Meyers, Williams L., Inc.

WILLIAM L. MEYERS, INC. William L. Meyers, Inc. and General Sales Drivers, Delivery Drivers and Helpers Local #14, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 31-CA-10959 and 31-CA-11040 March 7, 1983 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND ZIMMERMAN On October 29, 1982, Administrative Law Judge Timothy D. Nelson issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, William L. Meyers, Inc., Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Lasw Judge, It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces 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. 2 Member Jenkins does not rely on Wright Line, a Division of Wright Line. Inc.. 251 NL RB 1083 (1980). because the Administrative Law Judge found Respondent's asserted reasons for the discharges to be pre- textual, and thus there is only one genuine motive, and that one unlawful, for the discharges here; in his view. Wright Line applies only in cases where there is also a genuine lawful motise for the discharge, as well as the unlawful one. Chairman Miller finds it unnecessary to rely on PPG Industries. Inc., Lexington Plant. Fiber Glass Division, 251 NLRB 1146 (1980), in finding coercive DiGennaro's interrogation of employee Lahtinen. 266 NLRB No. 65 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 sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT question employees about their union activities, sympathies, or beliefs. WE WILL NOT promise to resolve employee grievances or to confer other benefits on em- ployees in order to persuade them not to sup- port union representation. WE WILL NOT threaten to judge employees' performance on the job more harshly because they wish to be represented by a union. WE WILL NOT create the impression that we are spying on employees' union activities. WE WILL NOT discriminate against employ- ees by changing their status, by firing them, or by making other changes in their terms and conditions of employment in order to dis- charge their membership in a union. WE WILL NOT in any other manner or by any other means interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL offer immediate, full, and uncondi- tional reinstatement to employees Renee Lah- tinen and Virginia Bosch and WE WILI. make them whole, with interest, for any losses they may have suffered as a consequence of our dis- crimination against them by firing them in the spring of 1981. WE WILL remove from our records any ref- erences to their having been warned to im- prove or be fired or to their having been put in a probationary status, and WE WILt L similar- 342 WILLIAM L. MEYERS, INC. ly remove all references to their discharges in the spring of 1981. WILLIAM L. MEYERS, INC. DECISION STATEMENT OF THE CASE TIMOTHY D. NELSON, Administrative Law Judge: These consolidated proceedings originated when Charg- ing Party Teamsters Local 14 (Union) filed unfair labor practice charges against William L. Meyers, Inc. (Re- spondent), in Cases 31-CA-10959 and 31-CA-11040 on, respectively, March 18 and April 13, 1981.' After inves- tigation by the Regional Director for Region 31 of the National Labor Relations Board (Board), the Regional Director issued an order consolidating cases, consoli- dated complaint, and notice of hearing on May 4, alleg- ing, inr substance, that Respondent had coerced employ- ees in the exercise of protected rights by threats, interro- gation, surveillance, and by firing employees Renee Lah- tinen and Virginia Bosch because of their activities on behalf of the Union during an attempt to organize Re- spondent's employees. Respondent duly answered, admitting the appropriate- ness of the Board's assertion of jurisdiction and that cer- tain individuals were its supervisory agents, but denying all wrongdoing. I heard the matters at a hearing at Las Vegas, Nevada, on May 18 and 19, 1982. Upon the entire record, including the post-trial briefs filed by the parties, I make these: I. FINDINGS OF FACT AND PRELIMINARY CONCLUSIONS A. Background and Overview Respondent, admitted to be a corporation "duly orga- nized under . . . the laws of . . . Nevada, and/or . . . Illinois," administers employee benefit plans. Its head- quarters are in Naperville, Illinois. In June 1980, in an- ticipation of a November 1980 takeover of the adminis- tration of certain health and welfare trusts created by labor agreements between various unions and Las Vegas- area casinos, restaurants, and hotels, Respondent opened a claims administration office in Las Vegas and began to hire and train adjusters, clerical help, counterpersons, and related staff. Alleged discriminatees Renee Lahtinen and Virginia Bosch were both hired early in this pretakeover period- Lahtinen as an adjuster-Bosch as a counterperson who would deal with "walk-in" inquiries and perform other miscellaneous tasks. The formal takeover and adminstra- tion of the benefit plans began in November 1980.2 ' Unless otherwise stated, all dates hereafter are in 1981 2 Respondent admitted complaint allegations that it "annually sells and ships goods or services valued in excess of $50,000 directly to customers outside . Nevada." and also "purchases and receives goods or services valued in excess of $50.000 directly from suppliers located outside . . . Nevada." Carl Di Gennaro has been at all times material a vice president of Respondent in charge of the Las Vegas office. Jimmy Bowman has been a claims supervisor, with principal responsibility for oversight of the adjust- ers. Vicki King has been an assistant vice president and office manager, with principal responsibility during mate- rial periods for oversight of the counter clerks and other office clerical employees. All of them are admitted to be supervisors within the meaning of Section 2(11) of the Act. 3 Respondent's Las Vegas operation was nonunion when it opened. The record suggests that certain of Respond- ent's employees, including Lahtinen, had been in contact with the Union as early as February. Lahtinen had signed an authorization card for the Union on February 4. The record suggests as well that there had been some kind of visit by the Union's representatives to Respond- ent's office in late February or early March. Vicki King testified that she had overheard some reference to the same at some point in March, before March I 1 or 12. No one contests that Lahtinen had arranged with the Union's President Dambro, for an organizing meeting on the evening of Monday, March 16, and that Lahtinen had undertaken responsibility for passing the word among her fellow employees about the meeting. Among the persons whom Lahtinen so informed was Vickie King, who admittedly received word of it from Lahtinen on either March 11 or 12. On Friday, March 13, credit- ing Lahtinen, Di Gennaro announced that he would con- duct a meeting of employees on Tuesday, March 17,' and, responding to a question, Di Gennaro stated that he intended to "come down hard" on the employees. On March 14 Lahtinen was questioned by Di Gennaro about the Union's organizing effort, all as is further de- tailed below. Lahtinen was fired on April 3. On March 16 Bosch became the only employee other than Lahtinen to have signed an authorization card for the Union. She was formally placed on "probation" on March 18. She was fired on March 31. B. Alleged Unfair Labor Practices 1. March 14 interrogations and threats As both parties agree, Di Gennaro called Lahtinen into his office on Saturday, March 14, and there ensued a discussion about the union drive. 5 Lahtinen was working overtime that day-a common phenomenon during that period because of the backing of claims to process. Lah- 3 Respondent admitted King's status in midhearing. 4The record is not as clear as it could be regarding the precise timing and sequence of events in the period March 12-18, especially regarding the holding or a meeting or meetings by Di Gennaro on either or both March 16 and 17. The date and sequence findings herein reflect my as- sessment of the probabilities and are not wholly consistent with any given witness' recollection. I Di Gennaro admits learning from Vickie King on or about March 12 or 13 that union agents had made a visit to the "confidential office area" some weeks earlier and that on March 13 and 14 he made inquiries about this I am convinced from the record as a whole that King also alerted Di Gennaro about this point that Lahtinen was attempting to enlist other employees to attend a March 16 organizing meeting. In any case, as is set forth below, Di Gennaro independently obtained knowledge of the meet- ing on March 16. 343 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tinen's account here was seemingly candid. Di Gennaro's version-like his testimony as a whole-was conclusion- ary in tone and evasive. I do not believe Di Gennaro's testimony about the March 14 discussion to the extent that it conflicts with Lahtinen's account. Crediting Lahtinen, Di Gennaro came to Lahtinen's desk and asked her to join him in his office. When they were alone in his office, Di Gennaro said that he had heard a rumor that there was "union talk" going around and wished to know what Lahtinen's "position" was and if she had any "complaints" or thought there were any "problems." She complained that certain benefits which had been originally promised (profit-sharing, recruitment bonuses) were apparently not in effect any longer. Di Gennaro interrupted her to say that he had been talking to the Naperville office and that there was a profit-shar- ing plan "in the works." Lahtinen also complained that management was increasing the pressure on the adjusters to increase their daily production counts, that there was a lot of confusion, and that overtime was becoming a mandatory phenomenon. Di Gennaro said that he was planning to hire more help. Di Gennaro added at some neighboring point in time: Do you know what I think? I think you're a trou- blemaker. I think you had better join the union be- cause you're going to need them. I'm going to start checking your work for error and if you do get the union in here I'm going to use their rules against you. Crediting Lahtinen, Di Gennaro was visibly angered when he made these latter remarks, jabbing his finger at Lahtinen for emphasis. It is alleged in the complaint that Respondent, through Di Gennaro, unlawfully coerced Lahtinen in several re- spects by his remarks on March 14. I agree that Di Gen- naro's questioning amounted to coercive interrogation. 6 I agree further that by questioning Lahtinen about her grievances and by his statements about management's plans to ameliorate some of them, Di Gennaro implicitly made unlawful promises to improve benefits and working conditions. ? Moreover, in his closing remarks to Lah- tinen quoted above, Di Gennaro plainly threatened her, in substance, that she would be subject to more strict and critical scrutiny by management if the Union were to get in. I therefore conclude that Di Gennaro engaged in multiple acts of coercion in violation of Section 8(a)(l) by his actions and remarks in the meeting on March 14. Lahtinen asserted that for the balance of the workday on March 14, Claims Supervisor Bowman sat at a desk about 25 feet behind her-an unprecedented location for him, according to Lahtinen. Bowman could not recall whether he sat at that desk on March 14, but claimed that he had periodically sat at that desk in the past. The General Counsel embraces Lahtinen's view that this action by Bowman marked the inauguration of a cam- paign of close scrutiny of Lahtinen's work. I do not find 6 PPG Industries. Inc.. etc., 251 NLRB 1146, 1147 (1980). 7 E.g., Reliance Electric Company, etc., 191 NLRB 44, 46 (1971); Raley's, Inc., 236 NRLB 971 (1978); cf. Uarco, Incorporated, 216 NLRB I (1974). it necessary to determine whether Lahtinen's or Bow- man's testimony was accurate as to whether Bowman had ever before sat at the desk in question. Bowman's behavior in this regard was too equivocal to be of any ultimate significance in resolving key issues of manage- ment intent in firing Lahtinen. 2. March 16 visit by union officials; Di Gennaro addresses staff Lahtinen had called the Union's president, Dambro, during the weekend and had advised him of Di Gen- naro's remarks on March 14. As a consequence, Dambro and another union official appeared at Di Gennaro's office on the morning of Monday, March 16. Dambro complained to Di Gennaro that Respondent was intimi- dating employees against supporting the Union, advised Di Gennaro that there was an organizing meeting sched- uled for that evening, and asked Di Gennaro to inform his employees that they were free to join the Union. Di Gennaro complied, immediately leaving his office to assemble the staff members and tell them that they were free to attend the meeting. He also stated that he had learned that union officials had entered the "confi- dential" file area of the office on an earlier occasion and affirmed that outsiders should not be allowed to enter that area. Either during that same meeting, or at another one held the next morning, Di Gennaro made some state- ment to the effect that employees were free to join the Union, but that they should be sure what they were get- ting into.8 Lahtinen credibly testified-and Di Gennaro essentially denies-that Di Gennaro also made some statement to the effect that he had originally intended to "come down hard" on employees at this meeting but that he had changed his mind, that it had always been a "con- genial office" and he wished it to stay that way. He added that he intended to hire more people and had "ad- justed a few inequities within the office." Lahtinen's sin- cerely rendered version is credited and, in essential agreement with the General Counsel, I conclude that Di Gennaro's remarks in this vein constituted additional vio- lations of Section 8(a)(l) as amounting to promises to remedy employee grievances in order to interfere with their choice whether to be represented. 3. March 16 surveillance at lunch hour; subsequent events that day Pursuant to prearrangement, Lahtinen met for lunch on March 16 with Bosch and another employee, Helen Thompson, at a nearby drug store cafe, where Lahtinen had said she would be prepared to answer any employ- ees' questions about the Union's drive and the organizing meeting scheduled for that evening. Di Gennaro ap- peared at the drugstore-a departure from his normal choice of a luncheon site-and had only coffee at the lunch counter, regularly looking over at the trio of em- B The General Counsel, relying on Bosch's testimony, asserts that Di Gennaro made some threat to the effect that employees would have to punch a timeclock if the Union came in. This is not corroborated by other employees, including Lahtinen. I do not credit Bosch's testimony here. She was often glib and hasty in her testimony. 344 WILLIAM L. MEYERS, INC. ployees seated at a booth. His presence upset Helen Thompson, who left early.9 De Gennaro made no effort to explain why he was present on that date at that location. The matter is not free from doubt but, accepting as fact that he had never dined before at that drug store, that he took only coffee, and that he looked regularly in the direction of the em- ployees, I conclude that he intended to create the im- pression in employees' minds that he was attempting to snoop on their union activities. The turnout at the Union's scheduled evening organiz- ing meeting was far smaller than Lahtinen had originally expected. The only employees who attended were Lah- tinen, Bosch, and someone named Keller. Only Bosch signed an authorization card. 4. March 18: Bosch is placed on probation On the morning of March 18, Di Gennaro summoned Bosch to his office where they met in the presence of Bowman and King. Di Gennaro there gave Bosch a 2- page typed memorandum informing her that she was being placed on "probation" for a 2-week period and would be terminated on April I if she failed to "correct" or "resolve" certain "unsatisfactory work problems."' 