Columbia University

National Labor Relations Board - Board Decisions

May 22, 1975

217 N.L.R.B. 1080 (N.L.R.B. 1975)

1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I
Columbia University and District 65, Distributive
Workers of America. Case 2-CA-13225
May 22, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On July 31, 1974, Administrative Law Judge Morton
D. Friedman issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and a
supporting brief, and the General Counsel filed a brief
in support of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
1. We fmd, in agreement with the Administrative
Law Judge, and for the reasons stated in his Decision,
that Respondent violated Section 8(a)(1) of the Act
when it suspended and then discharged employee Dru-
cilla Cornell. N.L.R.B. v. Weingarten, Inc., 420 U.S.
251 (1975).
2. The Administrative Law Judge also found that
Respondent further violated Section 8(a)(1) of the Act
when it discharged employee Muriel Hirschfeld for en-
gaging in protected concerted activity. We find merit in
Respondent's exception to this finding as we do not
believe that the record evidence supports the
inference-drawn by the Administrative Law
Judge=that Respondent possessed knowledge of
Hirschfeld's concerted activity at the time it made its
final decision to terminate her employment.
Hirschfeld was hired on December 13, 1973,1 to
work as a switchboard operator in Respondent's tele-
phone room, under the supervision of Chief Operator
Onnie Lawton. As a new employee, she was to remain
in probationary status for 60 days.
Testimony specifically credited by the Administra-
tive Law Judge shows the following facts. On or about
January 9, employee Betsy Reed, the clerk-typist at-
tached to the telephone room operation, complained to
Supervisor Lawton that Hirschfeld did not fit in with
the other girls in the office. Lawton replied that others
had made the same comment and observed that she
would have to make a decision soon on Hirschfeld's
status. On January 11, Lawton contacted Andrea Sa-
i All dates hereinafter are in the period December 1973 through January
1974
fran, an associate in Respondent's personnel depart-
ment, and informed her that she desired to discharge
Hirschfeld. Safran replied that no notice need be given
as Hirschfeld was a probationary employee and advised
that it would be easier if she was terminated at the end
of a pay period. The then current pay period was to end
on January 23.
On January 22, Lawton told clerk-typist Reed that
Hirschfeld was to be discharged and, on January
23-the last day of the pay period-Lawton effectuated
the termination.
It is undisputed that Hirschfeld engaged in no pro-
tected concerted activity prior to January 21. The Ad-
ministrative Law Judge found that the decision to ter-
minate her was made 10 days earlier. Nevertheless, the
Administrative Law Judge concluded that the dis-
charge was violative of Section 8(a)(1) on the ground
that Lawton did not set a definite date in advance for
Hirschfeld's termination and did not finally decide on
such a date until January 22, by which time she had
gained knowledge of Hirschfeld's concerted activity.
In concluding that Lawton's'fmal decision to termi-
nate Hirschfeld was not made prior to January 22, the
Administrative Law Judge relied on the following three
factors. (1) If, as alleged by Respondent, Lawton deter-
mined on January 11 to effectuate the discharge on
January 23 so as to coincide with the end of the then
current pay period, she would have taken steps to
notify the payroll department to include in Hirschfeld's
final salary check the extra day's pay to which she was
entitled for having worked on Martin Luther King's
Birthday (January 15)-a special holiday under Re-
spondent's personnel policies.' Instead, Hirshfeld was
only given a check for her regular pay and told that the
extra pay due her would be forwarded at a later date.
(2) Lawton did not tell Reed,-her clerk-typist, about the
discharge until January 22, subsequent to the com-
mencement of Hirschfeld's concerted activity. (3) Law-
ton did not inform her department head of the dis-
charge until January 23, the date it was effected.
In our view, the above-enumerated factors are not
persuasive in evaluating the validity of the Administra-
tive Law Judge's ultimate conclusion. From the record
evidence, it would appear to have been impossible for
Lawton to have processed Hirschfeld's extra pay in
advance because Respondent's holiday policy normally
provided only an extra day off, not extra pay, for work
performed on Martin Luther King's birthday; and it
could not have been known to Lawton, prior to January
23, whether Hirschfeld would take the extra day off to
which she was entitled or would need to receive mone-
2 According to Respondent's published personnel policies, employees
who work on Martin Luther King's birthday earn the right to an extra day
off with pay on a date of their own choice in the same fiscal year It appears
to be in the nature of compensatory time off
217 NLRB No. 174
COLUMBIA UNIVERSITY
tary compensation in lieu thereof. As for Lawton's fail-
ure to give earlier notice of the discharge date to Reed
and to her department head, that was of little signifi-
cance as the record shows no need for her to have done
so. There was no extensive paperwork relating to the
discharge which required Reed's clerical services and
Lawton had the authority to effectuate the discharge
without the department head's advance approval. Fur-
ther, it is noted that Lawton had only become a super-
visor 3 months earlier and had never previously dis-
charged an employee. Therefore, the particular
procedures she utilized cannot be measured against
those used if she had discharged employees in the past.
Considering all the above-noted circumstances and
given the Administrative Law Judge's findings that
Lawton communicated her intent to terminate Hirsch-
feld on January 11 and was advised to make it effective
at the end of a pay period, we concllude that Lawton,
in mid-January, decided not only to discharge Hirsch-
feld, but to do so on January 23-the next payday.
Therefore, as we have concluded that the decision to
discharge Hirschfeld was made prior to the commence-
ment of any concerted activity, such activity could not
have been a causative factor in the discharge. Accord-
ingly, we find that Respondent's termination of Hirsch-
feld was not unlawful, and we shall order that the
complaint be dismissed insofar as it alleges that the
termination of Hirschfeld is violative of Section 8(a)(1)
of the Act.
THE REMEDY
Having found that the Respondent discriminatorily
terminated and refused to reinstate Drucilla Cornell, it
shall be ordered that the Respondent offer her immedi-
ate and full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other rights
and privileges. Respondent shall make her whole for
any loss of pay she may have suffered by reason of the
discrimination against her in the manner set forth by
the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), together with interest thereon at the rate of 6
percent per annum as provided in Isis Plumbing &
Heating Co., 138 NLRB 716 (1963).
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge as modified below and
hereby orders that Respondent, Columbia University,
New York, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1081
1. Delete the word "similar" from paragraph 1(b),
and substitute the word "other."
2. Delete paragraph 2(a) and substitute the follow-
ing:
"(a) Offer to Drucilla Cornell immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and -privileges
previously enjoyed, and make her whole for any loss of
earnings she may have suffered by -reason of the dis-
crimination against her in the manner set forth in the
section of this Decision entitled `The Remedy."'
3. Substitute the attached notice for the Administra-
tive Law Judge's notice.
IT IS HEREBY FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions of the Act not found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT discharge or refuse to reinstate any
of our employees for engaging in lawful, protected,
concerted activity such as forming grievance com-
mittees or discussing working conditions among
themselves, or acting as witnesses for other em-
ployees in disciplinary proceedings.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to form, join, or assist or be represented
by any labor organization, to bargain collectively
with representatives of their own choosing, or to
engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such
activities.
WE WILL offer Drucilla Cornell immediate and
full reinstatement to her former job or, if that
position no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or
other rights or privileges, and WE WILL make her
whole for any losses she may have suffered as a
result of our unlawful action against her.
COLUMBIA UNIVERSITY
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge: This
proceeding was heard on May 21, 22, and 23, 1974, at New
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
York City on the complaint of the General Counsel issued
April 4, 1974, which complaint was based on a charge filed
on February 15, 1,974. The complaint alleges, in substance,
that the Respondent, Columbia University, violated Section
8(a)(1)-of the-Act in discharging two of its employees for
engaging in protected concerted activity. The answer, while
admitting, certain allegations of the complaint, denies the
commission of any unfair labor practices. At the close of the
hearing, the parties waived oral argument but thereafter sub-
mitted briefs in support of their respective positions.
Upon the'ebtire record, and-from my observation of the
demeanor- of the witnesses, and with due coiisideratioii given
to the contentions advanced by the parties in their briefs, I
make the following: _
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
by Lawton. The Respondent, on the other hand, denying the
commission of unfair labor practices, contends that, the em-
ployees were not engaged in protected concerted activity: that
Hirschfeld, a probationary employee of recent hire, was dis-
charged because she did not perform properly during her
probationary period, and Drucilla Cornell was discharged
because she interfered with the operations of the telephone
room and refused to follow orders given by Lawton. Thus, the
issues framed by the pleadings and the' contentions of the
parties are:
1. Whether employee Muriel Hirschfeld was discharged for
engaging in the protected concerted activity of attempting,
with others, to form -a' grievance committee?
2.-Whether employee Drucilla Cornell was unlawfully dis-
charged, then suspended and offered a conditional, reinstate-
ment in violation of Section 8(a)(1), because- of her activities
in attempting to form a- grievance committee and (b) in at-
tempting to assist Muriel Hirschfeld as a witness when
Hirschfeld was discharged.
