The Chesapeake And Potomac Telephone Co.

588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Chesapeake and Potomac Telephone Company and Mari L. Fife. Case 5-CA-16596 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 20 July 1987 Administrative Law Judge Marion C. Ladwig issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The General Counsel also filed limited excep- tions concerning the remedy, which the Respond- ent opposed. - The National Labor Relations Board had dele- gated 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, 2 and conclusions, and to adopt the recommended remedy and Order as modified.3 i The judge characterized as frivolous and questioned the propriety of the Respondent's claim that the instant dispute is encompassed within the terms of the General Agreement with the Union effective 7 August 1983 to 9 August 1986 We agree with the judge, for the reasons stated by him, that the grievance-arbitration procedure of the General Agreement does not encompass the instant dispute However, we do not adopt the judge's finding that the Respondent's claim was frivolous or presented in an improper manner We also do not rely on the judge's statement that the Respondent wrote a misleading brief 2 The Respondent contends that the judge was biased, prejudiced, and partial and that his decision and recommended Order should therefore be vacated In the alternative, the Respondent argues that the Board should grant its motion for special permission to appeal the judge's decision and for a hearing de novo, which was filed 12 August 1987 and thereafter denied by the Board as untimely We find no merit to the Respondent's contentions At the outset we reiterate that the Respondent has failed to comply with Sec 102 37 of the Board's Rules and Regulations, which re- quires that motions for disqualification of an administrative law judge be filed with -the judge "before filing of his decision " Further, we note there is no basis for finding that bias or partiality existed merely because the judge resolved important factual conflicts in favor of those witnesses who testified on behalf of the General Counsel As the Supreme Court has stated, "total rejection of an opposed view cannot of itself impugn the integrity or competency of a trier of fact " NLRB v Pittsburgh Steamship Co, 337 U S 656, 659 (1949) It is the Board's established policy not to overrule an administrative law judge's credibility resolution 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 363 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 To remedy the Respondent's unlawful refusal to give Mari L Fife temporary assignments as management relief because of her protected union activity we shall modify the proposed remedy to require the Re- spondent to consider Fife for temporary management relief on a nondis- criminatory basis In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be comput- ed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts ac- crued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) The General Counsel has requested that the Order include a "visitator- ial clause" authorizing the Board, for compliance purposes, to obtain dis- ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, the Chesapeake and Potomac Telephone Company, Washington, D.C., its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Consider Mari L. Fife for temporary assign- ment as management relief on a nondiscriminatory basis and make her whole for the loss of earnings suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the decision." 2. Substitute the attached notice for that of the administrative law judge. ` covery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order Under the circumstances of this case, we find it unnecessary to include such a clause, and therefore deny the General Counsel's request APPENDIX. NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discriminate , against any union steward in temporary assignment as management relief because of protected union activity. 'WE WILL` NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act., WE WILL consider Mari L. Fife for temporary assignment as management relief on a nondiscrim- inatory basis and WE WILL make her whole, with interest, for•her lost earnings resulting from our re- fusal to give her temporary assignments as manage- ment relief. WE WILL notify Mari L. Fife that we have re- moved from our files any references to our refusals to grant her requests for temporary assignments and that these refusals will not be used against her in any way. THE CHESAPEAKE AND POTOMAC TELEPHONE COMPANY 287 NLRB No. 61 CHESAPEAKE & POTOMAC TELEPHONE CO 589 James P Lewis, Esq, for the General Counsel Patricia A. Dunn and Willis J. Goldsmith, Esqs., of Wash- ington, D C., for the Respondent. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge This case was tried in Washington, D C, on 16-17 December 1986 and on 9 and 20 January 1987. The charge was filed by Union Steward Marl Fife on 7 August 1984 and the complaint was issued 22 January 1986 at the amend- ed trial , Mari Fife, a service representative since 1972, admit- tedly is a "classy lady," whose performance on the job has been rated "Outstanding " Since receiving her col- lege degree after taking educational leave in 1980 she has become the most popular union steward, chosen by grievants to handle about 75 percent of their grievances. Although she served as a TA (temporary assignment as management relief) under four different supervisors before she became a union steward, the Company has re- fused to permit her to "TA" again, preventing her from receiving a $10 daily bonus and advancing in the Compa- ny. The primary issues are (a) whether the Company, the Respondent, has discriminated against Fife because of her protected union activity as a steward in violation of Section 8(a)(1) and (3) of the National Labor Relations Act and (b) whether this case should be deferred to the grievance-arbitration procedure, which obviously does not encompass the dispute On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Company, I make the following FINDINGS OF FACT I JURISDICTION The Company, a New York corporation,, provides telephone communication services in Washington, D.C, where it annually derives over $1 million in gross reve- nues and receives goods valued over $50,000 directly from outside the District of Columbia. It admits and I find that it is an employer engaged in commerce within the meaning of Section 2(21, (6); and (7) of the 'Act and that the 'Communications Workers of America, AFL- CIO, Local 2336 is a labor organization within the mean- ing of Section 2(5) of the Act. 11. ALLEGED UNFAIR LABOR PRACTICES A Frivolous Deferral Contentions Unlike Collyer Insulated Wire, 192 NLRB 837, 838- 839, 842 (1971), and United Technologies Corp., 268 NLRB 557, 558, 560 fn 20 (1984), in which the arbitra- tion clause clearly encompassed the dispute at issue, this proceeding involves solely alleged violations of the Act and no contract interpretations The General Agreement (R. Exh. 1) was effective from '7 August 1983 until 9 August 1986 The arbitration clause (art 13, sec. 1(a)) provided for the arbitration of unresolved grievances involving "the interpretation or application of any of the terms of this Agreement not specifically excluded from arbitration." But no provision in the agreement is in actual dispute. The only issue is whether the Company discriminated against Fife in se- lecting TAs for management relief because of her union activity The agreement was completely silent on the selection of TAs, and the nondiscrimination clause did not forbid discrimination for union activity Under "Temporary As- signments," section 3 of article 22 provided for extra pay, but did not cover how TAs were selected. "On any day which an employee, pursuant to a temporary assign- ment, relieves a management employee for at least one full session or half tour, such employee shall receive an additional $10 per day." Under "Nondiscrimination," section 1 of article 11 forbade unlawful discrimination against "any employee because of his activities on behalf of the Union" That language was not added until 2 years after the charge was filed, when a new agreement was negotiated in 1986 (Tr. 190; R. Exh. 2) In the absence of any contractual provision whose in- terpretation could resolve the issue of discrimination against the Union Steward Fife, the Company contends in its brief (at 29) that [T]he issue raised here-whether the Company failed to train Fife for, and assign her to, a TA posi- tion because of her union activities-is cognizable under Article 1. [Emphasis added ] Article 1 is the recognition clause. It provides that the Company recognizes "the Union as the exclusive repre- sentative of all employees in the bargaining unit . . pro- vided that any individual employee or a group of em- ployees shall have the right at any time to present griev- ances." It clearly has no bearing on the discrimination issue. The Company was aware that the only reason Fife filed the grievance (G.C Exh. 2) was the Regional Di- rector's initial refusal to issue a complaint. On 25 Sep- tember 1984 the Regional Director (G C Exh. 1-T(Q) declined "to issue a complaint on the instant charge," based on his "determination that further proceedings on the charge should be administratively deferred for arbi- tration." He cited the provision for binding arbitration in the - collective-bargaining agreement and found that "There is a substantial likelihood that utilization of the contractual arbitration would lay this dispute to rest " He overlooked the absence of any contractual issue for the arbitrator to resolve. After filing the grievance 6 months later on 27 March 1985 (Tr. 19) 'Fife informed District Manager Varden Dyer that the NLRB "Wouldn't take [the case] until I filed grievance," as recorded in the undisputed minutes of the second-step grievance meeting on 15 May 1985 (G.C. Exh. 20 at 1 col. 1). The Company continued to take the position that "the selection of TAs is at the Company's discretion," as shown in its own minutes of the first-step grievance meeting on 12 April 1985 (R. Exh 29 at 3), and that "Management will make deci- 590, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sion," as shown in the 15 May 1985 minutes (G.C. Exh. 20 at 11 col. 1) The Union processed the grievance through only the second step of the grievance procedure Union Secretary Billie Beckwith,explained as follows (Tr. 127-128): [W]e have had TA grievances before, not for Mari Fife but in other locations in the city. We usually have them informally, rather than go through a formal grievance [because the] way the Company picks for the TA position is not addressed in the contract. It tells how they'd be paid if they are picked but it doesn't say how they would be picked. . . . and we usually go to them and say, please rotate them, that way you can find out who's the best. In most cases we're successful, just talking to them informally.. . . [I]n any formal grievances we have had we've never been successful in getting the Company to TA somebody because it is not in the contract. We . decided that we cannot go to arbitration with it If we go to third step we're only going to hear the same thing we heard at the second step. So the only way Mari's going to get it straightened out is go to the NLRB. Beckwith also pointed out that articles 1, 10, and 15 (listed in the grievance), as well as article 22, have no bearing on how TAs are selected (Tr. 137-139). Finally on 22 January 1986 (nearly a year and a half after Fife filed the charge) the General Counsel issued the complaint Seven months later on 22 August the Company filed a motion for summary judgement and supporting memorandum (G C. Exh. 1-T). In them the Company made the following representations, which, at the least, were misleading. (1) Both Fife and the Company "are willing to address the merits of her grievance through con- tinuation of the contractual grievance and arbitra- tion procedures." (2) "There is a substantial likelihood that the grievance will be resolved through the grievance and arbitration procedures." (3), The failure to train and assign Fife to a TA position "clearly is encompassed" by the broad arbi- tration clause. (4) All "parties agree-as they must-that the merits of the instant complaint can be resolved within the confines of the General Agreement. (5) The "named parties to the complaint are will- ing to resolve their dispute through their collective- ly bargained procedures." (6) There "is no reason whatsoever to believe that the grievance cannot be fairly resolved through" the arbitration machinery. (Similarly the Company represents in its brief (at 35) that "the instant dispute is encompassed within the terms of [the General] Agreement" and "there is no reason what- soever to believe that the grievance cannot be fairly re- solved through this [grievance and arbitration] process." The Board may want to , consider the propriety of the counsel's making' these representations) On 4 September 1986 the Board , being "of the opin- ion" that the motion "raised issues which can best be re- solved after a hearing," denied the motion (Tr. 1-U). I reject the Company deferral contentions as frivolous. It is obvious that the grievance -arbitration procedure does not encompass the dispute. B. Exceptional Employee The evidence shows that Mari Fife is an exceptional employee. In District Manager Varden Dyer's eyes, Fife is "a very classy lady," with "ability" and "a tremendous amount of experience," and ranks in the top 3 percent. In the view of the Company's formal evaluation system, Fife's performance is "Outstanding." In the Union's eyes, Fife is probably better trained than any of Dyer's first- level management (Tr. 638), is intelligent, tries to do the best for the Company, and is a leader whose talent the Company is suppressing because it regards her activity as a union steward to be adversarial. In the eyes of her fellow employees, Fife is their chosen eyes, she is an am- bitious, loyal employee who goes to work early, works overtime without compensation to catch up, with her work after handling employee grievances, and declines (Tr 539-540) a lightened workload She wants to ad- vance and make her carrer with the, Company. (As a witness, she was most articulate. She impressed me quite favorably by, her demeanor on the stand as an honesi, perceptive witness with a good memory.) Hired in 1970 after graduating from high school, she has worked since 1972 as a service representative in ,the business office, now called RASC (Residential Account- ing Service Center), which collects payments from resi- dential customers in Washington, D.C. After taking edu- cational leave in 1980 and earning a college degree in journalism, she returned in September and became a union steward in October 1980 In 1984, when this proceeding arose because of the Company's repeated refusals to permit her to be tempo- rarily assigned as, management relief, she was doing out- standing work. Her 1984 job performance- appraisal (G.C Exh. ,4) was made in January 1985 by Assistant Manager Barbara Neal and was approved and signed by Manager Eileen Booker. The summary gave Fife the highest rating of "0" (Outstanding) in all three-elements of the performance appraisal- quality, quantity, and de- pendability, as well as an "0" for her composite apprais- al Fife's contact work (incoming call quality or ICQ) and her collections (both timeliness and effectiveness) were also rated "0": Contact Work, Incoming Call Quality 99 8%: Mary understands the importance of giving quality customer service She has very good tones. She demonstrates a genuine concern for the customer's problem. She is concise and clear in her discussions with the customer. She questions the customer for clarity of agreements made. She effectively and ap- CHESAPEAKE & POTOMAC TELEPHONE CO propriately acts to resolve the customer's of query with minimal customer irritation, but needs to strive to incorporate the company name in the opening statement [instead of "Mary Fife, may I help you9" J. Collections, Timeliness 99.1%• Mary completed all treatment she handled in a timely manner. She is very aware of the importance of prompt action ini- tially and on subsequent follow-ups to ensure mini- mal revenue losses. Although her results are out- standing numerically, Mary needs to give more effect to handling a larger volume of treatments media in the prescribed time intervals set. Effectivenesses 98.7%: Mary has a working knowledge of the office collection policies and guidelines . She demonstrates sound judgment in granting extensions of accounts. She obtains securi- ty desposits when appropriate. She updates credit, but not always did she obtain this required data consistently. In 1984 she had only two chargeable absences, entitling her to the "0" rating for dependability-even though she was often on "096" (company-paid) time handling grievances (Tr 89-90, 371-373; R Exh. 14) In 1983 (G.C. Exh. 3) she also had an "0" rating in both quality and quantity, as well as for her contact work (incoming call quality) and for her collections (timeliness and effectiveness). The comments under "con- tact work" were that she "had 7 months of 100% ICQ " This indicated that Assistant Manager William Roberts, who supervised her most of the year, approved her use of the opening statement, "Mari Fife, may I help you?" That year, however, Fife had five chargeable absences, lowering her dependability rating (Tr. 30-31) to "S" (sat- isfactory) and her composite appraisals to "ES" (entirely satisfactory), the rating received by most employees (G.C. Exh. 8 at 14). In both 1985 and the first 9 months of 1986 (before the trial) the quality of her performance continued to be rated outstanding (Tr. 866; R. Exh. 37) Fife volunteered for various work-related projects. She was a member of the communications and other committees and worked on the annual bond, United Way, and bloodmobile drives (Tr. 12-13). She has re- ceived a commendation from Company Vice President Delano Lewis for her volunteer efforts on behalf of the site selection committee (G.C. Exh: 25). In the 1970s' (before she became a union steward) she served as long as a week at a time in the TA position, for a total of an estimated 20 times (Tr. 11-12). As she informed Assistant Manager Neal in the 12 April 1985 grievance meeting (R. Exh. 29 at 8), she TA'd for Super- visors C. Anderson, L. Bean, P. Stevenson, and K. Scott. Her long experience as a RASC service representative fully qualified her to serve in the TA's "admin" capacity (answering service representative' s questions and assist- ing with irate or problem customers). More recently, about 1982, Assistant Manager Margaretta Kennedy trained her a half day at the TA's "in-charge" position, operating a computer database that monitors the number of incoming calls at 30-minute intervals. The computer 591 informs the assistant manager or TA how many service representatives are needed on open-light time throughout the day to meet customer demand Fife needs perhaps a couple of days to become familiar with all the computer demands to perform the TA's "in-charge" function as well as the "admin" function (Tr. 676-677, 706-707.) As Fife informed District Manager Dyer (Tr 683-684) her long-term goal in the Company is to work for one of the Company's newspapers. He stated, and she acknowl- edged, that this was a management position and told her she needed the support of her supervisor and manager. This, of course, is an impossible goal while the manage- ment refuses even to permit her to be temporarily as- signed as management relief C. Denial of TA Assignments The last time the Company permitted Fife to TA was for Supervisor Pat Stevenson in 1978 and once in 1979 for Supervisor Kathy Scott (Tr. 689-691) Since she re- turned from educational leave and began serving as a union steward in October 1980, she has received no addi- tional TA assignments. I note that Service Representative Audrell Galery, an- other union steward in RASC, has had a similar experi- ence. It is undisputed, as she credibly testified, that in the 1970's the Company used TA assignments as a develop- ment tool It rotated the employees and Galery TA'd about once a month until she became an active steward. (Tr 142-143) In 1982 when she returned from being dis- charged, she remained a union steward. She did not re- ceive any additional TA assignments until once about the spring of 1984 when her new supervisor, Assistant Man- ager Ethel Kemp, asked her to TA 3 days (but never after that). Believing that the Company had demonstrat- ed an unwritten rule that stewards could not TA, Galery asked if Kemp knew what she was doing. Although pleased to get the assignment, Galery was concerned about what might happen and that someone might ques- tion Kemp about it. (Tr. 143-144, 163-164.) Kemp admit- ted having Galery serve as a TA, but she claimed she did not recall Galery's asking the question about compa- ny policy (Tr. 331). (From her demeanor on the stand Galery impressed me most favorably as an honest, forth- right witness. I credit her testimony) I further note that the evidence shows that some less active union stewards were acceptable as TAs. Fife began actively seeking TA assignments in 1983 when Assistant Manager Roberts was her direct supervi- sor (Tr 323). She specifically recalled one occasion when she heard Roberts asking Service Representative Carole Pender if Pender was going to TA for him that day Fife asked Roberts "right on the spot" about TA'ing and "the answer was always the same," that she was never here and was always questioning policy (Tr. 16). He was referring to her activities as a union steward. Upon being called to testify, Roberts reluctantly admit- ted believing that Pender did have TA assignments when he supervised her. When questioned if Fife asked him on more than one occasion if she could TA, he answered, "I don't recollect that, that she ever asked to TA." Despite his denials (Tr. 323-324), 1 credit Fife's testimony. 592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On 26 January 1984 when Fife and Assistant Manager Gilda (Green) Rice were covering Fife's 1983 job per- formance appraisal, Fife complained that "I'm never al- lowed to TA. I'm never allowed to do a special assign- ment." As Fife credibly testified, Rice responded that it would not be fair to Rice or to the position because if Fife did a special assignment, the phone would probably ring and Fife would jump up and say,. "Oh, I have to go to a grievance or I have to go to disciplinary meeting." Fife told Rice that would not happen, assuring her "if, in fact, you allowed me to do that, my work as steward would be given to someone else." (Tr. 17-18.) The Company continued to deny Fife any additional TA assignments, despite her 12 years of experience as a service representative, her outstanding work, and her as- surance that she would be available if assigned. No one questioned her ability or qualifications for this manage- ment relief work. Finally on 7 August 1984 Fife filed the charge. On 27 March 1985, about 6 months after the Regional Direc- tor's 25 September 1984 refusal to issue a complaint, Fife filed the grievance (G C. Exh. 2) alleging that the Com- pany "has repeatedly denied Mari Fife & others the op- portunity" to TA and "refused to allow her to TA be- cause of her union activities" in violation of the Act D. Belated Lack-of-Potential Defense By the time the Company answered Fife's grievance at the 12 April 1985 first-step meeting, it had developed a new defense It not only continued to ignore Fife's assur- ances that she would be available to TA if assigned; it began contending (as argued in its brief at 25) that Fife "did not display the necessary management potential." It claimed that it was applying to the nonmanagement serv- ice employees the eight criteria in the management po- tential appraisal plan (R. Exh. 3) These criteria are used to evaluate the potential of members of management for promotion to the next higher management level: The Company made no mention of this defense 3 months earlier in January 1985 when it gave its first written response to Fife's request for TA assignments. The response (given at that time by Assistant Manager Neal and approved' by Manager Booker) was on page 3 of Fife's 1984 job performance appraisal (G.C. Exh. 4), which gave her an overall "composite" rating of "0" (Outstanding). Under "Additional Pertinent Information" the response evidently referred to Fife's activity as a union steward. It stated, "She has the potential," but called for a more "positive" leadership role and for spending more working time in the office (stating a need to take "proprietorship in the appearance of her work station," to increase her "productivity input to, the group as a whole," and to show "her ability to keep on top of work"). It also mentioned her need to perform "special projects," which Neal admitted at the trial (Tr. 530-531) she had not offered Fife. The response did not mention the eight management potential criteria. The management potential appraisal plan, referred to in the new defense, requires under step 1 that the manag- er being evaluated be given an orientation of the eight criteria for appraising management potential (oral com- munication, written communication, flexibility, perform- ance stability, decision making, leadership, organizing and planning, and inner work standards). Under step 5 the manager is permitted feedback on an ongoing basis, and under step 8, is given a formal review of the evalua- tion. If the Company had been applying those criteria to bargaining unit employees when selecting TAs (as it now contends), it did so without notice, without any feed- back, and without giving them any review of the evalua- tion The Company insists in its brief (at 69) that its use of these eight management potential criteria is "Hardly con- trived as an after-the-fact attempt to justify the Compa- ny's decision not to select Fife as a TA."' To the con- trary, I find that is what it did do. Without citing any supporting evidence, the Company contends in the brief (at 69) that "the Company has for years selected as its TAs only those representatives who satisfy the management potential criteria " Although the Company called as defense witnesses three managers (Eileen Booker, Rosemary McCarthy, and Tom Miller) and seven assistant managers (Yvonne Brooks, Versie Harcum, Ethel Kemp, Barbara Neal, Gilda (Green) Rice, William Roberts, and Maureen Rogers), none of them testified that the Company had selected only TAs who satisfied these criteria. Manager Booker did claim that the eight criteria had been applied to Fife,. but she ap- peared to be giving deliberately fabricated testimony. Booker claimed that in January 1985 (i.e., before the 12 April 1985 grievance meeting) she and her six assist- ant managers discussed whether Fife possessed the eight criteria for appraising management potential. She gave the following testimony about why they did not select Fife (Tr. 259-260, 271-274)- A. . . . As far as being evaluated for the overall year, her performance was fine. However, the po- tentials that we were looking for,.we didn't feel that she had. A. Okay, in looking at the potentials that we're talking about, the eight areas . for instance, leadership . . . A. No, she didn't demonstrate that. JUDGE LADWIG: . . [Y]ou found, in January of 1985, that she lacked flexibility as a reason for not selecting her as a TA? WITNESS: That is correct. JUDGE LADWIG:. • . . Did the whole group deter- mine that she was not flexible enough, or did you determine that? WITNESS: It's a group decision. JUDGE LADWIG: How do you know that the whole group decided that she lacked flexibility? WITNESS: We discussed it. JUDGE LADWIG: And all of you agreed that she lacked flexibility? WITNESS. That is correct A. In the inner work standards . . . . we deter- mined that Mari does just enough to get by. CHESAPEAKE & POTOMAC TELEPHONE CO 593 JUDGE LADWIG. Was this one of the factors that the group decided she was lax in9 WITNESS: All the factors that we have here, all eight of them would be the factors that we would have discussed in the meeting JUDGE LADWIG: Did the group decide that she was lacking in