0 Bosch questioned the fairness or accuracy of certain of the "problems" which Di Gennaro had attributed to her. Di Gennaro stated that he did not wish to argue about it or hear excuses. Bosch complained that she thought she was qualified to do "service clerk" work and asked when she would get such a position. To this Di Gennaro re- plied ("in a joking manner," according to Bosch): "Is that why you signed a union card? "" Bosch refused to sign the memorandum and the meeting closed. 5. March 30: Lahtinen is warned to improve or be fired On March 30, Lahtinen was called into Di Gennaro's office where she met with Di Gennaro and Bowman. The testimony of all three participants tends to be im- pressionistic and conclusionary, but it is not disputed that these events occurred: Di Gennaro told Lahtinen that his remarks had "nothing to do with the other thing," that Respondent was not happy with her performance, be- cause her "count" was too low, and that she must im- prove or she would be fired. Lahtinen asked to have complaints about her put in writing, specifically, the pro- duction count that Respondent expected of her. Di Gen- naro declined. Di Gennaro and Bowman testified that Lahtinen walked out of the office abruptly, slamming the door behind her. Lahtinen denies this. The memorandum prepared by Di Gennaro on that meeting 12 contained no reference to that alleged incident. I do not find it neces- sary to determine whether Lahtinen ended the meeting in the manner described by Bowman and Di Gennaro. 9 Credited, uncontradicted, testimony of Lahtinen. 'O G.C Exh. 8. " Credited, undenied. testimony of Bosch. Respondent argues on brief that Bosch's testimony here was inherently unlikely: but., in the absence of any denial from Di Gennaro that he made such a statement. and given Bosch's apparent sincerity here. I readily credit Bosch 12 Resp Exh 7 Such alleged behavior was not cited as a factor in her discharge a few days later. 6. March 31: Bosch is fired Bosch was called into Di Gennaro's office at the end of the workday on March 31,l and was told by him that she was being fired for having failed to improve. 7. April 3: Lahtinen is fired On April 3, Lahtinen was called into Di Gennaro's office. Di Gennaro handed her a memorandum which stated in pertinent part: "This memorandum is to hereby notify you that effective today, April 3, 1981, you are of- ficially terminated for poor work performance." 111. ANALYSIS, FURTHER FINDINGS, CONCLUSIONS The foregoing findings present an extremely strong prima facie case that Respondent was motivated in firing Lahtinen and Bosch by their prounion activities. In the case of Lahtinen, Respondent's agents knew that she was trying to set up a meeting between the Union's agents and its employees. Di Gennaro was quick to question Lahtinen about her union views, to attempt to dissuade her by express and implied promises that employee grievances would be resolved, and was likewise quick to tell her that she was a "troublemaker" and that he would begin scrutinizing her work closely for error if the Union were to get in. Roughly 2 weeks later, Lahtinen was for- mally warned that her performance must be improved or she would be fired. Less than a week thereafter, she was fired. Similarly, in the case of Bosch, it is clear that Di Gen- naro was aware of her support for the Union 14 that he took formal action to place her in probationary status shortly after acquiring such knowledge, and that he fired her shortly thereafter. Accordingly, I may readily rely on the evidence found to this point for the conclusion that Respondent was moved to fire Lahtinen and Bosch because of their pro- tested union activities, in violation of Section 8(a)(3) of the Act. Respondent has introducted evidence, however, which if credited would establish at least that it had other, nondiscriminatory, motives in deciding to fire Lahtinen and Bosch. The Board's decision in Wright Line' s sets forth this analytical scheme for judging such "dual motive" cases: First, we shall require that the general counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to iS Treating Di Gennaro's testimony and his memorandum dated April I as more reliable in this instance than Bosch's testimony that the dis- charge occurred on April 1. i4 Crediting Bosch. Di Gennaro knew by March 18 that she had signed an authorization card. We do not know, from this record how Di Gennaro acquired that knowledge. '5 Wright Line, a Division of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F 2d 899 (Ist Cir. 1981), cert. denied 455 U.S 989 (1982) 345 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demonstrate that the same action would have taken place in the absence of the protected conduct. ' I shall attempt to summarize Respondent's alleged "business" reasons for its decisions to fire Lahtinen and Bosch. The term "attempt" is used advisedly since, as is further discussed below, the record contains a variety of general complaints made by management agents about the abilities, job performances, and "attitudes" of the two alleged discriminatees, but it contains precious few spe- cific details, particularly regarding alleged poor perform- ance by those employees in the period immediately before they were fired. Di Gennaro, the official who made the decisions to fire Lahtinen and Bosch, failed to give any single, com- prehensive account of his reasons for doing so. Close study of his testimony reveals that he was only rarely re- sponsive to questions directed to that point. Indeed, when questioned about any single incident involving the alleged discriminatees, Di Gennaro would almost invari- ably shift ground, or would resort to the most general characterizations. This did not inspire confidence in his candor. His performances on the whole tended to rein- force, rather than undermine, the strong prima facie case of discriminatory intent in his treatment of Lahtinen and Bosch. Viewing Respondent's defensive case most generously, however, it appears that the principal complaint about Lahtinen in the period before mid-March was that her claims processing was slow and that her production "count" was therefore lower that the other processors. There is disputed testimony that Lahtinen was warned by Di Gennaro and Bowman as early as January 19 that she must improve her count or be fired. Respondent in- troduced production records of its "regular" claims pro- cessors which tended to support the charge that Lahtin- en's count was low. From what I can make of those records, however, Lahtinen's performance in the period immediately before March 30 (when she was admittedly told she must improve or be fired) was substantially higher than it had been in the period shortly before Janu- ary 19 (when she was allegedly warned to improve or be fired). I note also that the principal criticisms voiced by Respondent's witnesses (mainly Bowman) about Lahtin- en's performance in the few days after March 30 and before she was fired did not go to her productivity. Rather, they were complaints about her "error rate." I note in this latter regard, however, that Respondent ad- mittedly does not maintain records as to the "rate" of "errors" of its claims adjusters and that Bowman's and Di Gennaro's claims that Lahtinen's error "rate" was "higher" than that of the other adjusters is highly subjec- tive. It is also relatively worthless from an evidentiary standpoint since Bowman admittedly focused his review in the period March 30-April 3 only on Lahtinen's files. 1 7 'L Id. at 1089. The Ninth Circuit approved this mode of analysis in N.L.R.B. v. Nevis Industries, 647 F.2d 905 (9th Cir. 1981), and again, more recently, in Zurn Industries, Inc. v. N.L.R.B., 680 F.2d 683 (9th Cir. 1982), after reconsideration in the light of critical holdings in other cir- cuits (cases cited Id. at 687). 17 As alluded to earlier, Lahtinen testified generally at first that Bow- man's close scrutiny of her work began on the same day, March 14, that Viewing Respondent's defensive case as to Bosch most generously, it appears that Respondent's principal dissat- isfaction with Bosch in the period before mid-March was that she was difficult to get along with, was mistake- prone, did not respond well to criticism, and tended to arrive late for work and/or leave work early. Respond- ent's proof that such was the case rested almost entirely on Di Gennaro's and Vickie King's highly general testi- mony to that effect. It is difficult to detect from Di Gen- naro's testimony exactly what precipitating incident in the period immediately before March 18 (other than Bosch's signing of a union card) caused Di Gennaro to place her in probationary status. It is similarly difficult to discern from the record exactly what it was that Bosch did or failed to do during her March 18-31 probationary period which caused Respondent to conclude that she should not be retained. Illustrative of Respondent's less- than-rigorous efforts to make a record on these, and simi- lar, questions, is the testimony of Vickie King, as fol- lows: s . . . So for the next two weeks I tried to help her. And each day, more or less, I would go through and give her detailed instructions on her job duties. An example is the self-payments. I told her to take a copy of the receipt, two copies of the checks, and she had previously been given this assignment, but she made two folders instead of keeping everything together, which I advised her previously that that was incorrect. She was doing hospital verifications and I received a call from Marty Lawrence at Sunrise Hospital asking that Virginia not take the verifications be- cause she was transposing the numbers and getting the diagnoses confused, and I spoke to her about that, and still about lunches being taken late and ar- guing with me-not to argue every time I gave her an assignment or corrected her; that, you know, it was being done to help her. But she did not believe-she told me she didn't be- lieve that because she believed that all these were lies, and that she didn't do these things. It is my ultimate conclusion, adapting a Wright Line analysis to this case, that Respondent has not credibly shown that it was moved to take action against Lahtinen and Bosch for any reason other than their union activi- ties as they were manifested in the period May 12-16; and that the reasons put forth by Respondent for first warning them and later firing them were essentially false or exaggerated and were resorted to in order to mask a single unlawful motive. Alternatively, even assuming that Di Gennaro threatened her that he would start to "check" her productiv- ity and would examine her files for errors. This testimony derives largely from Lahtinen's interpretation of Bowman's choice of a desk location near hers on March 14. Elsewhere, asked to be more specific, Lahtinen estimated that Bowman's "daily" review of her files did not begin until about the final week of her employment. 18 King's testimony quoted below is the central testimony relied on by Respondent to show that Bosch continued to perform unsatisfactorily during her probationary period. 346 WILLIAM L. MEYERS, INC. there existed some degree of dissatisfaction with their work in the minds of Respondent's supervisors, I con- clude that Respondent failed to show that Lahtinen and Bosch would have been fired because of such dissatisfac- tions in the absence of their protected activity. The features which convincingly suggest pretext on Respondent's part are as follows: No action was taken to warn either Lahtinen or Bosch that their alleged short- comings might result in their discharge until after Re- spondent had acquired knowledge of their union activi- ties.' 9 At most, giving more credence to the suspiciously vague and conclusionary accounts of Di Gennaro, Bowman, and King than those accounts deserve, Re- spondent's agents had indicated some concern over some aspects of the performance of each alleged discriminatee at various times in the past. It is undenied, however, that those alleged shortcomings had manifested themselves early in their employment and had been endured-if not condoned-by Respondent's agents for a considerable length of time. Closely related to this is the revealing fact that Di Gennaro admittedly conferred with his su- pervisor, Ann Boggan, in Naperville on or about March 18 or 19 and admittedly discussed the need for documen- tation of the alleged shortcomings of those two employ- ees in the light of their having been named in the first of the unfair labor practice charges filed against Respond- ent on March 18. This discussion prompted Boggan to send Di Gennaro a copy of a memorandum allegedly prepared by a training official in late October of the pre- vious year which referred to Lahtinen's alleged difficulty in accepting that Respondent's procedures were different from those of a previous insurance employer for whom Lahtinen had worked. 2 0 Di Gennaro was vague, evasive, and sometimes incomprehensible in attempting to explain why it was that he talked with Boggan at this time about the need for documentation of Lahtinen's and Bosch's al- leged previous work defects.21 A more plausible explanation for Di Gennaro's ad- mitted conference with Boggan in Naperville, one which is consistent with other credited evidence herein, is that Di Gennaro had by that point decided to rid himself of Lahtinen and Bosch because of their union activities, wished to camouflage that motive, and called Boggan for advice and for assistance in locating any documents which might support the claim that their prior perform- ance had been unsatisfactory. The foregoing observations do not preclude the possi- bility that Respondent's managers had developed some degree of dissatisfaction with the performance of both Lahtinen and Bosch. Indeed, there is evidence in the '9 In the light of l.ahtinen's credible denial and the fact that Di Gen- naro failed to provide any corroboration of substance on the point, I do not believe Bowsman's testimony that Lahtinen was warned at a meeting on January 19 that her "job performance [would have to] improve if she was to keep her job." 20 See G.C. Exh 10, containing a cover letter from Boggan dated March 20 In addition, by separate letter of the same date, Boggan wrote to Di Gennaro with a list of "claims problems," reflecting that at least three individuals, including l ahtinen, had failed to timely process some claims. a] The record shows that Di Gennaro attempted to explain why the receipt of the first (f the charges filed on March 18 caused him to confer sith loggan about the need for documentation of their alleged defects as employees form of admissions by both Bosch and Lahtinen that they had experienced difficulties in performing their jobs-although each credibly denied that they had ever been formally reprimanded or warned about the same prior to their emergence as supporters of the Union in the period after March 12.22 What the previously cited factors do strongly suggest, however, is that Respondent had not formed any plans to warn them that their jobs were in jeopardy until Respondent's agents learned of those union activities. Indeed, one can search the record in vain for any indication by Respondent's agents that they were planning to move formally against Bosch and Lahtinen before they became conspicious in their support for the Union. Accordingly, I am persuaded that Lahtinen's and Bosch's union activities-and nothing more-accounted for Respondent's decisions to put each of them in a form of "probation" shortly after those activities became well- known.2 3 In themselves, these actions may properly be viewed as unlawfully discriminatory, as the complaint al- leges. Once that conclusion has been reached, it seems to me, Respondent's discharge of Lahtinen and Bosch shortly thereafter must necessarily be found to have been tainted by the same discriminatory considerations which caused them to be placed in probationary status. Since, by Re- spondent's account, those employees had displayed the same types of shortcomings for roughly 6 months before Respondent determined to put them on "probation," it is unlikely that Respondent genuinely expected them to be able to correct the same within the brief probationary period which it afforded them, if ever. Put another way, if Lahtinen and Bosch had problems, they must have been much earlier recognized by Respondent's agents as being chronic; and to put them on probation only after the chronic nature of their problems had been evident for months must have been for purposes other than to give them a chance to improve. Similarly, one would infer an ulterior motive were an employer suddenly to decide that a long-term employee with, say, a known hearing impairment, must show some improvement in his auditory acuity in order to keep his job. 22 i have doubts about the regularity or authenticity of certain exhibits introduced by Respondent purporting to be memos of supervisors criti- cisms directed against Lahinen and Bosch in the period December 1980 to March 2, 1981 (specifically, Resp. Exhs. 2. 3, 8, 9, 10, and II) They were "secretly" maintained if they are authentic (i.e., Lahtinen and Bosch never saw them before the hearing) and they are suspiciously vague and indefinite as to the alleged misconduct which they purport to memorial- ize. In any case, very little reliable first-hand testimony was given about the alleged underlying incidents, although Respondent was repeatedly put on plain notice from the bench that the memoranda themselves, being hearsay, would not be received as tending to prove that the incidents de- scribed therein actually occurred. Without exhaustive detailing of the re- sponses of Respondent's witnesses when they were asked to testify about the facts underlying the memos. it is fair to summarize those responses as being almost hopelessly vague and conclusionary. 23 I recognize that only Bosch was formally placed in a "probation- ary" status on March 18 and that Lahtinen was merely told on March 30 that she must improve or she would be discharged. I perceive no differ- ence of substance between Respondent's treatment of the two employees. however. Each was effectively told that she was on thin ice and would be expected to change or be fired 347 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Once viewed in that light, therefore, it is of little sig- nificance that Respondent was able to point to continu- ing "problems" with Lahtinen's productivity in the few days of work which followed its March 20 warning to her and before it decided to fire her for failure to im- prove. Likewise, that Respondent was able to cite a few additional examples of difficulties which Bosch experi- enced during the remainder of her own probationary period is not surprising. What is surprising, given Respondent's burden, is the utter lack of any coherent testimony by knowledgeable agents of Respondent as to what, precisely, Bosch did or failed to do during her ensuing probationary period which caused Respondent to terminate her. While the document prepared at the time of her discharge (Resp. Exh. 13) contains a cataloguing of alleged errors commit- ted by Bosch between March 18 and March 31, only a small number of the charges contained therein was backed up with first-hand testimony. And, as to that small number, as noted above in the testimony of Vickie King, the descriptions of what Bosch did wrong are lacking in any contextual detail. Indeed, there is such a glaring discrepancy between the volume of complaints catalogued in Respondent Exhibit 13 and the number of incidents actually described by witness testimony that I infer from that fact alone that Di Gennaro was grasping desperately in all directions for excuses to fire Bosch, that he threw the "kitchen sink" into his termination memorandum, 2 4 and, because of this, that he and the other supervisory agents who testified about Bosch were unable to maintain a coherent and consistent account. Accordingly, assuming, arguendo, that Respondent had "dual motives" in the Wright Line sense, I conclude that Respondent's showing was insufficient to carry its burden under Wright Line of "demonstrat[ing] that the same action would have taken place in the absence of the protected conduct." 2 5 I therefore conclude that Respondent fired Lahtinen and Bosch for discriminatory reasons in violation of Sec- tion 8(a)(3) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 24 One unmistakable example of this is Di Gennaro's reference in the termination memorandum to an alleged foulup by Bosch in following instructions on March 18 relating to making copies of checks and re- ceipts. Di Gennaro elsewhere admitted, however, that he did not give Bosch the probationary memorandum until shortly before the end of the business day of March 18. Accordingly, his reference in the termination memorandum to Bosch's failure to follow instructions on March 18 was a reference to an event which preceded Respondent's issuance to her of the probationary memorandum. By citing this as proof that Bosch had failed to improve after being formally warned, Di Gennaro once again revealed that the imposition of a probationary period was merely done to disguise the fact that he had already decided to fire Bosch before March 18. 2S This conclusion obtains even if Respondent's burden is merely to "come forward" with evidence sufficient to return the record to a state of "equipoise" on the ultimate discrimination issue, rather than being a more stringent burden of "persuasion." See, e.g., discussion in N.L.R.B. v. Wright Line. supra, 662 F.2d at 904-905. 3. By the actions of its principal Las Vegas office ex- ecutive, Carl Di Gennaro, in coercively questioning em- ployees about their union activities, in implicitly and ex- plicitly promising to correct employees' grievances in order to dissuade employees from supporting the Union, in threatening to begin critical reviews of an employee's work performance in retaliation for that employee's sup- port for the Union, and in creating the impression that he was conducting surveillance of employees engaged in union activities, and by each of said acts, all as found within this Decision, Respondent has interfered with, re- strained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By placing Virginia Bosch on probation on March 18, by warning Renee Lahtinen on March 30 that she must improve or be fired, and by subsequently discharg- ing both named employees, and by each of said acts, all as found within this Decision, Respondent has discrimi- nated with respect to the hire, tenure, or other terms and conditions of employment of employees in order to dis- courage membership in a labor organization, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. THE REMEDY Respondent's violations were especially flagrant and struck directly at the heart of employee rights protected by the Act. In a relatively small unit of office employees, the abrupt and discriminatory discharge of the only two employees who were most visibly supportive of the Union's organizing effort can be expected to have perva- sive adverse effects on the exercise of the employee rights by such unit employees. For this reason, I shall recommend that the Board issue a "broad" cease-and- desist order. In addition, by way of affirmative remedial action, it is recommended that Respondent post an appropriate reme- dial notice to employees, that it offer immediate, full, and unconditional reinstatement to employees Lahtinen and Bosch, and that it make them whole, with appropriate in- terest, for any losses they suffered as a consequence of Respondent's discrimination against them. All such "make whole" amounts are to be computed in accord- ance with standard policies and formulas as set forth in F. W Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). Finally, having found that its actions in discriminatori- ly placing both Lahtinen and Bosch in forms of "proba- tion" were integral to its discriminatory discharge of them, Respondent must expunge from its files all records of such probation and discharge actions. Upon the foregoing findings of fact, conclusions of law, and the entire record, I issue the following recom- mended: 348 WILLIAM L. MEYERS, INC. ORDER2 6 The Respondent, William L. Meyers, Inc., Las Vegas, Nevada, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union activi- ties, sympathies, or beliefs. (b) Promising to remedy employee grievances or oth- erwise to grant benefits or improve working conditions to dissuade employees from selecting union representa- tion. (c) Threatening employees that their work will be more closely scrutinized because of their support for union representation. (d) Creating the impression that it has its employees' union activities under surveillance. (e) Discriminating against employees, such as by plac- ing their work under more intensive scrutiny, or dis- charging them, because they have indicated their support for union representation. (f) In any other manner or by any other means inter- fering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes and policies of the Act: (a) Offer immediate, full, and unconditional reinstate- ment to employees Renee Lahtinen and Virginia Bosch to their former positions of employment or, if those posi- tions no longer exist, to substantially equivalent positions, discharging other employees, if need be, to make room for them; and make Lahtinen and Bosch whole, with in- a6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. terest, for any losses they may have suffered as a conse- quence of Respondent's unlawful discharge of them, all consistent with the policies and considerations set forth in the section entitled "The Remedy." (b) Expunge from its files all records relating to its placing of Virginia Bosch on probation on March 18, 1981, and any records regarding warnings to improve or be discharged issued to Renee Lahtinen on or about March 30, 1981, together with all records associated with their discharges by Respondent on, respectively, March 31 and April 3, 1981. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post copies of the attached notice marked "Appen- dix." 27 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by an authorized representative, shall be posted by Re- spondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any ether material. (e) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 7? 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" 349