Hemisphere Broadcasting Corp. (Wbcn)

394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hemisphere Broadcasting Corporation (WBCN) and Lesley E. Warren. Case 1-CA-23094 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On June 26, 1986, Administrative Law Judge Norman Zankel issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found, and we agree, that the General Counsel has failed to sustain her burden under Wright Line' of establishing a prima facie case of discrimination in the discharge of Lesley E. Warren based on her union or other protected con- certed activities. It is, therefore, unnecessary to re- solve whether the Respondent would have dis- charged Warren in the absence of these activities. We also find, however, that a preponderance of the evidence does support a finding that Warren's dis- charge was discriminatorily accelerated. Her former coworkers, Stephen Berger and Judy Car- lough, both of whom were promoted to superviso- ry positions shortly before Warren's discharge, har- bored strong animus against Warren because of her position on withdrawing sales personnel from the collective-bargaining unit. They influenced a rever- sal of a management decision made prior to their promotions to defer the date of Warren's termina- tion until a replacement for her position could be found. We agree with the General Counsel that the issue has been fully and fairly litigated. The judge acknowledged that, if Berger and Carlough in their newly attained capacities as su- pervisors participated in the Respondent's decision to discharge Warren (i.e., had their promotions predated the discharge decision), that would pro- vide a substantial basis for inferring that the dis- charge was unlawfully motivated. This is because Berger and Carlough were in the forefront of ef- forts to sever the sales division from the unit. Berger, at least, was found to have harbored sub- stantial hostility toward Warren for her resistance ' 251 NLRB 1083 (1980), enfd . 622 F 2d 899 (1st Cir 1981 ). cert. denied 455 U S 789 ( 1980), approved in NLRB Y. Transportation Manage- ment Corp., 462 U S 393 ( 1983). to those efforts. The judge further found that War- ren's resistance risked, but did not ultimately preju- dice, Berger and Carlough's promotional opportu- nities. The judge declined to pass on the General Counsel's alternative theory, finding that Berger and Carlough's request for Warren's immediate ter- mination was a "sincere and legitimate benevolent expression." We disagree. In sales department shop meetings and informal discussions Warren and Berger heatedly debated the issue of severing that department from the unit. Berger and Carlough had both long advocated withdrawal from the unit and voiced their con- cerns to the shop. Based on representations they had received from management, they viewed their proposal as facilitating both sales department access to management information (from which they had been barred so long as the information could be used in negotiations) and a restructuring of the de- partment to increase the number of supervisory po- sitions, of which Berger and Carlough were both the ultimate beneficiaries when the latter aspect of their proposal was implemented . Warren, on the other hand, opposed the proposal and expressed her intentions to continue to be covered by a union contract. As Carlough described it, "it was an emotional thing," with Warren pitted against the rest of her shop on the issue, particularly against Berger whose arguments with Warren were loud and bitter. Warren abstained from voting on the pro- posal at the first union membership meeting, which vote was conducted by a show of hands. Warren spoke against the proposal and also abstained from voting at the second membership meeting and, al- though the vote was by secret ballot, she revealed her abstention-the only one . Warren further credi- bly testified to Berger and Carlough's adverse reac- tion after their proposal was defeated . At a March 15, 1985 meeting between membership and manage- ment, Warren attacked the same proposal when it was presented by management and, after other pro- posals affecting compensation for sales representa- tives and the additional management slots were later negotiated, Warren vigorously opposed ratifi- cation . The judge concluded that Warren 's union activities were open and notorious. Berger and Carlough acknowledged having urged Sales Supervisor Robert Mendelsohn to ter- minate Warren immediately on learning that Men- delsohn intended to do so when her replacement was hired, and it is undisputed that he adopted their suggestion . The explanations for opposing de- ferral of her termination were not consistent. Thus, both Berger and Carlough stated they had favored an immediate termination in a spirit of compassion 290 NLRB No. 50 HEMISPHERE BROADCASTING CORP. and fairness toward Warren so as not to foster her false expectations that she would fit into the new departmental structure. Carlough stated as her first concern, however, a perceived interference with the Respondent's ability to sustain Warren's current accounts if her pending vacancy became public knowledge in the course of interviewing candidates to replace her. First, the intense hostility between Warren and her former colleagues belies any claim that their motives flowed from any genuine spirit of compas- sion. As to the "publicity" motive advanced by Carlough, the record shows that the interviewing process for Warren's replacement was already well underway at the time Carlough allegedly voiced concern that the news would spread within the in- dustry. Further, Berger mentioned no such ex- pressed concern over publicity, and Mendelsohn's testimony in that regard conflicted as much with Carlough's as corroborated it. Thus, Mendelsohn testified that Berger and Carlough feared not that the spread of news of Warren's pending termina- tion would threaten accounts, but that "word would get back to Lesley." We therefore reject the reasons advanced by the Respondent's witnesses for urging an acceleration of Warren's termination and find the real reason was the evidenced hostility toward Warren's pro- tected activity of resisting withdrawal of her shop from the bargaining unit. Accordingly, we find that the Respondent violated Section 8(a)(3) and (1) by acceding to unlawful motivation from its supervi- sors to accelerate an already planned lawful dis- charge.2 REMEDY Having found that the Respondent violated Sec- tion 8(a)(3) and ( 1) of the Act, we shall order it to cease and desist and to take certain affirmative action designated to effectuate the policies of the Act. Having found that Lesley E. Warren's discharge on May 14, 1986, was accelerated because of her union activities, but that the Respondent intended to terminate her lawfully when a replacement could be hired, we shall not order that she be of- fered reinstatement, but only that she be made whole for any loss of earnings she may have suf- fered as a result of her discharge prior to the hiring of that replacement, by payment to her of a sum of money equal to the amount she would have earned in wages and other benefits from the date of her termination to the date of her replacement, less net interim earnings. The amount of backpay shall be 2 See Ohio Valley Graphic