Medical Mutual of Cleveland

MEDICAL MUTUAL OF CLEVELAND 441 Medical Mutual of Cleveland, Inc. and Office and Professional Employees International Union Local 17, AFL-CIO-CLC, and Mickey Woods and Mary Jane Olsen. Cases 8-CA-12300, 12412, and 8-CA-12667 March 13, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On October 24, 1979, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, counsel for the Gener- al Counsel and Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions' and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Medical Mutual of Cleveland, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concern- ing their union activity. (b) Discharging or otherwise discriminating against employees because they elect to pursue their statutory remedies as defined in Section 7 of the Act. I Counsel for the General Counsel and Respondent have 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 preponder- ance 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 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Counsel for the General Counsel also excepts to the Administrative Law Judge's failure to give a broad order in his recommended Order and notice to employees. Respondent has not been shown to have a proclivity to violate the Act. nor has it engaged in such egregious or widespread misconduct as to demonstrate a general disregard for its employees' fun- damental statutory rights. Hickmort Foods, Inc., 242 NLRB No. 177 (1979). Therefore, we shall deny counsel for the General Counsel's ex- ception. 2 The Administrative Law Judge inadvertently failed to include a cease-and-desist provision for the 8(aX4) finding in his recommended Order. We have included this provision and, although we have adopted the Administrative Law Judge's recommended Order, we are restating the Order in full to provide language traditionally used by the Board. 248 NLRB No. 74 (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following action designed to effectu- ate the purposes of the Act: (a) Offer Mary Jane Olsen immediate and full re- instatement to her former position or, if such job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings she may have suffered as a result of the discrimination prac- ticed against her, plus interest. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its facility in Cleveland, Ohio, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent shall be posted by Respon- dent 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant 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 After a hearing at which all parties were represent- ed by their attorneys and afforded the opportunity to present evidence in support of their respective positions, it has been found that we have violated the National Labor Relations Act in certain re- 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spects and we have been ordered to post this notice and to carry out its terms. The National Labor Relations Act gives you, as employees, certain rights including the right: To engage in self-organization To form, join, or help a union To bargain collectively through a repre- sentative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT coercively interrogate our employees concerning their union activity or sympathy. WE WILL NOT discharge or otherwise dis- criminate against employees because they have elected to pursue the remedial procedures available under the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Mary Jane Olsen immediate and full reinstatement to her former position or, if that position no longer exists, to a sub- stantially equivalent position, without preju- dice to her seniority or other rights and privi- leges previously enjoyed, and WE WILL make her whole for any loss of earnings she may have suffered by reason of our discrimination against her, plus interest. MEDICAL MUTUAL OF CLEVELAND, INC. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This case was opened initially and heard by me on April 23, 24, 25, and 26, 1979, on four separate complaints and an order of consolidation dated March 26, 1979. By virtue of that Order, the following cases were joined for hear- ing and decision: 1. A complaint in Case 8-CA-12300 issued on Novem- ber 2, 1978, upon an initial unfair labor practice charge filed on September 29, 1978, alleging that Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by discriminatory application of absence/tardy guidelines and the discharge of Jacque- lyn L. Willis, in reprisal for union or other activity pro- tected by Section 7 of Act. 2. An Order consolidating cases, and a complaint, in Case 8-CA-12412 issued on December 27, 1978, upon an original charge filed on November 20, 1978, alleging that Respondent independently violated Section 8(a)(1) of the Act through coercive interrogation, surveillance of union activity and creating the impression thereof, and violated Section 8(a)(3) and (1) of the Act both by giving em- ployee Mickey Woods an unfavorable performance rating and thereafter disparately applying its training de- partment guidelines for insubordination against her, all because she had engaged in union activity or activity protected by Section 7 of the Act. 3. A complaint in Case 8-CA-12487 issued on Febru- ary 2, 1978, upon a charge filed on December 28, 1978, which, as amended, alleged that Respondent indepen- dently violated Section 8(a)(1) of the Act by creating the impression of surveillance, and by refusing to curtail the harassment of an employee by fellow employees because the latter had engaged in union activity, and by threaten- ing an employee with respect to union activity. It was further alleged that Respondent violated Section 8(a)(3) and (1) of the Act by issuing a first warning to Olive Senich on August 4, 1978, because she engaged in union or activity protected by the Act.' 4. A complaint issued in Case 8-CA-12667 on March 26, 1979, upon a charge filed on March 7, 1979, which, as amended, alleged that Respondent violated Section 8(a)(1) and (3) of the Act by instituting production stan- dards to discourage union activity, by orally warning Mary Jane Olsen that her level of production was low, and by placing Olsen on a 30-day probation, all in repri- sal for her union activity or conduct protected by Sec- tion 7 of the Act. The complaint, as amended, further al- leged that Respondent violated Section 8(a)(1), (3), and (4) of the Act by discharging Olsen on March 28, 1979. Respondent, in its duly filed answers, denied that any unfair labor practices were committed. Following close of the hearing, briefs were filed on behalf of the General Counsel and Respondent. Upon the entire record in this proceeding,2 including personal observation of the witnesses while testifying and their demeanor, and consideration of the post-hearing briefs, I find as follows: FINDINGS OF FACT 1. JURISDICTION Respondent is an Ohio corporation, with a principal place of business in Cleveland, Ohio, from which it is en- gaged in the sale of medical, surgical, and dental insur- ance coverage. In the course and conduct of said oper- ations, Respondent derives gross revenues exceeding On April 25, 1978, in the course of the hearing, pursuant to a settle- ment agreed to by all parties, the Charging Party in Case 8-CA-12487, Olive Senich, moved for withdrawal of her charge and, accordingly, counsel for the General Counsel moved for dismissal of the complaint therein. The foregoing was granted by me, and based thereon Case 8- CA-12487 was severed from the instant consolidated proceeding and dis- missed. 2 Pursuant to a request by counsel, after close of the hearing I submit- ted a "stipulation" relative to employee Ann Weaver during the time period March 1, 1979, through March 28, 1979. Said exhibit is received and marked "Administrative Law Judge Exhibit 4" Pursuant to stipula- tion, I also received Resp. Exh. 19(b), being the 1978 time record of em- ployee Shari Jenkins, and Resp. Exh. 20(a), being a warning notice dated September 11, 1978, issued to employee Daisy Williams G.C. Exh. 30(a) pertaining to attendance records of Shari Jenkins, and G.C. Exh. 30(b), like records of Daisy Williams are received. MEDICAL MUTUAL OF CLEVELAND 443 $500,000 annually, and on annual basis performs services for customers located outside the State *of Ohio exceed- ing $50,000 in value. The complaints allege, the answers admit, and I find that Respondent is now 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. II. THE LABOR ORGANIZATION INVOLVED The complaints allege, the answers admit, and I find that Office and Professional Employees International Union, Local 17, AFL-CIO-CLC (OPEIU), is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR L.ABOR PRACTICES A. Preliminary Statement This proceeding relates to adverse personnel action by Respondent against several employees during the course of and following an organizational campaign. The var- ious complaints charge violations which, being disassoci- ated in their nature and timing, do not appear to have been interwoven in an overall campaign to defeat union- ization through unfair labor practices. On the contrary, the treatment accorded each of the alleged discriminatees gives rise to an independent case requiring independent analysis. By way of background it is noted that in the years since 1974 several unions had sponsored activity in the vicinity of Respondent's premises reflective of their in- terest in organizing Respondent's employees. The instant case emerges from a specific organizational effort initiat- ed by OPEIU in September 1977. That campaign appar- ently was slow in accelerating, but was revitalized in February 1978 when handbilling intensified. Thereafter, union meetings were held with increased regularity. On July 11, 1978, a representation petition was filed by the Union. Pursuant thereto an election was conducted on November 3, 1978, with the Union failing to receive ma- jority support by a somewhat decisive vote of 109 for representation and 162 against. The Union filed no objec- tions to the election and the results were certified. Essentially, this proceeding concerns alleged acts of discrimination perpetrated against three employees whose support of the Union was known at the time Re- spondent's agents acted against them. Two of these em- ployees were discharged. Thus, Jacquelyn Willis was ter- minated prior to the election on August 31, 1978. Mary Jane Olsen was discharged on March 28, 1979, well after that election. With respect to alleged discriminatee Mickey Woods, it is claimed that Respondent unlawfully on October 1, 1978, rated her performance unfavorably, and on November 8, 1978, afforded her excessive disci- pline, all for discriminatory reasons. Finally, it is alleged that Respondent violated Section 8(a)(3) and (1) of the Act by placing Mary Jane Olsen on probation on Febru- ary 27, 1979. Despite the duration of the campaign, and the fact it was waged among almost 300 employees, in- dependent 8(a)(1) allegations during the preelection period are limited to a single instance of alleged interro- gation, one instance of alleged surveillance, and two al- leged occurrences through which Respondent is charged with creating the impression of surveillance. During the postelection period, the only alleged 8(a)(l) violation pertained to a threat attributed to a supervisor more than a month after the election. B. Interference, Restraint, and Coercion The General Counsel contends that Respondent violat- ed Section 8(a)(l) of the Act through coercive interroga- tion attributed to Peter Alfred. In this connection it ap- pears that a "Communications Committee" was formed during the organizational campaign through which su- pervisors and members of management advanced views in opposition to the Union. Alleged discriminatee Mickey Woods testified that her supervisor, George Morgan, on one occasion instructed her to attend a meeting of the Communications Committee, which was presided over by Alfred, an admitted supervisor. According to Woods, at the outset of the meeting, Alfred stated, "that if there was anyone here that doesn't want to be fair and hear the other side of this, then you may leave." This state- ment is the focal point of the General Counsel's conten- tion. He asserts that this was "a technique for obtaining information and . . . tantamount to subtle interrogation of employees concerning their union sentiments." I agree. Though, perhaps innocently intended, this invita- tion on Alfred's part, while dim to the ears of the indif- ferent or antiunion employees, offered clear challenge to union supporters, who upon acceptance thereof would disclose there sympathy under no uncertain circum- stances. Although perhaps borderline, on balance, I am inclined to agree with the Gerneral Counsel's view that Alfred's remark amounted to conduct which "compels employees to make a choice or exhibit the depths of their pro or antiunion feelings in front of management of- ficials and thus constitutes a subtle form of coercive in- terrogation." See York Division, Borg-Warner Corporation, 229 NLRB 1149, 1151 (1977). Accordingly, I find that Respondent violated Section 8(a)(1) in this respect. The aftermath of the above incident gave rise to a fur- ther allegation that Respondent violated Section 8(a)(1) through statements made by George Morgan, the man- ager of training development, which created the impres- sion surveillance. Thus, Woods walked out of the above meeting in response to Alfred's invitation. She testified, without contradiction, that a few days later, she was summoned to Morgan's office, and informed that her de- parture from the meeting had been reported and that Personnel Director Sharon Lewis (Nee Baier) asked Morgan the reason for Woods' departure. In the course of that conversation, Morgan told Woods, "Well, confi- dentially, Sharon and I had a discussion about you," wherein Lewis stated, "Let's face it, George, Mickey's a pretty bright girl I think we can bring her around to our side." The General Counsel contends that Morgan's ex- pression of an awareness that Woods left the meeting created the impression of surveillance in violation of Sec- tion 8(a)(1). Defining the outer limits of such an unfair 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practice is not without difficulty3 . Nonetheless, Morgan's expression could only be deemed unlawful through a hypersensitive, technical, and most unrealistic application of statutory principles. Woods' departure from the meeting was at the instance of a management representative and in his presence. It is difficult to imag- ine that such an overt act would be anything but common knowledge of a type hardly of alarm to Woods when reiterated by Morgan. The 8(a)(1) allegation based thereon shall be dismissed. The General Counsel also contends that Respondent violated Section 8(a)(1) of the Act through an alleged threatening remark made to employee Olive Senich by an admitted supervisor, Gayle Thompson. On December 20, 1978, Senich, a known union protagonist, was given a first warning based upon a complaint from a subscriber.4 Both Senich and Thompson relate that Senich previously had expressed concern to Thompson that "the Company was out to get . . . [Senich] . . . because of . . . union activity." Thompson on those occasions had always denied that this was the case. However, when the De- cember 20 warning was delivered by Thompson, the latter according to Senich, stated, "Now, I know they're out to get you." The General Counsel argues that, by virtue of this latter statement, Thompson acknowledged that the Company was interested in effecting reprisals against Senich because of her union activity, and was guilty of an implied threat. Thompson denied that any such statement was made. I credit her, and accordingly shall dismiss the 8(a)(l) allegation in this regard.5 C. The Alleged Discrimination 1. Jacquelyn Willis Of the alleged discriminatees in this proceeding, only Willis was terminated prior to the election. The com- plaint pertaining to her cause avers that Willis was the object of two-tiered discrimination. First, it is claimed that in July 1978 Respondent applied its absence/tardy guidelines and, second, that it discharged her on August 31, 1978, for reasons proscribed by Section 8(a)(3) and (1) of the Act. Willis was hired on May 7, 1976. At times material she was classified as a service representative in the subscriber services department, subject to the immediate supervision of Gayle Thompson. Thompson's superior at the time of 3 This is the only statement cited by the General Counsel in his brief as supporting an 8(aXl) allegation based upon the impression of surveil- lance. Although it is possible that the record reflects other statements made by Morgan acknowledging that he was mindful of an employee's union or protected activity, absent guidance from the General Counsel, it is not incumbent upon me to analyze and make elaborate findings with respect to each remark which might fit within the broad spectrum of this allegation. 