner of Education require that all teachers teaching at the New York Business School have a baccalaureate degree. 'In December 1980, Judith Jorrisch, an employee of the Union, sought employment as a typing teacher with'Re- spondent. She filled out an application and presented it to Smith, together with her resume. Smith questioned Jorrisch regarding her teaching background but did' not inquire as to whether Jorrisch had a baccalaureate degree.4 Because of Jorrisch's lack of teaching experi- ence she was bypassed in favor of another teacher. How- ever, in January, Smith called Jorrisch to report for work, and Jorrisch began teaching secretarial studies and English from January 19 until May 20 when she was dis- charged " . Sarah Green testified that - she - was interviewed by Smith fora teaching position .in late January in response to a. New York Times ad. Green,told Smith that she had studied stenoscript at Kathryn Gibbs Secretarial School labor organization within the meaning of the Act, I find that said issue need not be relitigated in this proceeding, and, 'that' the prior determina- tion is res judicata Graneto•Datsun, 220 NLRB' 399 (1975) 2 All dates herein refer to 1981 unless otherwise indicated 8 There can be no doubt, and it is not disputed, that Mautner, Kay, Smith, Palmer, Lipoff, and. Mayer are;stipervisors•of Respondent within the meaning of the Act 4 Neither Jornsch's application nor her resume confirmed or denied this fact, nor did they list any teaching experience They both stated that she was employed by the Union as a public relations coordinator In fact. Jorrisch did not have a baccalaureate degree'. 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but that she did not have a baccalaureate degree. Smith told Green that she would have to discuss this with Kay because the school was not supposed to hire anybody with less than a baccalaureate degree. Smith asked Green how many credits she had toward a degree and Green responded that she had less than 1 year's credits. Within a few days, Smith contacted Green, told her she was hired, and asked Green to send her copies of transcripts so that Smith could "put something" in Green's file. Smith confirmed Green's testimony, and added that Kay told her that if the school needed Green hire her. And so, Green was hired on,February 9, and taught typing and stenoscript on, a full-time basis until she was dis- charged on May 20., Jorrisch testified that from February through mid- April she had many individual conversations with sever- al teachers in the New York Business School regarding her work on behalf of the Union and union organizing in general, that toward - the end of April, presumably -on April 29, Alan Temes, a counselor at New York Business School, was told by Kay that he was being transferred to PSI; and that Temes was upset when informed of the change. Although the record is not clear as to what tran- spired between Temes and Kay, Temes told Jorrisch that he had been fired. Word of Temes' dismissal spread im- mediately through the school, prompting a letter to be written to Kay, dated April 30, signed by 21 teachers, and delivered to Kay by Jack Sholom, a math teacher, protesting the dismissal.5 In addition, several teachers, including Jorrisch and' Caroline Donnola, planned to have a meeting of all teachers the next day. On Friday, May 1, a faculty meeting was held in the school presided over by' Kay and Smith. When some of the teachers challenged his decision in, the Temes affair by a 'series of questions, Kay responded by making refer- ences to parts of Temes' letter to him in which Temes protested the switch and to the teachers' letter of protest also, and concluded that the teachers were protesting too much. Later that day, 16 teachers and Temes met at a tavern near the school. Jorrisch produced blank union authori- zation cards and everyone signed. Green was present and signed a card. That same day, the Union filed a represen- tation petition with the Board (Case 2-RC-19041) Ac- cording to Kay, he received the petition about May 7. He notified Mautner about it and conferred with Re- spondent's labor counsel. Thereafter, he met individually with faculty directors and persons who reported directly to him, and advised them how to conduct themselves vis-a-vis the employees in light of the existing petition. Jorrisch stated that she engaged Barbara Friend in a conversation on May 13 in Friend's office in which she told Friend that there was to be a conference at the Board's offices the next day and extolled the virtues of having a union in the school. Friend disagreed with Jor- risch, and told Jorrisch, "You have a very good rapport with the students. You are liked Why would you be afraid of being fired. You would never been [sic] fired. 116 On May 14, an informal- conference on the petition was held at the Board office. Jorrisch was present as the employee representative for the Union, and Kay repre- sented Respondent. A hearing was held at a later date before the Board, and on August 5 the Acting Regional Director for Region 2 issued a Decision and Direction of Election finding a unit consisting of teachers, student counselors, receptionists, secretarial and clerical workers, and others not named herein to be appropriate,.foc•.the purposes of collective bargaining within the meaning of Section 9(b) of the Act.7 Jorrisch further testified that she had obtained a poem from one of the students relating to child abuse and that she had had it reproduced in Smith's office for distribu- tion to her English class. On May 18, she picked up the copies and, while proceeding to her class, she was stopped by Kay, Smith, and Barbara Friend. According to Jorrisch, Kay advised her "that no 'literature is al- lowed to -be distributed of any kind in this school with- out permission,"- adding, "[T]hat includes bulletin boards." When Jorrisch explained to them the contents of the pamphlet, Kay continued, "I want to take this op- portunity to let you know the rules, because we all know you're involved in a noble cause." Kay admitted having a conversation with Jorrisch regarding the poem because that morning Smith brought it to Kay's attention. Kay stated that he told Jornsch "that any materials that are to be used in the classrooms must first have prior ap- proval," whereupon Jornsch stated that she thought it was approved since she had it duplicated by the office and the copies given to her. Kay testified that on numer- ous occasions he had cautioned teachers about 'distribut- ing -material without prior permission, but, when pressed by the General Counsel for specific "instances, he was unable to recall any. - On May 20, Jorrisch and Green were discharged. Ac- cording to Jorrisch, her classes ended that day at noon and she went to the lounge for lunch. While there, she approached Chris Mulle, a new teacher, and asked her to sign a union card. Mulle refused and left the lounge. Within 10 minutes Kay entered the lounge; he called Jor- risch out of the room and told her, "You don't have the credentials to teach in this school and you're fired." In support of Jorrisch, McGonagle testified that she was present in the lounge when Jorrisch spoke to Mulle, that she left the lounge at the same time Mulle left, and that as McGonagle went to the office on business, she noticed Mulle talking to ' Friend.8 McGonagle then' returned to the lounge and was present when Kay arrived and called Jorrisch out of the room to tell -her she was discharged. Green's uncontroverted testimony established the fact that on May 20, Smith escorted her to Kay's office and left. Kay then told her that since she did not have the proper credentials to teach at the New York Business School, he had to dismiss her. When Green pointed out to Kay that she had told' Smith during her job interview that she did- not have a degree,- Kay responded that he knew nothing about that. - 5 Mary E S McGonagle, a teacher, composed the letter 6 Friend's supervisory status is in dispute and-will be discussed, infra Friend was not called to testify at the hearing 7 It was Jorrisch's unrebutted testimony that Michael Escobar testified at the hearing on behalf of the Union . 8 Mulle did not testify at the hearing PROGRAMMING & SYSTEMS Although Kay admitted the discharges, his testimony provides the basis for Respondent's defense, i.e., Jorrisch and Green were discharged for not-having baccalaureate degrees. Kay stated that under normal conditions a teacher's license- status is usually reported to the proper authorities within 60 days of the date the teacher is hired, but that in the case of Jorrisch' and Green this was not done. Kay testified that Evening Division Supervisor William Brady was given the task of updating, on a yearly basis,-the data"-regarding teachers' status; that such a report had to be submitted to the Association of Inde- pendent Colleges and Schools at the end of June of each year; and that although Kay had assigned Brady this job in January 1981, Brady, because of his other duties, did not give Kay the current list until the evening of May' 19 when he notified Kay that Jorrisch and Green did not have baccalaureate degrees.9 And so, according to Kay, the next morning, May 20, the education committee met, and it was 'decided that both' teachers had to be dis- charged immediately, otherwise the school would lose its license and its accreditation. 10 Kay further testified that although the committee members voted for instant dis- missal, he persuaded them to allow the two teachers to complete their classes for the day. Wayne Robinson, an English and psychology teacher, testified that union activity at the school began shortly after the Temes incident, and that shortly thereafter he signed a union card. Caroline Donnola, an English and high school equivalency teacher, described the May 1 meeting of teachers in a tavern near the school, which she attended, and at which all who were present signed union cards. Robertson and Donnola both testified that in the after- noon of May 20 a student meeting was held for the pur- pose of organizing a student council. Teachers were in- vited ' and the meeting was also attended by Kay and Smith. During the- course of-the meeting, Donnola saw Smith and Green leave, so Donnola left the meeting to inquire of Green what was happening. When Green told Donnola that she had been discharged; Donnola returned to the student meeting, and' after conferring with other teachers it was decided that a teacher should speak. Rob- ertson volunteered and was given permission to speak. He praised the students' effort to organize, advised them of the teachers' organizing effort, and proceeded to an- nounce that Jorrisch had been discharged that morning- and that he had Just been informed that Green too had been discharged, both for their union activity. According to Donnola, Kay interrupted Robertson and asked him to step outside but - Robertson refused. He continued to speak, and. Donnola, concerned that Robertson might' also be discharged, hurriedly wrote up a statement of support for him, had it signed by a number of teachers present at the meeting, and handed it to Robertson to be read to the assemblage. Robertson stated that he began reading the names but was diverted by Kay, so Donnola 9 Kay admitted that he knew before May 19 that Green did not have a degree Brady did not testify 10 Mautner, Lipoff, and Mayer confirmed Kay's testimony 1153 took over and read the rest of the list aloud i i Excite- ment stirred among the students, but the meeting broke up without incident. The next day, May 21, there was a student demonstration in front of the school at lunch- time, and several teachers were standing there observing the event. Mautner testified that because Kay "was getting some flack about the discharge of Jorrisch and Green," Kay thought that Mautner should tell the teachers the reason for the discharges. And so, on May 22, between 12:15 and 12:30, while the teachers were attending their regu- lar Friday faculty meetings, Mautner and Kay walked in on three such meetings and Mautner told each group "that Jorrisch and Green were discharged not because of their incompetency, but because they had no degrees." Donnola was present at one of these faculty- meetings and confirmed Mautner's testimony. In fact, on cross-ex- amination, Donnola admitted that Mautner had told the teachers that if Green or Jorrisch ever got their degrees, he would rehire them, and he also told the teachers that they had a legal right to join a union.-On direct examina- tion, Donnola testified that Mautner told the teachers "that, we should do no union organizing activities on school premises. If we were going to pass out leaflets or do any kind of union organizing it should be off school premises not on the school premises " Mautner denied saying the above and Kay supported him.12 Donnola stated that Mautner spoke for about 3-4 minutes. Jorrisch testified that following her discharge she con- tinued her organizing activities for the Union on the street in front of the school. She handed out leaflets that dealt with what was going on in the school, and she did this practically on a daily basis until the representation election in September. She stated that other teachers aided her, including Donnola, Shalom, Sapp, Keen, Thomas, McGonagle, Robertson, DeLabrever, Green, Mike Escobar, Gayle Stoddard, and Schneider. Green testified, and Mautner confirmed that she called Mautner from her house a few days after she was dis- charged to clarify her situation. She wanted Mautner to know that she did not misrepresent herself when she was hired, and that she had told Smith that she did not have a degree. Mautner commiserated with her but said that he had no other choice. At this point, their versions of the conversation became diverse. Green claimed that the conversation lasted a long time, perhaps even 2 hours; Mautner said less than 10 minutes. Green stated that Mautner asked a lot of questions about Jorrisch and whether she was affiliated with the Union; Mautner asked Green if she had signed a card for the Union, and Green responded affirmatively; Mautner asked her who else had signed cards, and she told him she did not know; and Mautner suggested to Green that the teachers did not have to bring their problems to the Union, that they could have come to him. According to Green, they then discussed the Temes incident, and Green pointed 11. According to Donnola and Robertson, the list included the follow- ing names Jack Shalom, Louis Thomas, Kay Keen, Eleanor Schneider, Fred Sapp, Barry Appel, Carol Donnola, and Lucy DeLabrever 12 Although Robertson was allegedly present at one of these meetings, and testified at the hearing, he was not asked about such meeting 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out to Mautner that because of Respondent's action toward Temes, the teachers felt they needed somebody to represent them. and turned to a union;. whereupon, Mautner, according to Green, said that if it were not for the fact that a union was sought, Green would probably still have her job Green then asked Mautner, "Are you saying that I was let go, because of,the union9 And he say yeah."- According to Mautner, none of the above took place Mautner testified that the gist of their con- versation concerned itself with Green wanting Mautner to know that she did not lie to Smith at the time she was hired, and that he attempted to assure her that he was satisfied with her performance as a teacher but that the lack of a baccalaureate degree prevented him from keep- ing her on the job. Jacqueline Aiken, Smith's secretary, testified for the General Counsel stating that in May Smith engaged her. in conversation and told Aiken that a union would not, be good for the school and that Mautner would-close the school before he would let a union into the school. Aiken also related that sometime in May she delivered a paper to Mautner's office containing a list of names of teachers who were observed by Smith to be standing outside the school during the student demonstration on May 21; Aiken remembered seeing Robertson, Flynn, and Shalom's names on the list. There was other uncontroverted evidence introduced by the General Counsel to attempt to support his 8(a)(1) allegations. Aiken testified that during the period from April to June Yolanda Chinappi, a secretarial teacher, kept Smith informed on a regular basis about what was discussed among the teachers in the lounge, and Smith encouraged it Most of the reporting pertained to the teachers' union activities, but Aiken does not recall Chin- appi mentioning any of the teachers ' names.13 On direct examination by Respondent's counsel , Smith stated that she never asked -Chinappi "to spy on teachers -as to whether they were engaged in union activities on their own time." Joseph Grossman; a data processing teacher at PSI, testified that sometime in June at a staff meeting of teachers at which union organizing was discussed, Frank Cavataio told the teachers that a'prior attempt at. organizing had been made about 2 years earlier, and that red.14' Escobar testified that he was the organizers were fir ' ed.14' a student counselor employed by PSI from May 1980 to July 3, 1981_, when he resigned.15 On May 22, two stu- dents came. to Escobar's office concerned over the fact that, they had participated' in the previous day's student demonstration, and were worried about , the conse- quences. Escobar quieted their fears and they left. While this conversation took place, Kay came into Escobar's office and asked Escobar to come to his office. After the students left,-Escobar went to Kay's office and Kay told him, not to discuss labor-management problems with the 13 Aiken further testified regarding a telephone conversation she had with Smith's mother, in which the mother attempted to persuade her that unions were no good Inasmuch as no attempt was made by the General Counsel to link Smith with her mother 's remarks, -I find such remarks to be merely conversational and of no consequence in-this proceeding 14 Cavataio's supervisory status is in dispute and will be discussed, infra - 15 His supervisory status will be discussed, infra students. When Escobar said that he had not, Kay.as- sured him that he then had nothing to worry about. Later that day, Escobar had a conversation with a former student who now worked as a computer operator for- Respondent.- In that conversation , Escobar asked the operator if he had, heard anything about union activity, and the operator responded negatively. Escobar then ad- vised him that if he wanted any- specific information he- should inquire of the union representatives who were outside the building or. he could -ask Escobar. l.Shortly, . i thereafter, Kay came to Escobar's office to tell him that he had overheard, that conversation and cautioned Esco- bar against discussing unions on company time. At the New York Business School , a course leading to graduation and the receipt of a certificate requires the at- tendance of a student for 1800-1950 hours over a period of 18 months.. Every 6 weeks a new course commences so courses overlap each other, and enrollment is an on- going procedure. Approximately 10-15 subjects are re- quired to be studied during the period of the course. Subjects run for approximately 12 weeks, and each 12- week period is referred to as a session , term, or semester. At the end of a 12-week session, there is a week interses- sion, and classes commence again the following week. Teachers who completed a 12-week session' and were scheduled to return for the next session were paid for the 1 week of intersession. Generally, on the last day of the session, teachers were required to turn in the students' grades, and in turn schedules for the next session 'were handed out to them along with paychecks. • A session ended on Friday, June 26 That morning Re- spondent posted a note to the teachers stating that no schedules would be given out that day, and requested the teachers to call on Monday, June 29, regarding their schedules. A group of teachers, including Donnola, Rob- ertson, Schneider, Shalom, Thomas, Keen, and Sapp, saw. the note and agreed not to turn in the students' grades until they received their schedules. Aiken testified that on the morning of June 26 she overheard Amanda Slater, the head of- the busienss administration depart- ment, 16 conversing with . teachers Sapp, Thomas, and Aaron Numngwun. Slater asked them to turn in the stu- dents' grades and they refused unless given their sched- ules With that Slater said, "Okay I wash my hands with you teachers that is it", she then walked into Smith's outer office and related the conversation to Smith They then proceeded into Smith's inner office. Smith' closed the door and said, "Those f-= teachers," and. Slater said not to worry, "We will just get rid'of all, the teach- ers anyway so they cannot vote in this crummy union."' Slater was not called to testify, and, when J asked Smith to relate her conversation with Slater on that day, Smith could not remember that particular conversation. Donnola testified that she called Kay -on June 29 and asked what her new ,schedule was. Kay said he. had no new schedule for her, and asked Donnola to bring in the students' grades Donnola said that Kay had a check that belonged to her - They then agreed to exchange the 16 Slater's supervisory status is also in dispute and it will be discussed, infra , PROGRAMMING & SYSTEMS grades for the check Donnola came to the school that day and together with Shalom, Robertson, Schneider, Sapp, Keen, and Thomas went in to speak to Smith. Kay went in and insisted on making the exchange (grades for paychecks) on an individual basis. After this was accom- plished, Donnola and the.other teachers, with the excep- tion of Robertson, 17 discovered that the paychecks did not include pay for the week of intersession. And so, on June 29, Donnola, Shalom, Robertson, Schneider, Sapp, Keeri;°and. Thomas were not given teaching schedules for the oncoming summer session and were, in effect, discharged. Escobar testified that during May he worked 55 hours per week, but on the morning of June 29 he was called into Kay's office and told that he could not work evening hours anymore because the school was cutting back on operating costs However, he later found out that actually he had been replaced by employee Narcisse Mallory. 111 Respondent contends that the union activity engaged in by Donnola, Robertson, and -others, commencing May 20, enmeshed the students in the teachers' dispute. It claims that this was deliberate and that it had a down- ward economic impact on Respondent 's business . In sup- port of its argument, Respondent introduced into evi- dence the weekly student enrollment figures from May 8 through August 28 (R. Exh '24). 19 Based on the declin- ing enrollment, Respondent notified Donnola, Robertson, Schneider, Shalom, Thomas, Keen, and Sapp, individual- ly, on the morning of June 29 that their services were no longer needed. Total Enrollment Week of-1981 Before After Amend- Amend- ment ment May 8 392 392 May 15 402 402 May 22 401 401 May 29 394 394 17 During the course of the hearing, the General Counsel moved to withdraw allegations in the consolidated complaint relating to the with- holding of accrued- vacation pay due Robertson (G C Exh 11)_ The motion is granted 18 This action by Respondent was alleged in the consolidated com- plaint as a violation of Sec 8(a)(1) and (3) of the Act The allegation also contained the names of Gayle Stoddard and Aaron Numngwun as having suffered the. same fate as Escobar However, at the conclusion of the hearing, the General Counsel moved to withdraw the allegation as it re- lated to Stoddard and Numngwun (see G C Exh 11) The motion is granted - 11 I received R Exh 24 into evidence subject to the General Coun- sel's inspection of Respondent 's books and records from which the exhib- it.was gleaned After the close of the hearing, on a joint motion by Re- spondent and the General Counsel, R Exh 24 was amended and offered into evidence, along with a request to correct the transcript in certain re- spects I grant the joint motion and receive into evidence an amended R Exh 24 as R Exh '24(A), and deem the transcript corrected as stated in the joint motion The pertinent portion of the amended exhibit reads as follows ' I Exhibit R-24 is amended to include class JO 1 for the weeks and in the numbers set forth in the second recital clause above re- sulting in the following ' total enrollment numbers at the bottom of said exhibit in lieu of those which were set forth thereon at the close of the hearing. 1155 Total Enrollment Week of-1981 Before Amend- ment After Amend- ment June 5 384 384 June 12 365 365 June 19 353 353 June 26 335 335 July 2 198 198 July 10 216 216 July 27 212 226 July 24 211 226 July 31 213 -225 August 7 213 225 August 14 315 320 August 21 312 315 With regard to Escobar's reduction of hours, Respond- ent, on cross-examination of Escobar, established that Mallory, who was working evenings anyway, could per- form the tasks performed by Escobar at a cost saving, and therefore instituted the change. In an attempt to discredit Respondent's actions of June 29, and to bolster its contention that the discharges were motivated by the union activity of the individual teach- ers involved, the General Counsel subpoenaed and called a recalcitrant witness, Claudette Percival, a student at the school in 1981 . The General Counsel was armed with Percival's affidavit taken by a Board agent on July 7 in the presence of Donnola at a sandwich shop near the school. It appears, according to the affidavit, that Percival visited Kay's office on July 1 to discuss the can- cellation of a particular program (GED). When Kay told her that it would not begin for another 12 to 24 weeks, this bothered Percival and, according to the affidavit, she complained that it was unfair of the school to keep changing teachers, and she asked "why a large group of teachers had dust been fired or laid off." Kay said they had.not been fired or laid off but rather they left because they "[do not] want to work." The affidavit continues: "He claimed they were all involved with a Union and were creating problems for him." When Percival took the stand, the General 'Counsel first established that he had never met Percival before, that when he spoke to her on the phone she refused to testify, and that only after she was served with a subpoena did she appear. Percival then testified that Kay told her that "due to the lack of students in the summer, he decided to have class- es starting after the summer is over." Percival asked Kay "why the teachers are not here," and Kay said "that some of the teachers - were not very much qualified enough." At this point in the questioning, the General Counsel produced Percival's affidavit, and after having it marked for identification, gave it to Percival to read. I then inquired of the witness whether she recalled having given that statement to a Board agent. Percival's re- sponse indicated that she recalled "speaking to Mrs. Donnola and•a gentleman," but that she did not sign "to anything," denying her initials on each page and her sig- nature on the last page. The Board agent testified con- firming the fact that he took the affidavit from Percival 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and witnessed her signature and initials, and a handwrit- ing expert verified the fact that it indeed was Percival's signature on this affidavit 20 While I credit the authentic- ity, of the affidavit, I do not credit Percival. Whatever prompted her to quote Kay as she did in the affidavit, and -then to quote him entirely differently on the witness stand, creates ;a dilemma. From my observation of the witness, I find-Percival tended to be contradictory, eva- sive, and confusing, and her testimony lacked trustwor- thiness Although the General Counsel wishes me to accept her . affidavit over her testimony, that, too, I cannot do. I find that Percival was at a disadvantage when confronted in the sandwich shop by Donnola and a strange gentleman and that, under the circumstances, she might tend to say what Donnola would like to hear, rather than the truth. For this reason, I discredit the statements that Percival attributed to Kay, both in the af- fidavit and in her oral testimony. Further, I find it diffi- cult'to believe that Kay would reveal his innermost thoughts regarding the Union to a student who happened to appear on the scene. For all of these reasons. I shall disregard Percival's testimony and affidavit in my delib- erations. The evidence establishes that at the beginning of May, Respondent employed a complement - of 37 teachers. With the discharge of Jorrisch and Green, the 7 on June 29, and a few others not named in the complaint, Re- spondent's teaching staff stabilized at 24, and remained at that figure until the end of the summer session on Sep- tember 25. During that summer session, three things occurred. In August, several of the June 29 dischargees wrote letters to Respondent offering their services again as teachers, enrollment reached bottom-on July 2 (198 enrollees)-and then increased gradually until it 'hit 312 on August 21, and on September 3 the representation election conduct- ed'by the Board was held and the Union lost. Kay testi- fied that, by letter, he contacted the dischargees, with the exception of Jorrisch and Green, and offered them interviews for possible future employment. The evidence shows that none was hired, while other newly selected teachers were chosen B. McGonagle 's Discharge - Mary McGonagle was employed by the New York Business School as a teacher for over 10 years until her discharge on January 4, 1982. Being a lawyer,-McGona- gle taught business law as well as other courses. For the last 3 years of her employment, McGonagle had a full- time schedule McGonagle was a union activist . She assisted Jorrisch and Donnola in handing out union authorization cards to teachers, and she composed the teachers' letter of protest to Respondent regarding Temes' discharge. - McGonagle went on vacation on June 26, the last day of that session, and returned to the school on August 3, 20 Although there appears to be an inadvertent error in the affidavit referring to Percival as an employee , rather that a student , of Respond- ent, and the Board `agent failed to satisfactorily explain the brackets around the words "do not ," as quoted above, I find that affidavit to be authentic and acceptable is evidence herein in the'middle of the summer session.2 i' Smith handed her a teaching schedule for morning classes -only-a part- time schedule. When McGonagle complained, Smith re- ferred her to Kay. McGonagle saw Kay that same day after working the morning schedule, and repeated her complaint, whereupon Kay asked her if -she had ever taught psychology, and, when *she -responded affirmative- ly, he immediately reached into his drawer, took out a full-time schedule, and told her to'start that afternoon. On September 3, McGonagle was -the,-Union's! observer at the representation election. On September 25, Smith resigned her position as faculty director and was eventu- ally replaced by Jeremy Palmer,. who had formerly been a student counselor advisor for PSI Institute. Thanksgiving Day and the day after are holidays on Respondent's calendar, and they are days for which Re- spondent normally paid the teachers. However, Re- spondent has a rule which states that if a teacher is absent immediately before or after a holiday that teacher will lose the holiday pay. McGonagle was out sick on the 2 days preceding Thanksgiving and was not paid.for the holiday. Although McGonagle admitted that she did not expect to be paid for Thanksgiving and the. next day, she complained about it when she found out that two other teachers with less seniority who were out on the Monday following the Thanksgiving weekend were paid holiday pay after they complained to Kay for not being paid. Kay, however, refused to pay McGonagle, saying, ."What I do to them is my business." .McGonagle testified that when she returned from the Christmas recess on January 4, 1982, she was told by Palmer that morning that there was no schedule for her and that she had been fired When she asked why, Palmer told her that he could not tell her that. McGona- gle reminded Palmer of a conversation they had had just before the' Christmas recess in which she had volun- teered to teach a certain class when the new session would begin and Palmer said he would keep it in mind when he makes out the schedules. Also, McGonagle pointed out that because of Respondent's system of rotat- ing classes every 12 weeks and admitting students every 6 weeks, there were some courses which had 'not been completed at the time of the Christmas recess, and there- fore some students would be expecting her back only to discover that they had a new teacher 22 Kay testified that McGonagle was discharged because Palmer had told him that he wanted to restructure-the department in his fashion -and was bringing in new personnel for that purpose.. _ _ IV. ANALYSIS AND CONCLUSIONS A Supervisory Status of Friend, Slater, Cavataio, and Escobar23 The General Counsel, contrary, to Respondent , -argues that Friend, Slater, and Cavataio are supervisors within 21 It is her uncontroverted testimony that. Respondent, for the past year or so, had given her permission to take July off for vacation - 22 Palmer has passed away since the January 4, 1982 incident, and there is no Respondent witness to refute McGonagle's testimony 2s Friend, Slater , and Cavataio were not called to testify, Escobar tes- tified on behalf of the General Counsel PROGRAMMING & SYSTEMS the -meaning of. the Act and that Escobar is-not a super- visor. I agree with the General Counsel. Kay testified that Slater was the head of the. account- ing department, that she chaired department faculty meetings each Friday; that she evaluated teachers in her department by their performance in class; and that she approved teachers' lesson plans. -Kay also. testified that Friend had similar duties as head of another depart- ment 24 He also stated that if either Slater or Friend had 1 a-,problem)with.a,teacher, she would report the problem to - Smith with a recommendation as to what action should be taken, and Smith acted on - that recommenda- tion. Kay stated that he would hold meetings with the heads of departments at which school policy changes would be communicated to them. No teachers were present at these meetings It is my opinion from the aforesaid record that Slater and Friend are supervisors within the meaning of the Act. Kay, acknowledged that he held policy meetings with the • department heads at which no teachers were present. This tends to show that the department heads were regarded by Respondent as administrative arms of the school, with significant authority over the teachers in their respective departments Also, department heads had the, authority -to evaluate teachers and to make recom- mendations regarding their continued employment with Respondent. In addition, the evidence shows that depart- ment heads exercise control over the teachers' lesson plans and conduct in the classrooms. For all these rea- sons, I find that Slater and Friend,-as department heads, have and exercise authority, in the interest of Respond- erit, to responsibly direct and effectively to recommend the retention of teachers in their respective departments, and they are, therefore, supervisors within the meaning of the Act. In addition to disputing Slater's duties as having super- visory impact, Respondent contends in its brief that since 'Slater voted without challenge in the election that is suf- ficient to defeat the General Counsel's claim that she is a supervisor within .the meaning of the Act.25 The Board disagrees In Montgomery Ward & Co, 115 NLRB 645 at 647 (1956), the Board states: We Bold, therefore, that' the mere fact that DuFour was permitted to vote in the election by agreement of the parties is not the equivalent of a determina- tion of his status by the Board. Further, the fact that the Union may have agreed to the inclusion of DuFour in the unit cannot result in nullification of the statutory exclusion of supervisors from the defi- nition of "employee" contained in the Act. Nor can 24 Green testified that Friend was the head of the secretarial depart- ment, and that Friend observed Green in. class and made specific criti- cisms regarding Green's teaching, abilities ,25 Respondent cites Redcor Corp, 1967;CCH NLRB T. 28.364, 28,366, in support of its contention and places in quotes what supposedly was stated by the trial examiner in his decision regarding a person named Henyk An examination of the cited page in the CCH reveals not the trial examiner's language but CCH's summary of what it thought the trial ex- aminer wrote My reading of the official report of the case in 166 NLRB 1013 at 1018 (1967), entitled, "D The Henyk Incident," fails to reveal such a quote,,nor do 18nd.that the CCH summary does justice to the trial examiner's wording of the Henyk incident ` - - 1157 it prevent the General Counsel from contending that DuFour was a supervisor Assuming arguendo that, as urged by the Respondent, the Union is es- topped from asserting that DuFour is a supervisor, that estoppel cannot operate against the, General Counsel' The present case is a public proceeding by a public official against the Respondent, and not pri- vate litigation between the Union and the Respond- ent. Cavataio did not testify at this hearing Joseph Gross- man, a data processing teacher , who taught at PSI Insti- tute three nights a week, testified that Cavataio was his immediate supervisor . He stated that Cavataio called and presided over faculty meetings, at which he would relay messages from the front office dealing with the teachers' on-time performance or absenteeism , and for which he would castigate them 'and imply that they could be dis- charged for a continuance of such behavior . Cavataio would also advise on teaching methods, test giving, and discipline of students.'According ' to Grossman, Cavataio would change teaching assignments, reprimand teachers, and evaluate teachers after observing them in class: And, it was Cavataio who notified Grossman that he had been discharged. Kay testified that Cavataio worked from ap- proximately 5:30.to 10 p'm., and that he was Gabriel En- esencio's assistant . 26 According to Kay, Cavataio made sure that classes were covered by teachers, and, if neces- sary for that purpose, Cavataio would teach a class now and then . Kay stated that Cavataio evaluated teachers at times but that he did not approve lesson plans . On cross- examination, Grossman stated that Cavataio was paid at the same rate as the other teachers at PSI , and that since he only worked evening hours, he, too, was a part-time employee of PSI. Since the unrebutted testimony of Grossman establishes that Cavataio exercised his author- ity in transferring teachers from one assignment to an- other when necessary , reprimanded teachers, and evalu- ated -teachers, I find Cavataio to be a supervisor within the meaning of Section 2(11) of the Act in that he re- sponsibly directed employees of Respondent. Miguel Escobar testified that he was employed as a student counselor at PSI He shared an office with Alan Temes27 and two female clerks who worked afternoons to keep student attendance records. On cross-examina- tion,' 'Escobar stated that Kay was dissatisfied with Temes and wanted Escobar to impart to Temes some of his style and ability in dealing with the students. Escobar did this . and gave progress reports to Kay. Escobar also stated that he would check the attendance records with the two clerks in the office in order to ascertain who ,among the students were excessively absent , and then contact those students . From the evidence presented, it appears clear to me. that at no time did Escobar ever ex- ercise any supervisory authority over Temes or the two clerks, but merely worked with them in order to better serve the needs of the students at the school. Under the 26 Enesencio was employed during the daytime and usually left the premises about 6 p in , at which time Cavataio took over his duties 27 Temes was the student counselor for New York Business School until his discharge 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances, I find Escobar not to be a supervisor within the meaning of Section 2(11) of the Act B The 8(a)(1) Allegations The amended complaint 'alleges eight separate viola- tions of Section 8(a)(1) of the Act, two of which the General Counsel refers to as Respondent's unlawful rule regarding solicitation- and distribution of literature on company premises. The first involved Kay's reaction to Jorrisch's attempt to read and distribute a poem in class. The second alleged that Mautner, while speaking 'to-one of three teachers' groups following the discharges of Jor- risch and Green, promulgated a rule prohibiting employ- ees from engaging in union activities at the school. Both incidents are reviewed, 'supra In the first-incident, Jor- risch testified that Kay told her "that no literature is al- lowed to be distributed of any kind in this school with- out permission `.Kay admitted the confrontation' and, when questioned by his attorney, he merely rephrased the quoted remark. I credit Jorrisch's version of the,inci- dent and thereby accept the fact that Kay followed up his remark to Jorrisch by adding, "[W]e-all know you're involved in a noble cause." In T.R. W. Bearings, 257 NLRB 442 (1981), ' the Board held- that employer rules that prohibit-without further clarification-union solici- tation or distribution . of literature during "working hours" or "working time" are, presumptively invalid under the Act. Inasmuch as it was common knowledge that Jorrisch was the leading protagonist for the Union; I. find Kay's latter remark to be a reference to Jorrisch's union activity, and the promulgation of this rule by Kay to be overly broad, discriminatory, and violative of the_ Act. As for- the second incident allegedly -involving a remark made by Mautner at a faculty meeting regarding the leafletting of.,union propaganda on Respondent's premises, I must disagree with the-General Counsel and dismiss the allegation. The sole witness to testify as to its alleged occurrence was Caroline Donnola, despite the fact that other teachers who were present'at the meeting also testified at the , hearing on other matters. Both Mautner and Kay deny that Mautner promulgated such a rule. In addition; it is generally agreed that each of these faculty meetings that day lasted for dust 3 or 4 minutes and that they were called for the sole purpose of having' Mautner explain Respondent's reason for discharging Jorrisch and Green. Under the circumstances, I.-credit Mautner and Kay with their version of the incident, and I shall dismiss that allegation in the complaints. The third alleged 8(a)(1) incident involved the tele- phone conversation between Green and Mautner follow- ing Green's discharge. The General Counsel alleges; that Mautner interrogated Green regarding her union activity and Jorrisch's as well. Mautner denied it. It'is undisputed that Green called Mautner to "set the record straight" regarding Green's. honesty in.telling Smith that she did, not have a baccalaureate degree at her interview. How- ever, Green claimed that she made the call on ' Monday, May 25, in the afternoon, and' that it lasted 2 hours. Mautner testified and produced a telephone log to show that he received the call on Tuesday, May 26, at 4:45 p.m. and that they spoke for less than 10 minutes The 1981 calendar reveals that May 25 was Memorial Day and _in all likelihood the school was-closed. Therefore, I find that the call was made on Tuesday, and that -the time listed in the log, 4:45 p.m.,_was the accurate time of the call. Mautner testified, and I credit him, that when he got off :the phone his secretary was still in the office; since she normally leaves at 5 p.m., her presence would indicate that. the length of the call was closer to that stated by Mautner (less than 10 minutes), rather than Green's estimate of. 2 hours. Also,. and most important, this call was made after • the discharge of:'Jorrisch and ' Green, and I cannot imagine Respondent's president en- gaging in an interrogation of a- teacher who had dust been discharged and confiding to ^ her that he fired her because of her union activity. All in all, I credit Mautner's version of the telephone conversation, and on that basis find no interrogation' violative of Section 8(a)(I) of the Act as alleged. ' . The-General Counsel portrayed three incidents involv- ing alleged threats made by Respondent to unit employ- ees, contending that said threats were violative of Sec- tion 8(a)(1) of the Act. The first such incident occurred in mid-May between Smith and- her secretary Aiken. Aiken had been a student at New York Business School, and after graduation Smith hired her as her secretary. Aiken's employment ceased when-she quit work in Sep- tember. Smith's -office was in the library-, and Aiken's desk was right across from Smith's. On this particular occasion, Smith engaged Aiken in.conversation, and, ac- cording to Aiken, Smith said that if a union came into PSI it would be the worst thing in the world; that Smith would not be able to get rid of all the bad teachers; that Aiken "would probably be fired because [she] came late a lot and that to keepy my nose clean if I wanted the job because Mr. Mautner would' not let a union into the school"; and that Mautner would close the school. When Smith testified, she was asked if she had such a conversa- tion with Aiken, and her response was, "I don't recall " Under the circumstances, I credit. Aiken's -version of the conversation Respondent, contends that Smith was not threatening Aiken but merely being openly skeptical of the benefits•a union could bring.fo the Employer's prem- ises, and that her remarks were made during the course of an amicable conversation. I disagree. Aiken was a member of the bargaining' unit and vulnerable to any re- marks made by management. And, the fact that Smith may have been trying to act in a friendly manner might make her statements all- the more coercive, since Aiken could be expected to take Smith's threats very seriously. I find, therefore, that Respondent violated Section 8(a)(1) of the Act by threatening employees. with closing. the . school and discharging its employees .28 The second alleged threat was revealed in Grossman's unrebutted testimony -regarding remarks made by Cava- taio.29 It seems that a staff `meeting took place in June and a discussion started about the Union's organizing drive. Cavataio was present and, according to Grossman, told the teachers that a union had, tried to organize 2 years before and that Respondent fired'all the employees, 28 Puritech Industries, 246 NLRB 618, 622-623 (1979) 29 As stated above, I have found Cavatato to be a supervisor within the meaning of Sec 2(11) of the Act PROGRAMMING & SYSTEMS. who tried to form a union . Hearing skepticism from the teachers, Cavataio continued, "[T]hey're very good at that sort of thing. You know, they'll figure out a way to get rid of everyone who tries to . " In light of Re- spondent's complete failure to rebut ,Grossman's testimo- ny, I credit Grossman. Respondent argues, however, that the charge should fall because Grossman further testified that the employees were skeptical and did not take the remarks seriously, and that Cavataio always joked around with the teachers. I do not find that view to be the test •'As".Adli iinistrative' Law Judge Klein so aptly put it in Puritech Industries, supra at 623, "But the deci- sive factor is not whether individual employees were, as a matter of fact, coerced, but rather whether the employ- er's conduct was such as to have a natural tendency to coerce." Respondent's conduct in the present case clear- ly met that test. I find, therefore, that Respondent threat- ened its employees with discharge if they joined or sup- ported the Union, and thereby violated Section 8(a)(1) of the Act. The third alleged threat was related by Aiken and refers to a threat made by Slater on June 26 which oc- curred in the following context. A group of teachers had just refused to turn in students' grades to Slater because they had not been given schedules for the next semester. Slater, in'a huff, said, "Okay I wash my hands with you. teachers that is it," walked into Smith's office, and relat- ed the conversation to Smith. Smith issued an expletive and Slater threatened to get rid of all the, teachers "so they cannot vote in this crummy union." In-the absence of any rebuttal testimony, I find such remarks to be threatening and coercive. Respondent argues that it was said to Smith and not meant to be heard by Aiken. How- ever, the 1hu.ird has said that even if a threat is uninten- tionally communicated to an employee because she hap- pens to be in the presence of two supervisors, it nonethe- less constitutes a violation of Section 8(a)(1).30 On that basis, I find Slater's threat to be a violation of Section 8(a)(1) of the Act. The remaining two 8(a)(1) allegations deal with al- leged acts of surveillance testified to by Aiken. As stated above, Aiken stated that a teacher, Yolanda Chinappi, visited Smith's office many times between April and June and reported to Smith on what the teachers were doing in the teachers" lounge According to Aiken, Chin- appi would tell Smith what union leaflets were being passed out, and they would discuss the contents of the leaflets. Also, Chinappi would inform Smith about forth- coming union'meetings.'And Smith's response would be, "Good -keep me' informed." Although Aiken stated that she did not' remember if Chinappi mentioned specific names of teachers, and Chinappi was not called to testi-' fy, Smith did respond negatively to the one : and only question on the subject, "Did you ever ask her- [Chin- appi] to spy on teachers as to- whether they were en- gaged in union activities on their own time?" Inasmuch as the question has so many facets to it , I am inclined to disregard it and the :answer, ,and credit Aiken for the de- tailed ' account, of what she overheard Chmappi and Smith say. Respondent contends that regardless of 10 Viele & Sons, 227 NLRB 1940, 1944 (1977) 1159 whether Chinappi reported to Smith, it was voluntary on Chinappi's part and therefore not a coercive act by Re- spondent. I disagree. Where an employer encourages an employee to inform on the union activities of other em- ployees, it is violative of Section 8(a)(l) of the Act, and I so find in the instant case.31 The last 8(a)(1) allegation refers to Aiken's testimony regarding Smith's observance of the student picket line on May 21. According to Aiken, Smith was looking out the window and writing down the names of. teachers who were standing by-watching the students. Smith then handed the list to Aiken and asked her to deliver it 'to Mautner Aiken remembered seeing the names of Robin- son, Shalom, and Flynn on the list. Smith admits seeing some teachers outside while the picketing was going on, but was never asked the question as to whether she com- piled a list of names. Rather, the transcript reads as fol- lows: Q. Did you place any of your teachers under sur- veillance to determine whether they were engaged in union activities? A Well, we didn't have to place anyone under surveillance to know who was interested in the union or who wasn't. Peter. probably had asked us to keep notes . . . . MR. TANNER: Objection. Peter Curley is counsel. MR. TANNER: Judge, _let me restate the question. Q Were you aware of picketing on about May 21, outside the building of New York Business School? - A. There was picketing. - Q. Did you observe teachers picketing? - A. I think that teachers did picket. I don' t-I'll tell you, I don't remember if it was just the students and the teachers were watching or if the teachers were picketing. I just-it's not clear in my mind. JUDGE HERMAN: But you did see some teachers outside while picketing was going on? THE WITNESS: Yes. Q. What I'm- interested in is whether you placed teachers under surveillance, when they' were on their own time and they weren't teaching a course. On their own time, the lunchroom or somewhere else in the premises to determine what they were doing with respect to the union? A I observed teachers while they were sup- posedly doing their job. From my reading of the transcript as excerpted, and from my reading of Aiken's testimony regarding this al- leged act of surveillance, I credit Aiken's testimony and find that not only did Smith spend time observing the teachers on the street, but she also completed a list of names as recalled by Aiken. Under the circumstances, I find that Respondent was engaging in proscribed surveil- lance, that such conduct tended to impinge on employee Section 7 rights, and, that it is a violation of Section 8(a)(l) of the Act.3z , 31 B L K Steel, 245 NLRB 1347, 1352 (1979) 32 Crown Cork & Seal Co, 254 NLRB 1340 (1981) 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Discharges of Jorrisch• and Green As stated by Respondent 's counsel, the relevant and material facts on this issue are not in dispute Respondent hired Jorrisch, in January and Green in February. Nei- ther Jorrisch nor Green had a baccalaureate degree. Al- though Respondent did not know this fact about Jorrisch and Jorrisch did not make it a point to tell Respondent at her interview, it is admitted that Respondent- was well aware of Green's 'shortcomings . It is. also clear that Re- spondent knew of Jorrisch 's leading role as a union ac- tivist from the beginning of May when Temes ' employ- ment . terminated , and by Jorrisch's presence at the - Board's offices on•. May 14, representing the Union at the informal conference on the Union 's representation peti- tion . Green's 'union activity was limited to her presence at the May 1 union meeting and the fact that she signed a card. And so, the reason for discharge boils down to moti- vation . Respondent would have me believe that it was motivated by the -sudden disclosure by Brady on May 19, which prompted the May 20 discharges . It offers as its sole reason the lack of the baccalaureate degrees' I find no merit to this contention . Jorrisch' had worked for ap- proximately 4 months when she was precipitously dis- charged . By Respondent's own admission a report on Jorrisch's license status was due by the end of March (60 days after her hire) And yet she continued to work until May 20. Even assuming the fact that Kay was apprised for . the first time on May 19 of Jorrisch's lack of a degree, the report by Respondent , according to Kay, was to be turned in at the end of June of each year. With the semester terminating on June . 26, certainly the dis- charge of unlicensed teachers could have been forestalled until then. There had to be another reason for the dis- charge on May 20 . I find that the sudden turmoil that embroiled the school during May -was the catalyst- that caused Jorrisch 's discharge Beginning with Temes' dis- charge, followed by the tavern union meeting -at which Jorrisch distributed and received back signed union au- thorization cards, the filing of the representation petition in early May, Jorrisch's conversation with Friend, one of Respondent's supervisors, on May 13, Jorrisch's appear- ance as the union 's representative at the Board 's informal conference on May 14 , the confrontation with Kay on May 18 regarding the poem Jorrisch proposed to read and distribute in class, and Jorrisch 's attempt to get Mulle to sign a card on May 20 , just before she was dis- charged, all tend to be overwhelming evidence of the Respondent's desire to rid itself of Jorrisch as soon as possible. Thus, I seriously doubt that Respondent's dis- charge of 'Jorrisch on May 20 was caused by her lack of a baccalaureate degree. Rather , I find that Respondent's reason for the discharge was pretextual - and actually dis- criminatorily''motivated . It is concluded, therefore, that Respondent's discharge of Jorrisch , a known union activ- ist, was to discourage membership in- a labor organization and to interfere with the rights of `employees •to self-orga- nization, all in violation of Section 8(a)(3) and ( 1) of the Act. In addition, I find that Respondent violated Section 8(a)(4) of the Act in that it discriminated against Jorrisch for her participation in a Board proceeding on May 14. As for Green, the record reveals that she was hired in February and discharged on May 20 for assertedly the same reason as Jorrisch. Her union activity was limited to attendance at a union meeting and that she signed a card. • Respondent admits, however, that it knew when it hired Green that she did not have a degree. Why then the sudden action on May 20? There can be only one reason In order to justify the discharge of a union activ- ist (Jorrisch) for not having a baccalaureate degree, Re- spondent had to discharge all other teachers who' did not have a degree. Thus, Brady's review of the teachers' records revealed the fact that along with Jorrisch, Green, too, did not have a degree. However,._the Board has held that an employer's termination of an employee as part of an effort to camouflage the discriminatory dis- charge of a known union activist is violative of the Act. 33' I find, therefore, that the discharge of Green was undertaken in an attempt to vindicate the discharge of Jorrisch, and that by-doing so, Respondent violated Sec- tion 8(a)(3) and (1) of the Act. However, in light of the New York State Education Law and the regulations of the Commissioner of Educa- tion requiring Respondent's teachers to have baccalaure- ate degrees, there remains the question of an appropriate remedy in this case since Jorrisch and Green are entitled to reinstatement . The Board's response to this quandary is found in Amay's Bakery & Noodle Co., 227 NLRB 214 (1976), in which the Board stated that a conventional re- instatement order would merely "return Respondent to a position in which it had placed itself earlier, and, but for the illegal discharges, in which it would still be If there is any risk in that position, it is a risk that the Respond- ent by its earlier wrongdoing voluntarily assumed." Under the circumstances, .1 shall issue a conventional re, instatement order.34 D. The June 29 Discharges and Respondent's Refusal to Give Intersession Pay to the Dischargees As stated above, the relevant semester ended on June 26. On that day, students' grades were required to be turned in by the teachers. It was customary, also, for Re- spondent to give the teachers their class schedules for the next semester following 1 week of intersession And, it was Kay's uncontroverted testimony that, as a courte- sy, teachers who were returning after intersession were paid for the intersession week. On June 26, Respondent posted a notice advising the teachers that the new schedules were not available and that they should call in on Monday, June 29. Seven teachers'35 therefore, refused to turn in their grades on June 26. On June 29, a compromise was reached and each of the teachers exchanged the grades for paychecks, but they were not paid for the week of intersession. Also, none of the seven teachers was given a schedule for the next semester. Respondent contends that the drastic decline in enroll- ment36 from May 15 when it stood at 402 to July 2 33 Phillips Mfg Co, 148 NLRB 1420, 1431 (1964) 34 See also Viele & Sons, 227 NLRB 1940, 1950 (1977) 35 Donnola, Robertson, Sapp, Shalom, Schneider, Thomas, and Keen 36 See R Exh 24(a), supra at fn 19 PROGRAMMING & SYSTEMS' when it dropped-to 198 was the sole cause for the dis- charge of the 7 teachers. Kay credibly testified that Smith had been working on new schedules for several weeks in June and when the' schedules were finalized during the week of June 22 there were not enough stu- dents to provide classes for all the teachers in the next semester Respondent does not offer an explanation as to why it was those seven teachers who were discharged' and the General Counsel never asked Kay that question. The General Counsel contends that the record estab- lishes the union activities of the seven discharged teach- ers and that Respondent had knowledge'of those activi- ties. To support his contentions, the General Counsel cites (1) the April 30 letter composed by McGonagle and signed by about 20 teachers, including 6,of the discharg- ees,37 addressed to Kay protesting Temes' discharge, (2) the fact that many teachers signed union authorization cards at the tavern on May 1, (3) the two meetings on May 1 and 20 at which several teachers questioned Kay; (4) the student demonstration on May 21 witnessed by teachers observed by Smith; and Chinappi's reports to Smith. In addition, the General ' Counsel contends that the decreased enrollment did not justify the dischargees. In assessing both contentions, and from the 'evidence presented, I am convinced that despite the fact that Re= spondent has failed to offer an explanation as to why the particular seven teachers were chosen for discharge;' the decreased enrollment was the cause for the discharges. Moreover, the General Counsel has failed to successfully carry the burden of proof to establish that the seven dis- chargees were fired because of their union activities. These seven teachers were not in any way engaged' in such union activities as to differentiate them from other teachers similarly situated. The fact that six of them signed the April 30 letter is insignificant, so did about 15 others, there is no proof that Respondent had knowledge of the fact that these seven may have signed union au-' thorization cards, none of these seven teachers were'sin- gled out at the two meetings, except Robertson; by Aiken's testimony, Smith' s list of teachers who witnessed the student's demonstration on May 21 contained more names than those three mentioned by Aiken, and, as Aiken testified regarding Chinappi's report•to Smith, she could not remember if' Chinappi 'mentioned specific narnes of teachers. Under the circumstances,- I find that the General Counsel has not met his burden of proof re- garding the discharge on June 29 of these seven teachers and I shall therefore dismiss that allegation of the com- plaint 38 In addition, 'arid for the same reasons, I shall dismiss the 8(a)(4) allegation regarding Robertson. With' regard to Respondent's failure to pay the dis- chargees I week's intersession pay, I adopt Kay's uncon- troverted evidence that such pay is reserved only for those teachers who shall return for the forthcoming se- mester. On that basis, I reject the General Counsel's con- 31 Robertson did not sign the letter 38 During the hearing, Respondent moved to dismiss the above allega- tion specifically relating to Schneider, Thomas, and Keen on the grounds that none of these teachers testified at the hearing and therefore failed to state a prima facie case In light of my ruling above, the motion is grant- ed but not for the reason suggested by Respondent ' tention and I shall ' not order Respondent to make such payment. ' E. The Reduction of Escobar's Hours of Employment Miguel Escobar was a full-time student counselor who worked -a 45-hour week. In, addition, Escobar worked an additional 10 hours per week on Monday, Wednesday, and Thursday evenings. On June 29, Kay told Escobar that he would-not-be working evening hours anymore- because Respondent was cutting back on operating costs. Escobar's evening, duties were then ' taken over by Nar- cisse Mallary, an employee who started work at noon or thereafter, and, who worked during the 'evening hours. The only evidence elicited by the General Counsel re- garding Escobar's union activity was--that he was ap-- proached by Donnola in the latter part of March or early April during his lunch hour.' He was not asked if he signed a card or if he' attended any of the meetings referred to above. His name is not on the April 30 letter to Kay, nor is there any other mention of his name relat- ing to any union activity. 'The General Counsel relies' solely on two conversations that Escobar is alleged to have had with Kay on May 22, which are fully described above, and which are not even alleged to be violative of Section 8(a)(1) of the Act. In any event, I find that the reduction of Escobar's working hours was simply a cost- saving device which "enabled Respondent to pay one person, who 'was on 'duty anyway, rather than an two. Moreover, I find that the General Counsel did not offer one scintilla of evidence to establish an affinity between Escobar and union activity. I shall dismiss this allegation in the complaint. F. McGonagle's Discharge and Respondent's Failure to Pay Her Holiday Pay The credible evidence of record, as recited above, es- tablishes that Respondent discharged McGonagle on Jan- uary 4, 1982, because McGonagle was a union adherent and for no other reason. McGonagle impressed me as a frank and honest witness with a great ability to recall events long ' past and' I credit her testimony completely. By the same token, I. discredit Kay's lame attempt to put the blame on a dead person for McGonagle's ultimate discharge. Kay was the executive director with vast au- thority, and, if he were so anxious to retain McGonagle, he 'certainly could have arranged it. On the other hand, although McGonagle could have embellished her exit interview with Palmer: since he could not rebut her testi- mony, she merely stated that he could not tell her why she was being discharged. Her forthrightness was exem- plary. , Respondent admits quite readily that it was aware of McGonagle's desire to have a union represent Respond- ent's employees, but cites the fact' that this never inter- fered with their relationship, that she was permitted= to have the entire month' of July for vacation and that she had full-time schedules for 3 years. It suggests that the reason for her discharge must lie elsewhere,- and then comes up with the excuse that Palmer was restructuring the department. I am not persuaded.- - 1162, DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I find that McGonagle was discharged because of her union sympathies and for-no' other.reason, and that Respondent thereby violated Section 8(a)(3) and (1) of the Act. As for Respondent's failure to pay McGonagle holiday pay for Thanksgiving Day and the, day after, I find that here, too, Respondent discriminated against McGonagle because of her support for the Union. While it-is true that Respondent generally enforced its rule regarding holiday pay, it did make. an exception with two other teachers regarding the same Thanksgiving Day holiday, and I find no distinction between a teacher being absent on the day prior to a holiday and one being absent on the next workday. following- a holiday. As McGonagle stated, she would not even have asked for holiday pay except for the fact that others similarly situated were given holiday pay. Under the circumstances, and having already found that Respondent has. treated -McGonagle in a discrimina- tory manner- because of her union,activity, I make the same finding here and conclude that by refusing.to grant, McGonagle holiday pay, -Respondent has violated Sec- tion 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW - 1. The Respondent, Programming,& Systems, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)' of the Act. 2. The Union, Association of Public Service Workers, is a labor organization within the meaning of Section 2(5) of the Act., 3. Respondent, acting through its agents, violated Sec- tion 8(a)(1) of the Act by promulgating and enforcing an invalid no-distribution rule, by threatening employees with reprisals and discharge, and by engaging in illegal surveillance of employees, - all because the employees joined and assisted the Union for the purpose of collec- tive bargaining. - -4. Respondent violated Section 8(a)(3) and (1) of the Act by discharging- its, employees Judith Jorrisch and Sarah Green on May 20,-1981, and Mary McGonagle on January 4, 1982. 5. Respondent violated Section 8(a)(3) and (1) of the Act by refusing to grant Mary McGonagle 2 days' holi- day. pay. - . 6. Respondent did-not engage in any other unfair labor practices as alleged. 7. The unfair labor practices enumerated above are unfair labor practices affecting commerce within. the meaning of Section 2(6) and (7) of the Act. . THE REMEDY As Respondent has been found to have engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirm- ative action necessary to effectuate the policies of ,the Act. Having found that Respondent discriminatorily dis- charged Judith Jorrisch, Sarah Green, and Mary. Gona- gle, and refused to grant Mary McGonagle 2 days'. holi- day pay, I shall recommend that Respondent be required to make the employees- -whole for any loss of earnings they may have suffered as a result'of the discrimination against them. The loss of earnings shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as set forth in Florida Steel Corp., 231 NLRB 651 (1977) - On 'these findings of fact and' conclusions of law and on the entire record, I issue the following recommend- ed39 ORDER .The Respondent, Programming & Systems, Inc., New York, New York, its officers, agents, successors , and as- signs, shall 1. Cease and desist from - (a) Promulgating and enforcing an invalid no-distribu- tion rule. (b) Threatening employees with reprisals and dis- charge for engaging in union activities. (c) Engaging in illegal surveillance of employees' union activity. - (d) Discharging, employees because of their activities on behalf of and sympathies for the Union or any other labor organization. (e) Refusing to grant holiday pay to employees who support the Union. ,(f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. .2. Take the following affirmative action necessary, to effectuate the policies of the Act. (a) Offer to Judith Jorrisch, Sarah Green, and Mary McGonagle immediate and full reinstatement to their former positions,-without prejudice to their seniority or other rights. previously enjoyed, and make them whole for any loss, of pay or other benefits suffered by reason of the discrimination against them in the manner de- scribed above in the section entitled "The Remedy." (b) Pay Mary McGonagle for 2 days' holiday pay plus interest as set forth above in the section entitled "The Remedy." (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (d) Post at its New. York, New York place of business copies of the attached notice marked "Appendix."4° Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained 39 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules ' and Regulations, the findings, conclusions, and recommended Older 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 40 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the Untied States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " - PROGRAMMING & SYSTEMS 1163 for 60 consecutive days in conspicuous places including (e) Notify the Regional Director in writing within 20 all places where notices to employees are customarily days from the date of this Order what steps the Re- posted.. Reasonable steps shall be taken by the Respond- spondent has taken to comply. ent to ensure that the -notices are not altered, defaced, or covered by any other material.