Lawyers Publishing Co.

LAWYERS PUBLISHING CO. 129 Lawyers Cooperative , Publishing Company and Office and Professional Employees Internation- al Union, AFL-CIO-CLC and Stanley A. Dash, Jr. and Robert H. Carduner and Irving Kensler. Cases 30-CA-5603, 30-CA-6152, 30 7CA- 6332, and 30-CA=6339' 7 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER , On 19 August 1982 AdMinistrative Law Judge Wallace H. Nations issued the attached decision. The Respondent and the General Counsel filed ex- ceptions, supporting briefs, and answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions only to the 'extent consistent with .this Decision and Order. The Respondent is engaged in the publication and sale of law books, and it markets its products through approximately 100 commissioned. sales rep- resentatives. The Respondent's supervisory hierar- chy consists of President Gosnell, _Vice President of Marketing Anderson, National Sales Manager Bissett, Vice President of Personnel Bennett, Per- sonnel Manager Roth, and approximately ,11 re- gional managers. The regional managers are the immediate supervisors of the sales representatives. The sales representatives became dissatisfied-with the Respondent's "subscription growth" plan of compensation, and in December 1919 sales ,repre- sentative Stanley Dash initiated a union organizing drive. The Respondent became aware of the _orga- nizing activity on 9 January 1980, 2 and subsequent- ly launched a campaign in opposition to the Union. On 5 May the sales representatives voted, against union representation ' and, beginning in late May, Dash took a leave of absence because he had been under stress. The Respondent threatened' to dis- charge Dash on 30 May, and in June it delayed his receipt of disability benefits and refused to provide him with a ,copy of its insurance policy. Dash re- turned to work on 22 September after the Re- ' The Respondent and the General Counsel have, excepted to some of the Judge's credibility findings The Board's established policy is not' to overrule an administrative law pidge's Credibility resolutions unless the clear preponderance of all the relevant evidence convinces us, that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950). enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings' • 2 Unless otherwise specified, all dates herein refer to 1980 spondent required him to undergo a psychiatric ex- amination. On 5 November the Respondent dis- charged Dash, and it subsequently challenged his application for unemployment compensation bene- fits. The Respondent also_ discharged Regional Manager Warner on 22 May, sales representative Kensler on 25 August, Regional Manager Carduner on 11 October, and sales , representative Redd on 23 October. On 14 January the Union filed. unfair labor prac- tice charges in Case 30-CA-5603, and on 28 March the General Counsel issued a complaint. The com- plaint as later amended alleged that during the or- ganizing campaign and prior to 5 May the Re- spondent engaged in violations of Section 8(a)(1) and (3). The . parties subsequently , reached a settle- ment agreement which- was signed by' the Respond- ent on 15 September, signed by the Union on 18 September, and approved by the Regional Director on '1 October.. On 12 November Dash filed a charge in Case 30-CA-6152. The Regional Director set aside the settlement agreement on TJannary 1981 and issued a consolidated cdmplaint 'on. 15 January 1981. The complaint alleged, inter alia, that on 15 'August the Respondent violated Section 8(a)(3) by acting to delay Dash's return to vireirk until 22 September.. It further alleged that the Respondent violated Sec- tion 8(a)(3) by transferring Dash to a different region and manager on 22 September and by dis- charging him on 5 Noveinber. The complaint also alleged that the Respondent unlawfully threatened to discharge Dash.on 30 . May, . The complaint, as later consolidated and amend- ed, also 'alleged that the 'discharges of Warner, Kens/er, Carduner, and 'Redd were unlawful. It further alleged that the Respondent violated the Act by appealing .Dash's unemployment compensa- tion award, by refusing to provide Dash's attorney with a copy of its disability insurance policy, and _by delaying the payment of Dash's disability bene- fits. The complaint was also amended to allege ad- ditional unlawful conduct prior to the 5 May elec- tion.• The judge found that the' Respondent engaged in violations of Section 8(a)(1) prior, to the 5 May election. He also found that the Respondent violat- ed Section 8(a)(3) by requiring Dash to undergo a psychiatric examination before his return to work on 22 September. The judge further found that, after the settlement agreement, the Respondent vio- lated Section 8(a)(3) by discharging Dash and by appealing his award of, unemployment compensa- tion. The judge concluded, and we agree, that the remaining postsettlement allegations , should be dis- 273 NLRB No. 31 130 DECISIONS OF NATIONAL* 'LABOR . RELATIONS BOARD • missed. ,3 Consequently,' the' Only remaining posisett- lement allegations involve Dash's discharge and the Respondent's appeal of his unemployment compen- sation award. Because we find no merit to those al- legations, we shall dismiss the complaint and rein- state the settlement agreement. 4 ' • 1. The complaint alleges that on' 1 -5 August the Respondent violated Section 8(a)(3) by delaying Dash's return to work until 22 September. In this connection the judge found that the Respondent discriminatorily required Dash to undergo a psy- chiatric examination before returning to work from his leave of absence. We note that this conduct oc- curred prior to 'the settlement agreement, and we therefore consider it only for the purpose of shed- ding light on the Respondent's motive for its post- settlement conduct.. We conclude, for the reasons below, that the Respondent was motivated by le- gitimate concerns in requiring the examination. Dash took a leave of absence from late May until 22 September after his psychologist informed him that he was suffering from a "gross stress reac- tion." On 9 June Roth sent Dash a disability form and a letter stating that the Respondent was imme- diately placing _him on disability status. Dash's at- torney sent _the Respondent a letter from bash's psychologist, which ,stated that the purpose, of the leave of absence was to enable Dash to obtain "relief' from the job-related factors -causing him stress. Roth testified that, because the letter did not state that Dash was unable to work, he began .to 3 We agree with the judge- that the Respondent lawfully discharged Hubert Redd on 23 October and Robert Carduner on 11 October In its "exceptions the General Counsel notes-that the judge failed to find wheth- er the Respondent acted unlawfully. by discharging Carduner instead of merely demoting him to a sales representative position For the reasons cited by the judge to find Carduner's discharge lawful, we find that the Respondent:did not violate the Act by refusing to demote Carduner We also agree with the judge that the Respondent did not violate the Act by assigning Dash to a different regional manager on 22 September, assuming, arguendo, that this conduct can be characterized as postsettle- 'ment conduct 4 A settlement agreement will be set aside if its provisions are breached or if postsettlement unfair labor practices are 'committed Cambridge Con- tracting, 259 NLRB 1374, 1381 '(1982), Ann's-Schneider Bakery, 259 NLRB 1151, 1152 (1982) Therefore, we must initially determine whether the Respondent engaged in any postsettlement misconduct- which violat- ed the settlement agreement However, the Board has observed that pre. settlement conduct may be considered as background evidence in deter- , mining the motive or object underlying a respondent's postsettlement conduct Vore Cinema Corp, 254 NLRB 1288, 1291-92 (1981), Laborers Local 185 (Joseph's LandsCaping), 154 NLRB 1384 (1965) We have given appropriate consideration to the judge's findings concerning the Respond- ent's presettlenient conduct but, in our view, these findings do not war- rant the conclusion that the Respondent's postsettlement conduct was un- lawfully motivated Although the Respondent's presettlement conduct may constitute background' evidence in support' of the General Counsel's prima facie case, we cOnclude, for the reasons set forth, infra, that the Respondent . would have discharged Dash and appealed his unemploy- ment compensation award, even in the absence of his union activity In this connection we alsh emphasize our conclusion, discussed infia, that prior to the settlement the Respondent was motivated by legitimate con- cerns in requiring Dash to undergo a psychiatric examination before re- •• turning to work from his leave of absenee doubt whether Dash was eligible for disability ben- efits. On 30 June Dash's attorney returned the completed disability claim fOrm, which siated that Dash was totally' disabled from a "gross stress reac- tion." However, in an accoMpanying letter - Dash's attorney stated: You have requested that Mr. Dash complete and submit this form. His cooperation in doing this should not be construed as any admission on' his part that he is "ill" or "disabled" within the meaning of these programs or for any other purposes. While Mr. Dash may indeed be entitled to benefits under these programs he does not yet have sufficient information to de- termine, whether it is in his interest to submit a claim or accept benefits under them., The attorney's letter also noted that Dash' had not signed that portion of the form which authorizes- a general release of 'medical information to the Re- spondent's insurance carrier. The letter indicated that, because of- its "personal and sensitive" nature, such- informatiOn would be released only pursuant to "specific" and "reasonable" requests -by the' in- surance carrier. , On 15 July Roth stated that the Respondent cOuld nOt treat Dash as being On sick or disability leave because he would-not release information or admit that he was ill or disabled. Roth stated that Dash Was instead being placed on inactive' status pending clarification of his medical condition, and he indicated that the Respondent was reserving the right to have Dash examined by a physician of its choosing before permitting him to return to work. On '21 July Dash's 'attorney replied that the release of medical information-would be authorized if such information were "reasonably necessary 'to evalu- :ke" Dash's claim. The attorney requested a copy of the Respondent's insurance policy and indicated that Dash "is unable to determine whether he is ill or disabled within the meaning of the company in- surance policy since 'he does not have a copy "cif the policy." On 30 July Roth- responded that, be- cause of the Uncertainty created by the attorney's 3.0 June 'letter, 'the Respondent would continue to keep 12-6:sh on inactive status' pending clarification of his medical condition. Roth also enclosed a copy of the Respondent's personnel policy concerning illness and injury. On 12 August the attorney informed Roth that Dash had received his,, psychologist's approval to return to Work, but on' 15 August Roth indicated that before resuming work Dash would have to un- dergo an examination by the Respondent's physi- cian. Ro th stated that this procedure was necessary to ensure that Dash was . "fully 'capable" of return- . LAWYERS _PUBLISHING CO 131. ing to -his-duties;-: and he requested that Dash's mec1,7., ical records be forwarded tot he Respondent's phy- sician. Onr 2, September ,Dash's_Ottorney reiterated that •the, medical: records were • '-obyiously of a highly personal and_confidential i nature," and there: is-.no„ evidence .that ,those_ records were ever- re- - leased. On 9 September Dashi.was examined by a psychiatrist selected .by, tbe Respondent, and he re- sumed working as a .,sales representative on 22 Sep--„, tember. ; - : Wiesonclude that ,the Respandent, had legitimate: reasons for ;requiring that Dash undergo a-separate, medical , examination, prior, to-,-his return to work.,,, We note particularly that bash, : through :his attor71,. ney, lwas seeking) disabilityenefits while- refusing to;concedes thattie :was ill ordisabled and while re7 sisting,the release of medical information ; We also,: note tfthf the initial_letter from bash's ipSycliologist . in did pot_ state whether . bash 'as^ ible, to work,.and tht Dash's. 12^AnguSt offer to return to worfc,", was unaccompanied by any medical ments. , We agree With ihe,Resporident that -,ba'sh'S communications " raised Tlegitimate question's con: cefriing the nature and extent of his 'medical prbb'z' lems and his ability to, resume his duties. , Further, 'the evidence - indicates that in requiring the examination the Respondent Was mOtivated'. - sólely by these , legitimate- coneernS arid not , by Dash's union activity. The Resbondent consistently,' communicated. Its doubts about Dash's condition bY - informing the atfoiney that his ,letters had: created "uncertainty" and that Dash would'remain on ink- th',e' ,status. pending clarifiCatidn'of' his donditidn.',' Thé- Respohderif,:reSeived' the' right to require examination bY phYsician of -its 'choosing'.'Alill'' month before' Dash indicated his availability^rto resume work. This 'snggests „ that the Respondent - decided an this requireinerii in-TeSPorise to unusual:, circuritstinCes, 'arid that if did not simply present Dash With a:• hastifY cOnceiYed ibbsticle to delayhis ' return to work. *- Contrary to the judge we decline to draw an in- ference of proscribed motive from the fact ,that Dash was` the' firstemployee required . to undergo --a-, serarate 'medicaVexanririatibKAltliouili other abled employees were permitted to return to work Without such an examination, we rare not persuaded that .their '-circumstances Were. siniilar . to, Dash'S.' Evidence -is lacking -that the-medical condition of the (other. employees' WaS .',eyer in 'doubt, or that those employees hesitated, to release mation 1-concerning: their condition. We 'also- find, contrary to_the,judge, that -the:fa-Y(3ra* retort by': the Respondents psychiatriSt, does not undermine the Respondent's 'ci:intention that it Was 'concerned about Dish's ability to perfOrria his job. In view. the foregoing, .we, find that the Respondent was motiyated .solely by . legitimate concerns in requir- ing.the examination - • .2. The Judge found that -the Respondent yiolated Section 8(a)(3) and-(1) by discharging Dash on November. -We find .merit in the Respondent's ex- ceptions and- for- the reasons below .we find that Dash's discharge was lawful. ,, • The record discloses -that on 4 •November Dash,. telephoned -the Respondent's customer service de- partment-,and spoke. with Patrina Fulton,. a :collec- tion correspondent. It is undisputed- that Dash and- Fulton became involved, in an argument concerning a problem-with a. customer's account, and it is also • undisputed that Fulton immediately _reported the incident to Michael Santangelo, the supervisor of the Respondent's, customer-- service department. Santangelo then telephoned- .Dash- to- ascertain his, version; of the incident, but there is. conflicting tes- timony ' about -the conversation that-- ensued. The judge did not resolve the conflict between the. testi- mony of Dash and Santangelo,, but he -concluded that- Dash's discharge. was -unlawful -even assuming the accuracy of. Santangelo's version: Contrary- to, the judge, we conclude that the Respondent,-did not violate the Act even if the accuracy of Dash's version of the,: conversation is assumed.. 6 , According to. Dash, Santangelo began- the. con- - versation by stating in an "insulting” tone of voice that he had just:spoken, with Fulton and that he now wanted to hear Dash's side of the story. Dash responded„ "Mike, what, you want and _what . you - get are two . different ,things.' . He told -Santangelo that he was ,late for work. and that "right, now" he did not want to talk' about the incident: Santangelo. then said, "[Y]ou don't want --to talk- to. me right now?" When. Dash said, 'That's right," Santangelo,. responded, "Who . do, you think you .are? ;You talk . to me or .1-I will rip up, return or lose every,- order of yours that-comes through this department• for: clearance." Dash testified that at that point , he, "blew [his] cork" because his livelihood-was being threatened, and- he, conceded that he "could very well have" used profanity. Dash and Santangelo' began "shouting': at each other, and after 2 minutes they simultaneously hung up-their phones.6 6• The , Respondent contends that Dash was discharged because-of hiss, conduct during- the conversation with Santangelo It 'does not -contend that Dish's conduct with Fulton was sufficient to warrant discharge 6 According to Santangelo. Dash responded to his first question by saying. "F—k you - I don't have to tell you a fking thing" Santan- gelo,told Dail' to calm down and discuss the , problem,, but Dash stated, that he did not ,have to do what Santangelosaid _Dash's voice became extremefy lomkand Santangelo stated that if Dash 'did not cairn down he would "personally. watch over", all of Dash's orders and reject thOse„.: which did .not have every 'dotted and "t" crossed When Dash continj. - ued to _raise his voice.and, .told Santangelo not to threaten him, Santan- gelo hung up • f 132 DECISIONS OF NATIONAL' LABOR' RELATIONS BOARD UncontradiCted teStinidny cestablisheS- that San- -- tangelo immediately reldted the 'conversation' , to' National Sales Manager Bissett and PerSdnnel Man; ager Roth, and then-repeated it in the - presence of Vice President 'of Marketing Anderson, Vice Presi- dent of Personnel Bennett; Vice President of-Fi- nance Fogel, his 'own supervisor, Smith, and Bis-i` sett. 7 On the same day Santangelo and Fulton - again discussed -the events with 'Bennett and-- the Respondent's attorney. Dash testified that on 5 , No; vember he received_ a phone call , from Bissett, who' - told him that he was immediately -discharged be, cause the" Respondent was tired of his -"rude, abu- sive treatment" of employees. 8 Bissett declined to listen when Dash-offered to explain his conduct. Even :if we 'assume, -argtiendo, that Dash's pro- tected activity was - a motivating factor - in -the Re- spondent's..decision to discharge- him,- we find,that the Respondent met its' burden-of establishing that ;- Dash would' have been discharged even in' the sence, of •-his • protected -activity. In reaching- this: conclusion; We' place 'particular reliance on the' ex=- tenMve background evidence establishing. that the • Respondent had -long considered, Dash-to be an ern-": ployee ,with' serious behavioral Problems.- ; • The rebord establishes ihat 'as early As 17 Octo- ber 1977, the Respondent's national sales-. manager observed in a memo that Dash harbored-, a "nega- tive attitude" and often exhibited an "argumenta-- tive" and 'loud" . voice. The -memo indicated that Dash's behavior was ,a "longstanding" problem which "may- eventually lead to. termination." Sub- sequently, -the Respondent began' to receive corn- plaints --from customers' about Dash's conduct. In • Jtine_-.1978 Marcia Koslov, the Wisconsin state laW librarian, informed the Respondent that Dash's be-. havior in a sales meeting had been `!rude" and ."ar-,- rogant." In a memo to' Regional Manager, Murrell; the- Respondent's national sales 'Manager described the Koslov • complaint as "one more" pioblem among the "ongoing" problems -that the Respond- ent was encountering with Dash. The Respondent, 'directed Dash to write a' letter of apology - to KosIov. • - - On -26' April 1979 the Respondent reCeived 'an- other customer coinplaint from Gary Monson,---a. Wisconsin attorney, who stated that Dash's .con- duct had been "extremely arrogant, 'offensive, tin- prafeSsional, and . extremely , obnoxibus." The 'tette? 7 As noted above, we are considering the issue of Dash's 'discharge iwa light most favorable to Dash Consequently, 'we ' are assuining,"arguerido, that Dash's version of the 'facts represents What actually 'transpired, that those facts were related to the Respondent's officialby Santangelo, an'd' that it was on those facts that the Respondent based its deciSion AccOrdmg to his owni testithony, Dash ilso told'Bisseti that`his charge did not come as a suipose ' in vteW Of his union activily' Dash's testimony does not indicate whether Sissett responded to this 'statement alsb indicated that Dash'S ,-"attitude: and derneanor'.'., had been "disgusting7 Vice 'President of Marketing Anderson' apologized in' Writing to ,-Monson, arid: Dash was remOved- from the a'cco'unt. In connec, tion with this incident, Anderson-wrote , a=memo• to Gosnell in 'which he noted that 'Dash suffers from,: "moments of irrationality." • The judge found,' and We agree,' that 'on' 9"Jariu--1 ark Murrell properly thieatened C ut "Dash 'On" probation after he argued with some of the sjiondent's- customer . service Cotrrèsjidnderits''in"the fall of '1979° The- judge Also IOUrid- that late '- May Dash tie'gan his leAve .lif absence With-out fir§t-,s; informing' h,is'2regional thanager-,-fl'-and'that 'On 30' May the RespOndent sent liii -a 'relegranrthreaten--'. ing ,him with -digcharge:If :he s-did confAC± the offiee Within' 4' days...We agree With 'the- judg-OhAt - the 30 May threat wasnot improper 6' ,When' viewed against this' hackgrOUnd, Dash's"' conduct pn4 November' Was simply an egregious manifestation of a longstanding lem. 1 2 Santangelo was conducting a legitimate in- vestigation of the Fulton incident, but Dash refused to cooperate' at the :outset „when". he...belligerently.: stated, "[W]hat you want and • -what .kou' get Are tvkief , different things." Dash COncedecl , that he beCame extremely angry and it is :clear that he never gave' substantive aniwers to, Santangeto's' questions., The. record therefore 6tablishes, that over Sever-, al,years the, Respondent was repeatedik cOnfrpiited.„ with the issue Of .bash's behavior,- and we infer from its previbus . reactiOns 'that. . the Respondent- wOuld, have, discharged hirn , on, 5 Noyernber, even in the.abience of his union activity-Its,previous,re- - actions first demonstrate that it viewed the-problem .,, as- seriou,s, long before, the., onset of union. The memo of ,17 bctober 1977 f ,discloses. that, 2,, years hefore , Dask,initiated the ofganizing. - s I 9 The.documents in connection with the Koslov_and Monson incidents, as well as the 17 October 1977 memO, are relevnt in determining the, Respondent's perception of Dash's behavioral 7piOblems and the motive underlying its-discharge decision Weared not make factual findings with respect to what actually -.transpired during Dash's encounters with anil`MonsOn, ‘Ancrwe do not rely On the dOeumerits for that pur- pose ' • ' • . _ '„ • 19., The judge • also found -that, Murrell discussed. the ,Koslov and Monson incidents with Dash -When he threatened him sith probation • " bash contends' that he' sent a telegram'tO the Respondent's riationali sales manager, but the judge found that the Respondent never received it , 2,, in fact, our dissenting colleague tacitly concedes the existence pf, this" problem agreeliig that the RespOinient's requiring Dash "- • to be exn-mined eby a psychiatrigt prior' to 'his ieturn to NA;OrV was "trim,- vated by legitimate Concern In this regard, contrary to, our dissenting colleague, we find it Irrelevant that the psychiatrist hired by the Re- spondent cleared Dash of any problems, since the Respondent dB : - charg .ed Dash for his unacceptable- behavior on the 'job, not for ,a medical, disorder Thus, as we noted earlier, the ,favorable,medical report does not: undermine the Respondent's contention concerning bash's ability, to pert form his-job ' • r • " • +" LAWYERS 'PUBLISHING 'CO 133 one - Of the Respondent's highest - officials recog- nized that his "longstanding" behavioral problem.: , (DILHR) 'determined :that Dash qualified for bene- fits.' The Respondent filed an appeal o 'tfhe award and a "telephone hearing" was 'held before an ex- aminer of the Appeal Tribunal of the DILHR. The' examiner issued a decision which upheld the award' of benefits, and the , Respondent petitioned for review to; the 'Wisconsin Labor and -Industry Review. Commission, (Review Commission). The Review. Commission, dismissed the • Respondent's petition, :finding that it was untimely filed. The ,Re- spondent. filed a. complaint in the circuit court of Dane County,, Wisconsin, naming the State of Wis- consin,- the•DILHR,, the Review Commission, and Dash -as- defendants., The complaint requested that the court Set aside:,the• decision of the Review Commission, reverse the examiner's 'decision,, and remand the proceeding to the Appeal Tribunal of, the.DILHR to reopen the hearing de novo-. At the, time •of, the hearing, in the ,instant proceeding, the,. Respondent's action ,in :the ,circuit, cOurt was: still„ pending... _ "may eventually lead to termination." The Respondent's reactions Also demonitrate thaf it took progressively stronger measures over time to control Dash's conduct. The Respondent- first compelled him to write the letter of apology noted above, then threatened him with probation op 9 January, and finally threatened him with discharge - on 30 May before actually terminating his employ- ment on .5 November. This progressive response in- - dicates that the discharge decision was the logical - culmination of the Respondent's previous reactions over several years._ What emerges from, the record as a whole, therefore, is that the RespOndent gave - Dashevery opportunity to rectify his behavior,, but that it finally discharged him' when confrOnted, with his insubordinate obstruction of Santangelo's - legitimate investigation. In view of:all the above evidence, we conclude that Dash's discharge 'did not 'violate Section 8(a)(3) and (1). 13 - , 3. The judge found that the Respondent's apPeal - of Dash's award of unemployment conipensation, benefits was discriminatorily motivated: We agre-e,' with the Respondent that its conduct was not un- • lawful.- ‘,• • 'Dash applied for ,unemployment OomPensation-- benefits following his discharge. The ResPo -ndent` ' contested the application, but the Wisconsin; De- partment of Industry, - Labor 'and Human RelationS: • 13 We are aware that the Respondent did riot attempt to a`scertain Dash's version of the .4 November incident' before discharging 'him., but. we conclude in the circumstances of this case, that its failure to _do, so does not warrant a finding of unlawful motive Although 'the Respond- ent's iailuie to consult Dash is among the factors to-be conS'idered,'con- trary to •our dissenting colleague, we_conclude that it is outweighed in - this case by the 'extensive evidence discussed above that, the Respondent could no longer ietain Dash in the face of his persistenf 'misconduct -We also fihd it noteworthy that the 4 November incident was given extensive consideranon,by several of the Respondent's highest officials Santangelo discussed the incident with Bissett and Roth, and then discussedit again in the presence of 'Anderson: !Sennett, Fogel, Smith, and Bissett Saritan-' gelO ind Fulton then engaged in further discussions with-Bennett and the Respondent's attorney We do not minimize, the Respondent's failure to. ascertain Dash's version, but in light of the above evidence we cannot say that the Respondent did not investigate th 4 Nci'vember incident before deciding to discharge Dash , • • In concluding that the Respondent's motive .was unlawful, our dissent- ing colleague emphasizes Dash' previons pthform.ance as a sales repre-- senintive We do not dispute that Dash had been an excellent salesman, but we think it fair to conclude that the Respondent determined that his sales performance eventually came to be overshadowed by his loligStand:. mg- behavioral problems Finally, in ascertaining the Respondent's motive, we also disagree with our dissenting colleague that,Dash did not present any problems to the Respondent which were not common to the rest of the sales,force Al- though the record contains examples of sales representatives who were not disciplined after engaging in various types of abrasive conduct, there is no evidence that any other sales representative exhibited the consistent behavioral problem m;hich the Respondent ,had long recognized in' Dash There is also no evidence that any sales representativehad escaped, disci- pline after obstructing a supervisor'S legitimate investigation °ran em- ployee dispute An inference of unlawful motive based on disparate tieat- ment is therefore unwarranted , In Bill Johnson's- Restaurants v. NLE B, 103 S.Ct. 2161. (1983), the Supreme Court set forth the test which the Board mustapply in determining. wheth7.-. er a state-court 'lawsuit may be enjoined' as, an unfair labor practice'. The Court stated (103 S,Ct. at 2,173) that - , . the 'Boaid may' net halt the prosecution' of-- a 'state-court lawsuit,' regardless of the plain; fiffs motive, unles the' suit lacks a' reasonable : -. basis in 'fact or law the,' motiVe and lack of reasbnable basis ,are 'both essential tire- requisites to the isshanee of a ceasezati&desist Order against a state snit__ , • . . , A -Suit has :a reasonable -baSis 'in 'fact' if it raises "al' genuine issue of material fact that -turns On the credibility of Witnesses or* the:properinferences to be drawn from undiStiuted''faciS :." 1!',A-suif has a' reasonable basis in law if there- Ts`"any realistic chance- that the Plaintiffs _legal'. theory Might' lie-, adopted 15 Applying thiS:•test;t6' viefind:thaf the Respondent 'had ,a reasonable basis in fact and' law tO .support ifs':aPPal- of -Pash'S:' av,',ard of tinemPloyment-eompensationSt,:i,!":',‘ , We find at the outset that the Respondent•had "A reasbnable basis fOr 3-pilisuing atiPear.of: 'the DILHR's initial determination. The examiner's de- cision discloses that 'the ,issue ;the ',hearing was whether Dash's conduct with 'Santangelo on 4 'No- vember' 6 c8nstituted- "misconduet -connected *ith 14 103 S Ct'at'2171 ' • • •, • 15 103 S Ct at 2172 16 The decision also referred "to alleged -arguthents with ewo unnamed customers in 1978 and 1979 - • - ••- • •:••• !x: 134 DECISIONS OF NATIONALI LABOR-RELATIONS BOARD his employment?' .within the meaning the,appli-:. cable Wisconsin statutory proyision. 1 -7 - sion the examiner noted that the Supreme_Court of Wisconsin ,has- interpreted , this :statutoryz language._ to-include:. _ ' • COndiiet, evincing' such willfUl 'or wanton dis: -regard , Of an employer's interests as-is found-in deliberate , violations or disregard of standards _Ofbehavior which the employer has -a .right to 'expect -of his-employee, or in ,carelessnessi negligence of such 'degree or :recurrence; as. to manifest' equal .culpability,-, wrOngful: intent'of" 'evil design; Or to show aii intentional and -sub-I. i; f-stantial disregard of the..ernployer's interests',or..--j , of the employee's .duties rand 'obligations -to- his emploer:1 8 - "-* ' •• t As - noted 'above, 'there_ is a factual -dispute ,a.S„-tO,'" the' ,substa'nee of the 4 NOertiber be-' tWeen -Santangelo and ,Dash.' According td Santaii- gab; the' argument becanie-quitetheated; and -Dash used profanity and refused to answer questions -, ab6ut-the lFulion incident:' Dash conceded that -he "bleiv '[his]-'cork" 'and "Could; have" used profanity; ' but' 'asserted' that he'did not - 13econie- angry-until- he was provoked by Santangelozg•threat to- destroy orders. - ' • 1 In view of the dispute between Dash and Santaii- • - gelp.as. to the substance of their argument, we find _th_at the itesPondent'S,-apPeal;Wa's.,baseci i„genu-' ine issue-of material tact. i?, The ,appeal - also had a reasonable basis.in law because under Santangelo 's version baki's -cOnduetl'at leak at-viably fell Within the ate-g81:Y . -set 'f'Ortli in the Wisconsin statute as interpreted by the Wis,cOhsin Supreme Court. We cannot say that theftWas 'no "realistic chance! that the, -ItespOndent's;legal -theory could_ have been._ adiopted. ; • s:Furthertnore„ .we are _not, ,persuaded tha t „the,.;:ke,,,:', sponcient, acted aniawfullyby,,continuingys. appeal after,: ,the examiner ,,issued' his_ deCision.- sponCient,.contends that,* _was denied, an oPpOituniF,1 ty-to spresen,t;Wiinesses and be represented by coup Selatthe.,teleph4he hearing?;as a result of ainb-ig71._, uouS. and Mikeading,itistiuCtionsfiOrif ,-the On .2 January„,181: the Respondent received , in !, • r - •.:- structions WhiCli indicated that the 13 ,January pro- ceeding would tbe.,a "telephone hearing ' in _which 17 Under this provision, an employee who is discharged for ."miscon- duct connected with his employm&lt" is ineligible foe-benefits .1..9 -.The examinei-:.quotèd'thedecision of,the Supreme Cou-rt of Wiscon- tsupm,Boynton Fab,Co ,vVyeubeck & Ind Comm. , 237 Wisc 249,(1941) 1,9 Although, w'e"haiie found the discharge 'to be la'wful even if Dash's version, is deemed accurate, we cannot say that the' conflicting_ versions would not be-of significance to a Wisconsin state courtbattempng to apply the test set forth above :,?2,3,-:,VV,ei need. note,consyler ,whethert,Dash's conduct, according ;to his own version, arguably fell within the statutory category , .; . the, _Respondent „ would participate by telephone front its :office ,in Rochester, New y,ork, while Dash appeared in person at the DILHR's office _in Madison, •Wisconsin. In pertinent part, the instruc- tions further stated that. This- Case: has* been scheduled for a telephone hearing. ? Your testimony -will be taken and :re- . cOrded over- the telephone.' The average hear- ',..Ing-length is One hour. 'telephone the Office Manager if You Wish- tO: ''‘ Al Have 'witnesses' Present at the' hearing; "(R'equires personal aPpeatance'hearing), Be 'represented b'y an attOriley or anOther- perS'on;y(Requires persionaraPpeaiince 'hearing) - Pei§onar,appeararice hearings',W'ill be -Sched- nled only upon your request:: Although there is no . evidence that either the:Re- sp-ondent or Dash requested; that, a "personal ap- pearance ,hearing' be -scheduled, Dash- nonetheless _ appeared at the- hearing on 13 January, with his at:,, torney. When apprised .of this situation,- Personnel' Manager Roth stated over the telephone that -he had interpreted the instructions to prohibit counsel at: a..."teleplione. hearing," and he requested an_ad- journment—to obtain counsel for the Respondent., The -examiner denied the request and subsequently asked Roth whether he intended to present any witnesses. Roth again stated that he had interpreted the instructions to prohibit. witnesses at a "tele- phone' hearing,' and , the examiner denied his' re-, quest'for'an adjournment to- Permiethe Respondent , to" call -witnesses. ,-Subsequently, in his decision . up- • ho. laing the „ayvard 'of benefits, the examiner `relied, on the 'kespondent!s failure to . .present a'n' wit- ne'sses-' and' fOund, that it had' 'failed , to meet bUiden ', "tV.:',Introdu'cè, ,,coinpefent, '''adm isSible 'evi- dence" concerning the 'circumstances, of Dash's dis-_, charge. 2c The' Respondent's' subsequent petition' to the- Review Conimission, , as noted abOV'e, Was, dis7, missed solely on the ground that it was untimely filed: 22 In the ,'complaint which it filed in the ocir- cuit , court. of Dane County, 'Wisconsin, the ,Re- spOriderit alleged a violatirm 'of due process and -re- queked that the hearing be reopened to permit it to" present _witnesses and be represented by counsel. - , We find 'that , the Respondent had a reas,onable basis in fact ,,and law for continuing its appeal after, 21 The. examiner, sated that Roth "had no first-hand knowledge" of the incident between Dash and Santangelo Although the Respondent's petition was dated 26 January, it was not received,by the Review Commission until 30 January , The filing deadline was 28 January LAWYERS PUBLISHING CO 135 the examiner's decision. The instructions set forth above present a genuine issue of material fact,- since they arguably prohibit legal representation and the presentation of witnesses at a telephone hearing. In view of this ambiguity, in the instructions, we find that the Respondent reasonably could häve con- tended, as it did 'in its complaint before the , Wis- consin court, that it was prejudiced by the examin- er's refusal to adjourn the hearing to permit the Respondent to obtain counsel, and by the ,examin- er's reliance in his decision on the Respondent's failure to produce witnesses. We cannot say that there was no "realistic chance" that the court could have adopted' the Respondent's legal theory that it was denied due process. . Because we find that the Respondent's appeal had a reasonable basis in fact and law, we are -pre- cluded from enjoining the appeal regardless of the Respondent's motive. In any event, We'also find no evidence that the appeal Was unlawfully motivat- ed.23 The judge inferred the existence of an unlaw- ful motive from his finding that the appeal, WaS marked by dilatory tactics, by lack of a serious effort to prosecute the action, and by strategies that differed from previous proceedings involving un- employment compensation benefits. In , ,concluding that the Respondent engaged in dilatorOactics, the judge apparently relied on his finding that the Re- spondent "waited until the last day" to appeal the initial determination. The DILHR i'ssued- the award on 1 December and the Respondent requested an appeal by telegram on 15 December. The latter date does represent the filing deadline, but We find that the Respondent's timely filing of:its request; 2 weeks after the issuance of 'the decision,' hardly warrants the conclusion that it engaged in dilatory tactics. In finding that the Respondent did, not make a serious effort to prosecute the action, the judge found that the Respondent "chose" not to present witnesses or affidavits at the 13 -January hearing. As discussed above, however, the hearing instruc- tions arguably prohibit the 'presentation of wit- nesses at a telephone hearing. We are not of the view that the Respondent's confusion over the proper procedure , is sufficient to SuppOrt a finding that its effort was less than serious. 23 In Bill Johnson's Restaurants v NLRB, 103 S Ct 2161 (1983), the Supreme Court stated that if genuine material factual or legal Issues exist, the -Board must await the results of the state court adjudication The Court further stated that "NI' the state proceedings result in a judgment adverse to the plaintiff, the Board may then consider the matter further and, if It is found that the lawsuit was filed with retaliatory Intent, the Board may find a violation and order appropriate relief" 103 S Ct at 2173 At the time of the hearing the stale court had not rendered a final judgment We consider the Respondent's motive at 'this point only to avoid further proceedings should the state court 'render a judgment ad- verse to the Respondent .Contrary to the judge, we see no reason to draw an inference of unlawful , motive from the fact that the Respondent 'made a personal appearance, rather than a telephonic appearance, at a prior unemploy- ment compensation proceeding involving another employee in New York. The Respondent was simply acting within its rights under Wisconsin procedure by participating by telephone in the 13 January hearing. We can find no significance in the fact that the Respondent chose to pursue different strategies in different proceedings, particularly since the record discloses little evidence of the cir- cumstances surrounding the prior New York pro- ceeding. Indeed, if the limited evidence of that pro- ceeding establishes anything, it establishes only that the Respondent's challenge to Dash's claim was not without precedent., We therefore find no ,evidence that the Respond- ent's appeal of Dash's award of benefits was unlaw- fully motivated. In view of this finding and our conclusion ,above that Dash's discharge was lawful, we find that the Respondent did not violate the Act after the settlement agreement. Consequently, we shall reinstate the settlement agreement and dis- miss the complaint Cambridge Contracting, 259 NLRB 1374, 1381-83 (1982); Ann's-Schneider Bakery, 259 NLRB 1151, 1160 (1982). ORDER The complaint is dismissed. IT IS FURTHER ORDERED that the settlement agreement in Case 30-CA-5603 be reinstated. MEMBER ZIMMER-MAN, dissenting in part and Con- curring in part. dissent from my colleagues' reversal of the judge's finding that union activist 'Stanley Dash was discharged in violation' of Section 8(a)(3) and (1) of the Act. Notwithstanding the factors cited by the majority, the fact remains that Dash was an excellent sales representative- who had won sales prizes and been cOnsidered by the Respondent for a position as regional manager, and whose previous activities noted by my colleagues had always been condoned by the Respondent. Indeed, the Re- spondent was aware . prior to the organizing cam- paign that aggressive behavior which sometimes became abusive or profane was not unusual among the sales representatives, and management tolerated such behavior as long as the representative was successfully making sales. That Dash's union activi- ty was the sole motivating factor in the Respond- ent's decision to discharge him on 5 November 1980 is evidenced by the fact that the Respondent not only failed to seek out Dash's version of the precipitating incident with Santangelo, but refused 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to listen 'when ,Dash tried to 'explain his side of the story. The Respondent's determination to hear only Santangelo's version establishes that its interest was in- finding a plausible pretext for the discharge, and not in ascertaining what actually occurred.1 Because I find Dash's discharge unlawful, I would not honor the' parties' settlement, as my col- leagues do. Rather, I would' cthisider and essential- ly affirm the judge's -finding- that the Respondent committed numerous' violations of Section 8(a)(1) of the /wt. I do, however, CthiCur in my colleagues' finding that the'Responderit' did no act unlawfully when it earlier required Dash to undergo a psychiatric ex- amination before returning- to work following a prior leave of absence, 2 or when it appealed 'his award of unemployment compensation benefits. In contrast to its 'discharge of Dash, the record indi- cates that the Respondent ' was motivated by legiti- mate concerns with respect to these two actions, and I agree with ri-67 colleagues that these allega- tions of the complaint should be dismissed. • I The fact that any number of the Respondent's highest officials may have participated in the decision to discharge Dash does not detract from the undisputed fact that these officials did not ascertain Dash's version of the incident for which he was allegedly discharged prior to the decision to discharge him Contrary to my colleagues, who find that the Respond- ent's failure to consult Dash about the incident is outweighed by the "ex- tensive evidence of his persistent misconduct," I find It more likely that Dash's union activities eventually overshadowed his excellent sales performance in the Respondent's view 2 My colleagues 'conclude that I tacitly concede the existence of a longstanding behavioral problem on Dash's part because I agree with them that the Respondent's requiring Dash to be examined by a psychia- tnst prior to his return to work following an earlier leave of absence was motivated by -legitimate concerns To the contrary, I find the fact that the psychiatnst selected by the Respondent itself gave Dash permission to return to work establishes that whatever psychiatric' problems the Re- spondent may have perceived Dash to have had in the past did not war- rant the Respondent's later actions in firing him Thus, the judge found "The psychologist who Interviewed Dash on the Company's behalf com- pletely cleared him of any problems.and Issued a fairly impressive report about the state of Dash's condition" Notwithstanding this finding, how- ever, I find that the evidence was insufficient 'to sustain the judge's con- clusion that this examination was motivated by unlawful reasons Dash refused to concede that he was ill or disabled and resisted the release of his medical information while at the same time seeking disability benefits from the Respondent In these circumstances, the General Counsel failed to establish by a preponderance of the evidence that the Respondent's re- quiring Dash to undergo an examination to determine his condition was discriminatorily motivated DECISION STATEMENT OF THE CASE WALLACE H. NATIONS, Administrative Law Judge. Charges were filed against Lawyers Cooperative Pub- lishing Company (Respondent) on January 1:4, 1980, by Office and Professional Employees International Union, AFL-CIO-CLC, on November 12, 1980, by Stanley Dash, on February 20, 1981, by Robert Carduner, and on February 20, 1981; by Irving Kensler, each resulting in the issuance of complaints against the kespOndent. All' of the Individual cases were consolidated for hearing. The consolidated complaint alleges that during the course• of a union organizing campaign and thereafter the Respond- ent has unlawfully interrogated its employees,. created the impression of surveillance of its employees, threat- ened its employees because of tiniOn activity, granted benefits during the course of the union campaign, dis- charged employees Stanley Dash, Robert Carduner, Irving Kensler, Richard Warner, and Hubert Redd, and disciplined employee David Outlaw because of union ac- tivity. The, consolidated cases were heard in Milwaukee, WiscOnsin, on July 20-30, 1981; in Washington, D.0 , on August 11-19, 1981; and again in Milwaukee, Wisconsin, on August 24,25, 1981. Briefs were received from the General Counsel and the Respondent. _ . I THE BUSINESS OF THE RESPONDENT Lawyers Cooperative Publishing Company (LCP) of Rochester, New York, engages . in the sale and publica- tion of law books and other legal publications on a 'na- tionwide basis. It has admitted the jurisdictional allega- tions of the, Iconsolidated complaint. I find that it is an employer within the meaning of the Act and that it will effectuite the Policies of the Act to assert jurisdiction in this proceeding. • II, THE LABOR ORGANIZATION INVOLVED - Office and Professional Employees International Union, AFL-CIO-CLC is- a labor organization within the meaning of the Act. III. UNFAIR LABOR PRACTICE ALLEGATIONS A Background Lawyers ,Cooperative Publishing Company of Roches- ter, New York (LCP), is one of the nation's leading pub- lishers of law books and other legal publications It mar- kets its products primarily through a large sales force of commissioned 'salespersons. The Company has divided its sales territory into various regions managed by regional managers, who report to a national sales manager. This manager is directly responsible to LCP's vice president of marketing and its president. The basis for the involved union organizing campaign had its inception in 1977 when the Company abandoned its former compensation plan for sales representatives and introduced what it calls a "subscription growth" plan. The details of this plan are unnecessary to the deci- sion of this proceeding , It is sufficient to know that the plan had the effect , of reducing sales commissions for many senior sales representatives because of various fac- tors beyond their 'control. The operation of the subscrip- tion growth plan from the outset caused dissatisfaction among many of the Company's field sales representa- tives. Although this dissatisfaction was made known to management in a variety of ways, LCP's management was and is committed to the subscription growth plan. Some 'adjustments to the plan were made in the first 2 years after its introduction to cure some of its deficien- cies, but, opposition to the plan remained among the Company's sales representatives. One of the LCP sales LAWYERS PUBLISHING CO. 137 representatives, Stanley Dash, determined that the only solution to the problem was to have the Company's field sales representatives form or join a union. He also be- lieved that with the aid of a union solutions could be found to other perceived problems including the Compa- ny's pension plan, its disparate treatment of salespersons in the field compared with personnel in the home office, and the manner in which sales quotas were computed In early December 1979, Dash organized a conference call between himself and several other sales representa: tives including alleged discriminatee Irving Kensler. Dash indicated that he had received union authorization cards from the Chicago branch of the Office and Profes- sional Employees International Union (the Union) as well as advice on an organizing campaign with a list of do's and don'ts to be used during the campaign. The sales representatives participating in the conference call indicated interest in the Union, and Dash had authoriza- tion cards sent to these persons for distribution to the re- mainder of the sales force Knowledge of the organizing campaign which resulted in a Board election on May 8, 1980, came to the Compi- ny's management on January 9, 1980. Though, some of the Company's lower-level management may have known or heard rumors , that such a campaign was being conducted at a slightly earlier date, I credit the Compa: ny's witnesses that its top nianagement did not become aware of the campaign until January 9. Immediately fol- lowing receipt of knowledge of the campaign, the Com- pany contacted its attorneys for advice on how to combat the organizing drive. LCP admits that it did not want the Union and sought advice On how to win the campaign. Acting on advice of counsel, Company Vice ,President of Marketing Richard Anderson and National Sales Man- ager Peter Bissett called each of the 11 regional manag- ers on January 10 and 11 and sought their knowledge of any union organizing campaign. The regional managers expressed no knowledge of the campaign. Shortly there- after, again after meeting with counsel, the regional man- agers were called by Bissett and Anderson and asked to telephone one or two of their sales representatives to state that they had heard a rumor about union organizing and ask if the representatives were aware of it. The re- gional managers were instructed to say nothing further, not to inquire who was involved, not to inquire whether authorization cards had been distributed or signed, and not to ascertain underlying issues or grievances. Howev-' er, it is clear from the evidence that though these in- structions may have been given, the regional managers 'in varying degrees failed to carry them out with care. The regional managers violated the Act by illegally interro- gating their sales representatives, creating an atmosphere of surveillance, and implying that benefits would result from staying nonunion After the initial canvass of the sales representatives by the regional managers, it became clear that an organizing campaign was well underway. Acting upon advice of counsel, LCP decided to have the regional managers explain in one-on-one conversations the significance of union authorization cards. The in- structions given the regional managers were to. (1) meet face to face with each sales representative, (2) state that the Company was aware of the organizing attempt, (3) state that cards had' been sent out, and (4) state that the Company wanted its sales representatives to know the significance of the cards The Company also instructed the regional managers not to ask questions about any individual's participation in union activities and to state that they were not inter- ested in whether the representatives received a card, signed it, or sent one back. The regional managers were also told not to make any threats and not to promise anything. In explaining the significance Of the authoriza- tion cards, the regional managers were to make the fol- lowing statements. (1) If a majority of the sales repre- sentatives signed the cards and sent them back, the Union can go to LCP's management and say, "We have a majority of the people who want a union and we want to represent them." The Company can agree and there will be no election (2) if a majority of the people sign the cards and send them in resulting in an election, though the election may be lost by the Union, it could go to the National Labor Relations Board (NLRB) and tell it they had a majority, that the Company Must have done some- thing to cause the election against them, and a new elec- tion can be held or the NLRB Can direct the Union to be the repiesentative and (3) if the cards were signed, you can request the cards to be returned. The regional managers were told to listen and answer questions, if questions were asked, but not to ask or ques- tion anybody about anything They were also instructed to report to Bissett and keep him informed but to be ex- tremely careful about what they said and how they han- dled themselves. The face-to-face meetings between the regional manag- ers and the individual sales representatives took place generally between January 14-18, 1980 After these meetings, LCP conducted " ,its campaign primarily through letters, and the use of the .other officials in the Company, including Thomas Gosnell, its president, Donald Bennett, Vice President of Personnel Anderson, and Bissett..Following the regional manager-sales repre- sentatives meetings about the authorization cards, LCP gave the, regional managers further guidelines on how to conduct themselves during the organizing drive. On Jan- uary 22, LCP mailed to each regional manager a four- page summary of dos and don'ts for supervisors. On Feb- ruary 4-6, a meeting for regional managers was held in Chicago at .which time LCP's labor counsel explained the election process, elaborated on the dos and don'ts, talked of probable union campaign techniques, and ex- plained how LCP's campaign would be run. . At the same meeting, the regional managers were , asked to fill out questionnaires on the sales representa- tives working in their regions. These questionnaires, among other things, required the regional managers to give their best estimate of their sales representatives union sympathies. Following the, Chicago meeting, LCP carried out a campaign based on letters from President Gosnell, com- munication meetings with Gosnell, and informational meetings where Bennett, Bissett, and Anderson explained LCP's benefit programs and marketing procedures. The 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel urges that the initial meetings of the re- gional manager's with the sales representatives, the meet- ing of company management with groups of sales repre- sentatives, the company letters to the sales representa- tives, and changes in the company's pension 'program and compensation program during the course of the cam- paign, all constitute. violations of the Act. During the course of the campaign, -LCP threatened Stanley Dash with probation and placed sales representa- tive David Outlaw on probation for 6 months. Following the election, in May 1980, which the Union lost, the Company discharged one of its regional managers, Rich- ard Warner. It also engaged in a course of harassment of Stanley Dash which is discussed in detail at a later point in this decision. Region 30 and LCP entered into a com- prehensive settlement in Case ,3-CA-5603 in September 1980, which was set aside when LCP .discharged Dash in November. Earlier in August LCP discharged sales rep:. resentative Irving Kensler. LCP discharged Regional Manager Robert Carduner following , a meeting with company attorneys in preparation of LCP's defense of the reopened proceeding. In October, sales representa- tive Hubert Redd was discharged. It is alleged that the motivation for all of the above personnel actions was LCP's union animus and thus each action is alleged to be a violation of the Act. B. Discussion and Conclusions 1. Implementation 'of five-percent buffer to • subscription growth plan during the campaign On March 4, 1980, the Respondent announced the im- plementation of a so-called five-percent buffer, a 'change in the existing compensation plan This - new plan was an- nounced to sales representatives at meetings held in March 1980. The purpose of the change was to ease some of the more adverse effects of the subscription growth plan which began in 1977 and about which there had been much controversy among the sales representa- tives Development of the five-percent buffer began in April 1979, which LCP Vice President of Marketing An- derson initiated discussions with his counterpart in Ban: croft Whitney, a wholly owned subsidiary' of LCP. By May 1979, both vice presidents were corresponding on the elements of what was to become the five-percent buffer plan and the plan had been placed on the agenda of a July management meeting for discussion. During June 1979, Anderson had some initial figures prepared regarding the dollars that might be involved in changing the then-current compensation plan. At the July meeting, the five-percent buffer Plan Was agreed on and a decision was made to' implement the plan by January 1, 1980, conditioned on the Company's. receiving a satisfactory indepth cost-benefit analysis The plan, at this point, was detailed as indicated by a memo- randum introduced into evidence. In August 1979, infor- mation on how much the five-percent -buffer would affect the sales representatives' commissions was being collected. These figures were sent to LCP's comptroller for verification and a discrepancy was discovered in the calculations In September, Anderson decided that the quantity of information for determining the cost-benefit analysis was not sufficient and further information was c011ected The comptroller recomputed the figures and another meeting was scheduled for review of the plan in November 1979. At the November meeting management decided to get more information to further refine the cal- culations. Because of this information request, the Com- pany decided that it was impossible to implement the five-percent buffer on January 1, 1980, because the final figures'would still be coming in The decision was made at 'this time to present the final revised plan to the re- gional managers at a scheduled February 1980 meeting in Hawaii before announcing it generally. It was also agreed at that point that the five-percent buffer would be made retroactive to January 1, 1980 At the November' meeting, the president of LCP gave his final approval to the five-percent buffer plan subject only to the final figures being simiar to the acceptable calculations that had already been made.' About January 3, 1980, the vice 'president of Bancroft Whitney asked Anderson whether the final calculation could be cOmpuied in, time to announce the buffer plan at the Hawaii meeting. Anderson responded on January 8 that the figures were not yet completed but that he would do his best. Anderson also testified that he also decided at this time to hold a small- meeting of regional managers from LCP and Bancroft Whitney to be sure that there would be no differences of opinion between the companies as there had been in the past. This meet- ing was held in Dallas' with satisfactory results and the five-percent buffer was announced to the regional man- agers at a general management meeting held in Hawaii in March The plan was announced shortly thereafter to sales representatives. I find from the evidence that the five-percent buffer was developed and a decision to implement it had been made prior to the beginning of the union organizing campaign and the time that the Company gained knowl- edge of the drive. Thus, I find that the plan was not instituted and imple- mented in order to influence the election in violation of the Act. As both the decision to implement the plan and the timing for the announcement of the plan was made prior to the Company's knowledge of the campaign, I conclude that the timing of the announcement of the plan. was consistent with the Company's prior actions in announcing changes in compensation plans and was not unlawful See B. L. K. Steel, 245 NLRB 1347 (1979). Therefore, I recommend that the complaint, insofar as it alleges a violation of the Act in this regard, be dismissed. 2. Lowering the forecasts The complaint alleges that LCP granted a. general re- duction in sales quotas to sales representatives in viola- tion of Section 8(a)(1) of the Act The 1980 sales quotas were given to the representatives after LCP had knowl- edge of the union organizing campaign. However, the foreCasts themselves were prepared pursuant to a consist- ' The Dallas meeting is significant because it was mentioned by some regional managers to their sales representatives in advance of the meet- ing, with the implication that improved benefits might be forthcoming LAWYERS PUBLISHING CO' - 139 ent company policy at a time well before January 9. The procedure for developing forecasts begins about August of the 'year preceding the forecast year- with sales repre- -' sentatives submitting' their quotas These requests are paired with'Company goals under a rather complicated 3procedure which results in final' quotas by December. "Additionally, though many sales representatives' sales forecasts were lowered, at least one-third of the sales representatives' forecasts were increased for the year '1981 The General Counsel failed' to meet the burden of . proof to support the allegation that ther• Company: low- , ered the forecasts :in' order to have-an effect on-the union 'organizing campaign and, accordingly,-I recommend that the complaint, insofar as it alleges a violation of the Act in this regard•be dismissed. _ . • 3.- Washington meeting between Gosnell, ,FOgel, - • •, Mann„and Kensler, • . A Meeting between' LCP' President Gosnell,' LCP Treasurer • Seymour Fogel;' and • sales representatives David Mahn and 'Irving Kensler was held in Washing- ton, 'D.C.; in a' hdteron Aprir 11, -1980. The, complaint alleges that at this meeting Gosn'ell interrogated the .rep- resentatives concerning-their union adtivities-and sympa- thies, solicited Complaints and grievances from Mann and Kensler, promised increased benefits' and 'improved con- ditions of employment, created an impression of surveil- lance by asking' Mann and Kensler- the names of- other • employees involved in Organizing the Union, and 'sought to undermine the Union's organizing drive' by soliciting them' to inform other employees-of-their antiunion sym- 'pathieS in order to cause them : to abandon support for the Union. '•' • • • Everything about this meeting is in controversy - The General Counsel contends, through the testimony of Re- gional Manager Robert Carduner and Kensler, that the meeting was set 'up at the insistence of KenSler in a mes- sage relayed through Carduner. As to the meeting itself, its content is in complete dispute. Kensler, on the one ,,hand, contends that his active participation was limited :• to a momentary attempt ,to explain an. alternative -to ,the Company's •subscription growth plan, after which he was cut, off and ,interrogateclaby, Fogel' and Gosnell, A to the union organizing campaign and what could be done to defeat it GOsnell and Fogel, on, the other hand, submit that Kensleil presented a' very detailed alternate compen- sation . plan and other lideas on how to defeat the union organizing campaign. They contend, that at no time did they interrogate either representative, promise any im- proved benefits, or request the identities of any persons involved in-the organizing campaign. With respect to this meeting, _I believe that the testi- mony given by Fogel and Mann is the most credible. The General 'Counsel points to the testimony of 'Car- ' -duner-ancrKensler to the effect that' Gosnell;•-through • Bissett,'requested a meeting to be set up between Gosnell and several influential sales representatives. Bissett testi- ' -fled that Carduner contacted him ,' in March -or- early -April stating that he had been contacted by five repre- • sentativ'es who wanted' to meet with Gosnell for the, pur- pose of-resolving-the union problem 'Bissett further testi- fied the he instructed Caiduner to have tile sales repre- sentatives Contact Gosnell directly. Anderson testified that Carduner•later called him to:tonflrm• that twO.repre- sentatives identified' as Kensler• and- Mann. wanted to 'speak with Gosnell. Anderson 'also advised that they Should-- ccintact GoSnell directly' Regional 1'Mana'ger George Synder testified that Kensler/an 'late `Mareh,l.re- quested that he 'Set up'' `,a meeting between Gognell, Ken-sler, soihe influential sales representatives, and some regional managers. ■' ' One of the participants in the'ineeting, Rober Mann, - testified that Carduher called 'him about the meeting 'and • said nothing about 'acting at Gosnell's''direetion:'Mann , • ,a1SO recalled that dardtmer said;that .s.eYeral Sale repre- • sentatives:Were ,gdihg tO he included in the meeting as of •fj.e the firSt' call. Carduner,:testified that he. wA never seek- ing more 'thantwO.Teleptione bills 'iritiOduced into _evi- , dence show :that during the period , immediatelji beidre i the rneeting-.Carduner ,talked:exte,nsively,with Mann and KenSler, including . nine ,Calls td"-Mann on:Apri1 .9.--As the • Respondent points out, these . are, hardly the acts , of •pne who is acting solely as an intermediary. I also agree -with'.the Respondent that the hotel ar- .rangements indicate ,that . Kensler and Mann initiated the meeting. A blackhoaid was Placed'in the nieeting' room at Mann'4 recine4t • The Respondent Urges, and airee, • that if Kensler and Mann . were meeting with r, . osnell ' d' solely at his- request, the , purpose of, the meetink being -left 'unstated then no arrangements would have been made ' to , have availabie'a blackboard fOr a 'Presentation. „ , With respect to, the,eyentsrat ,the,meeting, Kensler:s and ,Mann's testimony,. conflict sharply As noted earlier, kensler testified that Gosnell interrogated Mann and him with respect, to the identity of other union supporters, so- _ licited grievances, and encouraged them to work against the Union. .0n the other ,hand, „Mann testified that Kensler made a lengthy presentation with respect to an alternate compensation. plan that he had devised and..uti- lized notes. Kensler denies haying ,any„..notes ,Kensler stated that he never vindicated- opposition to, the Union at this meeting or at any-other time, although Manntesti- fled that both he and,,Kensler ,stated at the meeting that „ they were, opposed to the organizing drive. Seymour Fogel, a yery credible witness based on demeanor -and -manner, verified-,these ,portions of.. Mann's testimony. •Fogel testified-that at the meeting Kensler stated his op- position to the ,Union and that -he had 'a- plan to defeat the Union:-X'ensler- then -explained the sales representa- -lives' _opposition to the subscription growth 'plan pro- ' gram and offered in a lengthy fashion an alternative compensation plan Kensler utilized the blackboard toes- 'plain his program:' 'Fogel also testified that Kensfer pro- posed • that-•he be reinstated as national sales, manager to replace Bissett.. I can find, no credible evidence at this -meeting Gosnell actually interrogated Kensler. or' Mann -about the 'identities of union supporters dr . promised any benefits. However, Mann-testified-,that President Gosnell asked him about what' he doing about defeating the -. Union and why he was not on : the-telephone callin'g and telling other sales representatives 'about his .view-of the Union -Mann further testified 'that .Gosnell said thats'Was What he should be doing 'Although Gosnell denies these 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements,-Fogel testified 'that-near the,end of the-meet- - ing •Kensler,gratuitously said that, he was either, going to the salespersons or if any of the -salespersons called him he .was _going to tell them-to vote against the Union. ,Fogel testified that Gosriell!s response to that ,_was some- • thing like, "Well, Irv, you know I cannot tell What you , can or cannot do. -But, if you're to do that, that would be „nice" or "ICs nice to know that you're on the Company's side." . I credit Mann's testimony corroborated, at least in part, by Fogel, ,. that :Gos,nell urged both , Mann and Kensier to take -action to discourage 'union support ',Among their fellow, sales representatives I' find that Gos- nell's:dctions in this iegard dOilgtitute a_direction to dis- courage other einployee“rom sUpkOrting the Union and is a violation of Section '8(a)(I)'of the Act. See Galax Ap: T pare! Corp., 247, NIII3 159; ,In' all, Other re- spects;, I find the actions ,takenty the Respondent's' nian- agement at the Washingtonineeting tci he nonViOlative of the Act and will re-commend that the 'other'-allegations relating to this meeting be dismissed. 4. Gosnell- information meetings .... • .1, _During the campaign in the sprin ' g of the Re- spondent, seheduled a series Of meeting's between itS'sales rekreientatives and President Gosnell' At thee meetings, Gosnell gave what' he char racterized as an unstructured . presentation, of the Company's point of View- with re- ; Spect td the Union.. "After' this portion of the meeting, Gosnell solicited comments from the sales idkresentatives in an attempt 'to -answer' their- questions.: -The General - -Counsel *es that" the ' Meetings -conkitiited an unfair 'labor practice -Tin that' they were 'a -departure from the Company's past -practiCes in' 'Commu-iiicating! With -sales `i-epresentatiVes,''that the-comment sessions constituted so licitation 'of grieVanceS,''and that the answers 'given by tO.- a 'pr-omise to remedy suCh' griev- , ances- thereby constituting an impermissible prbmise 'of -"benefits to 'discourage union-support:. - -The Company's past' practice- with 'respect tO comniu- -. mcating With 'sales' representatives had been throligh..the nornial-- channels of' managemeni Management views Weie 'passed- - through. -Bissett to the regional -managers 'Who-- then - 'discussed whatever subject management - ::Wanted . them to with the sales representatives on a-one- ' . — tb-one basis . -Inforination 'that 'the 'sales ;representatives r wanted to 'mike known to the management -generally t passed back IO manageinent in the same fashion. Howev- er, the Company had a practice of having regional sales ; Meetings and annual meetings at which to-p Management •did speak to thcsales representatives and discuss compa- -,,ny policy with them. Thus,-_'Gosnell's_meetings. with the sales representatives were' not . unique to _the- organizing — campaign. The Respondent has the right to communicate : .its views 'and its policies:to-Ithe -Union 'during, the course 'of the , campaign. I cannot find- that the fact that Gosnell met with the sales, representatives in and of itself was un- • lawful.- - , The question.of whether or not Gosnell, by asking for -_,comments, .was soliciting grievances is 'anotherquestion ,- Clearly the Company wanted to explain its views.to the - sales 'representatives and wanted to hear the sales repre- sentatives' views or it would not have held the meetings. ..-Gosnell carefully avoided words such as grievance when asking for comments or questions relating to the topics about which he spoke, which included working ,condi- tiOns,. benefits, and the Company's commission plan. - However, under the circumstances, he was clearly asking the employees to- air their grievances.. The Board has ,.- held -that the vice in solicitation of grievances is that, by responding to the grievances, employers may either ex- ' pressly or impliedly promise to remedy them, thus prom- ising a- benefit. From the best 'evidence introduced- into . this record with respect to what Gosnell actually said, I cannot find tha he ever promised.oreven implied a-bene- lit in reponse to sales representatives' questions 'During the course of a question-and-answer session, a sales representative made a recording and thus preserved the questions and Gosnell's answers. This transcript re- veals that Gosnell; at worst; defended the Company's ex- isting policies There is not even a hint in the transcript - that Gosnell intended to change any policies, commission structure„ or other matters ,of interest to' the sales repre- sentatives. As there is no showing that there was some expressed or implied promise to-remedy real or , imagined -grievances, I cannot find _that Gosnell's responses consti- tuted an unfair labor, practice. There was some equivocal testimony ;given about Gospel] promising to review, the 'Company's commission policy ,with respect to one.set of books sold in New York: This testimony was not clear and- is at odds•with Gosnell's demonstrated performance as shown by the take of an actual meeting.. After review- ing all of.the evidence with respect to these meetings, I have concluded that, the , General , Counsel has failed to prove that the meetings constituted an unfair labor prac- tice and will recommend that the allegations of the com- plaint, based on these meetings,.he dismissed 5. The Company's antiunion letters .. 'During the course of the campaign; the- Respondent sent a series of letters to its sales representatives dealing with campaign issues It is contended that cerfain of these letters Contained statements which constitute unfair ;labor practices (a) In a letter dated April 2, '1980,'Presi- deni Gosnell wrote' thesales representatives, inter'alia Contrary to what you have been told, you do not need _to sign a card in order to vote- If you have al- " ready Signed a-card and you wish it back, you may get it back by writing to the Union requesting that ' it return your card to you. The Union's address is. ' Office and Professional -Employees International . Union, Local 2121, 290 Franklin Street, Rooin 203, Buffalo, New York 14202: ; The General Counsel urges that, this _statement consti- , tutes an unlawful solicitation of the employees to return their authorization cards. On brief, the General Counsel draws an 'analogybetween , the clearly ,unlawful supply- •ing of stamped, self-Addressed envelopes in a solicitation . of employees to withdraw with their authorization-cards to the Respondent's supplying the address of the Union, relying on Deutsch Co, 180 NLRB 8 at 20 (1969). , In- that case, the Board did find it unlawfuLfor, an employer to LAWYERS PUBLISHING CO. 141 . supply self-addressed, stamped postcards which required no More :than the employee's Signature to effect a revo- ._ cation of his or ,her authorization. The question in the in- stant case is Muc.' h .closer.,First,,there is clearly no solici- , tation to Withdraw the, cards in the quoted paragraph • The 'supiilYing 'Of the Union's adddress is certainly not same ' as a stamped postcard w4lich only needs a Sigiiâfurel The employee,Would have to actually • write -a. request' to withdraw antlioiiiation and supply - postage to effeCt the ,request.:Yet'supplYing the address and the-procedure for WithdraWing the 'Card, absent an 'employee -reqriest =for ' this infOrrnation, does iom. further than Merely' informing 'emPlOyees Of their right' to. with- _ „ _ _ -''draw their authonzation-if they Choose voluntarily to do • 'so On balarice,--in light Of' the 'strong campaign being _Waged by the Company against the-Organizing campaign, I find that the Employer in this regard_ has P■rovided more than information,to its employees and that its letter April' 2, 1980, clOes' conStitute an 'unlawful solieitation to withdraw supp-ort from the- mon. , ,(b) Gosnell sent a letter ,dated April 14 to the sales -1-ePresentatives. Stating: , i‘ would- like you to take a' Minute to consider what „ • it would lbe. like living With : a Union;-'d the Union should :win 'the . election. , • ; , : - . NO LONGER Will you be able, to work directly -, with the- company as an individual. With a Union, an adversary seltio-riship between you and the com- v,. pany will 'exist-As -a matter of fact, the usual way - We will he required to work with you is through ,cy.Our.unioh.steward.' NO LONGER will itbe possible to make ,"jiidg- ment calls" in iridividnal, Sales situationS'. Strict rules and ,regulatiOnS as specified in a union Contract will , govern all aspects of your job and your relationship with the cOmpany. " . - 'NO 'LONGER will you have .individuality, flexi- bility, independence and ,ability to completely plan your Own Work .schedule.`With'a union, all Working s 'dnditio'ns,, sales quotas, and ,other job-related condi- 'tins as PrOviderl the CellecOe-bargaining agree- ment would have to be figidly and consistently en- ''''fOreed • . . - COrisidei what yon would give, ;up if you be- longed to a union. Although the Respondent. has the right to make predic- tions as to what 'might ,happen .as a_result of a union vic- tory based on objective facts, it does not have the right to make misstatements of .law, and threats. of worsened . morking_conditions. The April 14:-letter is-not couched in terms. of_ what :could-happen as a res ult of bargaining. t Rather, _I believes it is . couched -in terms, of what will ..-happen.;Thus, -that, it constitutes a- threat of harsher working conditions and thus is unlawful in its en- , ttrety., See Colony printing, 249 NLRB, 223, 224 (1980), _ntd. 651- Rai .502 (7th Cir. 1 .981)s The letter!s_ misstate- tnent concerning .employees' rights to speak- directly to management about terms' and conditiOn 's of ,employment is,also impermissible under BOard law.. (c), In a letter dated April15,_ 1980, President Gosnell ,wrote.the sales representatiyes,.inter aim What does a strike mean'to yon? It means: . 1. LoSs of income, • . 2. Loss of custOrners to cOmpetition' • • 3. Logs of job (in the event Of an economic 'strike, you can be permanently' replaced). Remember, the-Onion's only real strength its right to strike Don't take a chance vote "NO " I find that this paragraph of -the letter constitutes an unfair labor praCtice in that it both infers that permanent 'loss of job will be a 'result of a strike and fails to give 'even ;a hint Of the existence of an employee's poststrike rights. See Laidlaw Corp., 171-NLRB 1366 (1968), enfd 414L-F.2d 99 .(7th Cif: -1969), cert: denied 397 ,-U S 920 (1970): - ' - " • 6 Changes in LCP's pension plan On April 10, 1986, the Respondent advised its_employ- _ ees that it had Changed its pension plan' to make it more 'generous. The credible eVidence reveals that ni April 'or May 1979 Company Vice President Of 'Personnel Donald Bennett began to,queStion whether the Cornpany's exist- ing plan was adequate and competitive He , initiated a StudY:of this' plan in 'Comparison with others using pri- V,ate, actuarial Consultants..The'study .Wa cOmpleted and , given to Bennett in Jiine 1979. Reviewing , the study, Bennett decided, that the LCP _plan was not ComPetitive - and began a program to 1 determine how' to adjust the . . plan to make it .mbre competitive The record refleCts :correspondence respecting possihle. changes' in the retire- Ment plan passing betweeti . the cOnsultants 'and J_,CP throughout the period of August to November 1979 . The Company initially had hoped to implement the changes in this,-retirement plan , on January 1, 1980. The Company had historically always announced and institut- ed changes- in its retirenient program on either January 1 or July 1. Because the information required tO make a final decision about_ the pension plan was put together too 'late to meet the ,Januaiy, 1;_,deadline, the "Company next set July 1,' 1980, ,as the date that the _new plan wciuld be implemented.' The changes were made final -and aPProved in 'the _latter part of March 1980.- These changes -Were announced on 'April 16, 1980, 1 month - . , before the union election _ , Based on the foregoing, I 6elieve that' the changes'in . „ the- benefit plan had nothing whatsoever to do with' the union' organizing campaign: However, I do believe that the timing of the announcement wasSelected because of 'theCompany's desire`to defeat the organizing effort. The timing of the announcement appears to be a 'substantial deviation from past practice.- :The,,Company's stated . reason for the April announcement • Was that a large amount of clerical work had tO be done to prepare the date necessary to determine the proper amounts to be paid to' each retiree ,on July . 1 The Company contends that this work could not be done in ,a;"closet" and that it ' felt that the fact of' the, impending .changes in the plan wOuld scion become widely known. It felt, therefore, that 142 DECISIONS OF'INIAel'IONACLABOR RELATIONS BOARD `it had to 'make a' public-iannOtincement.-Whji these rea- sons had never applied to 'the-announcerhent of dny 'pfe- vious changes to a pension plan is ,not explained in the record and I find thein undonVinZing:;Accordingly, I find that the announcement of the pension plan changes was motivated, at least in a substantial part, Tok the effect it would haveiri resblYini one ,of the hales representa- „ plimary , grievances and *as designed to affect the outcome of the election. - AccOrdingl5i, I find 'that' the Re- spondent -violated SectiOn_8(a)(1)' by the,thning' of its an- nouncement of the'PrOposed pension changes. '- ' 4 ‘Beimei't's 'promise of a benefit ' -; March' '1980; at a meeting-in which the-five:percent - In ..,..buffer program :was described:to several of the;sales rep- •r:resentatives, in 'a private conversation,' sales representa- tive Joseph Robinson asked(Personnel •Director Bennett about possible changes in the Company's short-teriff.dis- ability program. Bennett indicated to Robinson that the program was •under-revieW by management: The General Counsel ,contends', that Bennett's response implies, a promise of 'beriefit§", especially so since it was Made at a time when the' five percent buffer program had'ju'st been anikunced. - _ , 'The ReSporident asserts thaii the program had, ' been under for some time dating back to the 'fail of rt • AT,' • . _ 1979. -It also cites the'testimOhy, of Robinson that Bennett did not say anything favorable about the review and did nöt :indicate Whether 'there would or would riot be a -change in the program. There is no, evidence that llen- hett's response 'Was untrue. , In these circumstances''Ben- nett's lacknowledgement of the review Without More does not constitute arOimplied promise of benefit. AC-, cordingly I would recommend itiat the c011iplainflie-dis- ' missed inofar'd§ fit allegesa` viOlation of Section 8fat(1) • . ■i by virtue of Bennett 's response. , • •-•-, . • . . = ,•'; •8. Bissetesv-threat of discharge of-Talbor-4- . •• • f --- ,In March .1980, at ,a .mee*ig:. held for ,certain of the salés representatives _irl'53,racuse; New York; to -OisCuss the .five-percent"buffei,:National Sales Manager, BiSSeti•.is alleged t6 have had a,threatening conversation N,Tvith sales „_•. 'representative Gregg -Talbot 'Talbot was a young sales representative:, biought_ into the ,Company by •Bissett, who acted as his first.regional manager The ,ev,idence :fleets that piisett considered 'Talbot 'something' of a, Pro- k • t t- t • tege. After the company meeting, the two went.tO,dinner and then to a cocktail lounge„BiSsett remarked 'to Talbot that:he had been doing rather well for .a young mah; light,of his, baCkground, .that' "I 7was doing pretty,,good for a kia, that typ,e Of a statenien. l." , -Talbot's. futiher Cestirriony .regardind this conv_-eisation is as 'follows: Q .What else did he say? - - . - A. Well he'§ald I wa§ inaking" a lot of money to 7 'which I said,= "Well", I- said, `,1' am' Paying a -lot' of ta;A'now.".,And that Was 'the thrust Of 'tile eonver- ':. -'s'atiorE_Well; following' that 'now' I' must saj, I Was somewhat taken aback when I' said I was -Paying a 'hit of taxes.' He said,' "Well, we could fix that" And 'I 'said,' "How is that." And he said, "We cduld 'file - • ' 011,7 Which Wa§ •otit 'of-the bide- to• geerily .'breath back And I said","Hów could that happen or il'o'is-rtha0" And lie'said, "YO1.1‘. `shOuld be Care- ' ful how you act You should ` -ite'Re'inber where §ou .--c-aine -fro' rn." And'ihat. was'ihelnd'orthe- eonYei§a- • .• • - • ,:,.... • l z ,07 neon. Now would hie fol-diteiCt":'iOtiC atVniionl'to te next afternoon. Did you have an,othef convrersa- '664 .with'Mr 'Bissett? • •A. Yes. We mef intthe, lobby. There,was a lot iof- ,, people i•hovinground indthe.,Holidayirin. , And he . had a completely' differeni demeatiOr `abOnt,huh: He , . indicated .ihat. the ,futu,re. managers, were cOniing , from you- ng people like thyself. Andlhat,I hd a lot places, to (go.; And bnefly;.just said „ - , tt;at.„„, The General Counsel contend's that •the threat to 'fire Talbot was a serious one and was designed; to threaten him about any union activ,- ity Bissell's yersion °-ç ha ._-4 conversation is very §imilaf' to tt_ given ,,I by ,albot except the motivation for the staterriehi is far diffeient ,than that, suggested -by, the, General -Counsel!, Bissett testi- fied.tliat the, conversation toolc-place out ,ofhis pride in the success enjoyed by Talbotjle explained,that, in the past when he complamed ,aboutpayinga lot of taxes, his former boss' had alWays told him that ilhe had no job he 'could pay no taxes: He testifieetlial'ite'inerely repeated that `admit-lent te Talbot. He `fhtheilii-med ihat his com- ment-about watching 'how Talbot acted,Was-predicated - - on the fact" that Talbot was Perfdr'ining far' better than . many of the people his own ,age. *He.:Wag , cOikcl'eien'ed that if Talbot with these belfille in'tlie evening he cou no con mue to per orm successfully as a sa es rep- . I 't 1 f'' reseritatix)e: Based the demeanor'of the witnesses, I , . „ 'fullj, credit Bissett's explaiiatiOn for ttieConyeisatiOn. His .rentarks had nothing to do with-,Unio. ii' actiVitY. There has been ,n6 showing .in'this.'reeof<that 'as:ofthe date of the ''conversatio'n ' he would" haVe".had'any'lthOwledge with respect to' Talbot's feelings ""v;s:a-.'vis' the ttnion. In 'faiet, the i'ee'Ord reflects that gall iiiiiut'brci- Bisetf*.iii,:to that "- -- i• • point 'about 'Talbot'S,union .syrimattnesWould have indi- 'cated that he wasoPPcis'ed to the UniOli AOcordingly, I find. that Bissett's conyersation with, Talbot did not relate tO union activity 'and thereftife did _not constitute a threat in derogation of Talbot's rights 'under SectiOn' 7 of the Act.. 9 Garrei-Klausing cOPVersafion • "r, Sales representative Richard Klausing,' a!23-Yeat dm- ployee, of ,LCP, .learned of ithe'dniori- cainpaign 'in-De- cember in a conversation with Staii:Dash:IA§,•a•-reStilt,of "this coriversatiOn he was sent an' authorization &id -and some unions literature and signed 'the card,'datin'g'it.fie- 'cember 19, 1979.: . ' , • s, • - • 'Klausing teStified that lie l al iad'ele_blidhe conversation with his 'regional manager, Lai-r3" Garret; in late Decenj- - her' 1979. He testified that Gariet Waritedi tO-know if- he had been contaCted :1DS, anyone"concel-aing tile Uhictn, asked if he had signed an authoniatiOn'card; and wanted LAWYERS PUBLISHING CO 143 to know who, if anyone,- had contacted him concerning the Union I do not credit the testimony with respect to the De- cember telephone call Garret denies that it occurred and there is nothing in this record to support a finding that the Respondent had knowledge of the Union's organii- ing campaign .until January I believe that Klausing is mistaken with respect to the timing of his call, if it actu- ally occurred and, because of the mistake in timing, I will not credit testimony regarding the telephone call There were several other sales representatives in the region who were contacted by Garret at Bissett's request and presumably,- if Garret had interrogated Klausing about the Union and others who might be in it, as al- leged, he :would hae made a similar interrogation of at least one of the other representatives. Klausing testified that about January 12, 1980, he re- ceived a call from Garret requesting that he meet with him personally. According to Klausing, the two met in Lexington, Kentucky, a few days thereafter. During this meeting, Klausing testified that Garret inquired as to what complaints he had heard salesmen make and Klaus- ing mentioned the commission setup as well as certain other perceived problems. During this conversation, Klausing testified that Garret indicated that the Compa- ny had certain long-range -things that it was trying to do and that he was going to Texas to talk over a possible change in the commissions program. Thereafter, Garret asked Klausing to keep an open mind About the same time he asked Klausing how he felt about the Union According to Garret, the only conversation regarding the Union took place on January 14, 1980, in Lexington, Kentucky. Garret testified that he told Klausing that the Company had become aware of union activities and asked him was he aware of such activity. Garret denied have asked Klausing who contacted him or whether Klausing had signed a card. • With respect to these alleged conversations, it is ex- tremely difficult to determine where the truth lies. Al- though Klausing was a hesitant and forgetful witness, there is absolutely no reason shown in this record why he should fabricate testimony. He and his regional man- ager, Garret, were shown to be close friends and thus no personal animosity existed between the two which would give rise to an attempt to "get back" at either this man- ager or the general management of the Company Klaus- ing's testimony that Garret solicited complaints and told him immediately thereafter. that cerain regional managers were going to Texas to discuss changing the commission program is consistent with similar conversations held be- tween other regional managers and their sales representa- tives. For this reason, I credit this testimony and find that a violation of Section 8(a)(1) occurred in the solici- tation of grievances was followed' closely by at least an implied promise of benefits. I also credit Klausing's testi- mony that Garret asked how he felt about it (the Union). As of th. time of the January meeting between Klausing and Garret in Kentucky, the regional manager had not been given the specific written instructions on how to deal , with _unions which followed shortly thereafter As Klausing and Garret were old friends, this question, though improper, appears to me to be likely to be asked I believe that the question, by its very nature and in the context of a conversation regarding The Union, tends to be coercive and is thus a violation of Section 8(a)(1) of the Act. 10. Tuttle's conversation with Vogel, Hoover, and Rindross , On January 15, 19801in Chicago, Regional Sales Man- ager Robert Tuttle met with sales representative Paul Vogel. Based on testimony concerning this meeting, the General Counsel asserts that Tuttle created an impression of surveillance, made an unlawful promise of benefits, and threatened Vogel with a loss of . benefits in order to induce him to abandon his support for the Union Vogel's affidavit, given to a Board agent after an in- vestigation in this proceeding, was offered into evidence as his testimony Conflicted with it in certain regards. With respect to the meeting in question, Vogel's affidavit indicates that Tuttle, upon meeting with Vogel, said, "As you probably know, there is an organization drive among the sales represenatives. I had to drop everything and take care of this and I have got to go to South Chi- cago, Iowa, and Southern Illinois to talk to my other sales representatives. My advice is to keep your card in your pocket and have patience because there are some changes coming which I can't get into now, but things will be better. If a contract is signed with the Union, the contests, dinners, and trips could be discontinued, so hang on, there wilLbe changes." The affidavit goes on to state that at no time "did he [Tuttle] specifically tell me not to go into the Union, nor did he talk unfavorably about unions in general." Vogel's testimony at the hearing was to the effect that all of Tuttle's comments were in response to questions initiated • by him. Vogel testified, "Well, I think I asked huh [Tuttle] a question to the effect as to when is this going to be over with It was one way or another. I was tired of it going on. And I think he responded something to the effect of be patient, it Will blow over or something like that." - Vogel further testified - Q. Did he initiate any statement that he was aware of of an organizing drive? A. Okay. I think the way it -came about was when we sat down. I started asking him questions about, specifically, the Union. And I think I even asked him what would he do if he was in my situa- tion since he had sold for quite a bit-more time than I have And knew the company a lot better than I did. And that's how we got into the conversation Q. What did he say about authorization cards? A Authorization cards specifically, I don't think he talked about them. Generally I think the phrase was used when I asked him what he would do in this situation, I think he mentioned something about he would leave it in his pocket Q Did he initiate the statement that he would keep an authorization card in his pocket? 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A He might have used that as just a method Of telling me that in his opinion that if he were in my shoes, he wouldn't be in favor of the Union. Q . . Mr. Vogel, during this discussion did Mr. Tuttle say _ anything about contests, or dinners, or , trips being discontinued by 'the company? A. I think the only time that was mentioned, I did ask him what the company would do if the Union got in. I remember asking him that. Q. What was his response? A. First thing he said was that he didn't know. But then he said, ".I'm sure that if it cost _them money, the money would come from other things." Q. And what did he say the Company would do? A. Well, he didn't know what. the Company would do. Well,, was just trying to—I ' was just asking him what he would do in my shoes: And what he thought the Cornpany would 'do. In other words, just a breakfast discussion. He says that if money was taken from—if the Union being in would cost the Company money, obviously there would be less money available to do other things. The General Counsel Urges that Tuttle's opening com- ments and remark about keeping your card in your pocket constitutesan unlawful impression of surveillance. The campaign was at this time fairly common knowl- edge in the Company -and I do not think these remarks would give the impression of surveillance. However,. the request to hold his card, taken together with the sugges, tion that Vogel be patient, that things were going 'to get better, I find to be an impermissible promise that benefits would result if the Company remained nonunion. Like- wise, the suggestion that, existing company benefits, may be discontinued if the Union won the election I find to be a threat designed to influence Vogel's support for the Union. The threat was not couched in terms of possible results of bargaining. b. Tuttle-Mayer conversations On January 17, 1980, Tuttle met- with David Hoover, one of his sales representatives, to' give him the speech on the union authorization cards as he had been directed to by Bissett. Based on this meeting,. the General Counsel contends that Tuttle promised improved benefits to un- dermine union support, created by the unlawful impres- sion of surveillance, and unlawfully inquired into em- ployees' union activities. Hoover first became aware of the Union's organizing activity through a casual conversation with a fellow salesmen in his general territory, Gary ,Hoad. Hoad dis- cussed the campaign briefly with Hoover and mentioned that Stan Dash was heading up the organizing commit- tee. Hoover called Dash in December and after the dis- cussion Dash sent an authorization card to Hoover On January 17, Hoover met with Tuttle at a Holiday Inn in Davenport, Iowa. According to Hoover, Tuttle opened the conversation stating "that he didn't know whether or not I had an authorization card and he didn't care whether I had an authorization card but that if I had one to please sit on it until after he comes back from Dallas which would be the following weekend" Hoover said Tuttle told him that "two or three sales managers from LCP, and two or three from Bancroft-Whitney and a few people from the home office were going to meet to go over subscription growth and possibly help offset salesmen like myself with big traveling territories with some type of incentive." Hoover also testified that the conversation Continued as follows: He said that he had to leave to meet ,Mr. Rindfuss [another sales representative] that' evening for dinner; and he stated that he would have to see ev- eryone in the region that week. And I asked him if he had seen Gary, and he said no Gary Hoad. And he said no, it would be better to talk to Gary 'after he had gotten back from Dallas because he would have something with a little more . substance to talk to him about because he felt that he was already deeply involved in the Union And I asked him if I COuld mentioned , [sic] our conversation to Gary, and he said that was entirely up to me. And I told him that I would, and he said that he expected that. Hoover also admitted on cross-examination that Tuttle had gone through the series of statements which each of the regional managers was told to convey to their sales representatives about authorization cards and their effect. Tuttle denies telling Hoover to sit on his authorization card, but does not deny mentioning the -upcoming trip to Dallas. I credit Hoover's version of the' conversation in that the urging of Hoover to keep his card, combined with he information given -with respect to the Dallas meeting, is consistent -with Tuttle's meeting -with Vogel. I also find that Tuttle committed a violation of Section 8(a) of the Act in his regard as he did in his meeting with Vogel. I do not find that this comments with respect to Gary Hoad constitute a violation of the Act. Hoover testified that he specifically - asked Tuttle whether Tuttle was going to see Hoad. Likewise, the reason given by Tuttle for not seeing Hoad was prompted by a question on , that point by Hoover Crediting Hoover's version of the entire conversation, I agree with the Respondent that it would be a form of .entrapment to find an unfair labor practice resulting from Tuttle's answers about Hoad. c Tuttle-Rindfuss conversation After Tuttle's meeting with Hoover, he traveled to Springfield, Illinois, to meet 'with James Rindfuss-, an 18- year employee with LCP. Rindfuss testified that, follow- ing* a dinner with Tuttle, Tuttle said , "I would assume that you know why I am here." He continued to say, "There is some activity to forming a union by the repre- sentatives. I don't know what your Oosition is. I would recommend that everyone be patient because the situa- tion is going to be improVed soon, and your potential will be greater than- it has ever' been" He also aid, "In the event that you have signed a card, I would recom- mend . that you ask for it to be withdra\vn." Rindfuss then testified that Tuttle asked for his comments and, , on Rindfuss' asking about changes- in the retirement plan, Tuttle replied that he would look into it LAWYERS PUBLISHING CO 145 Tuttle denied telling Rindfuss to return his card if he had signed one. Tuttle testified that all he stated was that an employee could request his card back if he had changed his mind after signing it. Tuttle also denied promising Rindfuss anything except that, in response to Rindfuss' questions about inadequacies in the dental plan, Tuttle said that the plan would be voted on again in 3 years and, "if we have patience, we hope for better things" Based on Rindfuss' version of the conversation, I cannot agree with the General Counsel that Tuttle gave Rindfuss the impression of surveillance or inquired what his position was with respect to the Union. Howev- er, I do agree witht he General Counsel that Tuttle's conversation amounted to a request to Rindfuss to with- draw his union card if he had signed one and implied a promise of benefits. This part of the conversation is con- sistent with Tuttle's conversations with the other sales representatives with Whom he met and who testified in this proceeding I find that, as with other two conversa- tions, Tuttle inipliedly or expressly promised benefits td influence the outcome of the election and solicited the withdrawal of authorization cards in violation of Section' 8(a)(1) of the Act. 11. Carroll's conversation with Outlaw and Redd a Carroll-Outlaw conversation On January 16, 1980, Regional Manager John Carrol met with sales representative David Outlaw in Nashville, Tennessee Inter aim, Outlaw testified that Carroll said to him: He told me that he didn't know whether I had signed a card or not, and that if I had signed a card, I could retract it. He also told me that at one point in the conversation— "if they [the Union] had enough cards signed that they could come in and force themselves on the sales force whether they wanted it or not And he told me that the Company had gotten the message, that it was sometimes like talking to a donkey. Sometimes you have to take a two-by-four and hit them over the head and they got the message and were willing to listen. Also, he told me that three managers from LCP were going out to Dallas the following week to meet with three managers from Ban- croft-Whitney to discuss the subscription growth plan. They felt that was the major issue and problem, and,that some good things would come back from the plan— would be reported to them in Hawaii which they were going to. All the regional managers were going to a couple of weeks later And that was said, and then he summarized again and said that we could retract our card if We wanted ,to, and felt that things would be better without a union." Carroll testified that he told Outlaw, with respect to authorization cards, if a majority of sales representatives signed authorization cards, the Union could become the exclusive bargaining agent for all the sales representa- tives. Carroll also testified that Outlaw initiated the conver- sation about whether Lawyers Cooperative was going to make any changes in the subscription growth plan. Car- roll stated that, with respect to this inquiry, he told Outlaw that "there would be a meeting in Dallas and that the subscription growth program is on the agenda, but I am not going to be there so I don't know what the results will be." On cross-examination, Outlaw testified that Carroll generally, made the statements that he was told by Bissett He also testified that the information about subscription growth and the meeting in Dallas were in response to a question asked by him. Having . considered the testimony of both witnesses, I credit Carroll's version of the conversation. Carroll's memory of the occasion was more complete and his tes- timony more detailed, yet consistent generally with much of Outlaw's version. Thus, I do not find that Car- roll gave the impression of surveillance or threatened Outlaw. ,However, I do find that the mention of the Dallas meeting about subscription growth is an implied promise of benefits, as I have found with other manager- representative conversations. Mentioning a concrete action, i.e., the meeting in Dallas to discuss subscription growth, could only result in the listener thinking that something positive was being done by the Company, 'b. Carroll-Redd's "conversation On January 14, Redd testified that he met with his re- gional manager, John Carroll, at the Augusta, Georgia airport. At this meeting, Redd testified that Carroll men- tioned that it was his understanding that there were cards mailed out—union cards—to all sales representa- tives, and "he didn't try to find out if I had one, if I signed a card, if I had not signed one." But he stated that "with the majority of people ,signing cards that the ma- jority would overrule and I would be in the Union whether or not I liked it." He said that '`if I had signed a card that I could withdraw my signature, withdraw the card, and that it would not count. He said—he did not say anything about what type of plan was involved, but that there would be a plan or plans. I can't remember if it was, you know, plan or plans in the making to assist the income of the sales representatives." Carroll testified that what he said to Redd, with re- spect to authorization cards, is: "That on the strength of the number of cards that might have been signed or sent in prior to an election that the Union Might ask that they become the bargaining agent." On cross-examination Redd's testimony wavered on several points but he was insistent on the point that he had been told that, if the majority signed cards, he would be in a union whether he liked it or not. I credit the testimony and find that it constitutes a threat in vio- lation of,the Act. I also credit Redd's testimony, with re- spect to the statement made by Carroll, that a plan or plans were in the works that would benefit the salesmen and thus find that the Respondent had made an implied promise of benefits in violation of the Act 12. Snyder-Black's conversation Regional Manager George Synder met with sales i-ep- resentative Donald Black in Miami, Florida, on January 18. According to Black, Snyder said, "Well, he said I 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD don't know whether you are aware of it or not, but I un- derstand that some of the salesmen are trying to organize a union. I am not going to ask you whether you are in- terested in it or involved in it or not, but I want you to be aware that if a majority goes to the Union, you will be bound by the same deal. You can't say, 'Well, I am not in favor of it." And so I thanked him, and we ate. It was very quiet. And then you said, "I am going to Dallas next week to a meeting. What do you think if I did not fill Frank Merville's territory?" The witness interpreted the last statement as an im- plied benefit as territories left unfilled were split among existing salesmen and improved their chances for in- creased income. The General Counsel contends that the opening state- ment made by Snyder constitutes an impression Of sur- veillance. Since the meeting came at a point in time well' after the union campaign was underway and was common knowledge among the salesmen, I do not find that the statement was anything more than a conversa- tion opener . and did not give an impression of surveil- lance. However, I find Black's testimony about Snyder— the statement with respect to the Merville territory—to be credible and does constitute an impermissible promise of benefits. 13. Bisig-Scott's conversation On January 14, 1980; Regional Manager George Bisig met with sales representative Chester Scott following National Sales Manager Bissett's instructions. Scott testi- fied that Bisig stated: "Well, we talked a lot of business. We talked, then he asked me if there was a petition going around. He wanted to know if I had heard about it I said, 'I sure have' He said, 'Are you unhappy with anything with the Company?' I said, 'I have always been unhappy with the Company on two subjects, and that was my pension plan and no security as far as job goes. We have contract, no anything " George asked me 'then would I sign the petition the way I felt right now I said that I would be number one on the ticket. Bisig denies this version of the conversation in its en- tirety, and I credit Bisig's denial. Scott testified that Bisig made no statements whatsoever about the significance of the union authorization cards, which I find to be highly improbable because the entire purpose" of the meeting was to explain the purpose of authorization cards in the terms set forth, by National Sales Manager Bissett. Also, having heard the testimony of Scott, a bold forthright man nearing retirement with the Company, and an old friend of Bisig's, I have no doubt that he would. have volunteered his feelings about the Union without any prompting I 'find that Scott's memory of the conversa- tion is unlikely. No other salesmen who met in the same timeframe with Bisig came forward to detail their con- versations with him 14. Warner-Robinson's conversation It is contradicted that on January 12, 1980, former Re- gional Manager Richard Warner called sales 'rei3resenta- tive Joe Robinson and asked him, "What if anything I knew of the union activities." I find that this question constitutes an unlawful request to Robinson to divulge activities of himself and others 15. Murrell-Weist's conversation At National Sales Manager Bissett's instructions, Re- gional Manager Dave Murrell conversed with sales rep- resentative Frederick Weist in mid-January 1980. Weist testified, "I was asked about labor activities going on in the Company and if I knew anything. And I believe at that time, if my memory serves me correctly, I was also asked about any activity I knew of-relating to Stan Dash. I responded by saying that I knew very little'. Only a few rumors or whatever and I didn't know any specifics." Murrell denies asking anything specifically about' Stan Dash, pointing out that he did not know that Stan Dash was involved in union activities as of the date of the phone call, January 12. Murrell testified that he did not become aware of Dash's involvement in the Union until it was brought to his attention by National Sales Manag- er Bissett that Dash had filed a charge against the Com- pany. The charge was filed on January 14, 1980 I credit Weist's version of the conversation. Management has just learned of the campaign and undoubtedly Dash's identifi- cation with it. The likelihood that Murrell was trying to determine Dash's extent of involvement is overwhelm- ing. Therefore I find that Murrell's conduct , in this regard constitutes an illegal interrogation and impression of surveillance in violation of the Act. The Respondent argues that the question of Weist, "if I knew anything about the labor activities going on in the Company," did not require Weist to disclose his own views or anyone else's on the desirability of a union. I disagree. The question is broad and does solicit any in- formation that Weist might have about the Union Thus I find that it is in violation of the Act. 16. Carduner's conversations with Hill, Flint, and Murphy Carduner admitted, while testifying in the proceeding, that the evidence offered by witnesses Hill, Talbot, and Flint, in regard to their conversations, was essentially ac- curate , There is nothing in the record which would prove -the contrary so I find the following recitation of evidence as fact. a. Hill-Carduner's conversation On January 15, 1980, sales representative Roland Hill met with his regional manager, Robert Carduner, at which time Hill testified that Carduner asked him such questions as "[D]id I hear about the attempt to organize and start a union; did I receive a card; what did I know about it and so forth." He also told- Hill at the .first meet- ing that President Gosnell would not like a union and that the sales representatives did not need a union. He also told Hill that; if the Union came in, sales representa- tives would lose their pension plan, approximately half of the sales force would be fired, the sales representatives would be given a car and put on a salary, and the sales representatives would not be doing as well as they are doing now. Carduner indicated to Hill that his income would suffer if the Union got in. Approximately 10 days LAWYERS PUBLISHING CO 147 later, in another conversation between the two men, Car- duner repeated the questions to Hill and mentioned to Hill that Stan Dash was one of the leaders who was trying to organize the, sales representatives At another meeting between the two men on February 20, 1980, Carduner interrogated Hill, sales representative Gary Talbot, and special account representative (SAR), There- sa GinnIly, asking what they knew about the Union and had they received a card. He stated that, though they had problems with their commission growth plan, they were better off; if a problem existed, it could be solved by themselves within the region At the February 20 meeting, Carduner also stated to the employees present that management was contemplating some changes in the commission on a set of books, raising the commission from 10 to 15 percent. He also said that quotes would be lowered for the year 1980 Additionally, he mentioned the names of Iry Kensler and David Mann as people the Company thought might be in the Union At yet another meeting on March 4, 1980, between Carduner, Hill, SAR antilly, and SAR Bob Taylor, Carduner repeated many of the things he had said before. b. Carduner-Talbot's conversations In mid-January 1980, sales representative Greg Talbot testified that his regional manager, Robert Carduner, called him on the telephone, asking him point blank, "What do you know about a union?" Carduner then asked.Talbot if he received anything in the mail and did he know anyone who had received anything? Talbot also confirmed his presence at the meeting with Carduner, Hill, and Ginnlly. c. Flint-Carduner's conversations Ralph Flint, a sales representative, met in mid-January at Hauppauge, New York, with his regional manager, Carduner. At this meeting, which was also attended by two other sales representatives and one of their wives, Carduner inquired about what the sales representatives felt about unions Sales representative Anton Murphy also testified that he had attended this meeting and. veri- fied Flint's version of it — As noted above, in response to a question while testi- fying in this proceeding, Carduner admitted that the tes- timony of the witnesses noted above was essentially cor- rect. Therefore, I find that the General Counsel has proven the allegations in the complaint relating to Car- duner and thus the Respondent has unlawfully interro- gated its employees with regard to their union sympa- thies and activities, created the impression of surveil- lance, promised benefits in order to influence the out- come of the election, threatened worse working condi- tions if the Union were voted in, and coercively attempt- ed to discourage support for the Union. 17. The discharge of Stanley Dash LCP hired Dash in 1971 as a sales representative for northern Illinois. At a later point he transferred to a ter- ritory in southern Wisconsin, where he worked until his termination. During most of the period relevant to the allegations in the complaint, Dash's regional manager was David Murrell Effective September 22, 1980, Dash was assigned to Robert Tuttle, although his territory did not change. As noted previously, Dash was the prime mover behind the Union's organizing drive. Following the initi- ation of organizing activities by Dash, but before LCP became aware of the campaign, Dash returned his Christmas bonus check to LCP's home office In Novem- ber, Dash had read in one of the Company's in-house publications the Company's formula for giving Christmas bonuses to its employees. Apparently, home office and salaried employees received a bonus far in excess of the Company's sales representatives. Because Dash consid- ered this to be unfair, he returned his bonus check as a protest Another sales representative in Dash's territory, Peter O'Donnell likewise returned his check at Dash's request: After this action by Dash, and following several argu- mentative telephone conversations between Dash and customer service correspondents in the home office, Murrell met with Dash on January 9, 1980, to explain the Company's position with respect to the Christmas bonus, to deliver , Dash's sales forecast for 1980, and to discuss Dash's attitude relative to his customers and home office personnel. This meeting was the subject of an unfair, labor practice charge filed by Dash on January 14, 1980 At the . January 9, 1980 . meeting between Murrell and Dash, Dash was threatened with being placed on proba- tion It is the General Counsel's contention that the threat of probation was made because of Dash's concert- ed activity in retuning his bonus check. In this regard I disagree with the General Counsel. At the meeting, the matter of the Christmas bonus check was discussed, Dash's 1980 forecast was discussed, two complaints from customers about Dash's attitude 2 and some recent inci- dents in the fall of 1979 when Dash was involved ,in ar- guments over the telephone with the Company's service correspondents. Based on all of the testimony with re- spect to this meeting, I do not believe Dash's actions in returning the Christmas bonus check to the Company was a moving reason for the Company's threat of proba- non At the time of the meeting, company correspond- ence indicated that mangement thought that Dash's ac- tions were merely the result of a misunderstanding and not part of any organizational effort on behalf of the Union or any concerted activity on the part of Dash for his fellow employees. Nor can I consider customer com- plaints the reason for the threat because these had oc- curred at a time prior to the time when Dash was called to the Company's home office for an interview for a pro- motion to a regional manager's position. If LCP consid- ered the two customer complaints serious enough to result in probation, it surely would have disciplined Dash for these incidents before seriously considering him for a promotion. I do believe the .Company's position that the probation was predicated upon Dash's arguments with the service correspondents at the home office. The Corn- 2 The so-called Koslov and Monson incidents 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany had for some time been trying to improve its rela- tionship between the sales representatives and the service correspondents. I believe this is a legitimate business function and would form a proper basis for disciplinary action. Following the filing of the charge with the Board after the January 9 meeting, the probation of Dash was dropped. The General Counsel also contends that the increase in Dash's 1980 sales quota constitutes harassment of Dash and consequently is an 8(a)(1) violation of the Act. Again I disagree. The Company's formulation of sales forecasts begins about midway through a preceeding year. The sales representatives prepare their recommen- dations for their personal forecast and this recommenda- tion is forwarded .through channels to the home office. Thereafter, the Company, through a complicated series of reviews and sales estimates, arrives at an overall com- pany forecast for the following year and then breaks it down to individual sales representative forecasts This process continues throughout the entire fall of the year preceding the year for which the forecast is made. Based on the evidence, I find that Dash's forecast was prepared finally in December 1979, before the Company had any knowledge of the Union's organizing campaign or Dash's part in it. The General Counsel contends that Dash's forecast was increased whereas most sales representatives' fore- casts were decreased in the year 1980. Thus, the General Counsel contends that Dash has been singled out for dis- parate treatment vis-a-vis the other sales representatives in the Company: This position is not borne out by record evidence. Although the majority of sales representatives in the Company did receive lower forecasts for the year 1980 than they had for the preceding year, a substantial number of sales representatives were increased for the year as was 'Dash's. Moreover, Dash's increase brought his overall forecast in line with his actual performance in the preceding year Given the fact that the General Counsel has failed to prove that the Company had knowledge of the Union's organizing drive or Dash's re- lationship to it at any time prior to presentation of the sales forecast to Dash, find that the General Counsel has failed to make a prima facie showing that the in- crease in his forecast violated the Act Additionally, the General Counsel has failed to show that Dash was sin- gled out in the matter of forecast increase. About ,January 9, 1980, the Company became aware of the Union's organizing campaign and Dash's leadership position: Following the defeat of the Union in a Board- sponsored representation election, Dash, claiming a dis- ability caused by "gross stress reaction," went on a leave of absence from May 27 to September 22, 1980 It is fair to say from the evidence that the union campaign took its toll on Dash's stamina. About May 23, 1980, Dash de- cided to 'take leave of absence. Contrary to company procedures, he did not immediately contact his regional manager informing him of this decision. Dash contends that he did notify National Sales Manager Bissett by. company telegram on May 25. LCP never received this telegram and maintains that Dash fabricated it after the fact. Regardless of whether Dash did or did not fabricate the telegram, I believe that the Company did not receive the telegram and thus for a few days was unaware .of Dash's whereabouts Dash contends that he also attempt- ed to call his regional manager by telephone the week- end of May 24 and 25, but was unable to reach him. Early the following week, either by a call from Murrell to Dash's fiancee or vice versa, the Company learned that he intended to take off 30 days at the advice of his doctor and would be out of touch Dash did not contact Murrell directly during this period of time though it is unclear whether or not he actually tried. On May 30, Bissett sent a telegram to- Dash threaten- ing him with discharge if he did not contact the home office within 4 days. On receipt of this telegram, Dash did contact' the office and the matter of discharge was dropped. The General Counsel contends that the tele- gram is evidence of the Company's intention to harass Dash and constitutes harassment to the extent that it is a- separate violation of Section 8(a)(1). I disagree. Had Dash cleared his intention to take a leave of absence with his regional manager, the telegram would not have been sent Had it been sent after notice by Dash to the regional manager, I would agree with the General Coun- sel. It would have constituted treatment shown on the record to be different than that given to other employees taking leaves of absences. However, in all other cases where employees have taken leaves of absences for health-related reasons, - notification was given to the re- gional manager or to the Company or to both prior to the employee taking leave. I do find, however, that the harshness of the penalty threatened, i.e., termination, is indicative of the Company's strongly adverse attitudes toward Dash. Other evidence strongly points to the ex-- istence of this attitude and will be discussed hereafter. Because of the Company's telegram threatening termi- nation, Dash secured the services of a private attorney. Thereafter,. the Company's reaction to his attempt to return to work, as well as the processing of his claim for disability insurance, took on all the aspects of an adver- sary procedure. Shortly after June- 3, 1980, a conversa- tion was held between Dash's attorney and an attorney for the Company. In this conversation, LCP was in- formed that Dash's doctor considered him too ill to travel to Rochester and that he was expected to be absent from work for a period of 30 to 60 days. In re- sponse to this information, LCP Personnel Manager Roger. Roth wrote Dash on June 9, 1980, placing him on disability status and enclosing for Dash a disability claim form. Thereafter, the Company received a letter dated June 6 from Dash's attorney enclosing a letter from Dash's psychologist The psychologist indicated that it was his opinion that Dash should take a leave of absence or a vacation. The Company contends that the wording of the doc- tor's letter raised its suspicions - about the nature of Dash's disability and, thereafter, on June 12, 1980, Roth sent a memo to the salary section of the Company direct- ing a discontinuation of draw and disability benefits for Dash. Roth contends that discontinuation of draw is rou- tine for a sales representative who is not working and that no disability benefits were authorized because LAWYERS PUBLISHING CO 149 Dash's entitlement was not clear from the material that LCP had available to it. Roth's supervisor testified that, when there is doubt of the fact of disability, LCP does not begin paying benefits without an investigation and determination by its insurance carrier. Roth further testified that he called Dash on June 20, asking him of the whereabouts of the claim form that had been sent to him. Dash informed Roth that the form was with his attorney and, thereafter, Roth asked an LCP attorney to inquire of Dash's attorney regarding the form. This attorney did so on June 27. On June 30, Dash's attorney returned the completed claim form on which Dash's psychologist confirmed an apparent total disability because of "gross stress reaction." Dash's attor- ney's letter accompanying the form, however, stated as follows: You have requested that Mr. Dash complete and submit this form. His cooperation in doing this should not be construed as any admission on his part that he is "ill" or "disabled" within the mean- ing of these programs or for any other purposes This apparent contradiction between the lawyer's posi- tion and that of the doctor does support the Company's contention that it was unclear as to whether Dash was ill or not. The Company also contends that it was receiving evidence that Dash was processing certain of his sales accounts during this period and thus believed that he might be working. On July 15, 1980, Roth sent a letter to Dash's attorney explaining that, under the circumstances, Dash could not be considered as being on disability leave, but that he would be placed on inactive status with continuation of benefits until ambiguity created by Dash in his attorney's letter could be clarified. This prompted a response from Dash's attorney which, in part, stated: At present, Mr. Dash is unable to determine wheth- er he is ill or disabled within the meaning of the Company insurance policy. . The letter also requested a copy of the "Company's in- surance policy." Roth replied on July 30 that, because of the uncertain- ty created by Dash's attorney, Dash was being continued on inactive status pending clarification of his medical condition. He further informed the attorney that Dash's insurance form had been forwarded to the disability car- rier for processing Roth also included a copy of the Company's personnel policy outlining its "26-week income continuation plan." The plan included explana- tions of the Company's insurance carrier, disability cov- erage, workers compensation coverage, and supplemental disability coverage. Dash's claim for disability benefits was rejected by the disabilty insurance carrier on July 31, 1980. It was reject- ed on the basis that Dash's physician considered the dis- ability to be work related. The Company indicated that if Dash's physician changed his position on the work-re- latedness of the disability then it would reconsider its denial. Following this rejection, the Company submitted Dash's claim some months later on the basis that the claim was not work related Thereafter, the claim was again submitted to the disability insurance carrier which paid Dash benefits with company benefits called for under its personnel guidelines The General Counsel contends that the delay in the handling of the claim, as well as LCP's' refusal to send the Company's master insurance plan to Dash's attorney, constitutes harassment in violation of Section '8(a)(1). The Company's actions in this regard in and of them- selves did not constitute a violation of the Act There was , nothing done by the Company during this period that was either contrary to its policy or that could not be construed as a misunderstanding because of the commu- nications between it and Dash's attorney The adversary relationship, which began with the introduction of an at- torney on behalf of Dash, created problems in the han- dling of the disability claims With respect to the issue of the insurance policy, the Company's procedure is not to make available a policy to any employee other than top management. It did supply Dash and his attorney with a copy of the information which it normally made avail- able to its employees. I cannot find that the actions of the Company in either of these regards violated the Act: However, as with the telegram, the overall tenor of the Company's actions support the view that the Company considered Dash to be different than other employees and in an adverse relationship with management In Dash's attorney's letter of August 12, 1980, request- ing a copy of the Company's insurance policy, he in- formed the Company that Dash had been approved to return to work by his doctor By letter dated August 15, 1980, Roth stated that the Respondent wanted Dash to come to Rochester to be examined by a doctor chosen by LCP. The record reflects that this was the first time that an employee on disability was not allowed to return to work on approval of his or own physician. Dash sub- mitted to the doctor's examination On September 9, the Company's doctor gave Dash permission to return td work and saw no reason why Dash could not continue to work with his regional manager. The Company contends that Dash's disability was so unique that it required it to deviate from its normal prac- tice and require a private examination by a doctor of it choosing In support of this position, it relies on the fact that Dash had had psychiatric problems many years ear- lier and his two prior incidents with customers, the Monson and Koslov incidents At this point, I disagree with the Company's position. As noted previously, the Company, in 1979, had Dash come to Rochester to be interviewed for a job as a regional manager Clearly at that time the Company was not concerned with either Dash's previous brief health problems or the customer complaint incidents During the summer of 1980, the period in which Dash was disabled, he had had some customer contracts and this fact was known at the Com- pany As the Company had had no complaints from its customers about Dash's behavior after the Koslov and Monson incidents to the point at which it ordered him to cease seeing customers, I do not believe it had any rea- sonable basis to require a unique examination. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Based on all of the evidence of its treatment of other disabled employees, including a current regional manager who had had a leave of absence because of alcoholic ex- haustion problems, I find that the Company's unique re- quirement that Dash be separately examined by a compa- ny physician constitutes disparate and discriminatory treatment and is indicative of its adverse attitude toward Dash. The psychologist' who interviewed Dash on the Company's behalf completely cleared him of any prob- lems and issued a fairly impressive report about the state of Dash's condition. This report undermines LCP's con- tention that it had legitimate concern for Dash's ability to perform his job. Dash was ordered to return to work on September 22 and was told td report to a different regional manager. Dash's territory, however, was not changed. The Gener- al Counsel contends that the switch in regional managers also constitutes harassment of Dash. On this point I cannot agree. Had the company decided to change Dash's territory, his customers, or any other normal day- to-day aspect of his employment which would have in- creased its difficulty or hurt his income, I would agree. However, the Company had a policy of changing man- agers from one territory to another and, further, the manager transferred to Dash's region was one with whom he had a good working relationship in the past The next and most important occurrence with respect to Dash's employment with LCP is his discharge. On November 4, Dash telephoned LCP's customer service department to resolve a problem with a customer order and got into an argument with Patrina Fulton, a correspondent. Both she and Dash raised their voices at each other and eventually hung up. Fulton then went to her immediate Superior, Mike Santagelo, and reported the argument, bursting into tears, and telling Santangelo that Dash screamed at her, twisted her words, tried to back her into a corner, and was incooperative The Com- pany, does not contend that the argument with Fulton was serious enough to justify Dash's discharge. Howev- er, Santangelo then called Dash to determine what was going on. It was a fairly standard practice for Santangelo to call after one of his correspondents had an argument with a sales representative. Almost immediately after reaching Dash, Santangelo and Dash were in an argu- ment. It is Santangelo's version of this argument that Dash immediately started swearing at him over the phone telling him that he did' not have to' talk to him or do whatever Santangelo said Dash, on the other hand, testified that Santangelo threatened him almost Immedi- ately with at least slowing down the process of his, orders, if not rejecting them outright, which threat caused him to react strongly. The sequence of the argu- ment is considered somewhat important by the General Counsel and the Respondent. The General Counsel con- tends that the threat came before any swearing by Dash and that Dash's swearing was, under the circumstances, justified. The Respondent's witness contends the swear- ing came first and the threat was not made seriously but merely to calm down Dash. 3 In either case, the conver- sation upset both men seriously. Dash immediately pre- pared a telegram to his superiors complaining of the ar, gument, and Santangelo immediately went directly to Dash's superior, Bissett, bypassing his own superior and head of the customer service department. As soon as Dash's name was mentioned by Santangelo, Bissett stopped him from speaking until Roth (from personnel) could be brought in to hear what he had to say. Santangelo then explained his version of what had happened over the telephone to Roth and Bissett, leaving Out any mention of a threat made by him to Dash With no discussion, Roth and Bissett decided to terminate Dash. Shortly thereafter, when -Dash attempted to con- tact Bissett and explain his side of the story, Bissett re- fused to listen. Following his termination and the filing of a charge with the Board, Dash applied for unemployment com- pensation benefits. The Respondent contested this filing and, when it lost before the involved Wisconsin State Agency, it waited until the last day to appeal the deci- sion LCP lost the appeal with the agency and then sued the State of Wisconsin and Dash in Wisconsin's state courts. The appeal was pending as of the time of hearing There is no question in my mind but that Dash was terminated by LCP because of his union activities. The record reflects that Dash was an excellent salesman for the Com.pany and was not shown to have presented any problems to the Company that were not common to the sales force generally. As I have noted elsewhere, follow- ing the union election in May, virtually every contact the Company had with Dash was one of overreaction. The threat of termination after Dash was missing for a few days in late May, the handling of the disability claim, the unique examination by a company-picked phy- sician before Dash could return to work, the reaction of Santangelo in going directly to Bissett, rather than through channels, with his complaint about- Dash, Bis- sett's immediate decision to terminate Dash without fur- ther investigation, and the immediate concurrence he re- ceived from his superior, Anderson, the vice president of personnel, Bennett, and Personnel Manager Roth, all in- dicate that Dash had been singled out for harassment and for ultimate discharge. Santangelo's action on the day of discharge struck me' as unusual ,at the time of hearing and still does at this date. The record reflects that there is nothing particular- ly unusual about sales representatives becoming angry with customer service representatives There was noth- ing unusual shown about occasional cursing taking place during conversations between customer service repre- sentatives and sales representatives. Though Santangelo may have been upset at the conversation with Dash and had a valid reason to file a complaint through channels, there is nothing so unusual about the conversation that would require him to race to the national sales manager's office to tell him about it. Likewise, there is nothing so unusual about the conversation that would require Bis- 3 I do not consider the sequence crucial because, as noted hereafter, swearing at a customer service correspondent was not uncommon, but LCP's reponse to Dash was, again, unique LAWYERS PUBLISHING CO 151 sett to discharge Dash, without even inquiring of Dash as to either the truthfulness of Santangelo's story or Dash's version of it. I believe that LCP was looking for a reason to get rid of Dash and had been looking for a reason for sometime; utilizing its own psychiatrist to ex- amine Dash before it would allow him to return to work is consistent with this belief I find that LCP's discharge of Dash was made by it because of its desire to rid itself of a union activist and to discourage future union activity on the part of its em- ployees. LCP's appeal of Dash's unemployment compen- sation claim with the State of Wisconsin, which was marked by dilatory tactics, constitutes further harassment of Dash and, though legal, was certainly unnecessary in all the circumstances. LCP's appeal of Dash's unemployment compensation claim with the State of Wisconsin constitutes further har- assment of Dash and I find it to be unlawfully motivated as was his discharge and the Company's other harass- ment of him. The appeal has been' marked by dilatory tactics, by lack of serious effort to prosecute its defense (other than to drag out the appeal), and by actions taken. that differ from previous appeals of unemployment com- pensation awards to discharged employees. For example, though it was in possession of evidence in the form of affidavits relating to Dash's discharge, and it, of course, had available witnesses to the incidents surrounding the discharge, it chose not to present either to the Wisconsin agency. The record reflects, in another instance when an employee named Deborah. Davis was terminated, LCP sent both its attorney and national sales manager to the State of New York to contest the unemployment com- pensation. I conclude that the Respondent's only purpose in pursuing the appeal was to further harass Dash. I have found that Dash's discharge was unlawfully motivated in violation of the Act I similarly find that its appeal of Dash's award of unemployment- compensation benefits resulting from his termination is likewise discri- minatorily and unlawfully motivated and constitutes a separate violation of the Act. In order to dissipate the effect of LCP's filing of its appeal, I find and recommend that the Respondent be ordered to cease and desist from prosecuting the appeal and to withdraw it I further find that the Respondent, in order to restore Dash to the po- sition he would have been in absent the Respondent's action, I shall recommend that the Respondent be or- dered to make Dash whole for all legal expenses he has incurred as a result of the Respondent's appeal of his award of unemployment compensation benefits See United Credit Bureau of America, 242 NLRB 921 (1979), enfd. 643 F.2d 1017 (4th Cu- 1981). The General Counsel contends that Dash's discharge and other harassment by LCP not only violates Section 8(a)(1) and (3), which I find to be correct, but also Sec- tion 8(a)(4) of the Act. I can find no evidence of the record which would indicate that Dash was discharged because of the filing of his unfair labor practice charges with the Board It may well be that this filing did play a part in the 'decision, but there is no clear evidence to un- derlie a finding of an 8(a)(4) violation 18. Discharge of Irving Kensler Kensler began work for LCP in 1965 as a sales repre- sentative. In 1971 he was promoted to regional manager and in 1975. he joined the LCP headquarters as sales ad- ministrator and training coordinator Later that year, he was promoted to national sales manager. In April 1979,.Kensler requested that he be relieved of his sales manager's duties and that he be reassigned to an open sales territory in Florida. LCP honored that re- quest, giving Kensler full relocation allowance and con- tinuing his sales ,manager's salary for 4 months. Within 3 months, Kensler requested further consideration for man- agement opportunities By mid-1979 he also requested a transfer to a sales territory in New York City. These re- quests were denied and Kensler continued work as a commission sales representative in Florida. In August 1980, Kensler was discharged After his discharge, in November 1980, Kensler filed a charge under the Florida discrimination statutes claiming he was discharged because of his age. Following an ad- verse decision in that proceeding, on February 20, 1981, Kensler filed his present charge with the Board. I cannot find from the evidence that Kensler was dis- charged because of his activities on behalf of the union organizing drive or for ,any concerted actvity protected under the Act Kensler was one of the initial persons contacted by Dash and he participated in the initial orga- nizing meetings by conference call He donated $100 to the organizing drive. However, there is no showing in this record that these facts were ever made known to LCP management. Thereafter, virtually every action Kensler took was one which would indicate antiunion bias and an active stance in support of the Company's antiunion drive. Kensler claims Bissett informed him that the Company was going to get him because of union ac- tivity and Carduner contends that Bissett told him to stay away from Kensler because of Kensler's union activ- ity: I cannot credit either of these allegations in light of the objective facts of record and Bissett's denial that these conversations ever took place First, there is no showing in this record that other than the very first actions at the outset of the Union's or- ganizing campaign Kensler ever did anything that would indicate his involvement on behalf of the Union. Virtual- ly every action he took which would - have come to the attention of management was antiunion. Perhaps the most telling action taken by Kensler, which refutes his own testimony, as well as that of Carduner, is the meet- ing that Kensler had with fellow salesman Dave Mann, President Gosnell, and the Company's financial officer, Seymour Fogel. The details of this meeting are discussed elsewhere in this decision. As noted at -that point, the substance of the discussion at this meeting varies; howev- er, both sides agree that the purpose of the meeting was to determine how to pacify the sales force and to defeat the Union's organizing campaign I also find that Kensler indicated his willingness and desire to return to manage- ment to help 'solve the Company's problems with its sales force. I find that there is no clear evidence that the Company had actual knowledge of Kensler's feelings about the Union and, after a review of the evidence, I 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cannot be sure, even at this juncture, what Kensler's views were vis-a-vis the Union. I find that one must infer from the record why he was discharged. A number of inferences are -possible Of course, one could infer that the reasons Kensler was discharged were the ones given by the Company. The Company's primary contention is that he was dis- charged because he released what it considers confiden- tial information about the Company's plans to release a new series of law books prior to public disclosure and announced that a split in sales territories would take place in North Carolina when and if LCP received a contract from the North Carolina state government to pnnt its state code. I find two problems with this de- fense. First, it appears from the evidence that Kensler made his predictions about the split in the North Caroli- na sales territories while he was national sales manager many years before his dishcarge. Second, the information Kensler was supposed to have released about the upcom- ing publication of the new series of books was apparently common knowledge in the industry because of past LCP practices. Moreover, there is no direct evidence that Kensler actually ever voiced this information. Kensler denies doing so and no person to whom he was supposed to have made these statements was brought by the Com- pany as a witness, although these persons were other salesmen for the Company. The secondary reason given by the Company for Kensler's discharge, and one denied as a contributing reason by Bissett, the person who discharged Kensler, was Kensler's lack of success in sales after his move to Florida. The figures with respect to Kensler's sales do show that his sales were not up to par in the territory There was also some friction evident between Kensler and his regional manager, George Snyder. However, the figures show that Kensler had acknowledged to Snyder that his sales were not up to par and that he wanted until October 1980 to reach quota or he would voluntarily retire from the Company. Given the fact that Kensler's sales were not anywhere near the worst in the COmpany and not nearly as bad as a number of salesmen who are still employed by LCP and, given Kensler's rather spec- tacular career with LCP, I find it difficult to credit the Company that it would discharge him for not making his quota in August when he had voluntarily offered to retire in October if he did not do so. In my opinion, the evidence does not support a finding that Kensler was discharged for either of the reasons given by the Company. One could infer that the Company did have some knowledge, unproven in the record, about Kensler's early involvement in the organizing campaign One could also infer that current management of the Compa- ny, including Bissett and Anderson, for their own rea- sons, wanted to get rid of Kensler because of his desire to return to management and his support among the salesmen of LCP. However, regardless of which infer- ence may be slightly more likely than the other, I find that there is no clear proof that Kensler was discharged because of any prounion or protected activity and that the General Counsel has failed to meet his burden of showing that Kensler's discharge was motivated by union animus or because Kensler engaged in protected concerted activity Accordingly, I will recommend that the complaint in this regard be dismissed. See E. R. Car- penter Co., 260 NLRB 91 (1982). 19. Discharge of Robert Carduner Robert Carduner was a regional manager for the Re- spondent and was a supervisor with the meaning of the statute. Several of the alleged unfair labor practices in this proceeding involve actions taken by Carduner during the course of the union campaign. Following the campaign and the filing of unfair labor practice charges involving him, in preparation for trial on the issues, Car- duner was ordered to the Company's headquarters at Rochester for a meeting with the Company's attorneys. Following the meeting between the Company's attorneys and Carduner, which will be discussed in detail below, Gosnell, Company attorney Ulterino, Anderson, and Bennett determined to discharge Carduner Subsequent- ly, after the Company's national sales meeting approxi- mately a month later, Carduner was discharged with Bis- sett informing Carduner of the decision. Bissett, one of Carduner's closest friends, was not informed of the early decision to discharge him until after the national sales meeting so as not to impair the performance of Bissett at that meeting. The reasons given by the Respondent for Carduner's discharge was the likelihood of his failure to follow company instructions in the course of the union organizing campaign and thus the likelihood that he ac- tually did commit certain unfair labor practices, his un- cooperative attitude at the meeting .with the Compnay's attorneys prior to trial in Case 30-CA-5603, and prob- lems with respect to Carduner's managerial abilities within his region. Carduner was admittedly against the union campaign from its inception The Respondent cannot be accused of discharging Carduner because of any prounion activity. Thus, as he was not caught up in the campaign, the only protection afforded Carduner under the Act is if his dis- charge was calculated to thwart the Board's processes, e., being discouraged by the Respondent from testifying truthfully in Case 30-CA-5603 Regardless of whose ver- sion of the meeting between the Respondent's attorneys and Carduner in Rochester one accepts, I find that it is clear that Carduner was not responsive and cooperative with the attorneys' at that meeting. Lack of cooperation with the Company's attorneys in preparation for their case is clearly a lawful reason for his discharged by the Company if it chooses to do 'so. The evidence reveals that at the meeting Carduner, either purposely or other- wise, was unable to supply any details with respect to the portions of the involved complaint directed to him. He was unable to tell the Company's lawyers whether or not these allegations were true or untrue. There are hints in this record, alluded to in the General Counsel's brief, that there may have been an attempt,on the part of the Respondent to encourage perjury by Carduner and thereby undermine the integrity of the upcoming Board hearing. However, there is no allegation in the complaint in this regard and I can find no proof that .any, attempt to LAWYERS PUBLISHING CO 153 influence Carduner to testify untruthfully was made by the Respondent or its attorneys. After the meeting with the Company's attorneys, the Respondent's officials and attorneys determined to settle the issues in Case 30-CA-5603 in a settlement entered into with the involved Region For reasons other than those relating to Carduner, this settlement has been set aside. 4 Given the extremely limited scope of protection afforded by the Act to supervisory personnel, I cannot find that the Respondent has violated the Act by dis- charging Carduner for his failure to cooperate in prepa-. ration for trial absent a clear showing that an attempt was made by the Company to encourage him to testify untruthfully. There is no such showing in this record, and I find that the Respondent has not violated Section 8(a)(1) and (4) of the Act by its discharge of Carduner and recommend that the complaint' in this regard be ,dis- missed. 20. Discharge of Richard Warner Richard Warner was hired by LCP as a sales repre- sentative in -January 1971. During his early career with the Company, Warner was a leading salesman. In 1975 he became regionahmanager of the Company's region 38, where he also performed in an excellent manner In early 1979, he was transferred to region 63 as a regional man- ager. Region 63 was a problem region for the Company from the standpoint of sales and continued to remain a problem for the Company during the time in which Warner was its regional manager and thereafter a prob- lem. The General Counsel asserts that Warner was termi- nated by the Company in May 1980 because of his asso- ciation with Kensler as part of the Campany's alleged campaign to rid itself of those shown to be involved in the campaign and to Impress upon the remaining employ- ees the Company's union animus. It is clear that Warner was a supervisor within the meaning of the Act. In defense of the allegations made by the General Counsel, - the Company has a number of defenses, all having merit. First, the Company raises a Section 10(b) defense as Warner's discharge occurred on May 22, 1980, and the only charges to which allegations concerning Warner can be tied are those filed by Dash As no charges were timely filed by Warner, allegations con- cerning Warner must be "closely related" to those filed by Dash. Although I have found the Company commit- ted an unfair labor practice in its termination of Dash for his union activity, I cannot find that the Company's action with respect to Dash is closely related to its action with respect to Warner. First, Warner was clearly opposed to the Union and cooperated fully with the Company's campaign. to defeat the Union's organizing campaign. The General Counsel strongly suggests that Warner was discharged because of his close ties to Kensler who he alleges was discharged because of his union activities As I have previously found, that the 4 The Respondent at the hearing and on brief urges its motion to dis- miss this allegation because the Regional Director abused his discretion in setting aside this settlement The motion was denied by order of Associ- ate Chief Administrative Law Judge John M Dyer dated June 23, 1981 I concur with Judge Dyer's ruling Company did not have knowledge of Kensler's activities on behalf of the Union or know that Kensler was actual- ly in support of the Union, I likewise cannot find that the discharge of Warner, because of the close relation- ship with Kensler, was based in any part on the Compa- ny's union animus. As Warner was admittedly a supervi- sor, he is not afforded protection of the Act except in limited circumstances. There is no allegation that Warner was discharged because of prospective testimony before the Board or discharged in any manner to thwart any of the Board's processes The General Counsel asserted, through testimony given by Carduner, that Warner was to be discharged because the Company believed that he was a pipeline of company information to Kensler. Per- ceived disloyalty by a supervisor to management is a le- gitmate ground for discharge of a supervisor. Additionally, the Company introduced credible evi- dence that it was dissatisfied with Warner's performance as a regional manager in region 63. General Sales Man- ager Bissett was dissatisfied with the performance and held several meetings with Warner to seek to improve his performance While the General Counsel will admit that Warner's performance within the Region was not adequate to meet the Company's expectations, he defends his performance by pointing that other managers within the same Region had not performed well and were still employed by the Company and that other managers throughout the Company's system performing similarly were not discharged. There are differences, however, in the evidence in Warner's performance and that of some other regional managers whose performances were was not tip to company standards Warner had been given warnings in November 1979 prior to the beginning of any organizing campaign that he was not spending enough time with his sales representatives He was given at that time and over the next several months several specific instructions by Bissett designed to improve the region's performance , Many of these he failed to carry out. Bissett's efforts to improve the region's performance culminated in a letter written to Warner in May 1980 re- questing Warner to give Bissett a detailed report on what steps Warner intended to take to improve the re- gion's: performance. The report submitted by Warner was Introduced into evidence is but a cursory response to the request from Bissett Bissett then terminated him. I credit Bissett's assertion that the decision to discharge Warner was motivated by genuine business concerns. Therefore, I -cannot find that the Company's action in regard to terminating Warner , violates that Act in any regard. 21. Discharge of Hubert Redd -From November 1978 until October 1980, Redd was an LCP sales representative for parts of Georgia and South Carolina, under Regional Manager John Carroll. The General Counsel urges that Redd was discharged in October 1980, because of his known prounion sentiments. In this regard, the General Counsel produced evidence that Redd had indicated on -more than one occasion to fellow sales representatives that he was in favor of the Union, that the Company had knowledge of his signing 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the union authorization card, that he had expressed his prounion sentiments to his regional manager, Carroll, and that, at an information meeting conducted by Presi- dent Gosnell, Redd asked a number of questions which would indicate prounion sympathies In defense of its action, the Respondent denies having any knowledge of Redd's union sympathies, raises a Sec- tion 10(b) defense as no charge had ever been filed by Redd against the -Respondent as of the hearing, and pointed out that it had legitimate business reasons for dis- charging Redd relating to his personality and perform- ance There is no clear showing that Redd's union sym- pathies were known to the Company or played any part in the Company's decision to terminate him. The closest showing made by the General Counsel in this regard is that the Company knew that Redd gave an affidavit to a Board agent, in anticipation of this testimony before the Board, in a hearing resulting from the original charges filed by Dash However, it was shown that a number of company representatives gave affidavits to the Board with regard to that complaintand that it was known to the Company that Redd did not desire to testify in the proceeding. There has .been no discipline by the Compa- ny of any of the Other employees who gave affidavits to the Board I also find that, contrary to the General Counsel's con- tentions, Redd was not a model employee of the Compa- ny and that it did in fact have legitimate reasons for dis- charging 1-nni which were not pretextual. From the outset Of his employment, Redd had problems with LCP. During his initial sales training, in Rochester, New York, Redd overcharged the Company for expenses. Later, os- tensiblji to complete a house move, Redd took off 2 weeks after telling his supervisor that he would only be gone over a long weekend According to credible testi- mony given by Redd's supervisor, Carroll, Redd's sales techniques were not satisfactory. He was disparaging of other company products in front of customers and when he could not deal with the customer he would not call on him again. Carroll also credibly related problems relating to Redd's willingness to give customer service or aid in making collections. - Perhaps more importantly, it is clear that Redd had problems in dealing with his regional manager, 'Carroll. On one occasion, 'because of a mixup in communication, Carroll and Redd engaged in an oral confrontation, for which Carroll later apologized. It appears from the evi- dence, that at least thereafter, the relationship between Carroll and Redd was strained on several occasions. Car- roll suggested to Biss'ett that Redd be disciplined or ter- minated. A number of times, the incident which resulted in Redd's termination - took place at the Company's annual sales meeting in New Orleans, Louisiana, in Octo- ber 1980. There, in a public restaurant, after becoming intoxicated, Redd told Bissett that he could not work for Carroll and that Carroll was a "son-of-a-bitch ?' Upon being apprised of this conversation by Bissett, Carroll re- quested that Redd be terminated as he did not believe that he could motivate Redd nor work with him further Bissett complied. I find that this discharge was not moti- vated by union animus or any activities by Redd on behalf of the Union. 22 Discipline of David Outlaw Outlaw was a 3-year sales representative with LCP who was placed on probation in March 1980 by the Company for failure to properly submit required reports. It is admitted by all parties that prior to his suspension Outlaw consistently failed to submit adequate reports of calls on prospective customers and was warned repeated- ly during his tenure of employment about this problem. Outlaw was a suppoiter of the Union's organizing campaign and was its treasurer.' It was his testimony that - he informed his supervisor in the course of the campaign that he was a union supporter. Although his regional manager, Carroll, denies the conversation, in completing the sociogram on Outlaw, Carroll indicated that he be- lieved that Outlaw was in support of the Union The Company had a legitimate interest in seeking better compliance with its reporting requirements by Outlaw; however, a question is left as to whether the timing of the probation given Outlaw was primarily the result of union animus and whether the severity of the punishment, i e, 6 months' probation, was a result of a legitimate desire to improve his performance Or motivat- ed by union animus. Between September 1978 and February 1979, Kensler, who was then LCP's national sales manager, sent a number of letters to Outlaw's then regional manager, Carroll, in which he stated that Outlaw was not submit- ting his reports Kensler further stated that such failure was intolerable and could be grounds for Outlaw's termi- nation. Kensler demanded that Outlaw bring the reports up to date In November -and December 1978, Carroll sent memoranda to Outlaw directing him to bring his re- ports up to par or he would be terminated Carroll was replaced as Outlaw's regional manager in June 1979 by Bissett, who again informed Outlaw of the reporting re- quirements. HOwever, in August 1979, Outlaw submitted call reports for Only 10 of 25 reportable days Bissett was shortly replaced as Outlaw's supervisor by Carroll who had been on a leave of absence. Carroll again warned Outlaw of the need to properly submit call reports. In October and November 1979, Carroll again warned Outlaw about his failure to properly complete such re- ports. In February 1980, Carroll had a compilation made of the call reports of his sales representatives for the month of January. He learned that Outlaw had reported only 18 interviews with prospective customers for the entire month of January and had made no reports for the week of January 20 to 26. Carroll then sent Outlaw a 'memorandum admonishing him for his poor performance and in March, when he next met with Outlaw, placed him on 6 months' probation LCP demonstrated a posi- tive correlation between the submission of sales call re- ports and performance. Outlaw's sales performance was not outstanding, and I find the Cornpany had a legitimate reason for requiring him to submit call reports in an ade- quate manner. Because of the repeated warnings given to Outlaw during the entire tenure of his employment with LCP, I find that the Company did not violate the Act by its action in placing David Outlaw on probation for 6 months and would recommend that the complaint in this regard be dismissed. LAWYERS PUBLISHING CO 155 , CONCLUSIONS OF LAW 1. The Respondent is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Office and Professional Employees International Union, AFL-CIO-CLC is and has been at all times ma- terial herein a labor organization within the meaning of Section 2(5) of the Act. 3. By giving notice of improvements in its pension plan during the course of the union campaign, the Re- spondent has offered its employees benefits in an attempt to influence the outcome of the election in violation of Section 8(a)(1) of the Act. 4. The Respondent, by its letter from its president to its employees concerning the campaign and the Union, has threatened its employees with harsher working con- ditions and the possibility of permanent replacement in violation of Section 8(a)(1) of the Act. 5. The Respondent, by the actions of its president in a meeting with sales representatives in Washington direct- ed them to discourage fellow employees from their sup- port of the Union in violation of Section 8(a)(1) of the Act. 6. The Respondent, by the actions of its regional man- agers in meetings with individual sales representatives in January 1980, has interrogated its employees with regard to thier union sympathies, solicited withdrawal of au- thorization cards, given the impression of surveillance, threatened its employees, and impliedly offered benefits and improved working conditions to influence the out- come of the election in violation of Section 8(a)(1) of the Act. — 7. By requiring Stanley Dash to be examined by a doctor of the Respondent's choosing before he could return to work from a health-related leave of absence, by discharging him on November 4, 1980, because of his ac- tivities in support of the Union, , and by its appeal of his award of unemployment compensation benefits, the Re- spondent has violated Section 8(a)(1) and (3) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. - 9. The Respondent has not engaged in other unfair labor practices as discussed above. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative actions designed to effectuate the poli- cies of the Act. I recommend that the Respondent, having discrimina- torily discharged Stanley Dash for engaging in union ac- tivity, be required to offer him immediate and full rein- statement to his former position, without prejudice to whatever seniority and other rights and privileges he would have enjoyed had the Respondent not discriminat- ed against him, dismissing, if necessary to make a posi- tion available for him, any employee hired to a position he would have held but for such discrimination and shall make him whole for any loss he may have suffered by reason of the discrimination against him. All backpay due under the terms of this Order shall be computed, with interest, in the manner described in E W. Wool- worth Co., 90 NLRB 289 (1960), and Florida Steel Corp., 231 NLRB 651 (1977) See generally Isis Plumbing Co, 138 NLRB 716 (1962). The Respondent shall expunge from its personnel files, or other records, any ,reference to the discharge of Stanley Dash on November 4, 1981, - and notify him in writing that this has been done and that the evidence of this unlawful discharge will not be used as a basis for future personnel actions against him. In order to dissipate the effect of the Respondent's filing of the appeal of the award of unemployment com- pensation benefits to Stanley Dash, I shall further recom- mend that the Respondent be ordered to-cease and desist from prosecuting the appeal and to withdraw it. In order to restore Dash to the position he wOuld have had, in absent the Respondent's unlawful appeal, I shall recom- mend that the Respondent be ordered to make Dash whole 'for all legal expenses he has incurred as a result to said appeal. [Recommended Order omitted from publication ]