The Respondent, a private university, maintains its princi-
pal office and facilities in--New York City where it is engaged
in providing educational and related services. During the year
immediately preceding the issuance of the complaint herein,
a representative period, the Respondent derived gross reve-
nue in excess of $1 million. In addition, the Respondent,
during the same period, purchased goods and materials of a
value in excess of $50,000, of which goods and materials of
a value in excess of $50,000 were transported and delivered
to it directly from states of the United States other than the
State of New York. -
It is admitted, and I find, that the Respondent' is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II THE. LABOR ORGANIZATION
It is admitted , and I find , that District 65, Distributive
Workers of America, the Charging Party herein , is-a labor
organization within the meaning , of Section 2(5) of the
Act.'
III THE UNFAIR LABOR PRACTICES
A. Introduction and-Issues
The central switchboard of the Respondent University is
located in room 114 of a library on the Respondent's campus.
In charge of the switchboard operations at the time of the
events herein was Onnie Lawton, the chief telephone opera-
tor. Drucilla Cornell and Muriel Hirschfeld were telephone
operators, among a number of other operators, at the switch-
boards supervised-by Lawton.' Shortly after the beginning of
the year 1974, for reasons set forth hereinafter, Cornell and
Hirschfeld became dissatisfied-with certain working condi-
tions in room 114 and took actions which, according to the
complaint and the contentions of the General Counsel, were
concerted and protected in nature and led to their discharges
I Although the District 65 filed the charge herein, it did so on behalf of
the two dischargees who were not in any way involved with District 65
during the events which led to this'proceeding and, therefore, the only
connection District 65 has with this case is the filing of the charge
B. The Facts
1: The events before January 21, 1974
' Both Muriel Hirschfeld and Drucilla Cornell were em-
ployed as telephone operators in the telephone room in 1973,
Cornell on either November 12 or 19 and Hirschfeld on
December 13. Both were hired by Lawton, Chief telephone
operator and supervisor of the telephone' operator room.
Lawton, who for many years had been a telephone operator
and, approximately 2 years prior to the events herein, had
been made assistant supervisor of the operators, had been
promoted to chief telephone operator on October 26, 1973.
Therefore, her experience as chief operator was of very short
duration at the time Hirschfeld and Cornell were employed.
Under University policy, employees who are newly hired
as telephone operators are given a 2-week training program
and a 60-day probation period. Admittedly, Hirschfeld was
informed ofthis at the time she was hired.
Additionally, approximately at the time that Hirschfeld
was hired, Lawton prepared and distributed to all full-time
telephone operators, among them Hirschfeld and Cornell, a
list of procedures to be followed in, answering and transfer-
ring the calls coming into their switchboard consoles.
From December 21, 1973, through January 2, 1974, the
University was on vacation and, therefore, the telephone op-
erators who had worked for the University for the required
length of time were on vacation also. This included Lawton
and Roxanna Brandao, the assistant chief telephone operator,
who, at the time the vacation began had been training Hirsch-
feld for a period of approximately 1-1/2 weeks. According to
Hirschfeld, whose testimony in this respect is uncontroverted
and, therefore, credited, shortly after she was hired she made
a mistake by reaching the wrong number and apologized to
Lawton for this error. Lawton replied that Hirschfeld was
doing very well and that this matter was all right. When -the
Christmas vacation came, as noted above, all of the full-time
operators went on vacation with the exception of Cornell and
Hirschfeld who were the newest operators in the office, and
not entitled to the vacation period. When 'she left to -go on
vacation, Lawton, according to Hirschfeld's uncontroverted
COLUMBIA UNIVERSITY 1083
testimony, told Cornell and Hirschfeld that she knew she was
leaving the office "in good hands."
.Upon Lawton's return, according to Hirschfeld's uncon-
troverted andcredited testimony, Lawton and Hirschfeld had
a conversation in which Lawton told Hirschfeld that she
could use another operator because eventually Lawton was
going to transfer Cornell to another shift. When Hirschfeld
suggested that her sister was available, Lawton expressed her
desire to hire Hirschfeld's sister providing the sister's last
name was different from Hirschfeld's and providing that it
was not revealed to Lawton's superiors, James McGrady,
assistant purchasing agent and. a Mr. Nelson, chief purchas-
ing agent. Thus, it is apparent that up until the early part of
January, at least, the performance of both Cornell and
Hirschfeld must have been considered by Lawton to be satis-
factory. It should be noted, at this juncture, that Cornell had
been ill from time to time from" the date of her hire, but this,
evidently was not the basis of any of Respondent's actions
taken with regard to her.
However, despite the seemingly happy and peaceful atmos-
phere in the telephone room, as early as some time in Decem-
ber, there were expressions of dissatisfaction among the oper-
ators with regard to the manner in which Lawton was
supervising the operation.2 Additionally, Cornell testified as
to some hearsay evidence to the effect that, at a meeting of
part-time employees, Lawton expressed concern that there
were- plots against her among the telephone operators. How-
ever, according to Cornell, this was told to her by Christo-
pher Wells, a part-time operator. Wells was not called as a
witness. Accordingly, I accept this testimony 'only because its
content conforms to other events hereinafter related.
Thus matters stood when, according to Respondent's wit-
nesses, about 2 weeks before the discharge of Cornell and
Hirschfeld onr January 23, some of the telephone operators
began to complain about the actions and manners of em-
ployee Hirschfeld who was then still on probation. According
to Betsy Reed, a witness called by the General Counsel, but
who Respondent's counsel was permitted to make his own
witness, she complained about Hirschfeld approximately 2
weeks before the discharge. According to Reed she told Law-
ton at that time that she felt that Hirschfeld did not fit in with
the other girls in the office. Lawton replied that others had
made the same comment. Lawton further told Reed that she
would have to make some decision soon with regard to
Hirschfeld. Lawton testified that about the time of which
Reed spoke she received similar comments from other in-
dividuals and on January 11 made up her mind to terminate
Hirschfeld before the end of her probationary period.
According to Lawton, inasmuch as she was rather new in
the position of chief telephone operator and had never dis-
charged anyone before she phoned McGrady, her immediate
superior, and told him of her desire to discharge Hirschfeld.
She told McGrady that she was dissatisfied with Hirschfeld,
that Hirschfeld did not fit in with the other operators, and
refused to take orders from supervision. McGrady, in tes,tify-
z From the uncontroverted testimony of Barbara Joyce, a witness called
by the General Counsel but who was also made a witness for Respondent
on motion of Respondent's counsel on her cross-examination This tes-
timony was also confirmed, to a certain extent, by the testimony of part time
operators Morris Dunlop and George Ford, both witnesses called by the
Respondent.
ing, added that at that time Lawton also told him that some
of the other operators had come to Lawton and told her that
Hirschfeld did not seem to fit in with the group . Both Lawton
and McGrady testified that McGrady then told Lawton, in
affect, that she was the head of the telephone room and that
it was up to her to make the decision -if she desired to dis-
charge Hirschfeld but that Lawton had better consult the
personnel department of the University to best ascertain how
to go about the discharge.
Thereafter, according to Lawton, she immediately called
the personnel department and spoke to Andrea Tye Safran,
a personnel associate. According to the testimony of both
Lawton and Safran , Lawton informed Safran of her desire to
discharge Hirschfeld. Safran informed Lawton that no notice
need be given Hirschfeld because university policy did not
require notice to be _ given to an individual who was still on
probation. Safran also indicated that it was best to terminate
the individual at the end of a pay period to make it easier
(presumably for the payroll or accounting department).
Inasmuch as the foregoing testimony concerned conversa-
tions which occurred out of the presence of either of-the
alleged discriminatees or the General Counsel 's other wit-
nesses, were acceptance of the matters related dependent
solely upon the testimony of Lawton and McGrady , I would
hesitate to conclude these conversations actually occurred.
However , I was very much impressed with Safran, who, as an
employee of the personnel department, was sufficiently iso-
lated from the activities of the phone room to make her a
more objective witness than either of the other two. More-
over, my observation of the manner in which Safran testified
and her demeanor convinces me that she was a forthright
witness who, despite her position as an employee of the Re-
spondent , could be relied on to'relate the events as they actu-
ally occurred.
Additionally, I was also convinced that Betsy Reed was a
reliable witness. As hereinafter related, Reed, called by the
General Counsel, gave testimony which could be considered
harmful to the Respondent's defense that the employees were
discharged for cause. Nevertheless, she also testified as to her
conversation with Lawton related above, with regard to
Hirschfeld's failure to fit'in. Reed, although an employee of
the Respondent directly under the supervision of Lawton,
nevertheless did not hesitate to testify to matter which would
favor the General Counsel's case, as against the Respondent.
Therefore, in view of all the foregoing, I find and conclude
that Lawton did consider and did receive instructions for the
discharging of Hirschfeld almost 2 weeks before the events
occurred herein on which 'the General Counsel relies, and
which are hereinafter related, to base his contention that
Hirschfeld and Cornell were discharged discriminatorily.
2. The events beginning January 21, 1974
As heretofore noted, shortly after she became supervisor of
the telephone room, Lawton issued a set of instructions or
procedures to be followed in answering the telephones. Ac-
cording to Cornell and Hirschfeld, both of whom worked on
the 12 noon to 8 p.m. shift, when they arrived at work on
January 21, they were asked by Mrs. Lawton to come to her
office. She informed them that they were not in any trouble
but that she just wanted to inform them about changes in
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telephone answering procedures . The details of these alleged
changes are not particularly relevant or pertinent to the deci-
sion herein, but, according to both of the alleged dis=
criminatees , they were rather upset by reason of the changes
and by reason of the fact , also, that the changes were not clear
and the two employees could not quite understand what Law-
ton meant by the changes.
According to Cornell, as supported by the testimony of
Hirschfeld, about 20 minutes after the conversation , Lawton
left for lunch and the operators in the telephone room began
a discussion with regard to the "so-called changes in policy.
Cornell began the discussion with the statement that she did
not understand the instructions with regard to the changes.
Hirschfeld agreed she did not either. An employee named
"Gwen" suggested that Lawton did not run the office on any
practical basis but purely on the basis of Lawton's moods.
Barbara Joyce added that she was a grown woman and had
been an operator long enough to know her job and did not
need to be told when to say "please" and "thank you." Cor-
nell stated that these grievances should be brought to Law-
ton's attention and, according to Cornell's testimony, some-
one stated that Cornell should be careful inasmuch as she had
been ill and this could' be used against her. According to
Cornell the operators "pretty much" decided that Cornell
would speak to Lawton . Hirschfeld made it clear that she
would back up Cornell in anything that Cornell told Lawton.
According to Cornell, among the items that rankled the
employees was the fact that in order to be permitted to go to
the restroom, an operator had to raise her hand and ask "May
I please go to the bathroom." Cornell also testified that she
told the others she had been on a grievance conunittee with
a group of friends when she worked in California for a bank;
that two of the women who had been on the committee were
discharged and then reinstated and the committee had been
recognized by the bank. The conversation terminated just
before Lawton's return between 1:15 and 1:30 p.m.
At 3 p.m., on that day, January 21, Cornell and Hirschfeld
went to lunch . During lunch they again discussed what had
occurred earlier in the day and agreed that a grievance proce-
dure would be the best way, to move ahead. According to
Cornell, they agreed that if they had reason to talk to Lawton
about grievances, whoever went first would be supported by
the other one and that they would go in individually and try
to give Lawton the benefit of the doubt. Cornell agreed that
she would go in first. They further agreed that in the event
that either one of the two would be called in, for what seemed
to be a "threatening situation" they would follow the Respon-
dent's grievance procedure which would permit one of them
to act as the other's witness.
Later that day, after Hirschfeld and Cornell had returned
from lunch, Lawton instructed Hirschfeld to change con-
soles. According to Hirschfeld, she was not feeling well at the
time and when she got up to change consoles she threw a
piece of paper in the waste paper basket and proceeded into
the locker room to obtain an aspirin. With that, Lawton told
Hirschfeld to "stop sashaying around," and that if Hirschfeld
had to sashay around she should do it when Mrs. Lawton was
not present. According to both Hirschfeld and Cornell,
Hirschfeld then informed Cornell that she was going to speak
to Mrs. Lawton about the grievances of the operators. Cornell
stated that she would "back Hirschfeld up."
After receiving permission to talk to Lawton , Hirschfeld
spoke to Lawton and told her that she felt that the inconsist-
ency of policy was unfair to Hirschfeld and the other opera-
tors; that she,could not see why they had to use the specific
phrase , "May we please be excused to go to the bathroom."
She further informed Lawton that she felt it was petty and
was not necessary; that they were all adults. Lawton an-
swered , "That is your opinion if you don 't like it, you can
quit , and I am the boss in 114." Lawton then informed
Hirschfeld that she was leaving for the day and that they
could-continue the discussion on the next day.
After Lawton left for the day, the employees who remained
engaged in ,a discussion . The participants in this conversation,
according to Cornell and Hirschfeld , were the two and Chris-
topher Wells, Frank ,Dobbins, and Morris Dunlop. These
latter employees were part-time night operators . According
to both Hirschfeld and Cornell , they discussed the events of
the day and the new procedure policies which were being-
introduced by Lawton as described by Lawton to Hirschfeld
and Cornell earlier in the day. According to Hirschfeld and
Cornell, Hirschfeld told the others that she and Cornell felt
there should be a grievance procedure so that the unfair rules
could be changed . According to Cornell , some of the em-
ployees expressed fear of forming a grievance -procedure, al,
though they were in sympathy with it. Thereupon , Hirschfeld
and Cornell stated that they would take the initiative and
hold themselves responsible for any actions. They therefore
decided that the best way to proceed would be to draw up a
notice stating how workers should be organized . Specifically,
Cornell told the other employees about the right of workers
to organize under the National Labor Relations Act. After
Hirschfeld stated that the notice should in no way be degrad-
ing to Lawton , "they" decided to draw up a statement with
continuous suggestions "from the other operators who were
there at the time." After the notice was drafted and reduced
to writing by Cornell , Hirschfeld posted it on the bulletin
board . According to both of these employees, the bulletin
board was used not only for official University notices and
other matters, but also by people who had placed Christmas
cards on the board from time to time. Also„at the time of the
posting of the notice there was a cartoon described as a
"Ching Chow" cartoon, on the bulletin board.
The said notice read as follows:
Workers do have rights. We have the right to bring our
grievances to the attention of our employer. We have the
right to organize to change our working conditions. We
do not have to sit back passively and accept rules and
regulations we think are unfair. Any group of us, chosen
by election or directly, can represent the rest of the
employees in designated bargaining unit, equally as
much so as an established union. The NLRB will protect
any group of us equally as much as it will a union. There
have been several precedent-setting cases in the last
two years.
On Tuesday, January 22, Cornell and Hirschfeld met
together at a restaurant before reporting for work at noon.
They discussed the events of the previous day and the deci-
sion to post the notice with regard to the grievance commit-
tee. Once again they pledged each other that if one should get
into trouble the other would go to her assistance as a witness.
COLUMBIA UNIVERSITY
They decided between them that a good way to proceed with
the matter of the grievance was to ask Lawton to hold a
meeting with the other operators or, at the very least, to speak
to the other operators individually.
At 12 noon, or a few minutes earlier, the two reported for
work. Cornell testified that they looked at the bulletin board
and the notice they had put up the night before was not there.
Cornell testified that after saying "hello" to Lawton, she told
the latter that she and Hirschfeld had posted the notice the
night before and that removing the notice was illegal because
there had been no prior restriction to posting notices on the
bulletin board. According to Cornell, Lawton answered that
so far as she knew Cornell was wrong in posting the notice
and asked why Cornell had not come to speak to Lawton
individually. Cornell answered they had already tried that.
Hirschfeld had come to speak to Lawton the night before on
behalf of themselves and the other operators and having tried
that route and been unsuccessful they now wanted a griev-
ance committee. Cornell further testified that she told Law-
ton that they would like her to have a meeting with the
operators. Lawton stated that she wanted to speak to the
operators individually. Cornell assented to that. Then Law-
ton told Cornell that Lawton was aware "of a plot" against
her and that she did not trust anybody who was working for
her. Additionally, Cornell testified that she told Lawton that
this was not so; that Hirschfeld and Cornell were honest and
told her when they disagreed with her. Cornell further. told
Lawton that they were doing this as workers for the benefit
of the entire office, which would mean better service for the
customers. Then, after further discussion, Cornell informed
Lawton of the National Labor Relations Act. Lawton an-
swered that if there was such a law, Cornell should have a
written document with her. Upon which, according to Cor-
nell, Cornell replied that she would give Lawton a written
document the next day and told Lawton that she would go
to a library to get an adequate and easy summation of the
laws so that Lawton could see them. Lawton, thereupon,
promised that she would call in the other operators and give
them an opportunity to express their grievances . Cornell said
that she would appreciate that and asked Lawton if the latter
would continue her conversation begun the evening before
with Hirschfeld. Lawton answered, according to Cornell,
that Lawton had no intention of continuing the conversation
inasmuch as she did not like Hirschfeld's attitude. The con-
versation ended with Cornell saying that it would be better
for everybody in the office if they knew what they could do
and could not do legally.
