Petition — Stephens Institute v. National Labor Relations Board
Supreme Court brief1980
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Supreme Court, U.S,
FILED
we 8.0-307| Avs281980
MICHAEL RODAK, JR., CLERK
Netra ne anne
In the Supreme Court of the
United States
Octoser 1980 Term
StePHENS Institute, a corporation,
d/b/a AcApEeMy oF ART COLLEGE,
Petitioner,
Vs.
Nationa Lasor Revations Boarp,
Respondent,
CALIFORNIA FEDERATION OF ArT TEACHERS,
Intervenors.
Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
BENJAMIN H. ParkKINsoN
ACKERMAN, JOHNSTON, NorBera &
PaRKINSON
235 Montgomery Street, Suite 2400
San Francisco, California 94104
Telephone: (415) 981-3741
Counsel of Record
for Petitioner
Academy of Art College
SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105
i
A. QUESTIONS PRESENTED FOR REVIEW
1. Whether or not the National Labor Relations Board
acted arbitrarily and in excess of its jurisdiction in unilat-
erally setting aside the portion of a settlement agreement
dismissing previous charges against Stephens Institute
(Academy of Art College), but nevertheless holding the
Academy to a compromise stipulation abandoning the
Academy’s objection to jurisdiction which was part of the
same settlement.
2. Whether or not the Court of Appeals’ decision con-
flicts with that of the Supreme Court in NERB v. Yeshiva
University, ...... US. ....... 100 S.Ct. 856 (1980) in holding
without adequate factual determination that the Academy’s
department heads and art instructors are not managerial
employees exempted from coverage of the National Labor
Relations Act under the doctrine of NZRB v. Yeshiva
University.
B. LIST OF PARTIES
The caption of the case in this Court contains the names
of all parties to the proceeding in the Court of Appeals
for the Ninth Circuit.
ii
C. TABLE OF CONTENTS AND TABLE OF AUTHORITIES
Table of Contents
Page
A. Questions presented for review.................--.-:+--+0-00-+ i
1. Whether or not the National Labor Relations
Board acted arbitrarily and in excess of its
jurisdiction in unilaterally setting aside the
portion of a settlement agreement dismissing
previous charges against Stephens Institute
(Academy of Art College), but nevertheless
holding the Academy to a compromise stipula-
tion abandoning the Academy’s objection to
jurisdiction which was part of the same settle-
TNOINE osescuccnssensinancnsknnncosnnnnedhnpbibaieleasiamaecanen ana i
2. Whether or not the Court of Appeals’ decision
conflicts with that of the Supreme Court in
NLRB v. Yeshiva University, ...... USS. ......, 100
S.Ct. 856 (1980) in holding without adequate
factual determination that the Academy’s de-
partment heads and art instructors are not
managerial employees exempted from coverage
of the National Labor Relations Act under the
doctrine of NLRB v. Yeshiva University............ i
B LAB OF POP BOG nicnciccsosesnsisiiastsssecennceuneensieabaapaeamnaeee i
C. Table of Contents and Table of Authorities............ il
D. Reports of opinions below.....................ccccscsscsssssssessceess 2
E. Grounds on which jurisdiction of this Court is in-
TOI 5 cericcsesnasenionnisessscusnonetionsninsnsnsuseansndsinmtenetsoninadisanneanen 2
F. Statutes and regulations invoked in the petition
LOY COTGOTBEL 5.nccsinisinceonnncsssssnsvencsariicbarsiemeninanae 2
ili
i Pe OE Uh A ie ee es
1. One-sided rescission of a portion of a settle-
ment agreement and enforcement of the bal-
Tr Te Tr ri dicneniteiticercserewnintateeensonnenes
2. Managerial status of department heads and
POI sites cicrendccsencte-sslcccacshaiegstaadciiigmeiisanihnnaibedions
H. Federal jurisdiction in the Court of Appeals..........
Dik: | IIIS isis isccvsacticondciestdichamem-steusetiomiacavetencinataneinuane
1. The Court of Appeals’ decision has sanctioned
the NLRB’s flagrant departure from acceptable
adjudicatory standards established by this
Court in upholding the NLRB’s one-sided re-
scission of the portion of a settlement agree-
ment by which the Employer benefitted (with-
drawal of charges) while nevertheless holding
the Employer to the stipulation to jurisdiction
in the settlement agreement by which the Gov-
UTTIIIE WTII ncckaccctic hegeencsncerenesereniecwmickscpiaannte
2. The Court of Appeals’ decision conflicts with
this Court’s recent decisions in NLRB v. Yes-
hiva University, ...... USS. ....... 100 S.Ct. 856
(1980) and Trustees of Boston Unwersity v.
NLRB. ...... US. ....... 100 S.Ct. 1271 (1980), in
holding without adequate factual determination
that the Academy’s department heads and art
instructors are not exempted managerial em-
ployees under the Yeshiva University doctrine
Ti EN ia a ee
iv
Page
J. Appendix
1. Decision and Order; Cases 20-CA-12367, 20-
CA-12422, 20-CA-13369 .............-cccsccoecsee pickets 1
2. Decision and Order; Case 20-CA-13740.............. 79
3. Opinion, United States Court of Appeals for
I Pe case ei deteactacenttndcensecceustoninans 123
4. Judgment, United States Court of Appeals for
I I aca sctccranctchenenaneiieanciconeie 137
5. Order, United States Court of Appeals for the
Ninth Cireuit, denying rehearing......................-..- 149
Table of Authorities
Cases
A&A Sign Company v. Maughan, 419 F.2d 1152 (9th
FE Reta Ae nS SANDAL AE RE OS 9, 10
Emerick & Duncan Co. v. Hasey, 146 Fed. 688 (9th
1 NERDS perenne Peper RCS POR RO 10
Gulf States Manufacturers, Ine. v. NLRB, 598 F.2d
RE Cah Be Ue a, NT seiesiisesecccc cco snctwieenneocines 12
NLRB v. Yeshiva University, ...... US. ......, 100 S.Ct.
I I alee etaiaetesodcienseatesienionesconianmionscnsisnicanss ii, 7, 12, 13, 14, 15
Stoffela v. Nugent, 217 U.S. 499, 30 S.Ct. 600 (1910)... 9
Trustees of Boston University v, NLRB, ...... i
a ET I ch cen tcsncohinrececsnveeincsonrosnenivahnmncietes 12, 14,15
Page
Statutes
| 2
ods ricnntontnieesescunenerhahnnninnannateiil +
cs cascpsnnpceiseeslaiann sueeintinisaslipaion 7
Ne, ID isciseerenccserenesanewetentnsion | 2
Regulations
29 Code of Federal Regulations, Section 103.1 )
NLRB Field Manual:
Section 10146, 10146.1....0.00.... 2
Section 10150, 10150.1........0.00...... 3
Section 10152, 10152.1D...ecccscvscwnee anciuie a
EEE ee 3
In the Supreme Court of the
United States
Octoser 1980 TrrRM
STEPHENS INSTITUTE, a corporation,
d/b/a Acapemy or Art COLLEGE,
Petitioner,
vs.
NaTIoNAL Lasor Revations Boarp,
Respondent,
CALIFORNIA FEDERATION OF ArT TEACHERS,
Intervenors.
Petition For Writ Of Certiorari
2
D. REPORTS OF OPINIONS BELOW
The opinion of the Court of Appeals for the Ninth Cir-
cuit appears in 620 F.2d 720 (9th Cir. 1980). The National
Labor Relations Board decisions in the two consolidated
eases are reported in 241 NLRB No. 71, 1978-79 CCH
NLRB Decisions § 15,687 (1979), and 241 NLRB No. 133,
1978-79 CCH Decisions { 15,759 (1979).
E. GROUNDS ON WHICH JURISDICTION OF THIS
COURT IS INVOKED
(i) The judgment sought to be reviewed is dated May 27,
1980, and was entered July 3, 1980.
(ii) Petition for rehearing was filed May 14, 1980, Re-
hearing was denied June 25, 1980.
(iii) This Court has jurisdiction to review the judgment
by writ of certiorari under authority of 29 USC 3160(e)
and 28 USC 1204.
F. STATUTES AND REGULATIONS INVOLVED IN THE
PETITION FOR CERTIORARI
NLRB Jurisdictional Standard for colleges
29 Code of Federal Regulations, Section 103.1
“Colleges and Universities —The Board will assert
its jurisdiction in any proceeding arising under section
8, 9, and 10 of the Act involving any private nonprofit
college or university which has a gross annual revenue
from all sources (exeluding only contributions which,
because of limitation by the grantor, are not available
‘for use for operating expenses) of not less than $1
million, (As added December 3, 1970, 35 F. R. 18371.)”
NLRB Field Manual Sections concerning settlements
Section 10146, 10146.1
“10146 Nature of informal settlements
10146.1 In general: An informal settlement agree-
ment is a simple written agreement, providing that
3
the charged party will take certain action in remedy
of his unfair labor practices. It requires the approval
of the Regional Director but does not provide for a
Board Order or court decrees.”
Section 10150, 10150.1
“10150 Effectuation, performance, and closing of all-
party settlement case
10150.1 Action wpon approval of agreement:
Upon approval by the Regional Director of a settle-
ment agreement in which the charging party joins, the
parties through their attorneys or representatives
should be informed of the fact and the charged party
through his attorney or representative should be re-
quested immediately to take the action called for in
the agreement. He should be furnished with sufficient
copies of the notice and be given whatever other assist-
ance the Region can render toward carrying out the
agreement.”
Section 10152, 10152.1b
“10152 Effectuation, performance, and closing of
“Unilateral” settlement case
10152.1b Dismissal of charge: Upon approval of an
informal settlement agreement, the Regional Director
should dismiss the charge in accordance with the terms
of the agreement.”
Section 10154
“10154 Noncompliance: In the event that, in the
opinion of the Regional Director, the provisions of the
agreement have not or will not be carried out, he will
notify the parties of this fact and inform them that,
despite the execution of the agreement, such action as
appears necessary to effectuate the purposes of the
Act will be taken. Thereafter, appropriate action, as
if there had been no settlement agreement, will he
4
taken; complaint will be issued, or reissued, and
pressed on its merits and not on the basis of nonecom-
pliance with the agreement.”
Statutory provision concerning urging of objections not
made before the Board
29 USC 160(e)
“The Board shall have power to petition any court
of appeals of the United States, or if all the courts
of appeals to which application may be made are in
vacation, anv district court of the United States, with-
in any circuit or district, respectively, wherein the un-
fair labor practice in question occurred or wherein
such person resides or transacts business, for the en-
forcement of such order and for appropriate tempo-
rary relief or restraining order, and shall file in the
court the record in tiie proceedings, as provided in
section 2112 of Title 28. Upon the filing of such peti-
tion, the court shall cause notice thereof to be served
upon such person, and thereupon shall have jurisdie-
tion of the proceeding and of the question determined
therein, and shall have power to grant such temporary
relief or restraining order as it deems just and proper,
and to make and enter a decree enforcing, modifying,
and enforcing as so modified, or setting aside in whole
or in part the order of the Board. No objection that
has not been urged before the Board, its member,
agent, or agency, shall be considered by the court,
unless the failure or neglect to urge such objection
shall be excused because of extraordinary cireun-
stances. The findings of the Board with respect to
questions of fact if supported by substantial evidence
on the record considered as a whole shall be conclusive.
If either party shall apply to the court for leave to
adduce additional evidence and shall show to the satis-
faction of the court that such additional evidence is
material and that there were reasonable grounds for
5
the failure to adduce such evidence in the hearing be-
fore the Board, its member, agent, or agency, the
court may order such additional evidence to be taken
before the Board, its member, agent, or agency, and
to be made a part of the record. The Board may mod-
ify its findings as to the facts, or make new findings
by reason of additional evidence so taken and filed,
and it shall file such modified or new findings, which
findings with respect to questions of fact if supported
by substantial evidence on the record considered as a
whole shall be conclusive, and shall file its recom-
mendations, if any, for the modification or setting
aside of its original order. Upon the filing of the record
with it the jurisdiction of the court shall be exclusive
and its judgment and decree shall be final except that
the same shall be subject to review by the appropriate
United States Court of Appeals if application was
made to district court as hereinabove provided, and
by the Supreme Court of the United States upon writ
of certiorari or certification as provided in section
1254 of Title 28.”
G. STATEMENT OF THE CASE
1. One-Sided Rescission of a Portion of a Settlement Agree-
ment and Enforcement of the Balance by the NLRB.
In April 1977, the National Labor Relations Board filed
a complaint against Stephens Institute, doing business as
the Academy of Art College.’ The complaint alleged dis-
criminatory discharges and other violations of the Act. The
Academy in its answer denied the charges and, moreover,
denied that it had received the requisite gross revenues of
$1,000,000 per year to become subject to the Board’s stand-
ard for exercising jurisdiction over colleges (set forth in
Title 29 Code of Federal Regulations, Section 103.1 as to
1. Throughout the petition, we will refer to the petitioner by its
common name, the Academy of Art College.
6
non-profit colleges and made applicable to colleges for
profit such as the Academy of Art by NLRB decision).
At the commencement of the hearing before the Admin-
istrative Law Judge in August 1977, counsel for the Gen-
eral Counsel introduced into evidence two complementary
settlement agreements, in which it was contemplated that
the General Counsel would withdraw certain of the charges
of discriminatory discharge and that others would remain
to be tried. An exhibit to one of the settlement agreements
was a stipulation between the parties that the Academy had
grossed $1,000,000, which would satisfy the NLRB’s juris-
dictional standard. Counsel for the General Counsel then
immediately withdrew certain of the discriminatory dis
charge counts as contemplated in the settlement.
After conclusion of the hearing on the other charges,
but before decision by the Administrative Law Judge, the
Regional Director withdrew her approval of the settlement
agreement on the ground that the Academy had not com-
plied with its terms.
The case was reopened and the dismissed counts were
reinstated over objection of the Academy. The case then
proceeded to conclusion without proof of jurisdiction other
than the stipulation which was an exhibit to the settlement
agreement. In its brief to the Administrative Law Judge
after the evidence had been submitted, the Academy argued
that if he should sustain the Regional Director’s action in
setting aside the settlement agreement, there would exist a
fatal defect of proof of jurisdiction. The Academy again
argued to the Board and the Court of Appeals that there
was no prooi of jurisdiction in the record,
Nevertheless, the Administrative Law Judge, the Board
and the Court of Appeals all upheld the power of the NLRB
to thus arbitrarily set aside the withdrawal of charges econ-
templated in the settlement agreement while yet retaining
7
the benefits. They have all found jurisdiction in the first
consolidated case on the basis of the Academy’s stipulation
which was part of the settlement.
2. Managerial Status of Department Heads and Instructors
Pending decision after argument of these consolidated
eases before the Court of Appeals, this Court announced its
decision in NLRB v. Yeshiva University, ... U.S. ...., 100
S.Ct. 856 (1980). Yeshiva expanded to a college faculty the
concept of managerial employees who have been judicially
exempted from the National Labor Relations Act. The man-
agerial issue had not been raised at the hearings of these
two consolidated cases and neither the Administrative Law
Judges nor the NLRB made any factual findings as to the
managerial status of the Academy’s department heads and
instructors who were found to have been discriminatorily
discharged. Findings of the Administrative Law Judges,
however, include strong indications that the Academy’s
department heads and instructors are managerial em-
ployees. The department heads transmitted instructions
from the administration to rank and file instructors. The
Faculty Senate, elected in part by and from the ranks of
instructors, met and deliberated on such managerial sub-
jects as class size, curriculum, status of faculty members,
student counseling, professional responsibilities of teachers,
leaves of absence and terminations. The Senate was en-
trusted with the sole power to discharge faculty members.
H. FEDERAL JURISDICTION IN THE COURT OF APPEALS
Federal jurisdiction in the Court of Appeals existed to
hear the case by virtue of 29 U.S.C. Section 160(f). Peti-
tioner contends that by reason of the arguments set forth
8
herein, neither the National Labor Relations Board nor the
Court of Appeals had jurisdiction to find petitioner guilty
of an unfair labor practice on the record before those tri-
bunals.
I. ARGUMENT
1. The Court of Appeals’ Decision Has Sanctioned the NLRB's
Flagrant Departure from Acceptable Adjudicatory Standards
Established by This Court In Upholding the NLRB's One-Sided
Rescission of the Portion of a Settlement Agreement by Which
the Employer Benefitted (Withdrawal of Charges) While
Nevertheless Holding the Employer to the Stipulation to
Jurisdiction In the Settlement Agreement by Which the
Government Benefitted.
The only proof of jurisdiction in the record is contained
in a stipulation to jurisdiction by the Academy made solely
for the purpose of compromise, which was included as part
of a settlement agreement (supra, p. 6). Yet the NLRB
had set aside the settlement agreement and reinstated and
tried and convicted the Academy of the charges in the com-
plaint which the Board had previously withdrawn pursuant
to the settlement (supra, p. 6). Over the Academy’s objec-
tion, the Board ruled that it had the power to hold the
Academy to its settlement stipulation while, nevertheless,
rescinding the withdrawal of charges. We assert that the
reason the General Counsel did not, in the face of the
Academy’s objection, move to prove that the Academy had
received $1,000,000 gross income is because the facts are
to the contrary in the first consolidated proceeding.’ The
Court of Appeals has enivrced the Board’s order.
This action by the Board violates a broad principle of
fair dealing which the Courts have applied in a variety of
1. While gross receipts in excess of $1,000,000 were proved in
the second proceeding, that involved a later period of time, and
we are confident that this jurisdictional standard cannot be proved
as to the first proceeding.
9
situations. In Stoffela v. Nugent, 217 U.S. 499, 30 S.Ct. 600
(1910) this Court, speaking through Mr. Justice Holmes,
held that a decision allowing a similar one-sided rescission
did not result in “substantial justice” (30 S.Ct. at 601). In
Stoffela, defendant had acted fraudulently in obtaining a
deed and mortgage. However, in performance of the void-
able agreement, defendant had satisfied certain judgment
liens. Plaintiff then obtained judgment setting aside a deed
to defendant without being required to reimburse defendant
for the sums it had advanced to benefit the property. The
Supreme Court reversed on the ground that when one has
a right to rescind a transaction, the Courts will endeavor
to do substantial justice to the other party even though the
other party may have been guilty of improper conduct. The
Court states (30 S.Ct. at 601).
“Tt is true that the defendant acted fraudulently and
knew what he was about. But a man, by committing a
fraud, does not become an outlaw and caput lupinum.
National Bank & L. Co. v. Petrie, 189 U.S. 423, 425,
47 L. ed. 879, 880, 23 Sup. Ct. Rep. 512. He may have
no standing to rescind his transaction, but when it is
rescinded by one who has the right to do so, the courts
will endeavor to do substantial justice, so far as is
consistent with adherence to law.”
Previously, the Court of Appeals for the Ninth Circuit
has applied this fundamental principle in varied contexts.
In A&A Sign Company v. Maughan, 419 F.2d 1152 (9th
Cir, 1969) a compromise agreement had been entered into
between a trustee in bankruptcy and a creditor. Purporting
to act under its broad discretion to grant or deny approval
to such an agreement, the Bankruptcy Court had attempted,
over the objection of the creditor, to remove a materia!
10
part of the stipulation and yet enforce the rest of the agree-
ment. This the Court held may not in good conscience be
done, stating (419 F.2d at 1155):
“The bankruptcy court in exercise of its equitable
powers can set aside a stipulation entirely if the inter-
ests of justice so require and if the parties can be
restored to the positions they occupied before they
entered the stipulation. [Citations omitted.] But it
cannot remove a material part of the stipulation over
the objec.ion of one of the parties to it and enforce
the rest of the agreement. (HMmerick & Dunean Co. v.
Hasey (9th Cir. 1906) 146 F. 688; see United States
v. Southern Constructors, Inc., supra.)”
In Emerick & Duncan Co. v. Hascy, 146 Fed. 688 (9th Cir.
1906), on which the court relied in A@A Sign Company (419
F.2d at 1155) this fundamental principle of justice had been
recognized in a different context. Emerick & Duncan was
an unfair competition case in which defendant had adopted
a trade name similar to that of plaintiff in order to mis-
lead customers and capture some of the plaintiff’s goodwill.
Prior to trial, defendant had stipulated to confess judg-
ment, change its name and take other remedial action in
consideration of plaintiff’s agreement not to levy execution.
The trial court enforced defendant’s obligations under the
agreement, but because of misrepresentations of defendant,
relieved plaintiff of its agreement not to levy execution and
awarded damages to plaintiff. The Court of Appeals
reversed, stating (146 Fed. at 695):
“Tt is a fundamental principle of equity that one
party to an agreement, by whatever name called,
whether contract, stipulation, or anything else, cannot
be relieved of its burdens while holding on to its bene-
fits. That is exactly what the appellees sought to do,
and what they were permitted to do by the court below.
They did not offer to put the appellant in statu quo,
even to the extent that it was possible to do so; they
11
did not offer to permit the appellant’s default to be
set aside and the interlocutory decree to be vacated,
to the end that the appellant might, if it elected to do
so, contest the suit on the merits; but, holding on to
the substantial advantages secured by virtue of the
stipulation, they asked to be, and were, by the judg-
ment appealed from, relieved of the one and only obli-
gation they agreed to perform as a consideration for
the benefits thus received.”
“In this there was manifest error, for which the
judgment appealed from must be, and is, reversed,
with instructions to strike out that portion thereof
providing ‘that the complainants * * * be not required
to enter satisfaction of this decree, as provided by the
sixth clause of the stipulation filed herein upon the 3d
day of December, 1904.’ ”
The Court of Appeals dismissed this argument with the
pronouncement, on an apparent unclean hands theory, that
the Academy has no standing to complain of the disparate
treatment (620 F.2d at 725). Yet the doctrine of these cases
contemplates that one party may have been guilty of con-
duct permitting another to rescind. The Court of Appeals
dismissed the argument on the further ground that the
stipulation remained in the record. Yet the stipulation re-
mained in the record because the Administrative Law
Judge was required to decide whether or not the Regional
Director’s disapproval of the settlement was justified. The
Academy gave timely notice that if the disapproval of the
settlement agreement were upheld, there would be no proof
of jurisdiction. Yet the General Counsel failed to seek re-
opening to introduce such proof. We contend that he did
not do so because no such proof existed,
The well-accepted principle forbidding one-sided rescis-
sion should in all good conscience he enforced wpon the
National Labor Relations Board in its administration of
12
the settlement of labor disputes. The importance of settle-
ment of labor disputes was emphasized recently by the
Court of Appeals for the Fifth Circuit sitting in bane. In
Gulf States Manufacturers, Inc. v. NLRB, 598 F.2d 896 (in
bane, 5th Cir, 1979), the Court held that the National policy
in favor of settlement of labor disputes required a limita-
tion upon the discretion of the NLRB to set aside a with-
drawal of charges which had been agreed upon as part of
a settlement. The Court reasoned in that case that the
incentives to an employer for voluntary disposition of labor
disputes would be substantially eroded if the NLRB were
to be permitted to reinstate withdrawn charges because of
an unrelated violation by the Employer.
The reasoning of the Court in Gulf States is fully appli-
cable to this case, The ruling of the Court of Appeals sub-
stantially erodes the incentives of a party—whether em-
ployer or union—to enter into a settlement agreement, A
party must now recognize, at least in the Ninth Circuit,
that the NLRB may subsequently choose to set aside a por-
tion of such a settlement agreement, but nevertheless,
enforce the remainder of it. We submit that, like the power
the Board sought to exercise in Gulf States, such a power
is inimical to the National policy in favor of voluntary
settlement of labor disputes.
2. The Court of Appeals’ Decision Conflicts with This Court's
Recent Decisions in NLRB v. Yeshiva University, ...... U.S. ......1
100 S.Ct. 856 (1980) and Trustees of Boston University v.
NLRB, ...... U.S. ....... 100 S.Ct. 1271 (1980), in holding with-
out Adequate Factual Determination That the Academy's
Department Heads and Art Instructors Are Not Exempted
Managerial Employees Under the Yeshiva University Doc-
trine.
Prior to this Court’s decision in NLRB v. Yeshiva Uni-
versity, ...... USS. ......, 100 S.Ct. 856 (1980), the Board took
13
the position that the managerial employee concept did not
apply to faculty members of a college (id. at 863). Since
the Academy accordingly did not raise the issue, the Board
made no findings as to whether or not the Academy of Art
faculty members are managerial employees.
When the Academy raised the issue on appeal, the Court
held that ordinarily such a controlling pronouncement of
the Supreme Court as in Yeshiva would constitute an ex-
traordinary circumstance under Section 8e of the National
Labor Relations Act, which would permit an employer to
raise such a jurisdictional issue for the first time on appeal.
However, the Appellate Court opinion proceeds to deter-
mine that Yeshiva is not applicable because the Academy
is not a “mature” university and that faculty members do
not share a policy-making role (Appendix, p. 136),
The record contains no basis for such a distinction, In
Yeshiva University, this Court emphasized the managerial
aspect of the faculty committees (100 S.Ct. at 859), even
though university-wide policies were formulated by the
central administration with the approval of the Board of
Trustees (ibid.). Similarly, at the Academy of Art, the
Faculty Senate, which includes instructors and department
heads, confers with the administration on all matters of
scheduling and curriculum (supra, p. 7). The Faculty
Senate discusses, among other matters, class size, curricu-
lum, status of faculty members, student counseling, pro-
fessional responsibilities of teachers, leaves of absences
and terminations (supra, p. 7). The Senate is entrusted
with the sole power to discharge faculty members. Indeed,
in one of the consolidated cases, the Appellate Court’s
opinion holds the Academy guilty of discrimination by rea-
son of a discharge by a faculty panel affirmed by the Fac-
ulty Senate (Appendix, p. 131). Six of the dischargees were
14
department heads. The Administrative Law Judge had
found, “clearly, Stephens and Haight cannot effectively
administer the entire school alone, and must rely, to some
extent, upon intermediaries between them and rank-and-
file instructors” (Appendix, p. 17), Surely, these are man-
agerial powers under the Yeshiva University doctrine. Yet,
the NLRB in this case ordered disestablishment of the
Faculty Senate as a company union,
We believe that the few findings the NLRB made which
ean be applied to the question of managerial status prove
that these employees are managerial. There is no basis in
the record for the Court’s opposite finding, The NLRB
made no such finding. The Appellate Court purported to
find, without factual analysis, that none of the department
heads or instructors has managerial status. This summary
conclusion is in contrast to the detailed analysis of the
appellate court which was affirmed by the Supreme Court
in Yeshiva University. The appellate court findings in Yes-
hiva University are discussed at 100 S.Ct. 859 to 860.
At the very least, this jurisdictional question should have
been referred to the Administrative Law Judge with in-
structions to take evidence and make findings. The Yeshiva
University doctrine deserves a more thorough considera-
tion before being so limited as the Appellate Court has
done, In Trustees of Boston University v. NLRB, ...... USS.
ssa , 100 S.Ct. 1271 (1980), this Court summarily vacated
and remanded the case for reconsideration in the light of
Yeshiva University. Yet, the Appellate Court’s opinion in
Boston University included a much more elaborate evalua-
tion of managerial status of chairpersons (575 F. 2d 301 at
305) than the summary dismissal of the issue by the Court
below.
15
We urge that on this ground alone, the Court should
reverse and remand for reconsideration in the light of
Yeshwa University v. NLRB, ...... US. ......, 100 S.Ct. 856
(1980).
3. CONCLUSION
We ask that this Court grant certiorari in order to con-
sider whether the National Labor Relations Board has
adopted an arbitrary practice in asserting a power to set
aside portions of a settlement agreement and vet enforce
another portion of the settlement against a party. We sub-
mit that, instead, an agency of the Government must act
with substantial justice toward all parties who appear be-
fore it. If the Court should not choose to review this policy
of the Board, we ask that the Court summarily reverse and
remand the case for reconsideration in the light of NURB
v. Yeshiva University, ...... US. ......, 100 S.Ct. 856 (1980) as
was done in Trustees of Boston University v. NLRB, ......
US. ....... 100 S.Ct. 1271 (1980).
Dated: August 18, 1980.
Respectfully submitted,
ACKERMAN, JOHNSTON, NorBerc &
PARKINSON
By Bensamin H. Parktnson
Benjamin H. Parkinson
Counsel of Record for Petitioner
Stephens Institute
(Academy of Art College)
Appendix I
241 NLRB No, 71
FPT
D—4076
San Francisco, Calif.
United States of America
Before the National Labor Relations Board
Cases 20—-CA—12367 and
20—_CA—12422
Case 20—CA—13369
STePHENS [nstiTuTE, d/b/a ACADEMY OF ART COLLEGE
and
CALIFORNIA FEDERATION OF ArT TEACHERS, LocaL No. ONE
StrePHEns Institute, d/b/a ACADEMY OF ART COLLEGE
and
CALIFORNIA FEDERATION OF Art TEACHERS, LocaL No. OnE
and
ACADEMY OF ArT CoLLEGE Facuuty SENATE
Party in Interest
2 Appendix
DECISION AND ORDER
On March 23, 1978, Administrative Law Judge Russell L.
Stevens issued the attached Decision in this proceeding.
Thereafter, the Respondent filed exceptions and a support-
ing brief. The General Counsel filed limited cross-excep-
tions and resubmitted as his prief to the Board his brief to
the Administrative Law Judge. The Charging Party also
filed limited cross-exceptions and a supporting brief, The
Respondent then filed an answering brief and made a mo-
tion requesting the Board to hear oral argument in the
instant case.! The General Counsel and the Charging Party
opposed this motion and the General Counsel moved to
strike the Respondent’s answering brief. The Respondent
subsequently filed a reply brief to the General Counsel’s
motion to strike its answering brief.*
Pursuant to the provisions of Section 3(b) of the Na-
tional Labor Relations Act, as amended, the National Labor
Relations Board has delegated its authority in this pro-
ceeding to a three-member panel.
1. The Respondent’s request for oral argument is hereby denied,
because the record, including the briefs, adequately presents the
issues and positions of the parties.
2. The General Counsel’s motion to strike the Respondent’s
answering brief is hereby denied.
Pursuant to Section 102.133(a) and (b) the General Counsel’s
motion to strike Respondent’s November 2, 1978, and November 28,
1978, correspondence to the Board is hereby denied and that corre-
spondence and the responses thereto are hereby made a part of the
record in the instant proceeding.
Appendix 3
The Board has considered the record and the attached
Decision in light of the exceptions and briefs and has de-
cided to affirm the rulings, findings’ and conclusions* of
3. The Administrative Law Judge made several minor factual
misstatements which do not affect the validity of his conclusions.
Contrary to the Administrative Law Judge's decision, the record
reveals that one of the instruetors, Mike Dattel, had a contract of
employment with the Respondent prior to January 1977. The reeord
also reveals, contrary to what is indicated in the decision, that both
Pratchenko and Rees have worked for the Respondent sinee Jan-
uary 1977, Pratechenko having had two of three classes canceled
and Rees two of four classes canceled, in September 1977. The
Administrative Law Judge also inadvertently excluded the name
of Anna Rosich from the list of names of employees whom
Stephens demanded sign a “standard teacher’s contract,” and
included the names of Doyle and Sher, whom the record shows were
not requested to sign such contracts. The Administrative Law Judge
also stated in the decision that Sher and Wojak were the only
instructors in the printmaking department at the time of the
hearing. However, the record discloses that Sher was not employed
by the Respondent after September 1977, and that one Jim Reed
was teaching in that department. The decision also states that
Haight testified that no striker listed on the revised schedule was
given classes for the fall 1977 term. However, our review of the
record shows that Haight did not so testify. We also correct the
Administrative Law Judge’s mistaken finding that the eight classes
which the Respondent conducted during the fall 1977 term with
less than minimum enrollments were conducted by nonstriking
instructors; the record shows that only four of these classes were
taught by nonstriking faculty members. We further note that the
Respondent did not offer any evidence demonstrating that Wojak
was offered classes, but failed to report for them.
The Respondent contends that Doyle and Pratechenko were super-
visors, and, accordingly, it has no duty to reinstate them. The
Administrative Law Judge found that Doyle, a cochairman of the
fine arts department, had been demoted to the level of a rank-and-
file instructor at the time of his termination and hence his status
prior to that time was immaterial. The Administrative Law Judge
also determined that Pratchenko, the other cochairman of the fine
arts department, was not treated as, nor given the responsibility of,
more than a rank-and-file instructor after mid-November 1976. Our
review of the record persuades us that Doyle and Pratchenko at no
time material to this proceeding had any supervisory authority
regardless of any title by which the Respondent styled them.
Accordingly, we find that neither man was a supervisor during the
time pertinent to this proceeding.
4. The Administrative Law Judge inadvertently failed to in-
elude Rees on the list of persons denied employment in Conclusions
of Law 6(c) of his Decision.
+ Appendiz
the Administrative Law Judge, to modify his remedy,° and
to adopt his recommended Order, as modified herein.