organizing and planning9 WITNESS: Yes. JUDGE LADWIG• And it was expressed9 WITNESS: Yes. [Emphasis added.] In complete contradiction, however, Manager Booker later admitted (Tr. 283) that " Mari's name did not come up as one of those persons" recommended to "be consid- ered for TA," and that her name was not even men- tioned for consideration to TA I find that all the quoted testimony about the group of supervisors discussing the eight criteria to appraise Fife's management potential at the January 1985 meeting, was fabricated. '(Booker ap- peared by her demeanor on ' the stand to be willing to fabricate any testimony that might help the Company's cause. I find all her testimony too untrustworthy to be relied upon.) Following this unfounded contention that the Compa- ny had applied the eight management potential criteria for years in selecting TAs, the Company makes the fol- lowing contentions in its brief (also at 69) Hardly contrived as an after-the-fact attempt to jus- ,tify the Company's decision not, to select Fife.as a TA,, these criteria form a part of the, Company's formal Management Potential Appraisal Plan (R Exh 3), and have traditionally provided ,a logical framework for assessing the management potential of the Company's nonmanagement employees. Sig- nificantly, Fife knows as much The undisputed tes- timony reveals that as early as 1980-long before this dispute arose-these criteria were explained to Fife by her supervisor (Tr 481-482) and, on at least two' subsequent occasions, by two other supervisors as well (Tr 486, 559-560) Thus, Fife's suggestion that the Company's reliance on these,criteria is pre- textual is disingenuous at best To the, contrary-whether or not the Company, is in- tentionally attempting to distort the record-nobody ex- plained them to her on any subsequent occasion before the Company raised this new defense at the 12 April 1985 grievance meeting. The citation to pages 481-482 of tlie'transcript is to the testimony by Assistant Manager Yvonne Brooks that Supervisor Ethel Kemp met with a group of employees, including Fife, about May or June in 1979 or 1980. (Fife was on educational leave in May and June 1980.) Ac- cording to Brooks, then a service representative, Kemp "was discussing with us what we needed to do to TA, which was improve our image, our dress, our basic job, show leadership skills, flexibility, that type of thing." Brooks did not testify that the supervisor explained to Fife the eight criteria. She testified that Kemp (who did not testify on the subject) discussed with the group im- proving their image, dress, and basic job and mentioned only two of the eight criteria, leadership and flexibility- without any reference to the management potential ap- praisal plan The Company does not reveal how it could, in, good 'faith, contend that this testimony proves that "these cri- teria were explained to Fife by her supervisor" as early as 1980 or that Fife knew that the Company traditionally used the eight criteria in Management Potential Apprais- al ' Plan as "a logical framework work for assessing the management potential of the Company's nonmanagement employees." • Moreover, the Company's contention that "these crite- ria were explained to Fife . . . on at least two subse- quent occasions, by two other supervisors as well (Tr. 486, 559-560)" does not refer to something explained to Fife before the 12 April 1985 grievance meeting The first citation is to Assistant Manager Brooks' testimony on page 486 of the transcript that she gave Fife a copy of the management appraisal plan The Company ignores Brooks' testimony on page 485 that this occurred after the grievance-when (after the 12 April 1985 grievance meeting) Fife was telling Brooks that Fife "was never told what you needed to TA," that "other people did not have to meet those qualifications to be a TA," that Fife "would name people that were not qualified to TA," and that "it was just qualifications that management wanted Mari to meet." The second citation is to Assistant Man- ager Neal's testimony (discussed'below) about what she explained at that first-step grievance meeting The evidence does substantiate Fife's statement to As- sistant Manager Brooks that "other people did not have to meet those qualifications [the eight criteria] to be a TA " For example the relatively new service representa- tive Katherine Fogarty (hired 17 October 1983) was given TA assignments in the summer of that same year, 1985. Earlier that year in January, in a discussion of her first annual evaluation, Fogarty had 'expressed an interest in TA'ing Assistant Manager Maureen Rogers explained that Fogarty would need a satisfactory, or preferably an outstanding, rating and "you would need to have a pro- Company attitude [emphasis added] and try to become in- volved in office activities" (but nothing about the man- agement potential criteria) Fogarty TA'd 10 or 12 times, performing only the "admin," not the "in-charge," func- tion. (Tr. 106-109, 111.) Rogers did not dispute this testi- mony except to deny telling Fogarty that she had to be pro-Company to be a TA (Tr. 326). Fogarty appeared to be the more trustworthy witness. I credit her testimony and discredit the denial. E. Belated Defense Announced Assistant Manager Neal announced the Company's be- lated lack-of-potential defense at the 12 April 1985 first- step grievance meeting. The Company's own minutes of the meeting show not only that the announcement was a surprise to the Union (Stewards- Fife, ' Galery, and J. Beale), but that Neal herself was not fully familiar with the eight management potential criteria. She told the Union that the criteria were based on AMJD, the leaders guide assistant manager job design training MR/TA manual (R Exh. 4) instead of the manager potential plan (R. Exh. 3). 594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Company's minutes (R. Exh. 29) of the long meet- ing include the following: Neal. The Company denies any violation of the [contractual] Articles mentioned. . . . It also denies that Ms Fife is not currently being used as a' TA because of her union activities The criteria for the selection of TAs is at the Company's discretion. The performance . . is a factor .... It is not the overall governing factor. Some of the criteria that is looked at in the selection of TAs is the persons' oral communication, their written communications, their flexibility, performance stability, their decision making, their inner work standards, their leadership abilities, and their organizing and planning skills. Galery Who sets the criteria? Neal: It is based on AMJD. It was set up by staff, as a guide. Galery: Have you ever sat down with Mari and discussed these items individually? Neal. No, I have not addressed these one on one with Mari Neal: Generally, the managers are the one who initiates the TA" or their intentions of training the person as TA.. . . Galery. I don't think that-you have mentioned anything that Mari doesn't qualify for, why hasn't she been approached? Neal: I can't speak for what happened previously. She has not been approached by me because I have not seen all these qualities displayed It could be be- cause . I have not assigned Mari to do special projects at this point. Galery: Why? Neal. That, is my discretion. Galery:,,Let's look at each item. Oral communica- tion-Mari is in command of the English language. I see no problem there. Written communication- the same as oral, Mari has written many letters, grievances, etc. Fife: Publications have been printed such as hard news articles Galery: This is Mari's major. She is a fantastic writer. Flexibility-she was rated at least satisfac- tory and probably outstanding in this area She has been moved around a lot. She has had to adjust to different supervisors and their whims on occasions. The fact that she has been a service representative in that office for approximately 14-15 years proves she's flexible. She's never been told that she isn't Performance stability for decision making-her records stands. Her inner work standards-I don't understand' that. Neal: The extent to which an individual demon- strates a desire to perform at or near perfect-the limits of capability most of the time, when lesser effort would produce acceptable results, the willing- ness to go above and beyond. Maintaining high per- formance standards and the amount of the time will- ing to devote to the Company. Galery: Again, Mari's performance in this area is outstanding as judged by the Company. Barbara, you should be aware that most things Mari tackles she goes all the way. You have experienced the willingness to go above and beyond. Neal- How would I have experienced that? Fife- You know that I have worked at, my desk after 5 p.m. with no compensation in terms of salary from the Company. In an attempt to keep my desk straight while hours off time is spent away from it and no one else being there to do the job, I would come in at 7:30 a.m. in order to have the desk func- tionally organized, something' I did not have to do. I'm not attempting to praise Mari Fife-but it's clear to the Company, [on] any task of the Business Office . . . Mari would come out top-notch. . . . We can't compare what she would do as compared to the masses. It is clear that most people that do special tasks are marginally functional. Galery:, Leadership-Mari is a leader. If the Company is honest they will acknowledge that being a union steward is a leadership position . . Mari has spoken for a group of people just using your own office as an example. . . . It's the Compa- ny's loss. It takes courage to disagree. That disagree- ment should not be viewed as adversarial. . . . So ac- tually we all stand to benefit when the Company utilizes its talent. We also lose when the Company suppresses its talent. . Neal: You mention Mari's leadership abilities. "They are well demonstrated in union activities." What the Company is looking for and can evaluate Mari on is her leadership abilities within the unit. We are not privy to observing Mari's leadership abilities in all cases when she is on union business. Neal: . . . I do not doubt, as I have expressed to Mari, her leadership potential. It is not to say that Mari will not be used as a TA in future times. But there is no plans at the present. . . . Galery: I think that the Company vacillates from one position to another as demonstrated here today. Galery: The Company keeps-proving to us that it's not leaders that they want It is followers. Fife: Let the record stand to reflect that in the early 70s I TA'd for supervisors C. Anderson, L. Bean , P. Stevenson and K . Scott All the things that were done then [are] done now . . . . Galery: . . . Mari is over qualified. [Emphasis added ] I note that Neal did give Fife one compliment (R. Exh. 29 at 10): "In area of decision making I have no prob- CHESAPEAKE & POTOMAC TELEPHONE CO 595 lems with dealings with customers. She uses sound judgement in her decisions." After about an hour in her discussions Assistant' Man- ager Neal offered (in the minutes at 11) a compromise to settle the grievance She offered to "set up a program whereby on a monthly basis [Fife] would get feedback as to how she is progressing and improved in the areas mentioned. Within two months, with Mari getting imme- diate feedback she would be able to fake on the responsi- bilites " In its brief (at 24) the Company construes this to mean that Neal "offered Fife the opportunity to work closely with her for a two-month period on special projects, thereby giving Fife an opportunity to demon- strate and, at the same time, giving Neal a basis to assess her potential " Thus, after (1) about 12 or 13 years on the job, (2) repeated evaluations as Outstanding, (3) pre- vious experience as a TA, and (4) being told by Neal a few minutes earlier, "I do not doubt [your] leadership potential," this exceptional employee was being offered an opportunity (as construed by the Company) to dem- onstrate her "potential." After a recess Steward Galery rejected the proposed settlement, questioning the Company's good faith. She stated that "The offer of two months is two months too long." She also gave another reason for rejecting the proposed 'settlement. As shown in the Company's min- utes (at 13), she pointed out that "the others, which in- cludes myself, have not been addressed," stating, "I know that the unwritten and unspoken word is to [to deny' TA assignments] because I am a steward and very active in handling grievances." F. Unlawful Motivation Revealed District Manager Varden Dyer implied of the second step of the 'grievance procedure that the Company's management was denying TA assignments to Fife be- cause of her protected union activities as a steward, rep- resenting unit employees. At the trial he fully revealed this unlawful motivation. In the 15 May 1985 grievance meeting he,complained about the "129 grievances last year" (about three-fourths of the total) that surfaced with Fife's name on them. Ad- dressing his remarks to her he stated (G.C. Exh. 20 at 2- 4): There's always something wrong. You, are very classy lady & have a tremendous amount of experi- ence, but you got off track. I don't know if you got off track or Co. pushed you off. 100 reps in RASC. Of the 100, you are in top 3% when it comes to class and ability to carry yourself well. Yet a stigma . . . is attached to you. He explained at the trial (Tr. 624) that by "classy lady" he meant that "Mari makes a very attractive appearance. She dresses well She's always neat. She's attractive She creates a very nice appearance as opposed to a number of individuals who show up in jeans and sweatshirts from a physical appearance standpoint." Dyer disclosed in his testimony that the Company had decided that Fife's being available for TA assignments in the future was not enough To TA she must first forsake her role as the most popular union steward He acknowledged (Tr. 621) that Fife promised in the 15 May 1985 grievance meeting to alter her schedule "if you'll consider TA'ing me" and did not dispute her cred- ited testimony (Tr.40) that she told him, "Tell me which day I can TA, I'll be there." He testified (Tr 621, 624- 625, 630-631): [She said] I will alter my schedule if you 'll con- sider TA'ing me, and my response to that is absolute- ly no. . . . . You are missing an inordinate amount of time. Anyone that misses . would not be consid- ered for TA. Q. During this grievance . . . did you talk about the number of grievances in the district that were in some way associated with Mari Fife? A We talked about the inordinate number of grievances that the district was experiencing. Yes. . . . [W]e were trying to find a solution to an in- ordinate number, of grievances and I'm talking about over 100 as opposed to other districts that had [grievances numbering] in the low teens Q. . In the grievance meeting at the second step . did Mrs Fife offer to find someone to cover her union duties? A. I'll accept that Q. [Was your response] something like "I have people working seven and a half hours per day. Mari you decide what you want to do, then you decide what is more important to you . A. That may have been stated. Yeah, I'll accept that too [Emphasis added ] He, in effect, admitted that he was giving her a choice: to decide whether TA assignments of grievance handling was more important to her. Dyer also admitted at the grievance meeting that Fife had a stigma about her He testified (Tr. 622, 630): A. I meant that when I came into the district [in January 1985] there was just an aura or an air of negativism that had been passed on by my predeces- sor John Moore, that there was . . awkwardness and negativism surrounding Mari Fife. Q.. . . Could you tell us what your predecessor did say to you about Mrs. Fife when you came intc. that position? A Yeah. We - went over a number of areas and when he got into the "Well, how are your union re- lationships" and the comment was "well we've had a huge number of grievances" and words to the effect, this is general , but "you'd better watch out for Mari Fife" and "really, why is that?" "Well I think you're going to find that there is going to be 596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD alot of grievances at the drop of a hat" and" "dust get ready for it " Contrary to Dyer's denial that the stigma arose in his mind from Fife's being a union steward, his other quoted testimony revealed that it did. (He appeared by his de- meanor on the stand to be willing to give any testimony that might help the Company's cause.) Other defense witnesses had given disputed, conflict- ing testimony about Fife's meeting the eight criteria. An example is their testimony about whether she lacked the criterion "flexibility," which is defined in the manage- ment potential appraisal plan (R Exh. 3 at 1) as "the ability to change or vary one's approach or strategy for the purpose of accomplishing a task." At the April 1985 first-step grievance meeting Assistant Manager Neal first informed Fife (R Exh 29 at 8) that flexibility is "being able to vary approach You don't seem to be able to handle changes in assignment or directions. It relates to your approach with people Then there is interaction with other employees." Later (at 10) Neal told Fife. "Flexibility-I'm not saying that you are not flexible but I would like to see a little more flexibility in your inter- actions with management and co-workers. Being willing to give them the same cooperation that you would expect if you were in that situation." Managers Eileen Booker and Rosemary McCarthy at- tributed two other meetings to flexibility. Booker (who gave false testimony about applying the eight criteria to Fife at a January 1985 meeting) claimed (Tr. 260-261) that Fife was lacking flexibility by giving last-minute no- tifications that she was taking time away, from the office for union activity. McCarthy (who then supervised RASC-12 and not Fife's unit, RASC-11, until July 1985) defined flexibility as the "ability to do something out of the norm," such as moving to an absent representative's position and "cleaning it up without being asked." She claimed (Tr 457) that several times-presumably some- time after July 1985, not when the charge and grievance were filed-Fife "could have volunteered to take over another position " She did not indicate whether this pur- portedly happened when Fife was caught up with her own work after often being away handling grievances. (Like Assistant Managers Gilda Rice and Yvonne Brooks, McCarthy appeared on the stand to be eager to put Fife in the worst, possible light) Former District Manager Dyer was the last defense witness called by the Company. Like other defense wit- nesses, he claimed that Fife failed to meet many of the eight management potential criteria. In fact, however, he belied much of their testimony that Fife's purported fail- ure to meet the criteria related to her performance