Arts, 234 NLRB 493 (1978) 395 calculated in the manner set forth in F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Hori- zons for the Retarded.3 ORDER The National Labor Relations Board orders that the Respondent, Hemisphere Broadcasting Corpo- ration (WBCN), Boston, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Accelerating the timing of employees' termi- nations for engaging in activities protected by Sec- tion 7 of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make Lesley E. Warren whole for any loss in earnings and other benefits, plus interest, she may have suffered because of the discrimination against her in accordance with the provisions set forth in the remedy sertion of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Boston, Massachusetts facility copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Re- gional Director for Region 1, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. a 283 NLRB 1173 (1987). Interest on and after January I, 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 prior to January 1, 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). 4 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 " 396 DECISIONS OF THE NATIONAL LABOR RELATIONS.BOARD (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. WILFORD W. JOHANSEN, concurring in part and dissenting in part. I agree with my colleagues that the General Counsel failed to sustain her burden of establishing a prima facie case of discriminatory motivation in the Respondent's discharge of Lesley E . Warren. Unlike my colleagues, however, I find based on the credited testimony that the Respondent did not violate Section 8(a)(3) of the Act by the timing of Warren's discharge. Accordingly, I dissent from the finding of a violation and would dismiss the complaint in its entirety. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government DECISION STATEMENT OF THE CASE NORMAN ZANKEL, Administrative Law Judge. This case was tried before me on various dates between 29 January and 19 February 1986 in Boston, Massachu- setts.' The charge was filed by Lesley E . Warren against Hemisphere Broadcasting Corporation (WBCN) (the Employer) on 5 August 1985.2 The case was heard pur- suant to a complaint that issued on 7 October. In substance, the complaint, as amended at the hearing, alleges that the Employer violated Section 8(a)(3) and (1) of the National Labor Relations Act (the Act ) by discri- minatorily discharging Warren on 15 May.3 All parties were afforded the opportunity to present oral and documentary evidence, examine and cross-exam- ine witnesses, and to present oral argument . Posthearing briefs have been received from counsel for the General Counsel and from the Employer. On the entire record, including my observation of the demeanor of the witnesses,4 I make the following FINDINGS AND CONCLUSIONS 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 accelerate the timing of termina- tion of our employees because of their activities protected by Section 7 of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of rights guaranteed you by Section 7 of the Act. WE WILL make Lesley E. Warren whole for any loss of earnings and other benefits resulting from the unlawful acceleration of her discharge , less net interim earnings, plus interest. HEMISPHERE BROADCASTING CORPO- RATION (WBCN) Anthony D. Dadalt, Esq., for the General Counsel. Mary L. Marshall, Esq. (Stoneman, Chandler & Miller), of Boston, Massachusetts, for the Respondent. John J. McDonough, Esq. (DiMento & Sullivan), of Boston, Massachusetts, for the Charging Party. 1. JURISDICTION Jurisdiction is uncontested. The Employer, a corpora- tion, at all material times, has been engaged in the oper- ation of a radio broadcasting station, WBCN, with a place of business , and offices, in Boston, Massachusetts. The Employer's gross revenues exceed $100,000 annual- ly; and in the same period , it purchases and receives at its WBCN facility products, goods, and materials exceed- ing $5000 in value directly from points outside Massa- chusetts. Also, at all material times, the Employer was a member of, or subscribed to, various interstate news services and advertised nationally sold products. The Employer admits, the record reflects, and I find it has been, and is, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The parties agree, the record reflects, and I find that Local 262, United Electrical, Radio and Machine Work- ers of America (UE) (Local 262) has been, at all times, a labor organization within the meaning of Section 2(5) of the Act. ' The parties completed presentation of evidence on 19 February, but the hearing was adjourned for administrative purposes . The hearing was closed by my written order issued 3 March 1986 2 All dates are in 1985 unless otherwise stated 'The complaint contains no allegation that the Employer engaged in conduct independently violative of Sec 8(a)(1). • All witnesses, except Warren and Robert Mendelsohn . the Employ. er's general sales manager, were sequestered I perceive no critical credi- bility conflicts between Warren and Mendelsohn. although each present- ed extensive testimony as a witness for opposing parties HEMISPHERE BROADCASTING CORP. 397 II. THE ALLEGED UNFAIR LABOR PRACTICES A. Backgrounds Warren was hired as an account executive in the Em- ployer's sales department on 4 September 1984.6 At that time, the salespeople were represented by Local 262 for collective-bargaining purposes. The Employer and Local 262 were parties to a collective-bargaining agreement, which became effective in May 1982 . The termination date of the agreement was 17 March . The bargaining unit consisted of all nonsupervisory WBCN employees, including the salespeople. Warren and Marc Woolf both became salespeople in September 1984. Seven other individuals were then em- ployed as salespeople. They are Stephen Berger, Judy Carlough, Tracie Christmas, Jeff Messerman, O'Connell, Helene Wexler, and Scott Zeien. In September 1984 the Employer's relevant superviso- ry hierarchy at WBCN consisted of Tony Berardini,, gen- eral manager, and Mendelsohn. Mendelsohn was the im- mediate supervisor of the salespeople. In May, Berger, Carlough, and Messerman became supervisors. The effective date of Berger's and Carlough's supervi- sory status is important. In part, the General Counsel's prima facie case relies on the knowledge possessed by Berger and Carlough of Warren 's protected activity and on their purported hostility toward her. I find that Berger and Carlough became supervisors on 10 May. Berardini issued a memorandum to that effect to the Em- ployer's staff on that date (G.C. Exh. 8). Berger testified Mendelsohn advised him of the promotion a day or two before Berardini's memorandum was issued . The record shows, also, Berger and Carlough attended and partici- pated in management meetings immediately after an- nouncement of their appointments as supervisors. All rel- evant evidence regarding the promotion date is undis- puted. Berger, Carlough, and Wexler advocated changes in the sales department for years before the 1985 contract negotiations. A principal objective was the creation of management positions. Another was to disseminate some of the Employer's confidential financial information among the salespeople. Removal of salespeople from the Union was urged by Berger and Carlough to accomplish these goals. These objectives were discussed among the salespeople during prenegotiation meetings conducted on 7 and 11 January. Warren openly opposed the objectives. These matters also were discussed during meetings con- ducted among all bargaining unit employees on 8 and 17 January.' The Employer and Local 262 engaged in negotiations between the third week of February and 15 March. On the latter date, Mel Karmazin, president of WBCN's parent company, met with all employees. Berardini and Mendelsohn were present. This meeting preceded the collective-bargaining session of that date. Later, on 15 March, the Employer and Local 262 reached tentative accord on terms of a new collective- Derived from admitted or unrefuted evidence 6 Hereafter, account executives will be called salespeople 7 Details of the union meetings will be reported below. bargaining agreement. Thereafter, Local 262 conducted a ratification meeting among its membership. Warren said she was expressly opposed to the contract . She was the only person who voted against ratification. The contract was ratified by membership vote 2 or 3 days later. The new contract is effective 17 April through 17 March 1988. On 15 May, Mendelsohn discharged Warren . She has not worked for the Employer since that date . The Em- ployer admits its refusal to reinstate Warren at all times after her discharge. B. The Instant Dispute 1. Warren's employment and termination The operative facts are substantially undisputed.8 Rev- enues derived from sale of advertising comprise the Em- ployer's principal income source. The salespeople are re- sponsible for selling advertising, servicing advertisers, and collection of accounts. Salespeople are compensated on a commission basis. When Warren was first em- ployed, the salespeople's commission rate was established in the 1982-1985 collective-bargaining agreement. Salespeople develop their workload in two ways: (1) assignment of particular accounts by the Employer's management; and (2) acquisition of accounts as "new business" by personal solicitation. Two methods general- ly result in new business. In one, salespeople use personal initiative to identify and solicit potential advertisers. In the second method, salespeople nurture the interest of new advertisers by following up on inquiries regarding advertising made by the potential customer . This second method is known as "call-ins." Warren applied for her position with the Employer in late summer 1984. At that time, she had at least 2-1/2 years' experience as a radio advertising account execu- tive. Mendelsohn interviewed Warren three times. They discussed a variety of matters relevant to the functions and expectations of salespeople . Mendelsohn told Warren salespeople needed to maintain sales levels and relation- ships with existing accounts and to develop new busi- ness. Mendelsohn said that Warren's emphasis should be to attract and retain stable and established businesses. Warren told Mendelsohn she had prior experience serv- icing concert accounts . Specifically, Warren named two such major accounts: Tea Party (also called Don Law) and Gemini Concerts. Warren said she thought her expe- rience with those accounts would be useful to WBCN. She asked Mendelsohn to assign those accounts to her. During Warren's third interview, she and Mendelsohn discussed Local 262. Mendelsohn said, "Oh, by the way, did I tell you about the Union?" Warren answered that she had been on strike, but reluctantly, at one of the radio stations of previous employment . Warren said she did not want to be on strike. Mendelsohn responded it was "as though there were no union" at WBCN; that ev- 8 every bit of evidence, or argument of counsel , is described However, each has been considered Omitted material is deemed irrele- vant, superfluous, or of little significant probative worth. Unless other- wise stated, events and conversations reported by me are unrefuted, ad- mitted , or corroborated by opposing witnesses or documentary evidence. 398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD erything was "very amicable"; and that "the only thing that the Union did was lock in your commission rates and that it also prohibited management from having house accounts."9 Warren said this assurance from Men- delsohn was "very acceptable" to her. Mendelsohn assigned a group of accounts to Warren when she assumed her position as a salesperson. Tea Party Concerts was among those accounts . That account represented the largest sum of advertising revenue among those assigned to Warren. Neil Jacobsen is and, at all material times, has been employed by Don Law . He is responsible for all the ad- vertising placed for Tea Party. Jacobsen resisted War- ren's assignment to the Tea Party account . Salesperson Wexler formerly serviced that account . Jacobsen told Mendelsohn he was satisfied with Wexler's performance and did not want a new salesperson assigned to him. Mendelsohn prevailed on Jacobsen to accept Warren as the Tea Party representative . Jacobsen agreed. Jacobsen was consistently unhappy with the way Warren serviced his account. Jacobsen testified that "fairly soon" after Warren took charge of his account, he felt she was not going to work out . Specifically, Ja- cobsen reported to Mendelsohn that Warren failed to play advertising commercials for his review before they were played on the air. He also told Mendelsohn Warren had not reserved advertising space as Wexler had done. Mendelsohn received adverse comments from sales- people Wexler and Christmas about Warren 's personal appearance in late September or October 1984. Each complained that Warren was not dressing professionally. Wexler personally advised Warren her appearance was the subject of discussion among other employees . Wexler suggested Warren improve her appearance on the job and offered to assist Warren in selecting appropriate clothing. Wexler reported her conversation with Warren to Mendelsohn. Mendelsohn did not personally confront Warren concerning her appearance , although he claimed, in testimony, he was not pleased with it. Mendelsohn claimed he was satisfied that Wexler had addressed the subject with Warren. The discussion between Wexler and Mendelsohn occurred in October or November 1984. In mid to late December 1984, Jacobsen told Mendel- sohn that he would not renegotiate the Tea Party con- tract in Warren's presence. In the past, WBCN's sales- person designated to service the Tea Party account par- ticipated in the annual rate-setting negotiations for an ad- vertising contract in the ensuing year. In fact, the 1984 negotiations took place in December only among Jacob- sen, Mendelsohn, and Don Law, the owner of the Tea Party account. Mendelsohn conferred with Warren on the day follow- ing the Tea Party negotiations . He told Warren that Don Law and Jacobsen were not pleased with how she serv- iced their account . Mendelsohn told Warren to do what- ever necessary to improve her relationship with Jacobsen and the Tea Party account. Warren said that she would try to do so. During the first week of January, Mendelsohn again conferred with Warren . He told her that he was dissatis- fied with the amount of new business she had generated. Advertising rates quoted by salespeople to new clients regularly were reviewed by Mendelsohn . By the end of 1984, Mendelsohn concluded that Warren was not ag- gressively pursuing new business. His conclusion was de- rived from the dearth of requests from Warren for Men- delsohn to review quoted advertising rates . After their discussion, Warren apparently made lists of certain pro- spective clients. Warren personally called on several business establishments in the suggested areas of new business, but was unable to bring any of them into the station as new accounts. Also, in early January, Warren gave her sales projec- tion for the first quarter of 1985 to Mendelsohn . They re- viewed these projections together . He told Warren the dollar amounts were disappointing . Mendelsohn also said that the sources from which she anticipated revenue were not the most remunerative. On 18 January Mendelsohn discussed sales perform- ance with Warren. He said he was concerned about her sales performance on a project known as "expo." Sales- people were responsible for selling booth space. Mendel- sohn told Warren he expected her to sell more than only two booths. Warren raised Local 262 during the 18 January con- versation. Warren told Mendelsohn she found "the whole union procedure very distracting ." 10 Mendelsohn gave no suggestions . He merely told Warren he did not want those distractions to interfere with Warren's per- formance of her job. On approximately 30 January, Mendelsohn and Jacob- sen met. Jacobsen requested the meeting. He again told Mendelson he was unhappy with the way Warren serv- iced his account. Jacobsen reiterated earlier objections to how Warren handled the account . Mendelsohn agreed that Jacobsen's complaints were valid . He said they would be relayed to Warren . Mendelsohn told Jacobsen, however, that he believed that Warren yet could satisfy Jacobsen's requirements with more effort on Warren's part. Later, on 30 January , Mendelsohn met with Warren. He told Warren that Jacobsen was still complaining about how she handled the Tea Party account . Warren told Mendelsohn she believed she was complying pre- cisely with Jacobsen's requests, and could not understand why Jacobsen was still not content. Mendelsohn said it was her job to assuage a client's perception. Mendelsohn said he was concerned when a major account perceived inadequacies in service . Warren said she believed she was already doing everything she could to keep Jacob- sen's account happy. In early March, Berardini asked Mendelsohn to inves- tigate the reasons for a shortfall in achieving the sales de- partment revenue projections for the first calendar quar- ter in 1985. Mendelsohn compared actual sales to the 10 The quoted phrase is an apparent reference to the union meetings which had been conducted on 7, 8, 11, and 17 January concerning the issue of the salespeople withdrawing from Local 262 The relevant con- 9 The quoted phrases are words attributed by Warren to Mendelsohn . tents of those meetings will be described in the text below HEMISPHERE BROADCASTING CORP. projected sales of each of the Employer's salespeople, except Christmas." Mendelsohn's analysis revealed unexpected deficiencies in the amount of business actually generated . To offset these deficiencies, most salespeople showed unanticipated increases in advertising among existing accounts or ac- quired unexpected new business that had not been pro- jected (R. Exhs. 10(a)-(f)). Mendelsohn then factored in his personal knowledge of the reasons certain of the pro- jections were deficient. Mendelsohn's comparison of Warren's first quarter projections to actual sales for the period led him to con- clude that there existed more disappointing, than posi- tive, statistics. Specifically, Mendelsohn observed the sources of new business developed by Warren were (1) from the less preferable, "life-style" business; (2) derived mostly from call-ins, previous accounts of the Employer, or leads developed by individuals other than Warren; and (3) of low volume. Mendelsohn combined these observations and conclu- sions together with his knowledge of Warren's overall sales level throughout her employment as a salesperson with WBCN (R. Exhs. 2 and 3). He concluded Warren was not succeeding as a salesperson . Mendelsohn as- cribed this conclusion to the following factors: (a) over- all sales; (b) lack of new business; (c) unable to satisfy ex- isting clients; (d) inability to get along with other sales- people; and (e) continued unprofessional appearance. 12 The General Counsel challenges Mendelsohn's method of evaluating Warren's performance. Specifically, the General Counsel contends comparing Warren 's projected sales to her total sales is only one possible measure of her performance and should "not be a valid basis" of judging her. I have assessed the various reasons propounded by the General Counsel to support the quoted assertion (G.C. Br. 21-32). Those reasons are numerous and varied. To enumerate each in this decision would serve no useful purpose . It would unduly lengthen this deci- sion. It suffices that I conclude, in combination, the Gen- eral Counsel's contentions concededly create suspicious circumstances. However, I find them unpersuasive when viewed in the totality of relevant circumstances. Some of the General Counsel's contentions complain that Warren inappropriately was held to standards that are inapplicable to her. Such arguments are not impres- sive. They improperly seek to substitute the personal judgments of the trier of fact for those managerial judg- ments exercised by WBCN supervision . In this connec- tion, I have considered the General Counsel's arguments that Warren's sales statistics and laudatory comments from certain accounts, compiled and received after Men- delsohn conducted his March evaluations , "may well have changed his judgments ." I acknowledge that these events are complimentary to Warren. Conceivably, if a 11 I accept Mendelsohn's uncontradicted assertion that Christmas was omitted because her retention as a salesperson was part of a continuing obligation of the Employer to maintain certain minority composition on its professional staff 12 The Employer adduced evidence purporting to show Warren exhib- ited an inability to get along with other salespeople and neglected to en- hance her professional appearance . I shall not evaluate this evidence be- cause I consider it not critical to the disposition of this case. 399 review of Warren's work occurred in May , the decision to discharge her (which I shall find was actually made in March) could have been reversed . But the failure to re- evaluate the situation , at best, can be said to be unreason- able. Unreasonableness, in the instant context, I find cannot be equated with unlawfulness . I recognize that there may be circumstances in which an employer's failure to con- sider an employee's job performance until the very moment of discharge casts suspicion on the employer's motivation. I have earlier noted that there is no conten- tion the Employer engaged in any conduct independent- ly violative of Section 8(a)(1) of the Act . In the absence of proven direct evidence of unlawful motivation, I am unable to use whatever suspicious circumstances exist as a basis for either making an inference that Mendelsohn's analysis and conclusions are a sham ; evidence of unlaw- ful motivation; or that the Employer's stated reasons for Warren's discharge are pretextual . Suspicions, alone, "cannot serve as a basis for finding a violation." See Mason & Hanger-Silas Mason Co., 270 NLRB 383, 385 and cases cited at fn. 7 (1984). Mendelsohn testified that he decided to discharge Warren . He asserted his decision was based on the five factors described above. I find it unnecessary to analyze the validity of each reason attributed by the Employer to warrant discharge. That task would be required only to establish whether the Employer satisfied its burden under Wright Line, 251 NLRB 1083 (1980), enfd . 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); ap- proved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). I shall find, below, that the prepon- derance of evidence is insufficient to establish the requi- site prima facie case. Accordingly, the Employer is re- lieved from showing it would have discharged Warren even absent her having engaged in protected activity.13 The Employer claims (as noted above) Mendelsohn's decision to discharge Warren was made in March. The General Counsel contends the discharge decision was made on or about 14 May , a few days after Berger and Carlough became supervisors. The Employer asserts the decision was independently made by Mendelsohn. The General Counsel also contends Berger and Carlough, as supervisors, were instrumental in the discharge decision. Resolution of the date on which the Employer decided to discharge Warren is, perhaps, the most critical and seminal issue in this case. A conclusion in favor of the General Counsel's position would provide a substantial, legitimate base for an inference that Warren's discharge was unlawfully motivated . This is so because I conclude, in agreement with the General Counsel, that the evi- dence shows that Berger, at least, harbored animosity toward Warren because (as will be described below) she opposed the separation of salespeople from Local 262. I find Warren's opposition might have, but did not, preju- dice Berger's and Carlough's promotional opportunities. This latter finding tends to support the General Coun- sel's position. " By finding the evidence does not establish a prima facie case, I do not mean to convey there is any validity to the Employer's contention that Warren was less than a satisfactory worker 400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A determination consistent with the Employer's con- tentions renders impotent the argument that Warren's protected activities were connected with, or a consider- ation in, the discharge decision. I conclude the decision to terminate Warren 's employ- ment was made in March by Mendelsohn. I find it was based on his perception and judgment of Warren as a salesperson. The following bases exist for this result. a. Documentary evidence supports a finding that the discharge decision was made in March At approximately the time Mendelsohn reviewed sales projections against actual sales, he also was asked by Berardini to prepare various configurations for the sales department that would reflect the potential agreements that might emanate from the collective-bargaining nego- tiations then in progress. Mendelsohn complied. He submitted a draft of such al- ternatives to Berardini in mid-March. Mendelsohn's pro- posal is entitled "Sales Department Scenarios for 4/1/85" (Exh. 9). It included three alternatives. Each al- ternative explicitly included language that encompasses a decision to terminate Warren. Thus, Mendelsohn's mid- March memorandum explicitly contains the phrase "re- place Leslie Warren" in the first alternative; and the phrase "replace Leslie, as above" in the second and third alternatives. A second document, generated later, bears the same import, namely, that the Employer had decided to oper- ate without Warren's services. Mendelsohn prepared this memorandum (R. Exh. 14) after the 1985-1988 collec- tive-bargaining agreement was ratified by the member- ship of Local 262. This memorandum, dated 29 April, is entitled "Restructuring of Sales Department ." This docu- ment reflects the earlier decision to operate without Warren on its last page. There, Mendelsohn listed each of the salespeople who would be employed in the re- structured department . Warren's name was not listed. In- stead, the document contains the letters A, B, and C. These letters indicate it was Mendelsohn's intention to add three, yet unknown, salespeople to the staff. b. Mendelsohn's deferral of Warren's discharge is logical The General Counsel strongly urges the delay of War- ren's discharge until 15 May makes it unlikely the deci- sion was made in March. However, Mendelsohn's testi- mony reflects his decision was made before the Employ- er and Local 262 had concluded their negotiations for a new collective-bargaining agreement. Mendelsohn claimed he deferred implementation of Warren's dis- charge because the new commission rates were still unre- solved in negotiations and any replacement for Warren would need to be informed of the new rate of hire. I find Mendelsohn's explanation reasonable. It is consistent both with the cessation of negotiations and the Employ- er's efforts to develop structural changes in the sales de- partment through Mendelsohn's memoranda. There is no evidence Warren was such a disruptive force in the Employer's operations as to raise the expec- tation her discharge should have been effectuated con- current with the decision to take that action. Indeed, the uncertanties of the collective-bargaining results, I con- clude, militate in favor of delaying implementation of Mendelsohn's discharge decision until new commission rates were established and a final revised configuration of the sales staff was adopted. c. The timing of preemployment interviews of individuals for positions as salespeople tends to confirm the Employer's contention that the decision to terminate Warren was made before Berger and Carlough became supervisors Mendelsohn testified, without contradiction, that three persons were interviewed before 10 May for salesperson positions. He explicitly identified each by name. That three individuals were interviewed is significant. That number exactly corresponds to the potential individuals identified in Mendelsohn's 29 April memorandum as A, B, and C (R. Exh. 14). Undisputedly, the interviews oc- curred before the dates Berger and Carlough were ad- vised they were promoted to their managerial positions and before those promotions were announced to the other salespeople. I conclude that these interviews, cou- pled with the omission of Warren's name in Mendel- sohn's second reconfiguration memorandum, support the conclusion that the decision to terminate Warren's serv- ices preceded the promotion of Berger and Carlough.14 Mendelsohn's proposal for restructuring the sales de- partment became operational during the first week in May. The 10 May promotions of Berger and Carlough to supervisory positions resulted from those revisions. On 14 May, Mendelsohn, Berger, and Carlough to- gether met with each sales person. They met with Warren that day. She was the last salesperson scheduled. Mendelsohn outlined the structural revisions , advised Warren of new commission rates and that all salespeople would be assigned either to Berger or Carlough , but the specific supervisory assignments were still uncertain. Mendelsohn told Warren she could continue to deal di- rectly with him in the interim. The meeting lasted only approximately 5 minutes. There is no evidence Warren said anything significant to the litigated issues. Later, on 14 May, Mendelsohn met with Berger and Carlough. Mendelsohn told them that Warren would be terminated . They asked when Mendelsohn planned to take that action. He said he intended to discharge Warren when he had replacements. Berger and Carlough told Mendelsohn the delay was cruel and unfair to Warren. They urged Warren's immediate termination. Mendelsohn said he had deferred telling Warren of his termination decision to avoid a gap between the termina- tion and hiring of replacement personnel to represent the Employer's accounts. Berger and Carlough offered to be responsible for Warren's accounts until replacements could be hired. On 15 May, Mendelsohn conferred with Warren. Men- delsohn discharged Warren on this occasion. Each of 14 This conclusion disposes of the General Counsel 's claim that Berger and Carlough were at all involved in the decision to terminate Warren or that the discharge occurred because Berger and/or Carlough impressed their bias against Warren on Mendelsohn HEMISPHERE BROADCASTING CORP. them testified as to what was said during this conference. I found each of them forthright, candid, and spontane- ous. They gave consistent versions of events when testi- fying regarding identical subject matter . Warren's testi- mony was more comprehensive. Accordingly, my factual findings concerning the 15 May conversation track War- ren's account. Mendelsohn began the 15 May conversation . He told Warren "I'm afraid the news isn't good . I'm going to have to ask you to leave." Warren asked, "You're firing me?." Mendelsohn answered , "I'm afraid so." Warren told Mendelsohn she thought this was a sudden move. She asked whether she would get any warnings. Mendelsohn said "No." Warren remarked she did not understand the reason for Mendelsohn's action. He said that he did not believe Warren would fit into the new system . Warren noted that the system was in effect for only I day and they had not yet given it a chance. Mendelsohn said the decision had been made the previ- ous evening during a meeting attended by Berardini, Berger, and Carlough. Warren testified that Mendelsohn "was trying to be nice about" discharging her. In this connection , Mendel- sohn related how he had been terminated from a job sev- eral years earlier and "it wasn't the end of the world." Warren asked whether her difficulties with the Tea Party (Don Law) account "had anything to do with her discharge. Mendelsohn said "No, it didn't." Finally, Warren and Mendelsohn discussed severance pay and recommendations that would be made to any of Warren's potential employers. Warren's last day at work for WBCN was 15 May. Warren continued to receive commission payments for any orders placed by her and aired before 24 May. 2. Warren's protected activities Union activity increased among the salespeople in Jan- uary. They were anticipating the forthcoming collective- bargaining negotiations . One of the issues debated among the bargaining unit employees concerned what position Local 262 negotiators should take during negotiations re- garding the inclusion of salespeople . This issue was inex- tricably connected to the objectives of creating manage- ment positions and obtaining the Employer 's confidential financial information to which I have alluded in section II,A, above. The meetings at which this issue was raised, and Warren's participation, are summarized below. 7 January: The salespeople met among themselves, separate from other bargaining unit employees . They dis- cussed the possibility of withdrawing from the bargain- ing unit. Warren said she did not agree the salespeople should leave the Union . A majority of the group voted in favor of asking the membership to permit the salespeo- ple to withdraw from the Union. Warren abstained from voting. 8 January: The Union conducted a general member- ship meeting. The issue of withdrawal of the salespeople from the Union was among the matters discussed. Open debate ensued on that issue. Salespeople spoke for and against the proposal . A vote was taken by a show of hands. The proposal was defeated. Warren abstained. 401 11 January: The salespeople met among themselves. They discussed whether to ask the Union's general mem- bership to reconsider the issue of salespeople's withdraw- al from the Union. Warren credibly testified that Berger and Carlough said they were unhappy with the results of the 8 January union meeting. Other salespeople orally agreed. Warren (in her words) "repeated . . . [her] . . . opin- ion" (Tr. 121). The salespeople voted to request the union membership to permit them to present their with- drawal proposal at another general membership meeting scheduled for 17 January. Warren abstained from voting on 11 January. 17 January: The Union conducted another general membership meeting . The salespeoples' withdrawal pro- posal was discussed. Berger presented prepared specific arguments to support the withdrawal . He fielded ques- tions. Warren addressed the withdrawal issue.1 5 Warren said she agreed with the employees who said they were op- posed to the withdrawal proposal. (That opposition was expressed basically by unit employees who were not salespeople.) Warren declared it was she, among the salespeople, who abstained from voting on the issue. She asked for the 17 January vote to be cast by secret ballot. The withdrawal proposal was again rejected. Berger spoke with Warren two or three times between 8 and 17 January regarding the withdrawal proposal. He tried to convince Warren that withdrawal from the Union would benefit the salespeople. During these con- versations, Warren questioned and opposed Berger's viewpoint. These conversations generally occurred in Warren's work area approximately between 5:30 to 6 p.m. Occasionally, those discussions progressed in a loud tone of voice. Mendelsohn and Berardini regularly met in Berardini's office at times that coincided with the Berger-Warren discussions. Berardini's desk was located about 2 feet from Warren's desk. However, an 8-foot-high wall ap- proximately 6 inches thick separated them . The wall did not reach from floor to ceiling . About 2 to 3 feet of open space existed between the wall's top and the ceiling. ' Carlough testified, that she heard Berger and Warren engaged in the 8 to 17 January conversations. Carlough was at her desk, about 12 to 15 feet from Warren's desk, at those times. Carlough, however, claimed only that she heard Berger and Warren talking in loud voices. She said she was "not aware of the exact conversation" (Tr. 713). Mendelsohn unequivocally denied he knew of War- ren's position on the withdrawal issue at times critical to establishing Employer knowledge of her protected activ- ity. Warren testified she could hear voices from Berar- 's The General Counsel claims the record does not clearly show whether Warren spoke during the meeting of 8 or 17 January . I find she did so on 17 January. Warren's recollection of the occasions on which certain events oc- curred was not as specific as other witnesses'. For example, the Employ- ees Traffic Director Hahesy (a unit employee) was more comprehensive and sure about what took place on 17 January. I accept Hahesy's recollection that Warren spoke at that meeting. Ha- hesy's account is consistent with that part of Warren's testimony that Warren asked that the 17 January vote be conducted by secret ballot. 402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dini's office when voices were raised . There is no evi- dence the precise words were discernible.'s 15 March: The Employer conducted a general meeting among the employees. Mel Karmazin, the Employer's president, addressed the attendees . Mendelsohn and Ber- ardini were present. There was some discussion regarding the proposition of salespeople being removed from the Union. (The Em- ployer had proposed, during collective-bargaining negoti- ations then pending, that salespeople be eliminated from the bargaining unit. When Karmazin spoke, the Union al- ready had rejected that proposal. The rejection, presum- ably, was pursuant to the 17 January general membership vote.) Karmazin gave his reasons in support of the Em- ployer's proposal. Warren expressed an opposite view. She said she believed that Karmazin's goals could be achieved even if the salespeople were involved in a union contract. Later on 15 March, the Employer and Union held a negotiating session . Union negotiating committee mem- bers Carlough and Wexler proposed creation of new sales department management positions. The Employer agreed. Further, the parties agreed the new positions would be funded by house accounts . This agreement ef- fectively removed the prohibition against house ac- counts. Also, the parties agreed to modify the contract's economic terms for salespeople. Specifically, the Union agreed to the Employer's proposal that salespeoples' commission rates no longer be established in the collec- tive-bargaining agreement. Thereafter, the Union conducted a meeting for ratifi- cation of the new collective-bargaining agreement. Warren vigorously objected to ratification . She said she was surprised that the union negotiators agreed to the above-mentioned terms. Warren expressed disbelief that the contract contained nothing regarding sales commis- sions "except that it's up to somebody." Warren also said she thought it was dangerous for the salespeople to "open up house accounts as a means of compensation for managers." (Tr. 133.) The ratification vote was taken by raise of hands. Warren was the only unit employee to vote against ratification. I find that the preceding discussion regarding Warren's activities provides ample evidence that she was engaged in protected union activities between 7 January and 15 March; and that activity was open , notorious, and rea- sonably could not have escaped Mendelsohn's attention before he decided to discharge Warren." 3. Analysis The General Counsel must prove the Employer was motivated by unlawful considerations in its discharge of Warren. Discriminatory motivation is a critical element and essential ingredient of a prima facie case. WMUR-TV Co., 253 NLRB 697, 703 (1980). I have stated above, in various places, that the evi- dence is viewed in a light most favorable to the General Counsel, for analysis purposes . I conclude the preponder- ance of evidence does not sustain a finding that Warren's discharge was discriminatorily motivated , even when all critical questionable areas are resolved consistent with the General Counsel's arguments and contentions. 18 Concededly, there are two factors that militate in favor of finding Warren's discharge was motivated by discriminatory considerations. Those factors are 1. Mendelsohn's denial to Warren during her 15 May termination interview that her handling of the Don Law account was a factor in the discharge contradicts the vast evidence adduced by the Employer designed to show that Warren failed in her responsibility to service that account; and 2. The discharge appears to be precipitous because it occurred without warning only 1 day after new rates and supervisory changes were discussed by Mendelsohn with Warren. In other circumstances, these elements would be strong and persuasive factors on which I would make an inference that discriminatory reasons caused Warren's discharge. However, in the entire context of the instant case, I conclude the above factors present only suspi- cious conditions . They do not convincingly support an inference adverse to the Employer because they are re- butted by the more direct and tangible evidence, which demonstrates Mendelsohn made the discharge decision in March. I find Mendelsohn's deferral of implementing his decision supported by extrinsic events; the need to settle new contract terms with Local 262 and to develop revi- sions of the Employer's sales department. I find Mendelsohn's failure expressly to warn Warren her job was in jeopardy, and to engage her in a review of the department's revisions a day before the discharge, fully plausible as consistent with his overall demeanor. The General Counsel characterizes Mendelsohn as possessing and exhibiting a "nonconfrontational personal- ity." I agree with this description . Mendelsohn was soft- spoken, mild-mannered, and of moderate temperament during his lengthy testimony at the instant hearing. The record reflects Mendelsohn transmitted these traits to his managerial style. For example, Mendelsohn personally avoided criticism of Warren's appearance at work. Ap- parently, Mendelsohn was content that Wexler had raised that issue with Warren. I find, contrary to the General Counsel's contention, that Mendelsohn's personality is consistent with deferral of Warren's discharge beyond the date of decision and "There is no direct evidence to show either Berardint or Mendelsohn became aware of Warren's activity or her position as a result of these conversations between her and Berger . Nonetheless, for purposes of as- sessing the nature of a prima facie case , I shall assume that the Employer knew of Warren's activity at least as early as 17 January. 'r Also, for analysis purposes, I find the record shows Warren 's views on exclusion of salespeople from the Union were firmly opposite from those shared by Berger and Carlough . They were similarly inconsistent with the views expressed by the Employer's president. iB 1 find all other elements of a prima facie case have been proved by at least the evidence indicated below (a) Protected activity- Warren's conduct regarding withdrawal of sales- people from the Union; (b) Employer knowledge: By inference derived from the notorious character of Warren's activity and directly from her 15 March challenge to Karmazin, (c) Unlawful effect of discharge: Warren's discharge signaled to other their employment might be in jeopardy unless they remained , or wanted to remain, in the Union. HEMISPHERE BROADCASTING CORP. also accounts for his 14 May failure to advise Warren of the decision. 19 Mendelsohn's character, personality, and demeanor make it reasonable to expect he would have denied the discharge was related to how Warren serviced the Don Law account . Warren's question, which elicited that re- sponse from Mendelsohn, was asked after Mendelsohn told Warren she was being fired .20 Clearly, a negative answer to Warren's question was less likely to induce controversy than giving an answer that would raise the spectre of factual disagreement . In view of Mendelsohn's undisputed character, I find his denial that Don Law was involved in the discharge a remark reasonably anticipat- ed. In the total scenario of events, that denial bears no sinister import. In making my conclusions I am mindful that, on 15 May, Mendelsohn told Warren the discharge decision had been made the previous night . I consider that remark, also, one which is readily anticipated to come from Mendelsohn. In all the instant circumstances, I con- clude this statement is another way Mendelsohn avoided controversy. To ascribe the decision to the previous evening establishes an implied explanation for including Warren in his 14 May review of the new sales commis- sions and system. The record as a whole does not war- rant me to find, from Mendelsohn's false statement about when the discharge decision was made, either that Men- delsohn is generally not credible or that he admitted he had not decided to terminate Warren until 14 May. On the foregoing, I am unwilling, and virtually unable, to infer the existence of unlawful motivation from either of the two best factors presently under discussion.2 t I find the following additional evidence and arguments relevant to the element of discriminatory motivation noteworthy. But, I find each unpersuasive. (a) The General Counsel contends that Berger and Carlough disliked Warren, and their animosity may be imputed to the Employer. Unquestionably, Berger and Carlough were in the forefront of the effort to withdraw the salespeople from the Union. Considerable evidence was adduced to show that their attitude toward Warren changed after she expressed her opposition to withdraw- al from the Union. I need not decide either the nature of Berger's and Carlough's attitude changes (if any) or whether their attitudes can be imputed to the Employer. However, even assuming Berger and Carlough har- bored actionable animus toward Warren , I find it im- proper to transmit their hostility and animus to the Em- ployer. This is so because the evidence clearly shows the decision to discharge Warren was made long before Berger and Carlough became supervisors . I conclude nei- ther of them had any effective input on the discharge de- 19 I reject the General Counsel 's argument that the decision was tenta- tive until 14 May Mendelsohn's personality does not necessarily affect his ability to make aggressive, prompt decisions (R. Exh. 9), where Men- delsohn unequivocally definitively recommended, three times, that Warren be replaced 20 Mendelsohn's personality was evident in the language used to inform Warren of the discharge . He only said he was asking "her to leave"; and, even when Warren asked whether "You're firing me?", Men- delsohn characteristically answered , "I'm afraid so " 211 have considered the absence of any allegation or evidence of an independent 8(a)(1) violation in making this conclusion 403 cision. I simply find neither of them was involved in the decision to terminate Warren.22 (b) The General Counsel claims that the Employer's failure to warn Warren that her job performance jeop- ardized her employment is evidence of unlawful motiva- tion. In other circumstances, this would be true. In the present circumstances, I find this argument contrary to the facts. I concede there is no evidence that Warren re- ceived explicit warnings that she might be discharged. However, the undisputed evidence shows that Mendel- sohn counseled Warren on various occasions (enumer- ated above in section II,B(l)) as early as December 1984. Those discussions involved , among other things, Mendel- sohn's expressions of disappointment with Warren's reve- nue production and ways and means by which she could improve it. Income production is a salesperson's princi- pal objective. In my view, explicit criticism of results re- garding that objective bears the implication that the pro- ducer's tenure is tenuous unless there is improvement in production. (c) The General Counsel asserts that Warren was treated in a disparate manner, and that treatment is evi- dence of unlawful motivation . I conclude the evidence does not show Warren was subjected to the claimed dis- parate treatment. The claim is based on a comparison of Warren's performance to that of salesperson Christmas. In fact, a comparison of the total sales of Warren and Christmas between October 1984 through April 1985 shows that Warren outsold Christmas by an average of approximately $8000 per month. Nonetheless, I find no merit to the claim of disparate treatment. Two reasons exist for my conclusion . First, I have noted earlier in this decision that Christmas was main- tained by the Employer on its sales staff to achieve and maintain compliance with requirements for minority em- ployment. Mendelsohn excluded Christmas' production from the performance evaluations that Berardini required him to make in early 1985 . I credit Mendelsohn's testi- mony this omission reflected Christmas' special status. In any event, Warren was a considerably more experienced salesperson than Christmas. It is reasonable that the Em- ployer would have expected her to produce more than she did. Second, I find a more appropriate comparison of sales statistics would be to compare the production between Warren and Woolf. As earlier stated , both of them began their sales careers with the instant Employer in Septem- ber 1984. Woolf essentially worked from September through December 1984.23 Woolfs total sales during the 22 1 need not deal with the General Counsel 's alternate theory (ex- pounded in his posthearing brief) that Berger's and Carlough's hostility prompted them to urge Mendelsohn , on 14 May, to terminate Warren im- mediately and thus the discharge was accelerated by their hostility at a time when they were clearly supervisors In the absence of direct evi- dence of unlawful motivation or independent 8(a)(1) activity, and in all the instant circumstances, I find the request for immediate termination a sincere and legitimate benevolent expression 22 Based on the Employer's records (R Exh 3). 1 presume Woolf worked very little in January 1985 There is no evidence to show the cir- cumstances of Woolfs departure 404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD last calendar quarter of 1984 exceeded Warren's by $3000. Interestingly, Christmas' last quarter, 1984, sales exceeded Warren's by $77,303 (R. Exh . 2). These statis- tics negate the validity of the contention that Warren was treated in a disparate manner. I find, based on the foregoing analysis, that the record contains insufficient evidence on which to conclude there exists a prima facie case of discrimination against Warren.24 On the above findings of facts, and on the entire record in the case, I make the following CONCLUSIONS OF LAW 1. Hemisphere Broadcasting Corporation (WBCN) is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Employer has not committed any of the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.] 24 As earlier stated . this conclusion renders it unnecessary to decide whether the evidence shows that the Employer Satisfied its burden of persuasion under Wright Line. supra