The Respondent has vigorously contended that the con-
solidated complaint in the instant case must be dismissed
because there is no proof in the record that it falls within
the discretionary jurisdictional standard established by the
Board for private schools. The only proof of jurisdiction,
the Respondent points out, is contained in a stipulation
of facts made pursuant to an informal partial settlement
between the Respondent and the Charging Party. In this
stipulation, the Respondent admitted facts which would
permit the Board to find that the Respondent fell within
the Board’s statutory and discretionary jurisdictional
amounts. The Respondent argues that the Board is not
entitled to rely upon this stipulation in order to find juris-
diction, The efficacy of that stipulation, the Respondent
contends, was vitiated when the Regional Director with-
5. The Admnistrative Law Judge found that the Respondent
discharged the unfair labor practice strikers by a letter dated
January 28, 1977, which advised the strikers that those who did
not return to work on January 31 would be “permanently replaced.”
We find merit in the eross-exeeption of the General Counsel, how-
ever, which contends that Stephens’ letter of January 24, 1977, to
the faculty constituted the discharge of the strikers. This letter
stated that all instruetors would be required to notify the Respond-
ent by January 26 of their intention to teach “or their resignations
would be regretfully accepted.” Accordingly, we find the date of
the unfair labor practice strikers’ discharge to be January 24, 1977.
The Administrative Law Judge having found that the unfair
labor practice strikers made an unconditional offer to return to
work on February 16, 1977, ordered backpay, with interest, to
commence on February 17, 1977. Consistent with our recent decision
in Abilities & Goodwill, 241 NLRB No. 5 (1979), we hereby modify
the remedy of the Administrative Law Judge to accord backpay to
the unfair labor practice strikers from the date of their discharges,
which we find to be January 24, 1977. Member Penello, in aeceord
with his dissenting opinion in that ease, would not modify the
Administrative Law Judge’s remedy.
Appendix 5
drew approval of a separate informal settlement agree-
ment that had been executed between it and the Board.
We find the Respondent’s arguments on this issue wholly
unpersuasive. As noted, the record demonstrates that the
Respondent entered into two informal partial settlement
agreements, one with the Charging Party, another with the
Regional Director. The informal partial settlement agree-
ment between the Respondent and the Regional Director
settled certain allegations contained in the consolidated
complaint in Cases 20—CA—12367 and 20—CA—12422,
and the complaint was amended accordingly at the hearing.
This settlement was contingent upon the Respondent's
continued compliance with the terms of that agreement.
The Respondent also entered into an informal partial
settlement agreement with the Charging Party in which
the Respondent agreed, inter alia, to reinstate certain
named individuals and the Charging Party agreed, inter
alia, to request that the General Counsel withdraw certain
paragraphs of the consolidated complaint, Pursuant to this
agreement, these parties also entered into a stipulation
of facts in which the Respondent admitted facts which
brought it within the statutory and discretionary juriscie-
tional amount requirements of the Board. By the express
terms of the agreement, this stipulation was to be “received
into evidence in the unfair labor practice proceeding in
Cases 20—CA—12367 and 20—CA—12422” and the facts
admitted therein were to be “deemed true for the purposes
of that proceeding.” The Charging Party and the Respond-
ent also agreed to enter into a Stipulation for Certification
Upon Consent Election in which the Respondent also made
factual admissions bringing it within the Board’s statutory
and discretionary jurisdictional amount requirements;
pursuant to the terms of the agreement, this stipulation
6 Appendix
was also entered into the record in the instant unfair labor
practice proceeding.
The Respondent now contends that it was “manifestly
unjust for the Administrative Law Judge to hold Respond-
ent to the stipulation concerning jurisdiction which Re-
spondent entered into only in the interest of settlement...
and from which the Board has withdrawn.” We perceive
no unjust result that would arise in affirming the Adminis-
trative Law Judge’s finding as to jurisdiction which was
based upon the Respondent’s stipulations. These stipula-
tions, once entered into evidence, constituted a jrdicial
admission on the Respondent’s part as to the facts con-
tained therein. Such an admission has the effect of a
confessory pleading and its principal characteristie is that
it is conclusive upon the party making it. hg., The Kroger
Co., Houston Division, 211 NLRB 363, 364 (1974): see,
generally, 9 Wigmore, A Treatise on Evidence in Trials
at Common Law, §§ 2588, 2590 (3d ed. 1940). The Respond-
ent made these stipulations in contemplation of the hearing
and expressly provided for them to he entered into and
made a part of the record in the instant proceeding. At no
time during the proceeding did the Respondent or any of
the other parties to the instant case seek to withdraw from
them or introduce evidence contrary thereto. To accept the
Respondent’s contentions on this matter would permit the
Respondent to commit unfair labor practices post the hear-
ing and in breach of the settlement agreement between it
and the Region and he thereby relieved of admissions it
had made on the record in the hearing by the Regional
Director’s issuance of a complaint based on the Resnond-
ent’s unlawful eonduect. Such a result would he wholly
anomalous and it has no basis in law or logie. The only
Appendix 7
case cited by the Respondent in support of its position,
Bogart v. United States, 169 F.2d 210 (10th Cir. 1948), is
not inconsistent with our holding in that at no time during
the hearing herein did any of the parties seek to withdraw
from the stipulations made in the stipulation of facts and
the Stipulation for Certification Upon Consent Election. We
thus find that the Respondent is bound by its stipulations
and that the Administrative Law Judge properly found
that the Respondent falls within the Board’s jurisdiction.
ORDER
Pursuant to Section 10(¢c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations Board
adopts as its Order the recommended Order of the Adminis-
trative Law Judge, as modified herein, and hereby orders
that the Respondent, Stephens Institute, d/b/a Academy
of Art College, San Francisco, California, its officers,
agents, successors, and assigns, shall take the action set
forth in the said recommended Order, as so modified:
1. Substitute “January 24” for “January 28” in para-
graph 1(¢c)(2) and for “February 17” in paragraph 2(c).
2. Substitute the attached notice for that of the Admin-
istrative Law Judge.®
Dated, Washington, D.C. March 26, 1979
EEE EEE EEE EEE EEE EEE EERE
John H. Fanning, Chairman
John A. Penello, Member
John C. Truesdale, Member
NATIONAL LABOR RELATIONS BoarRD
(SEAL)
6. The attached notice adds the name of Joseph Rees to those
employees named in the last paragraph of the Administrative Law
Judge’s notice.
8 Appendix
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
We Witt Nor interfere with, restrain, or coerce our
employees in the exercise of rights guaranteed to them by
Section 7 of the National Labor Relations Act, in violation
of Section 8(a)(1) of said Act by: interrogating our em-
ployees concerning their protected activities; threatening
our employees with termination if they refused to sign in-
dividual employment contracts; threatening our employees
with physical injury if they engage in future protected
activity ; threatening to lock out employees who support the
California Federation of Art Teachers, Local No. One
(Union); offering to employees more work at a higher
salary if they will abandon their protected activity; soli-
citing employees to engage in surveillance of union meet-
ings; or threatening to close our school rather than deal
with the Union.
We Wu Nor dominate, assist, contribute to the support
of, or interfere with the Academy of Art College Faculty
Senate (Faculty Senate), or give effect to the commitment
made and distributed by us to our students and employees
on June 8, 1977.
We Wit Nor recognize the Faculty Senate, or any sue-
cessor thereto, as the representative of our employees con-
cerning wages, rates of pay, hours of employment, and
other terms and conditions of employment.
We Wr Nor vary or abandon any wage, hour, seniority,
or other substantive benefit established for our employees
because of the aforesaid agreement, or prejudice the asser-
Appendix 9
tion by our employees of any right they have derived as a
result of said agreement.
WE Wit Nor discharge our employees because of their
union or other protected activities.
We Wi Nor discharge our employees because of their
participation in unfair labor practice strikes against us, or
fail to reinstate them after they have made unconditional
offers to return to work.
We Wut Nor deny employment to our employees because
they have engaged in union or other protected activity.
We Wi Not in any other manner interfere with, re-
strain, or coerce employees in the exercise of their rights
to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
We Wut withdraw and withhold recognition from, and
completely disestablish, the Faculty Senate, or any succes-
sor thereto, as the representative of our employees for the
purpose of collective bargaining, including the settlement
of grievances,
We Wu. offer Joseph Doyle, Joseph Rees, and Paul
Pratchenko immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for their
loss of earnings with interest.
Wer Wu offer to each and all of the following named
strikers immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority and
other rights and privileges, dismissing, if necessary,
replacement employees, and make said strikers whole for
10 Appendix
any loss of earnings suffered by reason of our discrimina-
tion against them, with backpay to commence on January
24, 1977, with interest thereon: Leslie Becker, Karl Cohen,
William Cutchins, Dennis Gray, Tom Keller, Anna Rosich,
Klizabeth Sher, Mort Kohn, Jan Oswald, Ernest Posey,
Julie Roman, Dave Sanchez, Louise Stanley, Jack Stone,
Marion Swetschinski, Dick Warton, Tom Wojak, Beverly
Wolfe, Joseph Doyle, Joseph Rees, Paul Pratchenko, and
Kenneth Light.
We Wi offer to each and all of the following named
employees, effective from on or about September 1, 1977,
teaching positions to which said employees ordinarily would
have been assigned but for our discrimination against them,
dismissing, if necessary, replacement employees, and make
said named employees whole for any loss of earnings
suffered by reason of our discrimination against them, with
interest thereon: Joseph Doyle, Hlizabeth Sher, Dave San-
chez, Mort Kohn, Kenneth Light, Ernest Posey, Julie
Roman, Paul Pratchenko, Louise Stanley, Jack Stone, Tom
Wojak, Marion Swetschinski, Karl Cohen, William Cutch-
ins, and Joseph Rees.
STepHeENs InstituTE, d/b/a
Acapemy or Art CoLurGr
(Employer)
(Representative) (Title)
Appendix 11
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be directed
to the Board’s Office, Room 18018, Federal Building, 450
tolden Gate Avenue, Box 36047, San Francisco, California
94102, Telephone 415-556-0335.
12 Appendix
J D-(SF) -63-78
San Francisco, Calif.
United States of America
Before the National Labor Relations Board
Division of Judges
Branch Office
San Francisco, California
Cases 20—CA—12367 and
20—CA—12422
Case 20—CA—13369
SrepHens [ystitrute, d/b/a Acapemy or Art CoLuecr
and
CaLirorniA Feperation oF Art Tracuers, Locau No. Ong
STEPHENS Lystitute, d/b/a Acapemy or Art CoLLEGE
and
CALIFORNIA FEpERATION OF Art Tracuers, Locau No. Onur
and
Acapremy or Art Cotuecre Facutty Srnate
Party in Interest
Alan D, Longman, E'sq., and
Richard D. Baum, E'sq., for
the General Counsel.
Richard Harrington, E'sq.,
Athearn, Chandler & Hoffman,
for the Respondent.
David J. Salniker, Esq.,
for the Charging Party.
Appendiz 13
DECISION
Statement of the Case
Russet, L. Stevens, Administrative Law Judge: This
matter was heard in San Francisco, California on August
4, 5, 8, 9 and 12, 1977,) and January 10 and 11, 1978.
The charge in Case No, 20-CA-12367 was filed on January
17 by California Federation of Art Teachers, Local No.
One (Union). The initial charge in Case No. 20-CA-12422
was filed by the Union on February 1, and a first amended
charge was filed in the case by the Union on March 28, By
order dated April 29, the Regional Director for Region 20
of the National Labor Relations Board consolidated the
aforesaid two cases and issued a consolidated complaint
and notice of hearing. The consolidated complaint alleges
that Stephens Institute, d/b/a Academy of Art College
(Respondent) violated Section 8(a)(1), (3) and (5) of the
National Relations Act (Act). Said consolidated cases were
heard by the undersigned on various days in August 1977,
as outlined above. At hearing, paragraphs VI and XII of
the consolidated complaint, containing allegations of viola-
tions of Section 8(a)(5) of the Act, were deleted, and para-
graph IX thereof was amended to delete names of certain
alleged discriminatees, on the basis of a settlement agree-
ment signed by the parties and approved by the Regional
Director. Other allegations of the consolidated complaint
were litigated.
On October 20 the aforesaid Regional Director withdrew
approval of the settlement agreement, and on October 21
the Regional Director moved to reopen the record to amend
the complaint and to consolidate Cases Nos. 20-CA-12367,
1. All dates hereinafter are within 1977, unless stated to be
otherwise.
14 Appendix
12422 and 13369. Said motion was granted by the under-
signed on November 11. The complaint in Case No.
20-CA-13369,? based upon a charge filed by the Union on
September 8, alleges that Respondent violated Section
8(a)(1), (2) and (3) of the Act. Those allegations were
heard in January 1978, as described above.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of Gen-
eral Counsel, Respondent and the Charging Party.
Upon the entire record,’ and from my observation of the
witnesses and their demeanor, I make the following:
Findings of Fact
I. The Business of Respondent
At all times material herein Respondent, a California
corporation with its principal place of business located in
San Francisco, California, has been engaged in the business
of operating a private college for profit. Between February
1, 1976 and January 31, 1977, Respondent, in the course and
conduct of its operations, derived gross revenues valued in
excess of $1 million and purchased goods, materials and
supplies valued in excess of $5,000 directly from suppliers
located outside the State of California.
I find that Respondent is, and at all times material herein
has been, an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
2. As amended at trial, to correct a minor error.
8. General Counsel’s motions to correct transcript, and to
amend the complaint, made in post-trial brief, have been carefully
considered and hereby are granted.
Appendix 15
II. The Labor Organizations Involved
(a) The Union is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
(b) One of the issues herein is whether the Academy of
Art College Faculty Senate (Faculty Senate) is a labor
organization within the meaning of Section 2(5) of the
Act. It is found that the Faculty Senate is such a labor
organization, as discussed infra.
III. The Alleged Unfair Labor Practices
Background and Chronology of Events
Respondent is a corporation, the principal stockholder
and president of which is Richard A. Stephens (Stephens).
Since 1929, Respondent has owned and operated an art
college in San Francisco, presently housed in two buildings.
One building is on Sutter Street, with facilities for depart-
ments of fine arts (painting and drawing), printmaking,
sculpture and photography. The Powell Street building
houses administrative offices, and departments of illustra-
tion, advertising and design. The school is accredited
through the University of San Francisco and the National
Association of Trade and Technical Schools, and is
approved by the State of California, Bureau of Readjust-
ment Education.
In the fall of 1976 the school had approximately 1,100
students, about 400 or 450 of whom were enrolled full time.
Some students are excused from paying tuition, through a
work-study program requiring that they devote some hours
of work to the school.
Stephens is the principal administrative officer of the
school. He is partially retired, but spends most of his time
at the school, where he is involved primarily at the policy
16 Appendix
level. He makes all basic decisions, including the hiring and
firing of instructors,* but he relies upon others of his staff
for assistance and advice. Stephens’ principal assistant is
Donald A. Haight (Haight), whose title is vice president
and registrar. Haight is very active in administration of
the school, and supervises most of the day-to-day work ac-
tivities. Stephens also is assisted by Jan Schroeder
(Schroeder), and by Michael Ryan (Ryan), who is the
school’s accountant. Haight, Schroeder and Ryan do not
have authority to hire or fire, but they do have authority to
appraise instructors’ performances and to discipline in-
structors.> Schroeder and Ryan are outside the chain of
command, which runs from Stephens, to Haight, to depart-
ment chairmen or directly to instructors.
The school employs approximately 58 instructors® who
teach in the various departments described infra. Most, or
possibly all, departments have chairmen, although the de-
partmental administrative arrangement never has been
clear-cut and firmly established.? Duties and responsibilities
of chairmen vary among departments, as size and complex-
ity of departments vary, but generally, chairmen provide
an administrative link between Stephens and instructors.
4. Sometimes Stephens interviews, and hires and fires instrue-
tors, without coordinating the actions with departmental chairmen.
On other oceasions he coordinates with chairmen, or relies upon
their assistance and recommendations.
5. It is found that Stephens, Haight, Schroeder and Ryan are
supervisors within the meaning of the Act.
6. Sometimes referred to as teachers.
7. Respondent has no administrative organization chart. Re-
spondent’s Exhibit No. 18, prepared in 1972 for purposes not related
to administration, is helpful in understanding the school, but is not
accurate or reliable in resolving any issue herein. Respondent has
no position descriptions for any of its employees, instructors or
departmental chairmen, nor has it ever had such descriptions.
Appendix 17
The title of “chairman” or “co-chairman” of a department
does not necessarily define duties of those individuals as
being supervisory within the meaning of the Act. All chair-
men are not paid the same amounts. It is not entirely cer-
tain from the record that Stephens uses a “chairman” sys-
tem in all departments, but clearly, Stephens and Haight
cannot effectively administer the entire school alone, and
must rely, to some extent, upon intermediaries between
them and rank-and-file instructors.
The chairmen involved in this dispute are Joseph Doyle
(co-chairman, fine arts department) ; Paul Pratchenko (co-
chairman, fine arts department); Richard Warton (pho-
tography department); Thomas Keller (advertising de-
partment); Elizabeth Sher (printmaking department) ;
Joseph Rees (sculpture department); and Barbara Brad-
ley (illustration department).®
The dispute herein has its genesis in a petition® alleged-
ly? drafted by a group of students. The petition lists six
improvements that are sought, including one that covers
contracts, better wages, insurance plans and paid inde-
pendent study, all for faculty members. The petition is not
dated, but testimony shows it was circulated, and Respond-
ent learned of its existence, about mid-November 1976, On
December 6, Stephens invited Doyle into his office and
asked him about the petition. They discussed it, and
Stephens asked that Doyle call a meeting to be attended
8. All named chairmen hereinafter are referred to by their
last names.
9. General Counsel’s Exhibit No. 9.
10. Respondent believes that Doyle, who in the past for a time
had been dropped by Respondent as an instructor, because of what
Respondent thought was agitation of students against the school’s
administration, was instrumental in drafting and circulating the
petition. Whether or not that is a fact, is immaterial to issues in-
volved herein.
18 Appendix
by Stephens, Doyle and Pratchenko, to pursue the subject.
Stephens agreed to Doyle’s request that Warton also at-
tend. The meeting Stephens requested was held on Decem-
ber 8, initially attended by Stephens, Haight, Doyle,
Pratchenko and, later, by Schroeder. The group discussed
the petition, with some argument about whether or not
Doyle and Pratchenko were behind the petition.’ Stephens
asked for a meeting to be attended by administration per-
sonnel, faculty and students. Such a meeting was held
December 15, Stephens, Haight and Ryan attended, as did
10 to 15 faculty members and approximately 100 students.
Stephens, Doyle, Pratchenko, Warton and others spoke,
and Doyle suggested establishment of a faculty senate.
David Sokol (Sokol), an attorney representing the stu-
dents, appeared and spoke briefly. Matters were discussed
that involved both faculty and students, and at the close
of the meeting student officials were elected to begin or-
ganizing a student government. After the meeting, about
8 or 10 of the instructors met at a restaurant and discussed
the necessity for the faculty to organize, During their
discussion Haight, Haight’s wife and Ryan sat at a table
about 20 or 25 feet away.”
On December 21, Haight called Doyle on the telephone
and asked him to come to Stephens’ office on December 22.
Doyle did as asked, and met with Stephens, Haight and
11. Doyle testified that Stephens stated during the meeting that
Doyle and Pratechenko “will never teach again.” The statement
attributed to Stephens was not denied by Stephens or Haight, and
is credited for purposes of analyzing animus.
12. Possibly Haight and Ryan overheard part of the instructors’
conversation. Based upon testimony, they were within earshot of
reasonably loud conversation. In any event, it is found that, by this
time, Respondent was well aware that Doyle, Pratehenko and
Warton, among other teachers, were in active support of the
principles set forth in the students’ petition.
Appendix 19
Ryan, in Stephens’ office. The meeting became an argu-
ment about Doyle’s class assignments, with Stephens ad-
vising Doyle that the remainder of his classes were being
reduced, and with Doyle contending the reduction was
retaliation for Doyle’s support of students and the faculty.
On December 24, Haight advised Doyle by telephone that
Doyle was not going to be allowed to teach in the spring
term. Doyle later was terminated, by letter dated Decem-
ber 27.
Pursuant to discussion among instructors after the
group meeting of December 15, an organization meeting
was held at Rees’ private studio on January 4, with ap-
proximately 10 instructors attending. A second meeting
was held at Rees’ studio the following day, January 5,
attended by approximately 20-24 instructors. At the two
meetings the group drafted a charter for California Fed-
eration of Art Teachers Local No. One (sometimes re-
ferred to as CFAT or the Union.“ The charter was signed
on January 5 by 13 instructors. Ernest Posey (Posey, an
instructor) was elected business representative, Anna
Rosich (Rosich, an instructor in graphic design) was
elected secretary, and Doyle was elected treasurer, It was ©
decided that Posey, Sher and Rees would be the negotiation
committee.
Pursuant to decisions made at the meetings of January
4 and 5, the Union asked for, and held, a meeting with
Stephens in his office on January 13. Present were Ste-
phens, Haight, Rvan, Respondent’s attorneys McDonald
13. As discussed elsewhere, Doyle was on salary, which was
paid whether or not he taught during a particular term of school.
Although it is clear that Doyle had no teaching assignment for the
spring 1977 term after this telephone conversation, it did not
necessarily follow therefrom that he was discharged.
14. General Counsel’s Exhibit No. 13.
20 Appendix
and Kelly, Posey, Sher, Rees and Sokol. McDonald, Kelly
and Sokol were asked to leave during the meeting. The
Union did not claim majority representation, since it was
not sure it had one, although it believed it represented
approximately half the instructors. Following a discussion,
it was agreed that the Union would draft a proposed con-
tract for submission at a later meeting, scheduled for
January 17. A proposal’ was drafted as agreed, and the
same group (without the attorneys) met on January 17.
Stephens received the proposal, but said he could not give
his answer until his attorney reviewed it. It was agreed
that the group would meet on January 21 to discuss the
proposal.
On January 18, Rees met with Stephens, Haight and
Ryan in Stephens’ office, in accordance with past practice,
to discuss Rees’ schedule for the following spring term.
After the schedule was decided upon, Stephens handed
Rees an individual work contract prepared by Respond-
ent,’* and Rees refused to sign it. Haight then handed to
Rees a resignation slip,’ and Rees refused to sign it.
Rosich went to Stephens’ office on January 18 to discuss
her spring schedule with Stephens and Haight. After the
schedule was discussed, a contract form'* was completed
and Rosich signed it. Carl Cohen (Cohen, an instructor in
film making) discussed his spring schedule with Stephens
15. General Counsel’s Exhibit No. 15.
16. The contract form was the same as the one presented to
Rosich, discussed infra, which is General Counsel's Exhibit No. 17.
17. Rees testified, and neither Stephens nor Haight denied, that
Stephens and Haight told him he must sign the resignation in
order to receive his pay from the Ist to the 18th of January. Rees
has attempted, without suecess, to collect his pay for the 18 days
he worked in January.
18. General Counsel’s Exhibit No. 17.
Appendix 21
and Haight on January 18, and signed a contract!® com-
pleted and handed to him by Stephens. Pratchenko met
with Stephens and Haight on January 19, and was handed
a work contract form similar to the one signed by Rosich
and Cohen. Pratchenko did not sign the contract, but told
Stephens he would take it to a union meeting that evening
and would talk with him about it the following day.
A union meeting was held in Rees’ studio during the
evening of January 19, principally to discuss the fact that
some instructors had been called to Stephens’ office indi-
vidually, and had been given to sign, contract forms pre-
pared by Respondent. Approximately 20 or 25 instructors
attended the meeting, including Doyle, Pratchenko, Rees,
Rosich, Cohen and Keller. After discussing the actions
taken by Stephens and Haight, the group took a strike
vote and decided to strike the following day. A strike, and
and picketing, commenced on January 20. On the day of
the strike Pratchenko called Haight and told him he could
not sign the contract received from Stephens. A conversa-
tion ensued, which is discussed infra,
On January 21 the union negotiating committee met with
Stephens, Haight and Ryan, to discuss the Union’s pro-
posed contract handed to Stephens on January 17. The
meeting was a lengthy one, during the course of which
each provision was discussed. Stephens and Haight made
several suggested changes, and Posey made notes of those
suggested changes. Events that transpired at this meeting
are in controversy, as discussed infra.
On January 23 the negotiating committee drafted a
letter? to Stephens, which was delivered to him by Posev
19. General Counsel’s Exhibit No. 18.
20. General Counsel’s Exhibit No. 16.
22 Appendix
on January 24. The letter covered the Union’s reply to
various suggestions made by Stephens and Haight during
the meeting of January 21, An argument ensued between
Posey and Stephens, and the latter told Posey to leave, as
discussed infra.
The Union held a meeting the evening of January 24,
during the course of which an instructor named John Mor-
gan appeared as an emissary of Stephens. Morgan handed
the group a box of letters and documents*! for delivery to
union members. The documents, with covering letters, are
labelled “Commitment” by Respondent to the faculty, but
the “Commitment” has several attributes of a labor agree-
ment, although it is not a contract prepared for signatures.
The letters and documents were distributed to those pres-
ent at the meeting.
The next school term began January 31, and some of the
strikers had been replaced by that time. By February 4
all the strikers had been replaced. A meeting was held in
Stephens’ office on February 4, attended by Stephens,
Haight, Rvan and some of the nonstriking faculty. Purpose
of the meeting was to discuss the possibility of the strikers’
return to work, but no agreement was reached.
In his “Commitment” sent to instructors on January
24 (General Counsel’s Exhibit No. 14), Stephens referred
to the Facultv Senate in the following terms:
Section 8 Facutty Senate AND REPRESENTATION:
The Faculty Senate shall he comprised of all those
faculty members wishing to voluntarily participate,
The Faculty Senate Representatives shall be com-
prised of all Department Directors plus 3 elected
representatives at large who serve on a term by term
basis.
21. General Counsel’s Exhibit No. 14.
Appendix 23
The Responsibilities of the Faculty Senate:
The Faculty Senate through its representatives
shall meet and confer with the Administrators to dis-
cuss and negotiate various topics, problems and griev-
ances, Example: see “Termination”’—no faculty mem-
ber shall be terminated without consultation with the
Faculty Senate Representatives.
The Faculty Senate will meet a minimum of two meet-
ings per semester; further meetings at the discression
[sic] of the membership. The Faculty Senate Repre-
sentatives will meet a minimum of once each 30 days
at their discression [sic].
Scheduling and Curriculum: The Administration will
meet and confer with the Faculty Senate Representa-
tives on all matters of scheduling and curriculum.
The Faculty Senate described above was not activitated
in formal manner, but from approximately January 24
until February 11, during the strike, certain of the non-
striking instructors met on a somewhat regular basis with
Stephens, in the latter’s office. On a date not definitely
established at trial, it was determined by Stephens and
the nonstriking faculty that the Faculty Senate member-
ship would be changed, and rather than being a group
comprising all the faculty, with elected representatives, it
would consist of department directors (five in number)
and five members to be elected from among the faculty.
Following notice by letter dated February 15, a social-type
meeting of the faculty was held on February 18, at which
were discussed the organization of the Faculty Senate,
election of representatives, and a few other matters of
mutual concern which involved the Senate. Thereafter, the
interim representatives, being the then five department
directors and five full-time instructors who were, in effect,
self-appointed by reason of volunteer service, met with
24 Appendix
Stephens and other administrators in formal meetings.
Such meetings were held on regular basis, with minutes
kept at each meeting. The content of the meetings is dis-
cussed infra. Representatives to serve on the Senate were
elected by faculty members and at a meeting held on April
29, Casey FitzSimons (FitzSimons) was voted as chair-
man, which position she has held to the present time. On
May 28, Stephens addressed an open letter to all students,
which discussed several matters of concern to them and
which ineluded the following statement:
9. Facuuty Senate For the first time the Academy
faculty has elected representatives meeting on a
regular basis with the administration to resolve
collective concerns and establishing equitable poli-
cies for students and teachers. The five elected
representatives on the Faculty Senate are: Jon
Morgan, Casey FitzSimons (President), Ron
Young, Donald Archer and Bill Sanchez.
Because the original concept of the Faculty Senate had
changed, FitzSimons drafted a new “Commitment” to re-
flect actual policies of Respondent. She used the original
Commitment as a starting point, and also referred to other
documents in preparing the new Commitment, which is
dated June 8, 1977, FitzSimons discussed her draft of the
new document with Stephens and Haight, and all except one
of the Faculty Senate, at a meeting in Stephens’ office. The
group went through the document item by item, with full
discussions thereon. The new Commitment was ap-
proved,” and thereafter, the Faculty Senate met on a regu-
22. Prior to the meeting, she had “gone over” the document with
Haight.
23. The Faculty Senate has no constitution or bylaws. Its only
basie document is the Commitment.
Appendix 25
lar basis. The Senate continues to the present time to meet
and act pursuant to the Commitment.
Pursuant to union vote, the Union’s attorney sent a letter
to Respondent dated February 16, offering unconditionally
for the strikers to return to work. By reply letter dated
February 17, Respondent’s attorney asked for a list of
strikers, contended that the strike was an economic one
and that some strikers had been permanently replaced,
denied the commission of any unfair labor practices, and
denied National Labor Relations Board jurisdiction. The
Union’s attorney replied by letter dated February 23, listed
the strikers, and asked for reinstatement of Doyle, who, it
was contended, unlawfully had been discharged. By letter
dated March 7, Respondent’s attorney declined to reinstate
Doyle, or to employ any striker.
The fall term commenced on September 6, 1977, and cer-
tain instructors involved in this controversy, discussed
infra, either were offered no classes to teach, or were of-
fered a reduced number of classes.
Tsswes
This controversy concerns several issues involved in
8(a)(1) allegations, but the principal issues are: (a)
whether or not the Faculty Senate is a labor organization
as that term is defined in the Act; (b) if the Faculty Senate
is found to be a labor organization, whether or not it was
dominated and assisted by Respondent; (c) whether the
strike conducted by instructors in January and February
was an unfair labor practice, or an economic, strike; (d)
whether or not Doyle, Rees, Pratchenko, Keller, Sher and
Warton were supervisors; (e) whether or not striking em-
ployees unlawfully were refused reinstatement; and (f)
whether or not certain employees were denied employment
because of their protected activities.
26 Appendix
Alleged Unfair Labor Practices
A. Interrogation by Stephens
Paragraph VIT(a) of the original consolidated complaint
alleges that, on or about January 18, Stephens interrogated
an employee about his and other employees’ protected
activities.
Cohen testified that, when he discussed Respondent’s
proposed contract with Stephens on January 18, they had
a conversation which included the following:
Hle then showed me a standard teaching contract and
asked me to—he filled it out, and asked me to sign it.
During the course of filling it out, at that time he asked
me if [ was aware that there was a union being formed
and there was trouble or whatever, and T said, “Yes.”
And he asked if I had attended any union meetings
and I again said, “Yes.”
Neither Stephens nor Haight denied the alleged state-
ment.
Cohen is credited. This allegation is proved.”
24. Keller credibly testified that, just prior to January 20, he
talked with Stephens on the telephone and Stephens asked him if
he was participating in the group of teachers who were trying to
organize, Stephens did not deny that testimony. The interrogation
is not alleged as a separate violation of the Act, but the matter was
fully litigated and is found to constitute an 8(a) (1) violation.
B. Interrogation by Haight
Paragraph VII(b) of the original consolidated complaint
alleges that, on or about January 19, Haight interrogated
an employee about his protected activities.
Pratchenko testified that, when he was discussing Re-
spondent’s contract form presented to him with a request
for signature on January 19, he was interrogated by
Stephens:
Appendix 27
Mr. Stephens said that, “if we wrote in the contract a
clause that said, ‘would you cross a picket line,’ what
would you say? How would you respond?” I said,
“Well, you’re asking me if I’ll cross a picket line or
not.” He said, “Yes, I’m asking you if you will cross a
picket line.” I said I really couldn’t tell until I take
this contract to the union meeting and discuss that.
Stephens did not deny the alleged statement. Haight was
present at the conversation, and did not deny that the state-
ment was made. The fact that the statement is attributed by
Pratchenko to Stephens, rather than to Haight, as alleged
in the complaint, is immaterial.
Pratchenko is credited. This allegation is proved.
C. Threats by Haight
Paragraph VII(c) of the original consolidated complaint
alleges that, on several occasions on or about January 18
and 19, Stephens and Haight threatened employees with
termination if they refused to sign individual employment
contracts,
Rees testified relative to his conversation with Stephens
and Haight on January 18, when he was asked to sign the
contract prepared by Respondent:
“Well, I can’t sign this.” I said, “We’re working on a
contract and this, you know, this just doesn’t work.”
At that point, Mr. Stephens got up and grabbed his
pipe and walked behind his desk and responded to me,
saying, “The contract you’re working on would cause
me to go broke, and I would just as soon put a lock on
the door than accept the union contract.’* And the next
25. This statement constitutes a separate violation of Section
8(a)(1) of the Act. The violation was not alleged in the complaint,
but it was fully litigated at trial.
28 Appendix
thing was that Mr. Haight told me that if I didn’t sign
the contract, that I would be out. And I explained to
him that there’s no way I could.
Cohen testified relative to his conversation with Stephens
and Haight on January 18, when he signed the contract
prepared by Respondent:
At the meeting, there was—from the solemn tone and
the way he said, you know, “If vou want to continue
teaching here, sign.”—I mean it was basically: I had
a choice, of either signing or resigning my job, I mean
that was implied, it wasn’t spoken in so many words
that you have to sign this or else. I mean it was quite
clear, though.
Pratchenko testified relative to his conversation with
Stephens and Haight on January 19, when he was asked to
sign the contract prepared by Respondent: “Mr. Stephens
gave me the contract, said that it was subject to alteration,
but that either I would sign it or lose my job.”
Stephens testified that no employee was told that it was
necessary to sign a contract in order to work; that Rees
did not make it clear that the instructors were negotiating
a contract for the group; and that he thought the instruc-
tors wanted a contract, not a particular contract. This testi-
mony is contrary to the facts of the case, is not believable,
and is not eredited.
Rees, Cohen and Pratchenko are credited. This allegation
is supported by the record.
The record shows that no instructors had contracts of
employment at any time prior to January 1977, It is clearly
established that, but for protected activities of some of the
instructors, contracts would not have been offered to in-
struectors by Stephens in January. Stephens’ offer of con-
tracts was made after he met with the Union’s negotiating
Appendix 29
committee on January 14 and after he received the Union’s
written proposal on January 17. The contracts Stephens
offered were different from the Union’s proposal, and the
Union had not agreed thereto. Stephens offered the con-
tracts to individuals, not to the Union’s negotiating com-
mittee. It is clear, therefore, that Stephens’ threats
constituted attempts on his part to fracture the Union’s
solidarity, deal individually with union members, and inter-
fere with the union activities of the instructors, in violation
of Section 8(a)(1) of the Act.
Rees and Pratchenko are alleged to be supervisors within
the meaning of the Act. However, as discussed infra, that
argument is without merit.
D. Threat by Stephens
Paragraph VII(d) of the original consolidated complaint
alleges that, on or about January 24, Stephens threatened
an employee with physical harm if that employee engaged
in protected activity in the future.
Posey testified that, when he delivered to Stephens on
January 24 the letter of the negotiating committtee replying
to Stephens’ proposed changes in contractual provisions,
Stephens became angry and threatening:
Mr. Stephens got very angry at me and ke threw the
letter that I had delivered on the table in front of me
and said, “We'll fight vou all the way, even if we have
to close half of the school and start the semester with
those people who are loyal to us.” Then he rose from
his desk and shook his finger at me and said, “If I ever
see you around here again [’ll knock your f............ head
off.”
Haight testified that, during the meeting of January 24,
he, Stephens and Posey discussed the differences between
30 Appendix
what Haight alleged was agreed to in the meeting of Jan-
uary 21, and the letter Posey brought back from the com-
mittee. Haight said an argument ensued, and:
A. Mr. Stephens reacted similarly to the way I
reacted and responded in a distressful way to Mr.
Posey.
Q). Well, what did he say?
A. He said he’d knock Mr. Posey’s f............ head off
if he ever eame back.
Q. Is that all he said?
A. And to get out of the building and not come
back.
Q. And did that terminate the meeting?
A. That certainly terminated the meeting, yes.
Q. And Mr. Posey left, is that right?
A. Yes, he did, in a rush.
Posey is credited. The only reason for Stephens’ threat,
acknowledged by Haight,*® was Posey’s past, present and
future activity related to the Union. This allegation is
proved.
Kh. Threat by Stephens
Paragraph VII(e) of the original consolidated com-
plaint alleges that, on or about January 24, Stephens
threatened to lock out employees who supported the Union.
Posey testified as quoted in section D next preceding.
Neither Stephens nor Haight denied Posey’s testimony.
Posey is eredited.
A lockout under the circumstances would have been solely
for the purpose of stopping or interfering with union organ-
ization, which would have been a violation of the Act.
26. Stephens was not questioned on this subject.
Appendix 31
Hence, a threat of lockout, as here, was a violation of See-
tion 8(a) (1) of the Act.
F. Stephens’ Unlawful Offer
Paragraph VII(f) of the original consolidated complaint
alleges that, on or about January 27, Stephens offered an
employee more work at a higher salary if that employee
would abandon his protected activity.
Warton testified that he was picketing on the night of
February 2, when he was approached by Stephens:
... “Dick, what are you doing out here, you don’t be-
long out here, you belong inside.” And we had quite a
discussion out in front of the building.
Q. Okay. What was that discussion, Mr. Warton?
A. Well, it was mainly that he would like to have
had me come back inside, and he said, “T’ll give you
anything you want. You don’t belong out here with the
rest of them. You—some of the—most of these guys
you're out here with wouldn’t have a job if I didn’t
give them one.” He said, “We'll take—we’ll give Prat-
chenko a class and Doyle’s — no, not Doyle, but —
Rees, we’ll give him the neon job, the neon sculpture
class, and Anna Rosich, she’s good, but the rest of
them —.” And I said, “Dick, you’re dealing with—I’m
dealing collectively in a union, I’m not dealing indivi-
dually.” And he said, Well, if you think that I’m going
to deal with the union, you’re crazy.’™ And I said,
“Well, that’s what I’m doing out here.” And he said,
“What do you want, how much do you want?” And
I said, “It’s not the money, it’s the integrity.” And
then that’s what ended the conversation, and he went
back inside.
27. F. 1. This statement of refusal to deal with the Union is
an 8(a) (1) violation.
32 Appendix
Stephens did not deny Warton’s testimony. Warton was a
very sincere, calm and impressive witness, and he is
credited. The statements by Stephens clearly were designed
to coerce and interfere with Warton’s protected activity;
they were implied and express promises of benefits if War-
ton abandoned that activity. This allegation is proved.”*
G. Stephens’ Solicitation of Surveillance
Paragraph VII of the complaint in Case No. 20-CA-13369
alleges that, on or about September 7, Stephens unlawfully
solicited an employee to engage in surveillance of a union
meeting.
Beverly Wolfe (Wolfe, a ceramics instructor) testified
that she talked with Stephens at the time her first class
started, on September 7:
A. He mentioned the fact that we, meaning the
union, was having a meeting the next night and that,
you know, we would have to see what was going to be
the result of that meeting.
(Q). You made reference to the union meeting that
night.
What did he say on that subject?
A. Just that if, if it wasn’t at all compromising
to myself, if I could let him know what transpired or
what the result of the meeting was.
Stephens testified:
Q. Did you engage in surveillance of the union?
A. Not directly and not purposefully and never fol-
lowed up on it.
28. Further support for this allegation is found in the credited
testimony of Rosich, that Stephens approached her after the strike
began, and offered her $1,000 per month instead of $50 per class if
she would return to work.
Appendix 33
The conversation that Ms. Wolfe relates is, in
essence, true the way she says it, but I didn’t search
her out and I really had no interest in it.
Q. Did she ever report to you on the union activity?
A. No.
This allegation is proved.
H. Terminations of Doyle, Rees and Pratchenko
Paragraph VII of the original consolidated complaint
alleges that Respondent terminated Doyle on or about De-
cember 27, 1977; Rees, on or about January 18; and Prat-
chenko, on or about January 20, because of their protected
activities.
Respondent contends that the aforesaid three employees
are supervisors, and that Respondent has no duty to rein-
state them. Respondent further contends that only Doyle
was terminated.
1. An initial question is whether the three employees
were supervisors on the dates alleged above, regardless of
what their employment status may have been prior to those
dates.
Doyle first went to work for Respondent in the fall of
1973. He was hired by Stephens as an art instructor to
teach painting for a salary of $40 per class. He taught there-
after on a regular basis, with the exception of one semester,
when he did not teach because of Stephens’ dissatisfaction
with Doyle’s agitation of students relative to conduct of
Respondent’s business.
Pratchenko first was hired by Stephens in the summer
of 1974 to teach one figure drawing class at the rate of $40
per week. He taught regularly thereafter.
Prior to events discussed relative to this issue, Respond-
ent’s fine arts department was divided into two divisions.
A Mr. Farelia was chairman of the upper division, and a
34 Appendix
Mr. Haberman was chairman of the lower division. Farella
and Haberman resigned their positions as chairmen in the
fall of 1975*° and some time thereafter Stephens asked
Pratchenko to assume the position of chairman of the fine
arts department, which, in the meantime, had been reorgan-
ized to consolidate the upper and lower divisions into a sin-
gle division. Pratchenko declined the offer, but said that,
perhaps, he and Doyle could assume that position as ¢o-
chairmen. Doyle was approached by Stephens and Prat-
chenko, and after he agreed to the proposed arrangement,
Doyle and Pratchenko were made co-chairmen of the fine
arts department. As co-chairmen, each was given a salary
of $600 per month,*® which was a raise over their prior
earnings, with an agreement that they would be given four
classes each to instruct. However, their salary was to
remain the same if all their classes were not filled and the
total dropped below four and, further, they were to be paid
during the summer and other recesses, even though they
did not then teach. They were not given written position
descriptions, or a written contract. Their actual duties are
discussed infra.
29. The exact date is not established in the record, but it appears
that Doyle and Pratchenko became co-chairmen of the fine arts
department in the fall or winter of 1975.
30. All department chairmen are on monthly salaries, except
Sher, who is paid for classes taught. However, the fact of salary
alone does not determine supervisory status; it is only a factor
to be considered with others. Chairmen are not paid the same
salaries, nor are their duties all the same. Some chairmen are
“old-timers who have been given high salaries and a degree of
responsibility that, possibly, makes them supervisors. An example
of this is Barbara Bradley, chairman of the illustration department,
who has been with Respondent for 19 years, is paid $2,000 per
month, and is given much responsibility in scheduling classes, reeom-
mending raises, and hiring teachers. However, her authority is
irrelevant so far as other chairmen are concerned, sinee there is
no uniform position description for chairman, and they all have
different authority and responsibilities.
Appendix 35
Stephens’ office formerly was in the Sutter Street build-
ing, but he moved his office in May 1976 to the Powell Street
building. While he was at the Sutter Street location,
Stephens was able to supervise the physical facilities of the
building, and at times did some of the maintenance work
himself, such as sweeping and cleaning. He relied upon
department chairmen, Schroeder and work-study students
to assist him in keeping the building in reasonably clean
and proper condition.
Warton began teaching photography classes for Respond-
ent in June 1974, at an initial wage of $40 per class, and
later he received a raise to $50 per class. He taught
regularly thereafter, and on January 1, 1976 was promoted
by Stephens to chairman of the photography department at
a salary of $15,000 per vear. His duties are discussed infra.
In late May 1976 he was asked by Stephens, who then was
moving his office to the Powell Street building, to “become
head of the Sutter Street building.” Warton testified as
follows relative to his new responsibility, and that testi-
mony is corroborated by Stephens:
A. Well, I was head of the building. T was not as
such Director of Fine Arts. I was head of the building,
and then yes I did have an office. Mr. Stephens wanted
me to take over his office, which he was vacating on
the ground floor, and T told him that I preferred to
stay on the fourth [sic] floor, closer to the photography
department, which IT was heading.
Q. Okay. Did Mr. Stephens tell you what vour
duties would be as head of the building?
A. Loosely, he did, yes. Mainly he wanted me to be
in charge of the building, to be there to make sure
that the thing held together, to assist Jan Schroeder
if she needed assistance, to be there if there was some-
36 Appendix
body that wanted to tour the building, to find out
things, to make sure that the building was maintained
properly, and that if there were questions from other
teachers in the Fine Arts department, that I could
somehow convey them to the administration.
Q. Okay. Now did you receive any raise in pay as a
result of your change of status?
A. Yes, I did.
Q. What was the change?
A. Iwas raised to $18,000 a year.
Warton further testified that Stephens told him he had
consulted with Doyle, Pratchenko and Rees about the
change, and the three coneurred. Warton stated, “...I
didn’t take over somebody else’s responsibilities, exactly, I
just filled in a spot that needed filling in at the time.” War-
ton received neither a written job description, nor a written
employment contract. He continued his work as chairman
of the photography department, and head of the Sutter
Street building, until December 24, as discussed infra.
Doyle contends that, whatever his status may have been
as co-chairman, he was relieved of that status “in the end
of summer school” in 1976, and was replaced in that position
by Warton. Doyle testified that, from and including the fall
term of 1976, he was nothing more than a rank-and-file
teacher of painting classes. He said he was given a raise at
the end of August 1976, from $600 per month to $700 per
month, at the time he was relieved as co-chairman of the
fine arts department.
Pratechenko testified: He became dissatisfied with the
position of co-chairman in July 1976, partially because he
and Doyle were being given separate and different instrue-
tions. and because they were unable to obtain “specific
cuidelines” for their jobs as co-chairmen. Pratchenko said
Appendix 37
he told Stephens that he wanted only to teach, and that
Stephens agreed, saying “Fine. You can continue to teach
four classes at $600 per month, with no administrative
duties.” Pratchenko testified that he and Doyle then met
with Stephens, who told them Warton “was to take over
the chairmanship of fine arts.” Pratchenko taught three
classes in the summer and four classes in the fall, and in
August, he and Doyle were raised to $700 per month, with
pay to continue during school breaks, without having to be
at school.
Stephen: testified that the co-chairman duties of Doyle
and Pratchenko included building maintenance functions at
the Sutter Street building. He said Doyle and Pratchenko
were relieved of those building functions at the beginning
of the 1976 fall term, when Warton took over the building,
but that they were not relieved of any other duties as
co-chairmen. Stephens testified that Doyle and Pratchenko
had asked to be relieved of their building maintenance
duties, and that he decided to accede to their request.
Stephens and Haight stated that Doyle and Pratchenko
continued to exercise their authority as co-chairmen until
December, by making recommendations relative to the fine
arts department, by signing documents as co-chairmen, by
participating in discussions relative to schedules and assign-
ment of work, and by recommending the hire of teachers.
Discussion
The first indication of organized activity protesting Re-
spondent’s administration is the student petition circulated
at the school, discussed above. The petition is not dated, but
it is found, based upon testimony of record, that the peti-
tion was circulated just prior to Thanksgiving, All activities
of Respondent complained of herein occurred after circula-
tion of the petition.
38 Appendix
The foregoing testimony and evidence relative to the date
when Doyle and Pratchenko were relieved of their positions
as co-chairmen of the fine arts department are conflicting
and inconclusive. Doyle and Pratchenko contend they were
demoted by Stephens to rank-and-file instructors in late
summer or early fall of 1976, but Stevens and Haight con-
tend the two still exercised their authority as supervisors
until December, when the critical events involved herein
took place. Warton testified that, when he was placed in
charge of the Sutter Street building in May, he did not
take over anyone else’s responsibilities; that he just “filled
in a spot that needed filling in.” There is no support for the
testimony of Doyle and Pratchenko that Warton assumed
the position of chairman of the fine arts department.
Stephens denied that allegation, and Warton made it clear
that he did not so understand his position.*' It is found that
Doyle and Pratchenko still were co-chairmen of the fine arts
department, at least until December 1976. However, that
finding does not resolve the basie issue.
After the student petition was cireulated in November, a
number of events and confrontations among Doyle, Prat-
31. Pratchenko’s testimony on this subject cannot be relied
upon. It is clear from his statements that, whether or not he ever
was a supervisor within the meaning of the Act, he was pleased
with the position of co-chairman, enjoyed the responsibility in-
volved, and expected to be treated by Stephens and Haight, the
faculty and students, as occupying a position superior to that of
a rank-and-file instructor. He was upset when he was not permitted
to participate in preparation of the fall 1976 schedule, and he was
annoyed when faculty members sought the advice of Warton, rather
than him, after Warton became head of the Sutter Street building.
He said he resigned the position of co-chairman after Warton was
promoted, but he also testified that Stephens told him Warton had
been appointed chairman of the fine arts department. Warton is
qualified only in photography. Pratchenko is qualified primarily
in painting, and secondarily in other fine arts. It is doubtful that
Stephens would have made the statement attributed to him by
Pratchenko, in view of the clear record that Warton never was
chairman of the fine arts department.
Appendix 39
chenko, Stephens and Haight occurred. A confrontation of
importance took place on a date which Doyle said was
December 22. Stephens said the date was December 21, but
the difference is immaterial. The confrontation was at-
tended by Doyle, Stephens, Haight and Ryan. Doyle testi-
fied: Among other things, Stephens informed him that
three of his classes for the next term did not attract enough
students to fill the classes, and that he would be permitted
to teach only one class. Doyle protested, and said Stephens
was punishing him because of his support of the students
who had circulated the petition. An argument ensued, Doyle
said he wanted a contract, $700 per month, and four classes,
and Stephens said he would think about it. On December
24, Doyle talked with Haight on the telephone, Haight
asked if Doyle then was ready to accept the one class
Stephens offered at the meeting, and Doyle said yes. Haight
then said he had been instructed to inform Doyle that if he
wanted the class, the offer was withdrawn because of
Doyle’s hostility toward the administration. On December
27, Doyle received a discharge letter.”
Stephens testified: Sometime just prior to December 18,
he talked with Haight about some classes, including Doyle’s
being too small, and advised Haight they would have to
eall Doyle in and cancel some of his proposed classes. Doyle
came to see Stephens and Haight about the 18th of Decem-
ber, an argument ensued, and Doyle became upset and
threatening. After Doyle left, Stephens apologized to
Haight for not standing up to Doyle, and said, “So he is
going to call, and when he does, whether he were to accept
or decline, he will not be here again. I promise you, and 1
apologize again.” Doyle called Haight on December 24, and
was fired by Haight, verbally on the 24th and in writing on
the 27th.
32. General Counsel’s Exhibit No. 10.
40 Appendix
Haight testified: He and Stephens met with Doyle
shortly after December 17, and they discussed the fact that
some of Doyle’s classes did not have enough students. Doyle
became very upset, abusive, threatening and profane. Doyle
was offered one class to teach, at a higher rate of pay, and
he said he would call later on the telephone to give his
decision. After Doyle left, Haight told Stephens that, if
Stephens did not fire Doyle, he, Haight, would quit.
Stephens replied that, if Doyle called back to accept the
one class, Haight was to advise him that he had been ter-
minated.
Some conflicts in the testimony relative to this issue are
apparent, but they were resolved by Stephens, who made it
clear on cross-examination that, regardless of events that
led to Doyle’s discharge, Doyle first was demoted, then
fired. Stephens testified:
Q. Now at the time that Doyle was terminated, he
was not a department chairman, was he?
A. He was a department chairman up until Decem-
ber—whenever we talked to him, which would be
December 24th. I happen to remember it because J
think that’s Christmas Eve. I always considered him
to be co-department chairman.
Q. He was a co-department chairman when you
told him vou wanted him to teach only one class?
- <A. That was one of the reasons he began to be
disturbed.
Q. Well, let me see if I understand this correctly.
In late December—we’re talking about the 18th or so—
A. Ithink maybe—let’s say the 21st.
Q. 21st. You offered Mr. Doyle one class and told
him that he was to be removed from his other three
classes?
A. That’s right, and relieved of any other respon-
sibilities.
Appendix 41
Q. And any other responsibilities. And for that one
class he was to receive $60 an hour per week?
A. $60 a class.
Q. A class.
A. Yes.
Q. Well, there was only one class. So it was $60 a
week?
A. Yes, that’s right.
Q. So he was no longer on salary?
A. That’s correct.
Q. And then three days later he was fired?
A. I didn’t have that conversation, but yes.
Q. So at the time of his termination, he was not a
department chairman?
A. Youmean the three days later?
Q. Yes.
A. Well, he had been department chairman until
the day we demoted him.
Q. Yes, all right, fine, thank you.
JUDGE STEVENS: And the date of that demo-
tion was? ,
WIT: The 21st of December.
JUDGE STEVENS: And he was demoted from
what to what? Co-chairman of the department to?
WIT: To instructor.
JUDGE STEVENS: All right, thank you.
Q. And then he was fired on the 24th?
A. Whatever Mr. Haight said there, yes.
It is apparent from the foregoing testimony of Stephens
that the question of Doyle’s status prior to 3 days before he
was fired is immaterial. When Doyle was fired he was an
instructor, relieved of all other duties and clearly of rank-
and-file status.
So far as Pratchenko is concerned, he testified: He,
Doyle and Warton met with Haight and Stephens in the
latter’s office on December 8. Schroeder was present during
42 Appendix
part of the meeting, Stephens called the meeting primarily
to discuss the student petition, but some other matters
were discussed. Stephens accused Doyle and Pratchenko of
not “covering” for the administration, and accused them
of being instrumental in preparing the petition. There was
an argument, during the course of which Stephens told
Pratchenko he never would teach again.
Doyle did not testify relative to Pratchenko’s testimony
concerning Stephens’ statement about not teaching again,
nor did Stephens or Haight. However, Haight testified
that, during the meeting of December 8, a principal subject
was the administration’s discontent with the fact that
Doyle and Pratechenko were not giving adequate counsel to
students, which is a responsibility of department chair-
men. Haight testified that the administration believed in-
adequate counseling was a principal cause for the student
petition.
Haight testified that he first learned of the student
petition in mid-November. Animosity of Stephens and
Haight toward Doyle and Pratchenko, from approximately
the day they learned of the petition, amply is shown by
the record. (a) Approximately mid-November, according
to Haight’s testimony, the school prepared its schedule for
the spring 1977 term. Department chairmen, including Doyle
and Pratchenko, usually participated in preparation of
schedules, However, Doyle and Pratchenko were not asked
to participate in any way concerning the spring 1977 sched-
we. Stephens explained this by saying that they were
required to submit the schedule ‘on shorter notice than
usual, hence there was no time to coordinate with Doyle
and Pratehenko, but that explanation was not convincing
and is not credited. (b) At the December 8 meeting, de-
scribed above, Stephens and Haight discussed the student
Appendix 43
petition in detail. Haight testified that he stated that Doyle
and Pratchenko were responsible for the student problems
because of their inadequate counseling. (¢) On December
15 there was a faculty-student meeting, attended by Steph-
ens, Haight and Ryan, among others, at which the student
petition was presented to the administration. Pratchenko
and Doyle spoke at the meeting, generally supporting the
students’ views. (d) On repeated occasions Stephens and
Haight accused Pratchenko and Doyle of supporting the
students against the administration, of doing their jobs
improperly or inadequately, and not cooperating with the
administration. (e) Doyle was demoted, and 3 days later
terminated, in late December. At no time thereafter was
Pratchenko advised relative to Doyle’s replacement. (f)
Pratchenko participated in the strike and picketing in
January, but that action was not questioned by Stephens
or Haight on the basis of supervisory status. (g) Prat-
chenko did not attend any school meeting after mid-No-
vember, in any capacity other than as a rank-and-file
teacher. Whatever may have been Pratchenko’s status
prior to mid-November, he was not treated as, nor given
the responsibility of, more than a rank-and-file instructor
after that date. He did not participate in any administra-
tive function; he had no counseling duties; his maintenance
duties already had been taken over by Warton; and he
made no recommendations concerning teacher assignments,
new hires, discharges or schedules.
Based upon the foregoing, it is clear, and found, that
Pratchenko was not a supervisor within the meaning of the
Act, at any time after mid-November 1976, regardless of his
status prior to that date.
Rees was hired by Stephens in the summer of 1973 as an
instructor in sculpture, at $40 per class. He taught con-
tinuously until January 1977. At a time fixed differently by
44 Appendix
Rees, Stephens and Haight, but at least by 1975, Rees was
appointed chairman of the sculpture department, raised to
a salary of $700 per month, and later to $750 per month.
From about the time he was promoted, Rees was the senior
teacher in sculpture, among the four usually employed.
Rees was an evasive, unconvincing witness who avoided
direct answers and who gave the distinct impression of try-
ing to becloud the issue of his status. Although it appears
doubtful that much of his testimony is reliable, he testified
to some undisputed facts relative to his status: In addition
to teaching, Rees supervised the maintenance of equipment,
tools and machinery used in the department. As time went
on after his promotion, he was given more to do, He coun-
seled students, purchased supplies, had sole responsibility
for designing and setting up the sculpture department,
approved various forms for the sculpture department, and
had an office with a desk. He talked with Stephens about
Wolfe when the latter was hired; recommended that
Laughler and Faleoni be hired, and they were hired. He
was paid salary during recesses, when he did not teach.
Sometimes he advised instructors, and at times instructors
would come to him for advice. He was the conduit for com-
munication, when one was needed, between seulpture in-
structors and Stephens. There was a maintenance crew of
two or three persons on his floor of the building, which he
directed “at times.”
Although Rees was less than candid, Stephens and Haight
were even less convincing. Stephens testified: In January
1977 he talked with Rees about hiring teachers for the spring
term of 1977. Rees recommended for hire (prior to the
spring of 1977) teachers Faleoni, Laughler, Lean** and
Edwards. He discussed with Rees the discharge of Edwards
38. Various spellings by the reporter: Lein, Lean, Leen.
t an] .
Appendix 45
and Lean. Haight testified: Rees’ recommendations for hire
of the four teachers named above were followed “totally.”
The discharges of Edwards and Lean were discussed by
Haight with Rees, who agreed thereto and who asked Haight
to do the discharging, since Edwards was a close friend of
Rees. The hire of Wolfe was discussed with Rees.
On rebuttal, Rees denied that he recommended the dis-
charge of Edwards; he said he was informed about, rather
than asked about, Edwards’ difficulties ; and he said he never
recommended, or was asked about, the discharge of Lean.
It appears from the record that Rees, as a department
chairman, was treated somewhat differently from Rees as
an instructor. As chairman, he enjoyed some measure of
prestige. He was senior instructor in sculpture. Occasionally
he was consulted by management relative to departmental
affairs. He kept the physical assets of the department in
proper condition, although purchase orders had to be
approved by Stephens. However, the record does not show
that Rees supervised anyone.* There is no showing that he
directed the work activities of any instructor on a regular
basis, or that he disciplined any instructor. Possibly, but
not certainly, he recommended some actions for the depart-
ment to be taken by Stephens. The nature of his recom-
mendations relative to Laughler and Faleoni is far from
clear, and it appears that those recommendations were inci-
dental, rather than of a supervisory nature. It is clear that
recommendations for the hire of instructors is on a free
and easy basis at the school; it seems that almost everyone,
including students, gets into the act. However, most impor-
tant, it is quite clear that Stephens and Haight did not think
34. Edwards and Wolfe credibly testified that they never were
told Rees had any authority over them. This testimony supports
General Counsel’s contention that Stephens and Haight were the
effective supervisors of the sculpture department, rather than Rees.
46 Appendix
of Rees as a supervisor until this case arose, It was not
shown that Rees ever exercised independent judgment in
any supervisorial function. When the union problem arose,
Rees was not approached on the basis of a supervisory posi-
tion; he was treated the same as all other instructors. It is
found that Rees was not a supervisor at any time relevant
herein, The question of the reason for his discharge is dis-
cussed infra.
2. Respondent alleges that Pratchenko and
Rees were not terminated
Pratchenko testified that he called Haight by telephone
on January 20, after their discussion on the preceding day
wherein Pratchenko was asked to sign the contract prepared
by Respondent. Pratchenko said he told Haight he didn’t
want to lose his job, but he could not sign the contract.
Pratchenko then testified :
...Mr. Haight said, “Well, if vou don’t sign it, you
know what it means.” T said, “Well, what does it mean?”
Tie said, “It means that vou are terminated.” And J
said something to the effect, “That seems awfully final.
Does that mean I’m fired?” He said, “Yes, vou are
fired.” T said, “Well, okay. Can I collect my pay since
T was on salary from the Ist to the 20th?” He said, “Yes,
you can collect that from Mr. Ryan and we’ll send you
a letter notifying you of your termination. Goodbye.”
That was it.
Pratchenko testified that he attempted after January 20
to get a firm statement from Stephens as to whether or not
he was fired, but was not successful. He has never received
a discharge in writing, but he has been unable, even follow-
ing court judgment, to collect pay due to him for work in
January. Pratchenko has not received an unconditional offer
for return to work, as discussed elsewhere, nor has he
worked for Respondent since January 20, Stephens testified
Appendix 47
that, during a conversation with Pratchenko after January
18, Pratchenko said, “He wasn’t going to sign any contracts,
and he wasn’t going to work. Never.” Stephens also testified
that, during a group meeting in late January, Pratchenko
asked, “Is Joe Rees fired?” and Stephens replied “No.”
Finally, Stephens testified that he never gave Pratchenko
an offer of work at any time for the spring 1977 term.
It may well be that Pratchenko sometimes was referred
to, or treated without distinction, as one of the group of
instructors involved herein. He was a picketer, but that does
not resolve the issue, nor is there validity to the argument
that, since Pratchenko never received a written discharge,
he was not fired. Pratchenko’s version of the telephone con-
versation with Haight on January 20 is credited. Haight
did not deny Pratchenko’s testimony relative to this point.
In view of the foregoing, and the facts that Pratchenko has
not gone back to work and has been unable to collect his pay
for work performed in January, it is clear beyond reas a-
able question, and it is found, that Pratchenko was fired on
January 20.
So far as Rees is concerned, he testified that, following his
refusal to sign Respondent’s contract on January 18, dis-
cussed supra, he was asked to resign:
... 90, then, Mr. Haight became kind of upset and he
grabbed a piece of paper and he started writing out
what he called my resignation. And of course T was like
eaught in this bind, and IT told them, T said, “Well T’m
not going to sign my resignation.” And I got into the
whole thing about how I had been at the Academy
longer than Mr. Haight, and that T felt very respon-
sible and I was interested in working the problems
out, not walking away from them.
Q. What further discussion took place?
A. Well, not much except for I was told that I would
receive a letter. And I got up and [ left the room.
48 Appendix
Rees said he never received the letter referred to by
Haight, and he testified that he has not been paid for the
18 days he worked in January.
Haight testified relative to part of the conversation with
Rees on January 18:
Q. TIsee, And in the meeting with Mr. Rees, did you
ask him to sign a resignation?
A. When he was asked, “Was he going to work?”
And he said, “No.” Then I said, “Apparently you’re not
going to assist us in finding replacements?” He said,
“No.” And then I said, “Then you’re apparently resign-
ing, is that correct?” And he said, “No.” I didn’t know
what he was doing. So I drafted a resignation for him
on the spot, and asked him to sign it. Because I told him
if he wasn’t going to help us, I’d find somebody who
would.
Q. And he didn’t sign the resignation?
A. No.
Q. He did not resign?
A. In my estimation, he resigned.
Haight further testified that Rees never returned to
work,
The arguments relative to Rees are similar to those rela-
tive to Pratchenko, discussed supra. Rees’ testimony rela-
tive to the conversation at the meeting of January 18 is
credited. In view of that fact, and the facts that Rees has
not gone hack to work and has been unable to collect his pay
for work performed in January, it is well established, and
it is found, that Rees was fired on January 18.
3. The remaining question on this issue is whether the
three employees were fired because of their union or other
protected activities.
So far as all three emplovees are concerned, there is no
reasonable question concerning the reason for their dis-
Appendix 49
charges. Counsel stipulated at trial the Union’s status under
the Act. All three employees had lengthy and satisfactory
work histories with Respondent ;* their first problems with
Respondent arose upon their becoming involved with the
student petition, and soon thereafter, becoming involved
with the Union. Stephens and Haight learned of the student
petition in mid-November. They discussed the petition with
Doyle on December 6, and with Doyle and Pratchenko on
December 8. At the faculty-student meeting on December
15, Doyle and Pratchenko, among others, supported the
students rather than the administration, On December 22,
Doyle’s class load was reduced and, shortly thereafter,
Doyle was demoted and, 3 days later, fired. There is no rea-
sonable question that Doyle, whose relationship with
Respondent prior to mid-November was good, was fired
because of his support of the students and their petition,
which included several matters directly related to working
conditions of the teachers. Haight’s testimony concerning
Doyle’s discharge appeared strained and unrealistic, and is
not credited.
Pratchenko and Rees also had a good relationship with
Respondent prior to. mid-November. However, they became
involved with the union movement in late December and
early January, and by the time they were fired, that involve-
ment was well known to Stephens and Haight. It is clear that
the personal contracts offered to Pratchenko and Rees were
attempts by Respondent to frustrate the Union’s hope to
obtain a group contract. It is equally clear that the two
employees were fired because they declined to sign those
contracts. Under such cireumstances, and against the back-
ground of Respondent’s animus against the Union, the dis-
35. <Any earlier dissatisfaction with Doyle was forgiven upon
his rehire.
50 Appendix
charges of Pratchenko and Rees violated Section 8(a) (3)
of the Act.
I. The Strike and Nature Thereof
1, Paragraph IX of the complaint alleges, inter alia,
that employees were engaged in an unfair labor practice
strike from January 20, 1977 until February 16, 1977. The
alleged dates of the strike are confirmed by the record,
Respondent contends that the strike was for recognition,
or was economic in nature, but that contention has no sup-
port in the record. It may well be, as Respondent argues,
that an employer may require that an emplovee sign an
employment agreement as a condition of work. However,
that requirement can be imposed only in circumstances free
from union activity. In this case Stephens demanded that
employees Doyle, Pratchenko, Rees, Cohen and Sher sign
Respondent’s personal contracts at a time when Stephens
and Haight were in the midst of negotiating a contract with
the Union, as discussed supra. The clear purpose of that
effort by Stephens was to interfere with the Union’s organ-
izational efforts, in violation of the Act. Further, by the
time the strike commenced, Doyle and Rees had heen ter-
minated by Stephens because of their protected activity.
The employees met the evening of January 19, in an “em-
ergency” session, to consider Respondent’s actions, which,
they believed, were unfair labor practices. After discussing
incidents related to them by participants, which established
to their satisfaction the illegality of Stephens’ efforts to dis-
courage the Union in its organizational efforts, the em-
ployees voted to go on strike. Nothing was said in that meet-
ing, and nothing in the record even hints, about a strike for
recognition, or for economic reasons, The emplovees struck,
and picketed, solely because some of them were being threat-
Appendix 51
ened, harassed and discharged because of their union ac-
tivities.**
2. Employees’ offer to return to work
The negotiating committee met with Stephens and Haight
on January 28 in Stephens’ office. Some of the strikers had
been replaced, and Stephens offered reinstatement, with at
least one class to teach, for all strikers, provided classes
were available. That proposal was declined by the strikers.
Just after that meeting, and prior to commencement of
school on January 31, Stephens advised all strikers in writ-
ing*’ that those who did not return to work on January 31
would be “permanently replaced.” This letter constituted, in
effect, a discharge of the strikers.
The negotiating committee again met with Stephens and
Haight on February 3, but no agreement was reached.
On February 4 a group meeting was held, attended by,
among others, Stephens, Haight, striking faculty members
and nonstriking faculty members, Stephens offered rein-
statement of the strikers, on a selective basis.** That con-
ditional offer was declined by the strikers.
36. Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270. Respond-
ent contends, through the testimony of Stephens and Haight, that
the parties arrived at an agreement in Stephens’ office on January
21. It is argued that the pencilled notes made by Posey on Respond-
ent’s Exhibit No. 4, together with the typed portion of the exhibit,
represent the agreement of the parties, and that the Union violated
that agreement by not adhering to it. That contention is without
merit. Posey, who took the notes for the group, Rees and Sher
testified that, at the meeting, Stephens and Haight gave their
counterproposals to the negotiating committee, item by item, and
Posey wrote the proposals down on Respondent’s Exhibit No. 4.
The employees further testified that they told Stephens and Haight
they would take the counterproposals back to the Union for review.
They said General Counsel’s Exhibit No. 16 is the Union’s response
to Stephens. The employees’ version is consistent with the chron-
ology of events and exhibits of record, and is credited.
37. Respondent’s Exhibit No. 8.
38. Some nonstrikers said they would not work with some of
the strikers.
52 Appendix
On February 14 or 15 the strikers met, and decided to
offer unconditionally to return to work. By letter dated Feb-
ruary 16, received by Respondent on February 17, the
Union’s attorney addressed Stephens as follows:
T have been authorized by the California Federation
of Art Teachers, Local No. One, its members and all
persons participating in the strike against the Academy
to offer unconditionally to return to work immediately.
Accordingly, all strikers hereby offer unconditionally
to return to their jobs immediately.
In order to arrange a convenient and orderly return
to work, please contact Ernest Posey to arrange rein-
statement for the strikers. Please send a copy of all
correspondence regarding reinstatement to me. These
requests are not conditions upon our offer.
The offer was not accepted by Stephens, No striker was
hired during the spring term.
3. Those employees on strike from January 20 through
February 16, 1977, and who were not given jobs pursuant
to their unconditional offer to return to work, were
stipulated by counsel to be as follows:
Leslie Becker, Karl Cohen, William Cutchins, Dennis
Gray, Tom Keller, Anna Rosich, Elizabeth Sher, Mort
Kohn, Jan Oswald, Ernest Posey, Julie Roman, Dave
Sanchez, Louise Stanley, Jack Stone, Marion Swetsch-
inski, Dick Warton, Tom Wojak and Beverly Wolfe.
In addition to the foregoing, the following persons,
whose status is discussed infra, were strikers during the
aforesaid period of time:
Joseph Doyle, Joseph Rees, Elizabeth Sher, Paul
Pratchenko and Kenneth Light.
It is found, above, that the strike was an unfair labor
practice strike, and it is also found that, on January 28,
Appendix 53
Respondent discharged the strikers named herein, because
of their participation in the strike.*® The strike continued
until February 16, and none of the strikers were reinstated.
The strike ended on February 16. The strikers’ offer to
return to work, and to abandon the strike, having been
received by Respondent on February 17, backpay of strikers
will be recommended to commence on February 17, 1977.*
J. Supervisory Status of Warton, Keller and Sher
One of Respondent’s defenses is that Warton, Keller and
Sher are supervisors, hence there is no duty to reinstate
them. The employment status of the three is discussed
below.
1. Warton
When Warton agreed to become head of the photography
department effective January 1, 1976, he was given a salary
of $15,000 per year and was given the responsibility of
“making a good photography department.” He was toid by
Stephens that Warton would assist in scheduling classes,
hire or at least recommend teachers for hiring in the photo-
graphy department, be in charge of work-scholarship stu-
dents, and be in charge of equipment. Thereafter, in May
1976, Warton was placed in charge of the Sutter Street
building and raised to $18,000 per year, as discussed
above.*! Warton administered the photography department
39. Respondent’s letter of January 24, written to all instructors,
was a conditional offer of reinstatement which, if not accepted,
would constitute a discharge. However, it is found that the actual
discharge occurred on January 28.
40. As General Counsel discusses in his brief, Respondent sent
offers of reinstatement to 22 striking teachers in July. Eighteen
teachers accepted the offers. Offsets, if any, against backpay ordered
herein can be applied in compliance proceedings.
41. A finding relative to supervisory status is not necessary,
in view of later events. However, it is clear that, as of May 1976,
Warton was a supervisor within the meaning of the Act.
o4 Appendix
and the Sutter Street building continuously after his two
appointments. However, a change was made in his status
on December 20, 1976..
Warton attended the administration-faculty-student
meeting of December 15, and spoke on one occasion while
there. He addressed some critical remarks to Stephens, who
took exception to what Warton said. On December 17,
Haight called Warton by telephone, and said Stephens
would like to talk with him. Warton came to Stephens’
office on December 20, and they had a conversation. Warton
testified: Stephens started the conversation by asking,
“How would you like to be relieved of your responsibilities
and just teach?” Warton asked, “Relieved of all my respon-
sibilities?” and Stephens said “Yes.” Warton asked why,
and Stephens said Warton was not doing the job the way
they wanted it done; there had been complaints by instruc-
tors; and two of the teachers Warton hired should be fired.
Warton asked if the reason was his remarks at the meeting
of December 15, and Stephens said no, Stephens then talked
about changes he was going to make. Warton replied:
... 1 said, “Well, that means I’m fired as far as depart-
ment chairman?” And he said, “That’s right.” And he
said, “You have three classes, we'll give you a raise
now to $60 a class, which would be $180 a week.” And
T said, “Well, I didn’t know whether TI could accept
that, but T would let them know.”...
Warton said he called Haight within a week, agreed to “just
teach,” and offered to break in “whatever replacement” was
given the job Warton had. Warton thereafter attended
union meetings, signed the union charter, and engaged in
the strike and picketing.
Stephens corroborated Warton’s testimony, and con-
firmed that he asked Warton in December “would he please
become a teacher as he had been.”
Appendix 55
Haight, who attended the conversation between Warton
and Stephens, corroborated the two accounts of the latter.
It is quite clear, based upon the foregoing, and found,
that Warton was not a supervisor within the meaning of the
Act, at any time after approximately December 20, 1976.
2. Keller
Keller was hired by Stephens in January 1976 as chair-
man of the advertising department. His duties were to
teach, do advertising for the school, and counsel students.
He monitored teacher attendance and teacher production.
He was paid $1,500 per month, during all months, whether
or not he was teaching. He prepared school advertisements
and window displays, and supervised production of the
school newspaper. He testified that he had implied author-
ity to recommend hiring and firing, and that he made many
such recommendations.”
Keller testified: He attended the administration-faculty-
student meeting of December 15, and spoke briefly about the
importance of student counseling. He met with Stephens,
Haight and Ryan on December 20, or possibly December
28, at which time Stephens told him “that was the end of
my chairmanship and that now, if I wanted to, T could teach
some classes as an instructor.” Tentatively, he was assigned
three classes for the spring 1977 term, at $60 per class.
Stephens said Mr. Dattel, who had been hired in November,
would become chairman of the department instead of Keller.
Stephens testified that he was not satisfied with Keller’s
work as chairman of the advertising department, and that
he discussed Keller’s deficiencies with him. Stephens stated:
“So it developed that we chose Mr. Dattel, and Mr. Keller
42. A finding of supervisorial status of Keller is not necessary,
as diseussed infra, but it is clear that he was a supervisor within
the meaning of the Act, until relieved of that responsibility.
56 Appendix
was agreeable to teaching....” Stephens said he advised
Keller of his decision to replace him with Dattel about
December 17 or 18.*8
Haight testified that he had complained to Keller about
the latter’s work deficiencies, and that Dattel was hired as
Keller’s replacement in the position of chairman of the
advertising department. Haight said Keller accepted the
offer of a teaching job given to him by Stephens for the
spring term of 1977.
Based upon the foregoing it is clear, and found, that
Keller was not a supervisor within the meaning of the Act,
after approximately December 20, 1976, when he became a
rank-and-file teacher.“
3. Sher
Sher first was hired by Respondent in February 1974 as
a printmaking instructor, and taught thereafter through the
fall term of 1976, She was paid $40 per class until the fal!
of 1976, when she received $50 for one class and $40 each
for two other classes per week. Sher described her duties
as follows:
A. T was responsible for ordering supplies for my
own classes, aii arranging the curriculum for my own
classes, and making sure the equipment for mv classes
was working, and leaving a supply list for supplies the
students would buy for the classes, and T had independ-
ent study students, and T graded students, and T coun-
selled students on an informal basis.
Q. What was the procedure on obtaining supplies?
A. Well, the supplies that the students were to buy,
T would submit a list to the school store to have those
43. Stephens later testified that it was his intention to have
Dattel take over the department from Keller, at a salary of $18,000
per vear. (See General Counsel’s Exhibit No. 20.)
44. General Counsel did not allege that the demotions of Warton
and Keller violated the Act, and no finding is made on that point.
“
Appendix 57
supplies available, and for other supplies, I obtained
a purchase order from Mike Ryan, and for any indivi-
dual supply over $25 I had to obtain permission from
Mr. Stephens.
Sher testified that there was an attempt by the school in
1975 to establish “some kind of a structure” in the fine arts
department, but there was no apparent success, She said
she received a xerox “flyer” in her mailbox listing several
department chairmen, showing her and Barbara Foster, the
only teachers in the department, as chairmen. She said she
does not think there is a chairman at the present time.
Other teachers have taught in the department in the past,
but presently there are only two, who are Sher and Tom
Wojak. (Wojak). Sher said the only recommendation for
hiring she has made was that of Carol Lane, whom she
recommended as her replacement for one semester when
Sher was on a leave of absence. She said she counsels stu-
dents in the same manner as do all instructors, and that she
approves, but does not sign, independent study contracts.
She stated that she makes recommendations to Stephens
relative to equipment for the department, which may or may
not be followed; that Stephens makes all decisions on equip-
ment purchases. Sher testified that no one has ever told
her what her authority is, nor did she agree to, or discuss,
the flyer she received in the mailbox in 1975.
Barbara Foster (Foster) testified that she worked for
Respondent from February 1975 until January 13, 1977, in
the printmaking department, with three other teachers:
Sher, Lojak and Merrill Freedman. Foster said no one ever
told her that Sher had any authority over her. She said
she was told to report to Haight, and that, on one occasion,
Haight reprimanded her,
58 Appendix
Stephens testified that Sher was made chairman of the
printmaking department in 1974, but that he does not
remember telling her she was chairman.** Counsel stipulated
that printmaking is one of the fine arts majors. Stephens
said the only time he discussed personnel with Sher was
after Foster left, and possibly on one other occasion when
he already had someone in mind for a teaching position.
Stephens said Sher only teaches three times each week, and
the average class consists of four or five students.
Sher’s testimony that she never was told that she had
supervisory authority; that she never hired, fired, effec-
tively recommended, directed or otherwise supervised other
emplovees ;*° and that she did not consider herself as a
supervisor, is given full credence. Foster corroborated
much of Sher’s testimony. Neither Stephens nor Haight
testified to facts that appreciably differed from the testi-
mony of Sher and Foster. It is abundantlv clear, and found,
that Sher was not a supervisor within the meaning of the
Act, at any time relevant herein.
K. 8(a)(2) Allegations
Paragraph VIIT of Case No, 20-CA-13369 alleges that,
since on or about March 9, 1977, Respondent unlawfully
45. Stephens testified that he did not feel Foster was a chairman,
but Respondent’s Exhibit No. 5 shows both Sher and Foster as
chairmen. Stephens could not explain this diserepaney, which dilutes
the reliability of the exhibit.
46. Erin Theilacker testified that she was a work-study student
in 1974 and 1975, and that she assisted both Sher and Foster in
the printmaking department, at the direction of Stephens. Aside
from the fact that work-study students are not paid for their work,
other than by tuition, and are not emplovees in the true sense of
the word, it is clear that Theilacker merely assisted Sher and Foster
in an incidental manner. No element of the normal supervisor-
employee relationship was present, and Theilacker’s status did not
result in making Sher and Foster her supervisors.
Appendix 59
has dominated and assisted the Faculty Senate by acts and
conducts discussed infra,
1, The Faculty Senate’s status as a labor organization
Although, possibly, there have been a few instances in
the history of Respondent when rudimentary faculty organ-
izations were attempted, it is clear, as acknowledged by
Stephens and FitzSimons, that there never has been a
faculty senate, as that term is used in this case, prior to
January 1977,
It is equally clear that, whatever the Faculty Senate was
when it first was established by Stephens in the Commit-
ment of January 24, that organization was changed, and
the issue herein can be resolved on the basis of the Faculty
Senate as it exists under the Revised Commitment of June
8, and under practice and procedures of Respondent acting
pursuant thereto.
A basic inquiry is the reason for creation of the Faculty
Senate. The controversy involved in this case arose in the
fall of 1976, when a petition to Respondent appeared, al-
legedly prepared by students. It appears likely, as suspected
by Respondent, that Doyle and, possibly, Pratchenko either
thought of the petition or strongly encouraged it, since the
petition is concerned with teacher problems as well as stu-
dent problems. Among improvements sought by the petition
are four directed to personal improvements for faculty
members. However, regardless of the manner in which the
improvements were suggested, at least 23 of Respondent’s
approximately 58 instructors working at that time pressed
for those improvements to the point of striking when they
were frustrated in their organizational attempts to obtain
the improvements. When Stephens became aware of the
teachers’ organizational efforts, he mounted, with the sup-
port and assistance of Haight and others in the adminis-
60 Appendix
tration, a campaign to defeat that organization. A rival
organization, the Faculty Senate, suggested itself as a part
of the campaign, The first attempt to create such an organ-
ization, in January, was feeble and incomplete, but the
thought was there. The student petition sought improve-
ments for teachers, by way of work contracts, better wages,
insurance plans and paid independent study, Those im-
provements are found in the Revised Commitment at sec-
tions 3, 4 and 7. In addition, the Revised Commitment
provides other improvements and benefits, several of which
were suggested by teachers during the early stages of the
controversy. In view of the facts that (a) no Faculty Senate
existed prior to this controversy; (b) Respondent was
strongly opposed to the Union; (¢c) Respondent availed
itself of every oportunity to frustrate the Union and its
representatives, and to encourage the Faculty Senate; and
(da) the membership of the Senate effectively is controlled
by Kespondent, it is clear hevond any reasonable doubt that
the purpose of the Senate’s formation was to provide
Respondent with a way to regulate working conditions
through an in-house arrangement, rather than through
negotiation with an independent union.*7
The fact that the Revised Commitment provides a way
to regulate working conditions through a controlled vehicle
is apparent. (a) The entire Faculty Senate structure can
be eliminated hy Stephens, just as he caused its creation.
The Commitment is no more than a statement of intention
bv Respondent; it is not an enforceable contract between
legal entities. (h)Under the Commitment, department
directors are appointed by the “administration,” albeit
47. Counsel stipulated that there are no authorization ecards or
membership applications signed by employees, designating the
Faculty Senate to be employees’ bargaining representative.
Appendix 61
“with the advice of the Faculty Senate.” The Senate is com-
prised of the five directors, five elected faculty members,
and an eleventh faculty member chosen by the Senate to
act as an “ombudsman.” Since all the faculty is under the
directors, or Stephens and Haight, it is most unlikely that
the administration would encounter difficulty in getting the
Senate*to act in a manner desired by the administrators.
The fact that the Commitment is an arrangement to
regulate working conditions, as well as matters of an admin-
istrative nature, is shown by the Commitment itself, The
Commitment provides for status of faculty members, types
of leave, hiring and termination, wages and benefits, sever-
ance pay, class type and grievances, among other things.
As a practical matter, the Faculty Senate meets regularly
with Stephens and other members of the administration,
and together they have discussed, and decided issues related
to, election of Faculty Senate representatives, class size,
curricula, progress of the NLRB ease, status of faculty
members, student counseling, professional responsibilities
of teachers, leaves of absence, status of the Union, termina-
tions of employees, grievances,*® and many other matters.
FitzSimons was an unusually impressive witness. She
was knowledgeable, sincere, calm and convincing. Her testi-
mony was candid and free of antagonism, and she is
credited. She testified :
Q. September 22nd wasn’t the first time that you
had considered having a Faculty Senate election, was
it?
A. No. As a matter of fact, we were trving to
debate about what was going to happen. The situation
48. Prior to the Commitment, Respondent had no formal griev-
ance procedure,
49. The summary herein of Faculty Senate discussions is drawn
from FitzSimons’ credited and unchallenged testimony.
Appendix
was that the previous semester when we set up the
term of office as running roughly from October to
October for the Faculty Senate, we knew that the elee-
tion would be held in late September or early October,
something like that, and then we find out that this
Board election comes in, It was going to inundate the
faculty and probably confuse them as to what they
were voting for, up to a point, if they weren’t really
up-to-date on it, and T think what we were doing was,
we were going to wait and see the outcome of the
Board election because if the Union had prevailed on
the Board election, my understanding was that the
Faculty Senate, the whole effect of that would be viti-
ated. There would be no need for it any longer,
CROSS-EXAMINATION
Q. (By Mr. Harrington) What did you under-
stand the obligation of the Faculty Senate would be if
the Union won the NLRB election?
A. I think the Academy would then be required to
bargain collectively with the Union on terms and con-
ditions of employment.
Based upon the foregoing, it is clear that the Faculty
Senate is in the nature of an employer’s committee, estab-
lished to deal with the Employer on behalf of all faculty
members, relative to wages, hours and working conditions,
among other things. Such a committee is a labor organiza-
tion within the meaning of the Act.” The fact that the
Senate is not formally organized, with a constitution and
bylaws, is immaterial.”
50. N.L.R.B. v. Cabot Carbon Co., et al., 360 U.S. 203; Alta
Bates Hospital, 226 NLRB 485.
North American Rockwell, 191 NLRB 833.
Appendix 63
2. Respondent’s domination of, and assistance to, the
Faculty Senate are shown by the following:
(a) The testimony of FitzSimons, Stephens and Haight
establishes that Respondent negotiated working and other
conditions with the Faculty Senate during preparation of
the Revised Commitment and thereafter.
(b) Through appointment of department directors,
Stephens effectively designated 5 of the 10 members of the
Faculty Senate.
(c) Counsel stipulated that the Faculty Senate has no
funds of its own, and that all of the Senate’s expenses are
paid for by Respondent.
(d) Counsel stipulated that Respondent has provided all
facilities, equipment, clerical services and mailing expenses
required by the Faculty Senate.
(e) Counsel stipulated that Stephens, Haight and
Schroeder have attended meetings of the Faculty Senate
since March 9, 1977.
In view of the Faculty Senate’s status as a labor organ-
ization, and the Senate’s domination by and assistance
received from Respondent, this allegation is proved.
L. Denial of Employment
Paragraph IX of the complaint in Case No. 20-CA-13369
alleges that, from on or about September 1, 1977 through
about September 15, 1977, Respondent denied employment
to the following teachers, because of their protected
activity:
Joseph Doyle irnest Posey Tom Wojak
Elizabeth Sher Julie Roman Marion Swetschinski
Dave Sanchez Paul Pratehenko Karl Cohen
Mort Kohn Louise Stanley William Cutechins
Kenneth Light Jack Stone
64 Appendix
Counsel stipulated that, on September 1, 1977, Respond-
ent cancelled classes as follows:
Joseph Doyle 1 class
Elizabeth Sher 3 classes
David Sanchez 1 class
Mort Kohn 1 class
Ken Light™ 1 class
Ernest Posey 9 out of 10 scheduled classes
Julie Norman 1 class
Paul Pratchenko 2 out of 3 scheduled classes
Louise Stanley 1 class
Jack Stone 1 class
Marion Swetschinski 1 class
Karl Cohen 3 classes
Joe Rees 2 out of 4 scheduled classes
Tom Wojak and William Cutchins were named in the
complaint as having been denied employment, but those
two were not included within the stipulation of counsel.
However, the two were stipulated to have been strikers,
and Haight testified that no striker listed on the initial
schedule or the revised schedule™ was given classes for the
fall term of 1977.
Based upon the record and stipulations of counsel, it is
clear that: (a) Respondent strongly opposed the Union,
and deeply resented the strike and those who participated
in it. (b) The Faculty Senate was created in order to
negate or destroy the Union. (c) In creating the Faculty
Senate, Stephens relied upon nonstriking faculty members,
and prior to creation of the Senate, there was a sharp
52. Counsel stipulated that, if called to testify, Light would
testify that he was hired by Mr. Dick Warton to teach at the
Academy of Art College for the spring term 1977 beginning
January 31, 1977, and accepted that employment and was scheduled
to teach for that term, and that prior to the start of the term on
January 31, Mr. Light participated in the strike called by CFAT.
53. General Counsel’s Exhibit Nos. 50 and 51.
Appendix 65
cleavage between strikers and nonstrikers. Some of the
latter said they would not work with the strikers. (d) By
the time of the fall term, which started in September 1977,
the Faculty Senate was a going concern, and the admin-
istration was deeply involved with it relative to the faculty’s
wages, hours, and working conditions, as well as other
matters. (e) No striker was on the Faculty Senate, nor
did any striker vote for faculty representatives. (f) No
striker was given a normal teaching schedule for the fall
term, and some were given no classes to teach. (g) Re-
spondent hired several new instructors in the fall of 1977,
some of whom taught classes which some of the strikers
were qualified to teach. (h) Some classes were split, with
junior, nonstriking instructors given a split class when
otherwise they would have had no class. (i) Hight less-than-
minimum classes were conducted, but they were taught
by nonstriking instructors. (j) Respondent failed to pro-
vide students an adequate opportunity to register for
classes of returning strikers.
General Counsel thus created the inference that those
teachers named above were denied teaching opportunities
because of their striking and their support of the Union.
Respondent offered, by way of rebuttal, the following
testimony and evidence to show that those who were not
given normal teaching opportunities were so denied be-
cause of business reasons: (a) Because of the strike, the
number of registrants for the fall term dropped drastically
from pre-strike totals, thus fewer teachers were required
in the fall.** (b) All strikers were offered reinstatement in
July and, in addition, offers of reinstatement were given in
July to Dovle, Pratchenko, Rees, Sher, Keller and Warton,
all of whom aecepted except Warton. (¢) Some classes were
54. Haight credibly testified that pre-strike student population
was 1135 in 119 classes and that post-strike totals were 845 students
in 158 classes.
66 Appendix
cancelled because of less-than-minimum enrollment, includ-
ing classes for two nonstriking teachers. (d) Some of the
strikers taught advanced courses, and many registrants for
the fall term were new students who wanted elementary
courses. (e) Wojak was offered classes, but did not report
for them. (f) Haight and Stephens testified that they is-
sued instructions to department directors to show no prej-
udice toward any teacher.
Discussion
Respondent’s antipathy toward the Union and its sup-
porters, displayed by the intensive and pervasive unfair
labor practices discussed herein, makes it clear that every
effort would be made to reward the administration’s sup-
porters and to retaliate against union supporters, There
is no indication that any of the teachers named in this
allegation experienced any difficulty obtaining teaching
assignn ents in the past, even though some of them ha
taught for Respondent each year during the past several
vears. The fall term of 1977 was the first term following
inception of this controversy that afforded Respondent an
opportunity to freeze out those teachers whom it resented,
and that is the action that was taken.
Haight, who was Respondent’s principal witness on this
issue, explained the otherwise unusual failure to find classes
for so many experienced teachers by stating that he merely
followed the schools’ rules relative to minimum classes.
However, that explanation is not convincing. First, such
extensive failures to meet minimum classes were not shown
to have arisen in the past. Second, it violates common
sense to say that all above-minimum classes just happened
to be taught by antiunion instructors, and all union sup-
porters just happened to have no classes, or only a severe-
lv curtailed number of classes to teach, especially in view
of Respondent’s strong antiunion animus, Third, Haight
Appendix 67
is in virtually complete control of registration of students,
scheduling of classes, and assignment of teachers. Any
explanation he gives is based upon his subjective reason-
ing. Ilis explanations were general in nature, and the
facts he said he relied upon either were not presented
or were subject to more than one interpretation. For
instance, he explained the size of some classes by saying
that sometimes the same number who registered did not
actually appear for the classes, but no specific figures or
classes were given. Again, alleged fluctuation among reg-
istration figures, enrollment figures, and actual attendance
were used to explain why classes were or were not split,
but no specific examples were shown. Fourth, even though
registration figures for the fall term were substantially
below those of the vear before, several new teachers were
hired. Haight explained that the new teachers were for
subjects the union supporters were not qualified to teach,
but that explanation did not withstand cross-examination.
Tt is clear from the foregoing that the teachers named
above were not given classes on a basis free from antiunion
animus. It may be that, in some instances, classes would
not have been available, or accepted, even in the absence
of discriminatory treatment, but that is a subject that can
be explored at the compliance stage. Suffice it for these
proceedings to find that class assignments for the fall term
intentionally were made by Respondent to favor antiunion
teachers, or neutrals, and to retaliate against union sup-
porters named above. Assignments should have been made
on the basis of experience, past practice, and regularly
accepted criteria, free from any consideration related to
union or protected activities.
This allegation was proved.
68 Appendix
IV. The Effect of the Unfair Labor
Practices Upon Commerce
Respondent’s activities set forth in section III, above,
occurring in connection with the operations of Respondent
described in section I above, have a close, intimate and
substantial relation to trade, traffic and commerce among
the several states, and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce,
V. The Remedy
Having found that Respondent has engaged in unfair
labor practices in violation of Sections 8(a)(1), (2) and
(3) of the Act, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully discharged
its employees Doyle, Rees and Pratchenko. I will, there-
fore, recommend that Respondent offer Doyle, Rees and
Pratchenko their former jobs or, if those jobs no longer
exist, substantially equivalent jobs, without prejudice to
their seniority and other rights and privileges, and make
them whole for any loss of earnings suffered by reason
of the discrimination against them, by payment to them
of sums of money equal to that which they normally would
have earned, absent the discrimination, less net earnings
during such period, with interest thereon to be computed
in the manner prescribed in Ff, W. Woolworth Company,
90 NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB No. 117 (1977).
Tt has been found that, on January 28, 1977, Respondent
unlawfully discharged all employees named hereinbelow,
55. See generally, Isis Plumbing & Heating Co., 1388 NLRB
716 (1962).
Appendix 69
who engaged in an unfair labor practice strike from Janu-
ary 20, 1977 until February 16, 1977. I will recommend that
Respondent offer to each and all strikers immediate and
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority and other rights and priv-
ileges, dismissing, if necessary, replacement teachers, and
make said strikers whole for any loss of earnings suffered
by reason of the discrimination against them, with backpay
to commence on February 17, with interest thereon to be
computed as described above.
It has been found that, from on or about September 1,
1977, Respondent denied employment to its employees
named hereinbelow. I will recommend that those employees
be offered teaching positions to which they ordinarily
would have been assigned, but for the discrimination
against them, commencing with the start of the fall term
of Respondent in 1977, dismissing, if necessary, replace-
ment employees, and make said named employees whole
for any loss of earnings suffered by reason of the discrim-
ination against them, with interest thereon to be computed
as set forth above.”
Upon the basis of the foregoing findings of fact, and
upon the entire record, I hereby make the following:
Conclusions of Law
1. Stephens Institute, d/b/a Academy of Art College is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
56. Respondent has paid to some diseriminatees, pursuant to the
settlement agreement deseribed above, certain sums of money as
backpay. All sueh sums ean be ascertained in compliance proceed-
ings, and deducted from any sums found due and owing pursuant
to this decision.
70 Appendix
2. California Federation of Art Teachers, Local No.
One and the Academy of Art College Faculty Senate, are,
and at all times material herein have been, labor organi-
zations within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
interrogating its employees concerning their protected ac-
tivities; threatening its employees with termination if they
refused to sign individual employment contracts; threat-
ening its employees with physical injury if those employees
engaged in future protected activity; threatening to lock
out employees who supported the Union; offering to em-
ployees more work at a higher salary if the employees
would abandon their protected activity; soliciting employ-
ees to engage in surveillance of a union meeting; and
threatening to close the school rather than deal with the
Union.
4. The strike of Respondent’s employees from January
20 until February 16, 1977, was an unfair labor practice
strike.
5. Respondent violated Section 8(a)(2) and (1) of the
Act by: (a) Dominating, assisting and contributing to the
support of, and interfering with, the Academy of Art Col-
lege Faculty Senate, and by giving effect to the Commit-
ment made and distributed by Respondent to students and
emplovees of Respondent on June 8, 1977. (b) Recognizing
the Academy of Art College Faculty Senate as the repre-
sentative of its employees concerning wages, rates of pay,
hours of employment, and other terms and conditions of
employment.
6. Respondent violated Section 8(a)(3) and (1) of the
Act: (a) By discharging employees Joseph Dovle on De-
eember 27, 1976, Joseph Rees on January 18, 1977, and
Paul Pratechenko on January 20, 1977, hecause of their pro-
Appendix 71
tected activities. (b) By discharging the following named
employees on January 28 because of their participating in
an unfair labor practice strike, and failing to reinstate said
employees after the emplovees made an unconditional offer
on February 16 to return to work:
Leslie Becker Jan Oswald Tom Wojak
Karl Cohen Ernest Posey Beverly Wolfe
William Cutehins Julie Roman Joseph Doyle
Dennis Gray Dave Sanchez Joseph Rees
Tom Keller Louise Stanley Paul Pratchenko
Anna Rosich Jack Stone Kenneth Light
Elizabeth Sher Marion Swetschinski
Mort Kohn Dick Warton
(c) By denying employment to the following named em-
ployees from and after September 1, 1977, because said
employees engaged in protected activity:
Joseph Doyle Ernest Posey Tom Wojak
Elizabeth Sher Julie Roman Marion Swetschinski
Dave Sanchez Paul Pratchenko Karl Cohen
Mort Kohn Louise Stanley William Cutechins
Kenneth Light Jack Stone
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended :*"
57. In the event no exceptions are filed as provided by Section
102.46 of the Rules and Regulations of the National Labor Relations
Board, the findings, conclusions and recommended Order herein
shall, as provided in Section 102.48 of the Rules and: Regulations,
be adopted by the Board and become its findings, conclusions and
Order, and all objections thereto shall be deemed waived for all
purposes.
72 Appendix
ORDER
Stephens Institute, d/b/a Academy of Art College, its
officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining or coercing its em-
ployees in the exercise of rights guaranteed to them by
Section 7 of the National Labor Relations Act, in violation
of Section 8(a)(1) of said Act by: interrogating its em-
ployees concerning their protected activities; threatening
its employees with termination if they refused to sign
individual employment contracts; threatening its employees
with physical injury if those employees engage in future
protected activity; threatening to lock out employees who
supported the Union; offering to employees more work at
a higher salary if the employees would abandon their pro-
tected activity; soliciting employees to engage in surveil-
lance of union meetings; and threatening to close the school
rather than deal with the Union.
(b) Violating Section 8(a)(2) and (1) of the Act by:
dominating, assisting and contributing to the support of,
and interfering with, the Academy of Art College Faculty
Senate; giving effect te the Commitment made and distri-
buted by Respondent to students and employees of Respon-
dent on June 8, 1977; and recognizing the Academy of Art
College Faculty Senate, or any successor thereto, as the
representative of its employees concerning wages, rates of
pay, hours of employment, and other terms and conditions
of employment. Provided, however, that nothing in this
Order shall require or authorize Respondent to vary or
abandon any wage, hour, seniority, or other substantive
benefit it has established for its employees because of the
aforesaid agreeemnt, or to prejudice the assertion by its
employees of any rights they derived as a result of said
agreement; and further provided, that nothing herein shall
Appendix 73
be construed as prohibiting its employees from forming,
joining or assisting any labor organization.
(c) Violating Section 8(a)(3) and (1) of the Act by:
(1) Discharging employees Joseph Doyle on December
27, 1976, Joseph Rees on January 18, 1977, and Paul Prat-
chenko on January 20, 1977, because of their protected
activities;
(2) Discharging the employees named above in conclu-
sion No. 6(b), on January 28, because of their participating
in an unfair labor practice strike, and failing to reinstate
said employees after the employees made an unconditional
offer on February 16 to return to work; and
(3) Denying employment to the employees named above
in conclusion No, 6(c), from and after September 1, 1977,
because said employees engaged in protected activity.
(f) In any other manner interfering with, restraining or
coercing employees in the exercise of their rights to self-
organization, to form, join or assist labor organizations,
to bargain collectively through representative
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