Further, according to Hirschfeld and Cornell, after Law-
ton left at 5 pm., on that day, Tuesday, January 22, a further
conversation ensued between the two and the other night
part-time operators who, according to Cornell and Hirsch-
feld, were present the night before. This conversation was
much in the same vein as the conversation of the previous
evening. According to Cornell, the other operators again
warned that there was a chance of Hirschfeld and Cornell
being fired. They further discussed the reaction to the notice.
That night, before they left, Hirschfeld posted a further notice
on the bulletin board, which, according to Hirschfeld's tes-
timony, was put up merely as a joke because Hirschfeld
thought it was humorous. It read "Cows may come and cows
may go, but the bull around this place goes on forever!!"
1085
The next morning, January 23, Hirschfeld and Cornell met
again at a near-by restaurant and together pledged 'to each
other that if either were to get into trouble because of their
activity the other would act as a witness pursuant to the
policy of the Respondent. The further decided to obtain a
copy or a summation of the National Labor Relations Act
from the library to show to Lawton. Accordingly, before they
reported for work at 12 noon, they proceeded to the library
where they were able to obtain a book containing a summa-
tion of the Act.
After securing the book from the library, Cornell and
Hirschfeld proceeded to the locker room outside room 114.
While they were there, about 11:50 a.m., Lawton told Hirsch-
feld that she wanted to speak to the latter in Lawton's office.
After a short discussion with Cornell, Hirschfeld proceeded,
according to both Cornell and Hirschfeld, into Lawton's of-
fice with Hirschfeld carrying the book the two obtained from
the library. No one was present in Lawton's office except
Hirschfeld and Lawton but the door to the outer office was
left open. According to Hirschfeld when she walked in she
laid the book on Lawton's desk. With that, Lawton handed
Hirschfeld a check and told Hirschfeld that she was fired and
also told Hirschfeld that the Respondent owed her 1 day's
pay for Martin Luther King's Day, an "H" day, which in the
vernacular of the University meant a day which an employee
could either take off or be paid double for the day's work.
Hirschfeld, according to the latter, told Lawton that she was
not accepting the firing and she felt it was unfair and wanted
to see someone with more authority, preferably McGrady.
With that Lawton told Hirschfeld that if she did not "get the
hell" out of Lawton's office, she was "going to lay her hands
on her and hurt her."
According to Cornell, she had not begun work and had just
left the locker room and was coming into the outer office to
put on her headphone and plug it into the console when she
heard shouting from Lawton's office. She heard Lawton say
to Hirschfeld, "Yes, you're getting out of my office, or else
I'll have to lay my hands on you." With this, Cornell decided
it was time to go in as Hirschfeld's witness as they had agreed
beforehand. With that Cornell walked into the office and said
to Mrs. Lawton, "Under university policy-." Lawton inter-
rupted her and said to Cornell, "Is your name Muriel?" to
which Cornell answered "no," and then further stated "Un-
der university policy I have a right to be here as a witness,
to act as Muriel's witness." Again, according to Cornell,
Lawton told Cornell to get out. When Cornell, instead, went
over to a chair and sat down, Lawton told Cornell "Get out
or I'll knock your teeth down your throat." Cornell insisted
that she would not get out and that she was there to act as
Hirschfeld's witness. With that Lawton handed Cornell her
check and said, "You're fired. You were next anyway."
When the two discharged employees adamantly refused to
get out of the room, Lawton called security. Finally, after
some discussion with security guards, the head of security
came to the room. After the two dischargees explained to him
what had happened, he refused to remove them, but, instead,
told Lawton to call McGrady. This Lawton did and
McGrady came to the room where the girls explained to him
what had happened. McGrady then told them that there was
nothing he could do. However, he did change Cornell's dis-
charge to a suspension. Thereafter, the two dischargees asked
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a hearing at the personnel department. They did have a
hearing within -a day or so. After the hearing, on Friday,
January 25,. McGrady told ;Cornell- over the phone that
Hirschfeld's discharge was upheld but, however, Cornell's
suspension was, limited to 3 days. He read to her a letter
which Cornell later received personally,-which read_as fol-
lows:
This letter will confirm the verbal suspension given to
you -on January 23, '1974. This suspension was neces-
sitated-because.of your uncalled for interference with the
normal conduct of business by the chief operator and
your refusal to desist with this interference when ordered
to do so by the chief operator,.'your supervisor. _
You are suspended from your, position as telephone
operator at Columbia University as of January 23, ,1974.
This suspension is for a period of 3 working days. You
will be expected back at your work January 28, 1974.
You are, furthermore, warned that any repetition of
the aforementioned conduct will result in the termina-
tion of your employment at Columbia University.
Mr. McGrady
Cornell received this letter on the following Tuesday. On,the
day after, she called McGrady and told-the latter that she
could not accept the conditions under which they gave her
her job back. She asked for unconditional reinstatement.
McGrady answered that he could not do anything about the
letter, that it was out of his hands at that point, and that he
was sorry things worked out the way they did. Cornell told
him that she would file a charge with the Board on behalf of
Hirschfeld and herself.
A short time thereafter McGrady again spoke to Cornell
on the phone and read to her a second letter stating-that since
she had not returned to work on the date stated in the first
letter it was- considered that she had resigned. This was the
last communication she had between herself and any officer
or agent of Columbia University.
3. The -Respondent 's defense
Upon the above testimony, General Counsel contends that
the discharges of both employees were discriminatory. Re-
spondent, however, contends that the discharges were proper
and for cause, and relies, to support these contentions, upon
testimony which follows.
Of course, Respondent cites in the first place the testimony
which Lhave credited heretofore to the effect that approxi-
mately 2 weeks before the actual discharge, Lawton had de-
termined to take some action toward terminating Hirschfeld.
With regard to January 21, the first day upon which- the
so-called activity of Hirschfeld and Cornell occurred, Lawton
testified that she had not informed either Cornell or Hirsch-
feld that there had been any changes in procedure or policies
with regard to the manner in which the telephones were to
be answered. However, Lawton did not deny that she had a
conversation at approximately noon on January 21 with
Hirschfeld and with Cornell. On the other hand, the only
Respondent witness to testify as to whether there were any
special instructions or changes in procedures issued that day
and who worked full time was Roxanna Brandao, assistant
chief operator directly under Lawton. Brandao -testified affir-
matively that the rules which Lawton had given to all of the
employees in the department soon after Lawton became
supervisor were never changed to Brandao's knowledge and
Brandao, being the assistant supervisor- of the section, would
have been the first to be informed of any such changes. -
Additionally, Lawton testified that about 4:45 p.m., on
January 21, Hirschfeld asked to see Lawton and Lawton
asked Hirschfeld to come into Lawton's office. Hirschfeld,
according to Lawton, discussed with Lawton that Hirschfeld
was-not satisfied with the way Lawton was-treating her and
that Hirschfeld did not want to be told when to go to the
ladies' room, "when to do this or when to'do-that." Lawton
told Hirschfeld that the latter had to "do these things as long
as Lawton was in charge because it was always done that way.
That was the rule that was in affect when Lawton -was an
operator and Lawton never changed the rule. The reason for
the rule was because the consoles could not be left unat-
tended, someone had to be at that position all the time.
It should be noted in connection with Lawton's testimony
with regard to this conversation, although her testimony was
rather brief and did not go into detail about the matters which
Hirschfeld allegedly complained, that Lawton significantly
testifed that Hirschfeld's complaints were always with regard
to Hirschfeld herself; that her complaints were made in the
singular and did not include other employees. Thus, Hirsch-
feld, according-to Lawton, complained only for herself and
not on behalf of any other employees.
In further testifying, Lawton stated that on the morning of
Tuesday, January 22, when she arrived at work at about 8:45
a.m., her assistant, Roxanna Brandao, told Lawton that there
was a notice on the bulletin board. Brandao took the notice
down and brought it into the locker room where Lawton was
then standing. Lawton took the notice into'her office and read
it. At that point, Lawton called McGrady to tell 'him that
there was a notice posted on the bulletin board. She did not
know who put the notice up nor did she question anyone as
to who put up the notice. According to Lawton, the reason
she called McGrady was that no one is supposed to use the
bulletin board except for official University business.
McGrady in support of the foregoing testimony of-Lawton,
testified that when Lawton'called him she said that she had
found a notice on the bulletin board, that she did not know
who had put it there but that it said something about the
rights of employees. She wanted to know what McGrady
thought about it. McGrady told Lawton 'to file'it-away and
make a copy of it and bring it over to him, which she did.
There was no discussion as to any action to be taken.
The foregoing, according to both McGrady and Lawton,
was the entire discussion that either of them had with regard
to the notice regarding the forming of a grievance committee.
Lawton further testified that on that morning of January
22, after'Cornell and Hirschfeld reported for work, Cornell
-asked Lawton to speak with her. Lawton at that time was
sitting at a console. As a result of Cornell's request, Lawton
closed the console down and went into her office with Cornell
following her. Cornell stated that she wanted to tell Lawton
that Cornell had put up the notice the night before. Cornell,
according to Lawton, further stated that she did not like the
way that Lawton ran the office and thought that the latter
should change it. Lawton told Cornell that Lawton was the
COLUMBIA UNIVERSITY 1087
supervisor and that was the reason she was there ; to run the
office to the best of her ability. According to Lawton, that
was all there was to the conversation which was very short.
It should be noted that here again Lawton placed the conver-
sation of Cornell in the singular and testified that Cornell
spoke for herself alone and did not speak for any other em-
ployees.
There is also a further dissimilarity between Lawton's tes-
timony and Cornell's testimony with regard to that meeting.
As is noted above, Cornell testified in some length with re-
gard to her telling Lawton about the National Labor Rela-
tions Act and that the employees had a right to organize and
have a grievance committee . It should also be noted that,
contrary to the testimony of Cornell , Lawton stated that
Cornell told her that it was Cornell who put up the notice.
Lawton did not testify that anyone else was mentioned be-
sides Cornell regarding the posting of the notice.
The next matter on which Lawton testified was that on the
morning of January 23 , when she arrived at work , she was
told there was another notice posted on the board : Lawton
did not see it but was given it by Brandao who took it down
and gave it to Lawton in the locker room . This was the notice
with regard to the "bull goes on forever ," posted by Hirsch-
feld. After Lawton read the notice she again called McGrady
and informed him about the content of the notice. Again
McGrady asked her to bring him a copy which she did later
on the same day. There was no discussion as to any action to
be taken.
In support of this testimony , McGrady testified that when
Lawton called him on January 23 with regard to the "bull"
notice, she told him that this was a little derogatory , appar-
ently concerning her. McGrady testified that he told her to
file that one away and send him a copy. McGrady further
testified that he did not tell Lawton to find out who made the
notice although he testified be believed that he asked her if
she knew who put it up and Lawton answered in the negative.
On that morning , January 23 , during the morning, Lawton
dictated a letter to her secretary , Betsy -Reed, which letter was
addressed to Henry K . Nelson , the chief purchasing agent,
stating "This is to inform you that I have terminated Muriel
Hirschfeld as of January 23 , 1974 , due to incapability in the
office. We owe her one day's pay for Dr . Martin Luther king
H Day."
However, according to Reed , on the day before, Tuesday,
January 22 , Lawton told Reed that she was going to termi-
nate Hirschfeld. Lawton also told Reed , according to Reed's
testimony , that at that time on January 22, Lawton told Reed
that if Cornell did not watch her step she would be next. This
was probably after Cornell had told Lawton that Cornell had
posted the notice with regard to the grievance committee.
According to Lawton , on January 23 , just before noon,
when Hirschfeld and Cornell came into the locker room to
report for work, Lawton asked Hirschfeld to come to her
office. Lawton testified that she told Hirschfeld that the latter
was being terminated and gave her her check and explained
to her that the University owed her the "H" day pay for Dr.
Martin Luther King's birthday . This was because Hirschfeld
had worked on that day and was entitled to an extra day's
pay.
Further testifying, Lawton stated that Hirschfeld told her
that Lawton had no right to terminate Hirschfeld . Lawton
stated that at this point Hirschfeld became loud and shouted
that she wanted to talk to McGrady. Lawton said that that
was fine. At that moment, according to Lawton, Cornell
came into the office and said that Lawton had no right to "do
this" and that if Muriel Hirschfeld was discharged , Cornell
was going to leave also . Lawton answered that if that's the
way Cornell felt about it she was free to go. She then told
Cornell to return to her console and go to work . Actually,
according to'Lawton, Cornell had never put her earset in and
had not yet started to work. However , Cornell refused to go
back to her desk and instead sat down to listen to what
Lawton had to say to Hirschfeld . Lawton repeatedly asked
Cornell to leave and the latter refused repeatedly . Thereupon,
according to Lawton, she called security and McCrady. In
testifying Lawton denied that she raised her voice or that she
ever threatened either Hirschfeld or Cornell with bodily
harm, or for that matter , ever threatened any employee in this
manner.
Lawton further testified that her conversation with Hirsch-
feld on January 23 lasted no more than 5 minutes . Lawton
further denied, in testifying, that Hirschfeld placed any object
on her desk when she came into Lawton's room on that day.
Lawton testified that Hirschfeld was carrying no object other
than her purse when Hirschfeld came into the office. Thus,
Lawton denied that Hirschfeld carried the so-called labor law
book referred to in the testimony of Hirschfeld and Cornell.
Lawton did not testify with regard to the events that en-
sued after Lawton called security and McGrady. Apparently,
this was because the testimony of Cornell and Hirschfeld with
regard to what took place thereafter was not in conflict with
what Lawton would have testified to with regard to these
events.
With regard to the exit interview on January 23 concerning
which it is alleged that the Respondent discriminatorily dis-
charged Hirschfeld and Cornell , the Respondent called Rox-
anna Brandao and Marian Lloyd. Brandao, assistant supervi-
sor, did not add anything to what has already been recited
above by Lawton . But, she emphatically denied she had ever
seen or heard Lawton physically threaten anyone, nor has she
ever seen Lawton make any threatening gestures toward any
employee. However , on cross-examination , Brandao did ad-
mit that sometime between December 15 and January 23
there were discussions about working conditions among the
telephone operators . These discussions occurred at a time
when she was only an operator and was interested in a union.
She admitted that Cornell did speak to her about a union
before Brandao became a supervisor.
Marian Lloyd , a full-time operator, denied that there was
any kind of conversation between herself and Cornell or
Hirschfeld on January 21 concerning grievances . Although
Lloyd admitted , on cross-examination , that her lunch period
was the same as that of Lawton , from 12:30 to 1:30 p.m.,
which would have meant that Lloyd could not have even been
present at all times during the so-called grievance discussions
of January 21 and 22, Cornell testified that Lloyd was present
at that time and specifically stated to Cornell that the latter
had better be careful in what she said inasmuch as Cornell
had been ill and that this could possibly be used against
Cornell . It should be noted , at this point, that this foregoing
is among the many imponderables presented by the conflict-
ing testimony of the witnesses in this case.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Significant, also, is the testimony of Respondent witnesses,
George Ford and Morris Dunlop, both night-time operators
and part-time operators who testified that they could not
remember having any discussion with either Cornell or
Hirschfeld on January 22. They both further testified that on
January- 21 neither of them were working. This is borne out
by. Respondent's records, introduced into evidence, which re-
quired part-time operators to sign their names on an assign-
ment schedule alongside the dates on which they were sched-
uled to work This schedule, for the week beginning January
21, was introduced into evidence and showed that neither
Dunlop nor Ford worked on the evening of January 21 and,
therefore, could not have engaged in a discussion of the for-
mation of a grievance committee as testified by Cornell and
by Hirschfeld. Dunlop, however, admitted that at some time
during this period there was a discussion concerning a union.
He further stated that on the evening of January 22 he heard
that someone put up a notice on the bulletin board that
Lawton did not like. He further remembered discussing with
Cornell and Hirschfeld the fact that they were probationary
employees and that they should be careful about what they
were doing because they were new. He might have told them
this, according to his testimony, on Tuesday, January 22, the
night he admittedly worked.
With regard to the ultimate conclusion to uphold Cornell's
suspension and her eventual discharge, McGrady testified
that one of the reasons Cornell was suspended and ultimately
discharged was because she left her switchboard unattended.
However, in contrast to this testimony, as recited above,
Lawton testified that Cornell had not as yet commenced work
when she came into Lawton s room to witness Hirschfeld's
discharge. Accordingly, it is very probable, that Cornell did
not leave her switchboard unattended inasmuch as she had
not plugged in her earset and had not taken her place at the
switchboard to start work. Therefore, her switchboard was
not turned on to receive calls. This conclusion is bolstered by
the fact that Lawton testified that the entire conversation
with Hirschfeld and Cornell, up until the time Cornell said
that she would quit if Hirschfeld was fired, took no more than
a few minutes. Inasmuch as the two young ladies reported to
work that morning some time prior to noon, it is very possible
that the entire conversation was completed before it was time
for Cornell to actually commence work. This conclusion, of
course, does not apply to the period during which Cornell
refused repeatedly to go to her switchboard.
It should further be noted, in connection with the dis-
charge of Cornell and Hirschfeld that the payday of the Uni-
versity is every other Wednesday and that January 23 was a
Wednesday and a payday. This would account for the fact
that the checks of each were ready on that day.
C. Discussion, Analysis, and Conclusions
As is usual in most cases where there is conflicting tes-
timony between witnesses for the General Counsel and wit-
nesses for a respondent, counsel in the instant case urge that
the witnesses of their opponent cannot be believed and that
only their own witnesses are telling the whole truth. Indeed,
in the case at bar, in one respect counsel are correct. The
witnesses for both the General Counsel and the Respondent
gave testimony which presents ambiguities, imponderables,
half-truths, and exaggerations. Accordingly, the contention
of counsel for the General Counsel and counsel for the Re-
spondent that only their particular witnesses can be relied on
completely must be rejected. Accordingly, in many instances,
as hereinafter set forth, I credit a witness' testimony in part
and in other respects I do not credit a witness'
testimony.'
As noted above, I have concluded, in the recital of the
events of this case, and the evidence thereof, that some time
before January 21, 1974, Lawton had considered that at some
time in the future she would discharge Hirschfeld. However,
I conclude, from an analysis of the testimony of McGrady,
Safran, and Lawton with regard to this decision, that at the
time Lawton spoke to both McGrady and Safran, Lawton
had not decided on the date which Hirschfeld was to be
separated. This is clear from the testimony, especially of
McGrady and Safran, neither of whom testified that Lawton
gave them a definite date for the separation. However, unlike
the General Counsel, I cannot conclude that the Respon-
dent's defense that Lawton had decided to terminate Hirsch-
feld was an afterthought concocted after the fact of discharge.
This would have required the connivance and the agreement
on the part of all of the people involved, including Safran,
McGrady, Lawton, and others, to create a fiction out of the
whole cloth. I have already concluded that Safran was a most
forthright witness and, accordingly, I accept as a fact that the
determination to terminate Hirschfeld had been made before
any of the decisive events herein occurred.
However, because I have also concluded that no date for
the separation of Hirschfeld was made at the time that the
decision to separate her was made by Lawton, I must con-
sider why Hirschfeld was separated on January 23 only 2
days after Cornell and Hirschfeld first discussed the possibil-
ity of the formation of a grievance committee with other of
Respondent's employees.
As noted above, the testimony of both Hirschfeld and Cor-
nell with regard to the alleged change in policy and proce-
dures for answering the phone, relates that they were called
in as they reported for work at 12 noon on January 21 and
were told of these changes by Lawton in her office.- Lawton
emphatically denied that she had told them of these changes
and that, in fact, no changes had ever been made. Roxanna
Brandao, Lawton's immediate assistant, denied that any
changes were made and stated that she would have been the
first one to know about them inasmuch as she was the assist-
ant supervisor of the office. Additionally, aside from Cornell
and Hirschfeld, no witness presented by the General Counsel
testified that they were told that there were any changes given
to them by Lawton at that particular time. In fact, none of
them testified that any changes were ever given them with
regard to the written policies and procedures for answering
the telephone distributed soon after Lawton became chief
operator. However, Lawton did not deny that there was a
conversation on January 21. Additionally, although, Cornell
and Hirschfeld testified that it was these changes that they
did not understand and which they resented, which brought
about the discussion at approximately 12:30 p.m., on January
3 To the extent that I credit a witness only in part, I do so on the
evidentiary rule that it is not uncommon "to believe some and not all of a
witness ' testimony." N.L.R B v Universal Camera Corporation, 179 F.2d
749, 754 (C.A. 2)
COLUMBIA UNIVERSITY
21, strangely, none of the employees who participated in that
discussion including Barbara Joyce, a witness for the General
Counsel, testified that either Cornell or Hirschfeld mentioned
the change of rules during the discussion. Although, whether
the changes of policy were actually made by Lawton on Janu-
ary 21, is immaterial for the purposes of disposing of the issue
of whether the employees discussed the formation of a griev-
ance committee on January 21, or whether Hirschfeld and
Cornell were engaged in protected concerted activity on that
day and the following days, it is nevertheless vital to the
resolution of credibility of Lawton's testimony as contrasted
with the testimony of Hirschfeld and Cornell. If only Hirsch-
feld had testified to this matter, I would have great difficulty
in deciding whether her testimony was more credible in this
respect than the testimony of Lawton. However, Lawton's
main support in this respect came from the testimony of
Brandao, who admittedly had just recently been appointed
assistant supervisor of the office, who was a friend of Law-
ton's and whose job as a supervisor, not protected by the Act,
could have been placed in jeopardy by her testimony. On the
other hand, Cornell, who, although somewhat militant and
self-assertive, in her testimony recited facts clearly, emphati-
cally and in great detail. By contrast, in many respects the
testimony of Lawton was somewhat vague, and where more
precise, was frequently brought out through leading ques-
tions on the part of Respondent's counsel. Accordingly, upon
my observation of these witnesses , and although I believe that
Cornell tended to exaggerate situations somewhat, I conclude
that her testimony with regard to what brought about the
discussions between the employees on January 21 and 22
constituted a reliable recitation of the facts. Accordingly, I
credit her version of the conversation between Lawton,
Hirschfeld and Cornell on January 21. Because Hirschfeld's
testimony in this respect parallels that of Cornell, I also credit
Hirschfeld in this respect.
Moreover, I fmd that because of Cornell's general credibil-
ity, her recitation of other facts with regard to what occurred
in meetings between herself and Lawton is more accurate
than the testimony given by Lawton. In coming to this con-
clusion, I have fully considered Cornell's testimony that on
the night of January 21 she and Hirschfeld discussed the
formation of the grievance committee with night telephone
operators Ford and Dunlop. Therefore, because I conclude
that Ford and Dunlop were not present on that night, I
further conclude that in this respect Cornell's testimony is
not accurate. However, because her recitation of what oc-
curred on, the following night, when Ford and Dunlop were
there, somewhat parallels the testimony of Ford and Dunlop,
I fmd and conclude that this error regarding who were pre-
sent during the night of January 21 does not render other
testimony given by Cornell unreliable. Moreover, in the re-
spects that Ford and Dunlop's testimony does not fully sub-
stantiatethe testimony of Cornell and Hirschfeld with regard
to whether the grievance committee was discussed on the
night of January 22, I conclude that the testimony of Cornell
and Hirschfeld is more reliable for reasons which follow.
First, of course, was my observation of these witnesses on
the witness stand and the impression I had of them. Ford, a
part-time telephone operator but a full-time student at the
University, is in school on a workstudy program. This indi-
cates that the job which he held as a part-time operator and
1089
student depended completely upon the University's desire to
retain him in that position. It further indicates that he needed
this part-time work to remain in school as a student. More-
over, his inability to recall any substantial amount of the
events on the night of January 22, indicates that his recollec-
tion of what occurred that night in the telephone room was
such as to render his testimony unreliable.
With regard to Dunlop, he held two jobs with the Univer-
sity; one at their athletic field during the day and the second
as a part-time operator at night. Also, he was not subpenaed
but appeared voluntarily to testify. Additionally, on cross-
examination, although Dunlop testified that there was no
discussion concerning the formation of a grievance commit-
tee on the night of January 22, he admitted that there was
discussion about "a union." Moreover, when pressed on
cross-examination, he remembered discussing with both Cor-
nell and Hirschfeld the fact that they were probationary em-
ployees and he said they should be careful about what they
were doing because they were new. He further admitted that
he "might" have told them this on Tuesday, January 22. The
question might well be asked, if they were not discussing the
grievance committee on that night, why would Dunlop have
warned Cornell and Hirschfeld that they were possibly sub-
ject to removal as probationary employees. Accordingly, I
find and conclude that on both January 21 and 22 at the noon
hour, at times when Lawton was taking her lunch hour,
discussion took place among the operators, and especially by
Hirschfeld and Cornell, concerning the formation of a griev-
ance committee and that this discussion extended into the
nights of January 21 and 22. Moreover, even though Dunlop
and Ford were not working the night of January 21, and
Cornell's recollection of who was working with her and with
Hirschfeld that night might have been faulty, there had to be
other operators working inasmuch as the consoles had to be
manned. Therefore, I fmd and conclude that on both nights
the formation of a grievance committee was discussed, and
the notice with regard to grievances was posted on the night
of January 21 after such discussion.
We come now to the events of the morning of January 22
and the decisions by Cornell and Hirschfeld to support each
other with regard to what might happen to them by reason
of their mutual activity in protesting the working conditions
and in the discussion of the formation of a grievance commit-
tee and the posting of the notice the night before. Although
these decisions by the two were made out of the sight and
hearing of any representative of the Respondent, or any Re-
spondent witness, because I have otherwise credited Cornell,
I credit her testimony and, therefore, Hirschfeld's testimony
in this respect.
Also, earlier in that day, Lawton admittedly called
McGrady to ask him what to do about the grievance notice
posted the night before. Although Lawton considered the
matter important enough to call McGrady and, as a rather
new supervisor who had never before been confronted with
such a situation, must have been somewhat upset and con-
cerned about the notice, she testified that the reason she
called McGrady was that the bulletin board was not supposed
to be used for anything but official university business.
McGrady's testimony with regard to that telephone call is
equally difficult to believe. He testified, as noted above, that
Lawton said she found the notice on the bulletin board that
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she did not know who put it there but it said something about
the,nghts` of employees. She-wanted to know what McGrady
thought about it. McGra4y merely told her to file it away and
make a copy and bring it over to him, which she did. Then,
McGrady testified, there was no discussion as to any action
to be taken. I fmd it incredible that McGrady, as the immedi-
ate superior to Lawton, would not have been concerned about
actions evidently taken by unknown employees to assert
grievance rights, or to assert what they thought were their
rights under the Act, without -questioning Lawton as to the
possible reasons for such activity on the part of the unknown
employees. Accordingly, although I have credited McGrady
and Lawton in some other respects, I find and conclude that
McGrady and Lawton are not reliable witnesses where their
testimony is not otherwise supported.
Perhaps one of the more-crucial conflicts of testimony to
be resolved concerns the meeting shortly after noon January
22 between ,Lawton and Cornell in which Cornell admitted
the posting of the notice. Cornell's description of the conver-
sation, as noted above, was very detailed whereas Lawton's
was very short. However, for the purpose of the decision in
this proceeding, the critical item of difference between the
testimony of the two was that Cornell testified she informed
Lawton' that Cornell and Hirschfeld had posted the notice the
night before and that when Lawton asked Cornell why they
had not come to her individually, Cornell answered that they
had already tried that route, that Hirschfeld had come to
speak to Lawton the night before in behalf of themselves and
the other operators, and having tried that route and having
been unsuccessful, they now-wanted a grievance committee.
Lawton, on the other hand, testified that Cornell told her that
Cornell (singular) had posted the notice the previous night.
Moreover, in Lawton's testimony there was no mention of the
discussion with regard to a grievance committee as-was con-
tained in Cornell's testimony. I conclude that Cornell's ver-
sion of the conversation is the more accurate and that Cornell
did relate to Lawton at that time that both Cornell and
Hirschfeld had posted the notice and had done so only after
the requests by Hirschfeld the night-before had been rejected
by Lawton and that the employees now wanted a grievance
committee. I also find uncontradicted by Lawton, the tes-
timony of Cornell relating to that conversation to the effect
that she told Lawton about the National Labor Relations
Act; that Cornell and Hirschfeld were doing this as workers
for the benefit of the entire office and that with regard to the
Act, Cornell promised Lawton written documentation of em-
ployees' rights under the Act on the next meeting that they
would have.
Later that evening, as heretofore set forth, came the discus-
sion between Lawton and Hirschfeld and the night em-
ployees. Although Dunlop and Ford both denied that there
was a discussion about a grievance committee, I find Hirsch-
feld's and Cornell's testimony with regard to that evening's
events as the more reliable for reasons herein before set forth.
Significantly, also, Dunlop, at least, admitted in testifying
that he heard that someone had put up.a notice on the board,
referring to the notice posted the night before, and that "Mrs.
Lawton did not like it."
Later that night, before they left, Hirschfeld made up the
notice that "the bull goes on forever," and posted it, The next
morning, as heretofore set forth, both Hirschfeld and Cornell
met at the restaurant, went to the library, obtained the-book
describing the National Labor Relations Act, and reported to
work at approximately 11:45. Again, although the conversa-
tions between Hirschfeld and Cornell regarding these matters
took place outside the sight or hearing of any of the Respon-
dent's officers, agents, or witnesses, I find that-because I have
credited Cornell and Hirschfeld in other matters regarding
the events of the 3 critical days, I credit them with regard to
what occurred before they reported for work in the operators'
room on January 23.
Both the General Counsel and the Respondent admit that
Hirschfeld and Cornell were discharged that day by Mrs.
Lawton. I find, from the credited testimony of Hirschfeld and
Cornell, that the events of those few minutes between the time
that Lawton requested Hirschfeld to come into Lawton's
office and the time that Hirschfeld and Cornell were dis-
charged by Lawton occurred as related by the two dischar-
gees. Here again I resolve the conflict of testimony based on
not only my visual observance of the witnessess but also on
the fact that I have found Cornell to be a more -reliable
witness than Lawton. -Thus, I find, that- when Hirschfeld
entered Lawton's office, pursuant to the agreements between
Hirschfeld and Cornell, Hirschfeld carried with her the book
containing the summation of the National Labor Relations
Act. I further find that Lawton did tell Hirschfeld that she
was discharging Hirschfeld for incompatibility of views. I
find, also, when Hirschfeld refused to accept this. discharge,
an argument ensured in which both parties undoubtedly
raised their voices. I further find and conclude that when
Cornell heard the raised voices and the argument she entered
the office and informed Lawton that she was there as a wit-
ness for Hirschfeld pursuant to the grievance procedure
policy of the University. I' further find. that Lawton told
Cornell that they did not need a witness and that the latter
should remove herself from Lawton's office. I find further
that when Cornell persisted and sat down and repeatedly
refused to leave Lawton's office, Lawton discharged her.
What ensued thereafter is unimportant except as it relates
to the reasons why the two employees were discharged.
As noted, the complaint alleges and the General Counsel
contends that Hirschfeld and Cornell were engaged in pro-
tected concerted activity, that Hirschfeld was discharged.for-
engaging in this activity and that Cornell was discharged both
for engaging in this activity and particularly for engaging in
the protected concerted activity of seeking to act as a witness
for Hirschfeld. Respondent, on the other hand, contends that
in the first instance, Hirschfeld was discharged pursuant to
the determination to take this action made by Lawton some
2 weeks before the actual discharge date. Respondent con-
tends that, in any event, the discharged employees were not
engaged in protected activity in that their activity was not
concerted; so far as the Respondent knew, each of these
dischargees were acting as individuals and not on behalf of
any other employees or each other. Respondent argues fur-
ther that Cornell was originally discharged for refusing to
obey the orders of her superior, Lawton, who had instructed
her to leave the office and tend to her telephone console and
then reinstated her upon warning that she not misbehave
again in such manner. Cornell's activity on the morning of
January 23 in coming into the room was not protected in any
event. Finally, contends Respondent, the refusal of Cornell to
COLUMBIA UNIVERSITY 1091
return after her suspension expired was correctly interpreted
by the Respondent as an abandonment by Cornell of her
position and that, therefore, -she was lawfully discharged.
I have above found that, indeed , Lawton did earlier con-
sider the discharge of Hirschfeld as a probationary employee
and did consult both McGrady and, Safran with regard
thereto. However, as noted above, I have also found that no
particular date was set in advance for the desire on the part
of Lawton to terminate Hirschfeld. In connection therewith,
I further conclude that Lawton did not determine before
January 22 that Hirschfeld was to be discharged on January
23. There are several factors which go into the formation of
my conclusion . The first and most apparent is the fact that
although the Respondent , by Lawton, claims that the deter-
mination to discharge Hirschfeld at the end of the next pay
period, was made following the discussion earlier in the
month between McGrady and Lawton and Safran and Law-
ton, nevertheless, the check given to Hirschfeld by Lawton on
January 23 was in the amount-that would normally have been
given to Hirschfeld at the end of any pay period and that
Wednesday, January 23, was a regularly scheduled payday.
It would seem to follow that had Lawton determined 2 weeks
in advance to discharge Hirschfeld on January 23, Lawton
would have notified the payroll department, or whatever
branch of the University made up the payroll , to make out
Hirschfeld 's final check to include payment for the extra
day's pay to which Hirschfeld became entitled for working on
Dr. Martin Luther King's birthday. Additionally, although
Lawton's clerk-typist, Betsy Reed , was in daily contact with
Lawton and took care of all clerical matters in the office,
Betsy Reed was not told that Hirschfeld was to be terminated
until January 22, also after Lawton saw and read and heard
of the grievance notice posted on the bulletin board by
Hirschfeld and by Cornell on the night of January 21. More-
over, , it was not until January 23, 1974, the date of the dis-
charge, that Lawton informed the head of her department,
Henry K. Nelson, that she was going to discharge Hirschfeld
on that day and that they would owe Hirschfeld 1 day's pay
for Dr. Martin Luther King H day. It should also be noted,
in connection therewith, that it was on January 22, in the
same conversation in which Lawton informed Reed that
Hirschfeld was to be discharged the following day, that Law-
ton also told Reed that if Cornell did not watch her step she
would be next.
Accordingly, for the foregoing reasons, I find and conclude
that although Lawton may have entertained the idea of ter-
minating Hirschfeld at some time after her discussions with
McGrady and with Safran, no definite date for such discharge
was actually set before January 22. I further find that Lawton
did not, in fact , finally determine to discharge Hirschfeld on
January 23 until after Lawton became aware of the activities
of Hirschfeld and Cornell with regard to grievances and other
complaints of the employees. This determination is bolstered
by the fact that not only did Cornell tell Lawton on January
22 that she and Hirschfeld had posted the grievance proce-
dure notice, but also by the fact that the complement of
employees in the phone office was small and that in such
cases the Board has found that direct evidence of employer
knowledge of union or concerted activity is not necessary to
make a finding that the employer had such knowledge?
Accordingly, I find and conclude that Hirschfeld was dis-
criminatorily discharged on January 23, 1974, for having
engaged in protected concerted activity.'
The issue with regard to the termination of Cornell is more
technically complicated . For the same reasons that I have
heretofore found Lawton had knowledge of Hirschfeld's ac-
tivities, I find that Lawton had knowledge of Cornell 's activi-
ties. And this is so even if she told Reed , on the morning of
January 22 , that Cornell had better watch herself or she
would be . next , before Cornell informed Lawton of the draft-
ing and the posting of the grievance notice. In this connec-
tion, I again note the small complement of employees in the
telephone room who worked under the supervision of Law-
ton.
Thus, I conclude , that Lawton had sufficient reason to feel
unhappy, alarmed , and somewhat insecure about the activi-
ties of Cornell which had been reported to her . This is clearly
shown by the statement to Reed , whose testimony I accept,
on January 22, that if Cornell did not watch her step, she
would be next. I do not conclude that on January 22 Lawton
had made a final determination to terminate Cornell. How-
ever, I do note that the record indicates that Lawton was a
new supervisor and that there was talk among the employees
that Lawton was suspicious of most of the employees, if not
all. The so-called plot against her indicated that Lawton was
somewhat insecure in her new position . Accordingly, the
activities of both Hirschfeld and Cornell reported to her on
January 21 or 22 were sufficient to cause her to fear that
Cornell was a possible impediment to her security in her new
position . Therefore, when , on Wednesday , January 23, Cor-
nell presented herself into a matter which Lawton considered
was none of Cornell's business , Lawton , having in mind what
had passed in the 48-hour period before that moment, then
and there decided to discharge Cornell . This is not to say that
this was the only motivation for discharging Cornell. It is
possible that Lawton also felt that Cornell was violating uni-
versity policy. Accordingly , I find that Cornell 's original dis-
charge by Lawton on January 23 was at least, in major part,
motivated by the animus of Lawton caused by Cornell's activ-
ity which I find to have been protected concerted activity
under the Act.
However, even assuming that Cornell 's discharge did not
result from any of her prior activity, but only as a result of
her injecting herself into the Hirschfeld discharge as a self-
proclaimed witness, there is reason to find a violation of the
Act. While it is true that in the instant case Hirschfeld did
not specifically request a witness when she entered Lawton's
office on January 23, it should be noted that I have credited
the testimony of Cornell and Hirschfeld to the effect that they
had agreed to act as each other's witnesses, pursuant to uni-
versity policy, in the event that either felt endangered. How-
ever, at the time that Hirschfeld entered Lawton 's office on
January 23, carrying the summary of the Act, she was under
the impression , as set forth in her conversation with Cornell
just prior to her entry , that this was to be a continuation of
4 Wiese Plow Welding Co., inc., 123 NLRB 616 (1959).
5 As noted by the General Counsel, even assuming that Cornell and
Hirschfeld did not actually engage in the concerted activity of discussing
and drafting with other employees the grievance notice posted on the bulle-
tin board on the night of January 21, they nevertheless acted in concert with
each other which would render their activity in this respect protected
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discussion which Hirschfeld had with Lawton on Mon-
day, January 21. Accordingly, when she went into Lawton's
room there was no indication that this was to be a disciplinary
proceeding, and, accordingly, she did not have the oppor-
tunity to ask for a witness. Moreover, the moment she entered
Lawton's office she was discharged and handed her check.
Thus, Hirschfeld did not have the opportunity, even after
entering Lawton's office, to ask for a witness. While it is true
that the argument between Lawton and Hirschfeld ensued in
which Hirschfeld refused to accept the discharge, it was this
argument which brought Cornell into the room because Cor-
nell heard the voices of the two and became aware of the fact
that her fellow activist might be jeopardized with regard to
her job security. Thus, although in the cases cited by counsel
for General Counsel,' the individual about to be disciplined
asked for witnesses beforehand, I find that in the present case
no opportunity presented itself for such a request and, there-
fore, I find that when Cornell came into the room as a witness
for Hirschfeld she was acting not only under university
policy, which permitted witnesses in such instances , but also
pursuant to well-settled Board law.
Accordingly I find that when McGrady changed the dis-
charge to a suspension and then when, a few days thereafter,
the suspension was upheld and Cornell was informed that she
could return after 3 working days of suspension upon condi-
tion that she not continue her activity, I find and conclude
that this constituted a violation, in and of itself, because it
interfered with Cornell's Section 7 rights. Moreover, al-
though McCrady, in testifying, denied that there was any
unlawful motivation in, the ultimate sustaining of Cornell's
suspension and the warning letter, he testified that the reason
that Cornell was suspended on January 23 was first, because
she left her console unattended and secondly she did not
carry out the orders of her supervisor to return'to her console.
However, none of this was mentioned in the, letter sent to
Cornell in which her suspension was sustained . Moreover, as
set forth earlier in this decision, Lawton admitted, in testify-
ing, that at the time that Cornell had not yet commenced her
day's work. As noted before, Hirschfeld was discharged
about 12 noon and it is very probable that Cornell entered
Lawton's room before the time for her to begin work. Ac-
cordingly, I find and conclude that the so-called first reason
for the suspension was specious. As to the second reason,
Cornell's failure to carry out orders of her supervisor to
return to her console, I have already concluded that Cornell
was engaging in protected activity when she insisted that she
be permitted to act as Hirschfeld's witness.
Respondent 's counsel makes one final argument . He states
that when Cornell came into the office the discharge had
already taken place and that, therefore, there was no necessity
for a witness. However, I have heretofore concluded that the
matters occurred within such a brief time and so quickly that
Cornell's intervention came at the first warning and at the
first opportunity that Cornell had to learn that her coactivist
was in trouble. Accordingly, I do not find merit in this con-
tention of Respondent.
By reason of all the foregoing, I find that Cornell was
wrongfully suspended and that the warning to her that she
6 Texaco, Inc., 168 361 (1967); Quality Manufacturing Company, 195
NLRB 197 (1972)
would be discharged if her activity continued was lawfully
rejected by Cornell, and that the refusal to revoke the suspen-
sion and the warning to Cornell with regard to her future
conduct constituted a constructive discharge.
Therefore, by its actions with regard to Cornell, I find and
conclude that the University violated Cornell's Section 7
rights in violation of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with its operations
set forth above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several states
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
c V THE REMEDY
Having found that the Respondent discriminatorily ter-
minated and refused to reinstate Muriel Hirschfeld and Dru-
cilla Cornell, I shall recommend that the Respondent offer
them immediate and full reinstatement to their former and
substantially equivalent positions without prejudice to any
seniority, or other rights or privileges they may enjoy. Re-
spondent shall make each whole for any loss of pay she may
have suffered by reason of the discrimination against her by
payment to each of them a sum equal to that which they
would have received as earnings from the date of the dis-
charge, January 23, 1974, until each is fully reinstated, less
any net interim earnings . Backpay is to be computed on a
quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950), with inter-
est thereon at the rate of 6 percent per annum to be computed
in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
On the basis of the foregoing findings of fact and upon the
entire record I make the following:
CONCLUSIONS OF LAW
1. Columbia University is, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. District 65, Distributive Workers of America is a labor
organization within the_ meaning of Section 2(5) of the Act.
3. By discriminatorily terminating and refusing to reinstate
Muriel Hirschfeld because of her protected and concerted
activities , Respondent engaged in and is engaging in unfair
labor practices affecting commerce within the, meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act.
4. By discharging, and then revoking the discharge and
suspending and finally discharging Drucilla Cornell for en-
gaging in protected concerted activities, Respondent engaged
in and is engaging in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(1) and 2(6) and (7)
of the Act.
Upon the foregoing findings of fact, and conclusions of law
and the entire record, and pursuant to Section 10(b) of the
Act, I hereby issue the following recommended:
COLUMBIA UNIVERSITY 1093
ORDER?
Respondent, Columbia University, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Suspending or discharging and refusing to reinstate
employees in order to discourage its employees from engaging
in protected concerted activities.
(b) In any similar manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist any
labor organization, to bargain collectively with representa-
tives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Offer to Muriel Hirschfeld and Drucilla Cornell im-
mediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority
or other rights and privileges previously enjoyed, and make
7 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the-find-
ings, conclusions, and recommended Order herein shall, as provided in Sec.
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.
each whole for any loss of earnings she may have suffered by
reason of the discrimination against her in the manner set
forth in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination, copies of all payroll
records, social security payment records and reports and all
other reports necessary to analyze the amount of backpay due
under this Order.
(c) Post at its campus at 116th Street in the city of New
York copies of the attached notice marked "Appendix."8
Copies of said notice, on forms duly provided by the Regional
Director for Region 2, after being duly signed by Respon-
dent's representative, shall be posted by the Respondent im-
mediately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
In the events that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "