Kinder-Care Learning Centers, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1987

284 N.L.R.B. 509 (N.L.R.B. 1987)

KINDER-CARE LEARNING CENTERS 509
Kinder-Case Learning Centers, Inc. and United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL-CIO, District
65. Case 32-CA-7817
26 June 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 19 November 1986 Administrative Law
Judge George Christensen issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Kinder-Care Learning Centers, Inc.,
Pittsburg, California, its officers, agents, successors,
The Respondent has excepted to some of the judge's credibility fmd-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Do
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The Respondent contends, inter aha, that employee Johnnie Bradford
was not a regular part-time teacher in January 1986 and was not dis-
charged on 31 January 1986. Rather, the Respondent argues that Brad-
ford was a substitute teacher and was relieved of her services as of 31
January because the Respondent had decided to phase out the employ-
ment of substitutes. In adopting the judge's finding that the Respondent
violated Sec. 8(a)(3) and (1) of the Act by discharging Bradford for en-
gaging in union activities while employed as a teacher, we note that the
record indicates that Bradford was not designated as a substitute in the
Respondent's weekly activity reports for the latter portion of January
1986. We also note that the Respondent hired two substitute teachers fol-
lowing the time it claims Bradford was not subject to employment be-
cause of her substitute status. Thus, even assuming Bradford was em-
ployed as a substitute in January 1986, the Respondent did not establish
that Bradford was not employed after 29 January 1986 because it had de-
cided to cease using substitutes. (Bradford was not scheduled to work on
30 January 1986.)
2 The Respondent excepts, mter ails, to that portion of the judge's rec-
ommended Order directing the Respondent to post copies of the notice at
its Antioch and Concord, California facilities, as well as at its Pittsburg,
California facility. No unfair labor practices were alleged in the original
complaint concerning employees other than at the Pittsburg facility, Fur-
ther, the amended complaint alleges an unlawful grant of wage and bene-
fit improvements only at the Pittsburg facility, and the issue of improve-
ments at the Antioch and Concord facilities was not fully litigated. Ac-
cordingly, we shall modify the judge's recommended Order by requiring
that the notice be posted only at the Respondent's Pittsburg facility.
The judge inadvertently omitted expunction language from the notice.
We shall issue a new notice to include such language.
284 NLRB No. 63
and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(d).
"(d) Post at its facility in Pittsburg, California,
copies of the attached notice marked 'Appendix.'
Copies of the notice, on forms provided by the Re-
gional Director for Region 32, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten you with discharge for
supporting United Automobile, Aerospace and Ag-
ricultural Implement Workers of America, AFL-
CIO, District 65, or any other labor organization.
WE WILL NOT grant wage and benefit improve-
ments to discourage you from supporting the above
or any other labor organization.
WE WILL NOT discharge you for supporting the
above or any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Johnnie Bradford immediate and
full reinstatement to her former job as a regular
part-time teacher or, if that job no longer exists, to
a substantially equivalent position, without preju-
dice to her seniority or any other rights or privi-
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
leges previously enjoyed and WE WILL make her
whole for any loss of earnings and other benefits
resulting from her discharge, less any net interim
earnings, plus interest.
WE WILL notify Johnnie Bradford that we have
removed from our records any reference to her dis-
charge and that the discharge will not be used
against her in any way.
KINDER-CARE LEARNING CENTERS,
INC.
Luella Nelson, for the General Counsel.
William H. Andrews (Coffman, Coleman, Andrews &
Grogan), of Jacksonville, Florida, for the Employer.
Gail Wetzel, of Oakland, California, for the Union.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge.
On 13, 14, 15, and 16 May and 22 July 1986 1 I conduct-
ed a hearing at Oakland, California, to try issues raised
by a complaint issued on 25 March based on a charge
filed on 5 February by United Automobile, Aerospace
and Agricultural Implement Workers of America, AFL-
CIO, District 65 (Union). The complaint (as amended)
alleged Kinder-Care Learning Centers, Inc. (Employer)
violated Section 8(a)(1) and (3) of the National Labor
Relations Act (Act) by discharging employee Johnnie
Bradford on 31 January and thereafter failing and refus-
ing to reinstate her to her former position because of her
union activities. The complaint also alleged the Employ-
er violated Section 8(a)(1) of the Act by creating the im-
pression it was surveilling its employees' union activities,
by threatening an employee with reprisals because of her
union activities, by threatening an employee with interro-
gation of its employees concerning their union sympa-
thies and/or support, by coercively informing an em-
ployee another employee was discharged because of her
union activities, and by soliciting and promising to
remedy employee grievances and granting improved
wages and benefits to discourage employee support of
the Union.
The Employer contended Bradford was not dis-
charged or, if she was, the discharge did not violate the
Act because Bradford was discharged for engaging in
union activities while she was a supervisor; denied it
made any statements that conveyed the impression the
Employer was surveilling its employees' union activities;
denied the alleged threats were made; denied it solicited
and promised to remedy employee grievances; and as-
serted its grant of improved wages and benefits was the
result of an area survey and decision arrived at prior to
Employer awareness of any employee interest in union
representation.
The issues are: (1) whether the Employer discharged
Bradford for engaging in union activities, threatened an
employee with reprisals for engaging in union activities,
1. Read 1986 after further date references omitting the year.
made statements to an employee that created the impres-
sion the Employer was surveilling its employees' union
activities, and threatened an employee with Employer in-
terrogation of other employees concerning their union
sympathies and/or support; (2) whether the Employer
coercively informed an employee another employee was
discharged because of her union activities; (3) whether
the Employer made statements to employees that created
the impression the Employer was surveilling its employ-
ees' union activities and solicited and promised to
remedy those employees' complaints or grievances to
discourage employee support of the Union; (4) whether
the Employer improved the wages and benefits of its em-
ployees to discourage their support of the Union; and (5)
if affirmative findings are entered with respect to any of
the foregoing, whether the Employer thereby violated
the Act.
The General Counsel, the Union, and the Employer
appeared by counsel and were afforded full opportunity
to adduce evidence, examine and cross-examine wit-
nesses, argue, and file briefs. Briefs were filed by the
General Counsel and the Employer.
Based on my review of the entire record, 2 observation
of the witnesses, perusal of the briefs and research, I
enter the following
FINDINGS OF FACT3-
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
at all pertinent times the Employer was an employer en-
gaged in commerce in a business affecting commerce and
the Union was a labor organization within the meaning
of Section 2 of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary
The Employer operates child day-care facilities nation-
ally, with headquarters in Montgomery, Alabama. For
administrative purposes, it is structured into two zones
(east and west); a western region within its western zone,
consisting of California and Nevada; a northern Califor-
nia district within its western region; and 14 child day-
care facilities called centers within its northern California
district. At times pertinent Vice President Eldon Wyatt
was in charge of the western zone, Vice President
Robert Benowitz was in charge of the western region,
Michael Hill was in charge of the northern California
district, and Kathy Jacobson was in charge of the Pitts-
burg, California center.4
2 Errors in the transcript have been noted and corrected. Appendix A
is omitted from publication.
3 Although every apparent or nonapparent conflict in the evidence has
not been specifically resolved below, because my findings are based on
my examination Of the entire record, my observation of the demeanor of
every witness while testifying, and my evaluation of the reliability of
their testimony, any testimony in the record that is inconsistent with my
findings is hereby discredited.
4 I find at all pertinent times Wyatt, Benowitz, Hill, and Jacobson
were supervisors and agents of the Employer acting on its behalf within
the meaning of Sec. 2 of the Act.
KINDER-CARE LEARNING CENTERS 511
The Employer completed construction of its Pittsburg,
California center5 in August 1985 and opened for busi-
ness shortly thereafter. Kathy Jacobson was employed as
its director and Jan Fauntleroy was initially employed as
its assistant director but quickly replaced by Johnnie
Bradford (who was initially hired as a teacher).
B. Bradford's Duties as Assistant Director
Bradford functioned as the Pittsburg center's assistant
director from late August through late November 1985.
During that period, she interviewed parents and enrolled
children; collected tuition, issued receipts, and deposited
moneys collected; prepared financial, delinquency, and
attendance reports; communicated with parents when
children became ill or were injured at the center;
checked staffing ratios and either released or transferred
teachers when rooms were overstaffed or called in sub-
stitute teachers when rooms were understaffed; 6 desig-
nated break periods for the teachers; screened and inter-
viewed prospective employees and effectively recom-
mended hire or rejection; administered and effectively
recommended employee discipline, including discharge;
effectively recommended employee assignments, trans-
fers, and promotions; approved employee requests for
time off; substituted for absent teachers and during teach-
er breaks; checked supplies and received deliveries; as-
sumed charge of the center in the absence of the direc-
tor; was recognized by the teachers as possessing author-
ity to assign, transfer, and relieve them from work, grant
their requests, administer discipline, and exercise the au-
thority of the director in her absence, and exercised that
authority.
C. Bradford's Change in Job Status
In November 1985 Bradford was awarded a one-quar-
ter scholarship to attend Hayward Extension College at
Pleasant Hill, California. Bradford approached Jacobson,
advised Jacobson of the scholarship and her desire to
accept it, and requested a voluntary demotion to a teach-
ing position. 7 Jacobson agreed to the proposed demo-
tion, the two discussed who among the staff was best
qualified to succeed Bradford as assistant director, and
agreed on Hachtel. Hachtel was offered and accepted
the promotion and, in late November, Jacobson prepared
and processed documents the Employer required to
record such status changes. Bradford agreed to train
Hachtel in her new duties prior to Christmas vacation
(which began in mid-December).
5 One of the 14 centers within its northern California district.
6 Children were assigned to rooms according to their ages; for each
room of under 2-year olds and 2-year olds, one teacher was required for
each four children; for the 3-year old, 4-year old, and 5-year old rooms,
one teacher was required for each 12 children; for the 6-year old room
and the 6- to 12-year olds (an after-school program), one teacher was re-
quired for each 15 children.
7 Although they initially agreed Bradford would function as a substi-
tute teacher (on call for employment as and when needed), Jacobson as-
signed Bradford the duties of a regular part-time teacher (regularly as-
signed to work less than 20 hours per week). At the time Bradford made
her proposal, she did not know when the quarter would end; she learned
in early December the quarter would end in mid-March and informed Ja-
cobson.
From the time the two returned following the vaca-
tion (about 2 January) Hachtel functioned as the assistant
director of the center and Bradford functioned as a regu-
lar part-time teacher. 8 Bradford continued in that capac-
ity until 29 January.
D. Bradford's Union Activities
In September 1985 Bradford began to attend a night
class in administration and supervision at Los Medanos
College.° When a guest lecturer (Marcy Libster, a teach-
er at the Oaldand California Jewish Community Center
and a director of an organization called the Child Care
Community Project) spoke to the class on 2 December
about the rights of child-care workers, Bradford became
interested and contacted Libster outside the class. In the
course of their discussions, Libster informed Bradford
she worked at a child care facility whose employees
were union represented and spoke favorably concerning
such representation.
A few days later, when one of the teachers (Teresa
Lorenz) expressed dissatisfaction with wages and other
employment conditions and asked Bradford the best
course for securing improvements, Bradford contacted
Marcy Whitebrook, the executive director of the project,
and was referred to one of Libster's fellow project direc-
tors, Mary Ann Massenburg, the Union's general orga-
nizer. Bradford contacted Massenburg and Massenburg
met with Bradford and Lorenz at Bradford's home on 12
December 1985. At that meeting, the two employees ex-
pressed their dissatisfaction with their wages and other
employment conditions and their desire for improve-
ments; Massenburg told them she thought the Union
could be of help, gave the two some literature, told them
the Union would have to proceed on a districtwide basis
in seeking to represent their interests, 10 and suggested
they contact and invite employees employed at other
centers within the Employer's northern California dis-
trict to meet with her. Bradford and Lorenz accepted the
suggestion, the proposed meeting was scheduled for 3
January at Bradford's home, Bradford and Lorenz invit-
ed employees at the Pittsburg and Antioch centers to
attend the meeting and it was held on 3 January. A sub-
sequent meeting was scheduled for and held on 13 Janu-
ary at Bradford's home, attended by employees of the
Pittsburg, Antioch, and Concord centers. Massenburg
chaired each meeting, recited what she thought the
Union could do to improve the employees' wages and
other employment conditions, answered questions, dis-
tributed literature, and solicited employee signatures to
cards authorizing the Union to represent the employees
for collective-bargaining purposes. Bradford attended the
January meetings and responded to the solicitation by
signing a card at one of them. Bradford also solicited
8 Working Monday, Wednesday, and Friday mornings in a 2-year-old
room with teacher Laura Bown.
9 California (and the Employer) requires all administrators of child
care facilities to complete such a class.
1 ° In view of a recent Board decision to that effect involving the Em-
ployer (Kinder-Care Learning Centers, 268 NLRB 1350 (1984)),
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other employees during January to support the Union
and to sign cards at the center."
E. Bradford's Time-Off Request and Schedule
While working her regular schedule on Wednesday, 29
January, Bradford contacted Jacobson and stated she
needed some time off from work to research and write a
term paper and prepare for examinations. Jacobson re-
plied she would have no problem covering Bradford's
class on Friday, 31 January. Bradford stated she also
needed the following week off (3, 5, and 7 February). Ja-
cobson replied she could only give Bradford Friday off
and in fact needed her to cover an afternoon class on 3
February. Bradford stated she was too far behind in her
school work to cover the Monday afternoon class. A
short time later Jacobson, accompanied by a teacher
known to Bradford as Kip, entered the room where
Bradford and Bown were administering to their 2-year-
old charges and Kip asked Bradford to cover her 3 Feb-
ruary afternoon class. Bradford repeated her earlier state-
ment she was behind in her school work and could not
accommodate Kip. Neither Kip nor Jacobson pressed the
matter further. Bradford left the center that day (29 Jan-
uary) under the impression she had been granted permis-
sion to be off 31 January, denied permission to be off 3,
5, and 7 February, and was next scheduled to work in
the ,2-year-old room with Down the morning of 3 Febru-
ary.
F. The Discharge Warning
The following day (Thursday, 30 January) Jacobson
called Hachtel into her office, closed the door, and asked
Hachtel if she knew what Bradford was doing to her.
When Hachtel replied negatively, Jacobson stated Brad-
ford was trying to form a union. Hachtel made a non-
committal response and Jacobson stated she was upset at
Bradford's going behind her back in seeking to form a
union and she was going to fire Bradford. After leaving
the center, discussing the conversation with her husband,
and securing his advice," Hachtel decided to warn
Bradford. She telephoned Bradford and told Bradford
what Jacobson said about her and her activities.
A third union meeting was scheduled for the evening
of 30 January. Bradford attended the meeting, advised
Massenburg of the warning she received from Hachtel,
and solicited Massenburg's assistance to retain her em-
ployment. Massenburg agreed to seek an audience with
Jacobson the following day and attempt to secure Jacob-
son's assurance Bradford would not be penalized for sup-
porting union representation of the center's employees.
G. The Alleged Jacobson Impression of Surveillance,
Threats, and Discharge
Massenburg and Bradford went to the center the
morning of Friday, 31 January, and Jacobson agreed to a
conference in her office. Bradford introduced and identi-
" I discredit Zimmerman's testimony that Bradford solicited her sup-
port in December; Zimmerman demonstrated date confusion and was un-
convincing.
12 He advised Hachtel it would be unlawful to terminate Bradford for
engaging in union activities.
fled Massenburg. Massenburg presented Jacobson with
her business card, a pamphlet describing employer and
employee rights during a union organizational campaign,
and explained what those rights were. Bradford informed
Jacobson she had been actively supporting the union
campaign to represent the center's employees. Jacobson
replied she knew that 13 and was disturbed because Brad-
ford acted behind her back, she feared her own job
might be jeopardized by Bradford's union activities, as-
sistant directors were considered part of management
subject to discharge for engaging in union activities, and
Bradford was discharged for so engaging. Bradford said
she was sorry Jacobson was taking her actions personal-
ly, she and other employees involved were only seeking
to improve their wages, etc.; Massenburg stated she did
not think assistant directors were part of management
and, in any event, Bradford was not currently employed
as an assistant director. Jacobson stated she did take
Bradford's actions personally, particularly her contacting
a teacher aide (Jan) who was also a parent, she felt she
no longer could work with Bradford because she cold
not trust Bradford, and it did not matter if Bradford was
not an assistant director, she was currently classified a
substitute teacher and there was not going to be any sub-
stitute work for Bradford. In the course of the discus-
sion, Jacobson also disclosed she was expecting repre-
sentatives of management from outside the area to arrive
and express management's views concerning union repre-
sentation of the center's employees. Prior to Massen-
burg's and Bradford's departure from the center, Jacob-
son rejected Bradford's proffer of a stamped, self-ad-
dressed envelope for mailing her final paycheck, Jacob-
son stating Bradford should come to the center and pick
it up like everyone else.14
H. Other Alleged Threats by Jacobson
Between 3 February conferences with one of the Em-
ployer's personnel representatives" and the rejection of
Massenburg's requests to meet with Anderson," Jacob-
13 Jacobson testified she received two anonymous telephone calls in-
forming her Bradford was trying to form a union to represent the cen-
ter's employees; Hachtel testified Jacobson informed her she overheard
Bradford discussing union representation of the center's employees with
another employee at the center; and teacher Gina Giuntoli testified Ja-
cobson told her teacher aide Jan Clark told her Bradford was advocating
union representation of the center's employees.
14 I find no significance, as argued by the Employer, in Jacobson's fail-
ure to tender her final paycheck to Bradford on 31 January; obviously
Jacobson did not anticipate the 31 January confrontation and delaying
the delivery of Bradford's final paycheck to the end of the pay period
may readily be attributed as a tactic supporting the Employer's position,
voiced by Jacobson when Massenburg pointed out Bradford was not em-
ployed as an assistant director on 31 January and therefore not subject to
discharge for engaging in union activities while a supervisor, that there
was not going to be any further need for Bradford's services as a teacher
15 Cora Anderson is headquartered m Los Angeles, California.
16 Massenburg received a report confirming Jacobson's 31 January
statement that employer representatives from outside the area had ar-
rived; suspecting they were going to interview employees of the centers
within the northern California district to ascertain what problems existed,
the extent of employee support of the union campaign, and to express the
Employer's opposition to union representation of its employees (which
Hill confirmed was done), Massenburg visited the center twice to seek an
audience with Anderson to request she and any other interviewers refrain
from any coercive interrogation of the employees.
KINDER-CARE LEARNING CENTERS

513
son informed Hachtel with a smile (contrary to her 30
January statement to Hachtel the Employer was going to
terminate Bradford) the center was not going to have
any further need for Bradford's services as a substitute
teacher and informed Giuntoli (who had been on medical
leave the previous week) Bradford would no longer be
working at the center and when asked why, stated be-
cause of her union activities. Pressed further how she
knew Bradford had been engaging in any union activi-
ties, Jacobson identified teacher aide Jan Clark 17 as her
informant.
I. Alleged Surveillance, and Alleged Grievance
Solicitations and Promises
Hill and the Employer's personnel director, Candace
Pardue (headquartered at Montgomery, Alabama), con-
ducted meetings at centers within the northern California
district in February, including a meeting in mid-February
at the Pittsburg center attended by Hachtel, Giuntoli,
and teacher Norma Cox. After an introduction by Hill,
Pardue read a prepared text that included, inter alia, an
expression of the Employer's opposition to union repre-
sentation of its employees, a Hill or Pardue statement
they were holding the meeting because they heard the
employees were dissatisfied with their working condi-
tions, and a Hill invitation to express the employees' con-
cerns. Cox expressed the view the Employer's wage
structure was inadequate in view of its and the State's re-
quirements for employment as teachers, and Giuntoli ex-
pressed her and Cox's dissatisfaction with teacher cover-
age at the center between 6:30 and 7:30 a.m." Hill re-
sponded to their complaints with the statement he would
look into them but could not promise to resolve them."
J. The Wage and Benefit Improvements
It is undisputed during the Union's campaign to repre-
sent employees of the Pittsburg, Antioch, and Concord
centers2° in March the Employer substantially increased
the wages of the Pittsburg and Antioch employees and
the new rates matched both the wage levels of the Con-
cord employees and the Employer's main competitor
serving those cities (La Petite Academy).
It is also undisputed during the campaign in April, the
Employer substantially improved its tuition discount pro-
gram for children of employees of the Pittsburg, Anti-
och, Concord, and four other centers in the area (two
within the northern California district and two outside
the district) and the improved program matched La
Petite Academy's tuition discount program.
22 Clark was employed full time at the center as a teacher aide and
had three of her children enrolled at the center. At the 31 January Jacob-
son-Massenberg-Bradford conference, Jacobson expressed her anger that
Bradford solicited an employee/parent named Jan to support union repre-
sentation of the employees.
18 Many children arrived at the center between the times in question,
when only Cox and Giuntoli were on duty.
13 Cox and the other teachers subsequently received a wage increase;
there was no change in teacher coverage between the hours in question.
20 The record disclosed the Union was actively campaigning among
the Pittsburg, Antioch, and Concord employees at the time the wage in-
creases were instituted (March); the record does not disclose whether at
that time the Union had extended its campaign to the other 11 centers in
the northern California district.
The wage increase addressed a primary source of the
employee dissatisfaction, which prompted employee in-
terest in union representation and was instituted not long
after management was so informed.21
That management knowledge, the timing, and the sub-
stantial nature of the increases strongly support a conclu-
sion the increases were instituted to discourage possible
employee belief union representation would aid the se-
curing of a wage increase, and I so find and conclude
(rejecting the employer contention the increases were in-
stituted solely as the result of a management decision,
reached prior to any manifestation of employee interest
in union representation, to institute the increases in order
to reach wage uniformity among its centers in the area
and to match its major competitors' area wage levels).
The Employer undoubtedly was aware prior to late
January the wage levels of the Pittsburg and Antioch
employees were below those of the Concord employ-
ees22 and may have been aware the wage levels of the
Pittsburg and Antioch centers were below those of its
major competitor in those cities, La Petite Academy.
(Hill testified in November 1985 he directed his 14 dis-
trict directors to survey the wage levels of their competi-
tors within the area each was serving, that testimony was
supported by one district director (Barbara Graham) and
the head teacher at Pittsburg (Nancy Zimmerman) testi-
fied Jacobson in November 1985 mentioned to her she
was preparing a wage profile; Hill also testified the Anti-
och and Pittsburg center directors reported by Decem-
ber 1985 their wage levels were below those of La Petite
and the Concord center director reported its wage levels
matched those of La Petite. However, there was a pecu-
liar absence of any documentation of the request and re-
sponses thereto (peculiar in the sense the Employer had
elaborate documentation concerning matters affecting its
costs), the Employer avoided any questioning of Jacob-
son regarding this subject, the testimony of Zimmerman
was shifting and unconvincing, and the testimony of Hill
and Graham on this subject was likewise unconvincing).
I am nevertheless unable to credit the testimony of
Hill and Benowitz to the effect Hill recommended insti-
tution of the increases to Benowitz, Benowitz recom-
mended their institution to Hyatt, and the latter two ap-
proved the increases prior to any awareness the Pittsburg
and Antioch employees were displaying an interest in
union representation and one of their major concerns
was the level of their wages."
Regarding the employee tuition discounts, I similarly
find and conclude they were authorized and instituted to
discourage possible employee belief union representation
21 Massenburg on 31 January and Cox in mid-February so informed
Jacobson and Hill.
22 The Employer's operations are highly centralized, it maintains tight
cost controls that are closely monitored, detailed reports showing
income, expenditures, are submitted weekly to central authorities and
ratios are carefully scrutinized and maintained.
23 Again there was a complete absence of any supporting documenta-
tion, Hill and Benowitz were unconvincing witnesses, and neither Brad-
ford nor Hachtel were aware of the alleged recommendation and authori-
zation (which seems incredible, given the small size of the staff at the
centers and the daily, intimate contact between center directors, assistant
directors, and staff).
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would aid the securing of improvements in wages, rates
of pay, hours, and working conditions. The improvement
was authorized and instituted at a time management was
fully aware employees were interested in securing union
representation to improve their wages, and it is reasona-
ble to conclude the improvement was made to persuade
the employees they did not need such representation to
accomplish such improvements.
K. Analysis and Conclusions
1. The alleged discharge
The General Counsel and the Union contend on 31
January the Employer (by Jacobson) discharged and sub-
sequently failed to employ Bradford because she engaged
in activities on behalf of the Union and thereby violated
the Act. The Employer denies Bradford was discharged,
asserting Bradford was a substitute teacher on 29 Janu-
ary, and there was no need for her services after 29 Jan-
uary. In the event the General Counsel's and the Union's
contentions are sustained, the Employer asserts the dis-
charge nevertheless was lawful: (1) because Bradford en-
gaged in union activities while employed as a supervisor,
and (2) because Bradford violated a lawful no-
solicitation/no-distribution rule.
It is undisputed prior to 31 January Bradford actively
supported the Union's organizing campaign among the
Employer's teachers (and other employees) at the Pitts-
burg and other centers. It is also undisputed the Employ-
er failed or refused to employ Bradford in any capacity
after 29 January. The issues are whether Jacobson dis-
charged Bradford on 31 January; if so, whether Jacobson
discharged Bradford because of her union activities; if so,
whether Bradford was a supervisor (while employed as
assistant director); if so, whether Bradford engaged in
union activities while a supervisor; and if so, whether her
discharge violated the Act.
The evidence amply supports my conclusion Bradford
was discharged by Jacobson on 31 January because of
her union activities.
On 29 January Jacobson readily granted Bradford's re-
quest for relief from her 31 January work assignment in
order to pursue her studies but not only refused to grant
her request for similar relief the following week, but
tried to persuade Bradford to work the afternoon of 3
February. The next day (30 January), however, in a
complete reversal of form and attitude towards Brad-
ford, 24 Jacobson informed Hachtel she was going to fire
Bradford because she had learned Bradford was seeking
to form a union "behind her back," and the following
day (31 January) she reiterated what she told Hachtel
the previous day, i.e., she told Bradford and Massenburg
she had learned Bradford was engaging in union activi-
ties, Bradford was fired because she no longer could
trust or work with Bradford for going "behind her back"
in conducting those activities, and further stated (when
reminded Bradford was no longer classified or working
as her assistant director) no further work would be as-
signed to Bradford.
24 From the friendly and accommodating , innner she displayed on 29
January.
I reject the Employer's contention Bradford was not
employed after 29 January because the Employer decid-
ed to cease employing substitute teachers at the Pittsburg
center about that time Not only is the timing of the al-
leged policy change suspect (coming at the time the
union campaign was underway and immediately follow-
ing Jacobson's acquiring knowledge Bradford was active
therein), it was a complete reversal of Jacobson's assign-
ment of Bradford to a regular part-time teaching schedule
commencing early January, the two replacement teach-
ers hired the following week were not employed for
long, substitute teachers, regular part-time teachers, and
regular full-time teachers were hired to work at the
Pittsburg center subsequent to 29 January (both before
and after the mid-March end of Bradford's school quar-
ter), and Bradford was fully qualified and experienced
and available for assignment to the work of the first two
classifications through mid-March and all three classifica-
tions thereafter.
There remains the question whether Bradford's dis-
charge nevertheless was lawful because Bradford en-
gaged in union activities while a supervisor.
Based on the fmdings set out in section II,B, above, I
find and conclude while classified and working as the
Pittsburg center's assistant director, Bradford was a su-
pervisor. She acted as the director's alter ego in her ab-
sence; was accepted and treated by all employees other
than the director as their supervisor possessing and exer-
cising authority to direct their work, assign and relieve
them from job assignments, grant their requests for time
off, effectively recommend hires and discipline (including
discharge), and perform other managerial functions.
It is undisputed Bradford was demoted from the posi-
tion of assistant director to the position of substitute
teacher in late November and her duties in early Decem-
ber were 'limited to training her successor as assistant di-
rector (Hachtel) in the job duties of that position. It is
also undisputed from and after mid-December Bradford
ceased such training duties and worked solely as a teach-
er in the 2-year-old room, on a regular part-time sched-
ule.
The record establishes Bradford's first engagement in
what could be classified union activity occurred in early
December 1985, when Bradford telephoned Massenburg
and the latter agreed to meet with Bradford and Lorenz
on 12 December 1985 at Bradford's home. The second
such activity occurred on 12 December, when the three
met and discussed the pros and cons of union representa-
tion and the two employees agreed to contact other em-
ployees to invite them to meet with Massenburg on 3
January. The only other Bradford action prior to 1 Janu-
ary that could be described as union activity was Brad-
ford's contacting of various employees to invite them to
the 3 January meeting.
Technically a finding could be entered that Bradford
did not engage in any union activities as a supervisor, be-
cause she was formally demoted and Hachtel was pro-
moted to succeed Bradford as assistant director in late
November, prior to any of Bradford's union activities.
However, it is fair to conclude Hachtel and Bradford
jointly performed the duties of the assistant director posi-
KINDER-CARE LEARNING CENTERS 515
tion between the time of the reclassification (late Novem-
ber) and the time Hachtel and Bradford went on Christ-
mas vacation (mid-December). So concluding, I find
while classified as a teacher and while training her suc-
cessor as assistant director (between late November and
mid-December 1985), Bradford engaged in the union ac-
tivities of contacting and meeting with a union represent-
ative, describing employee complaints regarding wages
to that representative, hearing that representative ex-
pound on what she thought the Union could do for the
employees, and inviting employees to attend a meeting
with that representative.
The evidence fails to establish, however, either that Ja-
cobson was aware Bradford engaged in union activities
while an assistant director" or that her union activities
while an assistant director was the reason for her dis-
charge; rather, it is clear from Jacobson's 30 January re-
marks to Hachtel and her 31 January remarks to Brad-
ford and Massenburg, she was outraged that her former
assistant director participated in the campaign "behind
her back" and was determined to terminate Bradford's
employment therefor, without regard to when Bradford
engaged in such participation or what position she held
while so engaged.
Although I reject the Employer's contention Bradford
was discharged for violating a valid no-solicitation/no-
distribution rule, 26 I fmd and conclude the Employer by
Jacobson discharged Bradford on 31 January for the
union activities Bradford was engaging in at and shortly
before the time she was discharged; i.e., her union activi-
ties while she was employed as a teacher, and the Em-
ployer thereby violated Section 8(a)(1) and (3) of the
Act. 2 7
2. Alleged surveillance and threats addressed to
Bradford by Jacobson
The General Counsel and the Union contend in the
course of the 31 January Jacobson-Bradford-Massenburg
conference, when Jacobson responded to Bradford's
statement she was actively supporting the Union's orga-
nizational campaign with the comment Jacobson was
aware of that, Jacobson gave Bradford the impression
the Employer was surveilling its employees' union activi-
ties and thereby violated the Act.
reject that contention. Jacobson's response gave no
indication she was other than the passive recipient of
25 Whether Jacobson gamed her knowledge of Bradford's union activi-
ties (as she claimed) by virtue of an anonymous telephone call shortly
before the discharge or (as she told Hachtel) a chance overhearmg of
Bradford advocating union representation while conversing with another
unidentified employee at the center on an unidentified date or (as she told
Giuntoli) from Jan Clark on an unidentified date, I find and conclude she
did not acquire her knowledge of any Bradford union activity until short-
ly before her 30 January conversation with Hachtel and her 31 January
conference with Bradford and Massenburg, as demonstrated by her
friendly and accommodating attitude towards Bradford on 29 January
when contrasted to her hostile attitude and revocation of Bradford's
work assignments on 31 January and her remarks to Hachtel on 30 Janu-
ary.
" The Employer failed to demonstrate Jacobson was aware of any
such rule violation by Bradford or that she discharged Bradford therefor;
the argument appears to be an afterthought neither seriously advanced
nor supported.
22 Pepsi-Cola Bottlers, 267 NLRB 1100 (1983).
voluntarily furnished information Bradford was involved
in the campaign. As the Board stated in a recent case,
Bradford "could not reasonably believe from it alone [Ja-
cobson's comment] that the Respondent had intentionally
embarked on a course of monitoring the union's activi-
ty."28 I therefore shall recommend those portions of the
complaint so alleging be dismissed.
The General Counsel and the Union also contend
during the 31 January conference Jacobson threatened
Bradford with discharge for engaging in union activity
by telling Bradford she was not going to receive any fur-
ther work assignments when reminded Bradford was
currently employed as a teacher and not an assistant di-
rector.
I find merit in that contention; the comment, in the
context of Jacobson's earlier statements, she felt she no
longer could work with Bradford because Bradford cam-
paigned for the Union "behind her back" carried the
threat of loss of future employment.
I therefore find and conclude the Employer, by Jacob-
son, on 31 January violated Section 8(a)(1) of the Act by
threatening Bradford with loss of employment for engag-
ing in union activities protected by the Act.
The General Counsel and the Union further contend
during the 31 January conference Jacobson threatened
Bradford with interrogation of the Pittsburg center's em-
ployees about their union activities when she told Brad-
ford she was expecting the arrival of management repre-
sentatives from outside the area to discuss with the Pitts-
burg center's employees management's views concerning
their union representation.
I find that communication does not constitute a threat
of unlawful interrogation of the center's employees con-
cerning their union activities; Section 10(c) of the Act
gives management the right to express to employees
management's view concerning their union representa-
tion, so an announcement of an intention to exercise that
right is not violative of the Act.
I therefore shall recommend those portions of the
complaint so alleging be dismissed.
3. Alleged threat addressed to Giuntoli by Jacobson
The General Counsel and the Union contend on 3
February Jacobson threatened Giuntoli with the dis-
charge of any union supporters among the employees by
informing Giuntoli that Bradford would no longer be
working at the center because of her union activities.
I find merit in that contention; Jacobson's remark
clearly implied union support jeopardized continued em-
ployment.
I therefore find and conclude by the 3 February Ja-
cobson statement just set forth the Employer violated
Section 8(a)(1) of the Act.
4. Alleged surveillance and solicitation of and
promise to remedy grievances
The General Counsel amended the complaint at the
outset of the hearing to add allegations the Employer
28 Clark Equipment Co, 278 NLRB 498 (1986).
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
violated the Act by a Hill or Cora Anderson statement29
at a mid-February meeting they were holding the meet-
ing because they heard the employees were dissatisfied
with their working conditions and a Hill invitation the
employees express their concerns or complaints accom-
panied by an implied promise to remedy those com-
plaints.
Neither allegation has merit. Even presuming it was
Hill who stated he and Pardue were holding the meeting
because they heard the employees were dissatisfied with
their working conditions,3° that statement fails to sup-
port an inference the Employer was surveilling the em-
ployees' union activities; the information could have
been volunteered or it may have come from manage-
ment.31
With respect to the latter allegation, while I have en-
tered findings Hill invited Giuntoli and Cox to express
their concerns or complaints and they responded with
complaints their wages were too low and they were
unduly burdened by insufficient staffmg in the early
morning, the Employer rebutted any inference the invita-
tion carried an implied promise to remedy their com-
plaints by the employees' admission Hill made the non-
commital response he would "look into" their com-
plaints, accompanied by the firm statement he could not
promise he would remedy them. Such a response fails to
establish an essential element for a finding of violation,
i.e., that the Employer either directly or by implication
promised to remedy the employees' complaints (nor does
the grant of wage increases 2 months later)."
5. The wage and benefit improvements
I have entered findings the Employer granted wage
and benefit improvements to discourage employees from
seeking and securing union representation.
I conclude by that conduct the Employer violated
Section 8(a)(1) of the Act.33
CONCLUSIONS OF LAW
1.At all pertinent times the Employer was an employ-
er engaged in commerce in a business affecting com-
merce and the Union was a labor organization within the
meaning of Section 2 of the Act.
2. At all pertinent times Wyatt, Benowitz, Hill and Ja-
cobson were supervisors and agents of the Employer
acting on its behalf within the meaning of the Act.
3. Bradford was a supervisor and agent of the Employ-
er acting on its behalf while employed as an assistant di-
rector.
4. On 31 January the Employer threatened Bradford
with discharge for engaging in union activities, thereby
violating Section 8(a)(1) of the Act.
5. The Employer discharged Bradford cn 31 January
for engaging in union activities while employed as a
teacher, thereby violating Section 8(a)(1) and (3) of the
Act.
6. On 3 February the Employer , threatened Giuntoli
with the discharge of any union supporters, thereby vio-
lating Section 8(a)(1) of the Act.
7. In March and April the Employer violated Section
8(a)(1) of the Act by granting wage and benefit improve-
ments to discourage employees from seeking and secur-
ing union representation.
8.The Employer did not otherwise violate the Act.
9. The aforesaid unfair labor practices affected and af-
fects commerce as defined in the Act.
TILE REMEDY
Having found the Employer engaged in unfair labor
practices, I recommend the Employer be directed to
cease and desist therefrom and take affirmative action de-
signed to effectuate the purposes of the Act.
Having found the Employer unlawfully discharged
Johnnie Bradford for union activities she engaged in
while employed as a regular part-time teacher, I recom-
mend the Employer be ordered to reinstate Bradford as a
regular part-time teacher and make Bradford whole for
any loss of earnings and benefits she suffered as a result
of her discharge, less any net interim earnings, calculated
in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest on the sum or sums due
computed in accordance with the formula set out in Flor-
ida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing
Co., 138 NLRB 716 (1962). In accordance with Sterling
Sugars, 261 NLRB 472 (1982), I also recommend the
Employer be ordered to remove from its records and
files any reference to Bradford's discharge and notify her
in writing that has been done and evidence relating to
her unlawful discharge shall not be used in any further
personnel actions against her.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds4
ORDER
29 A misidentification; the General Counsel believed it was Anderson
rather than Pardue who participated in a mid-February meeting called by
Pardue and Hill attended by Hachtel, Giuntoli, and teacher Norma Cox
at the Pittsburg center.
3° Flachtel was unable to specify whether it was Pardue or Hill who
made the statement in question.
3 The General Counsel neither referred to nor cited any support for
this portion of the complaint in her posthearing brief.
32 Radio Broadcasting Co., 277 NLRB 1112 (1985); Mariposa Press, 273
NLRB 528 (1984); Cutting, Inc., 255 NLRB 534 (1981), enfd as modified
701 F.2d 659 (7th Cir. 1983).
33 NLRB v. Exchange Parts Co., 375 U.S. 405 (1964); Woodcliff Lake
Hilton, 279 NLRB 1064 (1986); Dandridge Textile, 279 NLRB 89 (1986);
William T. Burnett & Co., 273 NLRB 1084 (1984); and Sarah Neuman
Nursing Home, 270 NLRB 663 (1984)
The Respondent, Kinder-Care Learning Centers, Inc.,
Pittsburg, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge for sup-
porting United Automobile Aerospace and Agricultural
34 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
KINDER-CARE LEARNING CENTERS 517
Implement Workers of America, AFL-CIO, District 65,
or any other labor organization.
(b) Granting wage and benefit improvements to dis-
courage its employees from supporting the above or any
other labor organization.
(c) Discharging its employees for supporting the above
or any other labor organization.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Johnnie Bradford immediate and full rein-
statement as a regular part-time teacher or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or any other rights or
privileges previously enjoyed, and make her whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against him in the manner set
forth in the remedy section of the decision.
(b) Remove from its files any reference to Bradford's
unlawful discharge and notify Bradford in writing that
this has been done and that the discharge will not be
used against her in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facilities at Pittsburg, Antioch, and Con-
cord, California, copies of the attached notice marked
"Appendix B."35 Copies of the notice, on forms provid-
ed by the Regional Director for Region 32, after being
signed by the Respondent's authorized representative of
Kinder-Care Learning Centers, Inc. shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
35 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."