4 See G.C. Exh. 23(e). s In the circumstances, aside from concern for Senich's reliability, the denial by Thompson impressed me as the more probable. The warning on December 20 related to Senich's handling of subscribers. The effort to correct Senich's interaction with subscribers had been the subject of earli- er communications between Tom Mendelsohn, the department manager, and Senich on August 24, 1978. See G.C. Exh. 23(d). The December 20 warning was documented and it struck me as unlikely that Thompson would make the remark imputed to her. in the face of the detailed charges on which the warning was based. Willis' discharge as Thomas Mendelsohn, who had re- cently assumed the position of manager of that depart- ment in July 1978. During the months prior to her discharge, Willis was an active supporter of the Union. She attended union meetings, signed an authorization card in in June 1978, was a member of the employee organizing committee, and distributed union literature and authorization cards to fellow employees. In August 1978, union leaflets were distributed identifying 13 employees, including Willis, as members of the employee in-house organizing commit- tee. 6 Respondent denied that union activity played a role in its decision to terminate Willis, but contends instead that it acted solely upon her tardiness in the face of a final discharge warning. The General Counsel does not deny that valid grounds existed for the discharge, but claims that this was not the "moving cause." Willis, since the inception of her employment, had an adverse attendance record. During the first year of her employment, on October 6, 1976, she received a written warning, stating that any absence or tardiness will be cause for immediate dismissal.7 In April 1977, Willis re- ceived a first warning, based on excessive absenteeism, and the following month, May 19, 1977, received a second warning for excessive absences. On June 29, 1977, Willis was placed on 90-day probation for exces- sive absenteeism and tardiness.8 Before considering the attendance record compiled by Willis during 1978, it is necessary to point out that in January 1977 Respondent adopted new guidelines for controlling tardiness and absenteeism and established a progressive disciplinary system to deal with that prob- lem. Under those guidelines, employees situated similarly to Willis during a given 12-month recording period were permitted 10 incidents or an accumulation of 60 minutes, before discipline would be imposed. In Willis' case, the 12-month recording period ran from May 7, the anniver- sary of Willis' date of hire. Discipline prescribed by the new guidelines recommended a first warning not to exceed 90 days for exceeding the 10-occurrence-60- minute tolerance. A second occurrence would result in a second 90-day warning. If the employee were tardy again, the employee was to be placed on probation not to exceed 90 days, with any tardiness during the course thereof being grounds for dismissal. During the period preceding her discharge, Willis' at- tendance problem persisted. On February 16, 1978, she received a first warning for compiling nine instances of tardiness during the period January 1, 1978, through February 16, 1978. 9 Thereafter, on April 26, 1978, Willis was given a second warning for an additional occurrence of tardiness, explicitly acknowledging that she would be placed on probation if she were to arrive late again.10 As of May 9, 1978, Willis was late again and placed on a 90-day probation as of that date, with the terms thereof reciting "should you have an additional occurrence of e See G.C. Exhs. 2 and 3. ' See G.C. Exh. 4. a See G.C. Exh. 7. 9 See G.C. Exh. 8 10 See G.C. Exh. 9. MEDICAL MUTUAL OF CLEVELAND 445 tardiness, you could be subject to termination." During her probation, Willis was late on at least five additional occasions. On August 3, 1978, Willis was again late for work by some 3 minutes. This was the sixth occurrence of tardi- ness accumulated by Willis since she was placed on pro- bation on May 9. In consequence thereof, Mendelsohn, her manager, advised Willis that, though authorized by the guidelines to effect a discharge, he would not do so at the time, but instead would issue a final warning, which recited as follows: As of 8/3/79 you have exceeded the terms of your probation issued 5/9/79. This is to inform you that your next tardy will mean immediate discharge. 2 Mendelsohn assumed the position of manager of Willis' department in July 1978. He explained, with corrobora- tion from Gayle Thompson, that because he was new and still familiarizing himself with company policies and procedures as well as the employees under his supervi- sion, he elected to give Willis a break, through a final warning rather than to discharge her on August 3. 3 On August 31, 1978, Willis reported for work 2 min- utes late. At 4:30 p.m. that afternoon, Mendelsohn dis- charged her. While I am willing to accept as entirely likely and be- lievable the testimony of former Personnel Director Baier that the absence-tardy guidelines were adminis- tered with flexibility and a degree of variance from de- partment to department, the General Counsel's cause is enhanced with respect to the treatment accorded Willis thereunder, when considered against the timing of Re- spondent's discovery of her union involvement. Thus, the General Counsel observes accurately that prior to August 3, Willis on a number of occasions had violated her probation through at least five instances of lateness. Respondent reacted by condoning these occurrences until August 3, and then decided, in an act of leniency, to disregard the prerogative of discharge. '4 In the inter- " Although Willis' recording period would ordinarily run from May 7, 1 find that the probation on which she was placed on May 9 was not in violation of the guidelines. Based upon the credited testimony of former Director of Personnel Sharon Baier, I find that it was the intention of the guidelines that a new recording year not commence until satisfaction of all pending discipline, whether a warning or probation. As the 90-day warning issued to Willis on April 26 had not expired, there was no viola- tion of the guidelines when she was placed on probation even though this occurred after her anniversary date. 12 See G.C. Exh. 12. Is The final warning of August 3 was open-ended, lacking in time limi- tation. Willis testified that she was told by Thompson at the meeting in question that the warning would only last until her probation expired on August 9. But Mendelsohn and Thompson credibly denied Willis' testi- mony in this respect. Although I held reservation as to Mendelsohn's credibility, particularly with respect to his attempted denial of knowledge of Willis' union activity, I regarded Willis as an untrustworthy witness generally. In this instance, her testimony was highly improbable. Mendel- sohn and Thompson were aware that Willis was to begin her vacation on August 7. Since August 3 was a Friday, if Willis were to be believed, Mendelsohn and Thompson went to the trouble of issuing a final warning which would be effective for only a single working day. I do not believe that this was their intention or that they made any expression along that line to Willis. In passing it is noted that I regarded Willis as a most un- impressive witness. "4 There is no merit in the allegation that Respondent in July unlaw- fully applied the guidelines against Willis. During that period, deviations im, which preceded her discharge of August 31, Willis' name appeared on the union leaflet as a member of the organizing committee. Former Personnel Director Baier testified that on August 31 she was consulted by both Thompson and Mendelsohn concerning the decision to discharge Willis. She admits that prior thereto, and in mid-August, she discovered that Willis was a union ad- herent, learning thereof through the union leaflet distrib- uted in mid-August which named her as a member of the organizing committee. Thompson also admitted that she had learned of Willis' union activity from the same source, and that she knew this prior to the discharge. 