Jack LaLanne Management Corp.

National Labor Relations Board - Board Decisions

Jun 26, 1975

218 N.L.R.B. 900 (N.L.R.B. 1975)

900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jack LaLanne Management Corp . and Paulette
Anderson. Case 29-CA-3779
June 26, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On January 20, 1975, Administrative Law Judge
Abraham H. Maller issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed exceptions to portions of, and a brief in
support of the remainder of, the Administrative Law
Judge's Decision. Respondent filed a reply brief to
the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings,2 and conclusions of the Administrative Law
Judge, except as modified herein, and to adopt his
recommended Order.
We adopt the Administrative Law Judge's finding
that Respondent discharged Paulette Anderson when
she refused to accept a temporary transfer to the
Madison spa in violation of Section 8(a)(1), (3), and
(4) of the Act. We rely in part, as the Administrative
Law Judge did, on the disparate treatment of
Anderson as compared to Rolinda Antone, who,
after accepting a temporary transfer to another
health club, or spa, for a week, refused to continue
even temporarily, solely because she "didn't like the
parking arrangements." While Respondent was
willing to accept this as an excuse from Antone, it
would not accept Anderson's fear of riding on the
subways after 10 p.m., through a neighborhood
where her cousin had recently been assaulted on the
subway. Anderson had done some modeling for
Respondent 's advertisements , and is described in
Respondent's brief as a pretty young instructress. At
the time she was asked to make this transfer, she had
just returned from a 3-week temporary transfer to
1 The Administrative Law Judge granted Respondent an adjournment of
the hearing, in part to give it an opportunity to meet evidence of which it
had no prior notice . We think this evidence related in part to amendments
of the complaint made at the hearing and that the Administrative Law
Judge erred in stating that no such request for an adjournment was made.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
218 NLRB No. 134
another spa, which she had undertaken at Respon-
dent's request. Accepting as we do the Administra-
tive Law Judge's credibility finding that Anderson
based her refusal to transfer ' on concern for her
safety, and taking notice of the climate of opinion in
New York City regarding the safety of the subways
at night,3 we find it difficult to believe that
Respondent truly regarded Anderson's refusal as
frivolous or arbitrary.
In emphasizing the disparate treatment as between
Anderson and Antone, who was not a known union
supporter, we recognize that Caron, who was one,
was accorded the same treatment as Aritone. That
Respondent chose not to take this opportunity to
discharge Caron also4 is not persuasive one way or
the other regarding the motivation for Anderson's
discharge. Credited testimony attributes to. Respon-
dent the express desire to "get rid of' both Anderson
and Caron, and various unfair labor practices we
have found to have been directed against them are
indicative of that goal. And Respondent's president,
Schwartz, told employee Richard Kaufman that he
and his wife were "disappointed" with Anderson and
Kaufman when they testified against Respondent in
the presence of Mr. and Mrs. Schwartz in the earlier
unfair labor practice hearing. Mrs. Schwartz, also a
high-ranking management official, showed her own
hostility toward Anderson by refusing to accept a
letter Anderson left with the receptionist for her
about 3 weeks before the discharge. Nothing in the
record besides Anderson's protected activities would
account for the drastic change in management's
attitude toward a formerly esteemed employee. We
are persuaded that this special kind of disappoint-
ment with, and hostility toward, Anderson contribut-
ed significantly to Respondent's decision to termi-
nate her relatively long and eminently satisfactory
employment status.
With regard to the Administrative Law Judge's
finding, which we adopt, that Respondent unlawfully
directed employees not to associate with Anderson
and Caron, we note that according to the credited
testimony of Ellen Brezenoff and Rolinda Antone
the source of the instructions given by Joan Holland
to employees Balalos and Murphy not to associate
with Anderson and Caron was Anita Katz, the
assistant service supervisor. Since Katz was a
carefully examined the record and find no basis for reversing his findings.
With regard to the discriminatory reduction of Anderson's hours, we
think it is implicit that the Administrative Law Judge discredited the
testimony of Supervisor Katz that when she informed Anderson that her
Thursday hours would be eliminated she offered to replace them with the
Friday hours to be vacated by Antone, as well as Katz' testimony that she
scheduled Balalos for Anderson 's Thursday hours at the time Balalos was
hired.
3 See Johnson, "The Subways of New York," The Washington Post,
April 20, 1975 (Sec. C, p. 1).
4 She quit shortly anyway.
JACK LALANNE MANAGEMENT CORP. 901
relatively high-ranking supervisor, her instructions as
carried out by Holland were clearly attributable to
Respondent whether or not Holland was, as the
Administrative Law Judge found, also a supervisor.
In adopting the Administrative Law Judge's
finding that Respondent violated Section 8(a)(1), (3),
and (4) by drastically reducing Richard Kaufman's
hours and by eliminating his calisthenics classes, we
make one clarification and one modification. For the
first, we note that the reduction of Kaufman's
calisthenics classes from 7 to 4 in the summer of 1973
was not alleged to be a violation of the Act and that
any such allegation would have been barred by
Section 10(b). On the other hand, the eventual
elimination of these classes in the early part of 1974,
for which violation there is substantial evidence in
the record, is within both the scope of the complaint
and the 10(b) period. Our modification relates to the
reduction of Kaufman's weekly hours from 25 to 20.5
in October 1973. We find the evidence insufficient to
prove that this reduction was part of or connected
with the "drastic" reduction of Kaufman's hours in
February 1974.
Kaufman was a part-time instructor. It is undisput-
ed that the hours of part-time instructors were
changed with some frequency in response to changes
in the need for their services. In October 1973, the
total number of instructor-hours scheduled for the
Douglaston spa was reduced by almost 25, and the
part-time instructors absorbed all of this reduction.
On October 5, there were six part-timers. One, who
had been scheduled to work 3-1/2 hours but had
actually not worked for several weeks, left. Of the
five remaining part-timers the hours of two in
addition to Kaufman were reduced. The reduction of
Kaufman's hours was proportionately less than the
reduction of the others. The new schedules remained
in effect for about 2 months, at which time some
schedule changes coincided with changes in person-
nel. The comparison of Kaufman's treatment to that
of his coworkers and the stability of the schedules for
a respectable period thereafter convince us that the
General Counsel has not sustained the burden of
proving that this reduction was connected with a
union-related "vendetta" referred to by Respon-
dent's manager, Karpf, in June 1974.
The foregoing pattern of reductions in hours is in
sharp contrast to the changes that occurred in
February 1974 which, as we have found, were
discriminatory in their effect on Kaufman. A total
temporary reduction of instructor-hours again took
5 The reduction of Matinale 's hours was not alleged as a violation of the
Act, and we do not impute to Respondent knowledge that he signed a union
card . The fact that Matinale 's hours were simultaneously reduced for
reasons not prohibited by the Act, however, is not, as Respondent suggests,
sufficient to rebut the evidence that Kaufman's reduction was discriminato-
rily motivated. , I
place, but this time, while the hours of Kaufman and
his friend Matinale were reduced sharply, the hours
of two new part-timers gradually increased and
continued to rise in March while Kaufman's and
Matinale's stayed the same.5 The Administrative
Law Judge may have misconstrued the contention of
Respondent's witness Wolf that the hours of Kauf-
man and Matinale had to be cut because the spa was
overstaffed and Respondent wanted full-time in-
structor Tausek to retain the number of hours he had
been working. Therefore we do not rely, in rejecting
Wolf's contention, on the fact that Tausek's hours
were not increased. We do rely on the fact that,
unlike in October 1973, in February 1974 there was
no broad reduction of hours and no stable new
schedule of hours to corroborate the business
justification offered by Respondent. As for the
contention that Kaufman was selected for reduction
because he was not performing properly, we would
only add to the Administrative Law Judge's analysis
that when Supervisor Wolf communicated his com-
plaints about Kaufman in writing he did not mention
any specific neglect of employment responsibilities,
but only his subjective feeling that his own job would
be easier if Kaufman were transferred because Wolf
thought Kaufman resented taking orders from Wolf,
his close friend and former coworker. Nothing in
Wolf's memorandum suggested that Kaufman had
become an unsatisfactory employee or that the value
of his services, save in his relationship to Wolf, had
been affected. Although Respondent had previously
considered transferring Kaufman because, as a very
popular instructor, he might help business at another
spa, Respondent this time rejected, without any
explanation in the record, the option of a voluntary
transfer to solve its' alleged problem with Kaufman.
Like Anderson, Kaufman had been a highly regard-
ed employee, and in addition had satisfactorily
performed for some time at almost full-time status.
As with Anderson, the credited evidence shows that
nothing about Kaufman changed substantially ex-
cept for his prominence in the union campaign and
his testimony before this Boards In light of the
foregoing, the Administrative Law Judge's conclu-
sion that the reduction of Kaufman's hours in
February 1974 was drastic and discriminatory is well
founded.
6 Cpntrary to the testimony of Respondent's witness Wolf, the action of
incoming Manager Karpf in restoring some of Kaufman's hours and classes
in and after June 1974 was manifestly not because Kaufman 's attitude
improved, but because Karpf, based on his understanding of the
background, decided it was in the interest of the business to treat him
Impartially.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Jack LaLanne
Management Corp., New York, New York, its
officers , agents, successors , and assigns , shall take the
action set forth in the said recommended Order.7
MEMBER KENNEDY, concurring:
I concur in the result.
r In ordering Respondent to cease and desist from unlawfully discrmu-
nating against employees, we intend, with particular reference to employees
Anderson and Kaufman, that their hours and assignments be restored to
what they would have been in the absence of Respondent's discriminatory
actions. As the instant unfair labor practices are related to others the Board
found were committed by Respondent in an earlier proceeding involving
more than one spa, we find the order to post the notice at all spas
warranted.
