Pacific Mutual Insurance Co.

PACIFIC MUTUAL INSURANCE CO. 163 Pacific Mutual Insurance Company and 9 to 5, At- lanta Working Women. Case 10-CA--21796 8 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 4 November 1986 Administrative Law Judge Hutton S. Brandon issued the attached decision. The parties filed exceptions and supporting 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 and to adopt the recommended Order.' ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for, reversing the findings Mary Bulls, Esq., for the General Counsel. Weyman T Johnson and C. Geoffrey Weirich. Esqs. (Paul. Hastings, Janofiky & Walker), of Atlanta, Georgia, for the Respondent. Jevne Diaz, of Atlanta, Georgia, for the Charging Party. DECISION STATEMENT OF THE CASE HurroN S. BRANDON, Administrative Law Judge. This case was tried at Atlanta, Georgia, on 14 August 1986. 1 The charge was filed by 9 to 5, Atlanta Working Women (9 to 5) on 2 June, and the complaint issued on 2 July alleging that Pacific Mutual Insurance Company (Respondent or the Company) violated Section 8(a)(1) of the National Labor Relations Act (the Act), in discharg- ing its employee Edna Lee on 30 April. The issues pre- sented are whether (a) Lee was involved to the Employ- er's knowledge in concerted activities under the Act, (b) such activities were protected, and (c) she was dis- charged for such activities. On the entire record, inCluding my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following All dates are in 1986 unless otherwise indicated FINDINGS OF FACT I. JURISDICTION Respondent is a California corporation with an office and place of business in Atlanta, Georgia, where it is en- gaged in the processing of insurance claims. During the calendar year preceding issuance of the complaint, Re- spondent derived gross revenues from insurance premi- ums in excess of $500,000 of which $50,000 was received from policyholders outside the State of Georgia. On these undisputed facts, the complaint alleges, Respondent admits, and I conclude, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Material Facts Lee, the alleged discriminatee, was initially hired by Respondent in December 1984 to work as a temporary claims processor in its Atlanta, Georgia office. That office is involved in the processing of medical and dental claims of Respondent's policyholders and employs 60 workers, approximately 50 of whom are clerical claim processors or preprocessors. In April 1985, Lee became a permanent, full-time processor. During a July 1985 visit to the Atlanta office by Frank Cosgrove, Respondent's director of field benefits office in California, Lee com- plained to Cosgrove about a lack of communication be- tween management and employees in the Atlanta office and made suggestions on alleviating the situation and im- proving office production. Cosgrove was receptive to Lee's complaints and her suggestions. Encouraged by this, Lee took her suggestions up with the local office manager, Michael Sholik, who was also receptive to Lee's suggestions that involved training and motivating the office employees. With Sholik's permission, support, and assistance, Lee developed, produced, and held a series of "life goals" training workshops for employees in the office beginning in September 1985. A portion of these seminars was de- voted to Lee's soliciting employee complaints, questions, and concerns about their jobs. After recording these mat- ters, five office supervisors were separately called into the employee meetings to listen to the concerns or to re- spond to them. Further, Lee submitted at least one memo to the supervisors in early October 1985 regarding a number of general employee complaints and sugges- tions. Lee's training programs and workshops were well re- ceived by management. Her team-building efforts were considered responsible for an increase in office produc- tion and resulted in companywide recognition during the latter part of 1985. In addition, in January, Lee was pro- moted to one of the two benefit analyst positions in the office, a position normally responsible for the handling and processing of complicated claims. 2 However, in her 2 Unlike the claim processors' positions, the benefit analyst's position was considered by Respondent to be an "exempt" position within the Continued 284 NLRB No. 20 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD new position, Lee was expected to spend only about 25 percent of her worktime doing the normal benefit analyst work, for the major portion of her time was to be spent in training employees. In fact, Lee's job description as proposed by Lee in a memo to Sholik in October 1985 when her promotion was apparently being contemplated, referred to the new position as a "staff assistant/trainer," and enumerated a number of training functions for the position. Lee's promotion appears to have been warrant- ed also by a substantial amount of prior experience in the field. Lee had even worked with Sholik earlier for a period when both had been employed by a different em- ployer. Around the time of her promotion, Lee posted on the bulletin board in the employee breakroom an "Office Workers Newsletter" published by 9 to 5 urging employ- ees to "be active" in that organization and announcing a workshop in developing an office "image." 3 The Gener- al Counsel does not specifically contend nor does the record otherwise establish that 9 to 5 is a labor organiza- tion within the meaning of Section 2(5) of the Act. And from the publications of 9 to 5 received in evidence, one can only conclude that it is an organization interested in promoting the interests and welfare of clerical working women in the Atlanta area. In any event, the General Counsel relies on Lee's posting of the 9 to 5 newsletter as reflecting Lee's involvement in activity protected under the Act. In February, Respondent introduced a reorganization plan that would reduce the number of processors in the office and theoretically impose a heavier workload on the remaining processors. Lee objected to the plan in a memo to Sholik dated 4 February. Lee questioned the "negative instructions" from supervisors and asked if Re- spondent was going back to "the old style of manage- ment." She concluded the memo noting that employees were looking to her for instructions and inquiring wheth- er they would be awarded their hard-won incentives, and asked Sholik what she should tell them. 4 She added, however: By the way, I didn't hear any thanks from you, either for putting through an idea (which you and the supervisors were certain would not work) which sustained production for an entire month. No prob- lems, though, as Frank (Cosgrove) has certainly no- ticed. Lee testified that in response to the memo Sholik called her into his office and told her he did not like the tone of the memo. He added that he would appreciate it meaning of the Fair Labor Standards Act, 29 U S.0 § 213(a)(1). The po- sition placed Lee at Respondent's payscale level for "professional, admin- istrative, and supervisory/management classifications" The position also carried with it, besides the pay increase, relocation expense benefits for transfers, and a separate merit review schedule. 3 On the bottom of the newsletter, Lee had wntten "see Edna if inter- ested" Lee did not testify about any reporises from either employees or management concerning the newsletter. However, Lee testified she no- ticed a week or 10 days later that the newsletter had been removed from the bulletin board 4 Respondent had instituted an incentive plan in January under which employees received incentive pay and time off for processing in excess of 52 claims per day. if Lee would stay out of running the office. She suggest- ed to Sholik that he have a meeting with employees to see what they thought about the reorganization plan. Based on Lee's testimony, Sholik told her to have the meeting. Lee held a meeting with employees, and two supervisors attended. The results of the meeting were not reflected in the record. Subsequently, during training classes conducted by Lee with employees during March, complaints were made by employees that the video display terminals used by them in their work were adversely affecting their vision. In similar meetings in April employees com- plained about an increase in their production quotas. Lee took the complaint about eyestrain up with Sholik in April and asked for eye exams for employees. Sholik de- clined for budgetary reasons. Lee suggested alternatively the purchase of glare shields for the terminals. Sholik re- fused for the same budgetary reasons but observed that special lighting had been installed to address the glare problem. Lee took the complaint about increased pro- duction quotas up with Supervisors Lulita McKnight and Debbie Weiss and learned from them that Respondent was considering production quota increases. Sometime in March, Lee learned of some job difficul- ties of employee Doreen Davidhazy caused by her in- volvement in processing a particular complicated and difficult claim that affected her production quotas. Lee discussed Davidhazy's problems with Sholik who direct- ed Lee to list Davidhazy's problems and give them to him. She did so. Other activity relied on by the General Counsel to re- flect Lee's involvement in activity protected under the Act was her inquiry of Sholik sometime in April regard- ing his failure to post a vacancy in a secretarial position created by the resignation of employee Nancy Walker. Sholik responded that it was not necessary to post the vacancy because it would not constitute a promotion for other employees in the office. On 29 April, Lee posted another 9 to 5 document on the back wall of her personal work cubicle. This docu- ment with the bold 9 to 5 logo on the top addressed active participation of employees in their job evaluation processes. While no one specifically said anything to Lee regarding this posting, Lee testified that it was within sight of Supervisor Marie Geesa when Geesa stopped at Lee's cubicle the morning of 30 April to discuss a hospi- tal claim. Lee further testified that after their discussions, Geesa went directly to Sholik's office and closed the door. At 3 o'clock that same afternoon, Sholik called Lee to his office where Shot* told her that she was a disruptive influence and that he and supervisors had de- cided that she had to go. Lee testified that Sholik asked her to resign and said that if she did not, he Was pre- pared to fire her. Lee protested that it was the first she had heard of being disruptive and asked to get the supervisors in there to discuss it. Sholik declined saying the matter had al- ready been decided. Lee then protested that she had not had any prior warnings and Sholik remarked that he did not have to give her a warning, and added that he was going to fire her for something else. He explained that PACIFIC MUTUAL INSURANCE CO. 165 "officially" he was going to fire her for going through papers on his secretary's desk. Lee asked what he meant and he replied that she had been seen going through the desk of Debbie Griffin, his secretary, and also going through papers on his desk. Lee responded that she had admittedly gone through the "in" box on his desk with him sitting there and asked for details about any com- plaints he had in that regard. Sholik replied that he did not care whether she did it or not. Lee admittedly became upset, picked up an ashtray from Sholik's desk, and slammed it back down, called Sholik a "stupid fuck- ing asshole," and inquired how he could treat her like that after all she had done for Respondent. She asked him to put his charges in writing and he said he did not have to put the charges in writing. However, he did pro- vide her with a separation notice that stated as basis for the separation, "Going through papers on managers and secretaries' desks without permission." Lee testified that in the course of performing her duties, she had frequent occasions to go to Sholik's desk and to that of his secretary, Debbie Griffin, to obtain production and inventory reports that the supervisors kept and supplied to either Sholik or Griffin. One of Lee's functions was to revise these reports and put them on a different form that Sholik found easier to read and that contained more information. Lee stated that she fre- quently went to Sholik's and Griffin's desks while they were present to secure these reports and she had been doing this since either October or November 1985. She added she had never been told not to go to their desks. Lee further testified that, procedurally, she normally checked Sholik's desk for the reports before going to Griffin, and on one specific occasion when she could not locate the report on Sholik's desk, Sholik told her to check on Griffin's desk. Lee admitted that she had on occasion gone to Sholik's office when he was not there, and she explained that on one occasion while she was working up the life goals program she had used his office while he was away on a trip. Further, on one oc- casion during Sholik's absence, she had found it neces- sary to ask Griffin for Sholik's adjuster number, a number that constitutes a password necessary for access into Respondent's computer system to release drafts over a specified monetary amount. She admittedly told Griffin exactly where Sholik kept the adjuster number in his desk, Lee having seen Sholik previously put the adjuster number in his desk. Lee further admitted having gone to Griffin's and Sho- lik's desks on several different occasions in their absence to look for material that was necessary for the perform- ance of her work. More specifically, on one occasion during 18 to 22 April when Griffin was absent due to an illness, she searched for some letters on Griffin's desk that Griffin was to have typed for her. That Lee was never disciplined or warned about any problems with her work or her conduct prior to 30 April is not disputed by Respondent. In fact, Sholik had been complimentary of Lee in his last appraisal of her dated 18 March. Similarly, in her comments on the appraisal, Lee had noted that Sholik had been "very encouraging and supportive of my attempts to find more efficient means of organizing personnel and work flow." B. Respondent's Evidence Respondent does not seriously dispute Lee's testimony regarding the remarks exchanged between Lee and Sholik at the time of the discharge. However, Sholik tes- tified that Lee hurled obscene epithets at him more than once and likewise repeatedly slammed the ashtray on his desk. Regarding the basis for Lee's discharge, Sholik tes- tified that was based essentially on two reasons, Lee's in- ability to get along with the supervisors and the con- cerns of secretaries Griffin and Walker about Lee "snooping" around the desk of Griffin and Sholik. With respect to Lee's inability to get along with the supervisors, Sholik was vague. On cross-examination, he testified that problems between Lee and supervisors began around the time Lee's promotion was announced and he found it necessary to have a meeting with the su- pervisors and Lee to outline their various responsibilities and how they would interface with each other. He added that he found it necessary sometime in April to have another such meeting to "reclarify, regroup, and re- define" Lee's relationship to the supervisors, Sholik, and the office personnel. The incident that Sholik related caused the April meeting with the supervisors was a gen- eral office meeting called by Lee in Sholik's absence in April without the approval of the supervisors. There was, according to Sholik, some incentive measures dis- cussed at that meeting that the supervisors objected to and that had not had prior approval of the supervisors. On the other hand, Sholik testified that Lee in her func- tion as a trainer could call employee meetings without his approval. Respondent called only one supervisor to testify about her relationship with Lee. Thus, Lulita McKnight testi- fied regarding an incident when Lee had become indig- nant about McKnight's refusal to perform a function Lee had requested of her. The incident took place in March or April and McKnight had complained to Sholik about it. McKnight testified regarding her concern about Lee on another incident but admittedly had never complained to Sholik about the other incident. While McKnight ac- knowledged that there was a meeting regarding a mini- reorganization sometime in February between the super- visors and Lee, there was nothing critical of Lee stated in the meeting. One other supervisor testified, Marie Geesa, but was not questioned regarding any complaints by her or other supervisors about Lee. Regarding the allegation that Lee had been "snoop- ing" around Griffin's and Sholik's desks, Respondent produced two witnesses, Griffin, Sholik's secretary, and former employee Nancy Walker. Griffin testified that she first noticed Lee going through the in.box on Sholik's desk about 2 months prior to Lee's discharge. She added that she began to see Lee do this about once a week, but she did not think anything was wrong inasmuch as Lee and Sholik worked close together. However, her opinion changed when Sholik told her that Lee should not go through his in-box: Admittedly, Griffm had never pro- tested to Lee and on occasion had offered to help Lee look for whatever she might be searching for. In mid- April during the absence of Sholik, Lee had requested Sholik's adjuster number and had told Griffin that Sholik 166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD kept it in his middle drawer. While she did not question Lee's right to use Sholik's adjuster number, she testified that it struck her as odd that Lee would know exactly where Sholik kept the number. Griffin related that she was absent from work from 18 to 23 April, and during her absence Walker filled her position. On her return to work, Walker reported to her that she had seen Lee behind Griffin's desk going through the contents of Grif- fin's in-box. Moreover, in light of what she had ob- served, Walker reported to Griffin that she had hidden the key to Sholik's office, usually kept in Griffm's desk, at some other location. It was then that Griffin said she reported the matter to Sholik and advised him that she had earlier seen Lee going through his in-box. It was at this time that Sholik said Lee was not authorized to go through his in-box. Griffin testified that she knew of nothing that Lee would have occasion to get from her desk. Although she admittedly performed some typing work for Lee, it was her practice to take the finished work to Lee. Griffin ac- knowledged that Lee might have occasion to get the weekly reports from Sholik but testified that Sholik kept the weekly reports filed inside his desk drawer. Griffin's testimony was corroborated by that of Walker. Further, Walker testified that she had become suspicious of Lee when in late March Lee commented to Walker about Walker's resignation notice, which Walker had just turned in to Shank's office. On a subsequent oc- casion, Lee had told Walker that she did not think that Walker would be replaced and when Walker inquired why, Lee related that she had seen a memo from Cos- grove to Sholik stating that any further staff replace- ments would have to be done through Cosgrove. Lee added that she had seen the memo on Sholik's desk. According to Sholik, another factor that lent some credence to the theory that Lee was going through his desk was a memo dated 28 March from Lee to Cosgrove captioned "Cottage Industries." The memo supplied by Walker to Sholik a day or two before Lee's discharge, discussed a proposal by Lee under which Lee with a staff of independent contractors operating out of "cot- tages" would handle and process 43 percent of the claims processed in the Atlanta office. This memo, which had not been routed through Sholik, quoted processing cost figures that suggested to Sholik that Lee had surrep- titiously obtained them. In any event, Sholik testified that he decided on April 25 to discharge Lee and attempted to telephonically con- tact Cosgrove about the matter. He was unable to reach Cosgrove until 29 April and after obtaining Cosgrove's concurrence, Sholik effectuated the discharge the follow- ing day. C. Positions of the Parties It is the General Counsel's contention that Lee was en- gaged in protected concerted activity under the Act in her communications with Respondent regarding the complaints of employees related to their working condi- tions. These complaints included objections to raising production goals and the February reorganization plan, the concerns about eye examinations and the request for glare shields, and finally the request for posting of Walk- er's job for bidding by employees. According to the General Counsel, these activities of Lee fit into the defi- nition of protected concerted activity expressed in Meyers Industries, 268 NLRB 493 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), reaffirmed on remand 281 NLRB 882 (1986). The General Counsel then proceeds to argue that the basis asserted by the Employer for dis- charging Lee was pretextual and the pretextual basis warrants a conclusion that Lee's concerted activity was the motivating factor in the discharge. The General Counsel asserts that Sholik's reference to Lee's "disrup- tive influence" during the discharge interview "has meaning only when considered in conjunction with Lee's protected concerted activity," and the discharge accord- ingly violated Section 8(a)(1) of the Act. Finally, the General Counsel argues that under all the circumstances, the obscenity addressed to Sholik by Lee during the dis- charge interview was insufficient to bar Lee from a rein- statement remedy in this case. According to the General Counsel, Lee's conduct was provoked by Sholik's com- ments during the meeting and thus was a part of the res gestae of the unlawful discharge so that although Lee's behavior may not be condoned, it is insufficient to bar reinstatement. Respondent in its brief appears to concede that Lee had been engaged in activity with, or on the authority of, Respondent's employees. However, Respondent takes a further position that Lee was in fact a managerial em- ployee and that, under the circumstances of this case, Lee's conduct in communicating complaints of employ- ees to Respondent was action in concert with Respond- ent and not with the employees. Citing Carpenters (Hope- man Bros.), 272 NLRB 584 (1984), Respondent contends that an employee who in the performance of his job makes reports to management is not acting in concert with any other employee. According to Respondent, Lee's activities were taken at the behest of management as part of her job, which specifically was, in part, to monitor employee attitudes and complaints. Alternative- ly, Respondent contends that even if Lee could have been said to have been acting in concert with the em- ployees rather than Respondent, her actions were not protected under the Act inasmuch as she was a manage- rial employee excluded from coverage under the Act. As evidence of Lee's managerial status, Respondent points to Lee's exempt status, her broad discretion in the cre- ation and implementation of Respondent's motivational training programs, and the different benefits to which she was entitled under Respondent's administrative setup. Further, Respondent argues that Lee's discharge was for cause unrelated to any alleged protected concerted activ- ity. Finally, it is Respondent's contention that the Gener- al Counsel has not established any causal connection be- tween the alleged concerted activity by Lee and her dis- charge. D. Analysis and Conclusions Considering first the factual basis of the case, I con- clude that there is little significant difference in the facts as related by the witnesses for each side. However, to PACIFIC MUTUAL INSURANCE CO. 167 the extent of any differences between the version related by Lee as opposed to that by Sholik, I credit Lee. Lee impressed me as an intelligent, articulate, and very candid witness. Sholik's testimony was less precise and he occasionally was even vague. An overall examination of Sholik's testimony leaves one with the distinct impres- sion that Sholik was not relating the complete story un- derlying Lee's discharge. On the other hand and because Lee's testimony in my view does not specifically contra- dict the testimony of Griffin and Walker in any material respect, I accept as credible the testimony of these two. Griffin and Walker were straightforward witnesses. Walker was particularly convincing, and her testimony was enhanced by her apparent lack of bias since she was no longer an employee of Respondent at the time of the hearing. Accordingly, I conclude that both Griffin and Walker were sincerely concerned over Lee's going through papers on Griffin's and Sholik's desks. As already indicated, the parties recognize that Meyers, supra, provides the controlling case law applicable to concerted activity discharges like that allegedly involved in the instant case. In Meyers, the Board held that to find an employee's activity to be concerted, it must be en- gaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself. Meyers further provides at 497 that: Once the activity is found to be concerted, an 8(a)(1) violation will be found if, in addition, the employer knew of the concerted nature of the em- ployee's activity, the concerted activity was pro- tected by the Act, and the adverse employment action at issue (e.g., discharge) was motivated by the employee's protected concerted activity. Assuming that the concerted activity under the Meyers definition is established along with employer knowledge of that activity, the employer's motivation in effectuating the discharge is assessed under the principles set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap- proved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Under Wright Line, the Board re- quires that the General Counsel make a prima facie showing sufficient to support the inference that protected condUct was a "motivating factor in the employer's dis- charge decision." On establishing such an inference, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. Applying the foregoing principles to the instant case, I conclude initially that Lee was involved in concerted ac- tivity with other employees during the January through April period by virtue of her discussions with employees regarding their various complaints about production quotas and working conditions. Employees David Jones and Doreen Davidhazy testifying for the General Coun- sel both credibly related they viewed Lee as a conduit for their complaints to management. Jones related that employee complaints regarding production goals and other concerns would be brought up to Lee in the em- ployee meetings. It is thus clear, and Respondent does not specifically argue otherwise, that Lee in communi- cating employee complaints to management was not acting solely on her behalf. I fmd no merit to the argument of Respondent that Lee in communicating employee complaints to manage- ment was performing her expected job function and was accordingly acting in concert with management rather than with the employees. The record shows that Re- spondent did indeed expect Lee in the performance of her job to be a channel of communication between Re- spondent and employees, a sort of "eyes and ears" for management as Sholik conceded in his testimony. How- ever, Lee was more than simply a channel of communi- cation, for the record reflects that she not only commu- nicated employees' views, but she was an advocate of those views, at least with respect to the February reorga- nization plan that she argued against in her 4 February memo to Sholik. Moreover, and in any event, the fact that an expected function of Lee's position was to com- municate employee complaints to management would not in itself serve to deprive Lee of the protection of the Act to which she might otherwise be entitled. Carpenters (Hopeman Bros.), supra, cited by Respondent for the proposition that action taken by an employee in concert with management does not constitute concerted activity under the Act is distinguishable on the facts. That case involved the legality under Section 8(b)(1)(A) of the Act of a union's fining of a leadman for reporting to the em- ployer an infraction of a company rule by another unit employee. The administrative law judge had held, with apparent Board approval, that the leadman had been acting in concert with the employer in reporting the rule infraction rather than with other employees. The instant case, however, does not involve Lee's reporting of a rule infraction as part of her job. Rather, it involves clear concerted activity with employees to bring complaints and concerns to management's attention. The fact that she was expected to ascertain and communicate such complaints does not make her activity any less concert- ed. It is undisputed that Respondent was aware of the concerted nature of Lee's activities by virtue of her direct communication with Sholik about the employees' concerns. Sholik expected Lee to make these reports. He thus knew that she was communicating on behalf of the employees regarding the complaints and concerns relat- ed. Thus, not only were Lee's activities in this regard concerted under the Meyers definition, but Respondent was aware of the concerted nature of Lee's activities. Turning to Respondent's contention that Lee was a managerial employee and not protected under the Act, the Supreme Court's decision in NLRB v. Yeshiva Univer- sity, 444 U.S. 672 (1980), constitutes relevant authority. In that decision discussing managerial employees at 682- 683, the Court said: Managerial employees are defined as those who "formulate and effectuate management policies by expressing and making operative the decisions of their employer" . . . . These employees are "much higher in the managerial structure" than those ex- plicitly mentioned by Congress which "regarded 168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD [them] as so clearly outside the Act that no specific exclusionary provision was found necessary" . . . . Managerial employees must exercise discretion within, or even independently of, established em- ployer policy and must be aligned with manage- ment. . . . Although the Board has established no firm criteria for determining when an employee is so aligned, normally an employee may be excluded as managerial only if he represents management in- terests by taking or recommending discretionary ac- tions that effectively control or implement employer policy. In the case sub judice, it is undisputed that Lee re- ceived bonuses and fringe benefits not accorded to the processors or preprocessors for whose training she was responsible. However, her rate of pay remained less than that of the admitted supervisors and, unlike the supervi- sors, Lee had no supervisory authority and directed no employees. She had no authority over the supervisors. Further, she did not attend, and was not directed to attend, all supervisory functions and meetings. Her func- tions as a senior benefit analyst were not shown to have involved any discretionary action to effectively control and implement employer policy. It is true that Lee's re- sponsibility for developing and implementing training programs involved the exercise of some discretion, but such discretion was also not the type that would effec- tively set, control, or implement employer policy. Other objectives referred to in Lee's appraisal and job descrip- tion involving developing criteria for evaluation of proc- essors, for setting and achieving employee goals, and for developing cost-containing measures likewise had little, if any, effect on management policy. Moreover, there was no showing that any specific program developed by Lee was not subject to the approval of Sholik who immedi- ately supervised her. Accordingly, I find that Lee had no discretion to act independently of established policy and I conclude she was not a managerial employee. Accord- ingly, I conclude that she was not deprived of protection under the Act for involvement in concerted activity. Notwithstanding the conclusion that Lee was involved in concerted activity protected under the Act and that Respondent was aware of such involvement, I find the record does not reveal a prima facie showing sufficent to support an inference that Lee's protected conduct was a "motivating factor" in the discharge. There appears to be no casual connection between Lee's concerted activity and her ultimate discharge. Thus, Respondent expected Lee to convey employee complaints and concerns to management. Rather than being angered because of her activities in this regard, Respondent had promoted her in January after she had communicated employee com- plaints to management flowing from the "life goals" workshops the preceding September. Her subsequent ac- tivities in conveying employee complaints and concerns to Sholik do not appear to have provoked significant ani- mosity against her. Although Sholik told Lee that he did not like the tone of her 4 February memo on the office reorgamzation and further told her he would appreciate it if she stayed out of the running of the office, the por- tion of the memo quoted supra suggests some impudence on Lee's part in haughtily noting that Cosgrove would notice her idea and its effect on production. Further, Sholik's remarks on Lee's memo were almost 3 months prior to Lee's discharge and there was no evidence that Lee's raising any additional employee Complaints or con- cerns during the intervening period met with any ani- mosity by Sholik or other supervisors even if the com- plaints were not remedied or the concerns assuaged. Indeed, Lee had a favorable job evaluation from Sholik on 18 March reflecting no discontent with her job per- formance or progress. Closer in time to her discharge, Lee had conveyed em- ployee concerns over the contemplated increased pro- duction quotas to Supervisors McKnight and Weiss sometime in April. Again, however, this seems to have sparked no controversy and raised no apparent antago- nism toward Lee by the two supervisors. A similar com- plaint to Sholik about an increase in quotas for proces- sors in March met only with an apparently calm explana- tion that the office had not been reaching its goals, so in- dividual goals had to be raised. There were no argu- ments with Sholik, and Lee appears to have accepted Sholik's explanation. Lee may have been further placated by a subsequent remark to her by Supervisor Marie Geesa who, Lee testified, said the goals had not really been changed, and that it was "sort of a trick" on em- ployees to stimulate them to reach at least the original goals. 5 Again, however, Lee appeared to have encoun- tered no animosity in her discussions with Geesa. Likewise, Lee's conversation with Sholik about em- ployee eyestrain and the request for eye exams and glare shields met with no expressed anger. The request was denied essentially for budgetary reasons, but there was no evidence that Sholik was unhappy with her for rais- ing the matter. Further, there was no evidence that Lee in making the request did so in any tnanner that would prompt Sholik's displeasure. The same can be said of Lee's questioning of Sholik about the posting of Walker's job, which occurred about 25 April. Sholik's apparently calm explanation that the job was going to be filled at an entry level position suggests no annoyance with Lee. Sholik even went on to directly explain to the two em- ployees Lee had indicated were interested in Walker's position that the job would be an entry level position. Neither was thereafter interested in the position. There is no reason to believe that Sholik found Lee bringing this issue to his attention to be so troublesome or worrisome as to provoke resentment on his part. There is absolutely no evidence that Lee's posting of the 9 to 5 notice had anything to do with her discharge, even assuming that such action constituted protected concerted activity. There was no showing that Respond- 5 Geesa in her testimony for Respondent denied making such a remark to Lee. However, she did not specifically deny discussing the goal mat- ters with Lee Geesa was not cross-examined and no basis appears for discrediting her testimony. Accordingly, in the absence of specific denials by Geesa, I find consistent with Lee's testimony that Lee discussed the quotas with Geesa. However, and also because Lee's testimony on Geesa's remarks impressed me as conclusionary rather than direct quota- tions, I find Geesa did not say that the new goals were "sort of a trick" on employees but conclude she may well have implied that the newer goals were not accurate PACIFIC MUTUAL INSURANCE CO. 169 ent was specifically aware of Lee's posting of the 9 to 5 material. Even if it was so aware, her actions provoked no comments or other response by any management rep- resentative. No evidence was presented suggesting Re- spondent's animus toward 9 to 5 generally or that Re- spondent even knew the nature of the 9 to 5 organiza- tion. Moreover, 9 to 5 was not shown to be a labor orga- nization within the meaning of the Act, and Lee was not shown to have been attempting to organize on behalf of 9 to 5. Finally, in this regard, Lee's posting of the 9 to 5 notice in the employee breakroom predated her dis- charge by almost 4 months. This would reflect the ab- sence of any animosity toward either 9 to 5 or to Lee because of her presumed support of 9 to 5. Further, I find credible Geesa's denial that she saw the 9 to 5 notice claimed by Lee to have been posted on the wall of her cubicle the day prior to her discharge. Geesa's denial is all the more credible in view of Lee's admission that other pictures and material were posted on the wall of her cubicle so that a single 9 to 5 notice would not draw the attention it might otherwise draw if posted sep- arately. In the absence of some comment by Geesa to Lee regarding the 9 to 5 notice and in the absence of any expression of animosity against 9 to 5, there is no basis for realistically inferring that Geesa saw the notice. In the final analysis the only significant evidence that tends to suggest that Lee's discharge was in any way re- lated to her concerted activity was Sholik's statement at the time of her discharge that she was a disruptive influ- ence. Even that statement, however, is vague when viewed in the context of the record considered as a whole. That record includes Supervisor McKnight's tes- timony that in March or April she had a dispute with Lee concerning a customer service luncheon about which McKnight had complained to Sholik. It includes the expressed, and I conclude, genuine concern of Grif- fin and Walker over Lee's observed conduct of going through papers on both Sholik's and Griffin's desks. It includes uncontradicted testimony of Sholik that supervi- sors complained about an unauthorized meeting held by Lee during Sholik's absence that had no relation to moti- vational training. 6 It also includes Lee's exchange of communications with Cosgrove concerning the establish- ment of "cottage industries," which would have the effect of cutting Sholik's office staff or perhaps doing 6 Lee testified that Shohk authorized her to hold an employee meeting on One occasion when he was absent That meeting appears to have taken place in February, and the outcome of the meeting was never explained on the record My impression of Shohk's testimony was that he was re- ferring to a more recent meeting. away with the office entirely. While Sholik testified he was not angry that Lee went over his head in writing Cosgrove on this matter without providing him a copy, he also testified the letter did not make him happy. Indeed, Lee herself believed that her memo to Cosgrove was the basis for her discharge for, based on Sholik's tes- timony uncontradicted in this regard, Lee at the time of the discharge accused him of firing her because of it. Considering all the foregoing, I find the evidence in- sufficent to establish a causal link between Lee's dis- charge and her protected concerted activity. Expressed in terms of motivation, I conclude that the record does not warrant the inference that Respondent was motivat- ed to discharge Lee for activities protected under the Act. In the absence of discriminatory motivation, it is not necessary to determine whether Respondent had a "good cause, bad cause, or no cause at all for discharg- ing" Lee. Shelby Liquors, 208 NLRB 859 (1974). Even discrediting a respondent's asserted reason for a dis- charge would not establish a violation not otherwise sup- ported by all the relevant evidence. See Garrett Flexible Products, 270 NLRB 1147, 1148 (1984). Accordingly, I find no violation of Section 8(a)(1) of the Act in Respondent's discharge of Lee and will rec- ommend that the complaint be dismissed.7 CONCLUSIONS OF LAW 1. Pacific-Mutual Insurance Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent did not violate Section 8(a)(1) of the Act in the discharge of employee Edna Lee on 30 April 1986. 3. Respondent did not violate the Act in any other manner set forth in the complaint. On the basis of the foregoing findings of fact, conclu- sions of law, and on the entire record, and pursuant to Section 10(c) of the Act, I issue the following recom- mended8 ORDER The complaint is dismissed in its entirety. 7 In view of this conclusion, it is unnecessary to decide whether Lee's obscenity directed at Sholik, at the time of the discharge would be suffi- cient to bar a reinstatement remedy 8 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses