Metropolitan Life Insurance Co.

556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Metropolitan Life Insurance Company and Local 888, United Food and Commercial Workers International Union, AFL-CIO. Case 29-CA- 12462 April 20, 1988 DECISION AND ORDER BY MEMBERS-JOHANSEN, BABSON, AND CRACRAFT On November 9, 1987, Administrative Law Judge Raymond P. Green issued the attached deci- sion. The General Counsel and the Respondent 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 conclusions2 and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Metropolitan Life Insurance Company, Staten Island, New York, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Offer Jean Santangelo immediate and full re- instatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings and other benefits she would have re- ceived but for the discrimination against her in the manner set forth in the remedy section of this deci- sion." The judge erroneously reported the citations to Our Way, Inc., 268 NLRB 394 (1983), and T.R.W. Bearings, 257 NLRB 442 (1981). 2 In adopting the judge's conclusion that the Respondent violated Sec. 8(a)(1) of the Act by instructing employees not to solicit for the Union on company premises, Member Babson considers it unnecessary to pass on the judge's finding that because the instruction was given in relation to a conversation between employees at the coffee machine, it was in- tended and understood to bar solicitation during employees' breaktmaes. In Member Babson's view the instruction was overly broad regardless of whether the coffee machine was located in the employees' work area or break area. 3 The judge ordered that the Respondent make Jean Santangelo whole for any loss of earnings she suffered as a result of the discrimination against her but inadvertently failed to order that the Respondent make her whole for any loss of benefits she may have suffered, including but not limited to any medical expenses incurred by her or her family mem- bers who would have been covered under the Respondent's medical in- surance policies We shall modify the recommended Order accordingly. 2. Substitute the attached notice for that of the administrative law judge. 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge our employees because they join or assist Local 888, United Food and Commercial Workers International Union AFL- CIO, or any other labor organization. WE WILL NOT order or direct our employees not to engage in union solicitation on our premises or promulgate any rule to that effect. WE WILL NOT interrogate our employees about their union membership or activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the rights guaranteed them by Section 7 of the Act. WE WILL offer reinstatement to Jean Santangelo and make her whole for any loss of earnings and other benefits she may have suffered because of our discharge of her on May 9, 1986. WE WILL remove from our files any reference to our discharge of Jean Santangelo and notify her in writing that this has been done and that the dis- charge will not be used as a basis for any future personnel action against her. METROPOLITAN LIFE INSURANCE COMPANY Amy Krieger, Esq., for the General Counsel. Clifford C. Ryan, Esq., for the Respondent. Louis Peckman Esq. ( iladeck, Lewis, Elias & Engelhard), for the Charging Party. 288 NLRB No. 69 METROPOLITAN LIFE INSURANCE CO. 557 DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. This case was heard by me on various days in April and July 1987. The charge was filed on 11 June 1986 and the complaint was issued on 31 July 1986. In substance the complaint alleges that: (1) about 16 December 1985 Re- spondent by District Sales Manager Joseph DeVito, in- structed employees to refrain from engaging in any union activities at its Staten Island office; (2) about 20 March 1986 Respondent by DeVito threatened employees with unspecified reprisals to induce them to refrain from en- gaging in any activities on behalf of the Union; (3) about 10 April 1986 Respondent by Robert Pisarra, its sales manager, interrogated employees and created the impres- sion that their union activities were under surveillance; and (4) on 9 May 1986 Respondent discharged its em- ployee Jean Santangelo beacause of her activities on behalf of the Union. Based on the entire record in this case, including my observation of the demeanor of the witnesses, and after considering arguments of counsel, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent admits and I find that it is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also conclude that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. OPERATIVE FACTS Jean Santangelo was hired as an insurance agent in July 1972 and she has continuously worked in the Staple- ton office that is located in Staten Island, New York. Her job is to sell insurance and her productivity is meas- ured by what are called first year commissions. In es- sence a first year commission is the amount of commis- sion an agent gets during the first year after a policy is sold by the agent. (Agents continue to get smaller amounts of commissions on the policies they sell after the first year.) By way of background, I note that the Union has made an ongoing effort to organize employees of the Company's sales offices. In the Brooklyn region, of which the Stapleton office is a part, 11 of 22 offices have been unionized. On 14 January 1985 Joseph DeVito, the district sales manager, wrote a memorandum regarding Santangelo to Alexander Schachter, the regional sales manager. This read: The above named Representative has performed below my expectations or the Company's. Mrs. San- tangelo started with Metropolitan in 1972 her FYC for 1984 was 6772 on 58 policies placed. Her first year lapse rate is 18.49 and a persistency of 73%. More than 50% of her business came from P&L, which she has a loss ratio of 300%, highest in the District. I have advised her to stop writing Proper- ty and Liability. The following Representatives had less FYC in 1984 than Mrs. Santangelo. FYC Michael DeFillippo- new Sales Rep. started in 5817 mid 1984 Salvatore Vaglica- on disability 5 months in 5553 1984 Richard McNeil- I am also requesting notice 5200 for him on a separate letter Dennis Torricelli- will be retiring April 1985 3877 Eva Strulowitz-2852 on leave of absence for 6 months in 1984 Mark Furman-889 new Rep. started Nov. 1984 This is the second year that Jean Santangelo has not been able to produce over 7000 FYC. I respect- fully request that the Region take the necessary steps to put Sales Representative Santangelo on formal notice. Please advise if additional information is needed. I note that by July 1987, Santangelo would have become eligible for reduced pension benefits under the Company's plan based on 15 years of continuous service and that the fact that she would, at that time, be 55 years old. Robert Pisarra, Santangelo's direct supervisor, testi- fied that as far back as 1984 she had told him that she intended to retire as soon as possible; that she was tired of the business. On 12 February 1985 DeVito again wrote to Schachter as follows: This letter supplements my letter to you on Janu- ary 14, 1985 in which I requested the Regional office to take the necessary steps to put Sales Rep- resentative Santangelo on formal notice. Sales Representative Santangelo has had Quarter- ly meetings to review her productivity and has been involved in a Training To Improve Productivity Class which I personally conducted. To date no im- provement has been seen. To my knowledge there have been no health or personal problems to cause this lack of production. On 11 March 1985 Santangelo was put on notice (i.e., probation). The letter from Schachter read: You have been in the Company's service since July 24, 1972. At the time of your appointment it was made clear to you that the most important phase of your operations would be the sale of insur- ance to the public. Since that time you have been given substantial training in that direction with the hope and expecta- tion that you would acquire the necessary skills and knowledge to meet your selling responsibilities. District Manager DeVito has already directed your attention to the fact that your sales accom- plishments to date have been very unsatisfactory, 558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and that there appears to be little prospect of future improvement. In accordance with his recommenda- tion, with which we are in agreement, we wish to inform you that unless there is a substantial im- provement in your sales accomplishments during the next three months, we shall be compelled to consider termination of your employment. We sincerely hope that you will realize the gravi- ty of the situation and that during this period of time you will demonstrate, by bringing about the necessary improvement, that you possess the ability and desire to succeed as an Insurance Underwriter. According to Santangelo she first became involved in union activity after being placed on probation. Thus, she testified that she went to a union meeting for the first time on 6 June 1985 with 9 or 10 other employees. She states that after this meeting she talked to her fellow em- ployees about joining the Union and solicited union cards from at least two employees. Michael Obler, a former employee, credibly testified that shortly after the aforementioned meeting, he was ap- proached by DeVito who asked if there had been a union meeting. Obler also testified that a few days later, Supervisor Pisarra asked him why he wanted a union. Obler states that he replied, "because of job security." Employee William Breggren testified that he and San- tangelo were the employees who distributed union au- thorization cards. He also testified that sometime in 1985 DeVito called him into his office and in the presence of Sales Manager Vaglia, told him that the Company did not need or want a union. According to Breggren, DeVito told him that he should desist'from approaching other people about the Union. This was, according to Breggren, the first of two conversations he had with DeVito regarding union solicitation. On 7 August 1985 DeVito wrote to Schachter regard- ing Santangelo as follows: The above named Sales Representative has been on probation since 3/18/85. For the period begin- ning this date her activity is as follows: 7 applica- tions submitted for $1470 F.Y.C. and 9 applications placed for $2689 F.Y.C. / do see some improvement in Jean's activity and she does give me some indication that she wants to continue her career with Metropolitan. Her activity and participation in the business has increased. I do recommend at this time that her employ- ment be continued, but monitored monthly to make sure that her progress continues. On 8 August Schachter wrote to Joseph J. Guiffre, a senior vice president for the eastern territory, as follows: The attached file recommends the continuance of the above named sales representative. Mrs. Santan- gelo was placed on official Company notice in March, 1985. 1 No unfair labor practice allegations were made concerning the two conversations reported by Obler, presumably because they occurred out- side the 10(b) period. During the 13 week notice period she wrote 7 policies for $1,470 of first year commissions and placed 9 policies for $2,689 of first year commis- sions. Her overall placings as of July 29, 1985 are $4,514. District Sales Manager DeVito has recom- mened the continuance of Mrs. Santangelo as he has seen improvement in her activity and productivity. In view of the above information, I concur with his recommendation with the understanding that if her sales production does not continue to improve, she may be terminated without the benefit of a fur- ther notice period. On 3 September Schachter wrote to DeVito as fol- lows: This will reply to your letter of August 7, 1985, which recommended that Mrs. Santangelo's em- ployment with Metropolitan be continued. I have no objection at this time to continue Mrs. Santangelo's employment, however, with the under- standing that if no substantial improvement is con- tinued, she would he terminated without benefit of a further notice period. Please discuss this with Mrs. Santangelo and place a memorandum of record of your discussion in Mrs. Santangelo's file and forward a copy to my office. It is also important that you continue to monitor Mrs. Santangelo's production advising my office accordingly. Thereafter in September Santangelo was told that she was taken off probation. According to DeVito, he told her that, although she was off probation, she could, in the future, be discharged if her production was too low. It appears that the second meeting held between the Union and employees at the Stapelton office occurred on 20 March 1986. 2 This was attended by, among others, Santangelo and Breggren. Santangelo's supervisor, Pi- sarra, concedes that she told him of her attendance at this meeting. He asserts, however, that he did not relay this information to DeVito. According to Breggren a couple of days after the 20 March meeting, he was approached by DeVito who told him not to bother news sales representatives about the Union; that they were not interested, and did' not need it. He states that DeVito reminded him that DeVito had told him before to desist from approaching his sales rep- resentatives. Devito testified that he had a conversation with Breg- gren about soliciting other employ'ees sometime in late 1985 or early 1986. He states that on one occasion he came out of his office and saw Breggren talking to Ira Gutman at the coffee machine. DeVito asserts that as he approached, Breggren walked away, whereupon DeVito asked Gutman if there was a problem. Gutman replied that he did not want any problems, that his productivity was low, and that Breggren had spoken to him about a 2 'Breggren testified that he signed a union card at this meeting. In cor- roboration of the date, Breggren's signed union card was received in evi- dence. This card was dated 20 March 1986. METROPOLITAN LIFE INSURANCE CO. 559 union meeting. According to DeVito, he then called Breggren to his office where he told him that any talk about a union should not be done during working hours on the premises. On 31 March 1986 DeVito wrote to Schachter as fol- lows: On 3/18/85 Mrs. Santangelo was put on proba- tion due to poor performance, she showed during this period of time a desire to increase her produc- tivity and continue her career. I recommend[ed] at that time that she be taken off probation and in your 9/3/85 letter you agreed. Mrs. Santangelo's performance again has gone below Company FYC goals. For the last 4 quarters she has placed $8013 F.Y.C. as of 3/17/86. During the last 13 weeks she has written $3000 in F.Y.C. In view of this performance I recommend Mrs. Santangelo be terminated. On 2 April, Schachter wrote to Guiffre about Santan- gelo as follows: I have attached for your review a file recom- mending the termination of the above named sales representative for her unsatisfactory sales perform- ance. Mrs. Sanatangelo Was placed on official Compa- ny notice in March of 1985, and her continuance was recommended in August, 1985. At that time, the District Sales Manager advised the sales repre- sentative that since there had been some improve- ment in her performance, her employment would be continued. He also advised her that if improvement did not continue, she would be terminated without the benefit of a further notice. The sales representative completed 1985 with a total of $8,734 of first year commissions. As of Feb- ruary, on the company's low producer report, she is the second lowest producer, with $8,131 of first year commissions. The lowest producer, Mr. McNeil, had been recommended for termination, but is presently out on disability. As of March 24, 1986, the sales representative has placed only 8 policies for $2,096 of first year com- missions. Her in mill bound business is 2 applica- tions for $676 of first year commissions. As there are known health or personal problems inhibiting this sales representative's performance, I am in agreement with District Sales Manager DeVi- to's recommendation to terminate Ms. Santangelo's employment. From 1 to 9 or 10 April, Santangelo was on vacation. She credibly testified that on her return to the office Pi- sarra, at their weekly meeting, said, "You're not starting with the Union again, are you?" According to Santan- gelo she said, "You know I went to two meetings," to which Pisarra nodded his head. On 9 May Santangelo was told by Devito that she was being discharged for low production. Contemporaneously with events at the Stapleton office described above, the Union was engaged in organizing efforts at a number of the Company's other New York area offices. Thus, from 31 March through 15 July 1986 the Union filed five representation petitions. Although it is not contended that the Company violated the Act during these other organizational campaigns, the Compa- ny did respond with a campaign of its own to convince employees to vote against union representation. Discussion The evidence establishes that DeVito, the district sales manager, did tell employee William Breggren not to so- licit other employees about the Union. According to Breggren, this occurred on two occasions, once at some unspecified time in 1985 and the other around 20 March 1986. DeVito asserts that there was only one such conversa- tion that occurred in December 1985 or January 1986. The Respondent argues in its brief that the entire trans- action therefore probably occurred outside the Act's 6- month statute of limitations set forth in Section 10(b). The Company also asserts that even if the event falls within the 10(b) period, DeVito's statement was not vio- lative of the Act. Although Breggren's testimony about when the first of the alleged conversations with DeVito occurred is exces- sively indeterminate, there is little doubt in my mind that the second was around 20 March 1986, a date well' within the 10(b) period. In this regard the testimony shows that the conversation was precipitated when Breg- gren asked employee Ira Gutman to go to a union meet- ing.3 As I am convinced that a union meeting was in fact held on 20 March (confirmed by the date on the union card signed by Breggren), I am equally convinced that the conversation between DeVito and Breggren oc- curred near that date. The only significant difference between Breggren and DeVito concerning their respective versions of the con- versation is that in the former's view, DeVito simply said to stop bothering new sales representatives about a union, whereas DeVito claims that he told Breggren not to solicit for the Union on company premises during working hours.4 Based on the record I would conclude that DeVito's statement to Breggren about 20 March was violative of the Act even if I credited DeVito's version of it.5 In Our Way, Inc., 268 NLRB 394 (1983), the Board, in a case discussing no-solicitation rules, overruled T.R. W Bearings, 257 NLRB 442 (1981), and returned to the doc- trines enunciated in Esse.T International, 211 NLRB 749 (1974). It stated, inter alia, at 394-395. Although the Board did not initially distinguish be- tween rules using "working time" and rules using 3 Gutman places this in 1986. 4 In neither version is there evidence to support the allegation in the complaint that about 20 Match 1986 DeVito threatened employees with unspecified reprisals to induce them to refrain from engaging in union ac- tivities. As there was no other evidence to support such an allegation, I recommend that it be dismissed. 5 Based on the entire record mcluding demeanor considerations, I would tend to credit Breggren's more unadorned version of the conversa- tion. 560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "working hours," in Essex International, 211 NLRB 749 (1974), the Board made clear that rules using "working hours" are presumptively invalid because that term connotes periods from the beginning to the end of work shifts, periods that include the em- ployees' own time. The Board also held, in contrast, that rules using "working time" are presumptively valid because that term connotes periods when em- ployees are performing actual job duties, periods which do not include the employees' own time such as lunch and break periods. Therefore even assuming that I credit DeVito's testi- mony, the rationale of Our Way, Inc. would, it seems to me, compel' the conclusion that the Respondent violated the Act by directing its employees not to engage in union solicitation on company premises during working hours. Moreover, as the instruction by DeVito was given in relation to a conversation between Breggren and Gutman at the coffee machine, it seems to me that the directive was intended and understood to bar solicitation during employee's breaktimes. See Marian Lewis, Inc., 270 NLRB 432 (1984). Regarding the allegation concerning Santangelo's dis- charge, it must be noted that she initially was put on "Notice" (i.e., probation) in 1985 because of her low, sales record. In fact no contention is or could be made that this action by the Company was motivated by her union activities because at that time neither she nor anyone else in the Stapleton office had engaged in union activities. The issue here is whether her subsequent dis- charge in May 1986, after having been taken off proba- tion (in September 1985), was because of her resumed low productivity or because of her activities on behalf of Local 888, United Food and Commercial Workers Union, AFL-CIO. In the circumstances of this case the resolution of this issue will depend on the allocation of the respective burdens of proof set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied 495 U.S. 989 (1982); and NLRB v. Transportation Management Co., 462 U.S. 393 (1983). Santangelo did not begin to participate in any union activity until June 1985, after she had been placed on probation. She thereafter was taken off probation in Sep- tember 1985 because her sales, as measured by her first year commissions (FYCs) had gone up somewhat. Santangelo next attended a union meeting on 20 March 1986. As noted above, it was around this time that DeVito instructed Breggren not to engage in union solicitation on company premises. There also is evidence that the Company became aware of Santangelo's in- volvement with the Union about this same time. Thus, Pisarra, Santangelo's direct supervisor, states that she told him of her attendance at the union meeting. On 31 March DeVito made a written recommendation to Schachter that Santangelo be fired. This was agreed to by Schachter on 2 April and became effective on 9 May 1986. Given the timing of DeVito's recommendation to dis- charge Santangelo (31 March) in relation to her attend- ance at the union meeting on 20 March, this leads to a strong suspicion that the two events are connected. When one couples this timing with the evidence showing contemporaneous company knowledge of Santangelo's union activity plus evidence of an unlawful no-solicita- tion directive by DeVito, this leads me to conclude that the General Counsel has made out a prima facie case that Santangelo's discharge was motivated by discriminatory reasons. Having concluded that the General Counsel has ful- filled her burden of making out a prima facie case con- cerning Santangelo's discharge, the burden then shifts to the Company to prove by preponderance of the evidence that it would have discharged her absent her union activ- ity. Wright Line, supra; Transportation Management, supra. This, in my opinion, the Respondent has failed to do so. Based on the documentary evidence, it is clear that had Santangelo's sales performance continued at her postprobation rate, she would not have met the Compa- ny's goal of $12,000 first year commissions for 1986. There also was testimony to the effect that, in the past, there have been sales agents who, after having been put on probation, left the Company either voluntarily or by way of discharge.6 Given the size of the Company, plus the testimony of the witnesses in this case, I can only assume that there have been a fairly sizeable number of sales agents who, over the years, have been placed on probation for low sales production. 7 Yet the Company did not produce any hard evidence (by way of business records) to show that persons in similar situations as Santangelo have been dis- charged. Indeed, to the extent that records were pro- duced for the Stapleton office, 8 they indicated that an- other employee with a very similar record as Santange- , lo's was not discharged. In March 1985 Santangelo and Richard McNeil, also from the Stapelton office, were put on notice based on their low 1984 production. Their respective FYCs were $5772 and $6590. 9 As noted above, Santangelo was taken off probation in September 1985. In McNeil's case, he apparently went on disability leave and has not resumed work at the Company. At the end of 1985 Santangelo had FYCs of $8734. During the same period Ira Gutman had FYCs of $8261 and Timothy Foley had FYCs of $8370. In early 1986 both Gutman and Foley were put on notice." As of the "The testimony of Pisarra indicated that an agent, particularly a new agent, who has FYCs at Santangelo's level, simply cannot support him- self or herself. This is, in fact, the reason that Ira Gutman resigned after he had been placed on probation. Agents with many years of experience can, however, manage to get by with low FYCs if they have accumulated a backlog of yearly commis- sions from policies sold in the past. 7 Testimony of past probations was given by Pisarra, Breggren, and Provenzano. The latter testified about his experience dealing with proba- tions at various unionized offices in New York. However, all of the testi- mony was very vague and generalized 8 Such records were subpoenaed by the General Counsel. 9 Several other agents in this office had even lower sales records but were not put on notice. There were, however, extenuating circumstances in each instance. " Ira Gutman was a relatively new sales agent having been hired on 1 March 1984 Foley, on the other hand, had been hired in September 1971. His tenure was therefore similar to Santangelo's. METROPOLITAN LIFE INSURANCE CO. 561 week ending 31 March 1986 (when DeVito recommend- ed Santangelo's discharge), her FYCs from the beginning of the year to date were $2946, Gutman's were $2450, and Foley's were $2375. At the end of 1986 the FYCs for Gutman and Foley respectively were $8926 and $9435. Both figures were far short of the Company's goal for 1986 of $12,000. Subsequently Gutman resigned in January 1987 be- cause he was not earning enough money to support him- self. By 23 March 1987 Foley's FYCs were $2220 which, projected on a yearly basis, would have been about $9000. (The figures through 23 March 1987 were at least figures offered into evidence.) At the hearing on 3 April 1987 DeVito asserted that Foley would be discharged in the near future. When the hearing resumed on 20 July 1987, however, the Respondent stated that Foley was still employed and offered no explanation or evidence to show that this performance had improved. In this case, although there was generalized testimony to the effect that sales agents have in the past been put on notice and have subsequently been discharged for low sales, the Company has not produced specific documen- tary evidence (presumably in its possession) concerning the details of such cases either in the Stapelton office or anywhere else for that matter. Therefore it is my opinion that the Company has not shown that its discharge of Santangelo was consistent with its own prior practices and procedures. In fact, to the extent that documentary evidence was made available to me, this tends to show that at least one other employee, Foley, with a similar sales record as Santangelo, was retained, whereas she was discharged. The complaint also alleges that about 10 April 1986 the Company, by Robert Pisarra, interrogated employees and created the impression that their union activities were being kept under surveillance. Those allegations are based on the credible testimony of Santangelo who stated that on 9 or 10 April Pisarra, at their regular weekly meeting said, "You're not starting with the Union again, are you?" According to Santangelo, when she replied that he knew she had attended two meetings, he nodded his head in agreement. Based on the above I shall conclude that Pisarra's question to Santangelo does amount to unlawful interro- gation in violation of Section 8(a)(1) of the Act especial- ly as it came on the heels of DeVito's unlawful directive to Breggren not to engage in union solicitation. H.S.M. Machine Works, 284 NLRB 1482 (1987). On the other hand I do not conclude that Pisarra's nodding response to Santangelo's statement to him that she had gone to two union meetings can be reasonably construed as an indication that the Company was spying on its employ- ees' union activities. I therefore shall recommend that the allegation concerning the "impression of surveillance" be dismissed. Cf. Carride Foodland, 238 NLRB 568, 569 (1978); South Shore Hospital, 229 NLRB 363 (1977). CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By directing employees not to solicit for the Union on company premises, the Respondent has violated Sec- tion 8(a)(1) of the Act. 4. By interrogating employees concerning their activi- ties or interest in the Union, the Respondent has violated Section 8(a)(1) of the Act. 5. By discharging Jean Santangelo because of her membership in and/or activities on behalf of the Union, the Respondent has violated Section 8(a)(1) and (3) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Except to the extent heretofore found, the other al- legations of the complaint are dismissed. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. It having been found that Respondent discriminatorily discharged Jean Santangelo, I shall recommend that Re- spondent offer her immediate and full reinstatement to her former or substantially equivalent position, without prejudice to seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her by payment of a sum of money equal to that which she would have normally earned from the date of her dis- charge, less net earnings, during the period. All backpay provided shall be computed with interest on a quarterly basis, in the manner described by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and with interest thereon computed in the manner and amount prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987)." See also Isis Plumbing Co., 138 NLRB 716 (1962). Additionally, in accordance with Sterling Sugars, Inc., 261 NLRB 472 (1982), I shall recommend that Respond- ent remove from its files any reference to the discharge of Santangelo and to notify her in writing that this has been done and that evidence of same will not be used as a basis for future personnel actions against her. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" " In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), Interest on and after January 1, 1987, shall be computed 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 accrued pnor to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S.C. § 6621), shall be computed m accordance with Florida Steel Corp, 231 NLRB 651 (1977). 12 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 m Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, Metropolitan Life Insurance Compa- ny, Staten Island, New York, its officer, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discharging employees because of their member- ship in or activities on behalf of Local 888, United Food and Commercial Workers Union, AFL-CIO or any other labor organization. (b) Ordering or directing employees not to engage in union solicitation on company premises or otherwise pro- mulgating rules to that effect. (c) Interrogating employees about their union activi- ties. (d) 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) Offer Jean Santangelo immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges and make her whole for any loss of earnings she may have suffered in the manner ser forth in the remedy section of this deci- sion. (b) Remove from its files any references to the dis- charge of Santangelo and notify her in writing that this has been done and that evidence of the discharge will not be used as a basis for any future personnel actions against her. (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 office copies of the attached notice marked "Appendix." 13 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (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. is 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."