Canterbury Educational Services

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 506 (N.L.R.B. 1992)

506
308 NLRB No. 72
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
The Respondent also excepted to the judge’s decision, alleging
that it evidences bias and prejudice. On our full consideration of the
record in these proceedings, we find no evidence that the judge pre-
judged the case, made prejudicial rulings, or demonstrated bias
against the Respondent in his analysis and discussion of the evi-
dence.
2 Backpay shall be computed as set forth in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
3 We find merit in the General Counsel’s limited exceptions and
shall conform the notice to the Order.
Canterbury Educational Services, Inc. and its whol-
ly owned subsidiary, Canterbury Career
Schools of Pittsburgh, Inc. and Edward J.
Slifka. Case 6–CA–23121
August 31, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On March 25, 1992, Administrative Law Judge
Bruce C. Nasdor issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel filed limited exceptions and a
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, to modify the remedy,2 and to adopt the rec-
ommended Order, as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Canterbury Educational
Services, Inc., Medford, New Jersey, and its wholly
owned subsidiary, Canterbury Career Schools of Pitts-
burgh, Pittsburgh, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order, except that the attached notice is sub-
stituted for that of the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL offer to Edward J. Slifka, Dwight W.
Wolff, and Steven B. Karnek immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights and
privileges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits re-
sulting from their discharges, less any net interim earn-
ings, plus interest.
WE WILL notify each of them that we have removed
from our files any references to their discharges and
that the discharges will not be used against them in
any way.
WE WILL NOT discharge or otherwise discriminate
against you for supporting Teamsters Local 249 or any
other union.
WE WILL NOT threaten our employees with the clo-
sure of our facility because of their union membership,
activities, and sympathies and the union membership,
activities, and sympathies of any other employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
CANTERBURY EDUCATIONAL SERVICES,
INC. AND ITS WHOLLY OWNED SUBSIDI-
ARY, CANTERBURY CAREER SCHOOLS
OF PITTSBURGH, INC.
David L. Shepley, Esq., for the General Counsel.
Rayford T. Blankenship, President, and John L. Rybolt
(Blankenship & Associates), for the Respondent.
Edward J. Slifka, for the Charging Party.
507CANTERBURY EDUCATIONAL SERVICES
1 Respondent’s motion to correct the transcript is granted. 2 All dates are in 1990, unless otherwise specified.
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge. This case
was tried at Pittsburgh, Pennsylvania, on June 13 and July
23 and 24, 1991. The complaint and notice of hearing issued
on February 1, 1991, alleging violations of Section 8(a)(1)
and (3) of the Act, in that Respondent threatened employees
if they selected the union as their bargaining representative,
and terminated the employment of Slifka, Dwight W. Wolff,
and Steven B. Karneck, because they engaged in protected
activity. The complaint further alleges that Canterbury Edu-
cational Services, Inc. (CES) and Canterbury Career Schools
of Pittsburgh, Inc. (Canterbury) are affiliated business enter-
prises constituting a single employer within the meaning of
the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs,1 I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent CES, a corporation with
an office and place of business in Medford, New Jersey, has
been engaged in the business of operating vocational schools
in various locations around the United States. Respondent
CES operates a school in Pittsburgh, Pennsylvania, through
its wholly owned subsidiary, Respondent Canterbury.
During the 12-month period ending October 31, 1990, Re-
spondent CES provided and performed educational services
valued in excess of $1 million.
During the same period of time, Respondent CES, in the
course and conduct of its operations provided and performed
educational services valued in excess of $50,000 in States
other than the State of New Jersey.
At all times material, Respondent Canterbury, a corpora-
tion with an office and place of business in Pittsburgh, Penn-
sylvania (Pittsburgh facility), has been engaged in the busi-
ness of operating a vocational school for the training of
truckdrivers.
Based on projection of its operations since on or about
September 1990, at which time Canterbury commenced its
operations in the course and conduct of its operations, it will
annually provide and perform educational services valued in
excess of $1 million.
During the period of time described above, Respondent
Canterbury will receive an excess of $5000 in tuition from
Federally funded programs.
Respondent CES is now, and has been at all times mate-
rial, an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
Respondent Canterbury is now, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Respondents collectively are now, and have been at all
times material, employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
General Teamsters, Chauffeurs and Helpers, Local 249 a/w
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO (the Union) is
now, and has been at all times material, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
CES is a holding company with several subsidiaries which
furnish instructional courses in truckdriving and various other
skills. Its headquarters are in Medford, New Jersey. Canter-
bury is a wholly owned subsidiary of CES, with a facility
near Pittsburgh, Pennsylvania, providing instructional courses
in driving tractor-trailers. Respondent, in its answer, admits
that CES and Canterbury have some common officers and
directors, including Stanton Pikus, who is president of CES
and Canterbury.
Canterbury’s students must participate in, and complete a
course requiring a minimum of 9 weeks’ instructions before
taking the tests necessary to be licensed to drive tractor-trail-
ers. To this end, Canterbury employs instructors who teach
students in the classroom, and in the facilities yard perform-
ing maneuvers. They also are required to drive on local high-
ways and city streets. In October 1990,2 Canterbury em-
ployed approximately 15 instructors.
Canterbury commenced its operations in 1991, and on July
31, 1990, James Spratt was hired as the school director. Ray-
mond Real worked for the holding company since 1987, and
in January 1990, became the school’s (Canterbury) director
of education. Spratt supervised the other employees except
those in the financial aid area. Spratt testified that only Pikus
has the authority to be able to close Canterbury’s Pittsburgh
facility.
The management of both CES and Canterbury
communciate frequently regarding various procedural deci-
sions, for example hiring and firing Canterbury employees,
work performance, rules regarding student deposits and ad-
vancement of funds, sales results, the production of Canter-
bury’s employees’ paychecks, budgeting, financial aid, and
automobile registration.
According to the testimony of Pikus, profits of Canterbury
can, and are, sometimes obtained by CES through access by
CES to Canterbury’s Pittsburgh bank account. This account
could also function as a means for CES to pay Canterbury’s
bills, or to meet CES’ responsibility to lend money to Can-
terbury in case Canterbury suffers a shortage of funds. Pam-
ela Fish, clerk typist and receptionist, until May 23, 1991,
testified that CES imposed budgetary limitations on Canter-
bury, including those covering the expenditures for postage.
Paychecks and paystubs for Canterbury employees are cap-
tioned ‘‘Canterbury Educational Services, Inc.,’’ and are pre-
pared by CES in New Jersey and mailed to Canterbury.
Pikus testified that CES receives copies of all Canterbury’s
documents and contents of files.
Testimony and documentary evidence reflect that ‘‘all ulti-
mate decisions regarding hiring and firing’’ of Canterbury
employees were approved by CES. This is further evidenced
by the fact ‘‘Approval To Hire’’ sheets were faxed from
Canterbury by Reale to Jean Pikus, vice president of CES,
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and returned to Canterbury with her approval noted thereon.
CES established salaries for the Canterbury employees, mak-
ing sure that they met the requirments as established for sala-
ries throughout the system. Moreover, Pikus testified that
CES has dissaproved requests for salary increases for Canter-
bury employees. CES and Canterbury have been covered
under the same group insurance policy. Canterbury employ-
ees are given a handbook covering CES employees entitled
‘‘Canterbury Educational Services, Inc./Associate Hand-
book.’’
The Alleged Discriminatees
Slifka, Wolff, and Karnek commenced their employment
as tractor-trailer driving instructors with Canterbury on Sep-
tember 4. Each filed a written application and was personally
interviewed by Reale. They worked under the supervision of
Reale and were given assignments in yard instruction includ-
ing various backing maneuvers and over-the-road instruction
on both highway and city streets.
By the end of September and early October, the three al-
leged discriminatees, particularly Wolff, became dissatisfied
with their working conditions. They complained on several
occasions to Reale about the lack of heat in the employee
lunchroom, physical exams being conducted in the employee
lunchroom, lack of heat in the trucks, and the failure of man-
agement to provide raingear for the instructors. Reale’s re-
sponse was that they, the instructors, would have to deal with
their concerns. Wolff discussed calling the Union with Slifka
and Karnek. They all agreed that the Union should be com-
municated with, and to that end, on October 23, Wolff tele-
phoned William Cherilla, secretary-treasurer of the Union.
He discussed working conditions and his interest in securing
union representation for the instructors. At the time they
were hired at Canterbury, and throughout their employment,
the three held withdrawal cards from the Union. Later that
day, October 23, Wolff went to the union office and obtained
approximately 20 copies of a booklet, ‘‘The Law And You,’’
to be used for organizational purposes at Canterbury. The
booklet contained a card which could be torn off captioned
‘‘Authorization For Representation Under the National Labor
Relations Act.’’ This tearoff card served as a union author-
ization card.
On October 24, at his home prior to going to work, Wolff
signed a union authorization card. On arriving at the job,
prior to his 7 a.m. starting time, Wolff commenced discuss-
ing union organizing with other employees, encouraging
them to pass out copies of the booklet and to solicit signa-
tures on the union authorization cards. During this time,
Slifka and Karnek assisted Wolff in his organizational activi-
ties. Prior to 7 a.m., Wolff spoke in the parking lot to at least
six other employees. Wolff spoke to four other instuctors in
the lunchroom about the Union and organization of Canter-
bury instructors. He also told the instructors that a union or-
ganizing meeting with Cherilla was to be held at 3:30 p.m.
that day. Subsequently, Cherilla called him stating he
couldn’t make the meeting because he had a previous ap-
pointment and the meeting was rescheduled for and held on
October 25.
Karnek signed a union authorization card on October 24,
and gave it to Wolff about 3:35 p.m. the same day. Both
Karnek and Wolff, on October 24, spoke to employees about
the merits of union representation and distributed the booklet,
‘‘The Law And You.’’ Karnek spoke to every instructor ex-
cept one, on October 25. The employee he did not approach
worked nights and was not present at the facility on the day
Karnek solicited.
Slifka signed a union card on October 24, and gave it to
Wolff that same day. He spoke to employees about the mer-
its of organization on the same day. Slifka also engaged in
a discussion about organizing at the employee lunchroom
during lunchtime. Several employees were present during this
discussion.
In their testimony, all three of the alleged discriminatees
specifically named those instructors solicited by them to sign
union authorization cards.
A few minutes after the 3:30 p.m. quitting time, instructors
Wolff, Slifka, Karnek, Cahillane, and Lisovich met in the
parking lot and discussed the organizing conducted that day.
After about 10 minutes, Reale, who had been speaking to an-
other instructor, Wade, outside the building, according to
Wolff’s unrefuted testimony, hurriedly and angrily ap-
proached the group. When Reale came within a few feet of
the instructors, he threw a copy of the booklet ‘‘The Law
And You’’ on the ground in the direction of Wolff. He stated
to them that if a union came in at Canterbury the Company
would close the Pittsburgh facility and move its operations
elsewhere. Wolff responded, ‘‘you better start packing,’’ and
that the instructors had made an effort to deal with the prob-
lems without seeking union representation. Wolff stated that
they tried to deal with Reale as an individual. Reale turned
and walked away.
Wolff recalled Reale’s comment as, ‘‘Before I let any
union come in here, we will pack it up and move the hell
out.’’ Slifka recalls Reale stating, ‘‘Before I let a union come
in here, we will pack up and move out.’’ Karnek recalled,
‘‘You are not bringing a union in here. If you do, we are
packing up and leaving.’’ Cahillane recalled, ‘‘We will close
the place down in a minute.’’ All remember that Reale made
his statement immediately after throwing the booklet on the
ground in the middle of the employees.
Reale testified that he stated, ‘‘It is not going to work. It
is just not going to work. We just got here. It is a new com-
pany.’’
Spratt testified with reference to what Reale told him min-
utes after the parking lot episode. According to his testi-
mony, Reale told him, they are passing out union literature,
‘‘well, I told them they couldn’t do that. The school would
close if that would happen.’’
During the evening of October 24, Reale called Wolff by
telephone at his home, and told him to report to work at 8:30
the next morning, instead of his usual 7 a.m. starting time.
When Wolff reported in, Reale told him he was fired be-
cause he was unprofessional, lackadaisical, and had been ob-
served leaning against cars while engaging in yard instruc-
tion. Wolff asked for a written statement of the charges
against him but Reale did not furnish one. About 20 minutes
later, Reale told him that he would receive a copy of the
charges against him with his next paycheck. Wolff never re-
ceived anything in writing referencing his discharge.
According to Wolff, during his tenure with Respondent, he
received one evaluation from Reale. This was in October,
and Reale read the evaluation briefly, regarding it as a good
evaluation. He never received a copy of same, and none was
offered into evidence. Reale verbally commented during the
509CANTERBURY EDUCATIONAL SERVICES
evaluation interview that Wolff was doing a good job and in
September and October, Reale told Wolff he was doing a
good job.
Wolff admits he was told by Reale on two or three
ocassions not to lean on cars in the parking lot. He never re-
ceived any written warning or any discipline regarding this
situation. Nor was he ever told by Reale that his job was in
jeapordy. Wolff had no record of latenesses and missed only
2-1/2 days due to pneumonia.
Slifka reported to work at 7 a.m. on October 25. Later that
morning, Reale requested Slifka report to his office. When
Slifka reported, Reale advised him that a student evaluation
of his teaching had been sent to CES and that other student
evaluations had been filled out on October 24. Reale also in-
formed Slifka that he had observed him instructing and that
he, Reale, did not believe that Slifka ‘‘had it’’ to be an in-
structor. He gave Slifka a choice of being fired or resign.
Slifka chose to be fired and left the facility.
Sometime in October, all the instructors, including Slifka,
received evaluations. Reale handed Slifka a written evalua-
tion but refused to discuss it with him. After reviewing the
evaluation, Slifka could not recall anything negative in the
evaluation. Reale told him he didn’t have time to talk about
it, that he was busy, that Slika should just sign it, and they
would talk about it later.
On October 5, Slifka became aware of a very negative stu-
dent evaluation by student Jamie Franczek. When Slifka ex-
pressed concern to Reale regarding Franczek’s evaluation,
Reale crumbled it into a ball, threw it on to a table, and told
Slifka to disregard it. That day Slifka requested a meeting
with Reale and Franczek to discuss the matter and such a
meeting was held. After the discussion Reale told Slifka that
Franczek’s evaluation might go to corporate (CES) and there
might be a reprimand, but that Slifka would be given a
chance to defend himself. He never discussed the evaluation
with Slifka again until briefly mentioning it at Slifka’s dis-
charge on October 25. Slifka never received any reprimand
during his term of employment. Slifka never received a copy
of his evaluation.
On October 25, Karnek was called away from his duties
by Reale who wanted to see Karnek in his office. Reale ad-
vised Karnek he had reviewed his student evaluation and he
did not believe that Karnek would work out as an instructor.
He told Karnek he was a poor communicator and too soft
spoken. He then showed Karnek a diagram of an accident
which had occurred while Karnek was giving city driving in-
structions to student James Overbeck. Reale informed Karnek
that he should not have had Overbeck at that location, at that
time. He gave Karnek the option of resigning or being fired.
Karnek refused to resign, and received no documentation ref-
erencing his discharge. Nor did he ever receive any oral or
written warning regarding the Overbeck accident, nor did he
receive any discipline as a result of this accident.
Sometime in October, Karnek received an instructor’s
evaluation from Reale. Karnek was given about 40 student
evaluations to look at. He quickly leafed through them, read
approximately two, and signed the evaluation form. He saw
nothing derogatory in the evaluations and was given no criti-
cism by Reale of his work performance. In late September,
Reale told Karnek that he was one of the best instructors.
The record is rife with assertions propounded by Respond-
ent witnesses that all three alleged discriminatees were infe-
rior and unprofessional employees. Wolff allegedly smoked
too near the building, smoked while instructing, lounged on
the hoods of automobiles while instructing in the yard, used
loud and abusive language, had a lackadaisacal attitude, had
a bad attitude, displayed a foul mouth, was uncooperative,
failed to walk with the trucks while instructing students in
the yard, failed to pretrip at the proper time, conducted noisy
classes, returned to the facility from road instruction to early,
missed work by malingering, repeated tardiness, and dressed
poorly for his initial job interview. Wolff admitted that he
leaned against, and on cars while instructing, he did not al-
ways walk beside trucks while giving yard instruction and he
smoked at times while giving instruction.
Respondent, by way of some specifics and by inference,
alleged that Slifka used abusive language directed to stu-
dents, swore at a female student, Kitis, cursed at students,
called a female student, Yobp, ‘‘a dirty bitch,’’ spoke harshly
to student Yoder, had a bad attitude, smoked while instruct-
ing, did not remain calm, without authorization made copies
while he should be working, failed to pretrip at the proper
time, conducted noisy classes in the yard, and returned to the
facility from road instruction early. All of this testimony is
hearsay.
Slifka testified he never directed any profanity toward stu-
dents. The emphasis of Respondent as to the discharge of
Karnek was his involvement as an instructor in an accident
which occurred in early October. Other allegations directed
to Karnek are poor communicator, too soft spoken, poor in-
structor, impatient, failure to pretrip at the proper time, noisy
classes in the yard, returning too early from road instruction,
inadequate knowledge of subject matter, lack of desire to in-
struct, and failure to walk beside truck while giving yard in-
struction.
Overbeck testified that personnel of Respondent spoke to
him about his lack of confidence and concerns about city
driving. Thereafter, according to Overbeck, he was given
enough confidence and was supposedly ‘‘ready for the city.’’
Conclusion and Analysis
Wolff, Slifka, and Karnek were particularly impressive
witnesses. It was clear to me that they made every effort to
express honest renderings and accounts of what transpired.
There was no attempt by any of them to embroider or color
the facts. I fully credit their testimony in every regard.
By way of contrast, Reale attempted to dilute his testi-
mony regarding the October 24 incident. He did this by
eliminating the critical element—the threat. I discredit his
testimony. Shortly after throwing the union literature on the
ground and making his threat, he related the incident to
Spratt, including in his version to Spratt, the threat.
Accordingly, I conclude that Reale’s conduct violated Sec-
tion 8(a)(1) of the Act.
In my view the criteria have been met to establish that
Canterbury and CES constitute a single-integrated business
and a single employer within the meaning of the Act.
Canterbury is a wholly owned subsidiary of the holding
company CES. See A.J.R. Coating Division Corp., 292
NLRB 148 (1988).
Stan Pikus is president of CES and Canterbury. Pikus is
the ultimate authority for both. Only he can close the school.
Pikus conferred with Reale, Spratt, and Jean Pikus before the
discharges could be effectuated. Reale testified that Pikus, by
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
way of input, stated, ‘‘Go ahead, fire them.’’ There is daily
communication between CES and Canterbury management.
Pamela Fish, clerk typist/receptionist, who worked for
Spratt for about 7 months, testified that Canterbury didn’t do
anything without the ‘‘say so of CES.’’ She testified further,
that CES Vice President Kevin McAndrews called Canter-
bury at least once a day to discuss financial aid matters with
Canterbury’s financial aid director. Moreover, according to
Fish, Alan Manin, another vice president and also marketing
director of CES, called Spratt three times a week, including
a weekly 45-minute call to discuss Canterbury’s budget. Fish
placed one or two calls per week for Spratt to CES. Another
vice president, Jean Pikus, called once a week to speak to
Spratt and to Reale. Bob Steffanus, an outside admission of-
ficer (recruiter) testified regarding conversations with Spratt.
One conversation reflected that CES was dissatisfied with
Canterbury’s sales results. Another conversation occurred re-
garding a CES policy with respect to student application de-
posits and money advances to students.
Canterbury and CES both have the authority to pay bills
from the comingled funds in a bank account opened by Can-
terbury in Pittsburgh. CES takes its profits from the Canter-
bury operation out of this bank account, and can loan money
to Canterbury by depositing funds into the account.
CES enacted budgetary and salary restrictions on Canter-
bury and CES refused to approve a salary increase for a Can-
terbury employee.
CES sent Canterbury paychecks and stubs from New Jer-
sey to the Canterbury facility. The paychecks bore the legend
‘‘Canterbury Educational Services, Inc.’’
Canterbury and CES employees were covered by the same
insurance plan except where not permitted by state insurance
regulations.
When hired, Canterbury employees are given the same
handbook as CES employees entitled, ‘‘Canterbury Edu-
cational Services, Inc./Associates Handbooks.’’ A subcaption
reads ‘‘Division Canterbury Career Schools, Inc.’’
Pikus testified that every employee who works for any of
the subsidiaries of CES, and every CES employee are subject
to the same policies.
Testimony and documentary evidence reflect that CES has
the sole authority over hiring and firing.
Thus the evidence overwhelmingly establishes that Re-
spondent is a single integrated business enterprise and a sin-
gle employer within the meaning of the Act.
The Alleged Discriminatees
Reale admitted that by the afternoon of October 24, he
was aware of the union activity by Slifka, Wolff, and
Karnek. The next day all three were fired. Counsel for the
General Counsel has met its burden under Wright Line, 251
NLRB 1083 (1980), in establishing a prima facie case. Re-
spondent has failed to establish a legal business justification
for the discharges, thus it has not met its burden under
Wright Line.
I have briefly made reference to Reale’s credibility ref-
erencing his 8(a)(1) conduct. In my opinion, Reale prevari-
cated and fabricated throughout his testimony. He and Spratt
could not tell a consistent story. Spratt gave an account of
what he was told by Reale as to what happened in the yard,
said version consistent with the versions of the
discriminatees. Reale equivocated finally conceding—‘‘I
didn’t know the statement I made was bad.’’
Spratt was also an incredible witness, who was bent on
coloring his testimony. Spratt did not recall Reale telling him
during his conversation that he was going to fire the
discriminatees. Reale testified unequivocally that he told
Spratt that he was going to fire them the next morning, on
October 25. Spratt, according to Reale, responded, ‘‘Well,
fire them.’’
Memoranda from Reale to Jean Pikus lend further support
to discrediting Reale. In Respondent’s Exhibit 31, dated Oc-
tober 25, 1990, the fax imprint at the top of the document
bears a date December 11, 1990. According to Reale, docu-
ments get lost and copies are sent thereafter. Reale couldn’t
remember if this was the situation with Respondent’s Exhibit
31. Wolff is mispelled ‘‘Wolf’’ throughout the exhibit. Obvi-
ous is misspelled, ‘‘Orevious.’’ Occurred is misspelled
‘‘Occured.’’ The fax date of December 12, is about 1 month
after the initial charge. I believe the document was concocted
after the discharges by a nontypist, specifically for this litiga-
tion.
Similarly, Respondent’s Exhibit 32 misspells Karnek’s
name, the signatory name and title are misaligned and the
word ‘‘communitive’’ appears in line 12. This, I believe to
be another bogus document.
Wolff admitted smoking while teaching, contrary to Re-
spondent’s rules, although Reale did not testify that he ever
warned him. Interestingly, Reale’s memo, Respondent’s Ex-
hibit 31, makes no mention of Wolff smoking.
Wolff perceived signs of discomfort and self-conscious-
ness on the part of some students when he walked next to
their trucks. Therefore he did not always walk alongside their
trucks.
Wolff attributes his bad back to his occasionally leaning
and laying on cars. He also admits to being criticized on two
or three occasions by Reale. Reale was well aware of
Wolff’s back condition, and he never disciplined or threat-
ened to fire Wolff. Respondent has not met its Wright Line
burden. Accordingly, I conclude that Respondent fired Wolff
in violation of Section 8(a)(1) and (3) of the Act.
Reale led Slifka to believe that the Franczek evaluation
was of no great concern by crumbling it into a ball and
throwing it on the table with the comment to Slifka that he
shouldn’t pay any attention to it. I consider all the student
evaluations to be hearsay and inadmissable as evidence. Nor
are they of any significance with respect to student dis-
satisfaction toward Slifka because the evaluations are dated
October 24, several days after Respondent allegedly decided
to discharge Slifka.
Slifka was told by Reale that if the evaluation was for-
warded to CES, Slifka would have a chance to defend him-
self. There was no further discussion about this evaluation
until Reale briefly brought it up, after Slifka’s termination.
Slifka received no reprimand, nor was he given a chance to
defend himself. Reale failed to testify with respect to the im-
port of the Franczek evaluation, with regard to what import
was placed on it, in the decision to fire Slifka.
Slifka testified that he did not curse at or around Kitis, but
that there was a misunderstanding, Slifka was wrongfully ac-
cused and the matter was dropped. Spratt stated he never
even asked Kitis what was said or confirmed that anything
was directed toward her. Here too, Respondent has failed to
511CANTERBURY EDUCATIONAL SERVICES
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
meet its Wright Line burden, and I conclude that Slifka was
fired in violation of Section 8(a)(1) and (3) of the Act.
Respondent advanced as the main basis for Karnek’s dis-
charge, his role as an instructor in an accident in early Octo-
ber. Respondent cannot point to any infraction by Karnek
while he was in the truck, before or after the accident. Re-
spondent took the position that Karnek had a student,
Overbeck, perform city driving when he was not prepared for
such. It is clear that Overbeck was nervous about city driv-
ing, was under pressure to complete this phase of the course,
and that through discussion with several instructors, includ-
ing Karnek, Overbeck had overcome his fears and gained
enough confidence to be ready for city driving.
Karnek testified that Reale specifically told him to take
students such as Overbeck, getting close to the period when
they would be taking their drivers’ tests, into the city. Ac-
cording to Overbeck, Reale did not tell him he should not
attempt city driving.
Instructor evaluation of Karnek, done by Reale after the
accident, made no mention of the accident. Karnek was never
told he used poor judgment nor was he ever warned or dis-
ciplined. Karnek was allowed to continue to instruct for al-
most a month after the accident, despite Respondent’s con-
tention that he failed to safely direct Overbeck’s training.
Accordingly, I conclude that by discharging Karnek, Re-
spondent engaged in violations of Section 8(a)(1) and (3) of
the Act.
With respect to all three of the discriminatees, Reale testi-
fied that in spite of Spratt’s opposition, he favored retaining
the three discriminatees because he believed they deserved
another chance. Reale testified he wanted to work with them
to see if they could become better instructors. Moreover,
these three employees were retained in the face of the myriad
of alleged difficiencies. If Respondent, as contended, decided
to terminate them in mid-October, why did it allow them to
remain on the job 7 to 10 days later? They, according to Re-
spondent, were terrible instructors whom Spratt wanted to
fire weeks before. Pikus testified that Respondent needed to
find replacements because there were students in a class and
they couldn’t go forward without having any instructors. In
spite of this, Respondent introduced no testimony or docu-
mentary evidence of any efforts to hire replacements during
those 7 to 10 days.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. General Teamsters, Chauffeurs and Helpers, Local 249
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO is now,
and has been at all times material, a labor organization with-
in the meaning of Section 2(5) of the Act.
3. Respondent is a single-integrated business enterprise
and a single employer within the meaning of the Act.
4. By discriminating with regard to the tenure of employ-
ment of Slifka, Wolff, and Karnek, because of their con-
certed and union activities, Respondent has violated Section
8(a)(1) and (3) of the Act.
5. By threatening employees that it would close its facility
if they engaged in union activities, Respondent violated Sec-
tion 8(a)(1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) 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.
I shall reccommend that the Respondent be ordered to
offer Slifka, Wolff, and Karnek immediate and full reinstate-
ment to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
priviliges. Respondent shall expunge from its files and record
any references to the discharges of these individuals, and no-
tify them in writing, that this has been done, and that evi-
dence of their unlawful discharges shall not be used as a
basis for future personnel actions against them.
In addition, Respondent shall make all these employees
whole for any losses they may have suffered by reason of
the discrimination against them, by payment to them, a sum
of money equal to that which they would have normally
earned from the date of their discharges, less net earnings
during the period. Interest shall be computed according to
current Board policy.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Canterbury Educational Services, Inc.,
Medford, New Jersey, and its wholly owned subsidiary, Can-
terbury Career Schools of Pittsburgh, Inc., Pittsburgh, Penn-
sylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees that it would close its facility
should the employees select the Union as their collective-bar-
gaining representative.
(b) Discriminating in regard to the tenure of employment
of Slifka, Wolff, and Karnek because of their concerted or
union activity.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Slifka, Wolff, and Karnek immediate and full
reistatement to their former positions or, if such positions no
longer exist, to positions which are substantially equivalent
thereto, without prejudice to any seniority or other rights and
privileges, and make them whole for any loss of pay they
may have suffered by reason of the discrmination against
them with interest as provided in the remedy section of this
decision.
(b) Expunge from its files any references to the discharges
of the employees named above and notify them in writing
that this has been done, and that evidence of their unlawful
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
discharges shall not be used as a basis for future personnel
action against them.
(c) Post at its facilities copies of the notice marked ‘‘Ap-
pendix.’’4 Copies of the notice to be furnished by the Re-
gional Director for Region 6, shall, after being signed by an
authorized representative of Respondent, be posted imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Respondent shall take rea-
sonable steps to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Preserve and, on reasonable request, make available to
the Board or its agents for examination and copying, all pay-
roll records and all other records necessary to ascertain the
amount, if any, of backpay due under the terms of this
Order.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.