DECISION
ABRAHAM H. MALLER, Administrative Law Judge: On
March 25, 1974, Paulette Anderson filed a charge against
Jack LaLanne Management Corp., herein called the
Respondent. Upon said charge, the Regional Director for
Region 29 of the National Labor Relations Board, herein
called the Board, on May 24, issued on behalf of the
General Counsel a complaint against the Respondent.
Briefly, the complaint alleged that since on or about
December 16, 1973, the Respondent assigned employees
Anderson and Debra, Caron more arduous and less
agreeable job tasks; that since on or about January 1, 1974,
Respondent assigned employee Richard Kaufman to less
agreeable job tasks; that since on or about January 1, 1974,
Respondent provided Anderson and Caron with less
employment than they had previously received and with
less employment than they normally would have received;
that since on or about October 15, 1973, January 1, 1974,
and March 1, 1974, Respondent provided employee
Kaufman with less employment than he previously had
received and with less employment than he normally
would have received; that on or about March 25, 1974,
Respondent discharged Anderson; that the Respondent
committed the foregoing acts because said employees had
joined and assisted Local 966 and engaged in other
concerted activity for the purpose of collective bargaining
and mutual aid and protection and because they gave
testimony under the Act, in violation of Section 8(a)(1), (3),
and (4) of the National Labor Relations Act, as amended
(29 U.S.C., Sec. 151, et seq.), herein called the Act. In its
duly filed answer, the Respondent denied any violations of
the Act.
On June 11, 1974, the Respondent filed a motion for a
bill of particulars. On June 17, Administrative Law Judge
Arthur Leff held a prehearing conference in which the
i The Respondent has filed a motion to correct the record in certain
particulars. No opposition to the motion has been received. Upon
General Counsel was directed to furnish the Respondent
with certain particulars, and certain requests of the
Respondent were denied. On July 3, the General Counsel
filed a reply to the motion for a bill of particulars in which
he furnished the Respondent with certain particulars, and
on July 8 and 9 the General Counsel filed an amendment
to reply and a second amendment to reply, respectively, in
both of which he furnished additional particulars to the
Respondent.
Pursuant to notice, a hearing was held before me at
Brooklyn, New York, on July 16 through July 19 and
August 13 through August 19, 1974. All parties were
present at the hearing and were afforded full opportunity
to be heard and to introduce relevant evidence. At the
outset of the hearing, pursuant to prior notice of intention
to amend complaint, the General Counsel moved for leave
to amend the complaint to allege that on or about
December 17, 1973, Respondent attempted to require
employee Caron to admit in writing to an infraction of the
Respondent's rules, when in fact no such infraction took
place; and to allege further that on or about December 5
and 12, 1973, the Respondent instructed its employees not
to associate with and prevented them from associating with
employees Caron and Anderson. Determining that the
Respondent would not be prejudiced thereby, I granted the
motion over the objection of the Respondent. Later, the
General Counsel moved to amplify the latter allegation,
and again I granted the motion over the objection of the
Respondent. A subsequent motion by the General Counsel
later in the hearing to further amend the complaint was
denied by me. At the conclusion of the hearing, the parties
were afforded an opportunity to file briefs with me.
Lengthy briefs were filed by both parties on or before
October 18, 1974. Upon consideration of the entire record 1
and the briefs, and upon my observation of each of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under, and existing by virtue
of, the laws of the State of New York. At all times material
herein, Respondent has maintained its principal office and
place of business at 245-24 Horace Harding Expressway,
Douglaston, in the city and State of New York, herein
called the Douglaston Spa, and various other places of
business in the States of New York and New Jersey, where
it is, and has been at all times material herein, continuously
engaged in the operation of health spas which provide to
the general public, physical fitness, health and recreation
services and related services. During the year preceding the
filing of the complaint, which period is representative of its
annual operations generally, Respondent, in the course
and conduct of its health spa operations, derived gross
revenues from the sale of memberships in its various spas
in excess of $500,000. During said period, which period is
consideration thereof, it is hereby ordered that the motion be and it is
hereby granted and that the record be corrected as requested.
JACK LALANNE MANAGEMENT CORP. 903
representative of its annual operations generally , Respon-
dent, in the course and conduct of its business , purchased
and caused to be transported and delivered to its places of
business , equipment and supplies for its gymnasiums, and
other goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of $50,000 were
transported and delivered to its places of business in
interstate commerce directly from states of the United
States other than the state in which it is located.
Accordingly, I find and conclude that the Respondent is,
and has been at all times material herein , an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that it will effectuate the policies
of the Board to assert jurisdiction here.
II. THE LABOR ORGANIZATION INVOLVED
Local 966, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein referred to as the Union, is and has been at all times
material herein a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ISSUES
1. Whether the Respondent instructed its employees
not to associate with Anderson and Caron because of their
union activities and because they had testified against the
Respondent , in violation of Section 8(a)(1), (3), and (4) of
the Act.
2. Whether the Respondent attempted to require Caron
to admit in writing to an infraction of its rules , when no
infraction had occurred , because she had been involved in
union activities and because she had testified against the
Respondent , in violation of Section 8(a)(1), (3), and (4) of
the Act.
3. Whether the Respondent assigned more arduous
duties to Anderson and Caron, because of their union
activities and because they had testified against the
Respondent , in violation of Section 8(a)(l), (3), and (4) of
the Act.
4. Whether the Respondent had reduced Anderson's
and Caron's hours, because of their union activities and
because they had testified against the Respondent, in
violation of Section 8(a)(l), (3 ), and (4) of the Act.
5. Whether the Respondent discriminatorily discharged
Anderson in violation of Section 8(a)(1), (3), and (4) of the
Act.
6. Whether the Respondent discriminatorily reduced
Kaufman's hours and eliminated his calisthenic classes, in
violation of Section 8(a)(1), (3 ), and (4) of the Act.
7. Whether certain allegations in the complaint, as
amended, exceeded the scope of the allegations contained
in the charge , and, if so, whether they are barred by the
provisions of Section 10(b) of the Act.
IV. ALLEGED UNFAIR LABOR PRACTICES
A. Background
As indicated above , Respondent operates health spa
clubs (commonly referred to as spas or gyms) in the New
York metropolitan area . At the time the events detailed
herein took place , there were 10 such clubs . There are two
clubs in Brooklyn (Kings Highway and Flatbush), in
Queens (Douglaston and Lefrak City), one on Long Island
(Woodmere), one in Fort Lee, New Jersey (Fort Lee), and
five in Manhattan (Executive, Madison, 86th Street and
Biltmore). The events in question in this case involved,
primarily, the Douglaston spa which is also known as the
Little Neck spa.
Respondent operates its business by selling memberships
to the general public. When a member joins , a program
card is made out for him, prescribing a program of
exercises to accomplish the member's objective, e.g.
reducing. Members have the privilege of appearing at the
spa for workouts , individualized instruction , and calisthen-
ic classes . Originally, at the Douglaston spa, there were
hours for male members on Tuesdays and Thursdays, from
10 a.m. to 10 p.m., on Saturdays from 9 a .m. to 6 p.m., and
on Sundays from 9 a .m. to 1 p .m. Female members could
use the spa on Mondays , Wednesdays, and Fridays from
10 a.m . to 10 p.m. and on Sundays from 1 to 5 p .m. Later,
female members were given the privilege of attending
calisthenic classes on Tuesdays and Thursdays. When a
member appears at the spa for individualized instruction,
his card is pulled from the files and given to an instructor
or instructress who observes him while he is exercising and
corrects him if he is not exercising properly. Accordingly,
instructors and instructresses are usually given several
cards, depending on the number of members in the gym
and are assigned to observe and correct the members.
Respondent employs full- and part-time instructors and
instructresses . All'are paid on a hourly basis . At each spa
there is a manager, floor managers, and assistant floor
managers . Above them in Respondent's hierarchy in
ascending importance there are area supervisors , assistant
service supervisors, and service supervisors . Respondent
concedes that all of the foregoing, except assistant floor
managers , are supervisors within the meaning of the Act.
For convenience , such supervisors are sometimes referred
to herein by the title "Supervisor," rather than by their
specific job title.
The Union began its campaign to organize Respondent's
employees at its various clubs in or around early June
1973. The Douglaston or Little Neck spa was the first
location where the Union engaged in organizational
activities . Kaufman, Anderson, and Caron were among the
first of the employees employed at the Douglaston spa to
sign cards for the Union . Kaufman was the spearhead of
the Union movement. He campaigned for the Union and
called Respondent's employees and visited them at their
places of work in an attempt to unionize the employees. In
addition to signing a card for the Union, Anderson assisted
the Union by making the telephone calls to employees on
behalf of the Union. In these calls, Anderson identified
herself and encouraged the employees to vote in the
election.
In June 1973 , the Union filed a petition under Section
9(c) of the Act. At the representation hearing, Kaufman sat
beside and assisted the Union's attorney . After the hearing,
the Regional Director for Region 29 directed an election
which was held among the eligible employees at the
Respondent's 10 locations on December 12 and 13, 1973.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the election, Kaufman and Anderson acted as observers
for the Union on both days. Caron acted as an observer for
the Union at two locations, but only on the first day of the
voting. The majority of the employees voted against union
representation.
After the commencement of the Union's organizational
campaign and prior to the election, charges were filed by
the Union against the Respondent. A consolidated
complaint was issued, and the case was heard by
Administrative Law Judge Almira Stevenson on November
5 and 6, 1973, and February 5 and 6, 1974. In a decision
issued April 25, 1974, Judge Stevenson found that the
Respondent violated Section 8(a)(1) of the Act by
threatening on various occasions to retaliate against. its
employees in regard to their working conditions if they
decided to bring a union in; unlawfully interrogated its
employees about their union sentiments; and withdrew the
privilege that,had been extended to male employees to use
the spa facilities for workouts on their off hours, for the
purpose of discouraging their union activities. Judge
Stevenson recommended dismissal of all other allegations
in the complaint. No exceptions were filed to the decision
which was adoptedpro forma by the Board on June-3, 1974.
During the course of the unfair labor practice hearing,
Kaufman, Anderson, and Caron, among others, were
called on to testify as witnesses on behalf of the General
Counsel. They testified on the first day of the hearing in
the presence of Respondent's president, Harry Schwartz,
and his wife and female service supervisor, Gabrielle
Schwartz, professionally known, and sometimes referred to
in the record herein, as Gabrielle Schirmer.
Kaufman began working for the Respondent in August
1971 as an instructor. Through most of his employment
with the Respondent, he had worked as a part-time
instructor, although for a short period he also served as a
floor manager. Anderson had been employed by the
Respondent since November or December 1970 as a part-
time instructress . At the time the events herein occurred,
Anderson was the most senior instructress at the Douglas-
ton spa. Caron had been employed by the Respondent as
a part-time instructress since May 1972.
B. Respondent Attempts to Isolate Anderson and
Caron
Ellen Brezenoff, formerly an instructress employed by
the Respondent, testified that in or around mid or ' late
November or early December 1973 (after Anderson and
Caron had testified in the prior proceeding), Assistant
Service Supervisor Anita Katz2 told her that she should
not associate with Anderson and Caron and should keep
the other instructresses from associating with them,
because they were involved with the Union and had bad
attitudes .3 Katz added that, if Brezenoff wanted to keep
her record clean, she would not associate with them.
Brezenoff , informed Anderson and Caron of the above
conversation. Supervisor Katz denied that the foregoing
conversation occurred.
2 As indicated above, it was stipulated that Katz was a supervisor within
the meaning of the Act.
a At that time, Brezenoff was in training for the job of floor manager.
Jacqueline Balalos and Jean Murphy testified to receiv-
ing similar instructions. Balalos and Murphy began
working as instructresses at Douglaston in early January
1974. At the time, there was no floor manager at
Douglaston, and Katz was acting floor manager. Approxi-
mately 2 weeks later, Katz called , a meeting of the
instructresses and announced the appointment of Joan
Holland as floor manager and Dee Arnott as assistant floor
manager. Shortly thereafter, according to both Balalos and
Murphy, Floor Manager Holland and Arnott spoke
privately with them at the Douglaston gym, prior to the
arrival at work of Anderson and Caron. Holland told
Balalos and Murphy that she did not want them to
associate, or to be too friendly, with Anderson and Caron,
since they were "big supporters of the Union and not good
for the Company." Floor Manager Holland added that the
Respondent was doing all it could to get them to leave or
to get rid of them. Floor Manager Holland denied the
above conversation, and Assistant Floor Manager, Arnott
testified that she did not remember Holland's making such
statements.
Appraising the credibility of the various witnesses, I have
determined to credit the testimony of Brezenoff, Balalos,
and Murphy. Brezenoff left the Respondent's employ
voluntarily and had no apparent animus towards the
Respondent .4 The testimony of Balalos and Murphy,
though occurring at a different time and involving different
representatives of the Respondent, lends credence to that
of Brezenoff, as the instructions which the three employees
received were identical. Plainly, the testimony of Brezenoff,
Balalos, and Murphy was not collusive, as Balalos and
Murphy did not know Brezenoff. Brezenoff had left the
Respondent's employ in mid-December 1973, while Bala-
los and Murphy did not enter Respondent's employ until
the following January. On the other hand, I do not credit
the testimony of Katz, Holland, and Arnott, who at the
time of the hearing were still employed by the Respondent.
Respondent attacks the testimony of Balalos and
Murphy, pointing out a discrepancy in their testimony, in
that Balalos testified that Holland gave as the reason for
her instructions that Anderson and Caron - were big
supporters of the Union, while Murphy testified that "it
wasn't stated why they were bad news because we didn't
know anything about the Union." The argument is
unpersuasive. Both witnesses were testifying as to an event
that had occurred some 7 months before they testified, and
it is conceivable that their recollections of what was said on
a matter in which they were not primarily concerned would
differ. If anything, the discrepancy demonstrates that each
of these witnesses was testifying honestly as to her
recollection of the event and they had not gotten together
on their testimony before they appeared at the hearing.
Respondent contends that at the time of the alleged
conversation between Holland and Balalos and Murphy,
Holland was not a supervisor, being at most " in training."
According to the credited testimony of Balalos, Holland
and Arnott were given their badges as floor manager and
The General Counsel does not contend that she was at any time material
herein a supervisor.
n Murphy was discharged. Balalos, left when she was given an ultimatum
to transfer to the job of receptionist, which she did not want to do.
JACK LALANNE MANAGEMENT CORP. 905
assistant floor manager, respectively, between 3 days and a
week after the meeting when Katz announced their
appointment, and they were wearing their badges at the
time of the foregoing conversation. In addition, Holland
was at the time giving the instructresses their assignments,
including clean-up duty and lunch and dinner periods.
Also, on January 23, 1974, Holland signed as "floor
manager" Rolinda Antone's statement as to the latter's no
longer being able to work Friday nights. However, Holland
explained that she was not, in fact, floor manager at that
time and she so signed the document because of a
suggestion that she might be in training for the position. It
seems strange that she would have signed as floor manager,
if she was not, in fact, floor manager. In that event, the
statement would have been signed by Katz, who prior to
Holland's appointment as floor manager was the acting
floor manager, The Respondent offers no explanation as to
why Katz did not sign the statement. In this connection, I
note that Respondent's weekly payroll schedule does not
list Holland as the floor manager until the payroll for the
week ending February 1, 1974. However, I do not consider
this as determinative of the issue, as the increased
compensation to Holland as floor manager could have
been made effective after her assumption of the duties of
the floor manager. In sum, f find and conclude that
Holland was floor manager at the time that she instructed
Balalos and Murphy not to associate with Anderson and
Caron.
Accordingly, I fmd and conclude that Respondent by the
conduct of Supervisors Katz and Holland in directing
other employees not to associate with Anderson and Caron
violated Section 8(a)(1), (3), and (4) of the Apt.
C. Respondent Requires Carob to Admit in Writing
to an Infraction of its Rules
As previously noted, the election herein occurred on
December 12 and 13, 1973. Caron acted as an observer on
the first day. In compliance with the Respondent's rules
and regulations , Caron telephoned the Douglaston spa and
asked to speak with Assistant Service Supervisor Katz to
tell her that she would not be at work that day because she
was acting as an observer for the -Union. According to
Caron's credited testimony, she called about three times,
but was told by the receptionist that she could 'not find
Katz. Finally, she asked to speak to Brenzenoff. She told
Brezenoff to tell Katz that she would not be in that evening
because she was observing the election at the Fort Lee and
Woodmere spas.
Approximately a week later, Supervisor Katz summoned
Caron into her office and handed her a warning notice and
directed Caron to sign it .5 Caron refused, as the warning
notice stated , inter alia that she had failed to call in on
December 12 to notify the Respondent that she would not
be at work. Subsequently, according to the credited
testimony of Brezenoff, Supervisor Katz instructed her
that, if Caron asked, Brezenoff should say that she,
Brezenoff, did not inform her, Katz, that Caron called in to
notify the Respondent that she would not be at work on
5 Caron erroneously fixed the date of her conversation with Katz as
December 17 . However, Respondent's records show that Caron did not
work on that date . Supervisor Katz fixed the date of the conversation as
that day. Later, Brezenoff related this incident to Caron
and Anderson.
Katz testified that she did not, in fact, receive any
message from Brezenoff concerning Caron's being absent
on December 12. She also denied instructing Brezenoff to
he about receiving Caron's telephone call. As I have
previously noted, Brezenoff was a disinterested witness
who would have no reason to testify falsely or to invent the
incidents concerning which she testified, and I credit her
testimony.
Accordingly, I find and conclude that by the foregoing
conduct of Supervisor Katz the Respondent violated
Section 8(a)(1), (3), and (4) of the Act.
D. The Assignment of More Arduous Duties to
Anderson and Caron
Following the election on December 12 and 13, and
continuing until the end of December or into January,6
Anderson and Caron were assigned more arduous tasks in
cleaning the gym, in working with individual members, and
in conducting calisthenic classes . In addition, Anderson
was assigned to teach consecutive calisthenic classes, a
duty which admittedly was arduous. Anderson and Caron
jointly confronted Supervisor Katz and complained about
this. Katz responded that she did not know what they were
talking about, that nothing had changed since the election.
Nevertheless, following this confrontation, the working
conditions of Anderson and Caron returned to normal.
1. Cleaning duties
It is the Respondent's practice to have the spa cleaned
approximately 1 hour before closing each day. This work is
performed by the instructresses, both full and part-time. It
consists of vacuuming the gym and the ballet room,
cleaning the mirrors, dusting the chrome on the equipment,
wiping down the leather parts of the equipment, mopping
the tiles around the gym area, dusting the rollers, and
replacing the weights to their original position. Normally,
the work was apportioned among the instructresses.
Following the election, according to the credited testimo-
ny of Brezenoff, Supervisor Katz instructed her "to make
sure that Debbie Caron and Paulette Anderson did most of
the work." " As a result Anderson and Caron were given
more cleaning work than they would normally have
received.
On Sunday, December 16, Anderson returned to work
the `first time after the election. At about 4 p.m., according
to Anderson, Supervisor Katz instructed her to vacuum the
ballet room. When Anderson completed that task, Supervi-
sor Katz instructed her to vacuum the main gym area.
Wheii that was finished, Supervisor Katz instructed
Anderson to pull the equipment on the walls from off the
tiles to the carpeting and to mop the tile area. According to
Aniderson, pulling the rollers away from the wall was heavy
work, and she had never been directed to do that before.
Following this, Supervisor Katz instructed Anderson to
clean the chrome. While this was going on, two other
December 19 , when Caron did work.
6 According to Anderson, this condition continued for approximately 2
weeks. Caron, however, testified that it continuedinto January.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instructresses were engaged in filing members ' cards.
Another instructress, Jankowski, was not engaged in
cleaning duties on that day and offered to assist Anderson.
Anderson told her that she should do so only if she were
instructed to that effect by Supervisor Katz.
Prior to the election, Anderson frequently taught the last
calisthenic class which began at 8 :30 p.m. and finished
about 5 minutes before 9. As she was paid to work until 9
o'clock , Anderson spent the remaining time performing
cleaning duties . However, after the election , she was not
assigned to 8:30 calisthenic class which instead was
assigned to instructress Rolinda Antone, but was directed
to begin cleaning at 8:30 p.m.
Katz categorically denied assigning extra cleaning duties
to Anderson and Caron. To support her testimony,
Respondent also called Holland and Arnott who both
testified that they did not observe Anderson or Caron
getting more cleanup duties than anyone else.
In resolving the conflict in the testimony, I have
determined to credit the testimony of Anderson and
Caron, which is corroborated by the credited testimony of
Brezenoff. In addition , the credibility of Amott was
severely challenged by the rebuttal testimony of Antone
who testified that on July 29, her first day at work after she
had testified in the instant proceeding on July 18, she had a
conversation with Arnott and related to her and others
then present what had happened in the proceeding. When
Antone told them about the testimony regarding Ander-
son's getting extra cleaning duties , Arnott, according to
Antone, stated that she remembered being called into
Katz' office with Holland , and both were told to give
Anderson and Caron extra cleaning chores because the
Respondent wanted to get rid of them. According to
Antone , Arnott added that the Respondent wanted her to
go to court, but she did not want to "because she did not
want to have to lie for them." When Arnott testified as a
witness during the Respondent 's case in chief, she admitted
having had a conversation with Antone on July 29, but
denied that she asked Antone to tell her what had
happened at the proceeding. She also denied making the
statements attributed to her by Antone . Later in the
proceeding, Arnott' testified on rebuttal for the Respon-
dent. On this occasion, she admitted that she had asked
Anton what had happened during the proceeding and,
when told by Antone, said that if she were called as a
witness, she wouldn 't want to go because she did not want
to get involved . Antone impressed me as an honest witness
and I credit her testimony. Conversely, Arnott's admissions
during her testimony on rebuttal effectively negate her
earlier testimony and support Antone's testimony regard-
ing Arnott's statements to her . In sum, I do not credit
Arnott's testimony ; nor do I credit the testimony of Katz
and Holland.
2. Individual instruction
As previously noted, members frequently come to the
spa to work out individually according to a prescribed
program of exercise to accomplish their objectives. When a
member appears at the spa, her card is pulled from the files
and given to an instructress who observes her while she is
exercising and corrects her if she is not exercising properly.
Accordingly , instructresses are usually given several cards,
depending on the number of members in the gym and are
assigned to observe and correct the members.
As noted earlier, Brezenoff was directed by Supervisor
Katz to make sure that Anderson and Caron did most of
the work . This also included assigning them to work with
individual members and "if there was an overflow then I
would give them to the other instructresses ." Brezenoff
testified that she followed those instructions.
Anderson testified credibly that on one occasion,
Sunday, December 16, at one point in the day she had as
many as 20 cards in her hand . At that time there were three
other instructresses on duty . One was working at the desk,
while the other two were on the gym floor , each of the
latter working with only two or three members.
3. The assignment of additional calisthenic classes
to Anderson and Caron
Prior to the election, the part-time instructresses were
assigned to conduct two calisthenic classes per evening. On
occasion, as when an instructress failed to show up for
work, the other instructresses would conduct additional
classes . Following the election, however, Anderson and
Caron were assigned as many as four classes per evening,
while other instructresses then on duty each conducted
only one class. On one occasion , according to the credited
testimony of instructress Rolinda Antone, she observed
that Anderson had been assigned three or four classes,
while she had only one , and went to the desk and spoke to
Holland, who was then in training for floor manager, and
volunteered to take one of the classes assigned to
Anderson. She was told that she should take only the one
that was assigned to her.
In addition to being assigned additional calisthenic
classes, Anderson was assigned to conduct consecutive
calisthenic classes, a practice which had never before
obtained at the spa . Supervisor Katz conceded that
running two calisthenic classes in a row would be arduous
"probably because her voice would get very tired. She
would be speaking all the time." " However, Supervisor Katz
denied scheduling any instructress to conduct two classes
in succession . She also denied assigning additional classes
to Anderson and Caron in the latter part of December.
Holland and Arnott both testified that they did not recall
seeing Anderson get consecutive calisthenic classes, or
either Anderson or Caron getting additional classes.
Appraising the conflicting testimony offered on this issue, I
credit the testimony of Anderson and Caron , which is
supported by the testimony of Antone , who at the time she
testified in the General Counsel's case in chief was still
employed by the Respondent.?
Accordingly, I find and conclude that Respondent
violated Section 8(axl), (3), and (4) of the Act by the
assignment to Anderson and Caron of more arduous duties
than those performed by the rest of the staff.
r A few weeks later, Antone testified in the General Counsel's rebuttal,
after her employment with the Respondent terminated.
JACK LALANNE MANAGEMENT CORP. 907
E. The Reduction of Anderson's and Caron's Hours
Part-time instructors and instructresses are paid on an
hourly basis. The record shows that, in January, Ander-
son's hours were reduced, and in February, Caron's hours
were also reduced.8
1. Anderson
Since August 1973, Anderson worked on Thursdays
from 1 to 6 p.m.9 Early in January 1974, Supervisor Katz
informed Anderson that she would no longer be working
on Thursday. Anderson asked why, and Katz told her that
a full-time instructress would be taking over the Thursday
hours. According to Anderson, she asked Katz if she had
any other hours that she could give her because she needed
the hours, but Katz replied in the negative.
The Respondent . contends that the elimination of
Anderson's hours on Thursday was dictated by business
considerations. The General Counsel contends that the
business considerations relied upon by the Respondent
were merely a pretext for further retaliation against
Anderson because of her support of the Union and
testifying against the Respondent in the prior proceeding.
In support of its contention, the Respondent relies upon
the testimony of Supervisor Katz to the following effect:
Thursdays are men's days at Little Neck, and Respondent
has only one instructress there on those days. Her duties on
Thursday were to give calisthenic classes (since women
came in for coed classes), to give prospective customers
tours of the spa, to call inactive members (i.e., members
who had not been to the gym for several weeks), and to
assist the manager.
Just prior to the elimination of Anderson's Thursday
hours, Respondent hired Balalos and Murphy as full-time
instructresses, and both began work on Wednesday,
January 3. Supervisor Katz testified further that coincident
with the hiring of these two full-time instructresses, it was
determined that one of them would be put to work on
Thursdays. The reason for this, she testified, was that the
Respondent felt that a full-time instructress would work
out well on Thursdays, because the Respondent felt that a
full-time instructress is career-oriented, and in this sense,
more devoted to the Company; that the presence of a full-
time instructress is particularly desirable because no female
floor manager is present on Thursdays; that full-time
instructresses are tuned into sales and that "a part-
timer... could never get into anything like that"; that a
part-time instructress, such as Anderson, cannot write out
receipts for membership renewals and take payment,
whereas a full-time instructress gets totally involved in this
kind of thing and, in fact, may go into sales full-time; that
since, on Thursdays, the instructress present does not give
individualized instructions to members on the gym floor,
but spends time acting as a receptionist, speaking with
customers, taking renewals and making appointments, a
full-time instructress was more desirable.
Around this time, Antone had informed the Respondent
that she would be unable to continue working on Friday
nights because of a baby-sitting problem. According to
8 The record shows that subsequently there were other reductions in
hours, but such reductions are not alleged to be violative of the Act.
Supervisor Katz, she told Anderson that the Respondent
had decided to put on a full-time instructor on Thursdays
and explained the reasons why. At the same time, she
offered Anderson the Friday position being vacated by
Antone. According to Supervisor Katz, Anderson said that
she understood, that she was unable to work Fridays on a
steady basis, but would help out occasionally if they
needed someone.
In support of his contention that the reasons advanced
by Supervisor Katz were pretextual, the General Counsel
relies upon the testimony of Anderson, who did not recall
Katz' offering her Friday hours. Also, Balalos, who
replaced Anderson on Thursdays, testified that when she
was hired she was told that her hours would be from 10
a.m. to 10 p.m. on Monday, Wednesday, and Friday, and
from 1 p.m. to 5 p.m. on Sunday. According to Balalos,
Supervisor Katz called her into her office about a week
after she started to work and told her that she needed
someone to work on Thursdays from 1 p.m. to 5 p.m.
Balalos told her that she would have to get the baby-sitter
to rearrange her schedule, which she then did and began to
work on Thursdays as requested.
Supervisor Katz, in turn, contradicted Balalos. She
testified that when Balalos was hired, she was told that her
hours would be from 1 to 5 p.m. on Monday, from 10 a.m.
to 10 p.m. on Wednesday, from 1 to 6 p.m. on Thursday,
and from 3 to 10 p.m. on Friday. However, she explained
that Balalos did not work on Thursday the first week, but
worked from 10 a.m. to 10 p.m. on Wednesday and Friday
in order that she would get 2 full days of experience before
being alone on Thursdays.
The record shows that Balalos worked only two
Thursdays and was replaced by Murphy who was hired on
the same day as Balalos. Murphy worked on Thursdays for
about 2 months, until she left Respondent's employ. She
was then replaced by another full-time instructress.
Although the business considerations advanced by
Supervisor Katz have a surface plausibility, they do not
withstand critical analysis. Anderson was the most senior
instructress employed by the Respondent. There is no
evidence that her performance was other than satisfactory.
To the contrary, Supervisor Katz admitted that Anderson
was "responsible," "cooperative," and "did her job well."
She had been working on Thursdays without 'supervision
since August 1973. It seems in passing strange that for
"business considerations" the Respondent would replace
such an employee with Balalos who had only 2 days'
experience and put the latter into a position where she
would be working without supervision. In light of the
foregoing, I am unable to credit the testimony of
Supervisor Katz.
In view of the foregoing, I find and conclude that, by
reducing Anderson's hours in retaliation for her having
engaged in union activities and having testified against the
Respondent, the Respondent violated Section 8(a)(1), (3),
and (4) of the Act.
9 Anderson also worked on Monday from 5 to 9 p.m., on Wednesday
from 6 to 9 p.m and on Sunday from 1 to 5 p.m.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Caron
Although the General Counsel's reply to motion for a bill
of particulars alleges that Caron's working hours were
reduced by 2 hours a week on or about January 1, 1974, the
record shows that, in fact, Caron's hours were cut in mid-
February. Prior thereto, Caron had been working 8 hours a
week (Monday and Wednesday 5 to 9 p.m.). This was
reduced to 6 hours per week, by eliminating the 5 to 6 p.m.
hour on both days that Caron worked.
Supervisor Katz testified that Caron's hours were
reduced because the Respondent had transferred a full-
time instructress from its Madison gym to Douglaston and
that it was not necessary to have a part-time instructress
begin at 5 p.m. as it "was our slowest time of the day and
we had plenty of cover at that point."
The General Counsel challenges Katz' testimony, citing
the testimony of John Wilton, manager of the Douglaston
spa, to the effect that the busiest time at the spa was from
5:30 to 8 p.m. The General Counsel argues that the
Respondent did not have "plenty of cover at that point,"
because 5 to 6 p.m. would be the dinner hour and during
that period at least one or two of the three full-time
employees would be eating dinner for at least part of that
time and, further, the instructresses were doubling as
receptionists at that time. The argument is speculative.
There is no evidence that any of the instructresses would
be eating dinner between 5 and 6 p.m. In sum, the General
Counsel has produced no evidence to overcome Supervisor
Katz' statement that the Respondent had enough instruc-
tresses between 5 and 6 p.m. without Caron.
The General Counsel also relies on the fact that shortly
before this time, the money which Respondent put into a
fund from a membership promotion campaign was divided
among the instructors and instructresses; that Caron
received only $10 and that Caron inquired of Katz how the
money was divided among the employees, because she
didn't think it was divided fairly. Katz admittedly replied
that if it had been up to her, Caron would not have
received anything. According to Caron, she rejoined that
the contest had nothing to do with the Union. According
to Katz, she repeated that if it were up to her, Caron would
not get anything, "because you have not been working the
way you used to be working." It is noted that it was not
Katz, but Caron, who ascribed the reason for Respondent's
action to Caron's union activity.
The record shows that another incident occurred shortly
before the one just described. According to Holland, she
found Caron sitting on the gym floor in the presence of
customers and asked her to stand up, pointing out that
Katz had left the room for a few minutes and had asked
her to keep an eye on things. According to Holland, Caron
directed an obscene remark to Katz, and Holland related
this to Katz. Caron recalled an incident of this nature, but
explained that she was trying to work a little closer with the
members and stood up and merely said that she could not
see the reason for Holland's statement. It is unnecessary to
determine which version of this incident is correct. The fact
is that Holland did relate the obscene remark to Katz, as
both Holland and Katz testified. Plainly, such an event
could have influenced Katz' attitude toward Caron at the
time of the conversation between Katz and Caron
regarding the division of the contest money. In any event,
while the conversation concerning the division of the
contest money demonstrates a hositility between Supervi-
sor Katz and Caron, there is no direct evidence to connect
the cutting of Caron's hours to her union activity, as the
General Counsel contends. To the contrary, it appears that
Antone's hours were also cut by 2 in the latter part of
February, as were Anderson's. Indeed, as Anderson
admitted, everybody's hours were cut. The General
Counsel does not contend that these other reductions were
violative of the Act. It cannot therefore be concluded that
in this instance Caron was singled out for reductions of
hours because of her activities on behalf of the Union.
I, therefore, recommend that the complaint be dismissed
in this regard.
F. The Discharge of Anderson and Events Leading
Thereto
As indicated above, Anderson was the most senior
instructress at Douglaston. The record demonstrates that
she was a capable and cooperative employee.
Early in February, there arose a need for additional help
at the Woodmere gym. Supervisor Katz called Antone and
asked if she could help out at Woodmere. Antone replied
that she would like to help out, but had a babysitter
problem and could not leave her house early enough to go
to Woodmere. Katz then called Caron. Caron explained
that she could not go to Woodmere because her sister, who
had a job, dropped her off at Little Neck on the way to
work. Katz then called Anderson. Anderson replied that
she had a problem with gas (it was during the gasoline
shortage), but would let her know. On the following
Monday she agreed to go to Woodmere, as she was able to
get gas. Supervisor Gabrielle Schwartz then told Anderson
that due to the gas shortage, the Respondent would give
Anderson $5 per week for her traveling expenses. Ander-
son replied that she hadn't expected that and thanked
her.10 Anderson was originally asked to work at Wood-
mere for 2 weeks. However, she was later informed by
Holland that Supervisor Gabrielle Schwartz wanted her to
work at Woodmere another week. Anderson did so and
then returned to Douglaston.
Around March 12, Supervisor Katz called Antone and
told her that she was going to ask her to work at the
Madison spa, but that she knew it would be impossible for
her do so because she had a child. Katz, however, asked
Antone to work at the Lefrak City spa. Antone replied that
she could not go to Lefrak as she had transportation
problems. Katz apparently accepted Antone's explanation.
After speaking with Antone, Supervisor Katz called
Caron and told her that two part-time employees had to be
transferred out of Douglaston and that she should choose
either Madison or Lefrak City. Caron told Katz that she
could not go to either because she did not have transporta-
tion. Katz suggested that she go by subway. Caron replied
10 Subsequently, the Respondent issued Anderson a check in the amount
of $15 to cover a 3-week period during which Anderson worked at
Woodmere.
JACK LALANNE MANAGEMENT CORP. 909
that as to Madison, it was not worth traveling by train for 6
hours of work a week and that she would not travel there
by train . As for Lefrak, she said that she had no car to get
there . The conversation then ended by Katz' telling Caron
to call her later about her decision . Caron never called
Katz.
Supervisor Katz then called Anderson and told her that
she was giving her "first crack at a new job opportunity
since she had the most seniority," and told her that she
wanted her to work at Madison . Anderson told Katz that
she really could not work there, since she had no car but
was waiting to get one . (Previously, Anderson had been
using a borrowed car.) Anderson added that her brother,
who was a member of the Douglaston spa was driving her
to and from work . Katz rejoined that the car was not
necessary and she would not expect her to drive to
Madison as there is no parking , and "it would be too much
of a hassle ." Anderson added that it would mean she
would have to take the subway and she could not do that
because it would mean that she would have to travel home
on the subway around 10 p .m., that only local trains ran at
that hour and that they passed through a number of bad
neighborhoods , and that she was afraid to take that kind of
risk. Katz then told Anderson that she was depending
upon her to go. Anderson replied that she had just returned
from working at Woodmere and that , Wit was necessary to
transfer people from Douglaston to other gyms on a
temporary basis , it would be fairer to take turns and that
she should please try to get another part-timer or a full-
timer . Katz then told her that Caron and Antone could not
go to Madison . Anderson told Katz that she could not go
either and that her reason was a matter of personal safety,
that it is "dangerous coming home that late on the train."
After Anderson had refused to go to Madison , Supervi-
sor Katz asked her to work at Lefrak for a temporary
period . Anderson repeated that she had no car, that her
brother was driving ' hqr back and forth to Douglaston and
to school; that she had purchased a car which was to be
delivered in a week or two, and as soon as she got the car
she would let her know and would be able to help her out,
but at the moment it was an extremely bad time.
About a week later, Katz again called Antone and told
her that she really needed someone at Lefrak . Antone
agreed to work there on a temporary basis. After working
at Lefrak for 1 week, ,Atone told Katz that she could not
work at Lefrak any longer and thereupon returned to
Douglaston . Prior to' going to Lefrak in March 1974,
Antone had never been asked to work at any of the
Respondent's locations other than at Douglaston and had
never done so.
As of March 22, the staffing problem at Madison had
not eased, and Supervisor Katz called the floor managers
of various spas to see if they could get her some help. She
also called Antone, Caron, and Anderson. Katz first called
Antone and asked if she could help out. Anton replied
that she could not because she had a babysitter problem.
Katz then called Caron, and Caron told her that she could
not help out because she still had a problem with her
sister's car . Katz then called Anderson and told her that
she had to go to Madison. Anderson replied that she could
not do so because she was afraid to travel on the subway
late at night . She told Katz of an incident involving her
cousin who had been molested and assaulted on the
subway in the Bronx about 2 -weeks earlier. She added that
she did not think it was worth risking ` her life for the
number of hours she was working . Supervisor Katz replied
that, if she could not help out the Respondent, she was not
needed as an employee , that there was an excess of workers
at Douglaston and that her services were no longer needed
there. Anderson responded that she could not understand
Katz' position. She reminded Katz she had been working
for the Company 3-1/2 years , that she was the most senior
employee and that she had imposed on a friend to lend her
his car in order that she could assist the Respondent by
working at Woodmere . Anderson reiterated that the only
reason she was refusing to go to Madison was because of
the safety factor and that she was not trying to be
belligerent or was desirous of giving the Respondent a hard
time . She added that she thought Katz' request was
unreasonable since it meant traveling home at 10 p.m. on
the subway by herself. Anderson asked Katz why she was
being told that she would be fired if she refused to go to
Madison, when Caron and Antone had also refused to go
and were not threatened with discharge . Finally, Anderson
told Katz that if "you think you're within you rights. . . to
fire me for not going to Madison. . . then do what you
have to because afterwards my next step is going to be to
go to the Labor Board and find out what my rights are."
Katz responded that she would get back to Anderson later
and the conversation ended.
Two days later, on Sunday , March 24th, Supervisor Katz
called Anderson at her home and told her that she had a
choice : either to go to Madison or she would be given a
leave of absence . Anderson replied that she would not go
to Madison ; that she felt it was an unreasonable request
and that she was not requesting a leave of absence. Katz
said, "Well, that means you' are quitting?" Anderson
replied that she was not quitting and she still wanted to
work at Douglaston. Katz insisted that Anderson would
have to take a leave of absence . Anderson replied that she
knew that a leave of absence was something that an
employee requested of an employer and not something that
an employer can give an employee without the latter's
consent. She added that if she took a leave of absence,
there would be no hope of her getting her job back. Katz
then repeated that Anderson must be quitting, but
Anderson -contended that she was not quitting or asking for
a leave of absence . Rather, Anderson said, either you are
firing me or I am still employed by you.
Following this conversation,'Anderson went to work at
Douglaston . About an hour after she had begun, Katz
called Anderson and told her that it was the last day of her
3-days notice , in reference to the Respondent 's policy to
give its employees 3-days notice before effectuating any
permanent changes . Katz also said that ' starting tomorrow
Anderson was "not needed with the company." Anderson
asked if that meant she was fired or laid off, as she was not
quitting or asking for a leave of absence . Katz would only
say that ' as of tomorrow she would not be with the
Company and the conversation ended.
On the following day, March 25, Anderson called at the
Board's Regional Office and spoke with an attorney. Later
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that day, she filed the instant charges against the
Respondent. After leaving the Board's Regional Office,
Anderson reported for work at or about 6:15 p.m. When
she entered the premises, Anderson was told by Supervisor
Holland not to sign in, but to sit in the lobby as John
Wilton, manager of the Douglaston spa, wanted to speak
with her. Wilton was busy with customers and was unable
to see Anderson until 8 p.m. He told Anderson that he had
been instructed to fire her. Anderson asked Wilton to sign
a paper which she had prepared, acknowledging that he
had terminated her, and Wilton did so.1'
It is clear from the foregoing, and I find and conclude,
that Respondent treated Anderson disparately when it
insisted that she transfer to Madison on penalty of
discharge if she refused. She was the only employee given
such an ultimatum. The others who refused to transfer
were not threatened with discharge if they refused. By
discharging `her under the circumstances, the Respondent
singled her out for retaliation because of her known union
activities and because of her testifying against the
Respondent, in violation of Section 8(axl), (3), and (4) of
the Act.
G. The Reduction of Kaufman's Hours
As noted above, Richard Kaufman worked for the
Respondent since August 1971. He was a part-time, hourly
paid instructor. He was active in the Union's campaign
and testified against the Respondent's interests both in the
representation case and in the earlier unfair labor practice
proceeding.
Prior to the commencement of the Union's organization-
al campaign in June 1973, Kaufman was scheduled to work
25 hours a week. For the week ending October 19, 1973,
Kaufman's scheduled hours were reduced from 25 to,
20-1/2. For the weekending February 15,1974, his scheduled
hours were again changed from 20-1/2 to 16-1/2. The
following week, his scheduled hours were reduced to 9-1/2
per week. Since then, Kaufman for the most part did not
work more than 9-1/2 hours per-week until June 1974,
after his conversation with Manager Dennis Karpf.
Around the third week of June 1974, Karpf replaced
Wilton as the manager of the Douglaston spa. On or about
June 18, Manager Karpf spoke to Kaufman. Karpf told
Kaufman that he looked forward to working with him as
he was a great instructor. Shortly thereafter, while
Kaufman was working in the gym, Karpf came over to him
and asked him what the Respondent had done to him
besides cutting his hours and if the Respondent had been
harassing him "since the Union business." Kaufman
replied that they had cut his hours and eliminated his
calisthenic classes.
Two days later, according to Kaufman, he was working
out at the Douglaston gym. Karpf came over to him and
11 It is evident from the record and from Respondent's opening
statement that Anderson was discharged for refusing to transfer to
Madison. I' do not credit the contrary testimony of Gabrielle Schwartz,
supervisor of all Respondent's instructresses. On cross-examination, she
parried questions and answered evasively . She even denied that Anderson
had been fired, despite the fact that this was admitted in Respondent's
answer. Finally, on redirect examination by Respondent 's counsel, she
blandly admitted that Anderson was fired for refusing to transfer to
Madison.
said: "Let us forget about this Union vendetta. . . from
now on if we need you in an emergency situation we'll give
you more hours." Karpf added that he had cleared it or
would clear it with Area Supervisor Flickstein and that, if
President Schwartz found out about it, he and Flickstein
would take the responsibility. On several occasions
thereafter, Kaufman was requested to, and did, work more
hours than he had before that time.
About the same time as Manager Karpf spoke with
Kaufman, he also spoke with employee Philip Matinale.12
Karpf asked Matinale to let him know if there were any
problems, but stated that- "there's only one thing I can't
help you with, and that's hours, giving you extra hours."
Later that evening, according to Matinale, Karpf went over
to Matinale and told him: "Let's forget this vendetta b-
s-. I need you to work tomorrow night. Can you do it?`
Matinale replied in the affirmative, and Karpf then asked
him if he could work all day on Sunday instead of half a
day. Matinale agreed to do so.
Manager Karpf, while admitting that he had the
foregoing conversations with Kaufman and Matinale,
testified that it was Kaufman and Matinale who referred to
the "vendetta" in their separate conversations with him;
that he replied that he had no vendetta against anybody
and, that as far as he was concerned, the "slate is clean."
Karpf admitted that prior to coming to Douglaston, he was
well aware of Kaufman's union activities, that it was
common knowledge.
I credit the testimony of Kaufman and Matinale who, at
the time he testified, was still employed by the Respondent.
Prior to the commencement of the Union's organization-
al campaign, Kaufman had been teaching seven coed
calisthenic classes a week. According to Kaufman's
uncontradicted testimony, in about February 1973, mem-
bers of the Douglaston spa had informed its manager,
Barry Greenfield that they enjoyed Kaufman' s classes and
wanted more of them. At that time Kaufman was teaching
four calisthenic classes a week, and Greenfield thereupon
increased the number to seven a week.
Kaufman was qualified to teach calisthenic classes and
enjoyed giving them, a fact which was known to Supervisor
Wolf. In fact, Service Supervisor Bostinto was so impressed
with the manner in which Kaufman taught the calisthenic
classes that he wanted to transfer Kaufman to the Lefrak
spa in June 1973, because he felt that Kaufman, by
teaching calisthenic classes there, would increase the
membership at that spa. Despite Respondent's high
evaluation of the manner in which Kaufman taught
calisthenic classes, three of his classes were transferred to
female instructresses in around July 1973.
Subsequently, Supervisor Wolf told Kaufman that he
would not be teaching any more, calisthenic classes and
12 Matmale signed a union card in the presence of Supervisor Bieler in
June 1973. He did not testify in either of the prior proceedings. In the week
ending January 4, 1974, Matinale's hours were reduced from 22 to 17-1/2,
and in the week ending February 22, his hours were further reduced to 8-1/2
per-week . Also, in late February, when Matmale requested additional hours,
he was told by Supervisor Ramos that he had orders not to give hun any
more. After his conversation with Manager Karpf, Matinale did work
additional hours. The reduction of Matinale's hours was not alleged to be a
violation of the Act.
JACK LALANNE MANAGEMENT CORP.
that Service Supervisor Bostinto wanted his classes to be
taught by Floor Manager Ramos.13 Ramos taught these
classes for an indeterminate period, and then the classes
were successively taught by six other employees between
that time and the date of the hearing herein.
That Kaufman's calisthenic classes were completely
eliminated is not disputed. The record shows that, despite
inconvenience to itself, the Respondent was adamant in
refusing to permit Kaufman to teach any classes. Thus, in
late February 1974, although Respondent had nobody
available to teach a calisthenic class, it refused to permit
Kaufman to teach a class, but arranged for an employee
from Lefrak to travel to Douglaston to give the class.
Shortly thereafter, Supervisor Pete Trainor found himself
without his scheduled calisthenic class teacher. He first
asked all the instructors present, except Kaufman, to teach
the class, but they refused. Trainor then asked Kaufman to
give the class, and he did so. Later that evening, Manager
Wilton told Kaufman: "Kaufman, please, whatever you do
don't give any classes when I am here because I don't want
to lose my job." Kaufman's testimony in this regard was
corroborated by Matinale and, in substantial degree, by
Manager Wilton, himself. Wilton testified that the remark
was made somewhat facetiously, but admitted that Wolf
and Bostinto had told him not go give Kaufman any
calisthenic classes.
After the elimination of Kaufman's calisthenic classes, a
petition was circulated by members of the Douglaston spa
asking the Respondent to return Kaufman to the teaching
of calisthenic classes . The members who started the
petition asked Kaufman for President Schwartz' home
address, as they wanted to be certain that he received the
petition. Kaufman did not know President Schwartz' home
address and he inquired unsuccessfully around the spa for
Schwartz' address.
Shortly thereafter, Kaufman was called into President
Schwartz' office. President Schwartz inquired why Kauf-
man wanted his home address, and Kaufman explained.
Schwartz replied that if he had received a petition, it would
be grounds to fire Kaufman and he did not want to do
that. Schwartz added that the members should not tell
management what to do, and instructed Kaufman that, if
someone asked why his calisthenic classes were taken
away, he should say that he was needed in the gym and
should not incite the members. According to Kaufman,
Schwartz then stated that what had happened last year was
over, that he might never forget it, but that if Kaufman did
his job he did not have to worry. Schwartz added that he
and Gabrielle Schwartz were disappointed with Anderson
and with Kaufman when they testified.
With regard to reduction of Kaufman's hours in October
1973, Service Supervisor Bostinto and President Schwartz
testified that they noticed that they were overstaffed,
is Kaufman originally placed this event as occurring 2 weeks after the
election. However, later in his testimony he stated that this occurred when
his hours were cut to 16 -1/2 per week. The record shows that, as previously
indicated, the reduction in Kaufman's hours to 16-1/2 per week occurred in
February 1974. According to Supervisor Wolf, Kaufman's classes were not
eliminated all at once, but were phased out over a period of time , and were
finally eliminated around the end of February or the beginning of March
1974.
14 As to this warning notice , Kaufman testified without contradiction
911
especially with regard to coverage in the auxiliary gym.
Bostinto testified that he then told Floor Manager Bieler:
"Frank, we got to cut out so many hours. I want you to
work out a schedule so everybody can be evened out."
Respondent's records, however, reveal that, in fact, there
was no evening out. All that occurred was that Kaufman's
hours were cut and Matinale's hours were reduced the
following week, while employee Isgro's hours which
previously had been cut to 8_ were increased to 12 per week.
As to the reduction of Kaufman's hours in February
1974 from 20-1/2 to 9-1/2 per week, Supervisor Wolf
testified that Kaufman's hours were so reduced, as were
Matinale's from 17-1/2 to 8-1/2 per week, because
Douglaston was overstaffed, especially during some of the
hours that full-time instructor Glenn Tausek was working.
Wolf testified that Tausek was more valuable than any
part-time instructors and that Respondent wanted to keep
Tausek as a full-time instructor, so the hours that had been
taken from Tausek had to be replaced; that in order to give
Tausek hours, it had to be taken from the part-time
instructors. Wolf added that another factor in taking away
hours from Kaufman and Matinale was that they were not
performing properly.
With regard to the first reason advanced by Supervisor
Wolf, it would seem that, if true, the hours taken from
Kaufman and Matinale would have been given to Tausek.
However, the Respondent's records show that Tausek's
hours were not increased.
In support of the second reason advanced by Supervisor
Wolf, he, testified that he issued a warning notice to
Kaufman on November 27, 1963, for allegedly failing to
vacuum the track when ordered to do so,14 and a second
warning notice on December 11, 1973, for failing to sign
out on four occasions; that commencing in and around
November 1973, Kaufman failed to do his job properly,
specifically: he was not servicing the members, he was not
doing his cleaning duties properly, he was engaging in
private conversation on the gym floor with fellow employ-
ees, he was disappearing from the floor, and he felt
Kaufman was leaving work to go home earlier than he was
scheduled to do. As to the latter offenses, Supervisor Wolf
conceded that they were serious, but he did not issue any
warning notices for any of them. He testified that he did
not issue a third warning notice to Kaufman, inasmuch as
he was Kaufman's friend and knew that a third warning
notice would mean that Kaufman would be discharged.
However, Supervisor Wolf conceded that there were a
number of other members of management who would
regularly supervise or would be in the gym,15 persons who
were not friends of Kaufman. Yet despite the alleged
numerous and obvious derelictions of duty by Kaufman,
no one issued him a warning notice or instructed Wolf to
issue one. It is significant that despite Wolf's severe
that he refused to sign the warning notice because Supervisor Bieler had
excused him from vacuuming the track and that he had explained this to
Wolf; that Wolf told him that Supervisor Flickstein had instructed him to
give Kaufman the warning notice; that after finishing work that evening he
asked Supervisor Bieler to accompany him to the office of Manager
Orenstein; that after hearing Kaufman's explanation, corroborated by
Bieler, Manager Orenstein told Kaufman to forget about the warning
notice.
15 Beeler, Bostinto, Flickstein, Orenstein, Ramos, Schwartz, and Wilton.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criticism of Kaufman's performance, he admittedly told
incoming Supervisor Ramos that Kaufman and Matinale
were his two best instructors. I do not credit Wolfs
explanation that he 'made this statement to Supervisor
Ramos- in order to boost the morale of Kaufman and
Matinale.
With regard to the reduction and eventual elimination of
Kaufman's calisthenic classes, President Schwartz testified
that an incident occurred in which Anderson was supposed
to teach a calisthenic class, but, because she had come in
late, she had been sent home, and Kaufman had been
asked to teach her' class; that Kaufman refused. He added
that he realized,. that it was not wise to depend upon one
person to teach the calisthenic classes . However, contrary
to Schwartz' testimony, the record shows that there were
others who,were teaching coed calisthenic classes. In any
event, President Schwartz' testimony, if credited, would
appear to justify 'only- the reduction in Kaufman's
calisthenic classes in July 1973. It would hardly justify the
complete elimination of his calisthenic classes which
occurred later.'
In sum, 4 f nd and conclude that the drastic reduction of
Kaufman's hours and the eventual elimination of his
calisthenic- c'la4ses were prompted by the Respondent's
desire to retaliate against Kaufman because of his union
acttvityand because he' had testified against the interests of
the Respondent in the two prior proceedings, in violation
of Section°8(a)(1), (3), and (4) of the Act 16
I. Concluding Findings
A review of the record is convincing in that the
Respondent, engaged in a campaign of retaliation against
-Anderson,, Caron, and -Kaufman because of their union
activities and ,because they had testified against the
Respondent in one or both of the prior proceedings. This
campaign took the form of directing other employees to
refrain from associating with Anderson and Caron,
attempting to require Caron to admit to a violation of
Respondent's rule about calling in , when, in fact, no such
violation had occurred, cutting Anderson's hours and
thereby limiting her earnings, discriminating against
Anderson by discharging her because she had refused to
transfer 'to the Madison spa, and cutting Kaufman's hours
of employment and refusing to permit him to teach
calisthenic classes . By such conduct the Respondent
violated Section 8(a)(1), (3), and (4) of the Act, and I so
find.
J. The Sufficiency of the Charge as a Predicate for
the Allegations of the Complaint, as Amended
As indicated at the outset of this Decision , the complaint
alleged , inter alia, that since January 1, 1974, Respondent
19 In arriving at this fmding and conclusion , I am mindful of the fact
that, with regard to the reduction of Canon's hours in February, I have
concluded that such a reduction was not violative of the Act I pointed out
that Antone's and Anderson's hours were likewise cut by two i j February
and that the ` hours of other employees were also cut. Kaufman's hours,
however, were also cut . Kaufman's hours, however, were cut from 20-1/2 10
9-1/2 per week, a reduction of more than 50 percent . Patently, Kaufman's
case is markedly different from that of Caron.
17 In doing so , I informed counsel for the Respondent that if he needed
assigned Kaufman to less agreeable tasks, and since on or
about October 15, 1973, January 1, 1974, and March 1,
1974, Respondent provided Kaufman with less employ-
ment than he previously had received and with less
employment than he normally would have received. At the
outset of the hearing, pursuant to a notice of intention to
amend complaint, the General Counsel moved for leave to
amend the complaint to allege that on or about December
17, 1973, Respondent attempted to require employee
Caron to admit in writing to an infraction of the
Respondent's rules; that on or about December 5 or 12,
1973, tie Respondent instructed its employees not to
associate - with; and prevented them from associating with,
Caron and Anderson. Over the objection of the Respon-
dent, I granted the motion.17
Respondent contends` that the allegations in the com-
plaint, as amended; pertaining to Kaufman, and pertaining
to the allegations added by the amendment are time barred
by Section, ii0(b) of the Act by the fact that they exceed the
scope of the allegations contained in the charge. Respon-
dent points out that the charge in the instant proceeding
was filed by Anderson as an individual and related only to
Respondent's threat to terminate her employment because
she refused to transfer, and the reduction in her hours of
employment; that no mention was made in the charge of
the, reduction of jaufman's hours of employment; nor was
Respondent apprised of the fact that it would be claimed
that Holland was a supervisor in January 1974. As to the
amendment of the complaint, Respondent contends that it
had no notice by the charge that it would be claimed that
employees were instructed not to associate with Anderson
and Caron, or that Katz issued a warning to Caron for
violation of a rule about calling in. Respondent argues that
permitting these matters to be alleged in the complaint, as
amended, violates the spirit of Section 10(b) of'the Act. In
support of its contention, the Respondent relies upon
Prince Pontiac, Inc., 174 NLRB 919 (1969), and Champion
Pneumatic Machinery Co., 152 NLRB 300 (1965).
I have reviewed the authorities and conclude that
Respondent's contention is without merit and must be
rejected. Prince Pontiac and Champion Pneumatic are
inapposite. Thus, in Champion Pneumatic, the charge
alleged' that the employer raised wages and 'transferred
employees to discourage membership in the charging union
in violation of Section 8(a)(3) and (1). The General
Counsel amended, the complaint to include an 8(aX2)
violation based on the employer's having formed and
assisted an Employee Grievance Committee. The Board
held that the 8(aX2) violation was not "closely related" to
the 8(aX3) and (1) violations statedin the charge. Similarly,
in Prince Pontiac, the charge allegbd a violation of Section
8(a)(1) and (3) because of the discharge of an individual
employee, while the complaint ' alleged, inter alict, a
time to meet the new allegations , I would consider such a request at the
appropriate time. At no time did Respondent seek an adjournment in order
to meet the new allegations . Cf. North American Rockwell ' Corporation v.
N.LRB., 389 F .2d 866, 871 (C.A. 10, 1968). Moreover, after 4 days of
hearing, the hearing was adjourned to August 13, thus giving Respondent
more than 3 weeks' additional time to prepare its defense. Respondent
called 10 witnesses and introduced 23 exhibits into evidence . It can hardly
be said that the Respondent did not have full opportunity to meet the new
allegations.
JACK LALANNE MANAGEMENT CORP.
violation of 8(a)(2) for assisting a union. Again, it was held
that there was no close relationship between the allegations
in the charge and those in the complaint.18
It is well settled that:
A charge filed with the Labor Board is not to be
measured by the standards applicable to a pleading in a
private lawsuit. Its purpose is merely to set in motion
the machinery of an inquiry. N.L.R.B. v. L&M. Electric
Co., 318 U.S. 9, 18. The responsibility of making that
inquiry, and of framing the issues in the case is one that
Congress has imposed upon the Board, not the
charging party. To confine the Board in its inquiry and
in framing the complaint to the specific matters alleged
in the charge would reduce the statutory machinery to
a vehicle for the vindication of private rights. This
would be alien to the basic purposes of the Act....
Once its jurisdiction is invoked the Board must be
left free to make full inquiry under its broad investiga-
tory power in order properly to discharge the duty of
protecting public rights which Congress has imposed
upon it. There can be 'no justification for confining
such an inquiry to the precise particularization of a
charge (N.L.R.B. v. Fant Milling Co., 360 U.S. 301,
307-308).
As the Supreme Court said inNational Licorice Company
v. N.LR.B., 309 U.S. 350, 369:
... we can find no warrant in the language or
purposes of the Act for saying that itprecludes the
Board from dealing adequately with unfair labor
practices which are related to those °alleged in the
charge.... The violations alleged in, the com-
plaint... are of the same class of violations as those
set up in the charge....
Thus the only issue is whether the allegations of the
complaint, as amended, "are related to those alleged in the
charge." All of the allegations of the complaint, as
amended, arise from the same factual situation, are of the
same class as, and clearly relate to,, the discrimination
against Anderson set forth in the charge. The fact that
Caron and Kaufman were not mentioned in the charge is
of no consequence. Thus, in Radio Officers' Union of the
Commercial Telegraphers Union, AFL (A.' H. Bull Steamship
Company) v. N.LR.B., 347 U.S. 17, the Supreme Court said
at p,. 34, fn. 30:
The original charge filed on February 3, 1949,
alleged violation only of Section 8(a)(l) and (3) by the
above: action relative to Loner between July and
October 1948. This charge was amended on June 13,
11950, to allege violation of Section 8(a)(1) and (2) by
executing the October 1948 contract with the illegal
union security clause. The complaint issued by the
General Counsel on the same day contained all of these
allegations and alleged that the discriminatory treat-
18 Respondent also quotes from N.LRB. v. Font Milling Company, 360
U.S.:301 (1959), to the effect that the Board does not have "carte blanche to
expand the charge as they might please, or to ignore it altogether" (id at
309). As noted below, Font supports the propriety of the complaint, as
913
ment extended to all nonunion employees. The compa-
ny contends that inclusion of such employees who did
not file charges is prohibited by the six-month statute
of limitations period provided in Section 10(b) of the
Act. We agree with the Trial Examiner, the Board, and
the court below that this charge relates back to the
charges timely filed and thus the company was given
adequate notice and was not prejudiced by the
amendment. N.L.R.B. v. Kobritz, 193 F.2d 8, 14;
N.LRB. v. Bradley Washfountain Co., 192 F.2d 144,
149; N.L.R.B. v. Kingston Cake Co., 191 F.2d 563, 567;
cf. Consolidated Edison Co. v. N.LRB., 305 U.S. 197,
225, 238.
See, also , Local 282, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (J. J.
White Ready Mix Cement Corp.), 141 NLRB 424, 431-432
(1963); Exber, Inc., d/b/a El Cortez Hotel v. N.L.R.B., 390
F.2d 127, 130 (C.A. 9, 1968).
I therefore conclude that none of the allegations of the
complaint, as amended, is barred by Section 10(b) of the
Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operations of the
Respondent, described in, section I, above, have a close,
intimate and substantial relationship to trade, traffic, and
commerce among .the several States, and teild to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (4) of the Act, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Apt: `
Having found that the Respondent discriminatorily
reduced the hours of Paulette Anderson and Richard
Kaufman, I shall recommend that `the Respondent be
ordered to make each of them whole for any loss of
earnings each may have suffered by reason; of spch action,
with interest to be computed in thcustomary manner.19
Having found that the Respondent discriminatorily
discharged Paulette Anderson, I shall recommend that the
Respondent be ordered to offer her immediate reinstate-
ment to her former job, discharging, if necessary, any
employee hired to fill such job, or if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights, and make her
whole for any loss of earnings slte may have suffered by
reason of such discharge, with interest to be computed in
the customary manner.
amended, as the allegations in the complaint "are related to those alleged in
the charge" fthid).
19 F. W. Woolworth Company, 90 NLRB 289 ( 1950); Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
914 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
I shall further recommend that the Respondent be
ordered to preserve and make available to the Board or its
agents , upon request, payroll and other records to facilitate
the computation of the backpay due and the right to
employment.
As the unfair labor practices committed by the Respon-
dent are of a character striking at the root of employees'
rights safeguarded by the Act, I shall recommend that it
cease and desist from infringing in any manner upon rights
guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By instructing its employees not to associate with
Anderson and Caron because of their union activities and
because they had testified against the Respondent, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1), (3), and (4) of the Act.
4. By attempting to require Caron to admit in writing
to an infraction of its rules when, in fact, no such violation
had occurred, because of her union activities and because
she had testified against the Respondent, the Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (4) of the Act.
5. By assigning more arduous duties to Anderson and
Caron because of their union activities and because they
had testified against the Respondent in a prior proceeding,
the Respondent has engaged in unfair labor practices in
violation of Section 8(aXl), (3), and (4) of the Act.
6. By discriminatorily reducing Anderson's hours of
employment, the Respondent has engaged in a violation of
Section 8(axl), (3), and (4) of the Act.
7. By discriminatorily discharging Anderson, the Re-
spondent has engaged in an unfair labor practice within
the meaning of Section 8(a)(1), (3), and (4) of the Act.
8. By discriminatorily reducing Kaufman's hours of
employment and eliminating his calisthenic classes, the
Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1), (3), and (4) of the Act.
9. The allegations of the complaint, as amended, are
not barred by Section 10(b) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER20
Jack LaLanne Management Corp., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Instructing its employees not to associate with any
employees who have engaged in union activities or who
20 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 findings,
conclusions , recommendations and recommended Order herein shall, as
provided in Sec . 102.48 of the Rules and Regulations , be adopted by the
Board and constitute its findings , conclusions, and Order, and all objections
have testified against the Respondent in a Board proceed-
ing-
(b) Attempting to require employees to admit in writing
to an infraction of its rules even though no infraction had
occurred, because such employees have engaged in union
activities or because such employees have testified against
the Respondent in a Board proceeding.
(c) Assigning more arduous duties to employees who
have engaged in union activities or who have testified
against the Respondent in a Board proceeding.
(d) Discouraging membership in Local 966, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or in any other labor organization
of its employees, by discharging, reducing hours of
employment, or in any other manner discriminating
against employees in regard to hire and tenure of
employment or any type of working conditions of
employment.
(e) Discharging, reducing hours of employment, or
otherwise discriminating against any of its employees in
regard to hire and tenure of employment or any type of
working conditions of employment because said employees
testified against the Respondent in a Board proceeding.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights to self-
organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activity for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent that such right is affected by the
proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole Paulette Anderson and Richard Kauf-
man for any loss of earnings each may have suffered by
reason of the Respondent's actions in reducing their hours
of employment, in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Offer to Paulette Anderson immediate and full
reinstatement to her former job, discharging, if necessary,
any, employee hired to fill such job, or if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and make her
whole for any loss of earnings she may have suffered by
reason ' of such discharge, in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll, records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order. '
(d) Post at its offices and at each spa operated by it
copies of the attached, notice marked' "Appendix."21
Copies of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by an
thereto shall be deemed waived for all purposes.
21 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
JACK LALANNE MANAGEMENT CORP.
authorized representative of the Respondent, shall be
posted by the Respondent immediately 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 the Respondent to
insure that said notices are not altered, defaced, or covered
by arty other material.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days of the date of this Order, what steps
the Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT instruct our employees not to associate
with any employees who have engaged in union
activities or who have testified against us in a Board
proceeding.
WE wJ.L NOT attempt to require our employees to
admit in writing to an infraction of our rules when no
infraction has occurred, because such employees have
engaged in union activities or because such employees
have testified against us in a Board proceeding.
WE WILL NOT assign more arduous duties to
employees who have engaged in union activities or who
have testified against us in a Board proceeding.
WE WILL NOT discourage membership in Local 966,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or in any
other labor organization of our employees, by discharg-
ing, reducing hours of employment, or in any other
915
manner discriminating against our employees in regard
to hire and tenure of employment or any type of
working conditions of employment.
WE WILL NOT discharge, reduce hours of employ-
ment, or otherwise discriminate against any of our
employees in regard to hire and tenure of employment
or any type of working conditions of employment
because said employes testified against us in a Board
proceeding.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights to self-organization, to form, join, or assist any
labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the
extent that such right is affected by the proviso to
Section 8(a)(3) of the Act.
WE will., make whole Paulette Anderson and
Richard Kaufman for any loss of earnings each may
have suffered by reason of our actions in reducing their
hours of employment.
WE WILL offer to Paulette Anderson immediate and
full reinstatement to her former job, discharging, if
necessary, any employee hired to fill such job, or if that
job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or other
rights and we will make her whole for any loss of
earnings she may have suffered by reason of such
discharge.
All of our employees are free to become and remain
members of the above-named Union or any other labor
organization, or to refrain from doing so.
JACK LALANNE
MANAGEMENT CORP.