Crispus Attucks Children'S Center, Inc.

CRISPUS ATTUCKS CHILDREN'S CENTER 815 Crispus Attucks Children's Center, Inc. and Gina Woods, and District 65, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Cases 1-CA-24992, 1- CA-25016, and 1-CA-.25062 September 25, 1990 DECISION AND ORDER BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT On December 30, 1988, Administrative Law Judge Howard I Grossman issued the attached de- cision 1 The Respondent filed exceptions and a sup- porting brief, and the General Counsel and the Union filed answering briefs 2 The National Labor Relations Board has delegat- ed its authonty in this proceedmg to a three- member panel The Board has considered the decision and the record in light of the exceptions and bnefs and has decided to affirm the judge's rulings, findmgs, 3 and 1 On January 17, 1989, the judge Issued an erratum 2 The General Counsel filed a motion to strike the Respondent's brief in support of its exceptions This motion is denied 3 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 Cu . 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent has further excepted to the judge's assertion of juris- diction over the Respondent We reject that exception A claim such as the one the Respondent now urges raises an Issue regarding the exercise of the Board's discretionary jurisdiction See Res-Care Inc , 280 NLRB 670 fn 1 (1986) Such an issue must be raised in a timely manner and we find that this issue, raised for the first time by the Respondent in its ex- ceptions, was not raised in a timely manner See Builders Distributors Sand & Gravel, 257 NLRB 347 fn 1 (1981) In adopting the judge's finding that the Respondent violated Sec 8(a)(5) by refusing to agree to the Union's request for more frequent and lengthier bargaining sessions on and after June 2, 1987, we rely particu- larly on the following findings by the judge The Union requested a "marathon bargaining session" on June 2, 1987, and the Respondent agreed "in principle" At the next session, on June 22, 1987, however, the Respondent stated that It did not understand the Union's request At the so-called marathon session on July 29, 1987, the Respondent's representa- tives arnved late and left early On September 2, 1987, the Union again requested longer and more frequent bargaining sessions, and the Re- spondent replied by blaming the Union Subsequent to the Union's June 2, 1987 request for longer and more frequent bargaining sessions, the par- ties met six times prior to October 20, 1987, a period of about 20 weeks Finally, prior to and during the period of June 2 to October 20, 1987, the Respondent had committed unfair labor practices, and during this period the Respondent supported the circulation of an antiunion petition Thus, in light of all the above, we adopt the judge's finding that the Respond- ent violated Sec 8(a)(5) by its refusal to agree to more frequent and lengthier bargaining sessions Under the circumstances of this case, Member Cracraft does not agree that the Respondent violated Sec 8(a)(5) by refusing to agree to more frequent and lengthier meetings The Respondent met at least six times in the 20 weeks after the Union requested more and longer meetings averag- ing one meeting every 3 weeks Although the Respondent did not fully participate in a "marathon" bargaining session to which the parties had agreed, this appears to be because the Respondent's negotiator for that session was suffering from a severe migraine headache Given these cir- cumstances, Member Cracraft is unwilling to conclude that the General conclusions and to adopt the recommended Order as modified 4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Cnspus Attucks Children's Center, Inc, Boston, Massachusetts, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 1(c), and re- letter the subsequent paragraph "(c) Withdrawing recognition from the Union, refusing to comply with the Union's requests for lengthier and more frequent bargaining sessions, failing to make economic proposals or counterpro- posals to the Union, refusing to bargain with the Union over distribution of wage upgrade moneys, and failing to supply the Union, on request, with accurate lists of employees with their addresses and home telephone numbers" 2 Substitute the attached notice for that of the administrative law judge Counsel has established that the Respondent engaged in the alleged bad- faith bargaining We agree with the judge that a broad cease-and-desist order is war- ranted here, but we do not rely on his basis for recommending such an order Rather, we have reviewed the Respondent's unfair labor practices and conclude that the Respondent "has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the em- ployees' fundamental statutory nghts " Ilickmott Foods, 242 NLRB 1357 (1979) In such circumstances, a broad cease-and-desist order is warrant- ed 4 We have modified the recommended Order and notice to include a cease-and-desist provision covenng the 8(aX5) violations found by the judge 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 Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these nghts 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 aid or pro- tection To choose not to engage in any of these protected concerted activities 299 NLRB No 133 816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT tell employees that they are being discharged because of their union activities, or that things are changing because of the Union and be- cause of employee involvement with the Union WE WILL NOT discourage membership in District 65, United Automobile, Aerospace and Agricultur- al Implement Workers of America, AFL-CIO or any other labor organization by discnmmatonly discharging or demoting employees, reducing their pay, discnmmatonly refusing to distribute wage upgrade moneys to them, or by discriminating against them in any other manner WE WILL NOT withdraw recogmition from the Union, refuse to comply with the Union's requests for lengthier and more frequent bargammg sessions, fail to make economic proposals or counterpropos- als to the Union, refuse to bargain with the Union over distribution of wage upgrade moneys, or fail to supply the Union, on request, with accurate lists of employees with their addresses and home tele- phone numbers WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed them under Section 7 of the Act WE WILL offer Gina Woods and Gerard Grimes full remstatement to their former positions, mclud- mg in the case of Grimes the dual positions of teacher and security manager, and make them whole with mterest for any losses they may have suffered because of our unlawful discipline of them WE WILL expunge from our personnel records all reference to our unlawful discipline of Gina Woods and Gerard Grimes, and inform them in writing that this action has been taken and that evi- dence of such discipline will not be used as a basis for future personnel actions against them WE WILL make whole all employees and former employees for interest they may have lost by reason of our discriminatory refusal to distribute wage upgrade moneys on June 22, 1987 WE WILL recognize the above-described Union as the exclusive bargammg representative of the employees in the following unit All full-time and regular part-time teachers, teacher's aides, assistant cook, dishwashers, bus drivers, bus monitors, maintenance employees, and temporary assistance employees employed by us at our Dorchester, Massachusetts facili- ty, but excluding other employees, head teach- ers, foster grandparents, secretary, computer operator, bookkeeper, head nurse, nurse social workers, social worker supervisor, social worker clerical, assistant education coordina- tor/head teachers, education coordmator, As- sistant Director, Administrative Assistant, Ex- ecutive Director, guards and supervisors as de- fined in the Act WE WILL on request bargain with the above-de- scribed Union, and if agreement is reached, reduce such agreement to writing We Will comply with Union requests for lengthier and more frequent bargaining sessions, make economic proposals and counterproposals, and supply the Umon with accu- rate lists of employees with addresses and home telephone numbers CRISPUS AITUCKS CHILDREN'S CENTER, INC Thomas J Morrison, Esq , for the General Counsel Norman Holtz and Gene Switzer, Esqs (Holtz & Gilman), of Boston, Massachusetts, for the Respondent Anthony W Neal, Esg (Boston Legal Services), of Boston, Massachusetts, for the Charging Party in Case 1-CA- 24992 Conrad Lower, Esq , of New York, New York, for the Charging Union in Cases 1-CA-25016 and 1-CA- 25062 DECISIONS STATEMENT OF THE CASE HOWARD I GROSSMAN, Administrative Law Judge The original charge in Case 1-CA-24992 was filed on October 1, 1987, by Gina Woods, an individual (Woods), a first amended charge on October 2, 1987, and a second amended charge on November 19, 1987 1 The original charge in Case 1-CA-25016 was filed on October 15 by District 65, United Automobile, Aerospace and Agricul- tural Implement Workers of America, AFL-CIO (the Union) and an amended charge on November 17 The original charge in Case 1-CA-25062 was filed on ,Octo- ber 30 by the Union, and an amended charge on Decem- ber 1 Complaint issued on January 13, 1988 As amended at the hearing, it alleged that Cnspus Attucks Children's Center, Inc (Respondent or CACC) violated Section 8(a)(1) of the National Labor Relations Act (the Act) in the spring of 1987 by telling an employee that things would not be the same now that the Union was in, and by a supervisor telling an employee on about April 2, that he believed she was being discharged because of her union activities The complaint further alleges that Respondent violat- ed Section 8(a)(3) of the Act by (1) removing or demot- ing employee Gerard Grimes (Grimes) from his work as a security person on or about May 15, by reducing his wages, and by discharging him on about June 12, be- cause of his union activities, (2) by discharging employ- ees Gina Woods on or about April 2 because of her union activities, and (3) by refusing to distribute to em- 1 All dates are in 1987 unless otherwise stated CRISPUS ATTUCKS CHILDREN'S CENTER 817 ployees since June 22 wage-upgrade moneys in its pos- session Finally, the amended complaint alleges that Respond- ent violated Section (a)(5) of the Act by (1) refusing on or about June 2 and thereafter to agree to the Union 5 requests for more frequent and lengthier bargaining ses- sions, (2) supplying the Union with maccurate lists of employees which failed to include information on em- ployees home telephone numbers and hours of work, (3) failing to provide to the Union any economic proposals or counterproposals since August 19, (4) refusing since June 22 to bargain with the Union over distnbution of, and to distribute to employees, wage-upgrade moneys, and (5) withdrawing recognition of the Umon on or about October 20 as the bargaining representative of its employees in the appropriate unit, and refusing to bar- gain with it over wages, hours, and other conditions of employment of the employees A hearing was held before me on these matters in Boston, Massachusetts, on 11 hearing days beginning April 25, 1988, and ending August 24, 1988 Thereafter, the General Counsel and the Charging Parties filed briefs, and the Respondent filed a brief, a revision there- of, an appendix thereto, and a revision of an exhibit On the entire record, and on my observation of the demean- or of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION The complaint and amended pleadings establish that Respondent is a corporation with a place of business in Dorchester, Massachusetts, where it is engaged in the operation of a daycare facility for children, serving mem- bers of the public During the calendar year ending 1987, Respondent derived gross revenues in excess of $1 mil- lion purchased and received at its Dorchester facility educational and child care supplies valued . in excess of $5000 directly from points outside the Commonwealth of Massachusetts, and received in excess of $50,000) of its revenues from Federal government-funded programs Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The pleadings establish that the Union is a labor orga- nization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Union's Certification and Other Proceedings Following the filing of a petition in Case 1-RC-18717, the Regional Director for Region 1, on July 29, 1986, issued a Decision and Direction of Election in a unit of Respondent's employees determined to be appropriate 2 2 The appropriate unit Included all full-time and regular part-time teachers, teacher's suds, assistant cook, dishwashers, bus drivers, bus mon- itors, maintenance employees, and temporary assistance employees em- ployed by Respondent at its Dorchester, Massachusetts facility, but ex- cluding all other employees, head teachers, foster grandparents, secre- tary, computer operator, bookkeeper, nurse, social workers, social worker supervisor, social worker clerical, assistant education coordi- The Employer (Respondent) filed a motion for reconsid- eration which was denied by the Regional Director on August 25, 1986, and an unfair labor practice charge against the Union in Case 1-CB-6496 which was dis- missed by the Regional Director on October 6,' 1986 3 A Board election was conducted on August 27,. 1986 There were approximately 35 eligible voters, of whom 23 cast votes for the Petitioner (Union) 4 cast votes against the Petitioner, with 5 challenged ballots Follow- ing the Employer's filing of objections to the election, the Regional Director on October 7, 1986, overruled the objections and issued a certification of the Union in the above-described unit 4 Following the Employer's request for review, the Board on December 18, 1986, denied same 5 Meanwhile, the Union filed an unfair labor practice charge against Respondent, and complaint issued in Case 1-CA-24021 on November 7, 1986 6 These matters were resolved by the parties, and bargaining began in Decem- ber 1986, as more fully described hereinafter B The Alleged Discrimination Against Woods and Grimes, and Alleged Independent Violations of Section 8(a)(1) 1 The alleged discrimination against Woods and violation of Section 8(a)(1) a Characteristics of Respondent's buildings The circumstances underlying Woods' alleged unlaw- ful discharge involve 'events which assertedly took place within a hallway inside one of Respondent's two build- ings, and outside., the building The addresses of the buildings are 101 and 105 Crawford Streets, and they are separated by a large parking lot The entrances to the buildings face the parking lots not Crawford Street or the adjacent Humbolt Street Each building has class- rooms and administrative offices Most of the administra- tive offices, including that of Executive Director Lesley Christian, are located in the 105 Crawford Street build- ing This building has a hallway about 30 feet long and 4 to 5 feet wide, with a classroom at one end, other class- rooms, a jungle gym, and a door at the other end leading to the parking lot The hallway has benches against the wall, about 8-10 feet long As one enters the building into the hall, the administrative area is on the right near the door This area has a receptionist's desk about waist high, a telephone behind it, and a timeclock Part of the hallway is visible from this point, but not the end oppo- site the door leading to the parking lot The latter is visi- ble from the receptionist's desk nator/head teacher, education coordinator, Assistant Director, Adminis- trative Assistant, Executive Director, guards and supervisors as defined m the Act The Regional Director, inter atm, concluded that the head teachers were supervisors within the meaning of the Act (G C Exh 54) 3 G C Exh 55 G C Exh 56 5 G C Exh 57 G C Exh 26 818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD b. Gina Woods' employment and subsequent union activities Woods was interviewed and hired in January 1987 by George Joseph, education coordinator. 7 Woods was a teacher. Her hours were from 3 to 6 p.m., and because of this fact she was classified as a "temporary assistance" employee.8 Woods was qualified to teach 3- and 4-year- old children. She testified that during the employment interview she requested work with younger children but that Joseph replied she was only qualified to work with older students. Joseph testified that Woods was hired to work with 3-year-old children but that it was understood that she would have to work with others if circum- stances required it. Woods was initially assigned to work with 3-year-old children in a classroom designated as "Squirrels I." She testified that this was a "permanent" assignment. There was a head teacher and a teacher's aide and it took Woods about a week to become familiar with the children. About a month or a month and a half after her initial employment, Woods had a conversation with Gerard Grimes, who asked her to attend a union meeting. Woods did so and signed a union card. Thereafter, she was an "observer" at several bargaining sessions between the Union and CACC. Although she did not speak at the sessions, she attended union caucuses at which she was asked to express her opinion. Union Representative Kathleen Kemmer asked Woods to check on employee pay rates and the names of employees. Woods attempted to get this information from employees, and some of them responded. According to Woods' uncontradicted testimony, about 2 or 3 weeks after her first attendance at a bargaining session, Education Coordinator Joseph told Woods that she was not supposed to be talking to employees about their pay rates during working hours. A day or two later, Joseph told Woods that he had advised union activist Grimes and another employee that they were not supposed to be talking to employees during working hours.8 On Woods' second day of work, during her assign- ment to "Squirrels I," she saw a teacher in another class- room, Christine Brooks, hit a child and "slam" his head on a mat. Woods reported this to her own head teacher, Shelia Bid, who replied that she knew it and had report- ed it to Education Coordinator Joseph, but that "nothing ever happened."1° About a 1-1/2 to 2 months after her initial employ- ment, Woods was assigned as a "floater" to various classrooms. One of them was Brooks' classroom desig- nated as "Chickadees" with children 15 months to 2 years of age. Woods testified on cross-examination that she saw Brooks "press the back of a little girl (Stephanie Kelly) into a radiator,"Il and that the child was in pain. 7 The pleadings establish that George Joseph was a supervisor and agent of Respondent within the meaning of the Act. 8 Supra, fn. 2. ° As more fully described hereinafter Respondent permitted the circu- lation of an antiunion petition during working hours. 10 Woods testimony was elicited on cross-examination. 1 The radiator was not emitting heat at the time. Woods protested to Brooks and to Education Coordina- tor Joseph. The latter replied that Brooks was "under a lot of pressure" and that this was the reason he had as- 'signed Woods to that classroom. On another occasion Woods reported to Joseph that Brooks became "mad" at a child named Arelis and that the child's mother and grandmother saw Brooks "fling the child." 2 Joseph replied that the mother and grand- mother were "over reacting." Woods told Joseph that she did not want to work with Brooks anymore. None- theless she was again assigned to the Chickadees class- room over her protest and was discharged a few days later, on April 2. c. The circumstances leading to Woods' discharge (1) Summary of the evidence Christine Brooks' work schedule was from 9 a.m. to 3 p.m. Woods and a teacher's aide, Renee Douglas, arrived at 3 p.m. Both remained until 6 p.m., the official closing hour of the school. On March 30, Woods and Douglas were taking care of the children after Brooks departure at 3 p.m. There were about 18-20 children in the classroom at that time. Since Woods had not acquired sufficient familiarity with the children or their parents during her former assignment to Chickadees, she followed the lead of Douglas. The latter was called elsewhere at or about 5 p.m. and thereafter returned. The practice at that time was to take the chil- dren into the hallway shortly before 6 p.m. to await the arrival of their parents. Douglas told Woods to put on the children's "pampers" and other clothing for this pur- pose. Woods and Douglas then seated the children on one of the benches in the hallway, at the end opposite the outside door. Woods was positioned directly opposite the bench where the Chickadees children were seated. She testified that she "turned around" at about 5:45 or 5:50 p.m., and that Renee Douglas "wasn't anywhere to be found." Woods denied that Douglas or anybody else said anything to her about Douglas leaving early. Doug- las did not testify. There were about 8-10 children from the Chickadees classroom left in the hallway, and about 15 children from other classrooms. About four or five CACC staff mem- bers were also in the hallway. Parents were arriving and leaving with their children. The traffic was heavy, and children were running up and down the hallway. Woods testified that the mother of a child named Lance Huff approached her a little later and asked her whether she had noticed that Lance had "got out." Woods replied that she had not noticed this, and apologized "repeated- ly." "I'm sorry, I'm sorry," Woods told the child's mother, according to her testimony. When the mother continued "arguing and yelling," Woods told her that she could report the matter to Education Coordinator Joseph in the morning. Deborah Huff testified that she had 2 children enrolled in the school—Lance, 1 year old, and an older boy en- rolled in the afterschool program in the other building. 12 This incident is described more fully hereinafter. CRISPUS ATTUCKS CHILDREN'S CENTER 819 According to Huff, Lance had been in the Bluebirds classroom for 6 months and in other classrooms prior to that time. As noted, Woods testified that she was as- signed to the Chickadees classroom at the time of the in- cident, that Christine Brooks was the teacher and Renee Douglas the teacher's aide. Woods was partially cor- roborated by Education Coordinator Joseph, who testi- fied that Lance was either in the Chickadees or Tadpoles classroom, in the latter of which Anthony Lawson was the teacher's aide. According to Joseph, Woods, who was "floating," would help the permanently assigned teacher's aides, either Douglas with the Chickadees or Lawson with the Tadpoles. These two classrooms were occasionally combined. Huff nonetheless maintained that Lance was in the Bluebirds classroom, that the head teacher was Robin Nelson, and the teacher Robin Morse. In addition according to Huff, the Bluebirds had two teacher's aides "Diane" and "Rachel." Education Coor- dinator Joseph confirmed that Robin Morse was a teach- er in the Bluebirds classroom, and that she was the "late" teacher responsible for children not picked up by 6 p.m. Respondent attributed responsibility for the inci- dent on March to Woods and not to Morse, the "late" teacher. According to Huff, she and her husband arrived at the school on the evening of March 30. As they drove up, Huff saw Lance and a woman walking across the grass outside the building. They were not in the parking lot. Huff approached them, and the woman assertedly said that Lance was almost hit by a car, and that she was taking him back inside. Huff took charge of her son, and walked into the building. The administrative office was immediately on her right, with several adults possibly in that area, and "three ladies" sitting down. Huff testified that there were "about" four children, although she was "so upset" that she could not remember. She walked to the classroom, but it was dark. She asked one of the ladies, "Who is supposed to be watching the Bluebirds?" A woman whom Huff did not recognize said that she was the teacher. The witness testified that she did not recognize the name "Gina Woods." Huff did not remem- ber whether anybody told her that the "regular Blue- birds aide," whom Huff identified as "Diane," had disap- peared. According to Huff, the woman who did speak to her said that she "had gotten up for a second" and Lance was "down there on the bench." Huff stated that this woman was "nonchalant," and resumed a conversa- tion with another lady. The witness asserted that she de- cided not to "cause a scene," and left with Lance and her husband to pick up her other son. The evidence on the time of these events is also con- flicting. Huff testified that it was "right before 6 P.M." The witness testified "I don't know why—I was kind of looking out the door and looking at the timeclock and it was 5:55," She also contended that she arrived at the other building to pick up the older boy about a minute before it closed at 6 p.m. Gina Woods' timecard for this date shows that it was clocked out at 5:58 p.m." Woods testified that her 13 R. Exh. 19 and stipulation of the parties. friend, Robin, Nelson, regularly arrived at the same time as Woods. Employees were required to sign in as well as punch the timeclock, according to Woods she and Nelson sometimes did this for one another, with supervi- sory knowledge thereof and without criticism." Woods initially testified that either she or Robin Nelson punched out Wood's timecard that she later checked the card and that it read "about" 6:05 p.m. In later testimony Woods expressed doubt that she herself had punched cut her own card. She averred that there was a clock on the wall in addition to the timeclock and that the latter was about 3 minutes slower than the wall clock. Other employees including Gerard Grimes and Robin Nelson had pointed out this time difference to her. On some occasions Woods used the time indicated by her wrist watch. In any event Woods testified that the conversation with the woman who identified herself as Lance's mother took place after 6 p.m. She was certain of this because her friend Robin Morse, who was respon- sible for children after 6 p.m., entered the building just as Huff—who had been there about 2 minutes—was leav- ing. Morse looked at the clock which then read 6:08 or 6:10 p.m. and said that she was responsible and would speak with the child's mother in the morning. Contrary to Huff's testimony, Woods stated that there were no other children in the hallway when Huff entered. She further identified the woman who picked up Lance as the wife of the CACC receptionist (Bob Evans). Accord- ing to Woods, Evans was present during the conversa- tion between Woods and Huff. Woods further testified that she actually left at or about 6:20 or 6:30 p.m., be- cause she had a ride with Robin Nelson's aunt. Huff called the school the next day, March 31, and spoke to a social worker. Huff expressed her complaint, and the social worker replied that she would notify Social Services Supervisor Nancy Stewart." Stewart re- turned the call within 20 minutes, and, after hearing the complaint, said that the school would investigate and get back to Huff. Stewart testified that Huff reported to her that after Huff had demanded the identity of the teacher the night before, "Gina" told Huff that it was she. Ac- cording to Stewart Huff reported that "Gina" was behind the front desk on the phone when Huff entered the building but back on the bench when Huff returned from the darkened classroom." Stewart claimed that Huff also reported her reasons for believing that the events took place before 6 p.m., in- cluding Huff's desire to avoid any late fee for picking up a child after 6 p.m. Stewart further averred that Huff 14 Respondent stated at the hearing that it was not suggesting any ir- regularity in Woods' signing in or punching the timeclock. 15 The pleadings establish that Nancy Stewart was a supervisor and an agent of Respondent within the meaning of the Act. 15 There is no evidence of this in Huff's testimony. She testified that the "teacher who identified herself as the Bluebirds teacher" was sitting across from the lady who brought Lance in. This corroborates Woods' testimony that Evans was present during the conversation between Woods and Huff. Huff was asked on cross-examination whether the "Bluebirds" teacher was immediately adjacent to the outside door— where the phone was located or sitting at the other end of the hall when Huff entered the building. Huff's answer was not responsive. She testified merely that she "passed them" on the way to the classroom Woods denied going to the office 820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was upset with Woods' "attitude," although Stewart could not recall exactly what Huff said about this. Stew- art reported the matter to Executive Director Lesley Christian, Assistant Director Donald Crowe, and Educa- tion Coordinator George Joseph. Woods reported for work on the afternoon of the same day that Huff spoke with Nancy Stewart on March 31. Immediately after punching in, Woods went to Edu- cation Coordinator George Joseph and reported "what had happened." She also repeated her desire not to be re- assigned to the Chickadees classroom. According to Woods, Joseph told her not to let it happen again and that he was going to speak to Robin Morse and Renee Douglas to verify the incident. Joseph testified that he did have a conversation with Woods on Tuesday, March 31. He contended that Woods told him that she had gone into the office for a minute, but did not tell him the reason for this asserted visit. As noted, Woods denied that she went into the office. According to Joseph, Woods did not specify the time that this took place. After this description of his conversation with Woods on March 31 Joseph testified: "[A]fter I spoke with her I called Lance Huff's mother, and I spoke with. . . . Bob something's wife" (Bob Evans' wife, who had picked up the child). However, Huff testified at the hearing that she spoke with Joseph after Woods had been discharged (April 2), probably during the following week, and that Joseph sent her a letter of apology. Huff also testified that Social Services Supervisor Stewart called a second time, after their telephone conversation on March 31, and asked her to come in and sign a statement. Huff did so. It was Stewart who informed Huff that Woods had been discharged. Huff expressed her regrets and believed that a reprimand would have been sufficient. Although Huff was uncertain about the date of her visit to Nancy Stewart, it apparently took place prior to her conversa- tion with Joseph, but subsequent to Woods' discharge on April 2. Continuing with Joseph's version of these events, after he talked to Huff and Bob Evans' wife, Robin Morse "pulled him aside" and said that it was her fault. Joseph asked Morse how it was her fault, and Morse replied that she should have been watching the children. Joseph replied that it was not her fault, because his "informa- tion" showed that the event took place before 6 p.m. Morse replied, "Oh." According to Joseph's further investigation, Renee Douglas left at 5:45 p.m. Joseph testified that he himself had not authorized Douglas to leave early. He asserted that he 4uestioned Douglas, and that she claimed to have received permission to leave from Gina Woods. As noted, Woods denied any such conversation with Doug- las. Joseph allegedly told Douglas that she needed higher authority to leave early, and contended that he gave her a warning which was reduced to writing. Executive Di- rector Lesley Christian, 17 on the contrary, testified that 17 The pleadings establish that Lesley Christian was an agent of Re- spondent within the meaning of the Act. Douglas was not disciplined because she "told the super- vising teacher, who was Gina Woods, that she wanted to leave early, and Gina said, 'Oh, O.K." As noted, Woods denied any such conversation with Douglas, and the latter did not testify. A few days after the March 30 incident, Education Coordinator Joseph issued a memorandum to staff dis- continuing the practice of bringing children into the hall- way before 6 p.m., and changed his own hours so as to be there at that time. He testified that he had not known of the practice prior to the March 30 incident. Executive Director Lesley Christian testified that she heard about the incident the next morning, and ordered an investigation. In addition, Christian contended she overheard a conversation which Woods had with other staff members. This conversation assertedly took place at the public phone near the receptionist's desk, which is in front of Christian's office. The exact time and date are not specified. Christian claimed that she overheard Woods say: "Can you believe it? I just left the kid for a minute. I don't know what the big deal is anyway." Woods was "furious" according to Christian. Although Woods' conduct was a violation of "one of the basic rules of the Center," that children are not to be left unat- tended, Christian said nothing to Woods at the time. No CACC staff member was called to testify about Woods' alleged statements. On April 1 or 2, Christian met with and received re- ports from various supervisors. Assistant Director Crowe reported that the "secretarial/receptionist staff" verified Huff's story, including the fact that the event took place 10 minutes before 6 p.m. Christian discussed Woods' as- serted conversation with staff members, which Christian overheard. Nancy Stewart reported Huff's "indignation." Joseph stated that Woods had admitted going into the office for a minute and leaving the child unattended. The decision was then made to terminate Woods. Christian did not speak to her directly. When Woods reported for work on April 2, she had a conversation with Grimes, who told her that she was going to be fired. Woods went to Joseph's office and had a 15-minute conversation with him. According to Woods, Joseph said that she had been doing a good job but that he had to let her go because of the "incident." Woods responded that Joseph had already given her a verbal warning. Joseph replied that if it were up to him, he would not terminate her, but "Lesley (Christian) insi- sisted." Joseph added that Woods could "file charges" against Christian. Woods said that she intended to do so because the reason for the discharge was her union ac- tivities. According to Woods' testimony on direct exami- nation Joseph replied, "Off the record," this is probably so. I believe that's what happened." He stated that if Christian "didn't do this that and the other, we wouldn't have to have a union if she paid us the money."" On cross-examination, Woods testified that Joseph told her she had been terminated because of her union activities, and that he would deny it if the issue was raised. 18 Joseph's asserted statement is an apparent reference to the dispute over distribution of parity money, discussed infra. CRISPUS ATTUCKS CHILDREN'S CENTER 821 Joseph agreed that he had a conversation with Woods on April 2 On direct examination, he testified that he said he was sorry but had to let her go "If the decision was totally mine," Joseph told Woods, "I might not have made this decision, but it wasn't " Joseph denied that he told Woods that the termination was because of Woods' union activities On cross-examination, Joseph said at one point that he told Woods, "[I]t is totally my decision," and that it had been agreed that she was to be let go Joseph testified that he believed Woods had not been paying attention to the children—based on her as- serted admission that she got up—but that he had not recommended that she be discharged On cross-examination, Respondent elicited testimony from Woods about a meeting which she had with Union Representative Kathleen Kemmer, Executive Director Christian, and Education Coordinator Joseph This meet- ing took place in Respondent's conference room about a week after the discharge Woods testified that she was not allowed to tell her side of the story Whenever she "started a sentence, George (Joseph) is sitting there shak- ing his head, saying "No, no, that's not true" When Woods at this conference repeated what Joseph had said to her during the exit interview, Joseph "sat there and denied everything like he said he was going to do" Woods denied telling the participants at this meeting that she left the children unattended for a minute or two and denied going to the office or using the telephone She af- firmed that she remained with the children until the last one was picked up Woods was the only witness who testified about this conference (2) Factual analysis It is obvious that Lance Huff was assigned to the Chickadees classroom and not to the Bluebirds as Huff contended Woods' testimony to this effect is partially corroborated by Education Coordinator Joseph Huff's testimony on this point and her identification of the Blue- bird teachers as Lance's teachers are erroneous Al- though Woods was classified as a "teacher" and Douglas as a "teacher's aide," Douglas was permanently assigned to the Chickadees, while Woods was a "floater" Doug- las knew the students and their parents, while Woods was relatively unfamiliar with them Gina Woods was the only witness at the hearing as to what took place in the few minutes in the hallway before Huff arrived Woods was a truthful witness and I credit her testimony that Renee Douglas left without notice before 6 p m Douglas was not called as a witness and I reject Respondent's hearsay evidence that Douglas stated she had received such permission from Woods The only two witnesses at the hearing as to the events which took place in the hallway thereafter were Gina Woods and Deborah Huff Bob Evans' Wife, who had actually picked up the child and who was present when Huff spoke with Gina Woods, was not called as a wit- ness Nor were any of the staff members then present called as a witness The principal issue is whether Woods left the children momentarily unattended by going into the office or using the telephone Woods' testimony that she did not do so is uncontradicted Although Huff came into the hallway some time after Woods and Douglas entered it with the children, her testimony did not place Woods near the telephone and Huff was not responsive to a question on this issue asked on cross-examination I credit the testi- mony of Woods, a truthful witness, that she did not leave the children unattended I shall consider later her alleged admissions that she did so Although Huff testified about Woods' asserted "non- chalant" attitude, her testimony about the classroom and teachers to which Lance was assigned demonstrates that she was a confused or mistaken witness about some of the relevant events In addition, she admitted that she was "upset" Accordingly I credit Woods' testimony that she apologized to Huff Although Woods' timecard shows that someone clocked it out at 5 58 pm on the evening in question this is not determinative as to the time of these events Woods' testimony that Robin Nelson occasionally punched out Woods' timecard without supervisory ob- jection is undisputed Although Woods stated that the timecard showed that it was punched out at "about" 605 p m contrary to the actual time of 5 58, Woods never stated unequivocally that it was she who punched out the card and as indicated her belief about the time was an approximation Woods' testimony that the timeclock was about 2 minutes slower than the wall clock, and that other employees pointed this out to her is also uncontra- dieted. Although Huff contended that the "clock" showed 5 55 pm Woods stated that it indicated 608 or 6 10 p m when Robin Morse entered just as Huff was leaving Woods' testimony that Morse looked at the clock and said that she was responsible for the incident is uncontradicted Morse an important witness in this dis- pute was not called to testify Nor was Evans nor any of the other staff members present Woods' testimony that she actually left at 620 or 6 30 p m is also undisputed The matter thus comes down to the opposing testimo- nies of Gina Woods and Deborah Huff By her own tes- timony Huff could not remember everything because she was "upset" In addition, she did not know the classroom to which her son was assigned nor the names of his teachers Nor did she know the name "Gina Woods" In short Huff was a less reliable witness than Gina Woods, who was truthful Woods' approximation of the time in- dicated by her timecard was about 7 minutes late, but her testimony was otherwise reliable Although the issue is a close one, I conclude on balance that the events in question probably took place at or about 6 p m or short- ly thereafter With respect to Respondent's "investigation" which began the next day I reject Nancy Stewart's testimony that Huff reported to her that "Gina" had been behind the front desk on the phone the prior evening There is nothing in Huff's own testimony to indicate this, and she did not recognize Gina Woods' name at the hearing It is clear that Woods did have a conversation with Joseph on March 31 I credit her testimony that she told him what had happened, and that he replied he would check with Robin Morse and Renee Douglas after telling Woods not to let it happen again I reject Joseph's testi- mony that Woods told him she had gone into the office 822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for a minute Woods denied making any such statement at the conference with Joseph and Christian a week after her discharge and Woods was a more truthful witness than Joseph I reject Chnstian's testimony that she overheard Woods making essentially the same statement to staff personnel Why were some of these individuals called to testify as to what Woods said to them ? Christian con- tended that Woods was "furious" over the "big deal" Respondent was making over the incident Christian was not specific about the time and date of this allegedly overheard conversation, but it could not have taken place subsequent to Woods' discharge on April 2, since Christian advanced it as one of the reasons for the dis- charge dunng her conference with other supervisors But Respondent did not make any "big deal" about the inci- dent prior to the discharge Joseph merely told Woods on March 31 not to let it happen agam Woods was un- aware that anything was going on until Grimes told her when she reported for work on Apnl 2 that she was going to be fired Why then would she have been previ- ously "furious" over the "big deal" Respondent was making of the incident, as Christian claimed she was Be- cause of this improbability because of the failure to call the witnesses to the asserted overheard conversation be- cause of Woods' denial at the conference and because I consider Christian to have been an unreliable witness, I reject her testimony about that conversation I reject George Joseph's testimony that he spoke with Huff after speaking with Gina Woods on March 31 Huff asserted that she did not speak with Joseph until after Woods' discharge (on April 2, a Thursday) probably not until the following week The evidence shows that Joseph did not speak with Robin Morse until after Woods' termination Thus, Joseph testified that he spoke with Morse after he had spoke with Huff and this did not take place until after Woods had been discharged Morse's testimony was cru- cial on the issue of the time of the events and the respon- sibility therefor Joseph in fact did not even seek out Morse but was "pulled aside" by her after he had made his own factual determination When Morse suggested a different factual pattern, Joseph simply rejected it I find that Respondent made an inadequate and incomplete in- vestigation of the events upon which it based the deci- sion to discharge Woods Finally, Woods' version of the exit interview with Joseph is more believable than Joseph's In making this assessment, I have considered the fact that Joseph was no longer employed by CACC at the time of his testimo- ny Although Woods affirmed and Joseph denied that he said Woods' discharge was because of her union activi- ties, Woods was a more truthful and reliable witness than Joseph The reference to the parity money dispute attrib- uted by Woods to Joseph adds verisimilitude to her testi- mony Joseph was inconsistent on whether the discharge decision was his decision, manifested lack of recall in re- sponse to other questions, and testified affirmatively to events which did not happen As indicated, Woods testi- fied without contradiction on cross-examination that at the conference a week after her discharge Joseph denied the statements he had made during the exit interview "like he said he was going to do" In addition to this as- sessment of the relative credibility of Woods and Joseph, there is evidence of Respondent's basic opposition to the Union Thus, Executive Director Christian testified that she told staff personnel at meetings in 1987 that she was opposed to the Union, while the Board, in its denial of Respondent's request for review of the Regional Direc- tor's Supplemental Decision and Certification of Repre- sentative stated that "the Employer's opposition to union organization was well publicized among employ- ees "19 The existence of Respondent's opposition to the Union makes it more probable that Joseph would have made the statement attributed to him by Woods Based therefore on the fact that Woods was a more reli- able witness than Joseph and on the fact that the Re- spondent opposed the Union, I find that Education Coor- dinator Joseph told Gina Woods on April 2, 1987, that she was being discharged because of her union activities 2 The alleged discrimination against Gerard Grimes and additional independent violation of Section 8(a)(1) a Grimes' employment history and subsequent union activities Grimes was hired as a teacher's aide in June 1978, and became a teacher in October of that year He was also appointed a security manager In the latter capacity, his job was to lock and check doors and windows in the evening and set the alarm On weekends, he opened the buildings for maintenance personnel Grimes was elected a shop steward for the Union in late 1986, and was designated as a member of the Union's bargaining team He attended the first three bar- gaining sessions, and several thereafter As indicated, he solicited Gina Woods to become a union member b Alleged independent violation of Section 8(a)(1) Grimes testified that in late April or early May he no- ticed crumbs and dried up liquid on the children's work tables and on the floor when he arrived m the morning Christian's children were in the classroom at the time, to- gether with the regular students According to Grimes, the children of board members sometimes came to CACC when there was a board meeting Grimes cleaned up and then, in the classroom, asked Christian to request her children to clean up after themselves Grimes testi- fied that Christian raised her voice and said, "Well, I can have my lads sit down at any table—any part of the building they want and they can eat wherever they want in the building because I'm the Director" Grimes attempted to get Christian out of the class- room so that the children would not hear her "yelling" at him Later in the afternoon he met her in the hall and said that this was the first time she had raised her voice at him in the 4 years that she had been director Chris- tian assertedly replied, "Well, things are changing be- cause of the Union You know, your involvement with the Union and the Union being " Grimes asked wheth- 19 G C Exh 57 CRISPUS ATTUCKS CHILDREN'S CENTER 823 er she could distinguish between professional and person- al relationships "No," Christian allegedly replied, "be- cause things will be changing" Christian denied that she ever raised her voice to any employee in the bargaining unit Asked whether she ever told an employee that things would not be the same for him or others because the Union was in, Christian re- plied, "No" Asked whether she ever said this to any- body, Christian replied, "No, I did not" I credit Grimes' testimony It was specific, with a de- tailed description of the location time, and circumstances surrounding the conversation In contrast, Christian's tes- timony consisted of a few short denials to leading ques- tions, and did not address the issue of whether she ever had a conversation with Grimes concerning debris in a classroom or concerning her own children In addition, Grimes appeared to be a more truthful witness than Christian Accordmgly, I find that in late April or early May 1987, Christian told Grimes that things would be changing because the Union was in and because of Grimes' involvement with it c Alleged demotion of Grimes and reduction of pay Grimes testified that he had a meeting on May 15, with Executive Director Christian and Assistant Director Crowe Union Representative Bill Fletcher was present According to Grimes, Christian said that she had reser- vations about his being the security manager because of his involvement with the Union This was the first time Christian had discussed the matter since Grimes became a union steward Accordingly, he was required to relin- quish his keys and his position as security manager, and was to remain solely as a teacher His pay would be changed from a salary to an hourly rate Grimes protest- ed at this meeting that he would suffer a reduction in pay of about $60 every 2 weeks This change was memo- rialized in a subsequent memorandum from Christian to Grimes 20 Christian testified that CACC became concerned about Grimes' functions as security manager at about the time he was announced to be a union steward, in late 1986 Christian averred that that there was a "struggle" ovei this issue within the CACC bargammg team, which she characterized as a "subgroup" of the full board of direc- tors It was believed that Grimes' function as a union steward would "compromise" his position as security manager Christian asserted that certain "papers" were missing just before bargaining negotiations began but that she started locking up her papers, and thereafter did not miss them Although Grimes had keys to the offices, he did not have keys to Christian's desk or files These as- serted problems were not brought to the attention of the full board of directors In the spring of 1987, Christian assigned Assistant Director Donald Crowe the task of examining Grimes' qualifications as a security manager There is no evidence that the alleged missing documents or Grimes' qualifications were discussed at the May 15 meeting with Grimes, other than the asserted conflict be- cause of his position as a union steward d Grimes' discharge (1) Grimes' teaching assignments, CACC procedure with unruly children, Grimes' utilization of this procedure, and the background of Quinton Sanders CACC had a rule prohibiting corporal pumshment of children or abusive language directed toward them If a child became disruptive to the extent that the teacher could not handle him, the teacher sought assistance from another teacher or took the child to Social Services Su- pervisor Nancy Stewart If Stewart could not correct the situation the child's parents would be contacted In some instances, the child would be suspended from school Grimes was a teacher in one of two adjoining class- rooms designated as Rabbits I and Rabbits II Prior to November 1986, he was assigned to Rabbits II, where there were two teachers and a foster grandmother Rab- bits I had one teacher, who resigned in or about Novem- ber 1986 Grimes was then assigned to Rabbits I Al- though there were fewer children in this class, there was no other teacher, and Grimes requested help from Edu- cation Coordinator Joseph He did not get a teacher's aide until mid-May 1987 Grimes testified that he was under some stress in early 1987 because of factors in his personal life and his in- volvement with the Union He began to raise his voice a bit with the children His head teacher, Ironme Hyatt suggested that he "lighten up" and Joseph suggested that he take time off Grimes declmed although he acknowl- edged that the comments were justified He believed that he could handle matters Grimes agreed that he took children to social services more frequently after his as- signment to Rabbits I than he did previously, but denied that his personal problems had anything to do with this change Rather it was caused by the fact that the chil- dren in Rabbits I were somewhat younger than those in Rabbits II In addition, Grimes averred that the fact that he was the only teacher in the classroom induced the children to "act up" more frequently One of the children taken to social services by Grimes was Quinton Sanders, age 5 Grimes characterized Sand- ers as an uncontrollable "problem child" with a short at- tention span, an inability to sit down for long, a propen- sity to whine easily, and a habit of hitting other children Grimes had to take him to social services 9 or 10 times Grimes had previously spoken with Quinton's mother, who came to CACC in late May upset because Quinton was doing the same thmg at home She asked Grimes to write her a letter if he had any more trouble with Quin- ton There was some evidence that Quinton had been classified as a "child at risk" by the Commonwealth De- partment of Social Services because of adverse environ- mental factors at home On May 22, Social Services Su- pervisor Nancy Stewart suspended Quinton for 1 day with a letter to his mother describing "disturbing" be- havior and the ineffectiveness of "repeated reprimands by the teacher "21 A report prepared by a consulting 2° G C Exh 2 21 G C Exh 41 824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD psychologist, dated June 4, 1987-5 days before the inci- dent which led to Grimes' discharge—states the teacher's (Grimes) observation that the child refused to follow in- structions, was disruptive, cned easily, and had tantrums The psychologist saw Quinton cry "after (being) pulled from the classroom," but observed that he was coopera- tive on another occasion Various steps including a family conference were recommended 22 There was an- other psychological evaluation an August 6, 1987, after Grimes had been discharged The evaluation notes that Quinton was then in the "Rabbits" classroom (at CACC) He had been referred for rolling on the floor re- fusal to follow instructions, fighting, and "cognitive delay" It was noted that the child "has not been in at- tendance at the Center for approximately 1 month," and recommended that he be placed in a regular public school although he may "tend to act out periodically "23 (2) The events of June 9 The only eyewitness of the events that transpired in Grimes' classroom on June 9 who testified at the unfair labor practice hearing in this case was Grimes himself He arrived at 645 a m, his usual time, and went into the Rabbits II classroom where he was in charge of all the children until the Rabbits II teachers arrived about 7 or 730 a in He then went to his own classroom, Rabbit I, with about 12 children His newly appointed teacher's aide, Kathy Norton, was there The first activities in- volved singing, but Quinton Sanders did not participate Instead, he started throwing pillows Grimes ignored him as he had done previously He then took the children outside because it was a nice day They later came back, Norton left for the day, and Grimes set up the table for lunch and served lunch to the children Quinton pushed his plate away, went to a window baseboard, and started throwing pillows again in the di- rection of a child Grimes told Quinton that they were going to social services and Quinton started to whine, said that he did not want to go, and walked away from Grimes The latter picked up Quinton and took a few steps but Quinton wiggled away onto the floor Grimes who is left-handed bent down with his right arm under Quinton's body He testified "As my right hand was coming up with his body my left hand accidentally pushed the back of his head as he was going up" In other testimony Grimes used the verb "hit" in lieu of the verb "pushed" Quinton started "crying louder" Grimes testified that "the [other] children were just looking at Quinton and myself" Grimes then went to the adjacent classroom, Rabbits II, and asked teacher Eddit Vaughn to watch his class- room while he took Quinton to social services During this conversation with Vaughn, Grimes had his nght arm around Qumton's body Quinton was crying and whin- ing Grimes then carried him out the Rabbits H door, put him down, took his hand, and led him toward the other 22 G C Exh 42 Although the report is unsigned It was identified by Executive Director Christian as the consultmg psychologist's report 23 G C Exh 43 Respondent's witnesses Stewart and Christian con- tended that Quinton clul not return to CACC after June 9, because he "graduated" in late June In light of the date on G C Exh 43, I conclude that this testimony is inaccurate building where social services was located Grimes testi- fied that he got along quite well with Quinton in spite of problems with him As Grimes entered the other building, he met Social Services Supervisor Nancy Stewart coming out and told her that Quinton was acting up again She told him to take Quinton to the social services office, and said that she would be right back As Grimes took Quinton into the building, he met Education Coordinator Joseph, and repeated his description of Quinton's conduct At this point, Quinton was crying and holding the back of his head Joseph told Grimes to go back to his classroom Grimes asked whether he could speak with Quinton in an effort to calm him down Joseph denied this request, and told Grimes to go back to his classroom Grimes did SO Joseph testified that he saw Grimes pulling Quinton by the arm Quinton was crying hysterically Grimes de- scribed Quinton's conduct and asked to talk to him Joseph denied this request and Grimes went back to his classroom Quinton was holding his head, and Joseph asked him what had happened Quinton replied that Grimes had slapped him as they were walking out of the room Joseph asked whether he was serious, and Quinton replied that Grimes had hit him In a memo to Lesley Christian, written the same day, June 9, Joseph wrote that Quinton told him that other children had made him "mad," that he then hid behind the door, and that Grimes pulled him out and "smacked" him 24 In a pur- ported summary of what children told him, which he de- livered to Christian the next day, June 10, Joseph recited that Quinton told him that Grimes "slapped" him on the neck because Quinton was "kicking the door," and then "hit him on the back of the head a second time " 25 This memo indicates that Quinton made the latter statements on June 10, 26 although Joseph's testimony does not clearly indicate that he spoke to Quinton again on June 10 Although Joseph had talked with Quinton previously when he had been brought to the office, this was the first time the child had made any such allegation against Grimes Joseph knew that Quinton had recently been suspended after going to social services, and testified that children sometimes "tell stories" to avoid unpleasant situ- ations Joseph stated that he did not know whether Quin- ton was fearful of another suspension on June 9 A short time after Grimes brought Qumton to the office Joseph went to Grimes' classroom He knew that Grimes was scheduled to be elsewhere There were about 11-14 children in the classroom, most of them asleep at nap time according to Joseph He took a child named Tima Pma, 27 age 6, into the laundry room to talk to her at about 1 30 pm Joseph testified that Tima told him that she saw Grimes "pop" Quinton on the head In a memo written to Chnstian the same day, Joseph assert- ed that Tuna said that Grimes "hit" Quinton In the June 10 purported summary given to Christian, Joseph con- 24 G C Exh 3 25 G C Exh 4 26 G C Exh 4 24 Grimes testified that he had brought Tuna Pins to social services on pnor occasions CRISPUS ATTUCKS CHILDREN'S CENTER 825 tended that Tima told him on June 10 that Grimes "popped" Quinton on the head "and then demonstrated with a flick of her fingers" Joseph further contended in the June 10 memo that Tima told him that Grimes "sometimes puts her up on the wall and that he pops the kids if they don't listen to him "38 There is no evidence in the record of any complaints of abuse of children by Grimes expressed prior to June 9, either by children or teachers although Grimes had previously brought chil- dren, including Pins to social services Grimes saw Joseph twice during the afternoon on June 9, once when he was in the office arranging vaca- tion papers Joseph did not speak to him about these matters Executive Director Christian testified that it was CACC policy to investigate suspected child abuse by asking the children first not the suspected abuser, be- cause the latter would simply deny it Joseph reported the matter to Lesley Christian, who ordered further investigation Joseph spoke to at least one more child on June 9 His memo to Christian, dated June 9, asserts that he spoke to Omar Lewis alone in the gym at about 4 15 p m Joseph asked Omar whether he saw what happened and the child's story was "very much the same as the others" However "when asked if Omar saw Gerard [Grimes] hit Quinton he said no "29 In Joseph's summary of purported testimony given to Chris- tian the next day there is no reference to Omar Lewis 3° The record contains confusing testimony from Joseph about another child he spoke to named, "Anthony," who did not see Grimes hit Quinton Whether the "second child" was Omar or Anthony, Joseph on cross-examina- tion admitted that the child said he "saw what happened but didn't see Gerard hit anybody on the head" Joseph testified that he spoke with a teacher Eddit Vaughn, in the Rabbits II classroom, on the afternoon of June 9 He affirmed in his testimony and his written memo dated June 9 that Vaughn said she had not seen Grimes hit Quinton on this occasion However Vaughn assertedly told Joseph that she had seen Grimes "kick the boy in the past" Joseph asked her whether this had happened before and Vaughn assertedly replied, "Yes" I think Gerard sometimes abuses the children " 3' As noted, there is no evidence of prior reports of alleged abuse by Grimes Joseph testified that he warned Vaughn that failure to report observed child abuse was a violation of CACC rules Vaughn was not called as a witness at the unfair labor practice hearing 32 Joseph made a second report to Lesley Christian on the afternoon of June 9 He recommended and Christian agreed that a report of suspected child abuse be made to the Commonwealth Department of Social Services Joseph did so by telephone, and later followed up with the appropriate form for this purpose (Form 51-A) He also called a commonwealth office concerned with chil- dren's affairs, and reported what he had done to CACC's "licensor" At this point, Joseph had not yet spoken with 24 G C Exh 4 29 0C Exh 3 G C Exh 4 'GC Exh 3 32 Joseph testified that Eddit Vaughn stated at an unemployment com- pensation hearing concerning Gnmes that she did not need the Union Grimes about the matter He attempted to call Grimes on the evening of June 9, without success (3) The events of June 10 ,Joseph called Grimes early on June 10 According to Joseph, he informed Gnmes that he was suspended with- out pay pending an investigation that he was "hitting" children According to Grimes, Joseph told him that there was an investigation of charges that he had "abused" children Joseph did not mention Qumton's name or any specific charges against Grimes, but advised him that there would be a "hearing" the following Friday, June 12 Grimes testified the he was "stunned," and remained in bed for several hours Joseph testified that he did not consider It necessary to talk to any more children, since he had a "pretty good idea" of what had happened On the other hand, Joseph also stated that he came m the next day to conduct fur- ther investigation Joseph's summary of purported testi- mony given to Christian on June 10 alleges conversations with various individuals on that day, including a child named Tejay Anderson 33 The report states that Tejay asserted that Grimes "spanked Anthony Lopez front of the children," that Grimes had "hit" Tejay on the arms, and that Grimes "hits kids a lot, mostly in his own classroom "94 In his testimony at the unfair labor practice hearing, Joseph stated that Tejay had made no reference to Grimes hitting Quinton on June 9 Joseph's purported summary states that he spoke with head teacher Ironme Hyatt on June 10 and that she told him that Grimes kicked Anthony Lopez during the first or second week of May, but that she told this only to Eddit Vaughn Hyatt was still employed by CACC at the time of the hearing but was not called as a witness Joseph's June 10 memo also alleges additional conversa- tions on that day with Sanders, Vaughn, and Pima 35 In summary of the 11-14 children who observed the asserted incident on June 9, Joseph talked to 3 or 4 (in addition to Sanders) Pima, Lewis, Anderson, and possi- bly, "Anthony" Of these only Pima asserted that she saw Grimes hit "pop," or "flick" Quinton Anderson's report that he did not see this was left out of Joseph's June 10 "summary" while neither Omar Lewis nor his negative report was mentioned Qumton's different ver- sions of the event were listed Grimes' account, at vari- ance with this asserted evidence, was not considered be- cause Joseph never asked Grimes about the matter There were asserted reports of prior abuse from children who themselves had histories of disruptive behavior and from teachers who were not called as witnesses at the unfair labor practice hearing The evidence also shows that there had been no allegations of such prior abuse before June 9 and that failure to report such abuse was a violation of CACC rules 33 There is record evidence that Tejay Anderson had previously been brought to social services for disruptive behavior 34 G C Exh 4 33 G C Exh 4 826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (4) Grimes attempted resignation Union representatives called Grimes on the morning of June 10, subsequent to Grimes' suspension They already knew about it, stating that they had been advised by CACC Grimes met with them later in the afternoon but still did not discuss the Quinton Sanders incident since he had no notice of the particular charge against him Grimes testified that he believed he was going to be fired and did not want to give Lesley Christian this opportuni- ty Accordingly he prepared a letter of resignation and delivered it to Education Coordinator George Joseph on Thursday, June 11, without comment Union representa- tives later persuaded Grimes to rescind his resignation and he attempted to do so just before the "hearing" on Friday June 12 Lesley Christian refused to allow him to resign, stating that he had already been suspended (5) The "Hearing" at CACC on June 12 Respondent conducted a "hearing" on the charges against Grimes at or about 12 30 p m, on June 12 There is no evidence that a transcript was made of this event Grimes and Union Representative Bill Fletcher were present while CACC was represented by Lesley Chris- tian, George Joseph, and Nancy Stewart Grimes was given copies of Joseph's two reports to Lesley Christian, and a copy of the report filed against him with the Department of Social Services The latter in essence related the above-descnbed allegations 3° Edcht Vaughn appeared at the "hearing" and stated that she had seen Grimes kicking Quinton and Anthony Lopez in the past Joseph stated that Iron= Hyatt told him that Grimes had kicked Anthony Grimes denied these allegations He acknowledged that Lopez' mother had previously said that he was being "a little strict" with Anthony and was "singling him out" but denied kicking the child As indicated, Grimes testified that Quinton's mother had previously visited him complaining about her son's conduct Grimes averred that neither Vaughn nor Hyatt spent much time in his classroom, and that neither had ever spoken to him about these matters Vaughn had not related such matters prior to the "hear- ing" on June 12, and head teacher Hyatt had never done so Hyatt did not appear at either the CACC "hearing" or the unfair labor practice hearing Education Coordina- tor Joseph repeated what the children assertedly said to him None of the children appeared at the "hearing" On the same date, Respondent discharged Grimes by letter which stated that the reasons therefore had been "fully discussed" at the hearing, and that the "testimony received from children and staff substantiated the initial charge" that Grimes "hit" one of the children in his care" Grimes was advised that he could file an m- ternal appeal according to CACC procedures, but de- clmed to do so 36 G C Exh 5 37 G C Exh 6 (6) Action by the Commonwealth of Massachusetts on the allegation of child abuse by Grimes Grimes testified that on June 15 he met with Steven Slowosky, an investigator for the Department of Social Services On June 19 the Department sent a letter to Re- spondent stating that it had completed an investigation into the allegations of child abuse, and had concluded that it did not occur 38 Respondent introduced the investigator's report to offset the departmental report over the objection of the other parties It is a curious 15-page document Well over one-half of it is censored or blocked out, and some pages contain only scattered words without complete sentences The pages are not in order, and some pages have no numbers Part of the report is illegible, and it is impossible to ascertain the extent of the investigation Respondent relies on what appears to be the investiga- tor's conclusionary language stating that Grimes "pushed/hit in the back of the head," but that the investigator was unable to "substantiate this inci- dent" because it did "not meet the Departmental criteria for a reportable condition "39 (7) Grimes' application for reinstatement and for unemployment compensation benefits By letter dated August 6, Grimes applied to Respond- ent for reinstatement because the Department of Social Services had determined that the charge of child abuse was unsubstantiated 40 Respondent denied this request by letter from counsel dated August 14, on the ground that the "hearing" at CACC had elicited "sufficient evi- dence to support a finding that on more than one occasion [Grimes] abused children in his care "41 Grimes filed an application for unemployment com- pensation benefits, which was initially allowed by the local office 42 Respondent appealed this allowance, and a hearing on the record was held on August 20 before a review examiner Many of the witnesses who subsequent- ly testified at the instant unfair labor practice hearing tes- tified in this proceeding Some who did not testify at the instant hearing, such as Edcht Vaughn, testified at the un- employment compensation hearing At this hearing, Grimes stated that he "inadvertently pushed" the back of Qumton's head as he was trying to pick him up that the child started screaming, and that Grimes then told Vaughn that he was going to take the child to social services 43 The director of the Division of Employment Security thereafter determined that Grimes had been dis- charged for abuse and for hitting a child 44 Grimes ap- 38 G C Exh 7 39 R Exh 15 The conclusionary language appears to add that some other agency probably one devoted to children's services, should be made aware of the situation The investigator adds that, in any event, Grimes had already been suspended and terminated (K1 at 10) 40 G C Exh 8 47 G C Exh 9 42 U Exh 5,p 2 43 Id at 137 44 G C Exh 10, p 1 CRISPUS ATTUCKS CHILDREN'S CENTER 827 pealed this decision and a second hearing was held on November 4 before the division's board of review for the purpose of taking additional evidence and reviewing the transcript of the pnor hearing The Board's decision issued on March 3, 1988 A ma- jority determined that the claimant had been discharged for allegedly kicking and hitting children in his care, that the claimant admitted that he inadvertently pushed the back of a child's head on June 9 with his left hand, but that it was done accidentally and unintentionally "The employing unit has failed to provide any first hand or substantial evidence to prove otherwise" The board ma- jority also found that the testimony that the claimant was twice previously observed kicking the children "was not credible" The board determined that the Employer had failed to sustain its burden of proof that the claimant's discharge was attributable solely to "deliberate miscon- duct in willful disregard" of the Employer's interest "The claimant was therefore determined to be entitled to benefits The Board also found that the claimant's con- tention that he had been discharged because of his union activities was "without foundation "45 (8) Factual analysis The evidence adduced at the unfair labor practice hearing establishes that Gnmes inadvertently hit or pushed Qumton's head while picking him up I base this finding on Grimes' testimony, not Joseph's The latter questioned only a few of the children who saw the al- leged incident, and then distorted what they had said, omitting negative reports In fact, only one child was re- ported by Joseph to have seen Grimes hit Quinton By his own testimony, Joseph had only two reports from children that Grimes hit Quinton—the various assertions of Quinton himself and that of one other child Both had previously engaged in disruptive behavior, while Quin- ton had been suspended Two or three children said that they did not see Grimes hit Quinton and the other chil- dren, about eight or nine were not even asked Nor was Grimes, who did not know the specific charge against him until the so-called "hearing" on June 12 Grimes was not allowed to talk to Quinton after bringing him to the office on June 9, nor was he ever given an opportumty to question the other children at the hearing I reject the evidence of prior abuse by Grimes as un- substantiated hearsay None of these asserted witnesses, child or adult, appeared at the unfair labor practice hear- ing No such charge had previously been made against Grimes, although Joseph had talked with some of the children when they had previously been brought to the office Neither Vaughn nor Hyatt had mentioned such prior abuse to Grimes nor had they reported it—despite the fact that failure to report observed abuse was a viola- tion of CACC rules I have considered the state investigator's report mtro- duced by Respondent It has little or no probative value for reasons which are obvious My determination is con- sistent with those of the Massachusetts Department of Social Services and the board of review, but such deter- 45 Ilnd mmation is based on the evidence adduced at this hear- ing 3 Evidence of child abuse or neglect by other teachers, Respondent's reaction a Christine Brooks Gina Woods' testimony concerning the handling of a child named "Arehs" by teacher Christine Brooks is set forth above Rafaela Ortiz and Maria Carrasquillo also testified about this incident Ortiz was a teacher in the Pollywogs I classroom at the time of her testimony, and Are's was her granddaughter, age 2-1/2 years Ardis was assigned to the Chickadees classroom, where Chris- tine Brooks was the teacher's aide Ortiz was bringing lunch to her granddaughter in February 1987 The other children were having lunch and Ardis was crying Ortiz asked the teacher in the adjoining Tadpoles classroom, Maria Carrasquillo, to ask Brooks to bring Arelis to her grandmother for lunch Ortiz testified that Brooks "grabbed" Ardis by the arm and threw her on a chair Arelis' crying increased In describing Brooks' action, Carrasquillo testified "She slam her" Carrasquillo par- tially clenched her fist during this testimony, and stated that she had never seen a child of that age handled in that manner Ortiz came forward and told Brooks not to do that again Brooks did not respond Ortiz then went to Education Coordmator Joseph and protested that she saw Brooks grab her granddaughter and throw her on a chair Joseph replied that Ortiz was exaggerating, but said that he would talk to Brooks Car- rasquillo also spoke to Joseph and confirmed the inci- dent As noted above, Woods testified that Joseph told her that Ortiz was "over reacting" As further set forth above, Woods testified that she observed Brooks hit one child and press another against a radiator, and that she reported this to her own head teacher who said she knew it and had repeated it to Joseph, but that "nothing ever happened" Joseph testified that he had received the complaint about Brooks from Ortiz He affirmed that he thereafter observed Brooks and that she would lift a child up by an arm According to Joseph, he told Brooks to be more gentle for the children's sake and also because others might see it and thmk that Brooks was deliberately trying to hurt the children After this conversation ac- cording to Joseph, he observed Brooks for about a week She was no longer being "rough" with the children and Joseph discontinued his observation of her b Jacqueline Ennis Salina Williams was a teacher's assistant from Septem- ber 1986 to November 1987, when she left She was as- signed to the Pollywogs I classroom, and teacher Jac- queline Entus and head teacher Earleen Pruitt were as- signed to the adjoining Pollywogs II classroom, where the children were 9 to 12 months of age From the time she started working, Williams testified she saw Ennis striking the children on the legs The witness character- ized the force of the blows by clapping her hands with a sharp crack, and testified that they probably would have 828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD caused pain to a 5-year-old child The children "screamed" Ennis usually struck a different child each day Williams observed this 15 or 20 times 46 She then reported to Education Coordinator Joseph that Ennis was hitting children and Joseph replied that he would speak to Ennis about it Thereafter, Williams observed Ennis hitting a child named Corey Lopez harder than previously Williams told Ennis that she was going to report the matter to the child's mother Williams did not in fact do so, but report- ed it to Joseph The latter replied that he had heard that Williams and another teacher were going to report the matter to the child's mother, and that they would be fired if they did so Williams replied "Well, I'm always telling you that she's hitting these kids and nothing's being done" Joseph told her to get a "witness" the next time she saw Enms hitting children Williams further averred that a child named Jasmine Dratm crawled under a crib from Pollywogs II to Pollywogs I Ennis brought her back and "slammed her down on the floor" Williams placed a note to Jasmine's mother in the child's pocket, and the mother came in the next day and spoke with Ennis Head teacher Earleen Prune"' told Williams that she thought Williams had put the note in the child's pocket Joseph denied at the hearing that Williams told him that Ennis was "hitting" children Instead Williams merely claimed that Ennis was not "treating the children right" Joseph maintained that he observed Ennis for a few days and "never saw her hitting kids" I credit Wil- liams testimony that she reported to Joseph that Ennis was hitting children, and the remainder of her testimony In September, Ennis spanked her own child at the school, which occasioned a memo from Joseph to Chris- tian In October Joseph wrote Ennis a memo about being rough with children, speaking inappropriately to them, and throwing a bottle into a crib with a child in it In December, she was warned for refusal to attend a meet- ing, failure to wash her hands after changing babies, and other matters In February 1988, Ennis was terminated because she "int/pluck(ed) a child in the head area around the the ear" There is no record that a report of child abuse (Form 51-A) was filed with the common- wealth 48 On August 23, 1988, at the instant unfair labor practice hearing, Executive Director Lesley Chnstian was asked whether she had ever been told or made aware of any staff person other than Gerard Grimes hit- ting, striking, or physically abusing a child Her reply "Absolutely not" c Ironnie Hyatt Salina Williams testified that Jacqueline Ennis had a son named Demetnous, who was a student in head teacher Ironme Hyatt's class On one occasion, Williams saw Demetnous run out of class and observed Hyatt grab him by his shirt and pulled him back Joseph was 48 In Williams' pretrial statement, she averred that she saw Ennis hit- ting children on seven occasions 47 As noted above, the head teachers were found to be supervisors in the representation proceeding 48 G C Exits 46-50, 53 standing nearby Williams asked whether he had seen it and added that "she Just threw him in the class" Joseph went into Hyatt's classroom, then came out and told Williams that she should not have said what she did "out loud" Williams started pulling her own hair and ears, thereby intending to communicate to Joseph that Hyatt did the same to children Joseph replied, "Yes," and added that "some of the kids needed it as bad as they are, especially Demetnous " Joseph testified that he saw this event but that Hyatt was not being "mean" Deme- tnous was too big for her, and it was Just a "tug-o-war" to get him back into the classroom Joseph did not com- ment on Williams' gestures indicating that Hyatt pulled children's hair and ears Although Hyatt was employed at CACC at the time of the hearing, she did not testify I credit Williams CACC maintains records designating persons author- ized to pick up children pursuant to "family contracts" Joseph testified that, in late March or early Apnl 1987, a child was taken from a classroom by a person without such authority The parents came, could not find the child, and the police were called Joseph was called at home but chose not to return to the school The head teacher who was then in the classroom was Iron= Hyatt Joseph subsequently issued two memoranda, one to the staff and one to Hyatt on the release of children only to authorized individuals 48 He spoke with Hyatt but did not give her a warning d Connie Wright In June, Connie Wright, a teacher in Pollywogs I, al- lowed two unauthorized persons to come in and pick up a baby named Deavme Hill According to Joseph's testi- mony, Wright did not try to stop them because she be- lieved they were carrying knives and she was afraid of a fight Joseph was then in Assistant Director Crowe's office Lesley Christian "stuck her head in and said, `Two people took a baby, go and get them " Joseph and Crowe ran out after the individuals who had taken the baby, but did not recover the child According to Joseph, they were "stopped" by a group of 15-17-year- old "kids, men, boys" who would not let them pass This took place on Crawford Street, a place where Joseph did not feel "very safe" according to his testimony Joseph gave confusing testimony about subsequent happenings concerning the baby He issued Wright a written warn- ing 50 e Edda Vaughn In October, Joseph issued a written warning to Eddit Vaughn for putting a piece of tape over a child's mouth because he would not stop talking The warning advises Vaughn that such actions open "the possibility of liabil- ity" against both Vaughn and CACC 61 49 G C Exhs 38, 39 89 G C Exh 45 " G C Exh 45 CRISPUS ATTUCKS CHILDREN'S CENTER 829 f Migdaha Carrasquillo (1) Summary of evidence Migdaha Carrasquillo worked at CACC from 1984 to about February 1986 52 She was a head teacher In the summer of 1985, she and three other teachers took about 17 children for a tour of downtown Boston in a CACC van They planned to have lunch at McDonald's, and did so After the children went to the bathroom, they were put back into the van and counted There were apparent- ly 17 of them When the van arrived at the school, the teachers discovered that Javon Perry, about 2 years of age, was missing Carrasquillo testified that the teachers were "very scared" She called McDonald's, and discovered that the child was there Carrasquillo and a teacher's aide went by private car to pick him up and found him with the McDonald's staff—"makmg french fries" They took him back and placed him on his cot He had been missing for about an hour Carrasquillo then went to Lesley Christian's office and closed the door behind her She testified that no one else was present Carrasquillo told Chnstian that they had left a child behind and that there was no excuse Carras- quill° expected to be suspended or discharged Christian told her not to worry, that "it wasn't too much of a big deal," and that Christian would handle it Christian and Carrasquillo went to see Javon who was then awake They took him out into the hall Christian asked the child whether he remembered the bus and going to McDonald's and whether he had fun He said "Yes" Christian asked whether he remembered anything else and he replied, "No" According to Carrasquillo's testimony, Christian then took her aside and said, "He doesn't even remember what happened, so let's not tell the mother about it" Neither Carrasquillo nor any of the other teachers re- ceived any discipline as a result of this event Christian testified that she ordered an investigation by the educational coordinator at the time, Magnolia Monroe-Gordon After the latter reported to her, they "talked about it working with the staff in terms of super- vision and training" Although Christian did not specifi- cally identify the individuals to whom she spoke, they were all "very contrite" It was Christian's conclusion that there was no one who was "clearly responsible" Although Carrasquillo was the head teacher, some of the children were having problems following the directions of the "first Hispanic head teacher" Christian was asked on direct examination whether she disciplined or dis- charged anybody She replied that she did not discharge anybody, because she would have had to discharge all four teachers, and this would have left the children with- out a classroom Christian did not discuss lesser forms of discipline She distinguished this incident from the Woods' discharge because of the contriteness of the teachers as compared with Woods' asserted attitude 02 The last name of the witness was "Torres" at the time of her testi- mony She is the sister of Maria Carrasquillo, another CACC teacher (2) Factual analysis Although Carrasquillo's testimony indicates that she was alone when she first reported this matter to Chris- tian, the latter's testimony that she and Monroe-Gordon talked with the staff is uncontradicted, and I credit that testimony Accordingly, I credit Christian's testimony that she did discuss the matter with the other teachers and that they were contrite—as was Carrasquillo Chris- tian's distinction between the attitude of these teachers and that of Woods depends upon Christian's version of Woods "attitude" which I have considered above Car- rasquillo's description of Christian's conversation with Javon and her subsequent discussion with Carrasquillo which she decided not to inform the child's mother is uncontradicted and credited g Other teacher misconduct The General Counsel adduced evidence concerning the discipline of a male teacher because of improper con- duct toward two female teachers As I do not consider this evidence relevant with respect to the issue of child abuse or neglect, I have not considered It C The Alleged Violations of Section 8(a)(5) and Refusal to Distribute Wage Upgrade Moneys 1 The initial bargaining As noted, the complaint alleges violations of Section 8(a)(5) and discriminatory refusal to distribute wage up- grade moneys beginning in June 1987 Bargammg began prior to that time, in December 1986 with a preliminary session on December 3 The union representatives said that Christmas was coming, and that the employees should have raises The CACC representatives agreed with this statement 53 The first bargaining session was held on December 18 The Union then presented a pro- posed written contract 54 It did not have a wage or ben- efit proposal because the Union was waiting for CACC's response to the Union's request for information Pending receipt of this information and the formulation of wage and benefit proposals, the parties agreed that noneco- nomic issues would be "discussed" first 55 Various bargaining sessions were held after the initial session, and agreement was reached on some matters, al- though other noneconomic issues remained open Sever- ance pay was discussed during these sessions 56 The Union presented a wage proposal on March 3 1987, and the subject was discussed without opposition by Re- spondent 57 On April 1, the Union protested raises given to two employees without negotiating with the Union and the subject was raised again at the next meeting, on April 13 58 58 Testimony of CACC Representative Lesley Christian 54 G C Exh 25 55 R Exh 18 56 Testimony of CACC Representative Lesley Christian 57 G C Exh 36 Testimonies of Union Representative William Fletch- er and CACC Representative Lesley Christian 58 'bid 830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The Union's request for marathon bargaining sessions and distribution of wage upgrade or panty moneys a The June 3 session The Union was concerned about the slow pace of the negotiations, and possible problems with summer vaca- tion schedules Union Representative William Fletcher replaced Kathleen Kemmer in June as the principal union negotiator and on June 2 informed Christian of this fact He requested a "marathon bargaining session," and Christian said that she would consider it At a bar- gaimng session the next day June 3, CACC was repre- sented by CACC Board Member Michelle Bolden, who agreed "in principle" to a marathon bargaining session 59 b The Union's demands for panty money distribution and marathon bargaining sessions on June 22 The next session was held on June 22 and dealt princi- pally with the issues of marathon bargaining sessions and distribution of wage upgrade moneys also called panty moneys by the parties Union Representative Fletcher testified that CACC Representative Christian stated she did not understand the principles involved in marathon bargaining, and wanted more clarity Fletcher expressed surprise since the matter had been discussed at the prior session and privately with Christian Fletcher requested a minimum 6-hour bargaining session, and meetings on a more frequent basis than the schedule at that time of about twice monthly Panty money was the result of a commonwealth law passed in 1985 which first went into effect for the fiscal year from July 1, 1985, to June 30, 1986 According to Nancy DeProsse, a union specialist in such matters and former member of a committee which developed the leg- islation, it was intended to raise the salaries of certain day care employees up to the midpoint of a salary range for each teaching position The day care center submits a declaration of intent, and thereafter signs an agreement with the commonwealth agency Moneys are first re- ceived by the day care centers in a lump sum a few months after the beginning of each fiscal year retroac- tively for the preceding months of that year and on a monthly basis thereafter The day care center must dis- tribute all moneys in the fiscal year for which they are given or risk forfeiture DeProsse had extensive experi- ence in implementation of the program and knew of no instance where the moneys were not distributed dunng the appropriate fiscal year including day care centers whose employees were represented by unions CACC Representative Christian testified that the center received its first panty money for the 1985-1986 fiscal year in November or December 1985, i e, about 5 months after the beginning of the fiscal year Christian later testified that she could not remember when she got the money The witness was asked when the money was distributed and in confusing testimony variously an- swered that it was distributed 5 months after the begin- ning of the fiscal year, i e upon receipt, or 3 months 59 Testimony of William Fletcher thereafter Christian also testified that the panty money for the 1985-1986 fiscal year had been distributed "across-the-board" as an 11-percent increase to each eli- gible employee According to Christian, CACC had been receiving panty money for the 1986-1987 fiscal year since July 30, 1986, and by June 22, 1987, had about $55,000 in such moneys Union Representative Fletcher testified that the Union received reports that an employee named Chesley Petti- John had been circulating an antiunion petition and that Pettijohn had been informed by management that the Union was holding up distribution of these moneys At the June 22 bargaining session Fletcher told CACC rep- resentatives what the Union had heard and requested im- mediate distribution of such moneys to the employees on an across-the-board basis Remaining economic and non- economic matters would be reserved for later discussion Fletcher testified that the response to these statements of his was a "look of shock" by CACC Representatives Lesley Christian and Michelle Bolden Fletcher asked "Do you understand what I'm saying ?" Chnstian and Bolden "jovially" replied, in unison "We hear you They said that they would-get back to him at the next session c CA CC rejection of the Union's request for distribution of panty money The next bargaining session was held on July 14 Fletcher testified that Christian rejected the Union's pro- posal for two reasons "Procedurally she said that it was inappropriate to be discussing this matter since we hadn't finished the noneconomic matters of the contract" In ad- dition, CACC disagreed with the Union's proposed across-the-board distribution of the moneys Fletcher tes- tified that he expressed disagreement and asked "So you're saying that you're rejecting this discussion and you're rejecting our proposal" Chnstian replied, "Yes" Lesley Christian testified that the Union proposed dis- tribution of the panty moneys on a flat percentage basis and that she rejected this proposal because CACC was interested in "looking at performance based raises," and because there had been "an agreement of noneconomics first" According to Christian, Fletcher repeated her lan- guage, and asked whether she was disagreeing with the Union on "philosophical grounds" Christian replied, "Yes," and Fletcher assertedly said "Oh, okay" Fletcher did not protest, "scream, or get up and walk out" ac- cording to Christian He did not pursue the matter "that night," and did not "raise it again" As more fully de- scribed hereinafter, CACC later contended that the Union had "dropped" the issue of panty money distribu- tion Christian's testimony that Fletcher did not pursue the matter further is inaccurate Christian testified that she considered the panty money issue to be a wage issue, and Fletcher testified without contradiction that at a bar- gaining session on August 19 he asked for a "comprehen- sive economic counter-proposal " 6° Further, the nondis- 6° In the parties stipulation on matters discussed on August 19, there is no listing of wages or panty moneys However, the stipulation was ape- Conunued CRISPUS ATTUCKS CHILDREN'S CENTER 831 tnbution of panty money later became a heated subject of dispute between the parties I also credit Fletcher's testimony that he expressed dis- agreement with Christian's rejection of the union propos- al Christian's testimony that Fletcher did not "scream" or "get up and walk out" is irrelevant Her assertion that Fletcher merely said "Oh, okay," and did not protest CACC's rejection is improbable as is her contention that Fletcher described the matter as a "philosophical" differ- ence As stated by Fletcher to the CACC representatives and as more fully described hereinafter the Union was under pressure from employees because of asserted re- ports to them from CACC that the Union was blocking distribution of panty moneys It is therefore unlikely that Fletcher would have passively agreed with CACC's re- fusal to distribute this money Fletcher may not have "screamed" or "walked out," but he did protest CACC's rejection I base this determmation on the fact that Fletcher was a more truthful witness than Christian, as well as the inherent probabilities of the matter Fletcher testified that CACC made no counterpropos- al Christian contended that she said CACC was interest- ed in "looking at performance based raises" As indicat- ed, during the prior year she had made an across-the- board distribution of 11 percent There is no evidence of a specific counterproposal from CACC on July 14 Chnstian testified that notes of the July 14 meeting kept by another CACC representative state only, "No eco- nomic until non-ec's are settled" She was then asked whether the notes indicated a counterproposal by the Employer The witness partially answered, "We didn't make a ," but was interrupted by an objection from her counsel I credit Fletcher's testimony and find that Respondent did not make any counterproposal for distribution of panty moneys on July 14 At sometime in 1987, Christian started placing the money in an escrow account d The so-called "marathon" session on July 29 The next session was held on July 29 Meetmgs had previously started at 6 or 6 30 p m Fletcher testified that the July 29 meeting was the "marathon session," and was scheduled to start at 5 p m, and continue until at least 9 30 p m, at which time there was to be an evaluation of the status of negotiations However, the meeting did not start until about 6 10 p m Lesley Christian was not present, and her place was taken by John Christian, CACC's chairman Fletcher testified that John Christian stated there had been a misunderstanding about the start- ing time The session ended at 9 10 p m, because John Christian said he had a splitting headache Fletcher pro- tested that this was not a marathon bargaining session and that the parties needed longer and more frequent ses- sions John Christian replied that his team had child care problems, was going on vacation, and that it was hard to get them together Fletcher offered to return from a va- cation to attend a session, and repeated the need for more frequent sessions than twice monthly CACC did not specifically respond to these requests cifically designated as a "partial" summary of proposals discussed (R Exh 18) and I credit Fletcher's testimony on this point e The August 19 session As mdicated, at the August 19 meeting, Fletcher asked for a comprehensive economic counterproposal from CACC Lesley Christian did not respond specifically, but said that the negotiations were getting close to the point where CACC could make an economic counterproposal No comprehensive economic counterproposal was ever made Proposals on distribution of parity moneys were made after the intercession of commonwealth authorities and after CACC had refused to bargain over other mat- ters, as described hereinafter 3 The first antiumon petition and the activities of Chelsey Pettijohn Chesley Pettijohn was employed by CACC in October 1986 as a kitchen assistant At the time of his employ- ment, he received a handbook which stated that employ- ees were eligible for a raise after 6 months of employ- ment Beginning in November 1986 and thereafter, Gerard Grimes, Fletcher, and others asked Pettijohn to join the Union He replied that he did not want to bother with it Pettijohn testified that about 6 months after being em- ployed, in late April or early May, he asked Assistant Director Crowe for a raise Crowe replied that no one could receive a raise while negotiations were in progress with the Union Pettijohn replied with an obscenity, and "stormed" into Lesley Christian's office She said essen- tially the same thing that Crowe had said Asked wheth- er he knew about the availability of wage upgrade moneys, Pettijohn testified that he "couldn't get any re- sponse from Christian because she wasn't able to do so" Accordingly, he started tallung with the "union people" who "filled him in on it" In other testimony, Pettijohn appears to state that he knew nothing about the subject until he did talk with the Union This took place at a union meeting where Kathleen Keimner was the spokesperson, about a week after the meetings with Crowe and Chnstian Pettijohn arrived with other individuals, and said that he could not get a raise Kemmer replied that the Umon was not holding up Petujohn's money, but that Christian was doing so She stated that the Union was trymg to get the money, but that Christian would not pay it out Pettijohn asked how Christian was holding up the money, and Kemmer re- plied that CACC would not negotiate "properly" Pew- John asked about the nature of the money, and was in- formed by the Union that CACC was holding "retroac- tive panty money" which was owed to CACC employ- ees and that the Union was trying to get it for the em- ployees Pettijo/m responded to this mformation by saying that the only employee still remaining who had voted for the Union was Grimes, that there was a "whole new crew," and that the employees could get their money if the Union would just stop doing what it was doing Pettijohn stated his belief that there were people "in control" of the employees' money who were not entitled to such control By this he meant both CACC and the Union After hearing the union statements about the panty money held by CACC, Pettijohn did not approach 832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Christian or Crowe about such money Instead, he start- ed circulating what he described as a petition among teachers and teacher's aides at work in the classroom The so-called petition was a piece of paper with nothing printed at the top Pettijohn told the teachers that sign- ing it meant that they did not want the Union Pettijohn did this while he was distributing food to the classrooms, at times when head teachers were present The head teachers saw him and knew what he was doing, and Pettijohn told them that they were "mad" be- cause they could have nothing to do with the petition 61 They laughed He would "tease" Education Coordinator Joseph about his, Pettijohn's, efforts to get rid of the Union Joseph never told him not to engage in such ac- tivities Pettijohn said that he obtained 29 signatures He later called the Board's office, and discovered that the so-called petition was invalid because of the continuing existence of the certification year Pettijohn testified that he circulated the "petition" be- cause of "ridiculous" and "ludicrous" assertions being made by union representatives, to wit, that the children were in a depressed atmosphere, that the teachers were not doing their jobs because Lesley Christian would not distribute panty money, and because the Union was biased This constituted 95 percent of Pettijohn motiva- tion 62 Pettijohn and Fletcher had a chance meeting at CACC on June 2, when Fletcher was there to protest Grimes' demotion Fletcher testified that Pettijohn told him that between 20 and 30 employees had signed a petition, and that the two of them discussed wage upgrade moneys According to Fletcher, Pettijohn reported that Christian had told Pettijohn that she would love to give out the wage upgrade moneys but could not do so because of the Union 63 Fletcher testified that this was a matter of concern to the Union, because, after talking with em- ployees, he discovered that they believed that it was the Union's fault that CACC was not distributing the wage upgrade moneys Fletcher testified that Pettijohn called him periodical- ly, and asked how things were going Shortly before the July 14 bargaining session, Pettijohn called Fletcher and asked for a meeting It took place at a pizza shop near the Boston City Hospital Pettijohn said that he knew the petition was invalid but added that he needed the money because he had children to support Fletcher responded that if he really wanted the money he should be using his talents in favor of the Union instead of opposing it He asked Pettijohn whether the latter intended to resubmit the petition and Pettijohn replied that he had to do so because he would be fired if he did not resubmit it The two of them argued about the matter for awhile and Pet- tijohn agreed to remain neutral The only reference to 61 As indicated the head teachers were held to be supervisors in the representation proceeding 62 Pettuohn asserted that the other 5 percent of his motivation in- volved a personal objection to Kathleen Kemmer whom he described as "a little white girl from Salem" trying to tell black people what to do In addition, Pettijohn had other objections to Kemmer of a personal nature As they were only peripherally relevant, I need not consider them 63 CACC counsel objected on the ground that Pettijohn was not an agent of CACC and the General Counsel refused to amend the complaint to make such allegation this conversation in Fletcher's pretrial statements is an averment that he had a conversation with an employee on July 12 Fletcher testified that he did not include the details of the conversation in his statements because he considered it to be off the record and irrelevant, because he did not consider Pettijohn to be truthful, and because he could not "verify" that Pettijohn had said this to him In Pettijohn's testimony he acknowledged that he had various conversations with Fletcher He objected to union stories that Lesley Christian was "jerking the em- ployees around about their money," and that she was paying Pettijohn to do what he was doing Pettijohn denied that he received any gratuities, promises, or threats from CACC He agreed that he had a second meeting with Fletcher near the Boston City Hospital Fletcher asked him not to resubmit the petition Petti- John replied that Fletcher had "shot his last load," and repeated his objections to union people running around saying things that were not true Pettijohn was asked whether at this meeting he told Fletcher that he would be fired if he did not resubmit the petition His answer I told him what I just told you, man I told him that I can get a job anywhere in Boston working, man Nobody can threaten me about a job I have considered the fact that there is no reference to Pettijohn's asserted statement about being fired in Fletcher's pretrial affidavits Nonetheless, I credit Fletcher's testimony on this point Fletcher was a far more credible witness than Pettijohn, who was evasive and argumentative Fletcher testified that Pettijohn and other persons ar- rived at a union meeting in August They were drunk and disorderly according to Fletcher, and the meeting was closed Pettijohn testified that he and several em- ployees attended a union meeting a few weeks after his meeting with Fletcher at the pizza shop (July 12 ) Petti- John told the Union that he wanted his panty money, and that the negotiations had nothing to do with it He also claimed to have said that panty money was not the issue, but that his salary was Pettijohn and others told the Umon to stop doing what it was doing so the em- ployees could "pick up the cash" Pettijohn testified that he had been "boisterous," that there had been some drinking prior to the meeting and that he had probably engaged in it Pettijohn was allowed to attend a bargaining session in August Fletcher told him that he could attend but could not speak because there was a bargaining team which did the speaking and that anyone who wanted to be on the bargaining team had to sign a union card Fletcher testi- fied that Pettijohn nonetheless tried to make a statement at the bargaining session Fletcher said that this had never been done by an observer and that it had to be clear to management that Pettijohn was not there to ne- gotiate According to Fletcher Pettijohn became "disori- ented," spoke of "injustices," said that they would not let him talk and stormed out of the meeting Pettijohn did not disagree with this account of the session He added that Kathleen Kemmer claimed that he had "threatened" her, and said that she was going to call security CRISPUS ATTUCKS CHILDREN'S CENTER 833 4 The staff meeting in mid-August Former Teaching Assistant Salina Williams testified that Pettuohn approached her several times during work- ing time and asked her to sign a petition to get the Union out He said that if this happened the employees could get their panty money The last time that Pettuohn asked her was Just before a staff meeting held by Lesley Christian in mid-August According to Williams there were about 15 employees at the meeting, including Petti- John and Robin Morse Christian, who was in front of the group, said that she had to give out employee ad- dresses and telephone numbers to the Union On direct examination, Williams testified that Robin Morse asked all employees who wanted the Union out to raise their hands Morse did this three times, and Wil- liams did not raise her hand Christian was present when this was taking place On the third occasion when Morse asked for a show of hands, Christian remained in the room Williams was more explicit on cross-examination Robin Morse got up the first time and asked everybody who wanted the Union out to raise their hands Christian "stayed there" There was an interruption, and, about 3 minutes later, Morse said, "Let's do it again, those who want the union out raise your hand" Williams was asked, "Where was Lesley after the second time7" "Sit- ting there," was the answer About 2 minutes later Morse asked for a third raise of hands Christian then said that she did not think this should be done in front of her But she "stayed there," according to Williams Pettuohn gave a different version of this event There was employee opposition to giving out names and ad- dresses to the Union An employee whom Pettuohn did not identify asked, "How many people in here would vote for the Union?" Christian said that they could not do this while she was there, left the room, and two em- ployees raised their hands to indicate they wanted the Union This took about 30 seconds according to Petti- John I credit Williams' testimony because it is more proba- ble that a union opponent would ask haw many employ- ees opposed rather than favored the Union, because Wil- liams' account is presented m realistic detail amplified on cross-examination, and because she was a more truthful witness than Pettuohn 5 The resumption of discussion The next scheduled bargaining session after August 19 was September 9 Prior to that date, on September 2, Fletcher sent Christian a letter in which he said that the Union was again requesting, "as it did in June," that CACC distribute the 1986-1987 panty moneys immedi- ately The letter stated that, although the Union had op- posed an equal division of the money, it was open to other ideas In addition, Fletcher requested longer and more frequent meetings 64 Fletcher testified that he had a telephone conversation with Christian just before the September 9 bargaining session, in which Chnstian main- tained that the letter mischaractenzed the parties' posi- tions, that the Union had "dropped" the matter in June 64 G C Exh 17 and had not pursued it, and that the Company had op- posed it on "procedural" grounds The same discussion took place dunng the bargaimng that day Both parties renewed the discussion as letters dated 2 days later, September 11 Christian stated that CACC was "astounded" to learn "for the first time" that the Union was willing to consider alternatives other than across-the-board division of the money "In June when we responded that we had problems with the concept of across the board increases, you dropped the matter com- pletely" Christian argued that the Union had taken the position that no moneys could be given out until the matter was resolved at the bargaining table After fixing blame for the frequency of sessions on the Union, the letter looked forward to the next session on September 29 65 Fletcher's letter of the same date, September 11, avers that the Union had raised the financial issue in June and that CACC had notice of the pressing nature of the matter The letter again requests an economic counter- proposal at the forthcoming September 29 bargaining session 66 6 The September 29 bargaining session The Union was represented by Fletcher and by Ann Carol Knox, a general organizer and director of the Union's Massachusetts office Knox had attended one of the early sessions, in December 1986, and this was her second session CACC was represented by Lesley Chris- tian, Dennis Nabors, and Donald Crowe Christian pre- sented a letter to the Union dated September 28, 67 and the parties discussed the points raised in this letter CACC's first contention was that the Union was no longer represented by stewards and employees, contrary to its earlier expression of Intent The union representa- tives replied that they were the employees' lawful repre- sentatives According to Knox, Fletcher said that Chris- tian had fired everybody on the Union's bargaining team, which Christian denied The ongmal union bargaining team members were Arthur Memweather, Gregory Thurston, Gerard Grimes, Gina Woods, Robin Nelson, Sandra Jones, and Brenda Lawson Mernweather and Thurston were fired before the first bargaining session for fighting and the Union did not dispute the appropri- ateness of this action As mdicated above Woods and Grimes were discharged thereafter Robin Nelson was also discharged According to Knox, Sandra Jones, and Brenda Lawson then became nervous and did not want to "stick their necks out" They resigned from the bar- gaining team and the only employees who attended ses- sions were those who knew that they were going to be leaving CACC 68 Fletcher testified that Jones and 65 G C Exh 18 66 G C Exh 19 67 G C Exh 21 88 The parties had agreed that only employees and members of the board of directors could be present at bargaining sessions Crimes and Nelson appeared after their discharges, and CACC requested that they depart An individual named John Sears appeared on the CACC's side although he was neither an employee nor a member of the board of di- rectors According to the union witnesses, he was identified by Lesley Continued 834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lawson were afraid of losing their jobs, and that Petti- John's activities made them feel "isolated" Christian's September 28 letter protested Fletcher's communicating with her by letter rather than at the bar- gaining table It was assertedly agreed that "all negotia- tions would take place at the table not via mail or telephone "69 Knox testified that Christian said it was "ridiculous" for the Union to demand discussion of new issues before "crossing every 't' and dotting every '1' " Christian's letter contended that the parties had agreed to "settling" the noneconomic issues first, and Christian stated that "a rule could not be broken" None- theless Christian's letter avers, the Union "persist[ed] in demanding that more economic counters be submitted precipitously" despite the fact that a "great many" non- economic issues were unresolved Accordmg to Knox, Christian said on September 29 that this constituted "breaking the rules of the negotiations" Her September 28 letter further avers that when the Union proposed in June that panty money be given out as flat increases and CACC objected to the "methodology," the Union "dropped" the matter 7° Fletcher replied to Christian that it had seemed rea- sonable to start on noneconomic matters first, but there was no understanding that the negotiations would take as long as they did According to Knox at the September 29 bargaining session the Union submitted to CACC a list of 20 noneconomic proposals which it had made to which there had been no response Knox testified that CACC again refused on September 29 to discuss eco- nomic matters until the parties agreed upon the noneco- nomic issues On behalf of the Union, Knox proposed meeting everyday the following week Christian suggest- ed three possible dates—October 15, 19, and 20—agreed upon October 20, and then postponed it to October 27 after receipt of a copy of Pettijohn's second petition Christian was asked the reason for the relative delay in the distribution of 1986-1987 panty moneys, as com- pared with the prior year She replied that the reason was the process of collective bargaining in which CACC was engaged. 7 The alleged supply of inaccurate lists of employees which failed to include employees' addresses and telephone numbers The Union made periodic requests for employee lists, and CACC supplied one on July 14 according to Fletch- er 71 The parties stipulated as to the identities of employ- ees employed at various times," and the names of seven employees who were employed both on June 17 and Oc- tober 7—and, accordingly, on July 14—were not listed by CACC 73 Chnstuin as a "consultant" and a fnend of her husband Sears "whis- pered" to the CACC representatives dunng the sessions according to the union witnesses °9 G C Exh 21 78 !bid 71 G C Exh 33 72 G C Exh 22 73 Teacher Edwma Howard, teacher's aide Anthony Wall, and tempo- rary assistance employees May Lawson, Lorraine Smith, Rachel Boyd, Kathy Norton, and Karen King The Union requested additional lists in the summer, and received two in July or August which failed to in- clude temporary assistance employees, who had been in- cluded in the unit 74 After a dispute over this issue, CACC supplied the names by telephone on September 8 75 The stipulation of the parties shows that eight tem- porary assistance employees were employed both on June 17 and October 7 Of these, four do not appear on the telephonic list of such employees supplied on Sep- tember 8 76 In addition, the names of teacher Edwma Howard and teacher's aide Anthony Wall do not appear on the lists ongmally supplied 77 Further, the addresses of some employees were not supplied By letter dated September 25, the Union requested the names, addresses, home telephone numbers, rates of pay, and hours of work of unit employees 78 CACC replied by letter dated October 8, with a list of employees that did not include one teacher" and two temporary assist- ance employees" then employed 81 8 The second antiunion petition Pettuohn testified that he started circulating a second petition in November, which he later changed to Octo- ber The petition contains the following legend at the top We the undersigned wish to sign for decertification purposes 82 Pettuohn initially testified that he obtained the paper for the petition from the CACC kitchen, and typed the legend at the top with his sister's typewriter He later testified that he did not know how the legend appeared at the top of the petition The back of the exhibit con- tains language which Pettuohn stated was in his hand- writing However, he said that he did not know its meaning 83 Pettuohn initially testified that he engaged in the "same process" in distributing the second petition as he did with the first one He talked to employees and told them why he could not use the first petition He testified that CACC is such a small place that "everybody" knew what he was doing Pettuohn later claimed that he did not know whether any of the "administrators" knew this However, he admitted that he told head cook Lenny Durham, an "administrator" Education Coordinator Joseph testified that he saw a petition, but was uncertain about the date However, the petition which he did see had a legend at the top to the effect that the signatories thereof did not want the Union I find that Joseph was 74 G C Exhs 34,35 75 0 C Exh 37 75 May Lawson, Lorraine Smith, Ralph Beach, and Karen King (0 C Exh 37, R Exh 22) "GC Exhs 34,35 " G C Exh 25 79 Edda Vaughn G C Exh 23 99 May Lawson and Joseph Sherman G C Exh n R Exh 22 82 R Exh 11 93 The legible words on the back of the petition are "Freedom House, Monday Night", "2-4-6 Evaluation", "CO L I" "July and July", and "Raises, I may (illegible word, possibly 'pay)", names, and various digits CRISPUS ATTUCKS CHILDREN'S CENTER 835 referring to the second petition, which was the only one with a legend at the top Joseph testified that two head teachers, Bertilha Birmingham and Earlene Pruitt, were involved with the circulation of the petition Pettijohn stated that Joseph did not say anythmg to him about the matter He gave a copy to Christian There were 31 names on the petition and the parties stipulated that there were then 34 employees in the unit 84 9 CACC's meetings with commonwealth officials about panty money, and partial cessation of negotiations with the Union Department of Social Service instructions required day care centers to inform the department m the event they were unable to pay upgraded salaries during their con- tract year "for reasons beyond [their] control, such as collective bargaining schedules "85 Christian testified that she initiated a discussion with commonwealth offi- cials over the nondistnbution of the panty money The first meeting was held on September 1 m the ex- ecutive office of human services, which Christian identi- fied as the "cabinet" or "secretariat" to which the Divi- sion of Social Services reports Christian was accompa- nied by her husband John Christian, CACC's chairman The official, James Murphy, said that he had been un- aware of the nondistnbution of the funds and asked whether CACC wished to distribute them Christian re- plied that she did, and a second meeting was arranged on October 9, with the presence of a DSS representative Murphy asked Christian how long it would take to re- solve the matter, and Christian said that it could be done by December Murphy then directed CACC and DSS to work cut the distribution by that time, including pay- ment to employees who had quit or had been fired Fletcher testified that Christian called him on October 20 and said that CACC had a petition signed by a "size- able number" of umt employees stating that they did not want the Union to represent them Accordingly, CACC believed that it should stay "neutral" and stop negotiat- ing until the matter was resolved Christian also post- poned the meeting scheduled for October 20 to October 27 However, CACC would negotiate with the Union over distnbution of panty money Fletcher objected and stated that the Union had serious concerns over the manner in which the names had been gathered He re- peated these objections in a letter the same day, October 20 stating that there was an "internal inconsistency" in CACC's decision, and advising that CACC's action did not change any of the Union's requests for informa- tion 86 10 The October 27 and November 18 bargaining sessions and distribution of panty moneys The parties met on October 27 and November 18 The only subject discussed was distribution of panty moneys 87 Christian stated that she would not discuss " R Exhs 11, 22 85 R Exh 14 86 GC Exh 24 87 R Exh 18 any other subject The Union argued that it was incon- sistent for CACC to negotiate over panty money distri- bution, which the Union had demanded for 5 months and to refuse to negotiate over other subjects Christian re- plied that commonwealth officials had ordered CACC to negotiate with the Union over the moneys, and to dis- tribute them She also based her action on the fact that the Union had filed unfair labor practice charges 88 The parties agreed upon distribution, which was made on De- cember 2 89 Christian identified a five-page document which she said was a "piece" in the documents evidencing distribu- tion of panty money in 1987 99 The pay rates of teachers and teachers' aides are listed and range from $5 to just under $7 97 Eleven employees received "merit awards" ranging from about $260 to about $350 One of these was Jacqueline Ennis who had been disciplined at that time for child abuse and would be discharged a few months later Another employee who received a merit award was Lawrence Green, who was identified on Respondent's list as a kitchen aide Chesley Pettijohn had variously been identified as a "kitchen awle" 92 and an "assistant cook "88 Pettijohn's name is not included in the list of employees who received merit awards Pettijohn testified at the hearing that his hourly rate of pay went from $5 to $779 in December He contended that he did not know whether this was a "6-month raise" or the result of the panty money distribution Pettijohn had "no idea" why his pay rate increased and "didn't ask because it might have been a mistake so I didn't say nothing" D Legal Analysis and Conclusions 1 The alleged violations of Section 8(a)(1) As set forth above, I have found that on April 2, 1987, Respondent told employee Woods that she was being discharged because of her umon activities I have also found that in late April or early May 1987, Respondent told employee Grimes that things were "changing" be- cause of the Union and because of the employee's in- volvement with the Union Both statements were obvi- ously coercive, and I conclude that by making them Re- spondent thereby violated Section 8(a)(1) of the Act 2 The alleged discrimination against Grimes and Woods The General Counsel has the burden of establishing a prima facie case that is sufficient to support an inference that protected conduct was a motivating factor in Re- spondent's decision to discipline employees Once this is established, the burden shifts to Respondent to demon- 88 As noted the °nip:tat charge in Gina Woods' case had been filed on October 1 and the original charge in Case 1-CA-25016 on October 15 89 R Exh 18 80 U Exh 6 97 The highest listed pay rate was for Gerard Grimes at $6 93 92 G C Exh 33 93 G C Exhs 31, 34, 35 836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD strate that the discipline would have been administered even in the absence of the protected conduct 94 Grimes and Woods both engaged in union activities, including Grimes' action as a steward, Woods' inquiries about employee rates, and the attendance of both at bar- gaining sessions Respondent had knowledge of these ac- tivities Its opposition to union organizing was noted as early as 1986 in the Board's denial of the Employer's re- quest for review in the representation proceeding 95 It was continued by Christian's staff meetings in 1987 in which she expressed opposition to the Umon, and by the unlawful statements made to Woods and Grimes Fur- ther, Respondent prohibited Woods from inquiring about employee pay rates during working time, but permitted Pettijohn to circulate antiunion petitions during working time with supervisory knowledge thereof and participa- tion therein Such disparate enforcement of work rules is violative of the Act 96 Although no such violation is al- leged in the complaint and I find none, Respondent's dis- parate enforcement of work rules constitutes additional evidence of union animus I conclude that the General Counsel has established a prima facie case that Respond- ent's actions against Gnmes and Woods were discnmma- tonly motivated As set forth above, Respondent assertedly became con- cerned with Gnmes' functions as a security manager in late 1986 when he was appointed a steward According to Christian, certam "papers" were missing but the matter was not brought to the attention of CACC's board of directors Grimes did not have keys to Chris- tian's safe or files and she did not miss any papers after she began putting them in her desk and file cabinets There was no allegation about missing papers at the only time that Respondent confronted Grimes about the secu- nty matter, during the May 15 conference I conclude that this evidence is insufficient to establish that Grimes' functioning as a steward tended to "compromise" his po- sition as a security manager Respondent argues that Crimes' "responsibility regard- ing security may be classified as the duties of a guard, [and that] it probably was an oversight to allow him into the bargaining unit m the first place "97 This argument has no merit Although the unit found appropriate ex- cluded guards, Respondent did not argue in the represen- tation proceeding that Grimes was a guard nor is there any evidence that it challenged his vote in the election The evidence m this proceeding is insufficient to estab- lish that Grimes' position as a "security manager"—lock- ing and unlocking doors and windows—was that of a guard After Respondent learned that Grimes had been appointed a steward it waited about 6 months before de- motmg him and reducing his salary for this reason—and never informed him about the allegedly missing papers I conclude that Respondent's asserted concern that Grimes' position as a steward would create "conflict" 94 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 889 (1st Car 1981), cert denied 455 U S 989, approved in NLRB v Transportation Management Corp, 462 U S 393 (1983) 95 G C Exh 57 98 Pdhod of Mississippi, 275 NLRB 799, 809 (1985), Hudson Oxygen Sales Co, 264 NLRB 61 (1982) 97 R Br p 44 with his duties as a security manager was an afterthought and that his demotion and reduction in pay were discn- mmatonly motivated in violation of Section 8(a)(3) I also conclude that Respondent has not rebutted the General Counsel's prima facie case that the discharges of Woods and Grimes were discnmmatonly motivated Re- spondent's charges against them were not grounded in fact and its investigation of their asserted misconduct was incomplete and unfair This constitutes evidence of discriminatory motivation 98 In these circumstances Re- spondent could not reasonably have believed that they did engage in the alleged misconduct The harsh discipline of discharge meted out to Grimes and Woods, compared to the disparate treatment of other teachers who engaged in child abuse or neglect, constitutes further evidence of unlawful motivation As compared to Grimes, who was discharged after acciden- tally pushing or hitting a child, other teachers "slammed" babies into chairs or the floor, pressed them against a radiator, lifted them by the arms, treated them "roughly," hit them until they "screamed," pulled their hair, or "pluck(ed)" their ears Respondent either did nothing in the face of this conduct or at most issued warnings In one instance it threatened teachers with dis- charge if they communicated these events to parents In no instance did Respondent issue a report of suspected child abuse to the commonwealth authorities, as it was required to do and as it did in Grimes' case In only one other instance was a teacher discharged after repeated misconduct—and even then she was first given a "merit award" As compared to Woods—who m fact did not neglect any children—other teachers unknowingly let unauthor- ized individuals pick up children, simply let them walk into the classroom unopposed and pick up a baby be- cause the teacher was afraid of a fight or just "lost" a child for an hour without notifying the parents thereaf- ter—because the child could not remember what had happened This grossly disparate treatment of other teachers sup- ports an inference that Respondent's treatment of Grimes and Woods was discriminatorily motivated Respondent argues that the Board is precluded from determining that Grimes was discharged because of his union activities because there were two admitustrative heanngs in the commonwealth and in the latter the board of review stated that Grimes was not discharged for such activities Under the doctrine of "collateral es- toppel," according to Respondent, the board may not decide the issue again 99 This argument has no merit, as both the Board and the courts have concluded that the findings of State Unemployment Compensation Boards as to the reasons employees were discharged have proba- tive value but are not conclusive 1" Application of this 98 Riley-Beard Inc. 7971 NLRB 155, 165 (1984), Greensboro News Co, 272 NLRB 135, 143 (1985), Minnesota Boxed Meat, 282 NLRB 1208 (1987), Bates Nitewear Co. 283 NLRB 1128 (1987), Electronic Data Sys- tems, 278 NLRB 125, 137 (1986) 99 R Br app B "1° NLRB v Tennessee Packets, 339 F 2d 203 (6th Car 1964), NLRB v Pacific Intermountain Express Co, 228 F 2d 170 (8th Car 1955), enfg 110 Continued CRISPUS ATTUCKS CHILDREN'S CENTER 837 rule is particularly appropnate as the record shows that the board of review did not have before it all of the evi- dence which I have determined that the discharges were discnmmatonly motivated Respondent further argues that some union activists were not discharged and that one was promoted This argument has no merit as it is well established that the General Counsel need not prove that an employer dis- cnminated against all union activists in order to establish that it discriminated against some of them I, therefore, fmd that Respondent demoted Gerard Grimes from his security manager job to that of being solely a teacher, and reduced his pay, on May 1, 1987, discharged him on June 12, 1987, and discharged Gina Woods on Apnl 2, 1987, because of their union activities, m violation of Section 8(a)(3) and (1) of the Act 3 The alleged violations of Section 8 (a) (5) and discriminatory refusal to distribute wage upgrade moneys since June 22, 1987 It is clear that the wage upgrade moneys had been in Respondent's possession or in an escrow account for sev- eral months, as of June 1987, that distribution thereof had not been made as early as distribution in the prior year and that the Union requested immediate distribution on June 22, 1987, citing rumors attributed to Respondent that the Union was responsible for the delay The Union suggested an across-the-board distribution which had been the method utilized by Respondent during the prior year Although Respondent professed an interest in dis- tribution based on "performance," it made no counter- proposal to the Union, and in fact did not negotiate with the Union for such distribution until it had received a deadline for same from the commonwealth authorities The money was actually distributed m December 1987 comparably about a year later than the distribution of the 1985-1986 upgrade moneys 101 The reason for the delay, according to Respondent, was the existence of collective bargaining with the Union, and the asserted "rule" that economic matters could not be discussed prior to resolu- tion of noneconomic matters During the period from the Union's request in June to the distribution of the moneys in December, Respondent, relying on an antiunion peti- tion circulated during working time with the knowledge and participation of supervisors (head teachers), refused to negotiate with the Union on any matters other than wage upgrade moneys after October 20 As noted the complaint alleges that Respondent violat- ed Section 8(a) by discnmmatonly refusing to distribute the funds, and Section 8(a)(5) by refusing to bargain with the Union over such distribution Respondent argues that these are inconsistent allegations Respondent could not lawfully have distributed the moneys unilaterally after the Union's certification because there was no established "prior practice" of distribution With respect to the al- NLRB 96 (1954), NLRB v Western Meat Packers, 368 F 2d 65 (10th Or 1966), enfg 152 NLRB 1066 (1965), Supreme Dyeing Corp, 147 NLRB 1094, 1101 fn 9 (1964), Seyfert Foods Co, 109 NLRB 800, 810 fn 5 (1954), Aerovox Corp. 104 NLRB 246 (1953), enfd 211 F 2d 640 (DC Cir 1954) 101 As noted, Christian's testimony on the date of distribution of the prior year's funds was ambiguous leged refusal to bargain over the distribution, Respond- ent was entitled to rely on the "agreement" of the parties that noneconomic matters would be "resolved" before discussion of economic matters 102 None of these arguments has merit With respect to the first the Umon clearly requested such distribution, and there is therefore no issue about unilateral action The second argument misstates the facts The parties agreed only to "discuss" noneconomic matters first not to "resolve" them However, as Union Representative Fletcher pointed out, nobody had anticipated that the discussion of noneconomic matters would take as long as it did Moreover, CACC did discuss economic matters in the spring of 1987, despite the so called agreement In similar circumstances the Board has concluded that the Employer violated Section 8(a)(5) by refusing to dis- cuss economic matters with the Union until all noneco- nomic matters were resolved As herem, "[t]he parties did not commit to resolving all language items before discussing economics, but merely agreed to attempt to settle as much of the language as possible before moving to economics " John Wanamaker Philadelphia, 279 NLRB 1034,-1035 (1986) The Board concluded that the Employer violated Section 8(a)(3) by refusing to grant an annual wage increase, and Section 8(aX5) by refusing to negotiate economic issues until agreement was reached on all noneconomic matters The Board states as follow The result of this strategy—a 6-month refusal to dis- cuss economic matters—unreasonably fragmented the negotiations and drastically reduced the parties' bargaining flexibility We find the Respondent's inordinately rigid approach to bargaining squarely at odds with the type of bargaining contemplated by the Act For over 6 months, the Respondent took the position that economic matters would not be discussed until the Union agreed to no strike and binding arbitration provisions The Respondent's action was contrary to the parties' agreed-upon ground rules and completely fragmented the negoti- ations [id ] 103 Executive Director Christian conceded that the distri- bution of the moneys was delayed in the 1986-1987 fiscal year because of the collective-bargaining process, i e, the presence of the Union Respondent's animus against the Union is established, and it has advanced no good reason for its refusal to honor the Union's request for a flat rate distribution in June as it had done the prior year, or to come up with a prompt counterproposal I conclude that Respondent's failure to respond to the Union's request for panty money distribution on June 22 was discnmma- tonly motivated in violation of Section 8(a)(3) and that its refusal at that time to bargain on the subject violated Section 8(aX5) 1°2 R Br,pp 51-57 103 See also NLRB v Patent Trader, 415 F 2d 190, 198 (2d Cir 1969), 426 F 2d 791 (1970), South Shore Hospital, 245 NLRB 848 (1979), enfd 630 F 2d 40 (1st Cif 1980), Nansemond Convalescent Center, 255 NLRB 563, 566-567 (1981) 838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The complaint alleges Respondent's unlawful refusal to agree to more frequent and lengthier bargaining session beginning June 2. The record shows that the Union re- quested a "marathon bargaining session" on that date, and that Respondent agreed "in principle." At the next session on June 22, Respondent stated that it did not un- derstand the request. At a so-called marathon session on July 29, Respondent's representatives arrived late and left early. With a projected lapse of almost 3 weeks be- tween the August 19 and September 9 bargaining ses- sions, the Union on September 2 again requested longer and more frequent bargaining sessions, and Respondent replied by blaming the Union. Subsequent to the Union's request on June 2, the parties held six bargaining sessions prior to October 22, when Respondent notified the Union that it would no longer negotiate.'" This com- prised a period of about 20 weeks, resulting in an aver- age of about one bargaining session slightly more than every 3 weeks. Prior to this span of time, Respondent had committed unfair labor practices, and during it sup- ported the circulation of an antiunion petition. The Board has had occasion to consider a similar case, where the union had asked for meetings more frequently than the existing schedule of one every 14 days. Cable Vision, 249 NLRB 412 (1980), enfd. 660 F.2d 1 (1st Cir. 1981). The administrative law judge concluded that a total of 10 sessions held over 6 months, i.e., sessions about every 2-1/2 weeks over a week 26-week period, "can hardly be characterized as diligent bargaining." The judge concluded that the employer was merely "marking time," and was giving the union a "runaround while pur- porting to be meeting . . . for the purpose of collective bargaining" (id., 249 NLRB at 420,421). The Board and the Court of Appeals for the First Circuit agreed. I reach the same conclusion here. Respondent's actions tended to dissipate support for the Union, and I find that beginning and after June 2, 1987, it refused to agree to more frequent and lengthier sessions in violation of Sec- tion 8(a)(5). The complaint allegation of unlawful refusal to pro- vide economic proposals or counterproposals since August 19 is related to the refusal to agree to lengthier and more frequent meetings. The record establishes that Respondent did refuse to make counterproposals. This was unlawful for essentially the same reasons as those advanced in connection with the refusal to agree to lengthier and more frequent sessions."5 The facts show that Respondent never replied to the Union's requests for information about employees with accurate information. Each request resulted in another inaccurate list. The unit was relatively small and it would appear to have been simple to provide accurate lists. The Union was entitled to this information under existing law, and I conclude that, by failing to provide it, Respondent thereby violated Section 8(a)(5) of the Act. The last issue is whether Respondent unlawfully with- drew recognition of the Union. On October 20, it noti- fied the Union that it would no longer negotiate with it 704 R. Exh. 18. 705 NLRB v. Cable Vision, 660 F.2d 1 (1st. Qr. 1981), enfg. 249 NLRB 412 (1980). except on the issue of parity money distribution. This constituted withdrawal of recognition.106 Respondent based its action on the filing of the decer- tification petition. The withdrawal of recognition took place about 2 weeks after the expiration of the certifica- tion year. It is well established that a certified union enjoys a presumption of majority status after such expira- tion, but that an employer may overcome this presump- tion by a showing of objective considerations providing reasonable grounds for a belief that a majority of the em- ployees no longer desired union representation. Howev- er, it is also well established that such asserted doubt must be raised "in a context free of unfair labor prac- tices." 07 "The majority issue must not have been raised by the Employer in a context of illegal antiunion activi- ties, or other conduct by the Employer aimed at causing dissatisfaction from the union.',108 In this case, Respondent committed both unfair labor practices and engaged in other conduct aimed at causing dissatisfaction with the Union. Thus, it unlawfully co- erced Woods and Grimes, discharged Woods, and de- moted and discharged Grimes, both union activists. It unlawfully withheld distribution of wage upgrade moneys and refused to bargain about them, causing em- ployees to be disturbed. Respondent permitted Chesley Pettijohn to circulate an antiunion petition among employees during working time, while denying Gina Woods an opportunity to talk to employees about their pay rates during the same time. Supervisors knew about the circulation of the first peti- tion, and participated in the circulation of the second one. Respondent told Pettijohn that he could not get his "money" while it was negotiating with the Union. Al- though Pettijohn professed that he and Respondent were only talking about a salary increase, Pettijohn thereafter conveyed to employees the message that they could get their wage upgrade moneys if they would get rid of the Union. The evidence shows that these reports caused employees to fix the blame for the nondistribution of the moneys on the Union instead of Respondent, which was holding the moneys. Pettijohn's exact relationship with Respondent is un- certain. However, the evidence shows that he told Union Representative Fletcher that he would be fired if he did not file the second petition. Although Pettijohn asserted and denied employee stories that Respondent was paying him for his antiunion activities, he received an unex- plained pay raise of over 50 percent in December. I conclude that Respondent's unfair labor practices and other activities tended to cause disaffection with the Union among the employees. Accordingly, it could not rely on the second petition as a reason for withdrawing recognition from the Union. 109 I therefore find that Re- spondent withdrew recognition from the Union on Octo- ber 20, 1987, in violation of Section 8 (a) (5) of the Act. In accordance with my fmdings above, I make the fol- lowing '°° Taurus Waste Disposal, 263 NLRB 309 (1982). 1 °7 Viking Lithographers, 184 NLRB 139 (1970). 108 Celanese Corp. of America, 95 NLRB 664, 673 (1951). 'o Electnc, 274 NLRB 595 (1985). CRISPUS ATTUCKS CHILDREN'S CENTER 839 CONCLUSIONS OF LAW 1. The Respondent, Crispus Attucks Children's Center, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 65, United Automobile, Aerospace and Ag- ricultural Implement Workers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has committed unfair labor practices violative of Section 8(a)(1) of the Act by telling an em- ployee that she was being discharged because of her union activities, and by telling another employee that things were changing because of the Union and because of the employee's involvement with the Union. 4. Respondent has committed unfair labor practices violative of Section 8(a)(3) and (1) of the Act by dis- charging Gina Woods on April 2, 1987; by relieving Gerard Grimes of his duties as a security manager and reducing his pay on May 15, 1987; and by discharging him on June 12, 1987—in each instance because of the employee's union activities and by refusing since June 22, 1987, to distribute to employees wage upgrade moneys in its possession, because of union animus. 5. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular-part-time teachers, teach- er's aides, assistant cook, dishwashers, bus drivers, bus monitors, maintenance employees, and tempo- rary assistance employees employed by Respondent at its Dorchester, Massachusetts facility, but exclud- ing other employees, head teachers, foster grandpar- ents, secretary, computer operator, bookkeeper, head nurse, nurse social workers, social worker su- pervisor, social worker clerical, assistant education coordinator/head teachers, education coordinator, Assistant Director, Administrative Assistant, Execu- tive Director, guards and supervisors as defined in the Act. 6. On October 7, 1986, the Union was certified as the exclusive bargaining representative of the employees in the above-described unit. 7. Respondent refused to bargain with the Union in violation of Section 8(a)(5) of the Act by: (a) Refusing to agree to the Union's request for more frequent and lengthier bargaining sessions, on and after June 2, 1987. (b) In response to the Union's requests, failing to supply it with accurate lists of employees with addresses and home telephone numbers. (c) Refusing to bargain with the Union over distribu- tion of wage upgrade moneys since June 22, 1987. (d) Failing to make any economic proposals or coun- terproposals to the Union since August 1987. (e) Withdrawing recognition of the Union on October 20, 1987, in a context of unfair labor practices and other conduct aimed at causing dissatisfaction with the Union. 8. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I recommend that it be or- dered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged Gina Woods on April 2, 1987, removed Gerard Grimes from his position as security manager on May 15, 1987, and reduced his pay, and discharged him on June 12, 1987, I shall recommend that it be ordered to offer each of them immediate and full reinstatement to his or her former position including in the case of Gerard Grimes the dual positions of teacher and security manager, dis- missing if necessary any employee hired to fill any of these positions, and to make each of them whole for any loss of earnings he dr she may have suffered by reason of Respondent's unlawful conduct, by paying each of them a sum of money equal to the amount he or she would have earned from the date of his or her unlawful demo- tion or discharge, including in the case of Grimes his un- lawful demotion from the job of security manager, to the date of an offer of reinstatement, less net earnings during such period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).110 I shall further recommend that Respondent be ordered to expunge from its records all references to its unlawful discharges of Gina Woods and Gerard Grimes, and its demotion of Grimes, and notify each of them in writing that such expunction has been made and that evidence of their unlawful discipline will not be used as a basis for future personnel actions against them. I shall also recommend that Respondent be ordered to make whole each of its employees or former employees for the interest they lost by reason of Respondent's dis- criminatory refusal to distribute wage upgrade moneys from June 22, 1987, to the date of subsequent distribution of such moneys, with interest to be computed in the manner described above. I shall further recommend that Respondent be ordered to recognize the Union, and, on request, bargain with it over wages, hours, and working conditions of the em- ployees in the above-described unit and, if agreement, is reached, reduce such agreement to writing. This obliga- tion shall include complying with the union requests for lengthier and more frequent bargaining sessions, the making of economic proposals or counterproposals, and supplying the Union with accurate lists of employees with addresses and home telephone numbers. This obli- gation shall not include bargaining over distribution of wage upgrade moneys to the extent that the parties have already reached agreement on this subject. I shall recommend an extension of the certification year. The issue is the extent of such extension. The first violation of Section 8(a)(5) took place on June 2, 1987. 110 Under New Horizons, interest is computed at the "short term Feder- al rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest accrued before January 1, 1987 (the effec- tive date of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651 (1977). 840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Since the Union was certified on October 7, 1986, utiliza- tion of the June 2, 1987 date would result in crediting Respondent with about 8 months of good-faith bargain- ing during the certification year. However, Respondent's unfair labor practices began on April 2, 1987, with its un- lawful discharge of Gina Woods, its subsequent discrimi- nation against Gerard Grimes, and its unlawful state- ments to them in the spring of 1987. In addition, Chesley Pettijohn began his distribution of the first antiunion peti- tion during working time with supervisory knowledge in the spring of 1987. All these actions were part of or complimentary to Respondent's creation of employee dis- satisfaction with the Union. In calculating the appropriate extension of the certifi- cation year, the Board does not utilize a "simple arithme- tic calculation," since this would not take into account an employer's "disruption of negotiations. . during the certification year." Colfor, Inc., 282 NLRB 1173 (1987). 111 Further, given Respondent's refusal to make any economic counterproposals except those concerning wage upgrade moneys and record evidence that it had not responded to 20 noneconomic proposals from the Union, it is unlikely that crediting Respondent with 8 months and extending the certification year by only 4 months would provide the parties with "a reasonable period of time in which the Union and the Respondent can resume negotiations and bargain for a contract with- out unduly saddling the employees with a bargaining representative which they may no longer wish to have represent them." (Ibid.) Taking these factors into consid- eration, I shall recommend a 9-month extension of the certification year to commence from the time Respond- ent first begins to bargain in good faith with the Union. I shall further recommend issuance of a broad Order in this case. The Board has stated that such an order is warranted when "it can be shown that a respondent. . . concurrently with the discriminatory discharge, engaged in other severe conduct violative of (the Act)." Hickmott Foods, 242 NLRB 1357 (1979). The record here shows that Respondent engaged in such conduct. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edl" ORDER The Respondent, Crispus Attucks Children's Center, Inc., Boston, Massachusetts, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Telling employees that they are being discharged because of their union activities, or that things are changing because of the Union and because of employee involvement with the Union. (b) Discouraging membership in District 65 United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, or any other labor or- Iii See also Glomac Plastics, 234 NLRB 1309 fn. 4 (1978) 112 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. ganization, by discriminatorily discharging or demoting employees or reducing their pay, by discriminatorily re- fusing to distribute wage upgrade moneys, or by dis- criminating against employees in any other manner with respect to their hire, tenure of employment, or other terms and conditions of employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Gina Woods and Gerard Grimes full rein- statement to their former positions, including in the case of Grimes the dual positions of teacher and security man- ager, dismissing if necessary any employee hired to fill any of those positions or, if any such positions no longer exist, to substantially equivalent positions without preju- dice to their seniority or any other rights and privileges of them, and make them whole for any loss of earnings either of them may have suffered because of Respond- ent's unlawful actions against them in the manner de- scribed in the remedy section of this decision. (b) Expunge from its personnel records or other files any reference to its unlawful discharge of Gina Woods and Gerard Grimes, and its demotion of Grimes, and notify each employees in writing that this action has been taken and that evidence of such discipline will not be used as a basis for future personnel actions against him or her. (c) Make whole each of its employees or former em- ployees for the interest they lost by reason of Respond- ent's discriminatory refusal to distribute wage upgrade moneys from June 22, 1987, to the date of subsequent distribution of such moneys, if any, in the manner de- scribed in the remedy of this decision. (d) Recognize the above-described Union as the exclu- sive bargaining representative in the following unit: All full-time and regular part-time teachers, teach- er's aides, assistant cook, dishwashers, bus drivers, bus monitors, maintenance employees and tempo- rary assistance employees employed by Respondent at its Dorchester, Massachusetts facility, but exclud- ing other employees, head teachers, foster grandpar- ents, secretary, computer operator, bookkeeper, head nurse, nurse social workers, social worker su- pervisor, social worker clerical, assistant education coordinator/head teachers, education coordinator, Assistant Director, Administrative Assistant, Execu- tive Director, guards and supervisors as defined in the Act. (e) On request, bargain with the above-described Union as the exclusive representative of the employees in the above-described unit and if agreement is reached reduce such agreement to writing. This obligation shall include complying with the Union's requests for length- ier and more frequent bargaining sessions, the making of economic proposals or counterproposals and supplying the Union with accurate lists of employees with address- es and home telephone numbers. The obligation shall not include bargaining over the distribution of wage upgrade CRISPUS ATTUCKS CHILDREN'S CENTER 841 moneys to the extent that the parties have already reached agreement on this subject The certification year is extended to 9 months from the first time that Respond- ent begins bargaining m good faith with the Union (f) Preserve and, on request, make available to the Board and its agents for copying all payroll records, social secunty payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due the terms of this Order (g) Post at its Dorchester, Massachusetts facility copies of the attached notice marked "Appendix " 1 is Copies of 113 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's au- thonzed representative, shall be posted by the Respond- ent immediately upon receipt and mamtamed for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (h) Notify the Regional Director m writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"