on the job. He revealed that the Company instead disquali- fied her because of her activities as a union steward, filing and handling employee grievances. He began his testimony by denying (Tr. 611) any in- volvement in assigning TAs. He then revealed the Com- pany's concern over the nature of Fife's representation of employees in about three-fourths of the grievances at the second step of the grievance procedure (and gave still a different meaning to flexibility). He testified (Tr. 612- 614, 629)• A. Number of grievances that I personally han- dled would be 45, 50 grievances in that period of time [as district manager]. A. I would say approximately three quarters of the grievances Miss Fife participated in some fash- ion. Q. Having participated in the second step of those grievances at which Mari Fife was present, did you reach any conclusion concerning Miss Fife's potential to lead or be a manager? A. My conclusion was that Mari Fife had no po- tential to lead or to manage. , Q. Can you explain that a little more? A . I can think of maybe four or five [griev- ances] that went on to the third step [in] the bulk [of them] there were some accommodation. there has to be give and take on both sides. Not one single instance was there one iota of give on Mari Fife's part. Her mind was made up from the time we started the grievance procedure Q. What did that indicate to you? A. Well, it indicated to me complete lack of flexi- bility I could not visualize a person who had that type of mind set leading others There was, I think a lack of judgment on her part and a lack of maturi- ty Q. Did you have any questions about her objec- tivity? A I believe there was no objectivity that was displayed in front of me. Q. How about emotional stability? A . I believe that Mari used the grievance procedure as a self serving vehicle . a soap box approach, or a lengthy harangue how she'd been wronged by the Company and that may have nothing to do with Mart Fife. Q Did you reach any conclusion about her inter- personal skills? A I believe Mart is severely lacking in interper- sonal skills. Q. On what basis? Why do you say that? A. Just . . again back to leadership I think to lead you need to be a communicator, and I think I just saw . . no willigness to communicate at very frequent intervals, and that tells me something about the lack of ability to communicate A. . . By lack of communication . . skills in the grievance process, from my perspective Mari Fife was an albatross and a detractor not only from the Company's standpoint, but was a liability to the Union . . . whatever that issue might be could be tainted at any time by a tirade from Mart Fife in- volving a Mart Fife, be it real or imagined by the Company in year's gone by Q. . . What were these complaints that you seem to recall Miss Fife voicing? A. It was . . . the fact that she had not been TA'd Yes. CHESAPEAKE & POTOMAC TELEPHONE CO 597 JUDGE LADWIG• Are you saying that she brought up at various grievances the fact that the Company was discriminating against her because she had not been given a chance to be a TA? THE WITNESS Because she was a union steward. Yes - Union Steward Galery explained Fife's role in the grievance procedure. (She estimated that she accompa- nied Fife in the grievance meetings about 98 percent of the time) She testified (Tr. 823-824)- A. I didn't know the person Mr. Dyer was describ- ing [in his earlier testimony about Fife] because Mr. Dyer only gets to see me and Mari Fife in griev- ances. He doesn't have any interaction with us as people, and it is kind of hard for them to distinguish my role as a steward versus my role as an employ- ee. - - - [I]f we are in a grievance that involves a suspension or a termination Mari Fife cannot be flexible . she has to go with what her role is . . to defend that employee as best she knows how. However, on issues where Mari can be flexible Mari has proven to be flexible we have a lot of grievances that are settled. Mari is an intelligent and an articulate young woman and of course I didn't hear any of that [from Dyer] . . . . Mari is also an employee that tries to do her best for the Company . . [Em- phasis added.] I do not deem it necessary,to resolve which view of Fife's grievance handling is more accurate The issue is not whether Fife performed her protected union activity In its brief the Company virtually ignores Dyer's ad- missions It relegates most references to this testimony to three footnotes (fns. 23, 40, and 41) Then in its brief (at 56) it contends that' "the General Counsel did not prove that the Company linked Fife's grievance-handling ac- tivities to its decision not to select her as a TA." To the contrary, I find that the General Counsel did prove that linkage ' I find that the General Counsel has'made a prima facie showing that the Company discriminated against Union Steward Fife because she engaged in protected'union ac- tivity As found, the General Counsel has shown'that the Company' "contrived [the use of the eight management protential criteria] as an after-the-fact attempt to justify [its] decision not to select Fife as a TA." As early as 1983 Assistant Manager Roberts gave Fife's activity as a union steward ("always questioning [company] policy") as a justification for not giving her TA assignments In January 1985, several months before the Company con- trived the use of the eight criteria, Assistant Manager Maureen Rogers informed service representative Fogarty "you would need to have a pro-Company attitude" to be assigned as a TA. Then at the trial the Former District Manager Dyer, in effect, admitted that Fife must make the choice between continuing to serve as an active union steward and being given TA assignments. In his quoted testimony he clearly admitted that her grievance handling was a reason for the Company' s refusing to permit her to be assigned as a TA 11 G. The Company's Defenses 1 Principal defenses The Company contends that even if the General Counsel has made a prima facie showing that Fife's pro- tected conduct was a motivating factor in its decision not to select her to serve as a TA, the Company has carried its burden to demonstrate that it would not have given her TA assigments in the absence of her protected con- duct. The Company's first defense is that it declined to select Fife for TA assignments because she lacks man- agement potential As found, this belated lack-of-poten- tial defense, based on the purported use of eight manage- ment potential criteria, was "contrived as an after-the- fact attempt to justify the Company's decision not to select [her] as,a TA " I reject the defense as a pretext. The Company's second defense is that it declined to select her to serve as a TA because she is unavailable. I find that this is also'a pretext. The evidence is undisputed that she repeatedly assured the Company that she would be available and that her steward's work would be given someone else anytime she was, given a TA assignment. 2 Other defenses a In general Instead of simply relying on these principal defenses, the Company attempted to controvert its own evaluation system (which rated Fife's performance on the job as "Outstanding"). The purported justification, as stated in its brief (at 68), is that "Fife's Appraisals are less than comprehensive" and "do not reflect many of her objec- tive inadequacies " To demean this "Outstanding" employee's perform- ance the Company saved the SR (Service Representa- tive) Development Summaries, which record deficiencies found during the year but which are usually "destroyed at the end of the year" (Tr. 350), after the annual ap- praisal is made Then at the trial it called 10 of its man- agers and assistants managers as witnesses and presented evidence, from the development summaries, from the su- pervisors' notes or diaries (not recorded in the summa- ries), and from individual recollections as far back as 1979 or 1980. The Company had extensive records to draw from. Described as "a very regimented type" employer (Tr 665), the Company audits the work of service representa- tives five times each month (some by sit-ins and some by secretly monitoring the telephone contacts) and makes evaluations each month and each quarter. It takes all this information into consideration when making the year-end appraisals. In an obvious effort to build a case against Fife, the Company resurrected numerous incidents at the trial and reevaluated them to put Fife in the worst light. The result is 900-page transcript, much of it consisting of ac- 598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cusations -against the one employee, with explanations and denials - b. Failure to use company name Both at the trial and in its brief the Company has made a major issue of Fife's use of the greeting, "Mari Fife, may I help you?" without her finding some way to incorporate the company name. (The Company has never issued any written instructions either to, or how to, incorporate its name in the service representatives' opening statement when customers call in.) The evidence is undisputed' that employees have been trained to answer calls by stating their name (without the name of the Company) and that employees have done so for years. When Steward Galery was retrained in De- cember 1983'after returning'from being discharged, there was no change in her training. Her supervisor, however, stated that she preferred that Galery use the words "Bill- ing Office"-not the name of the Company-and since then Galery has answered the phone, " Billing Office, Ms. Galery " (Tr. 819-820.) In '1983, when Assistant Manager Roberts supervised Fife most of the year (as discussed above), he apparently approved the use of Fife's name without the name of the Company, as shown by the comment on Fife's 1983 annual appraisal that she "had 7 months of 100% ICQ" (G.C. Exh. 3). In Fife's 1984 annual appraisal (G.C. Exh 4) Assistant Manager Neal (with Manager Booker's ap- proval) gave her a nearly perfect 99.8 percent rating on incoming call quality, although stating that Fife "needs to strive to incorporate the company name in the open- ing statement." In a development summary on 1 May 1985 (R. Exh. 28) Neal gave Fife the perfect rating of "ICQ 100%," even though Neal again criticized her con- tinued failure to incorporate the company name in her opening phrases. It is obvious that Neal, having given Fife a perfect rating on telephone contacts, did consider the greeting, "Mari Fife, may I help you?" to be a seri- ous deficiency. - Fife's present supervisor, 'Assistant Manager Versie Harcum, wrote in a development summary on 18 July 1985 (R. Exh. 30): "`Mary Fife, how can I help you' is ok [emphasis added] but not consistent with criteria under established rapport," and on 24 October 1986 (R. Exh. 34) stated that the use of the company name is "not man- datory." Fife explained in her pretrial affidavit (Tr 92) that During my time under [Rice],. Neal, and [Versie Harcum], they have mentioned to me that they would prefer that I use the company name when answering the phone. They have always said they would prefer that I do this It has never been pre- sented to me as something I must do. I tell them this opening statement is too long and my way of answering the phone has been acceptable to other supervisors through the years I must assume that since they evaluated me as Outstanding, that this was not a major problem. On cross-examination she testified (Tr 91): Q. Isn't it a fact that . . . in this sworn statement, you indicated that, "During my time under [Rice], Neal and [Versie Harcum], that they mentioned to me they would prefer that I would use the compa- ny name when answering the phone " Did you make that statement? A. Yes. Q. And that, "they have always said it. They may have said it once or twice. You know, it wasn't a running count, but it-[her answer being inter- rupted by the counsel]. Fife appeared to be trying to answer accurately the number of times and what the three supervisors had told her (presumably at different times)- that they preferred she use the company name She did not testify that the three supervisors said this a total of only one or two times or that any of them told her to incorporate the name in her greeting. The Company paints a different picture in its brief The Company appears at least to imply that there was a mandatory requirement to incorporate the company name and that Fife may have been insubordinate. It as- serts in the brief (at 16-19) that Rice documented and reviewed with Fife . . . her repeated failure to identify the Company in her greeting to calling customers . , . .. Neal . . . instructed Fife, as had Rice, to use the Company's name in her greeting to the custom- er . . . . . . . Harcum documented on several occasions Fife's continued refusal to identify the. Company in her greeting to the customer [Emphasis added.] Then in a footnote (at 19 fn. 20) the Company miscon- strues Fife's testimony It asserts that In a sworn statement provided to the 'Board, Fife admitted that she had "always" been told by her su- pervisors to incorporate the Company's name into her greeting (Tr. 90-91). However, on cross-exami- nation, she' retreated from her sworn statement, claiming that she had been told to incorporate the Company's name only "once or twice" (Tr. 91) But the unrebutted testimony demonstrates the fallacy of Fife's ' . . testimony: on at least- five occasions, Fife's failure to use the Company's name' was docu- mented in SRDS [SR'Development Summaries] (R. Exhs. 15, 16, 28, 30, and 34). Curiously, Fife provid- ed no better reason for her obstinate refusal to heed the advice of her three supervisors than her belief that a greeting identifying the Company's name was "too lengthy" (Tr. 394-395) and that, in any event, the customer knew whom he was calling (Tr. 575). [Emphasis added.] Later in its brief the Company again ignores Fife's actual testimony that there were three supervisors (Rice, Neal, and Harcum) who stated their preference "once or twice," although this "wasn't a running count." It chal- lenged Fife's credibility, asserting in the brief (at 38) that CHESAPEAKE & POTOMAC TELEPHONE CO. 599 [Although Fife] admits that she was always told by her supervisors to use the Company's name in her greeting to the customer-a fact corroborated by at least five SRDS-she testified that she was only told to do so "once or twice" (Tr. 90). [Emphasis added.] This misstatement of the evidence does not enhance the persuasiveness of the Company's brief. Neither was Man- ager McCarthy's credibility enhanced when she ignored her assistant manager Harcum's statement in the 24 Octo- ber 1986 development summary (R. Exh. 34) that the use of the company name was "not mandatory" and claimed at the close of the trial (Tr. 886): With divestiture the customer became increasingly confused and increasingly angry at the complexity of his telephone service. . . It became absolutely necessary to tell that customer you have reached the business office of C&P Telephone Company and we can help you. I consider this testimony an afterthought, given in McCarthy's continuing effort to put Fife in the worst possible light. I infer that if the Company had believed at the time that the continued use of "Mari Fife, may I help you?" was serious deficiency or insubordination, it would have rated her telephone contacts lower than "Outstanding " I find that the omission of the company name was not a factor in the Company's decision not to permit Fife to be assigned as management relief c. Multiple other defenses Despite the evidence to the contrary, the Company contends that Fife had never served as a TA. It relies on Assistant Manager Brook's claim that to her knowledge, Fife did not TA in 1979 and that Fife "expressed that she hasn't been able to TA" (Tr. 484). It ignores Brooks' admissions on cross-examination (Tr. 504) that she could not honestly say that Fife stated she had never TA'd The Company also relies on former Manager Thomas Miller's denials (Tr. 521-523), but I find that Miller was in error. Fife distinctly. remembers the circumstances of her TA'ing in the 1970s (Tr. 689-692) The Company does not dispute that it used TA assignments in the 1970s as a development tool and that Galery worked as a TA before becoming a steward. The Company's brief argues that Fife had many pur- ported deficiences despite her repeated "Outstanding" appraisals. The Company contends (at 16-17) [Assistant Manager] Rice, Fife's immediate supervi- sor from late 1983 to June 1984 (Tr. 334), testified that, despite Fife's over ten years as a service repre- sentative, Fife evidenced a lack of familiarity with routine service representative functions, a disregard of company policies and an inability to perform her work in a timely fashion (Tr. 339, 369) Specifically, in several SRDS [SR Development Summaries] pre- pared by Rice during late 1983 and the first quarter of 1984, Rice documented and reviewed with Fife- an admittedly "experienced service representative" (Tr 663) and a self-proclaimed "expert in handling the referrals" (Tr. 664) . . . her failure to handle ac- counts in a timely manner (R. Exh. 8; Tr. 343-345); her failure to make required notations on documents and referrals (id ); her failure to request deposits and update credit on accounts (R. Exhs. 8 and 9; Tr. 347-349); and her disregard of the Company's posi- tion management guidelines (R. Exh. 10; Tr. 352- 355). In a footnote the Company acknowledged that "Fife filed a grievance demanding that her first quarter audit be treated as `diagnostic' and disregarded for purposes of her 1984 Appraisal," in which she was rated "Outstand- ing " , Continuing, the brief (at 17-18) contends: Fife's supervisor from' June 1984 to July 1985 (Tr. 526), Barbara Neal, also observed and covered with Fife numerous incidents involving her failure to comply with company procedures. In SRDS pre- pared in 1985, Neal explained to Fife, as had Rice, the proper procedure for noting deposits on refer- rals (R. Exh 27 and 27a, Tr. 542-545) . . and doc- umented, as had Rice, Fife's failure to handle ac- counts in a timely manner (R. Exhs. 26 and 26A; Tr 534-535). The Company ,ignores Neal's admission that "I expressed to Mari that I was not holding her accountable and could not hold her accountable-for work on, the desk when she was not there" (Tr. 439). Moreover, Fife's per- formance was rated "Outstanding" in 1985 as well as in 1983 and 1984. Continuing further, the Company contends (at 18-19): Similarly, Versie Harcum, Fife's supervisor from July 1985 to the present (Tr. 573), prepared, and re- viewed with Fife, SRDS documenting Fife's contin- ued noncompliance with the company procedures. Thus, SRDS prepared by Harcum in 1985 and 1986 documented, inter alia, Fife's adamant refusal to re- spond to customer inquiries in accordance with company procedures (R. Exh. 30; Tr. 574-578) ["Customers claims she had paid her bill. Mary fol- lowed with, "What's your telephone number?"