5 Mendelsohn, although denying having seen the union leaflet identifying the members of the employee organiz- ing committee, admitted his awareness that Willis was a union protagonist, and that he learned this prior to the discharge. However, he claims that he was first informed of this fact when he consulted the personnel department on August 31, when he expressed his intention to pro- ceed with the discharge. 6 Troublesome is the fact that Thompson and Mendel- sohn, at a time when unaware of Willis' union activity, acted with hesitancy, though the latter on five separate occasions presented cause for discharge. This, coupled with the discharge, on the heels of a 2-minute lateness, after her union activity became known generates an aura of suspicion. Yet, on the other hand, Willis' inability to respond to discipline during 1978 was marked by compi- lation of an atrocious record for tardiness. Discharges for that reason were not uncommon in Respondent's oper- ation and no evidence exists that Respondent condoned any record approaching that of Willis among nonunion employees. Although the issue is not entirely free from doubt, in these circumstances, I am unwilling to find that union activity contributed to the decision to effect this discharge. To hold otherwise is to assume that Respon- dent, by virtue of its supervening discovery of Willis union activity, had to withhold the discipline which was both clearly communicated and the subject of a prior warning based upon considerations bearing no relation- ship to union activity. Inasmuch as Respondent showed no propensity during the preelection campaign to engage in acts of discrimination or to single out known members of the employee organizing committee for adverse action, I am convinced that Respondent has substantiated its defense, and that the General Counsel failed to estab- lish by a preponderance of the evidence that the August 31 discharge of Willis was in whole or in part a reprisal for union activity. Accordingly, I shall recommend dis- missal of the 8(a)(3) and (1) allegations in this respect. from the guidelines in the face of her attendance record actually benefit- ed Willis. Further there is no evidence that Respondent was aware of her union activity during that time frame. i5 In addition, Rose Incarnato, an employee of Respondent and the roommate of Thompson, testified that she attended a union meeting in August 1978 wherein she observed Willis seated in the area occupied by the employee leaders of the union drive. Incarnato testified that on that same evening she conveyed this fact to Thompson. ie Mendelsohn's testimony reflects considerable confusion on the ques- tion of his knowledge of Willis' union activity. Thompson testified that she could not recall whether or not she had discussed this subject with Mendelsohn prior to the discharge. I am inclined to believe that she did. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Mickey Woods Woods was hired on August 4, 1975. In October 1977, she was promoted to the position of technical trainer in the training and development department. The allegation in the complaint pertaining to Woods sets forth that in October 1978 she received an unfavor- able performance rating causing her to receive a reduced wage increase, and that in November 1978 Woods was placed on probation, all because of her activity in sup- port of the union. In connection with the October 1978 performance evaluation, pursuant to Respondent's established policy, employees are evaluated on the anniversary of their pro- motion. In consequence of the October 1978 evaluation, Woods was rated "highly effective" by Patricia James, her immediate supervisor, and George Morgan, a train- ing department manager. Morgan at that time recom- mended and Woods received a $20 weekly, or 9.3 per- cent, increase in her salary. 7 Nonetheless, at least through the pleadings, the General Counsel placed this rating under interdict. The rating form used as part of the evaluation required the supervisor to evaluate performance in a number of different areas by awarding a point value within a I to 10 range. On the evaluation in question, Woods was downgraded in the area of cooperation and judgment. Woods' with apparent endorsement of the General Counsel,' 8 claims that the relatively lower grades that she received in these areas were based on resentment of her union activity and involved discrimination, causing a reduction in the amount of her annual increase. Supervisor Pat James, who prepared the written evalu- ation, as well as Department Manager George Morgan admitted to an awareness of Woods' union sympathy at the time the evaluation was prepared. Both denied that this factor entered into their consideration of Woods' performance. However, to avoid belaboring the issue, I am convinced from the record that union activity did not enter into the evaluation process. Prior thereto, going back several months, there was evidence that Woods and three other trainers were having difficulties with their re- lationship to Pat James, who had been promoted to the position of supervisor in June 1978. She had not previ- ously served as a trainer, and apparently had no experi- ence in that type operation. The friction that existed be- tween the trainers and James resulted in several meetings between them in an effort to resolve differences. It is a documented fact on this record that Woods, prior to the evaluation in question, openly expressed her disagree- " The evaluation form utilized by Respondent and that which is in question here consisted of five ratings in terms of overall performance: outstanding, highly effective, effective, fair, and marginal. 's Counsel for the General Counsel in his post-hearing brief developed no argument or claim in support of this allegation. Additionally, in the remedy he proposes therein, no provision was requested which would reach this alleged incidence of discrimination. Nonetheless, the issue was the subject of extensive litigation through parole testimony and documen- tation, and the General Counsel has not indicated an intention to drop this allegation. Indeed, if that were the intent and counsel for the General Counsel elected to remain silent, his action would only serve as a burden to the administrative process, by requiring me to study the evidence, ana- lyze it, and draw the inferences arising thereform, all as part of a mean- ingless charade. ment with James and Morgan and made charges that Morgan "is using poor judgment in department matters . . .[and] . .. has misrepresented the department in a few matters."' 9 Indeed, Woods, starting in September 1978 began keeping logs of her disagreements with James and Morgan. In these circumstances it is conclud- ed that the limited downgrading of Woods in the area of judgment and cooperation stemmed directly from these differences and had nothing to do with her union sympa- thy. Significant in this connection is the fact that the 9.3- percent increase accorded Woods on the heels of this evaluation was not unrepresentative of those received by trainers upon their 12-month review in the relevant time period. I also believed the testimony of Morgan that the lower rated scores afforded Woods in the area of judg- ment and cooperation did not bear directly upon his salary increase recommendation. Finally, her overall classification as "highly effective" is hardly suggestive of a vendetta against Woods. In the above circumstances, I find that the allegations that Woods' performance evalua- tion was influenced adversely by her union activity has not been substantiated and I shall dismiss that allegation. It is further alleged that Respondent violated Section 8(a)(3) and (1) of the Act by discipline meted out to Woods on November 9, 1978, on the heels of a confron- tation between Woods and Pat James. That morning, the trainers were scheduled to participate in a parallel train- ing session and to teach an afternoon session. Previously, James and Morgan had scheduled themselves to teach the morning classes. When the parallel training session scheduled for that morning was canceled on the previous evening, James early on the morning of November 8 re- quested Woods to teach the morning class so that she could take care of other obligations she had. She asked Woods to do so. Woods refused, a response which ulti- mately grew into a heated exchange and a display of emotion on the part of both Woods and James, within earshot of employees in another department. Thereafter, Woods approached Department Manager Morgan re- porting that she had just had a heated discussion with James, stating that she was "tired of this type of thing and would not take it anymore." Morgan asked Woods if she would like to discuss it further, and when she re- sponded in the affirmative he suggested that they return to his office. Morgan told Woods he would meet with her but only in the presence of James. Woods agreed. In the office, Woods and James afforded their respective accounts of what had occurred earlier that morning. Once more a heated debate ensued, with James insisting that Woods teach the morning session, and Woods re- sponding that she would not do so. An exchange along this line continued repeatedly until James pointed her finger at Woods insisting that Woods take the session. Woods then responded, "Do not point your finger at me; the only person that is allowed to point their finger at me is my mother." After this, James indicated, "Well, you will do the session." Woods replied, "I won't," and walked out of the office without giving any indication as ig See Resp. Exh. 19 (Employee's Comments). MEDICAL MUTUAL OF CLEVELAND 447 to where she was going or whether or not she would honor the instruction from her supervisor. 20 On November 9, Woods was given a written warning, the text of which recited as follows: This is to inform you that because of your refusal to accept an assignment to teach a 9 a.m. class on Wednesday, November 8, 1978 and your unwar- ranted outburst of shouting and abusive language di- rected at your supervisor, you are being placed on probation for insubordination. This action follows a series of similar outbursts, in the recent past. Your probationary period will be in effect for 30 days from today, Thursday, November 9, 1978 until Friday, December 9, 1978 at 5 p.m. Any repetition of insubordinate acts within the 30 day period will result in your termination. A copy of this memo will be forwarded to the per- sonnel department and placed in your file. The General Counsel does not dispute the accuracy of the acts recanted in the above warning. Nor does he dis- pute that Woods was entitled to some form of disciplin- ary action. Instead, it is the General Counsel's claim that under the guidelines for insubordination published by Re- spondent as applicable to the training department, Re- spondent should have responded first with an oral warn- ing, rather than probation. It is true that under the appli- cable guidelines a progressive system of discipline was endorsed, commencing with an "oral warning" for the first infraction, "written warning" for the second infrac- tion, and probation, for a third infraction. As of Novem- ber 8, Woods had received no prior warnings. Thus, it is obvious that strict observance of the guidelines would have resulted in issuance of an oral warning. Instead Re- spondent proceeded to the third step in the progressive disciplinary system. Former Personnel Director Lewis (Baier) testified that this action was taken because of the seriousness of Woods' offense.2' James, Morgan, and Lewis admittedly were mindful of Woods' prounion sentiment. 2 2 Indeed, on November 3, 1978, the date of the representation election, Woods ap- proached several employees who were concerned as to a suggested voting schedule offered by their supervisor. Woods attempted to allay confusion among the employ- ees and to assure them that they would in no way be denied the opportunity to vote within the polling period. 20 Woods did appear at the morning training session, auditing the 9 a.m. session which was in fact given by another trainer, and then going on to teach the 10 a.m. session. 21 Respondent's testimony as to the origin of this decision is in dishar- mony. Lewis testified that she discussed the matter with Morgan and James, both of whom recommended that Woods be placed on "written warning" the second step under the guidelines. Lewis goes on to relate that she overruled them favoring probation, a recommendation which they ultimately accepted. Morgan testified that in his conversation with Lewis, he "felt that we should go directly to probation." Morgan testi- fied that Lewis agreed with his recommendation James testified that she, together with Morgan, had decided on a probation, and that Lewis made no specific recommendation 22 It will be recalled that uncontradicted testimony establishes that prior to the election Woods departed from a antiunion meeting, and that Woods was informed by Morgan that Lewis had inquired as to the reason for Woods' action in this respect. Shortly after this, Morgan called Woods to his office, stating, "Mickey, I don't want you harassing the employ- ees with union talk during company time." This incident was repeated some 15 minutes later when Morgan, with Lewis present, again called Woods to his office, warning, "Mickey, I don't want you harassing the employees with union talk." There is no question as to Respondent's departure from its established system of discipline in placing Woods on probation on November 9. While I would agree that the offense of Woods was serious in that she persistently and repeatedly violated a direct instruction and did so in the presence of employees in another de- partment, insubordination is always serious and it is diffi- cult to make gradations where the conduct is limited to emotional diatribe. Although it is not within my author- ity nakedly to speculate as to the wisdom of manage- ment's judgment, for what it is worth, the reaction of Lewis, Morgan, and James, in skipping the first two steps of the recommended disciplinary system as a result of this offense, strikes as somewhat excessive. At the same time, however, the Union on November 3, about a week earlier, had been decisively rejected at the polls, in an election which was not challenged by the Union. Against that background, I have difficulty accepting the proposition that Respondent would allow old wounds to fester through harassment, particularly in the case of Woods, who was bright, effective, and occupied an im- portant position in Respondent's overall training pro- gram. Instead, on the entire record, I conclude that Woods was regarded by her superiors as a talented, but troublesome employee, who had shown propensities to resist authority in the past, and who had to be dealt with strictly, when on November 8 she allowed herself to be carried away in resisting the instructions of her already embattled supervisor. While conceding again that the question is not free from doubt, it is my conclusion that the discipline afforded Woods on November 8 was in no sense motivated by her union sympathy.2 3 I shall dismiss the 8(a)(3) and (1) allegations in this regard. 3. Mary Jane Olsen Olsen enjoyed a history of employment with Respon- dent dating back to April 1962. However, in July 1963 she resigned and was rehired in September 1964. In March 1967, she again resigned and was again rehired on November 18, 1974. She remained continuously in Re- spondent's employ thereafter until discharged on March 28, 1979. The General Counsel alleges that Respondent violated Section 8(a)(3) and (1) of the Act by orally warning Olsen on October 6, 1978, that her level of production was too low, and by issuing a second warning to Olsen in November 1978 and on February 27, 1979, placing her on 30-day probation by virtue of her productivity. It is further alleged that Respondent violated Section 8(a)(1) and (4) of the Act by discharging her on March 28, 1978, 2: It is noted that Woods was at no time a member of the employee organizing committee, and that her name did not appear on the handbill identifying its members 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of her activity in connection with a pending unfair labor practice charge. Olsen was an active union protagonist during the cam- paign. She attended her first union meeting on May 19, 1978, and signed a union card at that time. Thereafter she attended union meetings regularly, solicited employ- ees to sign union authorization cards, and was a member of the union organizing committee. Her name was among the 13 employees openly identified as serving on the em- ployee organizing committee through handbills distribut- ed by union forces in August 1978. Additionally, she was one of the few employees who, on behalf of the Union, attended a preelection conference held at the National Labor Relations Board on August 1, 1978. Upon occa- sion, while attending antiunion meetings presided over by members of management, she voiced opposition to or questioned the accuracy of information communicated to employees in support of the effort to defeat the Union. It appears that Olsen was first assigned to the Special Accounts Department in June 1977 where she served in the classification of "claims analyst." As such she was re- sponsible for handling and, where possible, favorably re- solving telephone and letter inquiries from union and company representatives disputing action on claims sub- mitted on behalf of insured subscribers. Management was first alerted to a problem of produc- tivity, including backlog and excessive timelags, in the special accounts area in the period coinciding with Olsen's assignment to that department. In consequence, a reporting system was devised subsequently enabling the tracking of both receipt-disposition data and information on pending inventory. This system went into effect in October 1978. Olsen's output became a subject of con- cern to management in November 1978. In connection therewith, Olsen herself testified that in November 1978 at her annual review, her supervisor, David Dubay, told her that her productivity was low. She claims that noth- ing further was said on that occasion, but that she in- formed Dubay that she would try to increase her output. Olsen testified that in December 1978 she was again called aside by Dubay and informed that he was obliged to write a letter through which Olsen would acknowl- edge her low productivity, that she was doing all that she could to correct it, and that she would be working overtime in the attempt to reduce backlog. Olsen read this letter and signed it. 2 4 On February 27, 1979, Olsen received the following memorandum from her department manager, Mendel- sohn: 24 The complaint issued on behalf of Olsen also alleged that Respon- dent violated Sec. 8(a)(1) of the Act by, in October or November 1978, instituting production standards to discourage union activity. The record does not substantiate that discussions between Olsen and supervisors bear- ing upon her lack of productivity during 1978 was in any sense related to her union activity. Credible evidence establishes that prior to the fall of 1978, a productivity problem had been disclosed in the special claims de- partment and that Olsen was among the lowest producers, if not the lowest, during that time frame. There being no evidence that the "warn- ings" issued during that time frame reflected disparate treatment, I con- clude that the October and November incidents described by Olsen amounted to no more than a temperate, nondiscriminatory effort to prod and to increase output Respondent did not violate Sec. 8(a)(l) and (3) in either respect. Recent performance reports reflect a degree of per- formance which does not meet the average perfor- mance level of the other employees in the Special Accounts unit. In November and December 1978, your supervisor notified you that your productivity was below the acceptable level. Performance re- ports for January and February 1979, do not reflect an improvement in your productivity. Therefore, I must advise you that you are being placed on pro- bation for a period of 30 days. If your performance does not improve during the 30-day probationary period or does not reach an ac- ceptable level of production, you will be subject to termination. During your probationary period a review of your productivity will be made to exam- ine your progress. 2 5 Olsen testified that upon receiving this memorandum, she was shocked and upset. She told Mendelsohn that be- cause of backlog she could not work under the pressure of probation, and that therefore she would resign. All agree that at that point efforts were made to reassure Olsen. Betty Lencses, who apparently was a group leader in the special accounts unit, was present on that occasion and told Olsen to sleep on it. Mendelsohn indi- cated that, with Lencses, he had been working on meth- ods to simplify completion of inquiries and that the matter could be worked out, and that there definitely was a place for Olsen in the Special Accounts unit.2 6 The next morning, Olsen was approached by Lencses who advised the former that she would do all she could to help Olsen increase her productivity, going on to indi- 25 I find no merit in the allegation that Olsen was unlawfully placed on probation. Although once again, the issuance of the probation did not strictly follow the policy specified in the employer's handbook (see G.C. Exh. 29), 1 am inclined to view this as mere oversight attributable to zeal, albeit belated, on the part of Respondent's managers to correct a work flow problem in the special accounts department. I find Respondent's tes- timony that productivity levels, backlog, customer complaints, and the failure of the special accounts department to meet national standards on responses to and processing of claimants' inquiries had reached serious proportions in the fall of 1978. It is noted that Olsen's productivity level was the lowest of the six analysts during that time frame She admittedly had been informed of this problem by her supervisor at the time of her annual review in November and had again during the following Decem- ber been asked to acknowledge a written expression as to her low pro- ductivity and the need to improve it. Furthermore, prior to her filing an unfair labor practice charge, Olsen was not the only analyst placed on probation. Thus, Ann Weaver, another of the analysts, was placed on 30- day probation. See Resp. Exh. 16(a). Considering my belief of Respon- dent's testimony that productivity was a serious problem, together with the timing of the probation, long after the Union had failed to achieve designation by a majority, I am convinced that this action against Olsen was based solely upon Respondent's desire to foster increased output from an analyst unable to achieve acceptable levels of output. According- ly, I shall recommend dismissal of the allegation that Respondent violated Sec. 8(a)(3) and () in this respect. 26 On March 2, 1979, Olsen approached Mendelsohn inquiring as to what level of output would constitute "an acceptable level of produc- tion." Mendelsohn, using the output figures for the entire section for I month, divided by the number of days worked, computed an average of 21 cases per day. Olsen told him that she did not feel that she would be able to meet such standard because the cases in her backlog involved dif- ficult breakdowns and collection cases. On March 7, Alfred, a special as- sistant to the president, met with the entire special accounts unit. In the course thereof, the question was raised as to how the productivity stan- dard was determined and when it had been instituted. Alfred gave no de- finitive response, but indicated that he would respond in the future. MEDICAL MUTUAL OF CLEVELAND 449 cate it was not just Olsen's problem but that of the entire unit. 27 Respondent, in defense of the discharge, urges that its action in this regard was predicated solely upon Olsen's failure satisfactorily to fulfill the probation. During its term--that is until the discharge--supervision in the spe- cial accounts unit appeared to act toward Olsen with the same compassion that was manifested at the time her probation was announced. Thus, on March 12, Marilyn Rosul was assigned permanently as the replacement for David Dubay as supervisor in the special accounts unit. On March 15, Olsen met with Lencses and Mendelsohn. Her tally for that week was reviewed and Mendelsohn indicated that there were signs that she had increased her productivity. 28 On March 20, Olsen met with the Rosul and Mendelsohn. Mendelsohn gave Olsen a copy of a letter he had written in response to Olsen's memo through which she had protested her probation.29 Olsen informed Mendelsohn that she thought it was unfair to have the same average for everyone in the special ac- counts unit because the assigned cases varied greatly. Rosul indicated that some form of standard was neces- sary and that she felt that the 15 cases daily was a good average figure stating that Lencses thought that the rate should be higher. Rosul and Mendelsohn discussed meth- ods which would enable Olsen to increase her productiv- ity and Olsen indicated that she would try to improve. Before concluding the conference, Mendelsohn advised Olsen that he would be going on vacation and that during the interim, Rosul would meet with Olsen while he was gone.3 0 Mendelsohn was out of town on vacation from March 21 to 27, 1979. He admits that it was his un- derstanding when he departed for vacation that supervi- sion would continue to work with Olsen to improve her productivity. Olsen was discharged on March 28, 1979, 2 days after a complaint had issued on the charge filed by Olsen on March 7, 1979. That complaint, which issued on March 26, 1979, included a notice, scheduling a hearing thereon for April 9, 1979. Events of March 28, 1979, weigh heavily in support of the claim that Olsen was victimized by an unlawful dis- charge. Thus, Olsen credibly, and without contradiction, testified that at approximately 11 a.m. that morning she 27 At the hearing, Respondent's counsel objected to this testimony on grounds of hearsay, since Lencses was not shown to be a supervisor or agent. Although I indicated that I would make no finding on this evi- dence offered by the General Counsel, it was my intention to ignore it only insofar as prejudicial to Respondent. I rely upon it only as a confir- mation of statements attributed to Mendelsohn disclosing his intent to assist Olsen in her effort to achieve an acceptable level of productivity. 28 On March 16, Rosul met with the special accounts unit and an- nounced a productivity standard of 15 cases daily. Rosul indicated that she felt that this figure was fair and that the difficult cases would average out and still allow employees to meet this level of productivity. 29 On March 5. 1979, Olsen forwarded a memorandum to Mendelsohn protesting her probation. See G.C Exh. 26. 30 Olsen testified that her work was more difficult than that of the other six analysts. No foundation exists for this conclusory testimony Her testimony in this regard seemed argumentative and self-serving and I do not deem it reliable. Indeed, that it was based upon Olsen's specula- tion and assumption is pointed up by her expression that her knowledge that she had more court cases than the others was derived from the fre- quenc) with which "the girls would talk about when they had gotten them or when they had gotten them to do" received a telephone call from an individual identifying herself as Attorney Pat Kablach of the law firm repre- senting Respondent in this proceeding. The latter indicat- ed that she was representing Medical Mutual in Olsen's case before the National Labor Board, and inquired if Olsen would be willing to agree to a postponement of the hearing date since knowledge of her case had just been acquired on March 27, the day before. Olsen indi- cated that tentatively she would not agree to a postpone- ment. Kablach indicated that she would put Olsen down as undecided whereupon Olsen corrected her advising that she should be put down as "no," but that she would talk to her husband and would contact Kablach later. Kablach advised Olsen that she would be at Medical Mutual between I p.m. and 4 p.m. to meet with Mr. Buss, Respondent's in-house counsel. Olsen indicated that she would telephone Kablach at Mr. Buss' office. Later, Olsen talked with her husband, who agreed that the hearing should not be postponed. At approximately I p.m., Olsen tried, without success, to reach Buss or his secretary. At approximately 2 p.m., she again called, and was informed by Denise Barr, a receptionist, that they were in conference. Olsen advised Barr that she would like to speak to Mr. Buss, or the attorney who was with him, and gave her name and extension. By 3 p.m., Olsen, having received no response, called Buss' secretary, Ms. Ackerman, this time reaching her. She informed Acker- man that Ms. Kablach had asked her about a postpone- ment of the hearing date and that Ackerman should inform the former that Olsen would not agree. At approximately 4:10 p.m. on March 28, 1979, Men- delsohn approached Olsen at her work station and asked her to come to his office. Mendelsohn informed her that she was being terminated because her production had failed to reach an acceptable level. Attending the dis- charge interview were Paul Milo, director of claims, who was responsible for the special claims division, Men- delsohn, Olsen, and Rosul. The credible facts substantiate the General Counsel's claim of discrimination in this respect. Olsen was an em- ployee of long standing, and though legitimately placed on probation, during the early stages thereof through March 20, the day before Mendelsohn's departure for his vacation, Olsen was given assurances that management would assist in whatever way it could to enable her to meet its output demands. In fact her production in- creased during her probation by at least 26 percent when considered against her February 1979 figures.31 She was discharged on the first day that Mendelsohn returned to work,32 but only after an unfair labor practice complaint had issued on her charge, and Olsen had expressed to Respondent's counsel that she would not cooperate and assent to their request for a postponement of the hearing 31 See Resp. Exh. 12(b) It is noted in this connection that Mendelsohn testified that during the meeting in which Olsen was notified of her pro- bation, he told her that he "would like to see over the next 30 days some improvement." a: During the meeting with Olsen on March 20, according to Mendel- sohn's testimony, he informed Olsen that she should try to increase, and "the next week, if the standards are met then possibly the probation- ary period would have been completed successfully" 449 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on her cause.33 The foregoing furnishes the predicate for a persuasive prima facie case that the discharge was prompted by Olsen's actions in pursuit of statutory re- dress, an inference of illegality actually enforced by the unbelievable facts offered in defense. Respondent's claim that the discharge was divorced entirely from the pending unfair labor practice charge rests critically upon testimony of Tom Mendelsohn and Paul Milo. Milo claims that he was consulted by Mendel- sohn in connection with the decision to discharge Olsen and supported Mendelsohn's decision. He testified that, in the week of March 26 through 28, he asked Mendel- sohn if Olsen during her probation had made any signifi- cant improvement. Mendelsohn indicated that there was "minor improvement," but her performance was below the expected output. Mendelsohn, according to Milo, at that point recommended termination, and Milo con- curred. When questioned as to when this conference took place, Milo first indicated he had no specific recol- lection, but expressed the belief that it was Tuesday, March 27. With respect to the Olsen unfair labor prac- tice charge and the complaint, Milo admitted that he was aware that Olsen had filed "some sort of complaint," but denied knowing the subject matter thereof. Indeed, although Milo testified that after he and Men- delsohn agreed to discharge Olsen, he talked to the per- sonnel department, and to Mr.Buss,3 4 "to make sure whatever procedures we use to terminate the employee would be acceptable," he claims that, in making these in- quiries, there was no discussion of the unfair labor prac- tice charge filed by Olsen or the pending complaint. Mendelsohn testified initially that he reached the deci- sion to terminate Olsen on Marche 27. However, when confronted with the fact that he had been on vacation between March 21 and 27 and did not report to work until March 28 he conceded that the decision was made on March 28. According to Mendelsohn, in his conversa- tion with Milo that morning, the latter asked what his in- tentions were with respect to the probation. Mendelsohn could not give a response, indicating that he first had to review the reports.3 5 He claims that after reviewing the reports,36 the discharge interview took place. Mendel- 33 Respondent made no effort to counter Olsen's testimony as to her conversations with Kablach, Barr, and Ackerman on March 28. Kablach and Buss, though present during the entire hearing, were not called. Barr and Ackerman, also uncalled, were not shown to be unavailable. Thus, there is no denial that Kablach and Buss or both were informed of Olsen's decision to proceed with the unfair labor practice hearing prior to her discharge that day, s4 Milo testified that he met with Buss at approximately 10 a.m. on March 28. a~ Mendelsohn testified that he met with Marilyn Rosul to check the last statistical report on Olsen's production so that he could determine whether or not she could be terminated. He claims, upon reviewing these documents and finding there had been no increase, he again met with Milo and the decision was finalized. It is noted that, on 3 of the 5 days while Mendelson was out on his vacation, Olsen either met or exceeded the newly established productivity standard. On Monday, March 26, and Tuesday, March 27, the 2 days immediately preceding the discharge, Olsen's output met the standard. See Resp. Exh. 18 36 Mendelsohn testified that in reviewing Olsen's output tallies, he pos- sessed all of them for the weeks Olsen was on probation Thus, on March 28, only a few weeks prior to the opening of the hearing, and while Olsen's unfair labor practice charge was pending, if Mendelsohn is to be believed, these documents were in Respondent's possession. Mysteriously, however, during the interim between March 28 and the opening of the sohn denied knowledge that an unfair labor practice charge involving Olsen was then pending. He testified that he did not learn of this or the complaint until a couple of weeks after the March 28 discharge. The testimony of Milo and Mendelsohn struck me as incredible. Their testimony as to knowledge held in con- nection with Olsen's activity before the National Labor Relations Board seemed entirely improbable. On March 7, some 3 weeks earlier, Olsen had filed an unfair labor practice charge which stated as follows: On or about February 27, 1979 . . . by its officers, agents, and representatives, placed on probation, Mary Jane Olsen, special account analyst, because of her activities on behalf of Local 17, Office and Professional Employees International Union, a labor organization. This was the sole averment in the charge, and it was the action of Milo and Mendelsohn of February 27 to which it was addressed exclusively. Yet, both testified to the effect that they were never informed as to the substance of the proceeding initiated by Olsen in this regard. Indeed, Milo, though having consulted with Attorney Buss on the day of the discharge, claimed that the charge and the complaint, which had been served on Re- spondent's counsel the day before, had not entered their discussion as to the "procedures" to be followed in ef- fecting the Olsen discharge. Furthermore, the initial erroneous testimony of both Milo and Mendelsohn that this decision was actually made on March 27 impressed me as more than either co- incidental or a byproduct of faulty recollection. Quite obviously, had their decision been made at that time, sus- picion arising from the timing of that action in relation to the issuance of the complaint and Olsen's refusal to agree to a postponement would have been mitigated.3 7 In sum, I am convinced that Milo and Mendelsohn af- forded untruthful testimony, and that their adventure with the oath was in furtherance of a transparent effort to conceal the illicit considerations which prompted the Olsen discharge. I find that on March 28 the entire char- acter of Olsen's probation changed from that of assis- tance and assurance to harsh disregard for her length of service solely because of the intervening issuance of the hearing, some of these documents disappeared and could not be relocated for presentation as part of the record in the instant proceeding. a7 It is entirely possible that the above was not the only false effort to "smoke screen" the timing of the discharge. Thus, Milo testified that Olsen was terminated upon completion of her 30-day probation. It will be recalled that Olsen received the probation notification, as dated, on Feb- ruary 27. Unless one were to count February 27, the date of issuance of the probation letter as being part of the probation period, contrary to Milo, the 30-day period actually would have expired on Thursday, March 29. However, Milo testified that February 27 was included in counting the probation period in the case of Olsen. In the case of Ann Weaver, however, for unexplained reasons the computation was made differently. Thus, Weaver received her probation notification on March 5, as dated. See Resp. Exh. 16(a). By memo dated April 4, 1979, Weaver was notified that "as of today" you have successfully completed your probationary period. If the duration of Weaver's 30-day probationary period had been tabulated as Milo testified to have been done in the case of Olsen, the former's probation would have ended on April 3, rather than April 4, as is documented on this record. See Resp. Exh. 16(b). No effort was made to reconcile this discrepancy. MEDICAL MUTUAL OF CLEVELAND 451 complaint on March 27 and/or Olsen's refusal on March 28 to cooperate with Respondent's request for a post- ponement of a scheduled hearing thereon. Accordingly, I find that Respondent thereby violated Section 8(a)(l) and (4) of the Act. CONCLUSIONS OF LAW 1. Respondent Medical Mutual of Cleveland, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Office and Professional Employees International Union, Local 17, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent independently violated Section 8(a)(1) of the Act by coercively interrogating employees con- cerning their union activity. 4. Respondent violated Section 8(a)(4) and (1) of the Act by discharging Mary Jane Olsen on March 28, 1979, because she elected to pursue her statutory remedies pur- suant to the National Labor Relations Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. Except as found above, Respondent has not engaged in any unfair labor practices alleged herein. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As Respondent unlawfully discharged Mary Jane Olsen, I shall recommend that it be ordered to offer her immediate reinstatement to her former position or, if not available, to a substantially equivalent position, and to make her whole for any loss of earnings she may have sustained by reason of the discrimination against her by payment of a sum of money equal to the amount she nor- mally would have earned from the date of her discharge to the date of a bona fide offer of reinstatement, less net interim earnings during that period. Backpay shall be computed on a quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and shall include interest as specified in Florida Steel Corpora- tion, 231 NLRB 651 (1962).38 [Recommended Order omitted from publication.] 38 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The General Counsel urges that the remedial interest rate be increased to 9 percent Consideration of that issue at this level would involve a need- less administrative delay with respect to an area of remedial policy best left to the Board itself.