-in- stead of first stating that she was "willing to help that customer"]; her insubordinate refusal to open her light when scheduled and requested by a super- visor to do so (R. Exh 31; Tr. 578-582) [referring to a surprise document, never before shown to Fife (Tr 757)]; her' repeated failure to comply with the Company's [new] "Sell Service" procedures (R. Exhs. 32, 33, 34 and 35) . . her failure to update credit on accounts (R. Exh. 34); and her mistreating of a customer (R Exh. 33; Tr. 592-595) Despite'this effort to build a case against Fife, Assistant Manager Harcum rated the quality of Fife's performance "Outstanding" both in 1985 and for the first 9 months of 1986, the period covered by these development summa- ries. Again the Company is trying to controvert its own evaluation system. - 600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Later in its brief the Company goes even further. It misstates the evidence (at 59), contending that "Fife is viewed by her supervisors as an employee determined to "beat the system," but citing only the dubious testimony of Asssistant Manager Brooks (Tr. 507). It contends that Fife "commands little respect among her, peers," con- trary to the fact that she is the most popular union stew- ard. It contends (at 61-62) that Fife's work "piles up" (Tr 93); her work is often untimely handled (R. Exhs. 8 and 26), and her desk fails to comport with the Compa- ny's position management guidelines (Tr. 274-275; R. Exh 10, G C. Exh. 4) These are either references to her being away from her desk handling grievances, even though she is not accountable for work on her desk when she is not there (Tr 539), or to dubious testimony by Manager Booker, who gave fabricated testimony about the eight management appraisal criteria being ap- plied to Fife in a January 1985 meeting of supervisors It also contends in the brief (at 59) that Fife was insub- ordinate to Assistant Manager Brooks. This was a disput- ed 1985 incident, which did not detract from her "Out- standing" rating that year. Moreover, this incident illus- trates why another supervisor, Assistant Manager Neal, gave her the praise in her 1984 annual appraisal (G.C. Exh. 4): "Mary understands the importance of giving quality customer service" and "demonstrates a genuine concern for the customer's problem." The Company's own foul-up resulted in a customer having to make a second $100 deposit to get his service restored Fife went to much effort to get the customer's refund, which he needed, but the supervisor failed to follow through and the refund was further delayed. After finally getting a refund, the customer called back and thanked Fife (Tr. 738-744,824-825) The Company further contends (at 62) that Fife "lacks dedication," has been tardy or missed grievance meet- ings, once came unprepared for an oral presentation on a training bulletin, failed to attend an awards ceremony to present several awards, "scheduled elective surgery on the eve of an anticipated strike, scheduled a vacation that conflicted with her work on the United Way cam- paign, and deliberately scheduled vacation days that con- flicted with a seminar for supervisors and stewards. Ig- noring the circumstances and opposing evidence, the - Company clearly is attempting to build a case against Fife. Still further in its brief (at 63) it contends that Fife does "just enough to get by" and no more, citing testi- mony (Tr 312-313) by Booker, the manager who gave the fabricated testimony. It then contends that Fife avoids her "fair share" of the work, citing dubious testi- mony. (Tr. 467-468) by Assistant Manager Brooks con- cerning 1979 or 1980. Even though Assistant Manager Neal (as quoted above),stated in the 12 April 1985 grievance meeting (R Exh. 29 at 7): "I do not doubt, as I have expressed to Mari, her leadership potential," the Company concludes in its brief (at 64) that "Fife does not now-nor has she ever-fit the bill" to TA; that she has "numerous and ob- vious shortcomings"; and that she."displays no manageri- al potential." The brief closes (at 72) with the declaration: Fife is utterly lacking [emphasis added] in this poten- tial [to manage and' lead.] I find that these additional defenses are further pre- texts for discriminating against Fife -because of her pro- tected union activity. H. Concluding Findings The Company has written a misleading brief. In an effort to win at all costs, it has vilified an,able, ambitious, and loyal employee whose work its own evaluation system has repeatedly rated "Outstanding " In the brief the Company devotes 10 of the 73 pages to arguing its frivolous contentions that this case should be deferred to the grievance-arbitration, procedure, which obviously does not encompass the dispute In doing so it repeats some of the misleading (if not falsi- fied) representations to the Board in a motion for sum- mary judgment and supporting memorandum (raising questions of propriety on the part of its counsel). The complaint alleges that since about March 1984 the Company refused to treat Union Steward Fife "as eligi- ble for appointment to' a temporary supervisory posi- tion," discriminating against her because of her union ac- tivities in violation of Section 8(a)(1) and' (3) of the Act. The Company contends that she does not have manage- ment potential and is unavailable for the TA assignments as management relief because of the amount of time off the job handling employee grievances: As found, these contentions are pretexts. The Company contrived the use of eight management potential criteria as an after-the-fact attempt to justify its decision not to select Fife as a TA, despite her previous TA assignments before she became a union steward. Moreover, after various defense witnesses gave disputed, conflicting testimony about whether Fife met the crite- ria, the former district manager revealed that the Compa- ny was refusing to give her TA assignments because of her grievance handling and further, that the Company would not "TA" her as long as she is an active union steward In an effort to win at all costs, the Company attempted to controvert its own elaborate evaluation system by res- urrecting numerous incidents in the past several years, reevaluating them to put Fife in the worst possible light, and reciting them in the lengthy brief, usally without ac-' knowledging the circumstances, explanations, or denials. The result is much the same as the picture of Fife paint- ed by one defense witness: the picture being beyond rec- ognition ("I didn't know the person [he] was describ- ing"). Contrary to the degrading picture the Company paints in its brief, the Company's own evaluation system- which I consider more persuasive-has given the quality of Fife's performance an outstanding rating in 1983, 1984, 1985, and the first 9 months of 1986 (before trial). I find it clear (1) that the General Counsel had made a prima facie showing that a motivating factor in the Com- pany's refusal to select Union Steward Fife for TA as- signments was her protected union activity and (2) that the Company has failed to rebut the prima facie case by CHESAPEAKE & POTOMAC TELEPHONE CO carrying its burden to demonstrate that it would have re- fused to select her in the absence of this protected con- duct Wright Line, 251 NLRB 1083, 1089 (1980), enfd 662 F 2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U S. 393 (1983). I find that since March 1984 (the earliest date alleged in the complaint the Company (1) has denied Mari Fife temporary assignments as management relief because of her protected concerted activity as a union steward in violation of Section 8(a)(1) of the Act and (2) has dis- criminated against her in this condition of employment to discourage union membership, and that this disparate treatment of her "is likely to discourage participation in union activities," Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 700 (1983), in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW By discriminating against Mari Fife by refusing to give her temporary assigments as management relief because of her protected union activity as a steward, the Compa- ny engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily refused to give a union steward temporary assignments as manage- ment relief because of her protected union activity, it must make her whole for the lost earnings, plus interest, as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ' 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 ORDER 601 The Respondent, the Chesapeake and Potomac Tele- phone Company, Washington, D C., its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discriminating against any union steward in tempo- rary assignments as management relief because of pro- tected union activity (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Mari Fife whole for the loss of earnings suf- fered as a result of the discrimination against her, in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to its unlawful refusal to grant her requests for the temporary assign- ments and notify her in writing that this has been done and that the refusals will not be used against her in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facilities in Washington, D.C., copies of the attached notice marked "Appendix "2 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 2 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "